Evidence

Act.
¥- .R) Af

÷⇐
•

Thing
<
It Becomes a ground for Belief
of

:*
.

Estoppel
.

help us to Reach

- oral Statement under

Court
Before
.

oath

/
Oral
evidence
under
Testimony

Prelims -
Create a context of other Evidence .

the Pert
of
Evidence , if Taken

Electronically .
 -__A_f-_fpEg

-
Hence Bad
Justice System

Evidence 1
on
and
Be all .

End

A
-
Bible for
an ÷÷÷• How Evidence
.

what condition
.

Come
!
.

Evidence

Idol =
FoirT!

Evidence - vitiate
Always
a fair Trial .

on
Taken in,

- cow# !
oath Begone
 -
history
of
fu Kans
By !

To find The
Truth

L purpose of
Trial ?
guest g
Truth .

>
"ToSYj
 Hi .

→ station
Document
-
Proving of
(5.67-73)

5.67 Is A-
-

,
 1 Mrijkatika -

A judge
never
must
Terrorise / Defame

|
The witness

/
Judge is a mute Are
Appearances
Person .

4ajnau.my -

deceptive .

>
L Basis
Justice is The of Islam !

µ
must
We
the
have
Truth
'

,, , , ,
And
i
-

JusticeTruth

i
-
Fatwa -
e- Alamgir
-
Auranzeb .

Popular Evidence
 -

Applicable on

only
-

Area
British Ruling
.

Hindu low

Muslim law

law
common
 Philosophy OF

lndionfuider.ua#
governing 3 Cardinal philosophies Analytical in Nature
-
.

Wigmore Famous Best Evidence

FJ
-
Insistence on
"

" ""
"" " " -
necessity of Relevancy .

APP-ecietionot-aide.ee?Jude8ment-#- int- PuEup

-

during
course of Trial Before
The Court

1) Best Evidence
Ruley
"
A Critical Examine For Best Best Evidence is needed !
judgment,
Best Evidence need Trial Elucidate
A is a
of any .

A Best Evidence Rule to from Best

has be distinguished
Rule
of Evidence .

Tools in a Trial =
Evidence
T
What is done in a Trial .
-
To Separate the groin
/ From chaff .

in a Trial There
,

is Allegation Right has been

infringed
-

an

Introduction
9
*i¥i* " "

A"n÷
he Brings
✓ on Basis of These Aspects
And he p.mn, my meso" "

will Prove
his
Allegations .

On The Evidences he Put

G- Another Party negate

on it .
 Product
•

Naturally The End is Truth if Raw material Trial

. • .
a
very g
End Product Trial is Product
is faulty of faulty if end
Faulty
-

.
,

Pwrong Relief / no
Relief Be
given .

Hence it is must -
Best Evidence must come
forth .

Court
You Always
Bestcvidences-r.cn
must go in The with the

only you will get

justice .

Connotation

_l
Quantitative Gmporit
q#TÉe -
murder
/ investigating officer
-

occour

Took Evidence
of

Although " , -4000--1 I 1- I -

important People
"
maybe Rek 400
Evidence
have
will Be detrimental to the Trial
different views .

Andnontd]
in their Points
Evidence must Be
Weighed
Can a
judgment Be Passed on I Single witness /

\
.

yes
-
it it is Reliable
and Confidence in Court Clarified 5134 IEA
evokes a
by of
.
.

Then definitely .

Reliability -
is a
keynote of Best Evidence Rule .

Evidence Facility
m e1ib the less chances will
,
be
of

it Credibility
his Testimony .

is unshakable
if
#*⇐→
Cannot Be
impeachable .

be Absolute Truthful
IF
.

he appears to
 i be Said he is
he would
as
<•Tnen
Reliable

Cross
if his
Testimony By is unimpeachable
Could He the test of
Then We
Say ,
withstand

Cross -
Examination .

if he withstand The Test

of Cross Examination
,
Then
"
Could
"
Reliable
We
Say He is .

Qualitative Evidences are needed . 136 I. E. A -

Power to decide

QÉnhetiue -
no
of witnesses are
• It is
always a
Prerogative of the

/ not
important .

Judge To See Which Evidence He

Evidence must Be want to take and to which

weighed -
5.134 tie want to
deny .

Best ---→§G ( Than one

compositing
more

The Best
in
Comparison , what is .

× .

