MODEL ANSWERS 2021

Sixth Semester 3 Year LL. B. / Tenth Semester 5 Year B.A. LL. B.

LAW OF EVIDENCE

Prepared By:

MUBARAK KHAN
Assistant Professor
Al-Ameen College of Law
Bengaluru

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 VI Semester 3 Yrs LL.B. / X Semester 5 Yrs B.A. LL. B.
Examination
LAW OF EVIDENCE
LONG ANSWERS
Q. No. 1. Define and Discuss fact, facts in issue and relevant fact.
1. Introduction
A legal decision given by a Court of Law means application of law to facts. The function of the
Law of Evidence is to lay down rules according to which the facts of a case can be proved or
disproved before the Court of Law. Section 3 (Interpretation clause) of the Indian Evidence Act
defines the terms 'Fact', 'Relevant' (relevant fact) and 'Facts in issue'
2. Fact

Section 3 defines the term ‘fact’ as follows:

“Fact”.–– “Fact” means and includes ––

(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.

Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently,
or uses a particular word in a particular sense, or is or was at a specified time conscious of
a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

The term “fact” means an ‘existing thing’. But according to the Act it also refers to a mental
condition of which the person is conscious. Thus the meaning of the word ‘fact’ is not limited to
only what is tangible or visible but it includes the feelings, opinions, statements etc., also.

The Act adopts Bentham’s classification of facts into ‘physical’ and ‘psychological’ facts. Those
which can be perceived by the five human senses (touch, sight, hearing, smell and taste) are
physical or external facts as illustrated by Clauses (a), (b), and (c) while those which exist only in
the mind are “psychological” or internal facts as found in Clauses (d) and (e), e.g., motive,
intention, knowledge, good faith or opinion. The fact sought to be proved is called principal fact
(factum probandum) and the fact which tends to establish is called evidentiary fact (factum
probands).

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A shooting B is a physical fact; but his intention in doing so is a psychological fact. The former
can be proved by direct as well as indirect evidence or circumstantial evidence i.e., by proof of
facts from which a reasonable inference as to the intention may be drawn. The latter cannot be
proved by direct evidence except by the confession of the person as it is not possible to peep into
the mind of another. However, the state of a man’s mind is as much a fact as the state of his
digestion. A man’s mental condition can be indicated by his conduct or his words. The former is
circumstantial, while the latter is direct evidence. Thus, the legal connotation of ‘fact’ differs from
the popular meaning in that the former also includes mental condition.

3. Facts in issue
In every case it is the duty of the Court to ascertain the area of controversy between the parties.
The Court should first sort out the issues. Facts which are in dispute are facts in issue. The existence
of facts in issue has to be proved before the Court. If the fact in issue is proved to the satisfaction
of the Court, then only Court can pronounce a judgment on the basis of those facts.
Section 3 defines the term ‘facts in issue’ in the following manner:

“Facts in issue”.–– The expression “facts in issue” means and includes –– any fact from which,
either by itself or in connection with other facts, the existence, non-existence, nature or extent of
any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation. ––Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer
to such issue is a fact in issue.
Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue: ––
That A caused B’s death;
That A intended to cause B’s death;
That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of
mind, incapable of knowing its nature.
‘Facts in issue’ are the set of facts from which some legal right, liability or disability which is the
subject matter of the inquiry, necessarily arises, and upon which a decision must be arrived at. The
“necessary constituents” of a right or liability are called ‘facts in issue’, if their existence is asserted
by one party and is denied by the other. Thus, a contest or a dispute may be called the soul of facts
in issue. In a civil case, facts in issue are determined by the process of framing issues. In a criminal
case the charge itself constitutes the facts in issue. For their identification facts in issue are
dependent on the substantive law that is applicable.
Facts in Issue and Issues of Fact

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In a civil case, the court is required to frame issues under Order XIV, Rule 1 of the Civil Procedure
Code, on all disputed facts which are necessary for a case. As a result of pleadings on both sides
when a material fact is affirmed on the one side and denied on the other side, the question which
is to be determined between the parties is called an issue of fact. Whenever, the court records an
issue of fact, the fact to be asserted or denied in response to such issue is a fact in issue.
The subject matter of an issue of fact framed under the Civil Procedure Code is always a fact in
issue. In other words, the ‘fact in issue’ under the Evidence Act becomes the issue of fact in the
language of Civil Procedure Code.

In short, the questions, which give rise to a right or liability are called Fact in Issue. The
fact in issue is also known by its Latin name 'Factum Probandum' which means to be proved.

4. Relevant Fact
The word ‘relevant' strictly means that what is admissible in evidence. It means what facts may be
proved before a Court. Under the Act the terms ‘relevant’ or ‘the facts that may be proved’ are
synonyms. A fact in order to be relevant fact must be connected with the fact in issue or with any
other relevant facts in any of the way referred to in Section 5 to 55 of the Act. A fact not so
connected is not a relevant fact. The scheme provided under Part 1 of the Act seems to make all
relevant facts admissible.
Section 3 defines the term ‘relevant’ as follows:

“Relevant”. –– One fact is said to be relevant to another when the one is connected with the other
in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
The word ‘relevant’ means that any two facts to which it is applied are so related to each other that,
according to the common course of events, one, either taken by itself or in connection with other
facts, proves or renders probable the past, present or future existence or non-existence of the other.

Relevancy implies relationship and such relationship with the facts in issue either convinces or
tend to convince the judge as to the existence or otherwise of the facts in issue. The facts that are
recognised to be relevant under the Act are contained in sections 5 to 55.
Thus, of all rules of evidence, the most universal and the most obvious is this that the evidence
adduced should be directed and confined to the matters which are in dispute or which form the
subject of investigation. Evidence may be rejected as irrelevant on the ground that the connection
between the principal and evidentiary facts is too remote and conjectural. Thus, relevant facts are
not themselves in issue but are foundations of inference regarding facts in issue.

5. Differences between Facts in issue and Relevant Facts

Following are the notable points of distinction between facts in issue and relevant facts:

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 No. Fact in Issue Relevant Fact

It is a necessary ingredient of a right It is not a necessary ingredient of a right or

1) or liability. liability.

2) It is called principal fact or ‘factum It is called evidentiary fact or ‘factum

probandum.’ probands.’

3) Fact in issue are affirmed by one Relevant facts are the foundation of inference.
party and denied by other party.

6. Conclusion
Facts and proof are very important aspect of the Law of evidence. It is these two things that
combine to form evidence, which the court may or may not accept as showing the merit or
otherwise of a party’s case. Thus the essence of a judicial investigation lies in the enforcement of
right or liability which depends on certain facts and the proficiency of a witness. Hence
understanding the concept of “facts” is very important for the study of the law of evidence.

Q. No. 2. What is evidence? Explain the different kinds of evidence.

1. Introduction
The word ‘evidence’, considered in relation to law, includes all the legal means, exclusive of mere
argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to
judicial investigation. In other words ‘evidence’ means the testimony, whether oral, documentary
or real, which may be legally received in order to prove or disprove some fact in dispute. Section
3 of the Indian Evidence Act defines the term ‘evidence’.

2. Definition of ‘Evidence’ – Section 3

defined in Section 3 of the Act as bellow:

“Evidence”. ––“Evidence” means and includes ––

(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court such
documents are called documentary evidence.
The expression ‘evidence’ is derived from the Latin word ‘Evidentia’, meaning ‘being clear’ or
‘plain’ or, ‘apparent clear’. It is a material on the basis of which something can be proved or
established. The term ‘evidence’ means anything by which any alleged matter of fact is either
proved or disproved. It is a material on the basis of which the Court can decide the case. Evidence

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thus must be produced before the Court, and the Court can establish or disprove the case provided
that the evidence produced is relevant.

