2/7/2020

 Relevancy of fact- Fact in issue is principal fact and relevant fact is collateral fact
 Evidence act is retrospective in application. - What, how and by whom?
 S.3- Definition of fact- 1. Anything perceived by senses. 2.mental condition of person is
conscious. Physical facts in 1 and psychological facts in 2.
 Any fact which fits into any provision of 5-55 is relevant fact.
 Framing of charge in CrPC is the fact in issue. Order 14 of CPC for civil cases. Ingredients of
crime are facts in issue. Mitigating and aggravating factors will be fact in issue.
 Any provision of substantive law which talks about rights and liabilities of the person and
which increase liability, curtailment of liability or decrease of liability. Thus it is a fact in
issue.
 Between fact and legally relevant, there is logically relevant fact. It is possible a particular
fact is logically relevant but not legally relevant.
 Provision in S.27 of IEA- a statement given to police officer to confession is irrelevant, but
incriminating material leading by this confession for example a gun is relevant.
 Difference between admissibility and relevancy. Communication between husband and wife
during marriage may be relevant but won’t be admissible.
 Every admissible fact does not have equal weightage. Expert opinion has less weight
compared to eyewitness. Probative fact is the value attached to the weight attached to the
admissible fact.
 Evidence is defined in S.3. Statements by witnesses in court is oral evidence. What court
permits or requires is either fact in issue or relevant fact. S.5 talks about fact in issue and
relevant fact.
 Gun recovered per se is not evidence because it is not oral nor is it documentary.
 Is there a conflict between S.3 and proviso of S.60?
3/7/20

 In case of borderline case between whether a fact is relevant or irrelevant. The court will go
for relevancy.
 IT IS BETTER TO ADMIT THE FACT RATHER THAN REJECTING THE FACT.
 STARTING FROM COURT OF FIRST INSTANCE, IF THERE IS ANY DISPUTE TO THE RELEVANCY OF
FACT IT CAN BE OBJECTED IN ALL LEVELS OF COURTS.
 In the court of first instance, the person has to object it anywhere. Case first in magistrate
court, I don’t object it, I can still object it in SC. The mode of producing the evidence can
only be done at the first instance and then the doctrine of waiver will apply.
 Res judicata to the fact which is agreed by both the parties. The evidence act relates to a
particular fact which is in controversy.
 Higher courts in later proceedings can state that a particular fact is irrelevant.
 Rule of Severability. When relevant and irrelevant facts are mixed together and it is
impossible to separate. Example- fact collected by tracker dog, present was there in a
particular room. Alibi says that person somewhere else. Or by smelling blood, dog has gone
to two houses. Thus the court cancels this as there is no clarity and the court will not bother
about these disputed facts.
 2 differences between fact and evidence. All fact is not evidence and all evidence is fact.
Evidence is in express form that is either oral or documentary.
 IS GUN RECOVERED EVIDENCE? The gun is connected with case because of getting from the
crime place, thus oral evidence. Documentary evidence comes out of material evidence
through ballistic evidence.
  TYPES OF EVIDENCE
 Substantive and corroborative effect. Substantive evidence is something which will decide the
case per se. Substantive evidence must be subjected to cross examination and verification and
thus has potential of becoming a substantive evidence. Corroborative evidence supports
substantive evidence, and does not need verification. Eyewitness – substantive evidence and
doctor or opinion- corroborative evidence. The exception is there is a lot of corroborative
evidence and the court will decide the case on that.
 Direct and Indirect Evidence. Direct evidence is taken. Generally, hearsay evidence is not
acceptable. Dying declaration is an exception. Circumstantial evidence is a controversy. 5
principle of convicting using circumstantial evidence.
If no direct evidence, court will take on cumulative effect of circumstantial evidence. The
requirements for circumstantial evidence is pretty high. We apply circumstantial evidence
because of lack of direct evidence and failure of witness to recall the event or event becoming
hostile.
 A case where person charged for murder. He has shot someone and person died on the spot. Z
saw A shooting the guy and then he died then and there. Bullet is recovered from the body.
But the corroborative evidence suggests something which goes against the eyewitness.
Corroborative evidence is based on logic and expert opinion. The ballistic expert says the
angle of the bullet is not according to what was told by the eyewitness. Only two evidence is
available.
Even if you are banking on substantive evidence, proof must be standard of beyond
reasonable doubt.
Today courts rely much more on corroborative evidence. This casts doubt on the prosecution
case. Corroborative evidence becomes strong enough to make the defense win.
 RESULT OF INVESTIGATION? Finding of Investigation will not per se be an evidence.

6/7/20

 Fact in issue is something which is in contention by both the parties. It is related to the
ingredients of the crime.
 Relevant fact is those facts which helps in proving or disproving fact in issue.
 Evidence- S.3- oral or documentary. Evidence is the medium for presenting the fact in issue
or relevant face.
 Effect of evidence is proof. A particular fact may be proved, disproved or not proved. Proved
fact is looked into as probable that a prudent man ought to under the circumstances of the
particular case. If on the ground of probability, we have to decide whether what version is
probable.
In civil cases, its reasonable if more than half of the evidence is in a particular side’s favor. In
criminal law it is very different, as 1 piece of evidence can help the accused even if there is 99
evidence against him, if this evidence is that probable. Ultimately it boils down to probative
value of the evidence.
 The court is usually in favor of admitting facts but in proving an entire case, the court may not
be this ready to decide the case in this manner.
 If the court takes presumption of a particular fact, it need not be proved separately. S.112
speaks about the birth of child within 280 days from date of dissolution of marriage. There
can be argument based on lack of access. This presumption says that it is conclusive proof
and that it would not be argued and that it is the truth.
 Personal evidence is one produced by witness in court and is cross examined. Real evidence
is something which is reported based on a material. Like a gun obtained by a witness.
 Immediate evidence is when someone who is injured due to the crime has come right in front
of the court.
 Document definition- S.3. the matter inscribed in the paper is the document in Indian law
while in English law the entire thing would be document.
 Application of IEA- S1. And S.2.
 Judicial proceeding refers to any proceeding during which evidence is or maybe legally taken
on oath.
 Functions in which IEA will not apply, functions of exec magistrate, inquiry by police officer,
inquiry before collector under Land Acquisition Act, inquest before coroners under coroners’
act, income tax proceeding. IEA does not apply to affidavit because it is unilateral. This
presumption is that in an affidavit the person will give the correct information. If wrong
information given, he will be criminally charged.
7/7/20

 S.45- Expert evidence. Court will not permit opinions in court of law. expert opinion is an
exception to this rule. It is not the norm but an exception. It is exception is that an expert
gives his opinion based on his experience and knowledge of his subject.
 Expert opinion is still not binding on the court. The rule of the court is that if a case can be
determined by facts, expert opinion is not taken. Expert opinion gives corroboration to the
court.
 3 key words- INDIVIDUALITY, EXCHANGE, CHANGE. Hallmark of every event.
 Theory of individuality says every crime is a unique crime, every crime has some kind of
individuality. Identify this individuality. With eyewitness it is hard to pick up this
individuality. Expert opinion will step in and determine the identity of each person based on
some underlying factors.
 Edmund Locard principle of exchange. Whenever 2 entities come in physical contact with
each other, there is some or the other exchange that has taken place. Extent of exchange may
vary from the kind of interaction between the entities.
 Progressive Change. Huge gap between event and person connected with event, chances are
for a human eye or common witness it is hard to differentiate. When expert opinion is
applied, even if there is an apparent change in something connected to the event, there might
be some things that doesn’t change, eg- DNA. Criminal caught after 20 years’ eyewitness
may not identify, but dna will be same.
 Relevant fact divided into fact and opinion. Opinion divided into expert and non-expert.
Classic expert of non-expert is someone who is familiar with the handwriting of the accused.
Two major classifications in expert which is scientific and non- scientific. Foreign law is non-
scientific expert.
 Scientific expert divided into hard and science and soft science. Soft science is usually the
sociological subject. Hard science is divided into exact and inexact. In ref to physics and
chemistry, it is exact because finding is uniform. Inexact science is that different reaction in
different circumstances.
 Kinds of expert- Science, arts, foreign law, fingerprint, handwriting.
 Difference between expert and witness. Expert is based on opinion while witness is based on
perception or fact. There is generally scientific backing of opinion while in the other side
there is usually no scientific backing. For expert opinion here must be basis or reasoning of
the opinion while for witnesses there is no requirement. Expert opinion can be tested later or
verified on while witness cannot because the particular event cannot be recreated. Basis of
expert opinion is usually an external source like books, experience, treaty while for common
witness it is only about narrating the thing. Some special knowledge is required in expert
while it is not required in common witness.
  CCTV comes under expert evidence.
 Eligibility to be an expert is knowledge and experience. Usually qualification is needed but
there can be exceptions. Eg- In Re Govinda Reddy, AIR 1958 Mys 150. The burden of proof
is on expert to prove his competency through his qualification and experience.
 Us u need qualification, experience and aptitude for presentation which is unique to US.