Inter Intra
✓
1 what is one
primary
Two different inside

Things ⑤ 1¥
T ☒
☐"
tseeondory .

/
1
oral Documentary oral

Relative Context
in a
, ☐ in Hearsay
Exclusion of
Documentary Guidance
evidence of oral
is Preferred over argument.

Orel Evidence .

To Be Proved Evidence of terms of

contracts, grants and
document
only By other dispositions
e of 5.92
document - property reduced to
if we have a form of document.
←S
of -
-
Then Content
document Cannot Be Proved orally (in a normal

circumstances )
 Direct
{
violence 4s Circumstantial Evidence .

Based on Inferences .

Seen By Eyes "

Circumstantial
1
But when
Cycle of
Generally Always Better than Evidence is Completed .

Circumstantial Evidences Then it Become Some

like direct Evidence

of Equal importance .

They stand at Par with

Direct Evidence
-
no
effect .

On
judgment .

Lit will Be as
good as

Direct Evidences .

Documenting evidence

+ Exception to Rule

Primary Second oy(Dup,; Cif original lost)

Ccoiginoi ) I

Lalwcys Preferred Conditions

5. 64 -
all document Be Given -
in
original form mentioned

Always Primary Evidence Shall be Put forth .

in

section 65

Hence ,
Primary Evidence is a Rule
,
Secondary is The

Can Judge Allow Exception .

Secondary Evidence other Than in Conditions of 565 ?

NO -

Absolutely not
Conakry Evidences only and only Be
Allowed By Judge it 565 Conditions
met ]
 Can a
Judge use his Discretionary Power
of 5165 ?

NO -

Judge Cannot use his

discretionary Power
,
He Cannot Go
Beyond 565 .

if Conditions met 4565 Cannot Allow

Judge
no are . .

Evidence

✗ Hearsay
Direct -
By witness
Evidence see
himself I
hear

All oral Evidence must Be direct;

Hearsay Evidences are

Forbidden .

tear and
Hearsay Evidence as the name Snow is
Say ,
it is

not Something which he has see / hear by himself .

• it is a Second Grade Guidance

• Almost all Evidence Act
of world does not allow
Hearsay Evidence

There are Certain Basic Reason to not Allow

Hearsay Evidence
are : -

Person Saw/ hear is Cross

1) The Who
Actually
-

not available for -

Examination

hence against the Principle of natural

justice .

we cannot take Evidence of That Person of whom we Cannot

Cross Examined .

• He wont Be able to Answer

coherently .

•
He will always Dodge Every question .
 " ""

(2) Communication distortion

i negligent (not
-

wilful)
of Facts

GETER
however There are Certain Exegencies ,
where we have to allow Best

Hearsay Here here

Evidence - we allow
principle of necessity .

we will salvage

Ñ÷7✓- ]
declaration
no Evidence
Dying examples
All
Res festoe
At .

I
Based Foundation
Very Strong
on
ey are

only @
will Be
/ determine -
whether their is
Exigency ?
Indian Evidence Act .

Best Evidence Rule must Be distinguished From Best Rule of Evidence

Betke of Evidence
-

John Maine .

Those Rules which will govern a

judge when he
Appreciate on Evidence .

As Per Howard -
There Shall not Be
Any Best Rule of Evidence .
; Let The Judge
Be Free it Should be
.
discretionary ,
otherwise it will Bind the hands of The
judge .

Best Rules =☒ The

What will Be Rules
,
which will
Regulate appreciation of fuidence

which will Bind the hands of Judge .

most of The English jurist think that there should be no Role

,
his hands
as giving of evidence are
Prerogative of Judge
,
thug , Dont Bind By Putting
Rules of Evidence .
Judgment is
Baby of Judge .
A- what is in I. e. A

/ is it
only a
judicial discretion or

Do have Best Rule Evidence ? is there

we
any of any judicial
English jurist
-
There Should Be Complete judicial discretion . Restraint ?
• No
Judicial Restrain
Indian Evidence Act .

Section 5-
lays down judicial Restrain

C) if we talk about -

Regarding Relevancy of facts .

Judge Can Consider

Only Those matters that are * iowed Relevant
,
that are written in

Sec 6- 55

565 -

Judge cannot allow

any Secondary Evidence , A- law does not allow
,
or we

he Cannot the Sec

could Say , go Beyond Conditions mentioned under 6s .

Judicial discretion

1) See / 6s -

Any question can be asked

by Judge .

document Could Called

by
-

Any be Judge .

