Professional Documents
Culture Documents
Evidence Study Material
Evidence Study Material
CASE LAWS
1 Sec 115 Estoppel
2 Section 30, Confession against the co-accused
3 Section 105, Burden of Proof
4 Section 11, (Alibi)
5 Section 114, Court may presume existence of certain facts
6 Section 118, Who may testify
7 Section 93, Patent Ambiguity
8 Section 27 - Confession to a police officer and leads to the discovery of new fact
9 Section 126 - Professional Communications
10 Section 25 - Confession to police officer not to be proved
11 Sec. 65- Cases in which secondary evidence relating to documents may be given
Mail: Harinath0012@gmail.com
PAPER-V:
LAW OF EVIDENCE – SYLLABUS
Unit-I:
The Indian Evidence Act, 1872 — Salient features of the Act – Meaning and kinds of
Evidence – the impact of the Information Technology Act, 2000 on the Indian Evidence Act –
Interpretation clause — May Presume, Shall presume and Conclusive proof – Fact, Fact in
issue and Relevant facts —Distinction between Relevancy and Admissibility – Doctrine of
Res gestae — Motive, preparation and conduct — Conspiracy —When Facts not otherwise
relevant become relevant — Right and custom — Facts showing the state of mind etc.
Unit-II:
Admissions & Confessions: General Principles concerning Admissions — Differences
between “Admission” and “Confession” — Confessions obtained by inducement, threat or
promise – Confessions made to police officer – Statement made in the custody of a police
officer leading to the discovery of incriminating material — Admissibility of Confessions
made by one accused person against coaccused. Dying Declarations and their evidentiary
value — Other Statements by persons who cannot be called as Witnesses —Admissibility of
evidence of witnesses in previous judicial proceedings in subsequent judicial proceedings.
Unit-III:
Relevancy of Judgments — Opinion of witnesses — Expert’s opinion — Opinion on
Relationship especially proof of marriage — Facts which need not be proved — Oral and
Documentary Evidence – General Principles concerning oral evidence and documentary
evidence — Primary and Secondary evidence — Modes of proof of execution of documents
— Presumptions as to documents — General Principles regarding Exclusion of Oral by
Documentary Evidence – Relevance of social media in the law of evidence
Unit-IV:
Rules relating to Burden of Proof – Presumption as to Dowry Death — Estoppels —Kinds of
estoppels — Res Judicata, Waiver and Presumption.
Unit-V:
Competency to testify — Privileged communications – Testimony of Accomplice —
Examination in Chief, Cross-examination and Re-examination — Leading questions —
Lawful questions in cross-examination —Compulsion to answer questions put to witness —
Hostile witness — Impeaching the credit of witness — Refreshing memory — Questions
Suggested Readings:
1. Batuk Lal: The Law of Evidence, Central Law Agency, Allahabad.
2. M. Monir: Principles and Digest of the Law of Evidence, Universal Book Agency,
Allahabad.
3. Vepa P. Saradhi: Law of Evidence Eastern Book Co., Lucknow.
4. Avatar Singh: Principles of the Law of Evidence, Central Law Publications.
5. V. Krishnama Chary: The Law of Evidence, S.Gogia & Company Hyderabad.
6. V. Nageswara Rao: The Evidence Act, LexisNexis.
Important Sections
S.No
. Particulars Sec
1 Evidence 3
2 Presumptions 4
3 Alibi 11
4 Admission 17
5 Confession to police & recovery of items 27
6 Confession against the co-accused 30
7 Dying Declaration 32(1)
8 Opinions of Experts 45
9 Opinion on relationship 50
10 Patent ambiguity 93
95 -
11 Latent Ambiguity 98
12 Burden of proof 101
13 Burden of proof for alibi 103
14 Burden of proof for exceptions 105
15 Presumption as to dowry death 113B
16 Estoppel 115
17 Who may testify 118
18 Professional communications 126
19 Accomplice 133
20 Chief, Cross, Re-examination 137
SHORT ANSWERS
1. DEFINITION OF EVIDENCE.
Answer: Meaning of Evidence:
“Evidence” is a word derived from the Latin word “evidera” which means to
discover clearly, to ascertain or to prove.
According to Blackstone, evidence “signifies that which demonstrates, makes clear
or ascertains the truth of the facts or points in issue either in one side or the
other”.
Taylor describes the evidence as “all means which tend to prove or disprove any
matter, fact, the truth of which is submitted to judicial investigation.
The word ‘evidence’ in the Act signifies only the instruments by means of which
relevant facts are brought before the court. The instruments adopted for this
purpose are witnesses and documents. Under this definition, the evidence is
divided into two clauses (1) oral and (2) documentary.
Section 3 of the Indian Evidence Act defines “evidence” means and includes :
1. All statements which the Court permits or requires to be made before it by witnesses
in relation to matters of fact under enquiry; such statements are called oral evidence.