9/7/20

 Role of scientific experts is 2 ways- scienitifc-the actual function nad forensic-

communicating this to court.
 Section 46- Facts which are not relevant under S.5-55, if these facts have support of expert.
 In exceptional circumstances, a non-expert can also give evidence. For eg- writing expert-
S.51.
 Is science an encylcopedic body of knowledge or set of assumptions and hypothesis. Court is
going for the latter view where the court agrees w the views of Thomas Kunh.
 Limitations
 It is impossible to collect fresh samples. Decreases accuracy.
 Inherent limitations of techniques. Selvi v state of Karnataka- lie detector,
brain mapping, narco analysis. Court said all three are not scientifically
correct. If accused consents to the test, evidence can be collected and the
finding can be used for corroboration and if no consent selvi v Karnataka
applies.
 2 kinds of subjectivity- differences in opinion of experts, difference in reach
and contact of person. The reach and influence of the person makes the
evidence that he can present in the court. For example if technical aspects are
involved, an educated and influential person will get experts to testify to his
favour while a common man cannot.
 Limitation of evidence. With the exception of living DNA, there are no other
scientific evidence that is admissible.
 STANDARD OF REVIEW. Broadly three categories of expert evidence.- accepted everyhwere
in world -dna, fingerprint. Rejected everywhere in world- voodoo. Court which is neither
accepted or rejected.
 BEFORE 1920- relevance test. Court will generally certify the opinion of expert.
 AFTER 1920 – frye test or general acceptance test. Frye case – 1923 - Any test which is
generally acceptable in the scientific community makes it a subject matter of evidence.
 1993- daubert test. Bendectin medicine was given to pregnant woman and children had
abnormalities. The petitioner made allegations as to this abnormalities with the help of 8
experts. The medicine company also had experts which had the contrary views. The
gatekeeper role of the court has been formulated in this case. 4 exhaustive factors-
 Testability. The court will look into how this method came into.
 Peer review- citing paper from peer reviewed journal.
 Potential rate of error
 General acceptance.
 OBJECTIONS TO DAUBERT TEST.
 Where court has expertise to separate good science w bad science?
 What difference will it make if error is 50 or 95?
 Can science be tied to particular methodology?
 Daubert proceeding is expensive procedure.
 Undermining the credential of scientists.
 Attempt to codify science to some extenet.
13/7/20

 The role of medical opinion is by and large confined to criminal law.

 Medical opinion tries to provide answer to the following fundamental questions-
 Whether crime has taken place?
 How crime was committed?
 When crime was committed?
 Who comiitted the crime?
 PRINCIPLES GOVERNING MEDICAL EVIDENCE-
 Witness of opinion- Nagendra Bala v Sunil Chandra, AIR 1960 SC 706. Majority
opinion is that medical witness is an expert and he is not a witness of fact, but of
opinion.
Dissenting opinion of Hidyatullah is that medical witness may be a witness of fact. It
is an independent testimony and it may establish certain facts. For example, person
shot in his face and tattooing marks present. Medical opinion is often direct evidence
of the facts found upon victim’s person.
The fundamental difference is the live thing and the recorded part. Medical opinion is
done after the event has taken place while fact is collected at the live event. Medical
opinion is also based on some external sources while facts are direct narration of
things without any external source. The witness does not need any expert training to
narrate. The need for further experimentation is not required because it is mere
narration.
 Narrative evidence – Value of medical evidence is only corroborative. Even expert
evidence is corroborative in court of law. Generally one corroborative evidence is not
enough to decide a case.
Corroborative evidence can support another corroborative evidence. Corronorative
evidence can help in determining the validity of narrative evidence.
The testimony of eye witness cannot be thrown out on the ground of alleged
inaccuracy between it and medical evidence ( Solanki Chimanbhai Ukabhai v State of
Gujarat, AIR 1983 SC 484)
 Inconsistency between direct and medical evidence- Queen V ahmed Ally, Cal HC,
1869. Human knowledge is limited and imperfect.
Para Singh v State of Punjab, AIR 1977 SC 2274- If there is a glaring inconsistency
between direct evidence and medical in respect of entire prosecution story, that is
undoubtedly a manifest defect in the prosecution case.
 Conflict between opinion of 2 experts – Whether finding is proper and whether the
opinion of finding is proper? When there is conflict of opinion between 2 different
opinions, the opinion of expert supporting direct evidence is taken. Para singh v state
of Punjab, AIR 1977 SC 2274- Examiner will be preferred over observer.
14/7/20

 Pyara Singh case- there were 3 witnesses who were connected with the crime. Medical
evidence was cooroboratieve evidence. One expert examined dead body and had gunshot
injury and second expert says there is no gunshot injury.
 Medical book is not conclusive- Books are not determinante to determine the
correctness of the view of the expert. Even if it goes against the view, we just have to
prove that this approach can also happen, and the court will accept it.
 Slight variation in timing of death is irrelevant. If there is a slight difference due to
the cirumstances it is fine.
 Medical evidence is subjected to logic and objectivity of the judge. What is more
objective and more probable to the judge will be adopted.
  If medical evidence is presented by both the side and both the evidence are balanced.
Benefit will be given to the defence.
 Post Mortem report is not a substantive piece of evidence. The doctor will come to court and
be subject to cross examination.
 Different types of injury.
16/7/20

 Ballistic Evidence. Ghurey Lal v State of U.P, (2008) 10 SCC 450.

 There are 2 scenarios, credibility of witness is questioned and second is there is a doubt in the
minds of the court. When there is dispute between corroborative evidence and substantive
evidence.
 Crux of the case is that there was 1 gun shot injury and there was death of one person and
injuries by pellets to another person.
 Version of prosecution that bullet killed accused, it came out through exit wound and then
injured the witness. Defence said nope.
 Two types of properlants that come out of gun- bullet and pellet.
 3 types of ballistic cases- contact, close, long range which is more than 3 feet.
 SC endorsed to the opinion of ballistic and acquitted the accused. There was different
direction to the gushot injury and this cannot happen. Thus ballistic evidence overruled the
opinion of eye witnesses.
 Kalua V State of U.P- Opinion of ballistic expert can conclusively prove that a particular
catridge has been fired by a particular pistol.
 Check the slides for the rest of the cases.
 Fingerprint Evidence – if fingerprint is collected from crime scene, the matching percent
differs in different jurisdictions. It may depend on the area of fingerprints collected, the match
with accused etc.
17/7/20

 Handwriting expert.
 The entire perception is based on individuality. Background based on family, race, gender and
writing style based on skill, slant, spacings etc. are very important.
 Generally writing still is taken into consideration in court of law.
 Handwriting is independent field under S.45 for experts and under S.47 it is opinion of non-
expert.
 When SS.45 is applied, S.51 is also applied.
 The entire training of handwriting expert is through learning from seniors to juniors. It
depends on the soundness of the reasoning advanced by him.
 Under S.47, the opinion of any person acquainted with handwriting is relevant. The categories
of people are –
 Has seen the person write. It is not necessary you knew X before or had
seen his handwriting before.
 Received documents purporting to be written by that person
 Documents purporting to be written by that person have been habitually
submitted to him.
 This section is broadly worded.
 It is corroborative evidence. There are different kinds of value attached to different
corroborative evidence.
 Handwriting belongs to that part of evidence where the probative value is lowest because of
the margin of error.
  Probative value is depending on reasonableness and scientific quality and not on the
prolonged expertise of expert.
 3 grounds of determining the probative value-
 Since person will call expert, he will be biased against the party which called him
 Opinion of experts is not binding upon judge.
 The direct and positive evidence as to facts will be preferred to untested opinion of
experts.
 Handwriting should be presented in such a manner that judge could test accuracy of his
conclusion by judge.
 It is not automatically admissible, there should be process of cross examination.

20/7/20

 Any kind of connection with crime , the fact becomes res gastae. When a fact is part of the
same transaction , it becomes res gastae.
 There are different opinions as to how res gastae is to be perceived by different scholars.
 Black law dictionary has said that anything connected w the crime gestae evidence.
 Something which is incidental to the main act, without knowledge of which the main fact may
not be understood. They are events speaking for themselves rather than what people think of
the event. It should be contemporarioness. -Taylor
 General principle is that hearsay evidence is not admissible, but in res gestae this is not
applicable.
 What is transaction? Anything that happens between te beginning and end of event. There is
confusion as to what is the beginning and end of an event.
 If person wants toput bomb in parliament, when does the transaction begin? And if he is
successful, when does the transaction end.
 Test for determining Res Gestae-
 Cause and Effect.-3
 Proximity of time & place-2
 Contiuity of action and purpose.-1
 S6.- there is no subject matter given in S.6. if something is not relevant under 7-55, lawyer
will try to fit it under S.6. General principle in S.6 ad specific principles in 7,8,9 and 4.
 Any kind of fact which cannot be fit in other provisions can be fit in S.6.
 It is about a particular fact which is not a fact in issue, but is a fact which connects fact in
issue, which happens at same time same place or different time, different place.
 Court has to determine when the witness has perceived that particular fact. Chances of
manipulation are very very high.
21/7/20

 Sukhar v State of U.P –

 There was family enmity between 2 persons, and when the crime happened, no eye
witness. The deceased said that he was shot by the accused. the victim along w the
witness went to the police station and recorded the statement. The victim died in the
oendency of trial. The rosecution could not give case of death.
 The sessions and high court convicted the person under S,307. This was in appeal to
the SC.
 SC saif that the statement was admissible under S.6.
 SC said the evidence was relevant but was corroborative.
  The court relied on the statement on Sarkar on S.6 which goes against actual S.6.
Because Sarkar takes in fact in issue and relevant facts while S.6 includes only
relevant facts.
 Guiding Principles-
 Statement must explain incident in some manner
 Statement must be spontaneous or contemporaraneous
 Statement must be fact and not opinion.
 Statement may be by participant of the transaction, person who witnessed the event,
or by third person to whom perception has been communicated.
 Statement may be oral or written.
 Even if statement reaches court from interested witness, court will admit the evidence. But the
court will be extra careful while determining the admissibility of the evidence and may need
additional corroborative evidence.
 Evidentiary Value- Though admissible t explain or corroborate to understand the significance
of the act, declarations arenot evidence of the truth of the matters stated.
 Hadu v State of Orissa-
 2 parties- both friends. Deceased gave a lot of money and gold to appellant who told
him he would teach him a Pooja. The deceased went to see tha ppellant and he
became missing. The wife got to know that husband was missing and then found his
body. No one saw him after 10pm but till that time he was in house of appellant.
 The important evidence was that of a person who was passing by the appellant’s
house. a person said that he had a dead body in his court and that fruit cart guy
should take another route.
 Session court considered that unidentified that person as an accomplice in the case.
 Statement of accused can be admitted, but for accomplice the evidence need to be
corroborated.
 The passerby didn’t know actually whether it was a dead body and only knew it from
the unidientified person.
 The source of the passerby is not authentic and it should not be relied on.
23/7/20