According to Taylor, the word ‘evidence’, considered in relation to law, includes all the legal
means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth
of which is submitted to judicial investigation. In other words ‘evidence’ means the testimony,
whether oral, documentary or real, which may be legally received in order to prove or disprove
some fact in dispute.
According to Phispon, evidence means the testimony, whether oral, documentary, or a real, which
may be legally received, in order to prove or disprove some fact in dispute.
The definition of evidence provided under section 3 of the Evidence Act, 1872 is an exhaustive
definition. Wherever the words "means and includes" are used, it is an indication of the fact that
the definition "is a hard-and-fast definition", and no other meaning can be assigned to the
expression other than that is laid down in the definition. It indicates an exhaustive explanation of
the meaning which, for the purposes of the Act, must invariably be attached to these words or
expression.
The word "evidence" does not cover everything that a court has before it. There are certain other
media of proof; e.g., the statements of the parties, the result of local investigation, facts of which
the court takes judicial notice, and any real or personal property, the inspection of which may be
material in determining the question at issue, such as weapons, tools or stolen property.
The definition of ‘evidence’ must be read together with that of ‘proved’. The combined result of
these two definitions is that, ‘evidence’ as defined by the Act is not the only medium of proof and
that in addition to it there are a number of other ‘matters’ which the Court has to take into
consideration when forming its conclusions. Thus the definition of ‘evidence’ in the Act is
incomplete and narrow.
3. Kinds of Evidence

i) Oral and Documentary Evidence

As per section 3 of the Act;

Oral evidence means all statements which the Court permits or requires to be made before it by
witnesses, in relation to matter of fact under inquiry, and
Documentary evidence means all documents including electronic records produced for the
inspection of the Court
Oral evidence is verbal testimony of the witness whereas the documentary evidence is written
testimony of a witness of the document. Oral evidence is adduced, documentary evidence proved
before it is admitted as evidence.

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 ii) Primary and Secondary Evidence
Primary evidence means the document itself produced for the inspection of the Court. (S. 62).

Example

A sold his house to B for Rs. 50,000/- and executes registered sale deed. In a dispute as to the title,
if B produces before the court, the sale deed, it is primary evidence.

Primary evidence is considered as the best evidence since it provides proof with certainty. That is
why law insists/requires first the primary evidence. The document may be in counter parts, and
then each counterpart is regarded as primary evidence. If the document is made by uniform process
like printing or lithography, each one constitutes the primary evidence.

Secondary evidence also called inferior or substituted evidence, it means an evidence that has
been reproduced from an original document or substituted for an original item. For example, a
photocopy of a document would be considered secondary evidence (Sec. 63). According to Section
63 copies made and compared with the originals, or Photostat copies may be treated as secondary
evidence.
Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever
possible. This approach is called the ‘Best Evidence Rule’. Nevertheless, a court may allow a
party to introduce secondary evidence in a number of situations.

Secondary evidence may be given in the absence of the (better) primary evidence if
proper explanation is given for such absence. Section 65 of the Evidence Act provides for
circumstances in which secondary evidence is admissible.

Following are the circumstances in which secondary evidence is admissible (Section 65).
a. The person in possession of the original is not within the reach of the Court.
b. If the original is in possession of the opposite party.
c. If the original is lost.
d. When original deed had already been admitted in the Court.
e. If Original is public document.
f. When the original is not easily movable; and
g. When the original consists of many accounts.

iii) Direct and Indirect or Circumstantial Evidence.

English text-writers divide evidence into (a) direct or positive evidence and (b) indirect or
circumstantial evidence.

Direct evidence or Positive evidence is that which goes expressly to the very point in question
and proves it, if believed, without aid from inference or deductive reasoning. In other words direct

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evidence is the testimony of a witness to the existence or non existence of a fact or fact in issue. It
is evidence of fact actually perceived by a witness with one of his own senses.

Example
A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye witness.

A sues B for breach of contract C deposes that he was present at the time of agreement entered
into between A and B witnessed. In this Example C is the direct witness/ Eye witness.

Indirect or Circumstantial evidence does not prove the point in question directly, but establishes
it only by inference. In cases, where direct evidence is not available, then circumstantial evidence
can be resorted to.
Example

If there is no eye-witness to a murder the fact that A had the motive to murder B or that A was
seen running away with a blood-stained knife from B’s room where B was found dead immediately
after B’s cries were heard would be circumstantial evidence as against A.
Circumstantial evidences is that which tends to establish fact in issue by proving another fact which
though does not itself conclusively establish that fact, affords and inference as to its existence.
In Kalua Vs. State Of U.P. (AIR 1958 SC 180)

In this case Kalua was charged with the murder of the deceased by shooting him with a pistol. The
Circumstantial evidence proved was:

A) Few days before the killing of the deceased the accused had held out a threat against him.
B) A cartridge was found near the cot of the deceased.
C) A pistol was recovered from his house.
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the dead body was
fired from pistol produced by accused.

It was held that there could be no room for thinking in the circumstances established in this case,
that anyone else than the accused might have shot the deceased. He was convicted.

iv) Real and Personal Evidence

Real Evidence (also known as Physical / Material Evidence): When the evidence is brought to
the knowledge of the court by inspection of a physical or material object and is not derived from
witness or document, then it is called Real Evidence.

E.g., murder weapon, blood samples and fingerprints found, etc.

Personal Evidence (also known as Testimonial Evidence): When the evidence is brought to the
knowledge of the court by human agents, either in way of disclosure or by voluntary sign, and is
the oral testimony of the witness, then it is called Personal Evidence.

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E.g., Behaviour of the parties involved, the conduct of the witness, through Local inspection by
the court, etc.

Illustration
A deposes that he saw B pursue C with threats. C is found killed and B's bloody knife is found
nearby. A's testimony is personal evidence; the knife is real evidence. 'Real' technically signifies
merely thing"

v) Original and Hearsay Evidence

Original evidence is that which a witness reports himself to have seen or heard through the
medium of his own senses for e.g. A says that he saw B murdered C with sword.
Hearsay evidence is also known as second hand or unoriginal evidence, a witness is merely
reporting not what he himself saw or heard but what he has learnt in respect of the fact through the
medium of the third person. It is a statement made by a witness of what he has been said and
declared out of court by a person and not before the court. Hearsay evidence is no evidence and is
not admissible.

Illustration -
'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard ’D’ saying that
'D' saw 'A' with B's Cycle. Such evidence given by 'C' is not admissible on the ground that
testimony of C is hearsay evidence.

Hearsay Evidence means whatever a person is heard to say it includes:

1) A statement made by a person, not called as witness;
2) A statement contained or recorded in any book, document or record which is not admissible.

The hearsay witness may not be able to say correctly and completely the truth of his statement.
General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain
exceptions to this rule (e.g., sec. 32, 33).
vi) Judicial and Non-Judicial Evidence

Judicial Evidence is evidence received by courts of justice in proof or disproof of facts, the
existence of which comes in question before them. Judicial Evidence is a species of the genus
evidence and is for the most part nothing more than natural evidence, modified by rule of positive
law.

Non-judicial evidence is an evidence given in the proceeding before the Magistrate or officer not
in a Judicial capacity but in an administrative one, e.g. evidence in proceedings u/s. 164 of Cr. P.C.
i.e. recording of confession and statements. However confessions made to Police Officer are
inadmissible.