2. All documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.”
“Evidence” means that which makes evident.
Items which are not evidence: The following are not evidence
1. An affidavit is not evidence.
2. A confession of an accused.
3. The result of a local investigation or local inspection,
Classification of evidence: Evidence may be classified under the following heads:
1. Oral and Documentary evidence.
2. Direct and circumstantial evidence.
3. Primary and secondary evidence.
4. Real and personal evidence.
5. Original and un-original evidence.
6. Best and Inferior Evidence.
7. Substantive and non-substantive.
8. Positive and negative evidence.
9. Prosecution evidence and defence evidence.
10. Presumptive or prima facie evidence.
11. Conclusive evidence.
12. Corroborative evidence.
13. Hearsay or direct evidence.
2. HEARSAY EVIDENCE.
Answer: Hearsay is what one hears (but does not know to be true). It means gossip.
Hearsay evidence is the evidence learnt by witnesses not through the medium of
their own senses but through the medium of the third person. It signifies the
evidence heard and said.
It is called a second hand or unoriginal evidence.
Peter Murphy states that “ Hearsay evidence is given when a witness recounts a
statement made (orally, in a document or otherwise,) by another person and
where the proponent of the evidence asserts that what the person, who made the
statement, said was true”
Hearsay is that of which one has heard from another without himself having any
direct knowledge thereof.
Section 60 of the Indian Evidence Act prohibits hearsay evidence from being
offered in judicial proceedings subject to the exceptions provided in the Evidence
Act.
1. The irresponsibility of the original declarant, whose statements were made neither
on oath nor subject to cross-examination,
2. The depreciation of truth in the process of repetition,
3. The opportunities for fraud its admissions would open,
Exceptions to the hearsay rule: A number of exceptions have been recognized to facilitate
for the admission of hearsay evidence.
1. Res gestae,
2. Admissions and Confessions,
3. Statements by persons who cannot be called as witnesses (Sec 32),
4. Evidence given in the former proceedings (Sec 33),
5. Entries in books of account including those maintained in an electronic form are
relevant (Sec 34),
6. Relevancy of entry in public record or an electronic record made in the
performance of duty (Sec 35),
7. Opinions of experts (Section 45 & 46),
8. Opinion as to handwriting (Sec 47),
9. Opinion as to digital signature when relevant (sec. 47-A),
10. Opinion as to the existence of right or custom (Sec. 48),
11. Opinion as to usages, tenets, etc. (Sec . 49),
12. Opinion on relationship (Sec. 50),
13. Statements incorporated in Acts and Notifications, Government maps, Charts,
Plans etc., (Sections 34 to 39),
14. Provision 1, Section 60,
15. Proviso 2, Sec 60.
16. Statements in public documents,
It is a rule of law that attaches definite probative value to specific facts or directs
that a particular inference as to the existence of one fact not actually known shall
be drawn from a fact which is known and proved.
It is an assumption of a fact and furnishes prima facie evidence of the matter to
which it relates and relives until it is rebutted.
It means, it holds the field in the absence of evidence but when facts appear
presumptions go back.
Provisions of law:
Sections 79 to 90 of the Indian Evidence Act, 1872 deal with the presumption as to
the genuineness of a certain kind of documents.
Section 111A of the Indian Evidence Act, 1872 Act, deals with presumptions as to
certain offences.
Section 112 deals with presumptions as to the birth of a child during the marriage.
Section 113A of the Indian Evidence Act, 1872 deals with presumption as to
abetment of suicide by a married woman.
Section 113B of the Indian Evidence Act, 1872 deals with presumption as to dowry
death.
Section 114 deals with presumptions as to the existence of certain facts.
of the correspondence in which it is contained are relevant facts, though they do not
contain the libel itself.
(c). The question is, whether certain goods ordered from ‘B’ were delivered to ‘A’. The
goods were delivered to several intermediate persons successively. Each delivery is a
relevant fact.
Same transaction: “Same Transaction” means a transaction in a group of facts, connected
together to be referred to by a single legal name as a crime, a contract, a wrong or any
other subject to enquiry which be in issue. Facts forming part of the same transaction are
relevant. All the facts which are parts of the same transaction are relevant to each other
so that when one of such facts in issue, the other are admissible.
One of the essential conditions is that the statement must relate to the main event or
explain the main event. Res gestae must not be a product of a pre-plan; it must be a
result of deliberation instead. It must be a statement by a person who has either
participated in or witnessed the act and res-gestae is incidental to the main fact and
explains its occurrence. All acts which are part of one transaction or acts constituting a
series or showing continuing facts would be admissible as part of res-gestae. All
statements which are accompanied in explaining the facts in issue are also relevant.