But not
Cross
of Judge
To examination
Absolutely unfettered
-

Bet •

r •
undiluted

?]
unbridle

✗Ñdicid
unfettered Power of discretion -165
unturned
Judge Judicial Restraint -5,65
given 4s 165 .
Golden
of
mixture
Both -
is in I. e. A ) fees

Binding
down the

Judge

Best Evidence Rule -

Rule Governing the Production
of Best Evidence
during a Trial .

Best Rule
of Evidence Rule that Apply he appreciate
judge, when
-
on a an

Evidence .
Re¥ncy -

keyword of evidence Act .

[ Logically Connected to
Something General meaning )
.

0 EXAMPLE
µ - murder

A- "

used to Eat "

Perches in
morning
1 "
on
day of murder -
First time eat Continental "
and died .

No
logic
-

Not Relevant .

G-Police
officer
-

Brings
a

| Their f) Example 2

investigation / had
he
Said Theft
\
,
done
,
- szs
_
Although - But
Confession Before Police officer
logically =
Not Allowed
Connected
.

✓ Confession
-
Still not Allowed .

On §1 At Present

1 of Police Custody Example 3

Accused Fiend
[ Although logically Connected .

Relevancy in Indian Evidence Act is not merely Based on

logic .
It is Based on LAW

Relevant
•

Anything which is logically Connected need not be

Surely in Indian Evidence
Act
.

Accused
6

Advocate

( Tell
-
Although Be
logically Relevant
,
that he done the murder )
allowed
Privileged/ But not .

communication -
not allowed .
 Act has own Rule of Relevancy
Evidence
.

Indian

These Rules are

i Public
Not Based But Based on
Policy .

on
logic
•

• •
Any Confession made
Before the Police officer may Be logically
Relevant But it is Forbidden By Section section
;
2s and 26

Relevancy hence depend on

LAW

&mm→
it is of Two
Types
•

logical legal ① IEA follow This .

Relevancy Relevancy

Admissibility
When Can An Evidence Be allowed to Become a Part of Court Record ?

relevant Can become in Court

•
only legally evidences admissible a
proceedings
that logical
things
geneeaÉibe
•
All not Under Indian Evidence Act
are
may .

Why They not Admissible = Because of The Public

•
need of society Policy .

•
Demand of legislature .

things admissible
Only Those are made which are allowed
by the sections of

Indian Evidence act .

legal the of admissibility of Indian Evidence Act

Relevancy is Bese
•
.
1

are
-

Aaa ily

The fact is sought to be proved is the principal fact

enter a fact which tend to establish it, is the evidently
factor. Bentham
A- the Concept of Relevancy has been made
?
why
it State , that A
is in the interest of the there must be an end to litigation
-

•
.

Common Rule of Jurisprudence •

interest Republica e est Sit finis litiom .

• it
Everything will be allowed as Relevant then there will be a
Huge Junk Be
,

Collected . Judges will have

problem
to weed out the
junk .
So in order to

Shorten the
process
]
•

-
Are Both in the interest of Justice
Hurry
.

•
up the matter

Hence it is
necessary that we should allow
only Relevant matters .

Section
g-
tread of Relevancy .

Section 5-
only Those things are Relevant
,
which is given under this Section .

[ "
And
"
Relevant
no other thing are .

Judges
"
Judicial Restraint -
Binds the hands
of .

Section 6- 55 -
Are
only Relevant .

<
Can Be divided into 7 heads

general Relevcncies -
(6-11) -

could be
•

specific Relevoncies .
-
(12-16) categorised as
"
General
"

•
Admissions / Confessions (17-31)
•
People who cannot be
brought Before the Court -

(32/33)
•
Special Circumstances , (534-539) -
mi selenious matters .

Judgments (540-94)
•

opinion Evidences ,
(545-51)
•
Character Evidences (552-55)
 """ *+ *

Cardinal
-
Judgment writing
philosophy Appreciation of Evidence
.
-

The process by which a Judge Comes to a Conclusion ; whether a Fact is

proved or not

is called Appreciation of Evidence .

it is the most
important Role -

To Check Demeanour of witness

• For the Corroboration

and Gfc
. -

Given under CPC

for
ritying)
•
the Contradiction
§p posing]

Fatsos Uno Fatsos Omnibus ? Critically Examine

in
,
in
!
"
it means false in "
one false in on
,
Beyond a Shadow of doubt -

Ipc
one Thing gone wrong , does not vitiate the whole Trial

and Complete trial does not

goes
For the toss .