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 vii) Character Evidence
The term character under Section 55 of Indian Evidence Act includes both reputation and
disposition, where the former means the opinion of the people, in general and the latter means the
habitual behaviour of a particular person.

As per Section 52 of the act, in civil cases, a fact pertaining to the character of an individual is not
relevant. Whereas as per Section 53 of the act, in criminal cases a fact pertaining to the previous
good character of an individual is relevant but as per Section 54 of the act, in criminal cases a fact
pertaining to the previous bad character of an individual is not relevant.

4. Conclusion
In broader sense it can be said that evidence forms the building blocks of the investigative process
and for the final product to be built properly, evidence must be recognized, collected, documented,
protected, validated, analysed, disclosed, and presented in a form which is acceptable to the Court.
The word evidence in connection with Law, all valid meanings, includes all except agreement
which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation.
Even though as per the Indian Evidence Act 1872, the definition of evidence includes only two
types of Evidence- Oral and Documentary, but there are various ways through which evidence can
be grouped together as discussed above.

Q. No. 3. Explain the doctrine of ‘Res gestae’ with the help of decided cases.
Introduction

Res gestae is a concept which as a matter of principle is employed in the English system of
administration of criminal justice. The term res gestae is a Latin word which means "things done."
This is the rule of law of evidence and is an exception to hearsay rule of evidence that hearsay
evidence is not admissible. It is a spontaneous declaration made by a person immediately after an
event and before the mind has an opportunity to conjure a false story.

The expression 'res gestae' means and includes everything that may be fairly considered and
incident of the event under discussion. It is an expression mainly of utility in the criminal law
which consists of the 'circumstances, facts and declarations' which grow out of the main fact, are
contemporaneous with it, and serve to illustrate its character.

Res gestae under Indian Law [Relevancy of facts forming part of same transaction]:
The doctrine of res gestae has been borrowed from English law and is incorporated under Section
6 of the Indian Evidence Act, 1872.
S. 6 – Relevancy of facts forming part of same transactions. – Facts which, though not in issue,
are so connected with a fact in issue as to form part of the same transaction, are relevant, whether
they occurred at the same time and place or at different times and places.

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 Illustrations
a) 'A' is accused of the murder of 'B' by beating him. Whatever was said or done by 'A' or 'B' or
the bystanders at the beating or so shortly before or after it as to form part of the transaction is a
relevant fact.

b) 'A' is accused of waging war against the Government of India by taking part in an armed
insurrection in which property is destroyed, troops are attacked and gaols are broken open.

The occurrence of these facts is relevant, as forming part of the general transaction, though ‘A'
may not have been present at all of them.

c) 'A' sues 'B' for a libel contained in a letter forming part of a correspondence. Letters between
the parties relating to the subject out of which the libel arose, and forming part of the
correspondence in which it is contained are relevant facts, though they do not contain the libel
itself.

d) The question is, whether certain goods ordered from 'B' were delivered to 'A'. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.

Res gestae includes facts which form part of the same transaction. So, it is pertinent to examine
what is a ‘transaction’, when does it start and when does it end. If any fact fails to link itself with
the main transaction, it fails to be a res gestae and hence inadmissible. ‘Same transaction’ means
a transaction in a group of facts, connected together to be referred to by a single legal name as a
crime, a contract, a wrong or any other subject to enquiry which may be in issue. Roughly a
transaction may be described as any physical act, or series of connected physical acts, together
with the words accompanying such act or acts.

Following conditions have to be fulfilled in order to make statements admissible under

Section 6 of the Indian Evidence Act;

a) The statement must explain, elucidate or characterize the incident in some manner.
b) The statement must be spontaneous or contemporaneous, but not mere narrative of a
completed past event.
c) The statement must be a statement of fact but not a statement of opinion.
d) The statement must have been made either by a participant in the transaction or by a person
who has himself witnessed the transaction.
e) The statement made by the bystander would be relevant only if it is shown that he was
present at the time of the happening of the event and witnessed the same.

Cases
In R v. Fawkes 1856, F was charged with the murder of 'X‘ by shooting him through a window.
'A' and ‘B' were sitting in the room with 'X', when a face appeared at the window and the fatal shot

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was fired. Both 'A‘ and 'B' were allowed to depose that immediately before the shot was fired, 'A’
shouted "There's ' F". This has been admitted under ‘res gestae’.

In R v. Christie 1914, there was an indecent assault upon a young boy. Soon after the incident the
boy made certain statements to his mother narrating the offence and the man was assaulted him.
Lord Atkinson has held that the evidence of the statement was inadmissible because the statement
made by the boy was so separated by time and circumstances from the actual commission of the
crime.
In Ratten v. Queen 1972, the victim (wife) had called the police for help but before operator could
connect her to the police, her call was disconnected. Later the police found her dead body from
her house from where the call was made and the time of death and the time of phone call was
almost the same. The call made to the police came under the purview of section 6 and thereby
defeated the accused husband’s defence that he accidentally fired his wife.

Conclusion
Usually, evidence is brought to res gestae if it can not be brought to any other section of the Indian
evidence act. The intention of lawmakers was to avoid injustice where cases are dismissed due to
lack of evidence. If any statement under Section 6 is not admissible, it may be admissible in
accordance with Section 157 as corroborative evidence.

Court has always believed that this doctrine should never be unlimitedly extended. For this reason,
the “continuity of transaction” test was always considered by Indian courts. Any statement made
following a long gap that was not a response to the event is not admissible under Section 6 of the
Evidence Act. But courts allowed some statement that was spoken after a long gap from the
occurrence of the transaction because there was enough evidence that the victim was still under
the stress of excitement and so everything that was said was a reaction to the occurrence.

Every criminal case under section 6 must be decided on its own merit should be judged. The
evidence is admissible under Section 6 if it is proven to be part of the same transaction, but whether
it is reliable or not depends on the discretion of the judge.

Q. No. 4. Define Admissions. Distinguish it from confessions.

ADMISSIONS [Sections 17-23 and 31]

In Evidence Act, the concept ‘admission’ has been defined in Section 17, Sections 18-20 specify
the person whose admissions are made relevant, Section 21 provides the exceptions in which
admissions can be proved by or on behalf of the person making it. Section 22 renders oral
admission as to contents of a document irrelevant. Section 23 states that no evidence of admission
can be permitted in civil suits if it is made upon an understanding that it shall not be given in
evidence. Section 31 states that admissions are not conclusive proof unless they operate as estoppel.

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Definition of Admission

S. 17. Admission defined. – An admission is a statement, oral or documentary, or contained in

electronic form which suggests any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances, hereinafter mentioned.

An ‘admission’ is a statement of fact which waives or dispenses with the production of evidence
by conceding that the fact asserted by the opponent is true. Admissions are admitted because the
conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or
writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue.
Admissions are very weak kind of evidence and the Court may reject them if it is satisfied from
other circumstances that they are untrue.

The Supreme Court has observed : Admissions as defined in sections 17 and 20 and fulfilling the
requirements of s. 21 are substantive evidence. An admission is the best evidence against the party
making it and, though not conclusive, shifts the onus to the maker on the principle that what a
party himself admits to be true may be reasonably presumed to be true so that until the presumption
is rebutted the fact admitted must be taken to be true.
A Statement to be used as an admission must be clear, specific and unambiguous and in the own
words of the person making it and has to be proved to be so. A person accused of murder had
sustained injuries. He explained to the doctor the cause of his injuries. This explanation was held
to be an admission. Its admissibility was not hit by any of the provisions of the Act relating to
admissibility of confessions (Ammini v. State of Kerala, 1998 SC).
Persons whose admissions are relevant

The effects of sections 18, 19 and 20, when put together, is that the admissions of following parties
become relevant :

1.Parties to the suit

2.Agents of parties

3.Persons occupying representative character

4.Statements of Third Parties – This category will include the statements of the following parties :

(a) Persons having pecuniary or proprietary interest

(b) Persons from whom the parties derived their interest
(c) Persons whose position is in issue or is relevant
(d) Persons expressly referred to.