 S.7- Facts connected with fact in issue or relevant fact. Relevant fact 4 categories-cause anad
effect, opportunity, state of things and occasion.
 S.11- Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or
relevant or if they be 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.
 S.11 has 5 categories of cases-
 Alibi
 Non-access of husband to show legitimacy of child.
 Survival of the alleged deceased
 Commmision of offence by 3rd person. 2nd illustration.
 Self infliction of harm.
 Jayantibhai-
 Accused disrespected deceased’s wife. He got kicked out. Accused took other people
and went and killed the decased. This was seen by the decased’s brother.
 A9 said that he was not in the place of occurrence at the time of death. He had 2 other
cases. A warrant of arrest was released for non-appearance in that case.
 40 years in criminal bar by Purcel.
 If eyewitness cannot be relied on this accused, will not the version be questioned by
other accused.
  The rule applied by SC is the rule of severability.
 The SC went to the question as to what the accused actually did. The eyewitness said
that he was carrying stick for laceration injury.
 Para 19- Impt. The plea of alibi is horoughly discussed.
27/7/20

 S.6 is a broad session and is applied when other sections are not applicable.
 Any fact which is relevant can be put into 2 categories- contemporarineous and not
contemporariouness.
 3 things important in S.8- Motive, preparation and conduct. S.8 is also res gestae.
 Two differences between 6 and 8. 6 has to be contemporainess while s.8 can be either after or
before or during the crime. S.8 there is no limitation on subject matter while S.6 is restricted
to relevant facts.
 If suit and proceedings is stated in section, it means that it is applicable to civil as well as
criminal law.
 Under S.6, statement is relevant while for S.8 the statement must come with some
gesture or action for the statement to be relevant.
 Illustration is part of the statute. In S.8, threat by victim as motive, need of accused as motive,
similar past conduct,contextual discussion on alleged subject matter (last will is the one that is
relevant), manipulating the case which includes tampering with evidence, sudden reaction of
accused ( person run away after hearing something), silence as conduct, subsequent conduct
of accused including absconding, subsequent conduct of victime are examples. All these are
corroborative evidence.
 If there is direct evidence, the corroborative evidence will be disregarded.
 Under S.8 it must be in the nature of a complaint rather than just a statement. Mere statement
per se is not releveant. The person would want some kind of action to be taken. Unless it is
dying declaration and something under S.157 even if statement will be relevant.
 Every wrongful act must have some kind of motive to commit a wrongful act.
 Conduct is relevant in S.8. An act or omission of act is relevant.
 Nathuni Yadav-
 There was bad blood between 2 cousins in regards to property. He had gifted all his
property to his wife and this infuriarted the cousin. They also shot the neighbours.
The major issue was that the appellants did not shoot the victim as it was a moonless
night and they couldn’t recognize them.
 The court said that what one person can see it can also be seen by the other person.
 Para number 11 - similar to Sukar case. In Sukar case SC said it is relevant under
S.6. The court here said that this statement is not relevant under both S.6 and S.8.
 This is not relevant under S.8 because it was just a mere statement and there was no
gesture or expression.
 What is the difference between this and the illustration? Court will always go for the
safe side and will admit this. The court admitted it under S.157 which has very less
probative value. 157 speaks about any act which can determine the time. In one case
some facts which may be relevant may not be relevant in another case..
 Motive may not be adequate but even then some motive is good enough. If there is
direct evidence, even if motive is not there it is fine.
 Check out the relevant statements under S.8 in the slides.
28/7/20
  S.9- Facts necessary to 1. explain or introduce a fact in issue or relevant fact 2. Support or
rebut an inference 3.establish the identity of any thing or person 4.fix the time or place
 S.9 can be used to counter S.8 and also to corroboratae S.8.
 S.9 – TI parade. Or test identification parade. TI should be conducted when identity of
accused is not known. TI is not used in civil case, familiarity with accused and accused
caught red handed.
 Subject matter of parade is recognition of human being.
 Executive magistrate has to be there when TI parade is there.
 State of Maharashtra v Suresh-
 Infacnticide case.
 Para 19 of the case- Inherent incredibility in the evidence. The perpetrator will try to
hide the victim and this was not done.
 SC said defense has not given any other alternative that. Even if there was another
route,will it make any difference. What if the accused developed the mens rea at a
later stage? Taking some other route will actually arise suspicion and thus he would
take the busy route and take it as a defence.
 In Para 3 there was a similar kind of case against the accused and that person was
accused. The SC is not interested in it.
 Para 26, Section 27 of IEA is applied. When the accused gives info and on fact of that
info something is discovered.
 Taking a reading from suresh is that they read the corroborative value of evidence of
the entire case.
 No justification of changing death sentence to life imprisonment.
 Bhaval Sanyasi Case, Bihabeti Bera v Ram Roy.
 12 Angry men.
29/7/20

 Relevance of statement of Co-Conspirator- S.10.

 Wide power is given to state.
 It is only applied by Prosecution.
 4 requirements- Check Slides.
 Essential Ingredients of Criminal Conspiracy-
 Agreement to commit offence or wrong
 Consent not knowledge is real test.
 Continuous Offence.
 Knowing each other is not essential.
 Active participation is not necessary.
 Liability of co-accused. Even if the co-accused dies during pendency of suit, the
other person can be convicted.
 Method of proof can be done through direct or circumstantial evidence.
 Nalini Case isa leading case.
 Mirza Akbar v King Emperor-
 Para 12, last 2 sentences.
 When the conspiracy is happening, the statements are admissible while after the
offence is committed.
 The 3 letters clearly show a conspiracy to kill someone.
 It is one of the hypothesis but is it the only hypothesis?
 When the objective is achieved, the statements are not admissible.
 If I am one of the conspirators and I am giving the statement during conspiracy or
after conspiracy is not relevant because conspiracy is a substantaive offence. Why is
 the person not reliable after the commission of the offence? There is a greater chance
of police inducment.
 In illustration in slides, 1st question the object was to bribe the police officer. And that was not
achieved. Thus it will be admissible and relevant.
 2nd question, Z had knowledge but there was no consent to conspiracy. This statement of X
against Z will not be held admissible.
 3rd question, statement was held admissible. If object is achieved, it is irrelevant, but in arrest,
statement made after arrest can be admissible.

31/7/20

 S13- Relevant Facts affecting rights and custom.

 This section deals with civil law.
 Custom is a mixed question of law and fact.
 If fact is admitted, it is admitted forever. A custom being a mixed question of law and fact, it
is not submitted forever as court applies the law.
 Custom is called transcendent law. It is usage, custom and law.
 Custom is of 3 kinds- private which is limited to family, general custom is limited to a caste,
trade area and public is where it is generally practiced..
 Hundi is a system of transfer of money.
 S1 ICA. Interpretation subjected to custom and usage of trade.
 S.32 IEA statemenet of relevant fact by person who is dead or cannot be found. It a perspn is
dead or someone like PM, the court may found it to unreasonable, the court may be relevant
in certain circumstances. This is a section other than S.6 where hearsay evidence is
applicable.
 32(4) deals with opinion while 32(7) deals with document. 32(4) both public and private
custom are relevant while for 32(7) only public custom is relevant.
 S.48 and S.49 are dealing with custom and relevancy.
 Question- Whether hearsay evidence is relevant under S.48 and 49? Hearsay is not
admissible.
 Whether the grounds of opinion is relevant under S.51 as it is relevant for expert opinion?
When opinion is taken of non-expert, his opinion must be backed by something, for example
a document.
4/8/20

 Any fact which shows the intention of person comes up in S.14 and S.15.
 S.14 and S.15 difference. S.15 is a species of S.14, as it deals with insurance. S.14deals with
issue and relevant fact while S.15 deals with only relevant fact.
 It is better for defence for case to fall under S.15 while prosecution would want it to fall under
S.14.
 S.15 talks about series of transactions while in S.14, it only takes about single transaction.
 Prosecution prefers S.14 because prosecution has to prove multiple prosecutions of the past.
 S.14 says psychological fact is relevant. Thus in criminal law it gives indication of mens rea
while in civil law it deals with malicious intent.
 In possession of stolen items, the possession itself is actus reus. Thus in some occasions S.14
deals with both mens rea and actus reus. Does this make sense?
  S.14 only talks about mental possession. The psychical possession has to be proved through
some other section and because of this physical possession S.14 can be applied.
 52-55, relevance of character. Character is relevant only in computing damages. In criminal
law,good character is relevant while bad character is not relevant.
5/8/20

 `Admission and confession

 Confession is about admission of guilt. Admission will reach maximum to the side of
estoppel
 Confession generaly about crime, while admission is sfor civil
 Confession only from accused, parties to the case or any third party can make
admission
 Under S.30 Confession is valid against co-accused also. Whenever there is case of
admission, it is only applicable against the party who is admitting it.
 Exculpatory is in favour of the accused while inculpatory is against the person.
 Admission can be made by third party while confession is by a party connected to the crime.
 Admission can happen even in a criminal case.
 Admission is about a fact while confession is in relation to the whole case.
 The categories who can give admission are given from S.17-S.20.
 S.18.
 first category is beneficiary or having liability.
 Dispute going on between 2 person A and B. There was encumberance on property.
6/8/20

 8 different categories of evidence by person who is dead and cannot be cross examined will
be admissible.
 If person is alive 21 can applied.
 21 is usually against the person. The law provides exceptions to this-
 Death of person under S.14.
 2nd ground of 14 is directly connected with 14.
 If a person who is accused of stolen property, refuses to sell it a less than market price, the
presumption will be towards his innocence.
 3rd point – alibi. S.11 a fact is relevant. Why do we need S.21? Under S.21,, not everyone can
give the proof. S.11 only has corroborative value while S.21 has high probative value and
becomes substantial evidence.
 S.31- Admissions are not conclusive proof, but is not estoppel.
 If something can be fit under S.11, it can fall in S.21 also.
 Every case of successful alibi will come under S.21
 The focus is on who is making the statement, and if he can make ana admission then it will be
admissible.
7/8/20