In Uttam Singh v. the State of M.P., the child witness was sleeping with the deceased
father at the relevant time of the incident and was awakened by the sound of the fatal
blow of the axe on the neck of the deceased. Seeing it, the child shouted to his mother for
help by naming the accused as the assailant. On hearing the sounds the mother and
sisters of the child and other witnesses gathered at the spot. It has been held that the
evidence is admissible as a part of the same transaction as res gastae under Section 6 of
the Evidence Act as such shout being natural and probable in the facts of the case.
Res gestae is an exception to hearsay: The res gestae is an exception to the principle that
hearsay evidence is no evidence (Section 60). In R. v. Foster, the deceased had been killed
in an accident by the speeding truck. The witness had not seen the incident but only the
speeding truck. The deceased stated to him what had happened with him in the accident.
The court held the statement of the deceased to the witness to be admissible in evidence
as res gestae.
3. The evidence with regard to Test Identification Parade may be used by the Court
for the purpose of corroboration.
4. The purpose of test Identification Parade is to test and strengthen the
trustworthiness of substantive evidence.
5. Where the eye-witness cannot give the name of the offender but claims that he
can identify him, it is necessary to hold Test Identification Parade.
The procedure of Identification Parade:
1. The Test Identification parade has to be conducted by the Magistrate or an
authorised person of Court,
2. The Magistrate has to make sure that at least 10 persons of similar appearance or
build or height are paraded with each suspect separately.
3. The Magistrate has to examine the marks likely to affect Identification of the
suspect.
4. Identification should be held as early as possible.
5. It is not safe to place reliance on the identification of an accused for the first time
in Court by a witness after an inordinate delay.
6. If the accused is known to the witness, the Identification Parade is not necessary.
Circumstances of invalidity of Test Identification parade: In the following circumstances,
the evidence of a witness in the Test Identification becomes invalid.
1. Most of the crimes are committed in darkness and at secluded places. In such
cases, the light becomes a matter of crucial importance to see the accused at the
time of the offence.
2. The eye-sight of the identifier has to be taken into consideration and at the time of
offence whether he is using his spectacles (if needed) or also important.
3. If the identifier is in stirred minds, for excitement, fear or terror,
4. If the witness was in drunken position at the time of the offence.
5. If the witness saw only the backside of the accused.
6. If the suspect was already shown to the witness before the Identification Parade.
7. If the precautionary steps such as bringing the accused by covering faces etc. have
not been taken.
8. If the Identification Parade is conducted on all accused in a single identification
parade.
9. Where there are more offenders and a single eye-witness who cannot identify the
features of all the offenders with a short span of time.
10. If the accused persons muffled their faces in order to screen their identity by
appearance.
11. If the photograph of the accused was shown to the identifying witness before the
parade.
12. If abnormal delay in holding identification parade has taken place.
13. If the identification parade is not conducted by magistrate or an authorised person
of court.
14. When minimum 10 persons of similar appearance or build or height are not
paraded along with the accused.
6. AMBIGUITY.
execution of the deed. These facts may be proved to show that the deed related to the
house at Howrah.
Where in a document, the intention of the parties is clear, but one of the essential facts
is described wrongly by mistake, and if the mistake is curable the document cannot be
invalidated. In such a case evidence is allowed to prove the actual existing fact as shown
in illustration appended to Sec. 95.
(B). Section 96, Evidence as to application of language which can apply to one only of
several persons. According to Section 96 of the Evidence Act, “when the facts are such
that the language used might have been meant to apply to anyone, and could not have
been meant to apply to more than one, of several persons and could not have been meant
to apply to more than one, of several persons or things, evidence may be given of facts
which show which of those persons or things it was intended to apply to”. E.g. A agrees to
sell to B, for Rs.1000 “my white horse”. A has two white horses. Evidence may be given
of facts which show which of them was meant.
(C). Section 97, Evidence as to application of language to one of two sets of facts, in
neither of which the whole correctly applies.
(D). Section 98, Evidence as to meaning of illegible characters, etc.
(6). Seals.
(7). Accession etc. of public officers.
(8). Recognition of foreign States and their National Flags.
(9). Division of time, world geographical divisions etc.
(10). Indian Territories.
(11). Hostilities between India and other States.
(12). Members and officers of Court.
(13). Rules of Road and Matters of Public History.
would be relevant to prove that the husband had no access to the wife at the
probable time of begetting.
Survival of the alleged deceased.
Commission of the crime by a third person.
Self-infliction of harm: ‘A’ is charged with the murder of ‘B’ by administering
poison. Here ‘A’ can lead evidence under Section 11(1) to prove that ‘B’ committed
suicide by consuming poison and it is relevant as it is inconsistent with the fact in
issue that ‘A’ administered poison to ‘B’.