Hence This Klin in

maxim is not applicable our
country .

Zyune Appreciation of Evidence

very important aspect of a

judgment
Judgement is an
Evidence -
Those Aspect appreciation of evidence by
needed to the judge
prove
/-
issue A charge
( in civil low ) ( in criminal law)

•
taken in a
judicial Proceeding in
] Court .

• or
Before
 Judicial proceeding

issue To Procne

charge To
or

disprove
f- Evidence
is
-

This is Appreciation
Required
Evidence
g

Evidence I Aptireiia ""

this is a
judgment
1 of
@
Judgment .

Evidence 1
It This will
Tney -

They
Are Bad also Result
Be
to Be Bad .

Bad .

Since we know Evidence is taken on -

Issue
,

charge
we have to look how issue
-

Are Framed ,

charge

Civil / Criminal justice System

Pre Trial
-

Proving / disproving Becomes

Trial -

Step , step 2 J of = →
Judgment
[ Who Evidence
Bring
The Evidences

Criminal Police
(
=
"
these prima facie " f. idences when been Brought)
Civil =
Plaintiff
Kart Applies its judicial mind .

Court Comes

into - Pretrial Stage

While Evidence Comes in later bitehure

Pretrial -
Foundation of a Trial -

↳ Civil law -
0
A Rainhjj gives
feint
-

his in a

Evidence
- Then the judge makes
a

f) Defendant written
]= gives his
judicial mind
-
.

Statement
his /
evidence . 010

(first Hearing )

He makes the mind

The
Regarding what are

issues
? Framed Ho 14 CPC
-
-
.

Hence First Aspect is Determination of

(
-

The whole

])
•
issues now on this
,

Trial Begins
Charges
•
.

After Then

Trial
begin .

FIR case

Police final Report -_ 5^173 GPC

Magistrate uses his

judicial mind .

•
which offence Committed .

Who has done it .

Then
Court has -
Court Frame Charges ,

now cleared its mind

•
what are issues -
Civil law

• what are the Charges -

Criminal law
A fair trial is the part of article 21; Right to life,

How can we do a fair trial if we cannot do the fair framing of issues

or charges

0-10 Court Gear its mind .

0-11 Party clear its own mind .

0-14 Court mind is

Absolutely Clear
,
On what
grounds / issues P have

to Run the
Trial •

in criminal law

t.IR final Report

-

-173

Court take G-gnizanc.ee -190

-
to
Deciding what are
going
be the Charges . •

Trial

Party
fun
issue
Evidence
-

, Bring
Charge - Police

Party (
Plaintiff )
-

witnesses

Documents -
Second
Party
Police Gun , Real will those
negate
-

eh
-
. -
. -

Evidences .

Party
]-
Examination 2

in
negate
-
Goss Examination
Greif
✗
witness is
witness
not
is Reliable
his Evidence Can
Be
Reliable

used in
judgment
Document -

Original Qa Di G- Duplicate Real Evidence

1- °
Proving / Disproving 1) Gun -

Ballistic
of documents .

Test
-
Barrel fingerprint .

not match -
uniquefor every fun .

with the fun .

Duty of the court:

•
To see
,
G 8
Cheij Cross

Party Party
Court duty is now
w
to see till Ltiow much the Evidences of Parties have been

Extent
what
they proved .

have and to what Extent , I Can use in

my
Breck Judgments

]-
•
.

negate The evidences .

Refute
•

what if ,
There are other Evidences
,
which are not
Refuted . Are
they
Enough to Pass a
judgment ?
This is Appreciation of Evidence
L .

It is The process, by which A judge comes to a conclusion, Weather of

fact is proved or not proved.

It is could also be said as Weighing by the judge:

Reliability of an evidence
Trustworthiness of an evidence
 1st -

Demarcation Evidence is done to

and aggregation of ,
do the

proper f.name work

.

This Process
is called marshalling of Evidence .

A- As a Judge ,
when evidence comes
; what is the First step you take
?

Sufficient
Segregate it

Evidences \ to -

as per order
of
on /
issue
Prejrence
2
•

many
issues .

issue
Jumbled list evidence important
of
•
. .

form
HE :¥
Evidence

It means arranging the evidence of parties after segregating it and

giving it a role of importance in a proper manner. In this, a sequence
is made and is laid in such a way that it becomes easy for the court
to appreciate the evidence later.
It’s a pre cursor of appreciation of evidences.