 3rd point of S21. The rule is any representation made in court either oral or written was given
by a party before. And if this point becomes a contention, the party can use this fact to use
subsequently.
 Documentary prevails over oral. Two exception, that secondary evidence is permitted and the
second one is that the documentary evidence is in contention.
 S.23- Civil cases. Whether a particular thing should be considered as admission. S.23 puts
limitations on S.21. There is an exception to this section- S.126. even if client confesses to
 lawyer and lawyer says in court that he did wrong, that will not be admissible. Lawyer can
say in court in 2 instances, after appointment of lawyer client did wrong and also that lawyer
knew that client is gonna do future wrongful acts.
 Viswanath case- family partition, the appellants had submitted that the property was given
lawfully to defendants. They were not cross questioned. The appelants disputed their
admission. The court said no because there was no point of there being cross examination.
 Statement given by party and statemenet given by witness are very different. Admission by
parties is substantive evidence and the court will mostly not allow the party to change. But for
a witness, the court allows the witness to change his admission.
 S.21 and S.145 has difference. S.145 is about method of proving while S.21 is about
substantive evidence. Propio vigore is used ina very strong sense and they say that admission
is propio vigore and is thus very important.
 S.31 is that admission not conclusive proof, but may prevent the party from estopping.
 Law relating to confessional statement.
 Can confession be direct or indirect?
 Lady narrating that she was walking at night, a person following her, she got apprehension of
assault, she took her knife and stabbed him and ran away. Police came next day and enquired
and lady told her this and medical evidence said that stab was reason for death. Is this an
inculpatory or exculpatory? If inculpatory, admission or confession?
 For exculpatory, is it perception of court or court?
 Assuming this is inculpatory statement. Can confession be direct or indirect?
 And is this an admission? Because she just clarified on facts or the actus reus. She has not
spoken of anything about mens rea. What is the guideline about the fact- whether actus reus
or mens rea or both should be included?
 What is the standard for understanding admission.
10/8/20

 S.164 of CRPC deals with confession. Major requirement of confession is that it must be
voluntary.
 S.24 is the general section of confession. The 4 requirements of confession are said in this
section.
 Pyarelal Bhargav- Pyarelal Bhargav was superintendent in office and helped appellant to hide
the files. First is about deifference between reasonable and probable. Para 4-8.
 Appear is based on the reasonable man standard. In IEA, proving of fact prudent man test is
used. It is the lowest standard of proof.
 The court will go through S.24 in most liberal way.
 The moment a person confession, the court will set a very high standard. The prosecution
does not have to do anything relating to confession. Court on its own motion can dismiss the
contention of confession as appears is the lowest standard of proof. And if court feels
anything amiss, they will dismiss it.
 The 4 sources for checking confession. Evidence of prosecution. Evidence of defence.
Circumstantial evidence. Confession itself.
 Mere threat is not sufficient to invalidate confession.
 Retracted confession , usually confession made at stage of investigation and denies later. As
rule of law corroboration is not required , but rule of prudence, corroboration should be taken.
 All 4 requirements of S.24 must be fulfilled for it to be a confession.
 Statement to public prosecutor. Will this be valid? It will not be under point number 4 under
S.24.
  The chance of acquittal in Indian laws is upto 90 percent. Why would accused confess? That
is why it is a very special thing.
 Thus courts very doubtful about using it.
12/8/20

 S.28 says that just because an inducement was there for his confession, it becomes
invalid, at a later point, the inducement was removed, it is relevant.
 There are two ways to this. Firstly by lapse of time. Second ground is that in between that
someone in authority has clarified thataccused has no obligation to make a confession,
still makes a confession, it is admissible.
 S.29 defines 4 grounds which does not constitute inducement. First is promise related to
maintenance of secrecy. Confession through deception is fine. How evidence is procured
is not relevant. If confession happens when he is drunk, it is admissible. The accused in
answer to some questsion answers itand thus confesses, will be admissible.
 24, 28 and 29 have to be read together.
 S.164 and S.281 are relevant in confession. S.281 details the process of the confession
under S.164..
 S.25 states that no confession made to police officer will be valid.
 Issues under S/25-
 Meaning of police officer - What is the power assigned to that particular person.
if all powers of investigation isgiven to that person, S.25 will apply. If power
assigned under special law, S.25 will not be applicable
 Relevant time for determining confession. A person is charged for a crime and he
confesses, it will not be relevant. A person is not charged as an accused, but then
X comes and confesses to the particular crime, this confession is invalid. Because
the relevant time is when this has to be put through the court.
 Status of person giving the confession is not relevant. This is because police
officer can make anyone confess.
 S.26 shoud be read separate from S.25. Confession made by accused while in custody of
police officer is not admissible, unless made in immediate presence of magistrate..
 Arrest deals with completet restraint of liberty and surveillance is custody.
 If phone has been tapped and a confession was made, is this in custody of police
officer? And is it invalid?
 The presence of police officer is not required in custody. The test for arrest is
about control whether police is controlling the person or not directly.
 Malkhani Case is relevant in tapping phone.
 Partial restriction v full restriction. Surevillance v complete deprivation of movement.
Differentiation between custody and arrest.
 In case of phone tapping, will S.26 apply.
 Issues under S.27-
 Whether fact discovered is only confined to discovery of material object?
 Whether it is necessary that discovery of fact should be by the person making the
disclosure or directly at his instance?
 Whether it is necessary that the accused must visit the spot with police & witnesses?
 Whether joint disclosure is admissible?
 Whether probative value of every discovery u/s 27 is same?
 whether 27 is an exception to 25 & 26?
13/8/20
  S.28 – once person acts under inducement, the inducement will nt last forever. The
prosecution has to prove at time of confession, there is no inducement.
 S.25- Confession made to police officer is not valid.
 S.27 – Section is based on doctrine of confirmation of subsequent event.
 4 ingredients of section-
 Fact should be discovered in consequence of info
 Accused must be in custody of police officer
 Onlyportion related to fact discovered must be proved.
 It must be relevant fact.
 If confession is made to police officer it is not relevant. S.27 is saying the confession is valid
under S.27. Confession is obviously valid to the extent of the fact discovered.
 S.27 starts with word provided. For example I may be possessing a weapon which itself may
be a crime. Prosecution may have failed to prove I did the murder, but possession of weapon
by itself is a crime. This is kind of a confession.
 Confession must be done on fact in issue.
 There is a possibility of confession in S.27.
 Every criminal case, S.27 will apply. In this section, there is high chance of doing illegal stuff
by police.
 There is no volunariness aspect to this section.
 The major contention in parliament case was that whether 27 is confined to physical object or
can mental object also come under it.
 Defense said that only mental facts cannot be admitted. A combination of the two can be
admitted. This is the subsequent discovery principle and settled principle.
 Prosecution was saying only mental fact is admissible. Even if physical object is not required,
only mental fact is admissible.
 The state wanted to prosecute Afzal Guru through the staements of Gilani. Gilani said mobile
phones were bought in name of Afzal guru but they were never found. Case of prosecution
was other accused was just abettors. Police came to know that whatever gilani said is true.
 Doctrine of confirmation by subsequent investigation was the principle taken by prosecution.
IO can use other corroborative that accused’s information is correct. Pg 124 2 nd para, 4th para.
 Puttaya case was silent on this regard and this must be regarded. If mere mental fact is
accepted, there is problem if that torture is happening it is very easy.
 Pg 125 3rd para, the word discovery has two meanings. Jethmalani said that both the facts
physical and mental are relevant. When information is given by person, he is relying on his
own mental knowledge and anything which is discovered is the physical object. The
knowledge of the accused is the physical manifestation.
18/8/20

 Thebasis of argument by prosecution is basedon 2 elements- first IO starts investigation and

finds that his statement was true without procurement of physical evidence.Second, IO has
some object, accused says the connection with the crime, thus state of mind is important.
 What is the problem in saying that if I wanted to take revenge from Mr.X purchased gun from
shop of Y, shot X in market, X died. I hid the gun inside the locker.
 Hidding the gun inside the locker is obviously admissible under S.27. But is his purchase
relevant under S.27?
 The word discovery is about future. It is not about past. Anything discovered furture, that I
have given the statement and then it is discovered. Buying of the gun is a past transaction and
is not a discovery.
 Dhamu case and Iniyatullah case –Page 132, 2nd last para.
  Application of 27 is very very specific. Actual physical object is relevant.
 Just because something is admissible under S.27, does not mean that the probative value is the
same for all. When accused is taken into the spot of discovery and not taken into the spot, the
probative value differs.
 Is joint disclosure admissible? Joint disclosure cannot be at same time. They haven gone for a
joint approach.Joint disclosure is possible and once it is discovered.
19/8/20

 Section 30 is not a substantive evidence. The word MAY is very important in context of
evidence. This is conculsive evidence it is not binding on court.
 They should be jointly tried for same offence, abetment is also included in this regard.
 S.10 is like S.30.
 If on person is arrested and confessed and there is arrest of other persons, the confession will
not be substantive for the other accused.
 S.30 is evidence which is corroborative value and high probative value. Further corroboration
is required for convicting the other person.
 S.30 is applicable for the other accused while S.27 is limited to only the accused.
 S.30 will be applicable for the co-accused or someone who is not giving the statement.
 S.32 is an exception to the usual course of the evidence act. S.32has no verification as
statement given by person cannot be called as witness.
 Category of person under S.32
 Dead person
 Cannot be found
 Become incapable of giving evidence –mad, stroke etc.
 Attendance cannot be procured without delay or expense- a person living in America
for giving evidence for a case.
 Nature of statement under S.32. Probative value varies according to nature of statement.
 Dying Declaration
 Made in the course of business
 Against interest of maker
 Opinion as to public right and custom
 Relates to existence of relationship
 Made in will or deed relating to family affairs
 Document relating to transaction]
 Feeling expressed by several persons.
 In S.8, S.9 and S.10, all the evidence has the same probative value while in S.32 there are
different probative value.
 Dyling declaration has the most probative value.
 On the basis of dying declaration, peope have been convicted.
 Dying declaration based on principle of Nemo Moriturns Proseumitur Mentiri – A man will
not meet his maker with a lie in his mouth.
 This principle is on the basisof endorsing the religious belief and what is inside the mind of
the person.
 Narayan Swami Case.
 When will court consider the statement as dying declaration as the section is very wide.
 Nexus with the death of person is important.
20/8/20