Who can make an admission: As per Section 18 of the Evidence Act, the following persons
can make an admission:
1. Party to the proceedings in Criminal or Civil.
2. By his agent, authorised.
3. Parties to the suit, suing or sued in a representative character.
4. The persons having a proprietary or pecuniary interest in the subject matter, such as
joint owners of a property, co-defendants, partners to the document of the
mortgage deed, gift deed, title deed etc. are admissions,
5. A person from whom the party to the suit has derived his interest.
6. Persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute – Section 20.
Essentials of admission.
It must be ….
Clear, certain and definite
A voluntary acknowledgement of a fact
Related to the question of fact in issue or relevant fact only
A statement either oral or documentary or electronic form.
Made by the persons prescribed by the Act
Made under the circumstances prescribed by the Act
Taken as a whole and not in part
In the nature of the self-harming form
Classification of admissions
Admissions can be broadly classified into two categories. They are;
a. Judicial or Formal admissions
Judicial admissions or formal admissions are made by a party during the proceedings of a
case. Admission in a pleading in the Court is a judicial admission and it can be made the
foundation of the rights of the parties. Judicial admissions are fully binding on the party
that makes them. They constitute a waiver of proof.
b. Extra-Judicial or Informal admissions
Extra-judicial admission is an informal statement made by the parties outside the court.
These admissions do not appear on the record of the case. They are usually made in the
course of casual conversation. Extra-judicial admissions are binding on the party against
whom they are set. However, they are binding only partially, and not fully, except in cases
where they operate as or have the effect of estoppels, in which case again they are fully
binding and may constitute the foundation of the rights of the parties.
admitting that he has committed an offence or all the facts which constitute the
offence.
4. Admissions though generally are used in civil proceedings yet they may also be used
in criminal proceedings, whereas confessions are used only in criminal proceedings
to establish the commission of an offence by him.
5. The term ‘admission’ refers to every statement whether it runs in favour of or
against the party making it, but, a confession is the admission of the guilt in
reference to crime and therefore necessarily runs against the interests of the
accused.
6. An admission may be used on behalf of the person making it whereas a confession
always goes against the party making it except under Section 30.
7. An admission need not be voluntary to be relevant, though it may affect its weight;
but a confession to be relevant, must be voluntary.
8. The admissions made by an agent or even a stranger are relevant, but a confession
to be relevant must be made by the accused himself.
9. An admission by one of several defendants in a suit is no evidence against another
defendant whereas the confessions of one of two or more against another
defendant whereas the confessions of one of two or more accused jointly tried for
the same offence can be taken into consideration against the co-accused (Section
30).
10. Admission is not a conclusive proof of the matters admitted though it may operate
as on estoppels. However, a confession is deliberately and voluntarily made be
accepted as evidence in itself of the matters confessed though as a rule of prudence
the courts may require corroborative evidence.
11. An admission made to any person whether he is a policeman or a person in authority
or whether it was the result of an inducement or promise is relevant, but, in case of
confession, it is not relevant unless such confession is free and voluntary.
12. As per Section 23 of the Evidence Act, an admission made upon an understanding
that evidence of it would not be given is irrelevant but under Section 29 of the
Evidence Act, a confession made under a promise of secrecy is relevant.
13. Statements made by certain persons, who are not parties to the case are regarded as
admissions against the parties under Sections 18-20 of the Evidence Act, but a
confession always proceeds from a person who has committed an offence or is
accused of an offence.
14. All admissions are not confessions but all confessions are admissions.
15. The acid test which distinguishes a confession from admission is that where a
conviction can be based on the statement alone, it is a confession and where some
supplementary evidence is needed to authorise a conviction, then it is admission.
And another test is that if the prosecution relies on the statement as being true it is
confession and if the statement is relied on because it is false it is admission.
Section 27 Confession given to a police officer.
Section 30 Consideration of proved confession affecting person making it and
others jointly under trial for the same offence.
The opinions of experts on the question of whether the two documents were written
by the same person or by different persons, are relevant”.
Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject. In a
general sense, an expert is a person of peculiar knowledge or skill; one who has peculiar
knowledge or skill as to some particular subject, such as any art or science, or particular
trade, or profession, or any special branch of learning; and is professionally or peculiarly
acquainted with its practices and usages.
An ‘expert’ is a person who made a special study of the subject or acquired special
experience therein.
An expert is a person who has special knowledge or skill in the particular calling to
which the enquiry relates.
The person possessing superior knowledge and practical experience in a particular
field.
Every expert need not have academic qualifications.
Kinds of experts: Some of the experts who are authorised to give opinion are: doctor,
chemical examiner, public analyst, motor vehicle inspector, coal expert, geological expert,
surveyor, valuer, crop valuation expert, an agricultural officer, a goldsmith, auditor etc.,
Examples:
A. A goldsmith possessing technical work of gold, and having more years of experience
is an expert. He can tell how much percentage of gold and copper are in an
ornament. No academic qualification is required for it.
B. A photographer having longstanding experience in photography and have a
reputation as a good photographer in a certain locality is an expert in the field of
photography.