CONFESSIONS [Sections 24-30]

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The term "confession" is nowhere defined in the Evidence Act. All the provisions relating to
confessions occur under the heading of "admission". The definition of ‘admission’ as given in
section 17 becomes applicable to confession also. As per Section 17, if a statement is made by a
party to a civil proceeding it will be called an “admission” and if it is made by a party charged
with a crime it will be called a “confession”. Thus, in terms of the Act, a confession is a statement
made by a person charged with a crime suggesting an inference as to any facts in issue or as to
relevant facts. The inference that the statement should suggest should be that he is guilty of the
crime.

The definition of "confession" appearing in Stephen’s Digest of the Law of Evidence is more or
less to the same effect : A confession is an admission made at any time by a person charged with
a crime stating or suggesting the inference that he committed that crime.
Points of difference between confessions and admissions

1) In the first place, since the provisions relating to confessions occur under the
heading "admission," it follows that the word "admission" is more comprehensive
and includes a confession also. A confession is only a species of admission. Thus
every confession is an admission also but term "confession" does not include all
kinds of admission. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not of itself a confession. Thus all admissions are
not confessions but all confessions are admissions.
2) An admission is a general term which suggests an inference as to any fact in issue
or any relevant fact while a confession is a statement made by an accused person
admitting that he has committed an offence or all the facts which constitute the
offence.
3) Admissions though generally are used in civil proceedings yet they may also be
used in criminal proceedings, whereas confessions are used only in criminal
proceedings to establish the commission of an offence by him.
4) The term ‘admission’ refers to every statement whether it runs in favour of or
against the party making it, but, a confession is the admission of the guilt in
reference to a crime and therefore necessarily runs against the interests of the
accused.
5) An admission may be used on behalf of the person making it whereas a confession
always goes against the party making it except under Section 30.
6) An admission need not be voluntary to be relevant, though it may affect its weight;
but a confession to be relevant, must be voluntary.
7) The admissions made by an agent or even a stranger are relevant, : but a confession
to be relevant must be made by the accused himself.
8) An admission by one of several defendants in a suit is no evidence against another
defendant whereas the confessions of one of two or more accused jointly tried for

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 the same offence can be taken into consideration against the co-accused [Section
30].
9) Admission is not a conclusive proof of the matters admitted though it may operate
as on estoppel. However, a confession is deliberately and voluntarily made be
accepted as evidence in itself of the matters confessed though as a rule of prudence
the Courts may require corroborative evidence.
10) An admission made to any person whether he be a policeman or a person in
authority or whether it was the result of an inducement, or promise is relevant, but,
in case of confession, it is not relevant unless such confession is free and voluntary.
11) An admission made under a promise of secrecy is not relevant, but by virtue of s.
29 a confession is provable even if it was obtained under a promise of secrecy.

Q. No. 5. Who is an Expert ? State the circumstances in which expert opinion

becomes relevant.
Section 45 to 51 of the Evidence Act lay down the general principles and procedures about ‘opinion
of third persons when relevant’.
Who is an 'Expert' ?

An 'expert' is a person specially skilled or practiced on any subject. In a general sense, an expert
is a person of peculiar knowledge or skill; one who has peculiar knowledge or skill as to some
particular subject, such as any art or science, or particular trade, or profession, or any special
branch of learning; and is professionally or peculiarly acquainted with its practices and usages: a
person who has technical and peculiar knowledge in relation to matters with which the mass of
mankind are supposed not to be acquainted; he who has some special, particular or practical
knowledge in relation to some special department of the affairs of men as would qualify him to
stand as an expert, skilled enough to teach others.

An 'expert' is a person who made special study of the subject or acquired special experience therein.
Thus no formal qualifications are necessary to qualify a witness as an expert. There must be
something to show that the expert is skilled and has an adequate knowledge of the subject.

Eg. A doctor, a goldsmith, a chemical examiner, a photographer etc.

The Expert's Opinion (Sec.45)

Section 45 of the Evidence Act states, Opinions of experts.- When the court has to form an opinion
upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such a foreign law; science
or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such
persons are called experts.
Illustrations

15
(a) The question is, whether the death of A was caused by poison.
The opinion of experts as to the symptoms produced by the poison by which A is supposed to have
died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness
of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong
or contrary to law.

The opinion of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable
of knowing the nature of the acts which they do, or of knowing that what they do is either wrong
or contrary to law, are relevant.

(C) The question is, whether a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A.

The Opinions of experts on the question whether the two documents were written by the same
person or by different persons, are relevant.

Matters in which Expert Opinion is Admissible

Before expert testimony can be admitted two things must be proved namely:

(i) the subject is such that expert testimony is necessary; and

(ii) that the witness in question is really an expert and that he is a truthful witness.

Whenever the court has to form an opinion upon a point of:

(i) Foreign Law;
(ii) Science;
(iii) Art;
(iv) Identity of hand-writing;
(v) Finger-Prints.
S. 45A. Opinion of Examiner of Electronic Evidence.— When in a proceeding, the court has to
form an opinion on any matter relating to any information transmitted or stored in any computer
resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence
referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
Explanation.—For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.
S. 46. Facts bearing upon opinions of experts. –– Facts, not otherwise relevant, are relevant if
they support or are inconsistent with the opinions of experts, when such opinions are relevant.
Illustrations

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(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which
experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall.

The fact that other harbours similarly situated in other respects, but where there were no such sea-
walls, began to be obstructed at about the same time, is relevant.

S. 47. Opinion as to hand-writing, when relevant. –– When the Court has to form an opinion as
to the person by whom any document was written or signed, the opinion of any person acquainted
with the handwriting of the person by whom it is supposed to be written or signed that it was or
was not written or signed by that person, is a relevant fact.

Explanation. ––A person is said to be acquainted with the handwriting of another person when he
has seen that person write, or when he has received documents purporting to be written by that
person in answer to documents written by himself or under his authority and addressed to that
person, or when, in the ordinary course of business, documents purporting to be written by that
person have been habitually submitted to him.
Illustration

The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a
merchant in Calcutta, who has written letters addressed to A and received letters purporting to be
written by him. C, is B’s clerk whose duty to was to examine and file B’s correspondence. D is
B’s broker, to whom B habitually submitted the letters purporting to be written by A for the
purpose of advising with him thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant,
though neither B, C nor D ever saw A write.

S. 47A. Opinion as to digital signature, when relevant. –– When the Court has to form an
opinion as to the electronic signature of any person, the opinion of the Certifying Authority which
has issued the electronic Signature Certificate] is a relevant fact.

Q. No. 6. Explain the different kinds of privileged communications.

There are certain matters which a witness cannot either be compelled to disclose or even if the
witness is willing to disclose, he will not be permitted to do so. Such matters are known as
privileged communications. For example, a wife cannot be permitted to disclose what her husband
told her about the matter under inquiry.
Privileged communications are of two kinds, namely, those which are privileged from disclosure
and those which are prohibited from being disclosed.
Communications not permitted to be disclosed

17
There are certain communications for which it is the policy of law that they should not be disclosed.
The law, therefore, does not permit them to be disclosed even if the party possessing that
information wishes to disclose it. This protection from disclosure is to be found in the following
provisions of the Act.