 In india, eve if person is not anticipating death, he can give dying declaration.
  Types in S.32-
 Relating to cause of death
 Ciircumstances of Transaction which resulted in death. The person will narrate some
circumstance and does not know about death.
 Circumstances-
 Expectation of death
 Not under expectation of death.
 Pakkala Narayan Swami v Emperor
 Dying declaration can also happen in suicide at some point of time can also be taken into
consideration.
 Facts of case- there was a pune in the service of the diwan. She had some affair with this
peon. She was married off to someone else. The wife took money from the peon. The peon
went to this place telling his wife about this debt and that he was going to get it. he left for the
house on a particular date and his body was discovered in a train compartment in a trunk.
 The statement is given to the deceased to the wife. The problem was is this related to cause of
death. The statement was given to court whether it is dying declaration of the deceased.
 The police connected accused with the trunk. The carrier said he saw someone carrying the
trunk.
 The technical issues regarding dying declaration was said. Para 8-
 Circumstance of transaction resulting in death is not analgous to circumstantial
evidence. It is not as broad as circumstantial evidence.
 Circumstances of transaction narrower than res gestae. Prosecution will try to give
case under S.32 because it is narrower, not applicable then S.6 will be applicable –res
gestae, 157 will be applicable.
 Mere fear or suspicion is not included in circumstances of death.
 The court has mentioned that he has gone to meet a particular person may be considered as
dying declaration. This case is there in 2nd category of type and 2nd category of circumstanse.
 If the circumstantial evidence was not there inthis case, it may not be dying declaration. The
court usually need corroboration for the the 2nd type of dying declaration.
 Manager of sushant. She said “she was raped by mr.X” in her personal diary. After 2 days she
committed suicide. Can court convict person?
 A person commits suicide but just because there was a major incident does not mean it was
the cause of the suicide.
 Dying declaration isrelated to only one aspect of the case.
 In suicide there must be some incident where there is direct nexus with the death.
24/8/20

 Relevant statement under S/32.

 Even though dying declaration is hearsay evidence, it can used to convict a person.
 The rate of acquittal for suicide is very high.
 Intention to give statement is not relevant.
 The intention is not important because there are no conditions for recording dying
declaration.
 It is only applicable to maker of statement. It is not applicable to anybody else.
 Queen v Abdullah- dying declaration taken through gestures.
 Corroboration is not required. If the court has some doubt, it can use corroboration. – Khushal
Rao.
 Statement given to family member is preferred over the statement given to doctor. This is
because doctor may only have technical knowledge, whicle family can understand better.
  Shorter the statement, better the dying declaration. If it is a longer statement, it has too many
facts which is not favourable. But court will take also.
 If prosecution presents a case where it is not according to dying declaration, it means that it is
a case of defense.
 The dying declaration must be admitted where it happens in first in point of time. The court
has also taken multiple dying declarations which corroborate each other. There also cases
where court has taken dying declaration given later rather than sooner.
 If there is a clear contradiction of the dying declaraions, it will be a case of defense.
 Child die at 3 years old. He dies and gives dying declration. This will be question of the
competency of the person.
 Time ill be corroborative but the event is more relevant.
 A person was stabbed and he said Person miraculously survives and he said he was in
anticipation of death. Whether it will be applicable under S.21, first exception? In admission
it will be against himself. If the person is saying that he is stabbed by someone, he is not
admitting anything against himself.
 If dying declration not applicable and person survives, S.6 will be applicable because it tis res
gestae. The moment contemporarenoness comes, we can apply S.6.
 S.11 can also be applied.
 S.157, S145 will be applicable.
 Person stabbed by X. Mr. X comes from alibi, which will be admitted by S.11.
 Anything which is in course of business and has died it will be relevant under S.32(2). if the
person dies, it will be relevant under S.21.
 S.16 is normal relevant fact and needs cross examination and stuff. S.16 is better option as it
requires verification.
25/8/20

 Person has commited wrong and not qadmit. Person will admit wrong and has admit. Person
has not committed wrong but still says he has committed.
 Suit for damages is for compensation. Pecuniary is about allegation for a sum of money.
 Between 32(5) and 32(6), pedigree evidence-
 Oral or witten (5) but only written in(6)
 Statement of deceased or otherwise in (5) but in (6) evidence of thing like will, family
tree etc.
 (5) is about relationship between alive or dead (6) is only abour if both are dead.
 This section can be applied in cases off NRC-CAA.
26/8/20

 S.34. meaning of book is what is important. In corporate cases, this will come into effect. It
should be some formal book an not just random piece of paper. It is corroborative factor.
 S.35 should be in public record and recorded by public servant. S.35 applies whenever the
record of person is in dispute. CAA-NRC is gonna be applied here
 Osfication test under S.45 can be used to counter this S.35.
 Whenever this is difference between S.45 and S.35, S.11 will come in.
 Under S.35 it is either a public or qa person who is delegated this power, like person
collecting census.
 S.36 is on relevance of statement in maps, charts and plans. India and Nepal and China are
having questions on the occupation of territory.
 S.37 is a useless section.
 S.38- statements in laws contained in books.
  S.39- only the controversial parts must be produced. And the context must be clarified.
 S.40-S.44- Relevance of Certain judgments of court.
 In rem is applicable against entire world while in personam is applicable to only the parties
and privies.
 Privies can be of three different types-
 Representative character or privies in interest.
 Blood
 Privies in law.
 S.11 of CPC and S.300 of Crpc said in S.40. Res judiciata.
 S.41- once something is decided in this case, it means that it is conclusive proof and that the
court will not take into effect any further evidence on this. In this section it has said
conclusive proof. Cases in this are-
 Probate
 Matrimonial
 Admiralty
 Insolvency
 S.41 has said conclusive proof. S.44 is dealing with using fraud and collusion to provide
evidence, section won’t be applicable S.40-44.
 S.42, other than the 4 subject matter, if something is relevant and not conclusive additional
evidence can be adduced.
 S.43, judgement not part of S.40,41, S42, it will not be relevant. If subject fact in dispute is
fact in issue or relevant act in a subsequent case, it will be applied there.
 Factum valet- valid in fact is valid in law.
 Once a status of the person is decided, it is not applicable in another case unless it is covered
by S.42. Just because it has been approved by someone, does not mean that it is acceptable for
everyone. Thus it is irrelevant against another a
27/8/20

 S.56-S.157 is about the method required to be presented in court.

 2 methods of presenting- oral and documentary.
 Every fact must be positively proved in court.
 There are three facts which need not be proved-
 Judicially noticeable fact (56 and 57)
 Admitted fact (58)
 Presumed fact. (4)
 Three lines of enquiry for evidence-
 Analysis of whether content is relevant as evidence.
 Whether formal proof is required or not required.
 if the fact doesn’t fall in the three categories, formal proof is required and thus 55-157
kicks in.
 Judicially noticeable is something that is within the knowledge of the judiciary.
 Common knowledge- things court can take into account things everyone knows
 Special knowledge- knowledge court can take like cases and notifications.
 Policy of Govt.
 Trend-knowledge related to inflation and relation between and and relation.
 Impact of event- bandh.
 General practice- under valued sale deed. Court is takig something which is practice
 Custom- once the custom is proved, we don’t need to prove it again.
  Anything published in newspaper is not evidence. It is not binding on the court. Newspaper
can be a source of information if it deals with a settled position of law. to qualify for
evidence, there must be evidence of that particular thing.
 The court will not take notice of something personal between parties, it will be something
related to public policy.
 S.58, anything which is admitted need not be proved. Admission can be done before or during
the hearing. The court can also say even if evidence is admitted, the court can ask for formal
proof of the evidence.
 What is the difference between the admission before and admission in S.58? If a fact is
admitted a particular fact and other party does not contest it, it is admission. Why cant it be
S.17? Express admission in S.17 and implied admission in S.58.
 Main Difference in S.17 and S.58 is that evidence v procedure. S.17 is substance and
procedure.
 S.58, agreement to admit is that 2 parties can agree in writing and that can be applied in S.58.
31/8/20

 Any kind of reference from 5-55 is an issue of relevancy. The focus is the subject matter. In
S.58, it is a matter of procedure. S.58 deals with admissibility.
 Probative value has no difference here.
 Admission substance cannot be waived off but procedure may be waived off.
 The party considers that a particular thing is relevant, the court can consider it irrelevant. The
court can make a particular fact relevant on its own motion. S.58 does not have any discretion
with regards to S.58 and does not usually use its discretion
 S.58 is pleadings while S.17 is evidence. S.58 is conclusive while S.17 is estoppel.
 S.58 is about a particular litigation, S.17 may apply in subsequent proceedings as well.
 Once a proedureal right is waived off, it is waived off forever. If a party under S.17 waives of
a right, court can correct that. S.58 even if party waives off, court will not interfere unless it is
extraordinary situation.
 In written statement, every statement may be categorically denied or admitted that is alleged.
 A fact that is presented in court of law
 For the purpose of S.58, if I have missed something in written statement, it will be implied
admission under S.58. The court will not consider it under relevancy of facts.
 In presumed fact, there is presumption of fact and presumption of law.
 Presumption of fact is discretion that lies in hands of court. , it is natural presumption based
on normal happening of life.
 If court has taken presumption, it will be binding on the parties.
 Stolen property recovered from person, court may presume that person has stolen the
property or deals in stolen property.
 In presumption of law, choice is not given to the court. It is not a naturala presumption and is
an artificial presumption.
 S.112, child born during 280 days of dissolution of marriage, the person is father of child.
This is an assumption, the court is forced to make.
 As a matter of policy, with regards to consent and rape, there is an artificial presumption by
the court.
 Presumption of fact is uncertain and transitory. Particular judge may consider it is enough for
raising presumption while another judge might not. Presumptiton of law is certain.
 Between presumption and burden of proof, only one will apply to a party at a given time.
 In case of criminal, beyond reasonable doubt while for civil it must be based on
preponderance of probabilities.
  The more serious the offence, the higher the standard of proof. The weightage of beyond
reasonable doubt depends on the seriousness of crime.
 S.101 deals with burden of proof.
 In S.102, on whom burden of proof lies.
 S.101 is burden of proof but S.102 is onus of proof.
2/9/20