Steps to be followed for marshalling.

U

Segregate oral and documentary evidence into three parts.

Will see which evidence are related to which issue and which
charge.

Will correlate the evidences with the separate issue and the
separate charge.

Will arrange all the evidences as per their importance.

Suppose on one point, I have 50 oral evidences, now at this point I will
see whether to take all 50 evidences or the just best ones.
This is marshalling of evidences.

Appreciation of evidence
Steps:

1) is it relevant: it’s a court prerogative to determine whether the

evidence is relevant or not. 5.136 II. A -

2)court to check whether an evidence is admissible or not

3)
0
gives
1) Pi
-

Evidence
↳ * " To determine the

[
"

Pitch one of Evidence .

The pitcher
Party 2-
negates formed
-
Court duty
i± Emerging now
law

Every evidence has to be based on reliability

7
Can it Form the basis of my

Judgment ? ①

Appreciation oj Evidence

Orel -

B • from the examination of witnesses by

Examination in cheif and by cross examination

• Relate the evidence of one witness by other witnesses-

corroboration of evidence.
"
f ] -
Both
Them .

• To check the Demeanour of witnessLcr Pc Cover

 • .
What did the witness utter at the main moment.

•
When there is an injured witness (if any), he becomes
the part of transaction.2
His
the
Appreciation is highest .

Contradiction of witness : -

that he is Bad
•

prove of a character

he is stock witness
a
zero Reliability
-
•

•
Is he Contradicting any material Evidence

1-
oral
Real
Evidence Evidence
I 1

Reliability of
µ
a witness Brown
handle
Brown
handle
knife
knife
•
Cross Examination
Appreciate
• Behaviour in court
the

Corroboration Evidence
of Evidence
•
.

Document Supporting
Evidenceg-
•

• Real it

in Civil law
/

we cannot introduce new Evidence Court does not

to
/ Allow
go
All Evidence must / Beyond Readings
in Plaint
be
given
•

• Written Statements .
Documentary Evidence -
it not Proved
,
[just a
peice of Paper]
/ Proving -
Relates to maker of Evidence .

Proving document
•
of a

L Call the
mqker
Attested
-
cell those who Saw it made
person when was .

if no one
,
send to Gibert

•
check that original or
duplicate
/
does it met 565 .

Electronic Evidence
Anything is transmitted
Electronically ; Electronically
•
-
which

Created Evidence

-
565 AB

22 June
Does
Grrobgn
Evidence need be Corroborated 2
Every to

Am No -
5134 -

Evidence had to be
weighed not
Counting
,
.

A- Can be based Sole Evidence

judgment On
.

if "
its fully Reliable

Rule
of Prudence , withstand the Cross Examination "
-

Not law
-

LA-wot-rob-r.tn emanates from 5134

only .

L when it is
necessary ?
g)
When
Any doubt

arises on Guidance
↳ need supportive Evidences ,
to Verity .
Child witness - A
dangerous witness . .
Rule of Prudence
↳ we must corroborate them
f- •
¥
demands
Aee

Evidence be Tainted
)
may
( child
"

Accomplices ( Partner in Crime )

"

trustworthy
•
not
-

"
Above board
"'
not a
person
•
not Reliable

•
Interested witnesses .

]
incompetent]
→
•
not an who want that

witness win
.
his
Party the

case .

Creation
of
law -

Competency -
Come and di pose .

But
5^118
competency f- Reliability
L Person L Appreciation
Every of Evidence .

is
competent -
who Can

• understand the question .

answer
cohrentlly / Rationally
•
.

Competent witness not be Reliable

may
if he not Reliable Hence there
,

corroboration is necessary .

+ "

Evidence Above Stated

Supportive
" [ People "

A
Single Evidence of these are not
"
Enough .

1- Seda
my city Says -
I should not

be
completely Basing
my Evidence on a

Single Evidence of These Persons Because

 These Person Are not Reliable
,
Hence ,

As a Rule of lorudencey ,

Corroboration of Their Evidences

is
necessary !
•

Documentary Evidence
J L Proved
primary Secondary if document not

1
Long in 565 Condition .

then its
only a Paper
Preferred
Prove is that
•

necessary
to *
•

Doc Belong
•
written b É

Signed and written by _

g.ec#iEuidenle7(I- which
Act 2000 )
Any thing
Electra Electronic
moves on
magnetic or
wages

for this purpose

65A saw . 65 B IT Act 2000

it can be Relied on Brought J

many
•
C-ertincir-ms-e.es Changes in Indian Evidence
✓
.