1. Communications between Husband and Wife (Section 122)

Section 122 prevents communication between a man and his wife from being disclosed.

S. 122. Communications during marriage.—No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclose any such communication, unless
the person who made it, or his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any crime committed
against the other.

2. Evidence as to affairs of State (Section 123)

Section 123 protects unpublished State records from being disclosed. The document must be
related to the affairs of state and its disclosure must be against affairs of state or against public
interest.

S. 123. Evidence as to affairs of State. – No one shall be permitted to give any evidence derived
from unpublished official records relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give or withhold such permission as he
thinks fit.
3. Official Communications (Section 124)

Section 124 gives a privilege to public officers to refuse to disclose matters which are brought to
their knowledge in official confidence.

S. 124. Official communications. – No public officer shall be compelled to disclose

communications, made to him in official confidence, when he considers that the public interest
would suffer by the disclosure.
4. Sources of information as to offences (Section 125)

S. 125. Information as to commission of offences.—No Magistrate or Police officer shall be

compelled to say whence he got any information as to the commission of any offence, and no
Revenue officer shall be compelled to say whence he got any information as to the commission of
any offence against the public revenue.

Explanation.—"Revenue officer" in this section means an officer employed in or about the

business of any branch of the public revenue.

18
The section is intended to encourage people to give information about offences by protecting the
source of information, for otherwise, no one would like to give such information. The section also
enables police officers, etc. to maintain secrecy about the sources of their information.
5. Professional Communications (Section 126)

S. 126. Professional communications.—No barrister, attorney, pleader or vakil shall at any time
be permitted, unless with his client’s express consent, to disclose any communication made to him
in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil,
by or on behalf of his client, or to state the contents or condition of any document with which he
has become acquainted in the course and for the purpose of his professional employment, or to
disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such barrister,
pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation.—The obligation stated in this section continues after the employment has ceased.
Illustrations

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is
protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a
forged deed on which I request you to sue”. This communication, being made in furtherance of a
criminal purpose, is not protected from disclosure.
A legal adviser when he is entrusted by his client is totally prohibited by this section to make any
communication or information published so that his opponent or any other litigant cannot take any
advantage so long the proceeding is pending before the court of law or even before filing it.

S. 127. Section 126 to apply to interpreters etc. – The provisions of section 126 shall apply
to interpreters and the clerks or servants of barristers, pleaders, attorneys and vakils.

Q. No. 7. What is
i) Examination in chief
ii) Cross examination and
iii) Re-examination of witnesses?

19
When a party can cross examine his own witness?
Section 137 in the Indian Evidence Act, 1872

S. 137. Examination-in-chief.—The examination of a witness by the party who calls him shall be
called his examination-in-chief.
Cross-examination.—The examination of a witness by the adverse party shall be called his cross-
examination.
Re-examination.—The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.
The testimony of a witness is recorded in the form of answers to questions put to him. Witnesses
are not permitted to deliver a speech to the Court, but are supposed only to answer questions. This
way, the testimony of the witnesses, can be confined to the facts relevant to the issue. Such
questioning of the witness is called his examination. But the evidence of the witness is not confined
to mere examination, cross-examination or re-examination. Section clearly provides that evidence
means and includes all statements which the court permits or requires to be made before it in
relation to the matter of fact under enquiry.

Every witness is first examined by the party who has called him and this is known as examination-
in-chief. The witness is then questioned by the opposite party and this is known as cross-
examination. If the party who has called a witness seeks to question him again after the cross-
examination that is known as re-examination.

The order of examination is laid down in section 138. According to the first para every witness
shall first be examined by the party who has called him, then by the opposite party and then, if the
party calling him so desires, be re-examined.
138. Order of examinations. –– Witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination
need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination. –– The re-examination shall be directed to the explanation of

matters referred to in cross-examination; and, if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross-examine upon that matter.
When a party can cross examine his own witness ?

S. 154. Questions by party to his own witness. – (1) The Court may, in its discretion, permit the
person who calls a witness to put any questions to him which might be put in cross-examination
by the adverse party.

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(2) Nothing in this section shall disentitle the person so permitted under sub-section (1) to rely on
any part of the evidence of such witness.

Hostile Witness : Cross-examination with Court permission

Where a witness makes statements against the interest of the party who has called him, he is known
as a hostile witness. This makes it necessary that he should be cross-examined by the very party
who has called him so as to demolish his stand. This can only be done with the permission of the
Court. Section 154 declares that the court may in its discretion permit the party who has called a
witness to put him such questions as could have been asked in cross-examination.

Q. No. 8. Explain the circumstances in which facts not otherwise relevant

become relevant.
Introduction
Alibi is a Latin word, which means elsewhere. It is used when the accused takes the plea that when
the occurrence took place he was elsewhere. In such a situation the prosecution has to discharge
the burden satisfactorily. Once the prosecution is successful in discharging the burden it is
incumbent on the accused who takes the place of alibi to prove it with absolute certainly. An alibi
is not an exception envisaged in the IPC or any other law. It is a rule of evidence recognized by
Section 11 of the Evidence Act that facts inconsistent with fact in issue are relevant. However it
cannot be the sole link or sole circumstance to bare conviction. When one fact is necessary to the
hypothesis of the guilt of the accused, but strikingly absent in the chain of circumstantial evidence,
the prosecution case certainly will fail. Because, an alibi the relevancy of which is totally
inconsistence with hypothesis that the accused had committed an offence.
Section 11 in the Indian Evidence Act, 1872
S. 11. When facts not otherwise relevant become relevant.—Facts not otherwise relevant are
relevant—
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on
that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed,
A was at a distance from the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must
have been committed either by A, B, C or D, every fact which shows that the crime could have
been committed by no one else and that it was not committed by either B, C or D, is relevant.

21
Section 11 deals with facts which ordinarily have nothing to do with the facts of a case and are not
in themselves relevant, but they become relevant only by virtue of the fact that they are either
inconsistent with any fact in issue or relevant fact or they make the existence of a fact in issue or
a relevant fact either highly probable or improbable.
PLEA OF ALIBI
Evidence can be given of facts which have no other connection with the main facts of a case except
this that they are inconsistent with a fact in issue or a relevant fact. Their inconsistency with the
main facts of the case is sufficient to warrant their relevancy. This section enables a person charged
with a crime to take what is commonly called the plea of alibi which means his presence elsewhere
at the time of the crime. His presence elsewhere is inconsistent with the fact that he should be
present at the place of the crime. Where, for example, a person is charged with murder which took
place at Calcutta, he can take the defence that on the day in question he was in Bombay. In order
to prove his presence in Bombay he may show his attendance at some place, for example, the fact
that he visited a doctor or a vakil and he noted his visit in a professional diary or that he posted a
letter written by himself on that day from Bombay, or that he encashed a cheque at Bombay. It is
well-settled that the burden of substantiating the plea of alibi and making it reasonably probable
lies on the person who sets it up.