 If there is a presumption, burden of proof is absent while if there is burden of proof there is no
presumption.
 S104- Burden of Proof
 S101 and S102- S101 is about establishing the case while S.102 is about adducing specific
evidence. If no evidence is given, S,102 will be applied. S102 is referng to specific evidence.
 Proseuction is always on S101. S.102 can be used by defense for rebutinng what the
prosecution says. Then defence can give another evidence under S.102 because then the
burden is on it. like this the process continues.
 S.102 and S103- when fact is presented, it is applicable under S.103 and under S.102 it is
evidence, S is about case.
 In illustration 1, where A prosecutes B for theft, and wants the court to believe that B
admitted it to C. We want the court to believe there was admission and tat we have to prove it.
C has not been called to the court of law. our discussion is confined to that there was an
admission. If court agrees, it can call C to testify. I have to prove this admission through
evidence because if not, the court may not call C.
 In illustration 2, B wants the court to believe that he was elsewhere at the time of an question.
He must prove that he as elsewhere by producing ticket. Mere documentation is no evidemce.
We tell court that we had a person with us. Thus it is under S.103. the moment court calls
person, it is S.103 who is subject to cross examination and verification.
 Difference between these section is betwwen case, evidence and fact.
 S104- burden of proving fact to make evidence admissible. For dying declarataion there must
be death. For secondary evidence, you have to prove that why secondary evidence. If
something written in side of mountain, you have to bring a phot. If server has file in it, it can
only be photostated or copy taken, server cannot be taken.
3/9/20

 S.101- The one who files a case has to prove the entire case. This particular burden is always
on plaintiff or prosecution. Substantive law is applied and this burden will not shift. It is the
collection of cumulative facts
 S.103- Burden of proving relevant fact.
 S.102- Evidence. Proving actus reus and mens rea must come under this. The cumulative total
of this will be taken in S.101.
 Defense and prosecution will keep on countering each other in S.102.
 The order is S.103, S102 and S.101.
 S.101 will not be applicable for defence. S.101 is only applicable to prosecution.
4/9/20

 If there is a specialized section, S.101-S103 will not apply.

 S.105, burden of proof will apply to defendant. In general exception, it is on accused.
 The prosecution has given initial burden u S.101, whether defense should question
prosecution case or should we do general exception?
  I as Defence will try to question the case of the prosecution. Then I will try to argue on
general exception if this questioning is not accepted.
 But can we first use the general exception, so that it lends more credibility to the case. Rather
than first questioning the case.
 General exceptions are two kinds – excusiable exception and justificable general exception.
One is that the defence is excused while in the other one the act of defense is justified.
 In excusiable, it is mistake of fact, accident and doli incapax, I was not able to comprehend
the action I did and thus it is not within my control. In these I am not going into the merits of
the case, I am not in position to understand. If it is excusiable, it makes sense to argue it first.
 All the other cases are justifiable acts, like private defense. I am trying to justify my position
by saying that my act is justified.
 KM Nanavati Para 41.
 The 3 cases-
 The first is where there is a presumption of guilt. Section 4 and 5 of old Prevention of
Corruption Act. Taking bribes was covered under this. There was a presumption of
bribe. The burden of proof was on defendant.
 He has some special privilege under law. S.77, S.78 of IPC. It is about giving
protection to judges and officer of court. This empowers the judge even if mistake
was committed by judge, they will not go into the merits. Because of the position I
am exempt from liability. It is the whole paragraph.
 This cases deal with all the other cases involving general exception.
7/9/20

 105-114, there is a specific buden of proof on a person and not on both sides.
 S-106- Burden of proving fact especially within knowledge.
 If court presumes a particular piece of fact and if I cant rebut that, I may be convicted.
 Upto a particular point, the facts are not disputed. If the accused wants to change the burden,
he has to prove that himself.
 When the fact is specially within my knowledge, I have to absolve myself from the incident
by rebutting the proof.
 This section can even instances decide the entire case. For example in a hit and run case,
burden of who was driving the car cannot be rebutted, res ipsa locquitor will apply if he
cannot rebut this presumption.
 Shambu Nath Mehra v State of Ajmer.
 Govt servant and said he travelled from one place to another and went for
reimbursement.
 Question whether he travlled.
 Court said he had to prove that he travelled.
 Court held in this case, that the world SPECIALLY is the most important word. This
knowledge of this fact must be with a particular person. It can be either of the
defence of prosecution.
 The railway authority was better placed at that time because it used to record the
names of the passengers. Thus burden was on prosecution
 Specially must be interpreted as exclusive.
 A person is found without a ticket, the burden of proof that he wa travelling the ticket is on
railway authority. Is that possible? Yes, there must be some kind of entry in some ledger or
something. Example in relation to 100 years back.
 If there is a case of accident, person dies presumption that person has a ticket and railway has
to prove it didnt have.
  2 persepctive of S.106. Practical approach and theoretical approach to the subject.
 In real life, the practical approach will apply. There will be an adverse presumption if you do
not have a ticket in a train.
 In Sucha Singh v State of Punjab-
 Clear evidence about abduction and dead body recovered.
 Whether all should be charged with murder?
 One person gave appeal that he only was there till abduction, not murder.
 Every abductor should be charged with murder, because if one offence is proved and
the other offence is connected, it means that second offence will also be presumed if
it is not rebutted expressly.
9/9/20

 S.108- person not heard from 7 years, he is presumed dead.

 S.107- burden of proving death of person known to have been alive within thirty years.
 S.108 is to be taken as a proviso of S.107.
 S.108 needs a specific evidence that him being alive must be known of someone who must
naturally hear from him. The person saying that a person has died must prove this by bringing
the family members who have not heard from him.
 3 limitations of S.108-
 Circumstances of death
 Time and date of death.
 This section will only arise in a legal dispute.
 LIC v Anuradha
 SC taken up disputes from consumer forum.
 A person took insurance and he suddenly disappeared. He was not heard of more
than 7 years.
 Nobody paid the premium for that particular policy because the person was not heard
of.
 Legal representative said that there is presumption of death and they must pay the
amount.
 Insurance policy had a clause that premium had to be paid regularly for the policy to
be in force.
 Consumer court said that it consumer has right and LIC appealed.
 Consumer court said that this clause will not survive because of established rule of
evidence.
 SC said that this clause will survive as there is no presumption to date or
circumstances of death of person. The policy required a normal death and the policy
lapsed cause of non-payment.
 Lex fori- law of the forum. When case cames into court, the law will apply rather than the
agreement.
10/9/20

 S.111 – Proof of good faith in transaction where one party is in relation of active confidence..
 Age, nature of contract, financial situation, relationship of parties is relevant to determine
who is superior and inferior.
 Between husband and wife superior and inferior will not apply.
 1. Status and background of person is very important and a person with more experience will
be considered as superior. 2. Capacity in which person is relevant. 3. Age is relevant.
 Age should be read with the mental condition of the person.
  The vulnerability of the person must kept in mind.
 If it is a settled position like doctor and patient, doctor is superior. If position is not settled,
thus other factors are relevant.
 The power to dominate is very decisive in determining these relationships.
 In workplace, employer is superior and employee is inferior.
 John Doe v Brandis University- US case in teacher student relationship.
 Is a student teacher relationship valid? There will be a burden of proof on teacher. T can be a
totally valid.
 It is a rebuttable presumption under S.111.
 Transaction in S.111 has been interpreted very broadly. Transaction thus includes everything.
 S.111 must read with regard to the policy of the organization.
11/9/20

 Dipanwita Roy v Ronobroto Roy-

 Husband had filed for divorce and said that the child was not his because wife was
living in adultery.
 Issues in the case.
 Firstly, that there is no conflict between Gautham Kundu and Sharda v Dharampal. In
Gautham Kundu, blood test for determining paternity should not be ordered as a
matter of routine. If application is made for blood test, prayer cannot be entertained.
There should be strong prima facie evidence that husband has no evidence. The court
should consider which will brand child as bastard and woman as unchaste before
taking decision. Nobody shall be compelled to give blood test. Sharda v Dharampal
said that a blood test may be conducted if paternity is questioned. There is no dispute
between these 2 judgements.
 Highest standard of evidence is required for non-access.
 Conclusive proof v reliable scientific evidence.
 Guidelines for passing order of DNA.
 S.112 is based on the fact that the interest of child is of paramount importance. Any standard
which favors legitimacy of children, the court is very liberal. If it is against the legitimacy of
child, court needs highest standard of proof.
 For S.112, there should be continuance of marriage or under 280 days of dissolution of
marriage. If it can be proved, husband had no access presumption can be rebutted.
 Legal fiction does not matter if fact exists or not, court will go with it. For presumption of
evidence, it is a rebuttable evidence.
 Choice is given to woman by court. If woman goes for dna test, it can be determined
conclusively. If woman does not, there may be adverse inference under S.114. S.112 is
conclusive proof while S.114 is rebuttable presumption.
 The court will check if there is prima facie access for access. Court will check whether child
should be branded as bastard. If court wants to and woman does not want to, court may draw
a adverse inference under S.114.
15/9/20