Act
Given:#
:

[ if any of Them are not followed .

Then Such Electronic Evidences Carnot be Relied upon .

The matter come up in

Basheer Gon)
Anwar v.
sectioned [Sc Head E.
•

If any of the provisions of S. 65A r.w. 65B is not followed then

no electronic evidence can be appreciated for the purpose of
judgment.
Dying declaration -
5.32 - B .

In this case, a lot of responsibility is on the court as the person who

made the statements is no longer available.
That is why a Dying declaration is treated absolutely separately.

It carries a very important presumption.

A person does not die with a lie on his lips.

This is an exception to the hearsay evidence.

It is not that a dying declaration is the final, we can corroborate and
contradict a dying declaration u/S 158 of I.E.A.
L important
Becomes very
For
.

Appreciating Existence

Under what circumstances, the dying declaration was made

The person who took the dying declaration, how reliable he

is?

Was it a written dying declaration? -

All these Aspects .

Come under

What was the language of dying declaration?

Appreciation of
Was it given before a magistrate? Evidence

I
Also helps to

contradict the

dying declaration .
Hostile witness

C- own
a witness Revert
from previous Testimony .

his Evidence is not to be Rejected in

totality .

if Evidences are Corroborated

7 •
Then his

Evidence Can be

used .

opinion Evidence
f.

It is always personal, it cannot be allowed.

Opinion is only the prerogative of the judge.

Even the opinion is an of expert, it’s still a very weak evidence,

and it cannot be a substantive evidence.
J
those
only
•

• which will help Court in

a
long way .

lot
of weight age
•
which have

the basis
• on
of
which a
judgment
can be
given .

•
Corroborated Evidence
Cannot the Basis
•

form of judgment .

• Can never be Substantive Evidence

 Appreciation of circumstantial evidences
( which is made
through inferences .

1
Real Guidance must be This will Become Chain Evidences
of
-

taken in the Appreciation of Evidence .

have to be

Presence Completed
of .

independent Toughest job to do

witnesses

①
.

Creating a fake Evidence =

Padding .

it Sealed Sent For Examination

must be
immediately and .

what lo not included in a Appreciation ?

C) Personal knowledge judge

of
-
a .

Pritam singh v. State of Punjab

(1956) SC. Cannot
Judge Act Prosecution
-

as a .

•
If he Act as the Prosecutor , then Accused has
a
Right to cross Examined him .

judgment was Set aside .

Judge duty is not to fill the lacunar of Prosecution Cases .

The hearsay evidence

Section 59 of the evidence act says that:

All facts except the contents of document maybe proved by oral

evidence.
It means that where a written document exists, then evidence as to
contents of such documents can be proved by proving that
document, apart from it all facts can be proved by oral evidence.

Oral evidence is the one of the forms of the “Evidence” as defined

under section 3 of the Evidence act which means all statements
which the court permits or requires to be made before it by witness
in relation to matters of facts in question.

Section 60 of the Indian evidence act then provide that whenever

oral evidence is to be lead, it must be direct. evidence act does not
accept hearsay or indirect evidence . Section 60 lays down that
oral evidence must be direct. By direct it is meant that:

If evidence is to be led about the fact which can be heard, witness

must be produced who says that he heard it.

If evidence is to be led about the fact which can be seen, the witness
produced must say he himself saw it.

If evidence is to be given about a fact which can be perceived by

any other sense or in any other manner. The witness produced
must say that he perceived himself by that same sense or in that
manner.
So as a general rule of evidence, the oral evidence must be direct. Law
does not allow hearsay or indirect evidence because:

Hearsay evidence being second hand evidence based on information

given by other people, it is considered to be suspectible piece of evidence
and will not lead the court to any concrete logical conclusion.

Hearsay evidence cannot properly be subjected to a test of cross-

examination, because witness giving hearsay evidence having no
first hand and direct knowledge of fact relevant, will escape while
replying only I had so heard only

Admission of hearsay evidence will open the doors of fraud

Admission of hearsay or indirect evidence would encourage tendency
to lead a weaker proof of fact then a strong and more reliable proof.