Essential Ingredients of the Alibi

Some of the ones to be followed, in general, are:

1. It needs to be a felony punishable by statute.
2. The one who argues the alibi must be convicted of the crime.
3. This is a defensive plea in which the defendant claims that the crime was committed
elsewhere.
4. This claim must be proven beyond reasonable doubt that at the time of the act of the crime,
and accused must to be physically present at the place of offence/crime.
5. The petition must file by the offender and proof that supports on the behalf of the
defendant's argument.
Facts showing Probabilities
Evidence can be given of every fact which by itself or in connection with other facts makes the
existence or non-existence of any fact in issue or relevant fact highly probable or improbable. In
many cases, particularly in reference to some of the facts which are not directly provable, the court
has to go by the probabilities of the situation. If, for example, there are five persons in a room and
one of them is murdered in circumstances which show that it is the handiwork of any one or more
of them. Evidence will be allowed of every fact which makes it probable which one of them caused
the death or which one of them was probably not connected with it. [Illustration (b)]. Where a
person is charged with cheating, evidence can be given of the fact that he belonged to an
organisation of habitual cheats as this would make it probable that he committed the crime.

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Q. No. 9. Discuss the relevancy of character evidence.
Relevancy of Character Evidence [Sections 52-55]
Meaning of character, reputation and disposition
Character is a combination of the peculiar qualities impressed by nature or by habit of the person,
which distinguish him from others. Character means the collective qualities or characteristics
especially mental and moral, that distinguish a person or thing. Character is the estimation of a
person by his community.
Explanation to Section 55 of the Evidence Act states that "In Sections 52, 53, 54 and 55 the word
‘character’ includes both reputation and disposition." Character lies in the man; it is the mark of
what he is.
Reputation is the credit, honour or character which is derived from a favourable public opinion
or esteem, and character by report. Reputation is the common or general estimate of a person with
respect to character or other qualities.
Reputation means what is thought of a person by others and is constituted by public opinion. It is
the general credit which a man has obtained in that opinion.
Reputation and character are not synonymous terms. Character is what a man or a woman is
morally while reputation is what he or she is reputed to be i.e. reputation is the estimate which the
community has of the person's character.
Disposition is a natural tendency, an inclination; a person's temperament. It is the prevailing spirit
of mind, resulting from constitution. It is the aptitude or tendency of character. Character certificate
given by the employer or character certificate given by the Heads of the Educational Institutions
are the good examples of ‘Disposition’.
As character includes both reputation as well as disposition, character means the general credit of
the person in the estimation of others plus the nature and inherent qualities of a person. But
disposition of a person can be known only to those persons who are closer to him. A person may
have very high reputation but his disposition may be very bad.
Relevancy of Character Evidence in Civil Cases
S. 52. In civil cases character to prove conduct imputed, irrelevant. – In civil cases the fact that
the character of any person concerned is such as to render probable or improbable any conduct
imputed to him, is irrelevant, except in so far as such character appears from facts otherwise
relevant.
Section 52 lays down the broad general principle that the evidence of a party's character cannot be
given for the purpose of showing that it renders the conduct imputed to him as probable or
improbable.
Thus the general principle is that a party cannot give evidence of his good character for the purpose
of showing that it is improbable that he should be guilty of the conduct imputed to him. For

23
example, if a person is charged with negligent driving he cannot give evidence of the fact that his
character and conduct has been such that he could not have been guilty of negligence. Similarly,
his opposite party cannot give evidence of the fact that his character and conduct had been so bad
that he must have been negligent.
Exceptions
1. Character as affecting damages
The Court is entitled to take note of the character of the plaintiff if it affects the amount of
compensation which should be awarded to him. Section 55 lays down this principle.
S. 55. Character as affecting damages.—In civil cases, the fact that the character of any person is
such as to affect the amount of damages which he ought to receive, is relevant. Explanation.—In
sections 52, 53, 54 and 55, the word “character” includes both reputation and disposition; but
except as provided in section 54 evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition were shown.
This exception has been often used in actions for damages for defamation, or for kidnapping, or
for rape, or for breach of promise of marriage.
2. When character is in issue
Evidence can be given of a party’s character when his character is itself a fact in issue. Where, for
example, an action is brought for divorce on the ground of cruelty, the cruel character of the
defendant, being a fact in issue, the plaintiff can lead evidence of it. Although there is no direct
provision on the point relating to civil cases, this should follow from section 5 itself which provides
that evidence can be given of the facts in issue.
3. When character appears from other relevant evidence
A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally
exposes or throws light upon a party's character. This appears from the concluding words of S. 52
itself which says that "except in so far as such character appears from facts otherwise relevant."
Thus if facts otherwise relevant show a party's character also the court can take note of it imputed
to the party. Where, for example, a journalist is described as an exploiter and he sues for damages
for defamation and if the defendant takes the defence that whatever he has said is true, he will have
to lead evidence to prove the exploitation which the plaintiff has been practising. Such evidence
will also bring to light the real character of the plaintiff and the court can take note of this.
Relevancy of Character Evidence in Criminal Cases
S. 53. In criminal cases previous good character relevant. –-In criminal proceedings the fact that
the person accused is of a good character is relevant.
Section 53 makes a categorical declaration that "in criminal cases, the fact that the person accused
is of a good character is relevant." Thus every accused person is at liberty to give evidence of the
fact that he is a man of good character.
Exceptions
1. To rebut prior evidence of good character

24
While the prosecution has no right to introduce the evidence of the bad character of the accused,
if the accused himself has made an issue about his character by giving evidence that he is a man
of good character, the prosecution can rebut or contradict such evidence by adducing evidence of
his bad character. Section 54 recognises this exception.
S.54. Previous bad character not relevant, except in reply. – In criminal proceedings the fact that
the accused person has a bad character, is irrelevant, unless evidence has been given that he has a
good character, in which case it becomes relevant.
Explanation 1.-This section does not apply to cases in which the bad character of any
person is itself a fact in issue.
Explanation 2.-A previous conviction is relevant as evidence of bad character.
Evidence of bad character becomes relevant when the accused has adduced evidence to show his
good character, otherwise the general principle is that evidence of bad character of the accused is
not relevant.
2. Where character is in issue
The ban imposed by section 54 upon the relevancy of the bad character of the accused is not
applicable where his character is itself a fact in issue. In a prosecution, for example, for rape or
indecent assault, the bad character of the prosecutrix may be a fact in issue for it may afford a
defence to the accused and, therefore, the accused can adduce evidence of her bad character.
3. When otherwise relevant
Evidence can always be given of facts which are relevant under any of the provisions relating to
relevancy given in sections 6 to 55 even if such facts incidentally involve or reveal the character
of the accused or of the prosecutor. Where, for example, the guilty intention or knowledge of the
accused is in question, evidence can be given under Section 14 of the previous commission of, and
conviction for similar offences for the purpose of showing his intention or knowledge.
4. Previous Convictions
The second explanation to section 54 clearly provides that “a previous conviction is relevant as
evidence of bad character", however a previous conviction is not admissible in evidence against
the accused, except where he is liable to enhanced punishment under Section 75 of the Indian Penal
Code, on account of previous conviction, or unless evidence of good character be given, in which
case the fact that the accused had been previously convicted of an offence is admissible as evidence
of bad character.