 It is artificial fiction based view rather than logical point of view. It is for protection of child.
 Between valid marriage of mother and any man.
 What is valid marriage? Respective person law will apply. Factum valid- there is possibility
of raising presumption of marriage. Man and woman are living together and people think they
are married. Presumption of marriage is not valid marriage. The valid marriage for legitimacy
 of child, the court has gone for very liberal interpretation. Thus factum valid marriage is valid
marriage for this section.
 280 days is maximum time that fetus is born. Rule of trimester is followed.
 What is access? Every kind of presence will not qualify for opportunity. It natures open
offence to offence. Should access be interpretation as opportunity? It is not proof of sexual
intercourse but an opportunity. Whether staying together is opportunity? Yes. When a man is
inherently not capable, court may look at it as non-access. Burden of proof should lie on
individual who makes allegation basically husband. The court has said highest form of
evidence must be presented, not even proof beyond reasonable doubt.
 Sethu v pilani, woman married in Oct., 1903, divorced at June, 1904. She remarried at
July,1904. She gave birth in couple of months of second marriage. Who is father of child?
There is two arguments- first that child born on valid marriage with second marriage and that
second husband had no access at first marriage. Second argument that child cannot be born at
two months after valid marriage and second marriage had no access.
 Section is only considering that husband had access to wife, not that wife had access to other
men.
 What is relevant – time of conception or birth? The begotten is relating to no access, and not
related to presumption. The time of birth is relevant.
 Rule of interpretation- continuance of marriage or 280 days. Or is maybe mutually exclusive.
S112 must be interpreted as mutually exclusive. 280 will apply only if there is no valid
marriage. The title of the section will help in interpretation of the section.
 Second husband must be father of child. Why? If man marrying woman knowing she’s
pregnant, second husband must be father of child.
 If marriage is voidable will S.112 apply? Till the kind of voidable marriage is not there, the
marriage is valid. If you look from family law, there could be repercussions but would not
apply to evidence. Husband after marriage comes to know woman is pregnant and he can
decide whether to continue with marriage.
 Marriage is voidable and women has given birth after 5 months in voidable marriage.
Husband becomes father of child due to S.112. But husband can raise voidability of marriage
because it will prove that wife had access.
16/9/20

 Legal fiction is something where that a thing that did not exist, there will be presumption of
existence. S.112 is not legal fiction but presumption based on certain conditions. If we
consider S.112 as legal fiction, there will be no rebuttal.
 If there is proper scientific evidence and presumption, scientific evidence will be considered.
They have taken gautham kundu judgement and said that dna test must be given looking at
into all circumstances.
 Final outcome of Dipanwita Roy Case- if the court has drawn presumption against the wife
under S.114, has the presumption under S.112 been rebutted? S.112 presumption will not be
rebutted. S.114 is rebuttable in nature and not conclusive. Wife will still have chance to rebut
the inference under S.114. The rebuttal by wife will come on the question of access.
21/9/20

 Method of Proving. Essentially a question of admissibility. Through oral or documentary

evidence.
 Whenever there is clash between documentary evidence and oral evidence, documentary
evidence will prevail.
 Anything produced in court of law will be oral evidence as the material must be explained.
There is another view that this is material evidence.
 Proof by documentary evidence- private, public and electronic record.
 Electronic record is anything in electronic record.
 Is the paper document or the matter written within document? The matter written is
document.
 Public document – Article 12 definition of state. Three organ of state or the agencies of the
three organs. Whether every government institution can be public document? It will come
into clause (2). Any document prepared by state and any record that state has.
 75 says that every state which is not public is private.
 Public document is made by public servant in official capacity while private made by
individual.
 Public record is available of document
 Generally public document is proved by secondary evidence while private is proved by
primary evidence.
 Genuiness of public document is presumed and if private record if 30 years old is considered
genuine. For electronic record, 5 years is considered very old.
 I don’t have authority to check document but I go there a provide a certified copy of the
document. Is this admissible?
 Illegally obtained evidence is not admissible in case of public evidence.
 The sections you can go through. It is related to the certified copies.
 S.78 –document published by that dept. can be proved in court by that department.
 Private document is usually under scanner.
 S.64- Best evidence rule. The document may be proved by primary evidence.
 S.62 Primary evidence- document itself is primary. Document may be in several parts. 5
people have taken joint property. One agreement will be there and 5 photocopies with sign.
Or 5 separate agreements and each one will be original document. Counterparts is that certain
rights in one document while other rights in other document. Before, lease deed one part of
lease agreement was with lessor while other part with lessee.
 One original 100 copies. Each photocopy will be primary in respect to each other. It will be
secondary in relation to the original deed.
 I have a primary evidence, I have photocopy, I made photocopy of photocopy. The photocopy
of photocopy is not admissible in court of law.
 I have only photocopy, I made photocopy of photocopy. Tertiary evidence will not be
evidence. It will only be accepted if taken as comparing of original document as secondary
evidence.
 Court may call an expert to verify with help of expert because it is a mechanical process.
 Relevancy is about content, admissibility is made about matter which it is produced and
authenticity is how the expert can verify it.
 Secondary evidence –S63.
 There is practical difficulty in producing primary evidence or the person may have a problem
producing it.
 Any kind of copy from original may be secondary.
 Document divided into compulsorily attestable and non-attestable. 68-71 deals with
compulsorily attestable documents. 68 applies when attestable witness is available. When
attestable witness is not available, 69 will apply.
 If somebody has seen the person executing the document, he will be evidence of the event
taking place. If he is not available, the handwriting will be checked. S.71 may apply if
attesting witness does not remember.
  If S.70 applies 68,69 and 71will not be applicable because there is no dispute as to the
attestation of the document and the parties admit they did it.
 S.72- Verification of secondary evidence
23/9/20

 Non- Ambiguous documents are in S.91-92 and 94. General rule that if document is present,
no oral testimony is allowed – S.91 is rule of best evidence.
 Probate is there, the will won’t be considered.
 Exceptions where oral evidence is permitted. Idea is when the authenticity of the document is
in concern, oral testimony can be applied. Basically anything which vitiates the contract.
court may permit oral evidence for a gap in the evidence. If document itself says oral
evidence must be relied, it can be relied.
 Ambiguous documents, 95-100 sections are applied. If there is more than 1 meaning in the
document, external help will be taken.
 Patent and Latent- on the face of it or apparent it is patent. If expertise is needed it is latent. In
documents, patent is one which the error cannot be rectified while latent defect can be cured.
For latent defect, oral evidence can be used.
 S.65, S.66- Important provisions of secondary evidence. Look at the exceptions in 66 where
notice is not required.
 Proof of Electronic Record- 65A and 65B. Faisal’s Favorite.
 Malhani v State of Maharashtra- Manipulation of data by medical professional in case of
unnatural death. This bribe was uploaded in mobile. This was heard by police officer.
 Legality does not matter. Court has laid down the admissibility of voice recording which was
valid.
 SC is still not sure about the admissibility of electronic record. Whether evidence is primary
or secondary? If you record a live event of fight in mobile phone in court of law, is it primary
or secondary? It should be primary.
 Instead of mobile phone, I copy it in thumb drive and gives to court. Is it primary or
secondary?
24/09/20

 65B is the method of proving electronic evidence.

 Look at the chart in the slides.
 First show it is computer output. Then process must be fulfilled and then it must be certified.
 Tomaso Bruno v State of UP- 3 foreigners, came to India, took accommodation in Varanasi.
It was a suit. 2 of them went to a holy visit. They came back and realized that 3 rd person was
unconscious. They took to the hospital, pronounced dead. There was a case of 302 against
these persons. There was a motive to kill as there was love triangle. The 2 who went out could
not fulfill alibi. There was medical evidence which corroborated the argument of unnatural
death. High court convicted these people. Explanation of alibi, adverse inference,
circumstantial evidence.
 CCTV was installed outside particular room and thus gap in evidence. This was taken to
evidence. Defense argued that it is a very vital piece of evidence. SC agreed since prosecution
did not provide it, they acquitted the accused. Adverse inference under S.114 was taken and
thus it was decided against the prosecution.
 Generally accused is not handed over CCTV footage. Theoretically he should have been
unless he has control of evidence.
 Anvar v Basheer- a political case in time of election campaign in one of the campaigns in
political parties, a song was played which was defamatory. Song was played through cd and
 played in public. Some person recorded this in mobile and provided it in court. There was no
certification. The court rejected it as there was no certification. They said navjot Sindhu was
decided wrongly. If it is secondary evidence,
 If the cd itself was provided, would it be admitted? Is it primary or secondary? When we look
at the technical aspect, the binary code is primary while others are not. But legally it is not. If
I record something in my cd it is primary. Why? The court is interested in the source. Court
never expects that you should track down the first place where it was played. In this case cd is
primary as it is where the cause of action arose.
 There is a printout which is defamatory. It is recovered from accused. Is it primary evidence?
It cannot be primary evidence; it is problematic whether it would be even secondary evidence
under S.65B. The printout is not electronic record as it is a printed material and documentary
evidence.
 Sonu v Haryana- 65B is a matter of procedure.
 Shafi Mohammed- crime scene recorded in device. Not every case, there is need for
certification.
 Arjun Pandit Rao case- they have overruled shafi Mohammed and Tomaso Bruno.
 Navjot Sindhu don’t read.
 Who should give certification? How to collect call records?
 Relevancy is about content, admissibility is 65B, once it is admitted it will be sent to lab for
genuiness. The proof of content is different from admissibility of content.

25/09/20

 Proof of Oral Evidence. Oral evidence is substantive evidence. It is problematic.