C. A doctor, having qualifications, and experience is an expert. When a person died
with the poison, the doctor can give a report after post-mortem. He can estimate
how much quantity of poison was and what type of poison consumed by the
deceased, and when consumed by the deceased, etc., such type of analysis can be
done only by an expert.
Admissibility of Expert Evidence: In Ramesh Chandra Agrawal v. Regency Hospitals Ltd., it
has been held that:
1. The subject-matter of the case requires the opinion of the expert,
2. The expert must be within a recognised field of experience.
3. The witness called must be a real expert in that technical field,
4. The evidence must be based upon reliable principles.
5. It must be shown that the expert has made a special study or acquired a special
experience in the subject.
6. The expert must place before the Court all the materials, together with his reasons
for coming to the particular conclusion.
7. Expert evidence is really of an advisory character.
8. The duty of an expert is to furnish the judge with the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the Judge to form his
independent judgement by the application of these criteria with facts proved by
evidence of the case.
9. The Expert must be a disinterested person in the case.
4. Besides the experience and special knowledge, the expert witness must possess the
required academic qualification in some cases; every expert need not have academic
qualifications e.g. goldsmith.
5. The Expert must be a disinterested person in the case.
The expert witness must be subjected to cross-examination in the court. Mere
submission of his opinion on paper or certificates is not sufficient.
The expert opinion is only corroborative evidence. It need not be the sole basis for the
conclusive proof.
in its existence, unless it is provided by any law that the proof of that fact shall lie on any
particular person.
This rule is known as the he who wishes to prove a particular fact must prove the rule.
Illustration: A prosecutes B for theft, and wishes the Court to believe that B admitted the
theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must
prove it.
Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher Singh.
4. Burden of proving fact to be proved to make evidence admissible, Section 104 of the
Evidence Act states that “the burden of proving any fact necessary to be proved in order to
enable any person to give evidence of any other fact is on the person who wishes to give
such evidence.
Illustrations:
a. ‘A’ wishes to prove a dying declaration by B. A must prove B’s death.
b. ‘A’ wishes to prove, by secondary evidence, the contents of a lost document. A must
prove that the document has been lost.
5. Burden of proving that case of accused comes within exceptions, Section 105 of the
Evidence Act states that “when a person is accused of any offence, the burden of proving
the existence of circumstances bringing the case within any of the General Exceptions in the
Indian Penal Code, or within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence, is upon him, and the Court shall presume
the absence of such circumstances.
Illustrations:
a. A, accused of murder, alleges that, by reason of unsoundness of mind, he did not
know the nature of the act.
The burden of proof is on A.
b. A, accused of murder, alleges, that by a grave and sudden provocation, he was
deprived of the power of self-control. The burden of proof is on A.
c. A is charged with voluntarily causing grievous hurt under Section 325. The burden of
proving the circumstances bringing the case under Section 335 lies on A.
Plea of self-defence, the burden of establishing the plea of self-defence is on the accused.
And describe remaining Sections 106 to 114A pertaining to Burden of proof.
4. Re-cross examination.
1. Section 137 of the Evidence Act states that “Examination-in-chief:- The examination
of a witness by the party who calls him shall be called his examination-in-chief.
Examination-in-chief means the party who comes to the court himself as a
witness. Where he comes as a witness he is given an oath in the witness box. His
name and address are taken down by the court. Then the advocate of the plaintiff or
defendant will be under a duty to elicit or explain the fact stated in the plaint or
written statement. Examination of the party by his own advocate is called chief
examination. The purpose of the chief examination is to give the party a chance to
place the facts before the court and explain all facts, which require proof. The party
will be placing his version with personal knowledge. There are three rules about
examination-in-chief:
(a). The chief examination must be confined to the facts in issue or relevant facts
alone. And, they must be made in a bonafide manner, where personal opinion is
irrelevant.
(b). In the chief examination, no leading questions are to be asked (Section 141).
(c). Questions which cause discredit to a witness should not be asked. The witness
can give evidence of facts only and not of law.
2. Cross-examination:- The examination of a witness by the adverse party shall be
called his cross-examination. After the party calling the witness has finished the
chief examination, the opposite party has a right to cross-examine the witness.
Cross-examination is an opportunity available to the opposite party. It is one of the
most useful methods of discovering the truth. It is a powerful and valuable weapon
to test the veracity (correctness) of the witness. Cross-examination need not be
confined to matters proved in the chief examination.
Main objects of the cross-examination:
(a). To weaken the witness.
(b). To destroy the case of the opponent.
(c). To establish one’s own case, by means of the opponents’ witness. If a fact is
stated in a chief examination and the witness is cross-examined on that point it leads
to the inference that the party accepted the statement. But, there are exceptions to
this rule. They are:
(i). the witness had notice before hand.
(ii). whether the story is incredible.