Q. No. 10. Define Estoppel. State the different kinds of estoppel.

Part-III, Chapter-VIII containing Sections 115 to 117 of the Indian Evidence Act, 1872 lay down
the provisions relating to the ‘Doctrine of Estoppel’. Section 115 embodies the principle of
estoppel. Section 116 deals with Estoppel of tenant and of licensee of persons in possession and
Section 117 deals with Estoppel of acceptor of Bill of Exchange, bailee or licensee.
The word ‘estoppel’ came from French word ‘estoupe’ which means in English as ‘stopped’ in
law. The term was adopted by the English Jurisprudence for the purpose of shutting the mouth of
a person who alleged or pleaded or spoken or acted upon truth in one previous occasion and tries

25
to avoid or evade his own allegation or pleading or speech or action with a maid fide (i.e. ill
intention).
Estoppel is a preclusion in law which prevents a man alleging or denying a fact in consequence of
his own previous act, allegation, or denial of a contrary tenor.
Estoppel is an admission or determination under circumstances of such solemnity that the law will
to allow the fact so admitted to be questioned by the parties or their privies.
Estoppel is the conclusive ascertainment of a fact by the parties, so it no longer can be controverted
between them.
In the broad sense of the term ‘estoppel is a bar which precludes a person from denying the truth
of a fact which has in contemplation of law became settled by the acts and proceedings of judicial
or legislative officers, or by the act of the party himself, either by conventional writing or by
representations, express or implied, in pais.
Section 115 in The Indian Evidence Act, 1872
115 Estoppel. —When one person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing.
Illustration:
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces
B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside
the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove
his want of title.
Kinds of Estoppel
1. Estoppel by Record:
It refers to judgements or public records, which are believed to be true. A person who acts in
pursuance of judgement or records cannot be estopped.
2. Estoppel by Deed:
It means estoppel by an agreement. When a person enters into an agreement, and his. statement is
furnished therein, he shall not be permitted to deny his statement.
3. Estoppel by conduct (Estoppel in Pais):
When a person, by acts or words or deeds induces another person to believe the existence of a
thing and make him to act upon it, he ( the person who induced another) is estopped from denying
the existence of such facts.

SHORT NOTES

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 1. Dying Declaration
What is Dying Declaration?
A dying declaration is a declaration or statement written or verbal made by a person as to the cause
of his/her death, or as to any of the circumstances of that transaction which resulted in his/her
death. It is a statement, which must have been made by the deceased before his death .
Dying declaration are statements made by a dying person as to the injuries which culminated in
his death or the circumstances under which the injuries were inflicted. For example, if A has been
assaulted by B or has been attacked by B; and dies. A shortly before his death makes a declaration
holding B responsible for the injuries inflicted on him with spear. This statement of A is admissible
as it relates to the cause of his death as a dying declaration at the trial against B. Statements made
by a deceased long period to the occurrences resulting in death are not dying declarations and not
admissible under the section 32(1) of the Evidence Act. Section 32 makes admissible, the
statement of a person who dies, whether the death is homicide or a suicide, provided the statement
relates to the cause of death or deals with circumstances leading to death.
Law Relating to Dying Declaration
Section 32(1) of the Evidence Act states “When it relates to cause of death:- When the statement
is made by a person as to the cause of his death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death and whatever may be the nature of the proceeding in
which the cause of his death comes into question”.
Illustration (a) to the section 32 of the Act states : “The question is whether A was murdered by B;
or A dies of injuries received in a transaction in the course of which she was ravished B. The
question is, Whether she was ravished by B; or The question is, whether A was killed
by B under such circumstances that a suit would lie against B by A’s Widow,
Statements may by A to the cause of his or her death, referring restrictively to the murder, the rape,
and the actionable wrong under consideration, are relevant facts”.
Essential Conditions for the Admissibility of Dying Declaration
(1) The declarant must have died
(2) The declaration must be a statement: written or verbal
(3) Injuries are the cause of his death
(4) Circumstances of the transaction which resulted in his death
(5) The cause of death of the declarant must be in question
(6) The declaration must be complete
(7) Declaration be taken as a whole
(8) Declaration should be precise
(9) The declarant must be competent

27
 (10).The declarant must be in a fit condition

2. Public documents
All the documents may be classified into two categories either ' Public documents' or ' Private
documents' . S. 74 of Indian evidence Act deals with definition of Public document whereas S.76
to S.78 deals with the modes or the proof for the purpose of proving the contents of a public
document. The public documents are admitted in evidence and as an exception to hearsay rule as
the fact contained in them are of public interest and they are the statements made by the authorised
and competent agent of public in the course of their official duties.
Definition of Public Document.
S.74 Public documents
The following documents are public documents :—
(1) Documents forming the acts, or records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents.
In order to bring documents within the definition of "public document" as laid down in
S.74, it must be shown to gave been prepared by any public servant in the discharge of his official
duty. The mere fact that it is kept in a public office does not make it a public document.
According to the definition given u/s. 74, only those documents are said to be public
documents as form of the act and records of public officer. It also includes the act of parliament
and state legislatures, proclamation, ordinance, state papers and gazettes.
Examples of Public documents
1) Birth and death registers of municipalities.
2) charge sheet
3) confessions recorded by magistrate u/s . 164 of Cr.P.C.
4) deposition of witnesses recorded by an officer of the Court.
5) entry in the register of power of attorney kept in the registration office.
6) sanction to prosecute.
S.75 Private documents
All other documents are private.

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This section simply provides that any document not coming under of the two clauses of S.74 is
private document. A deed of contract, memorandum, letter, sale deed, etc .are the private
documents.
It is pertinent to note here that law permits the proof of public documents by production of mere
certified copies of such documents in terms of Section 77 or in the manner as provided
under Section 78 of the Evidence Act. In contrast, private documents may be proved either by
primary or secondary evidence (where permitted), in terms of Section 61 till Section 65 of the
Evidence Act. Equally important is the presumption as to the genuineness of the certified copies
of the documents as provided under Section 79 of the Evidence Act. In simple terms, public
documents are the ones which are prepared by a public servant in the discharge of his official
duties. Further, such documents are characterized by the fact that they are kept in special custody
and are provable by means of a copy, without production of the original.

3. Confession by co-accused
Section 30 in The Indian Evidence Act, 1872
30. Consideration of proved confession affecting person making it and others jointly under trial
for same offence.—When more persons than one are being tried jointly for the same offence, and
a confession made by one of such persons affecting himself and some other of such persons is
proved, the Court may take into consideration such confession as against such other person as
well as against the person who makes such confession. 1[Explanation.—“Offence”, as used in
this section, includes the abetment of, or attempt to commit the offence.] Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said—"B and I murdered C”.
The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A
and B, and that B said—“A and I murdered C”. This statement may not be taken into
consideration by the Court against A, as B is not being jointly tried.
Conditions for the application on 30:
Before the-confession of one accused may be taken into consideration against others, it has to be
Shown that:
1) There must be joint trial.
2) The joint trial must be permissible under the law.
3) The joint trial must be for the same offence.
4) The statement must amount to a confession.
5) The Court may take such confession into consideration.

4. Leading questions
A Leading Question is one in which the question itself suggest the answer to which the person
putting the question wishes to receive.

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The answer to a leading question would generally be in a 'yes' or a 'no'. The examiner clearly
suggests the answer. If the question merely suggests a subject, without suggesting an answer or a
specific thing, it is not a leading question.
A ‘leading Question’ is one suggesting the answer which the person asking it wishes to receive
from a witness. According to Section 141 “any questing suggesting the answer which the person
putting wishes or expects to receive is called a leading question.” For example, Is not your name
so and so? Do you live in such and such place? However, if any has to be assessed on facts of each
case it is not as if every single leading question would involidate trial.

Whether a question is leading or not the test has been suggested by Justice Amir Ali. According
to him “a question may be answered by ‘yes’ or ‘no’ is generally leading, but not if it does not
suggest the answer.”
When leading question cannot be asked:

Under section 142 leading questions must not be asked in examination-in-chief, or in re-
examination or objected by the adverse party. It may be asked in the examination-in-chief of a
witness with the permission of the court. But it can be asked if permitted by the court as to matter
which are introductory or which are undisputed or which in the opinion of the court have already
been sufficiently proved.
When leading question may be asked:

Section 143 lays down that the leading questions may be put in cross-examination. No leading
question is allowed in cross- examination where the facts have already been proved or admitted
by the party.