 Oral testimony can only be give when documentary evidence is not there or for explaining
documentary evidence. S.59 and S.60.
 Issues- Competency, Compellability, Credibility and Content Appreciation.
 S.118- everyone is competent as long as she understands the questions and can give rational
answer. The exceptions are there. It is not related to mental competency but rather than the
age. Child testimony is an issue.
 Rameshwar v State of Rajasthan – Child who was raped. Whether child is competent witness?
The court said that the statement was morally enough but not legally. The SC said that the
child is competent. The child was not sufficient maturity to understand the oath. But this does
not mean that competency was affected, only credibility is affected. As a rule of law,
corroboration may not be required but can be applied as a rule of prudence. It should be
interpreted through current times and the upbringing of the child. Court should check whether
the child was tutored.
 Bhagwan Singh v State of MP – Go through the cases.
 S.119–Disability. Can a person who is deaf, dumb and blind be a competent witness?
 S.120- competent witness of husband and wife against each other.
 Compellability of Witness- S.121-134.
 Judges and Magistrates cannot be compelled to be a witness. Judge cannot be asked to explain
why he/she interpreted the law this way. He can be a witness if the higher courts ask for a
reason by an order. –S.121
 Communication of personal communication between marriage cannot be compelled to give
information- S.122. Ram Bharosey v State of UP. Everything confusing is ornaments. S.122
will not apply to the statement in the PPT. the court said that this is conduct rather than
communication. It is a narration of the things and some things are conduct while some are
 communication. The first part is conduct. The second part is actually communication. But the
first part is the one which was relevant.
 MC Varghese v TJ Ponnan- Defamatory statement was given by husband to wife. Trial court
said that there was no publication as communication is protected under S.122.
Communication from husband to wife is publication.
 Once the consent is given, the parties can be compelled to give anything in the court of law.
There must be written consent by parties as court prefers this to verbal consent.
 Existence as to Affairs of state- State of UP V Raj Narain- should security details of Indira
Gandhi be disclosed? What is affairs of state? S.123 is read w S.162. Sodhi case guidelines is
read. Anything which is against public interest may be affairs of state. 19(2) of Constitution.
 124 is confined to official communication. It is restricted to official record. 123 is a matter of
discretion while 124 is the higher officer.
 Who will decide which is affairs of state? The government can say it is affairs of state. What
should come or not come in court of law is in the hands of the executive. This is problematic.
 S.125- Information as to commission of offence. Police cannot be compelled to say who is the
reliable source for crime. This has good parts and bad.
 S.126- Professional Communication- When you are acting in the capacity of advocate, if there
is any communication by client of guilty act, it cannot be presented in court. Future crime and
any crime after employing you are exceptions.
 S.131 -no one can compel you to produce documents.
 S.132 Witness shall be compelled to answer all the question that are put to you. On that
answer which person will give, he will not be subject to any prosecution. The statement which
was given by witness will lead to further investigation and then the person will be arrested.
This will be a new case.
 S.133- Accomplice is a competent witness. Balwant Kaur v Chandigarh. No conflict between
S.114 and S.133. Corroboration is required for admissibility.
 S.134- there is no minimum number of witness.
28/9/20

 Factors for deciding credibility of witness- whether they have means of gaining correct
information, where they have interest in concealing truth and whether the testimony in
general is believable.
 S.135- Order of production and examination of witness, Order 17 of CPC and Section 18, 19,
20 and 21 of Crpc as to how to present a case.
 S.136- Power of Judge to determine admissibility of evidence. The rule is in favor of
admissibility. Arjun Panitrao is a case for admissibility of S.136.
 S.137- important. Examination in chief, cross examination, Re-examination.
 The witness usually gives written statement. Examination in chief is the statement spoken by
witness in court. Cross examination is a subject matter of verification. Usually something
new comes up in cross examination. Relevant points for cross examination in the slides and
also look at the cases in the module.
 Nature of question- leading and misleading. Leading question means that the answer is in the
question. In real life, there are 2 questions open ended and close ended. Open ended is a
question is like what is your experience in life while close ended is where were you
yesterday? Open ended questions are used in examination in chief.
 Lawyers usually listen to the examination in chief and use questions which have a yes or no
answer.
 Court will lead what is leading and misleading questions. Usually lawyers object to
misleading questions. Misleading is basically questions which are not connected with the case
 and just not restricted to questions which jeopardize the witness. More questions put to the
person, the persons tend to be exposed and may make mistakes.
 Subject matter of cross examination. Can cross examination be restricted to examination in
chief or can it be extended further? What has been narrated in examination in chief has to be
verified in cross and apart from that some other aspects can be asked. What are the other
aspects?
 S.146 is important. Any question which tests the veracity? To discover who the person is and
check his status in life? The character of the witness has to be checked? In rape cases, it is not
relevant.
 How character is different from S.52-55? Character under 52 is related to subject matter while
S.155 is related to the impeaching the credibility of the person regarding as a witness. 52 is
regarding the accused while 145 is in regard to the witness.
 Admissibility of Unfinished Cross. If cross-examination is not completed and the person dies,
considering other facts and circumstances if there are evidence to collaborate, it is admissible.
Case is there in module –Madhuri Jhelan case.
 Cross between defendant. 5 defendant and plaintiff. If defendant no 1 examines plaintiff, is it
binding on other defendants? It is not, because they will be represented by different lawyers
and should have a chance to cross and examine.
 Effect of non-crossing- even if there is no actual cross, the requirement is that the person must
be given the opportunity to cross. If cross examination is not done, everything that has been
said in examination in chief is agreed to. There are two exceptions- the statement given in
chief it is completely un reliable, it will not be regarded. If the court feels that the cross
examination was not done properly, court will discard the evidence.
 Under S.165, power is given to court to ask question and act as a litigant in the case.
 Recalling of witness for cross-
 Expert witness and ordinary witness. A particular type of question can be put to the expert
witness and not to the ordinary witness? Can expert be asked a question of something which
is of some other case? Hypothetical question can be asked to expert as he says an opinion.
Opinion means that lawyers can ask the expert questions.
 Cross of person called to produce documentary evidence. S.139 means that the person asked
to produce document is not a witness and thus he cannot be called for cross. Why is he not
asked to where he got the document from? The place where the person got the document is
not important. He is not technically a witness
 Contradiction and Corroboration- S.145 and S.157. it is a part and parcel of every case. S.145
talks about contradiction of the statement. Opposing lawyer will try to apply 145 and say
there is a contradiction. While client’s counsel will try to fit it under S.157.
 Person has given something in writing and has said something different in court. Vishwanath
Prasad case. Admission is a substantive evidence, while contradiction is a question of process
and lawyer will try to expose the person in court.
 It is seen that statement is not 100 percent corroborative or contradiction. Whether it should
be admissible or not admissible? There is no standard formula as to the percentage of
consistency. For corroboration it should be substantially same.
 Court will look into the nature of contradiction, whether the person as witness is reliable or
not reliable – whether he is honest or did he comprehend the situation properly. If there is
major contradiction, court will not admit.
 Court will believe that consistency should be believed. Court would look into when a
statement should be given? It will apply to the time of investigation and inquiry. S.161 and
162 of CrPc are not evidence, it must compare with what the witness says in the court.
 Hostile Witness- Only court will decide who is hostile or not. At what point of time,
Application may be filed declaring him hostile witness? Person will be generally declared in
 case of prosecution witness. Before completion of cross, application of this must be given to
court. Only power with lawyer to give application to this regard. Public prosecutor will give
application if he feels that witness is speaking in favor to the other side. The testimony of
hostile witness will not be discarded and will only be used for corroboration with other
reliable evidence.
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 Hostile witness- S.154. The witness is saying something which goes against the party which
has invited him/her. The court then analyses the application of the party and determine
whether the person is a hostile witness. The person is declared hostile when he is suppressing
the truth or giving his opinion.
 In fodder scam case, the prosecution witness turned hostile. The prosecution did not file an
application for declaring him hostile and allowed him to go through cross examination. Then
the prosecution moved an application to declare him hostile. The courts rejected it.
 Privacy is not a ground through which a statement or information can be suppressed. If it is in
public interest it can be disclosed.
 Hostile witness maybe honest and even if he/she says something for the other side, they are
not automatically declared as hostile witness.
 Every contradiction is not about hostility. Contradiction is used by the defense while hostility
will be used by prosecution. Contradiction will be used in cross examination.
 Corroboration – S.156 and S.157. Can a witness be called for a fact which is not relevant
under S.156? Will the fact be a fact under 5-55? This is a question of procedure v substance?
The court will not allow anything which is not under S.5-55 as evidence in the case. In
procedure, there could a lot of questions to question the credibility of the witness. Thus the
subject matter of S.156 will not fit under S.5-55.
 S.157 is used when something is not relevant under S.5-55. FIR is not a substantive evidence.
The statement given by person corroborates to his testimony. Thus S.157 can be used to
corroborate. S.157 has to be connected with investigation. Thus it is either S.157 or S.145
which will apply for investigation. The statements should be about the same fact and thus the
rule of proximity and time is very important. S.157 is broader than res gestae in S.6.
 S.159- refreshing memory of witness. It only applies to writing. Will it apply to access to a
newspaper? There is a possibility newspaper will apply according to second para. The
problem is whether the witness is reliable and that can be found by the court. If the person
does not remember anything and needs document for saying what happened, court may not
give him access to newspaper. Basis of refreshing memory may not be evidence; it may be
something that the witness created
 Can the witness rely on document prepared by someone else? Isn’t this hearsay because this is
based on someone else’s opinion? It is not hearsay because the person thought of it to be
correct with the information given to him and thus t is his own opinion. Secondary evidence
can also be applied and it may not restrict to documents which are evidence in itself.
 S.162- Production of documents. This section is limited to compellability for example, affairs
of state.
 S.164- if secondary evidence is presented by court under the exceptional rule, the person
cannot present primary evidence to contradict this.
 S.165- Inquisitorial power given to the judge for deciding justice and to step into the shoes of
one of the parties. All the powers of the counsel are given to the judge.
 S.167- new trial will not take place because of admission or rejection of evidence.
 S.1 applies to judicial proceedings except to army, naval and air force proceedings.