(iii). Non-cross examination due to delicacy of the matter.
Rules of cross-examination:
(a). The question must relate to facts in issue and relevant facts.
(b). Leading questions can be asked.
(c). A witness can be questioned of his previously recorded statements.
(d). A witness may be questioned on such fact which causes discredit to the
testimony of a witness.
3. Re-examination:- “The examination of a witness, subsequent to the cross-
examination by the party who called him, shall be called his re-examination”. After
the witness is cross-examined by the opposite party or the party calling him again,
then, this examination for the second time is called re-examination. The purpose of
re-examination is:
PART C, CASES
Rule: Section 115 of The Indian Evidence Act, 1872 states that:
Estoppel – When one person has, by his declaration, act or omission, intentionally caused
or permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to A,
and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the
ground that, at the time of the sale, he had no title. He must not be allowed to prove his
want of title.
Application: The problem is related to Rule of Estoppel, this rule prevents a person from
taking up an inconsistent position from what he has pleaded or asserted earlier. The rule
of estoppels is based on the principle that it would be most inequitable and unjust.
Section 115 is based on the decision in Pickard v. Sears, in which it was stated, “where a
person by his words or conduct wilfully causes another to believe in the existence of a
certain state of things and induces him to act on the belief so as to alter his own previous
position, the former is precluded from averring against the latter a different state of things
as existing at the same time.
Conclusion: In the instant problem, purchase of land by B is in good faith and valid,
whereas ‘A’ has induced the B to purchase the land. Hence A cannot set aside the sale on
the ground that, at the time of sale he had no title. Even though at the time of the sale he
was not having the title, but subsequently he purchased the land. Now he is bound by the
rule of estoppels. And the land belongs to B.
In the second problem, the land and the house belongs to ‘B’. The Silence of A is
amounting to believe ‘B’ that the piece of plot belongs to B, and based on the omission of
the duty to stop the construction by ‘A’, he has constructed the house. In Section 115, the
word omission is there “act or omission, intentionally caused or permitted another person
to believe a thing to be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing” with this provision in the Section, A has
lost the right.
Rule:
Section 30 of the Indian Evidence Act states that:
“Consideration of proved confession affecting person making it and otherwise jointly
under trial for same offence: - When more persons than one are being tried jointly for the
same offence, and a confession made by one of such persons affecting himself and some
other of such persons is proved, the court may take into consideration such confession as
against such other person as well as against the person who makes such confession.
Illustration: A and B are jointly tried for the murder of C. It is proved that A said: ‘B’ and I
murdered C. The court may consider the effect of this confession as against ‘B’.
Application:
The courts may consider the confession of the accused against himself and the co-
accused.
Section 30 is an exception to the rule that the confession of one person is entirely
inadmissible against another, where more persons than one are jointly tried for the same
offence.
In the instance case, the conditions laid down by Section 30 are followed, and the
confession is admissible.
Conclusion:
The confession is admissible against the co-accused.
Rule:
The Section 84 of Indian Penal Code states that “Act of a person of unsound mind –
Nothing is an offence which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing
what is either wrong or contrary to law.
Section 105 of Evidence Act, 1872 states that “Burden of proving that case of accused
comes within exceptions, - When a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, 1860, or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence, is upon
him, and the Court shall presume the absence of such circumstances.
Application:
Section 105 of the Evidence Act contains two kinds of burden on the accused who sets
up an exception:
(i). the onus of proving the existence of circumstances bringing the case within any of the
general or special exceptions in the IPC or in any other law; and
(ii). The burden of introducing or showing evidence, which results from the last part of the
provision which says that the Court shall presume the absence of such circumstances.
Under Section 105, the burden of proving the existence of circumstances bringing the
case within the exception lies on the accused and the Court shall presume the absence of
such circumstances.
In A.K.Choudhary v. the State of Gujarat, it has been held that in view of Section 105 of
the Evidence Act the burden would be upon the accused to prove that the case is falling
under general exceptions.
Conclusion:
In the given case the accused can claim the general exception available under Section
84 of IPC and the burden of proof (onus probandi) is on him, he has to prove his
unsoundness of mind.
Rule:
As per Section 11 of the Indian Evidence Act, 1872, “when facts not otherwise relevant
become relevant. - Facts not otherwise relevant are relevant –
(i). if they are inconsistent with any fact in issue or relevant fact;
(ii). If by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations:
a. The question is, whether A committed a crime at Calcutta on a certain day. The
fact that, on that day. A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance
from the place where it was committed, which would render it highly improbable,
though not impossible, that he committed it, is relevant.
b. The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by
A, B, C or D, every fact which shows that the crime could have been committed by
no one else and that it was not committed by either B, C, or D, is relevant.