5. Presumption as to legitimacy of child

Section 112 in the Indian Evidence Act
S. 112. Birth during marriage, conclusive proof of legitimacy. – The fact that any person was born
during the continuance of a valid marriage between his mother and any man, or within two hundred
and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof
that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had
no access to each other at any time when he could have been begotten.
Presumption of legitimacy
An illustration of a conclusive presumption of law is to be found in the provisions of Section 112.
It deals with the presumption of the legitimacy of a child. The effect of the provision is that a child
born to a married parents is conclusively presumed to be their child. The same presumption arises
where the marriage was dissolved and the child was born within 280 days after dissolution, the
mother remaining unmarried in the meantime.
The essential conditions for the presumption to arise are :

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 1. The child should have been born during the continuance of a valid marriage, or if the
marriage was dissolved, within 280 days after its dissolution, the mother remaining
unmarried.
2. The parties to the marriage should have had access to each other at any time when the child
could have been begotten.
Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the
burden of proof to the party, seeking to establish the contrary. The presumption under this section
is a conclusive presumption of law which can be displaced only by proof of non-access between
the parties to the marriage at a time when according to the ordinary course of nature the husband
could have been the father of the child. Access and non-access connote existence and nonexistence
of opportunities for marital intercourse. Non-access can be proved by evidence direct or
circumstantial though the proof of non-access must be clear and satisfactory as the presumption of
legitimacy is highly favoured by law.
DNA Test for Parental Responsibility
In an application for grant of maintenance to a minor child, the alleged father denied his parentage.
He showed no concern for the minor child. He rather showed a concern which was described by
the court as crocodilian that if the child lost his case he would become a declared bastard. The
court directed him to submit to DNA test. The court said that there was no violation of a person's
rights in directing him to take the test particularly when a child’s right to maintenance was involved.
(Kanchan Bedi v. Gurpreet Singh 2003 Delhi).
In reference to the scientific test, such as a DNA for the purpose of collecting evidence, the Delhi
High Court held that no party to a legal proceeding can be subjected, on the mere asking of the
opposite party, to any such test against his or her will. It infringes his or her right to privacy. DNA
test is not to be directed as a matter of routine. It is only in deserving cases that such a direction
can be given. The court did not direct DNA test of a claimant to property of a deceased person
only because one of her brothers was saying that she was the daughter of their father’s brother.
The Supreme Court further said in this case that the conclusive presumption under the section
cannot be undone through the process of DNA test. There must be proof of non-access during the
relevant period. (Banarsi Das v. Teeku Dutta, 2005 SC).
Where the factum of marriage and marriage relationship was disputed and the parties never had
access to each other, it was held that ordering DNA test by the court for proving legitimacy of the
child was not proper. (Dava Gopal Lunani v. Siva Gopal Lunani, 2014, A.P). According to a
dispensation of the Supreme Court, the DNA test should be resorted to only if it is eminently
needed. But otherwise the Supreme Court has held that DNA test prevails over the presumption of
conclusive proof under Section 112. In a claim for maintenance, the DNA test showed that the
claimant’s daughter was not her father’s biological daughter. Non-access to wife became
established. He could not be compelled to bear the fatherhood of a daughter who is not
scientifically his and asked to maintain her. (Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik,
2014 SC).

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PROBLEMS
1. The question is whether ‘A’ robbed ‘B’. Does the fact that shortly
before the robbery, ‘B’ went to a shop with money in his possession
and showed it to third persons, become relevant?
Solution:
Yes, facts because of which facts in issue take birth, or facts which take birth because of facts is
issue are also considered relevant fact. Evidence can be given for the set of circumstances under
which the principle facts occurred.
What facts are relevant under Indian Evidence Act?
Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant.
Section 7 - Facts which are the occasion, cause or effect of facts in issue - Facts which are the
occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, which afforded an opportunity for their
occurrence or transaction, are relevant.
For example - a) The question is, whether A robbed B. The facts that, shortly before the robbery,
B went to a fair with money in his possession, and that he showed it or mentioned the fact that he
had it, to third persons, are relevant.

2. The question is whether ‘A’ was a legitimate son of ‘B’. Does the
fact that, ‘A’ was always treated as such by the members of the
family relevant ?
Solution:
Yes it will become relevant.
Section 50. Opinion on relationship, when relevant
When the Court has to form an opinion as to the relationship of one person to another, the opinion
expressed by conduct, as to the existence of such relationship, of any person who, as a member of
the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the
India Divorce Act, 1869 (4 of 1869) or in prosecutions under sections 494, 495, 497 or 498 of the
Indian Penal Code, (45 of 1960)
Illustrations
(a) The question is, whether A and B, were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as
such by members of the family, is relevant.

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 3. ‘A’ sues ‘B’ for money due on a bond. ‘B’ has admitted the
execution of bond, but contends that it was obtained by fraud. ‘A’
denies it. On whom the burden of proof was ?
Solution:
Burden of proof lies on B.

On whom burden of proof lies (Sec. 102):

Section 102 of the Evidence Act lays down that the burden of proof 1n a suit or proceeding lies on
that person who would fail if no evidence at all were given on either side. Section 102 runs as
follows:
‘The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at
all were given on either side’.
Illustrations:

a) A sues B for land of which B is in possession, and which, as A asserts was left to. A' by the will
'of. C, B’s father.
If no evidence were given-on either side, B would be entitled to retain his possession.
Therefore,‘ the burden of proof is on A.

b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it . was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the
fraud is not proved.
Therefore, the burden of proof is on B.

4. ‘A’ agrees in writing to sell his horse to ‘B’ for Rs. 1,000 or Rs.
1,500. Can evidence be given to show which price was to be given ?
Solution:

No, evidence cannot be given in this case.

Section 93 of the Evidence Act lays down the first principle relating to ambiguous documents.
S. 93. Exclusion of evidence to explain or amend ambiguous document. –-When the language used
in a document is, on its face, ambiguous or defective, evidence may not be given of facts which
would show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500. Evidence cannot be given
to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were
meant to be filled.

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The principle is that where the language of a document is apparently or on the face of it defective,
oral evidence cannot be given of facts which would show its meaning or remove its defects. The
two illustrations appended to the section make the sense quite clear. If the price mentioned in a
document is uncertain, that is to say, different amounts are mentioned in different parts of the
document or if the document carries certain blanks, certainly oral evidence is not allowed to show
what price was actually meant or how the blanks were to be filled. If the document had mentioned
no price at all, oral evidence of the price would have been allowed under Sec. 92 (2 nd proviso) as
to a matter of fact on which the document is silent but not when the document mentions price of
ambiguous nature.

5. The question is whether a horse sold by ‘A’ to ‘B’ is sound. ‘A’ says
to ‘B’ go and ask ‘C’. ‘C’ knows all about it. Does the statement by
‘C’ become admissible in evidence ?
Solution:
Yes, it will become admissible.

Section 20 of the Indian Evidence Act states about statements by referees.

S. 20. Admissions by persons expressly referred to by party to suit. – Statements made by persons
to whom a party to the suit has expressly referred for information in reference to a matter in dispute
are admissions.
Illustration
The question is, whether a horse sold by A to B is sound. A says to B – "Go and ask C, C knows
all about it." C’s statement is an admission.

The principle is that when a party makes a reference to a third person for information, any
statement by that person about the subject-matter of the reference is an admission against the party
making the reference.

MUBARAK KHAN
Asst. Professor
Al-Ameen College of Law, Bangalore
Available at: mubarakkhan914@gmail.com

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