Application:
The given case is similar to illustration (a) of Section 11. Under sub-clause (1) of
Section11, facts are relevant because they are inconsistent with any facts in issue or
relevant fact. They are so diametrically opposed to the facts in issue that the existence of
those facts makes the existence of those facts in issue or relevant fact impossible. Under
Sub-clause (1) of Section 11, the facts are relevant because if they are proved to exist the
fact in issue or relevant facts can in no case exist.
Alibi is a claim or piece of evidence that one was elsewhere when an alleged act took
place; an excuse.
The term alibi is used to express that defence in a criminal prosecution, where the
party accused, in order to prove that he could not have committed the crime charged
against him, offers evidence that he was in a different place at that time.
Conclusion:
The accused can plead his case under Section 11 of the Indian Evidence Act; this
defence is available to him. By proving that, at the time of the crime he was elsewhere
and he can be discharged from the case.
Issue:
Whether the above case comes under presumptions? Yes
Whether the court may presume that ‘X’ has stolen the goods or he has received
the goods knowing that they are stolen? Yes
Rule:
Section 114, Court may presume existence of certain facts. - The Court may presume
the existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in
their relation to the facts of the particular case.
Illustrations:
That a man who is in possession of stolen goods soon after the theft is either the thief
or has received the goods knowing them to be stolen unless he can account for his
possession.
The given case is same that of illustration (a) to Section 114 of the Indian Evidence Act,
1872.
Application:
Illustration (a) under Section 114 states that “The Court may presume that a man who
is in the possession of stolen goods soon after the theft is either the thief or has received
the goods knowing them to be stolen unless he can account for his possession”.
Illustration (a) under Section 114 itself shows that the presumption will not arise until
two conditions are fulfilled, namely, the accused is in possession of the goods soon after
the theft and is unable to account for his possession.
In Virumal Mulchand v. the State of Gujarat, accused was found in possession of stolen
goods within two days of theft. He failed to furnish any explanation for his possession.
Held that, the presumption under illustration (a) of Section 114 can be drawn and the
accused can be convicted under Section 411 of IPC as receiver of stolen property.
Conclusion:
In the given case, X is found with the stolen goods and the Court may presume, under
Section 114, that he has committed the theft.
Application:
In criminal cases, with respect to children, a child of tender age may be allowed to
testify, if the court is satisfied that the child is capable of understanding the question put
to him and give rational answers to the court. No precise age is fixed by law within which
they are absolutely excluded from giving evidence on the presumption that they have not
sufficient understanding.
Competency of a child witness cannot be questioned if his evidence is otherwise
probable and true. A child witness is not an incompetent witness whose evidence may
have been always discarded.
The child witness who is below 12 years need not be administered the oath.
Conclusion:
Rule:
Section 93 of the Indian Evidence Act, 1872: Exclusion of evidence to explain or amend
ambiguous document. – When the language used in a document is, on its face, ambiguous
or defective, evidence may not be given of facts which would show its meaning or supply
defects.
Illustration: A agrees, in writing, to sell a horse to B for Rs. 1000 or Rs. 1500. Evidence
cannot be given to show which price was to be given.
Application:
Section 93 of the Evidence Act deals with patent ambiguity – No oral evidence can be
given to remove a patent ambiguity. Under Section 93 when the language used in the
document is on its face ambiguous or defective, no evidence is permissible to show its
meaning or supply its defects. That is to say, when the language used in a document is
ambiguous on its very face and no definite meaning can be given to it, no evidence can be
given to facts which would make its meaning clear.
In Keshaulal Lallubhai Patel v. Lalbhai T. Mills Ltd. The Supreme Court observed that
Section 93 is clear on the point that if on a fair construction the condition mentioned in
the document is held to be vague or uncertain, no evidence would be admitted to
removing the vagueness or uncertainty. It is the language of the document alone that will
decide the question. It would not be open to the parties to the court to attempt to
remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence.
Conclusion:
In the given case, the document is not clear and having patent ambiguity. The oral
evidence is not permissible under Section 93.
8. Confession to a police officer and which leads to discovery of new fact (Section 27).
A. ‘X’ is accused of theft, during the police custody, he indicated the place where the
stolen goods were hidden and the police recovered those goods. Can this
information be used against A? (Sep 2018).
B. A, B and C are accused of murder of D. ‘A’ makes a statement to the sub-inspector
of police while in the custody that “I together with B and C murdered D and have
concealed his dead body under a culvert”. The dead body was recovered in
Issue:
Whether the confession before a police officer is valid if it leads to recovery of
stolen goods? Yes.
Whether the Confession admissible against the person making it? Yes.
Whether the confession made by one person against other accused/s admissible?
No.
Rule:
Section 27 of the Indian Evidence Act, 1872. How much of information received from
accused may be proved. - Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence, in the custody
of a police officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.
Comments: Section 27 of the Evidence Act is applicable only if the confessional statement
leads to the discovery of some new fact.
Scope: Sections 24, 25, and 26 of the Evidence Act exclude certain confession. Under
Section 27 disclosure of statement leading to the discovery of fact is admissible.
Application:
Requirements under Section 27: The conditions necessary for the application of Section
27 are:
1. The fact must have been discovered in the consequence of the information
received from the accused.
2. The person giving the information must be accused of an offence.
3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact discovered
can be proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that some articles were
discovered in consequence of the information received from the accused.
In the given case the confession of the accused leads to recovery of stolen goods and the
confession is valid.
Section 27 is limited to the person confesses it.
Conclusion:
In the given case the confession is admissible and may be proved. And this confession
can be used against him.
The discovery statement to be used only against the maker: The statement leading to
discovery can be used only against the maker of the statement. It cannot be used against
non-makers.
B. ‘A’, a client, says to ‘B’ a Lawyer, ‘I have committed a theft’ and requests him to
defuse him. ‘B’ intends to disclose this fact to the court. Is this fact protected from
disclosure? (May 2010).
Issue:
Whether the attorney can disclose the information? No.
Is the client protected by Professional communication? Yes.
Rule:
Section 126 of the Indian Evidence Act, 1872. Professional communications. – No barrister,
attorney, pleader or vakil shall at any time be permitted unless with his client’s express
consent, to disclose any communication made to him in the course and for the purpose of
his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client,
or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to
disclose any advice given by him to his client in the course and for the purpose of such
employment.
Provided that nothing in this section shall protect from disclosure –
1. Any such communication made in furtherance of any illegal purpose,
2. If any fraud committed since the commencement of his employment.
Application:
A man of the legal profession is forbidden from disclosing without his client’s consent
1. Any communication made to him in the course of and for the purpose of his
employment, or
2. The contents of the condition of any document which came to his knowledge in the
course of and for the purpose of his employment, or
3. Any advice by him to his client in the course of and for the purpose of such
employment.
This Section has been enacted for the protection of the client and not of the lawyer.
The lawyer is therefore bound to claim the privilege unless it is waived by his client.
Conclusion:
In the said case the attorney cannot disclose the information which his client has
disclosed to him in course of his employment, the privilege does not get terminated by the
termination of the litigation or the death of the parties.
Issue:
Whether the confession made before a police officer admissible? No.
Rule:
Section 25 of the Indian Evidence Act, 1872: Confession to police officer not to be
proved - No confession made to a police officer, shall be proved as against a person
accused of any offence.
Admissibility: Section 25 makes a confessional statement of accused before police officers
inadmissible is evidence which cannot be brought on record by prosecution to obtain a
conviction.
Application:
In Section 25 the criterion for excluding the confession is the answer to the question to
whom the confession was made. If the answer is that it was made to a police officer the
law says that such confession shall be absolutely excluded from evidence, the person to
whom it was made is not to be relied on for proving such a confession and he is moreover
suspected of employing coercion to obtain a confession.
The principle upon which the rejection of confession made to a police officer or
confession made by the accused while in the custody of such officer is founded is that a
confession thus made or obtained is untrustworthy. The broad ground for not admitting
confessions made to a police officer is to avoid the danger of admitting a false confession.
In order to secure a conviction in a case he may put the person so arrested to severe
torture and make him confess guilt without having committed it and when such steps are
taken there is impunity for the real offender and great encouragement to crime. Section
25 lies down that no confession made to a police officer shall be proved as against the
person accused of an offence.
Ram Singh v Central Bureau of Narcotics.
Conclusion:
In the given case the confession of the arrested person in the police station before the
DSP is not admissible and cannot be proved against the accused.
11. Section 65, Cases in which secondary evidence relating to documents may be given.
A. ‘X’ in order to prove his nativity brings a Photostat copy of the certificate issued
by the Revenue Officer. Can it be relied upon? (Aug 2016)
B. In a Civil suit, the plaintiff produced a Xerox copy of the original sale deed as
evidence. If so, when? (Aug 2015).
Issue:
Whether a Photostat copy is admissible? No.
Rule:
Section 65 of the Indian Evidence Act, 1872, Cases in which secondary evidence relating
to documents may be given – Secondary evidence may be given of the existence,
condition, or contents of a document in the following cases:
a. When the original is shown or appears to be in the possession or power –
1. Of the person against whom the document is sought to be proved, or
2. Of any person out of reach of, or not subject to, the process of the Court, or
3. Of any person legally bound to produce it
4. And when, after the notice mentioned in Section 66, such person does not
produce it.
Application:
The Clause (e) of Section 65 (regarding the Public Document Section 74) permits only a
certified copy of the public document to be given and no other form of secondary
evidence.
When the original is a public document, or when its certified copy is admitted a
certified copy of the original and no other secondary evidence is admissible.
Conclusion:
In the given case Photostat copy of a public document is not admissible.