So cold require the proof of any fact, must be given by most reliable
and probable evidence, this can be done by insisting upon any direct
oral evidence. However Indian evidence act has recognised certain
exceptions to general rule requiring direct oral evidence.

Exceptions to the rule of hearsay evidence

Statements which are part of res Gestae , Whether actually

constituting of fact in issue or accompanying and explaining of fact
in issue(section 6 of the evidence act)

admissions and confessions (S. 18-31)

Statements of person who is dead or who cannot be found or who

cannot attend the court in circumstances as are provided in section
32 and 33 of the evidence act.
Statements in books of accounts, government charge and public
records (S.34-48)

Opinion of experts expressed in any trade or is commonly opened for

sale and the grounds of which are held, maybe proved by indirect
evidence (proviso to Sec 60)
Can a dumb person be a competent witness.
Section 118 of the evidence act provides for the test as to who is a
competent witness.
According to the section, all person shall be competent to testify unless
the court considered that they are prevented from understanding the
questions put to them or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or
mind or any other cause of the same kind.

A lunatic is not incompetent to testify, unless he is prevented by his

lunacy from understanding the questions put to him and giving
rational answers to them.
Thus from above provision it is clear that all persons are competent to
testify however the only test laid down by the act of the competency of
witness is has capacity to understand and rationally answer the
questions put to him. From a bear reading of the explanation appended
to the above section, it is evident that even a lunatic, which he is in
lucid interval, is not in competent to testify if he can understand and
rationally answer the question Put to him.
As per section 119 of the evidence act, a witness who is unable to speak
May give his evidence in any other manner in which he can make it
intelligible as by writing or by signs; but such writing must be
written and the signs made in open court. Evidence or given shall be
deemed to be oral evidence.
So from this section of the evidence act, it is clear that a deaf and dumb
person can be competent witness. According to this section a witness who
is unable to speak may give his or her evidence in any other manner he or
she can make such evidence intelligible. The other manners in which a
person can make his ideas intelligible would be either by a written word or
by signs. The only restriction is that such expressions of the ideas by
means of signs or writing should be made in open court. In Kadungoth
Alavi v. State of Kerala, 1982 it was held that court in order to
understand and appreciate the evidence of such witnesses expressing their
ideas with the help of signs it should unnecessarily seek the assistance of
an expert so as to safely rely on such an evidence.
23 June

Preamble.— WHEREAS it is expedient to consolidate, define and

amend the law of Evidence; It is
hereby enacted
Prem nohr Nehete Us Chanda Siberia .

o -
O

Consolidation -

•
°o° •
→
: : -

All Scattered laws have been Combined under one

roof .

•
no other law will be allowed .

•
All Earlier laws have been Repealed .(have been Given weigh to I. E. A)

Amend -8 to improve on an
existing law
,
we make an Amendment .

••
will give now an additional dimensions .

Define -
does not
only Confine to
definition .

All Sections have

headings
-

got .

have
got Body .

Come
many have been
given
•
Explanation -

Everything under
definition .

• Provisions

• Illustrations .

Any Evidence - not allowed

by Indian Evidence Act
,
Cannot be allowed .

(all the Shall in

"
letters
principles be
followed and

spirits !
This is the law Evidence and this is
only of only
to be followed .

(landmark )
Union India 4s TR Verma class) Sc
of .

The principles of evidence and exclusion of evidence laid down in

this act must be strictly applied and cannot be relaxed at the
discretion of the court •
 In other words, law of evidence laid down in the Indian evidence
act it’s been put down in a straight jacket formula. No judge
can be allowed to go beyond the parameters laid down by this act
by using his discretionary power. So wherever the discretion has
been curtailed by the law, The court cannot invoke any inherent
power to override Indian evidence act.
Hence Indian evidence act, 1852 is a complete law of evidence
for India.

interview
Q- what if suppose something is missing from the Indian evidence
act, the court has Some peculiar circumstances and now court has
to take a decision?
In case there needs to do some interpretation which principle will
apply?

Aa=

In that case, first we will look that if there are any case
Precedents of SC or HC over the subject matter or not.

SC and HC, In case there are no precedent, we can go to the

common law to interpret any matter which has not been clear by
the evidence law.

In the case of state of Punjab v. Sodhi sukhdev singh (1961)

SC, in which the question came was that While interpreting
any matter, can the Supreme Court dwell on the English
common law.
It was held that, yes in case of any doubt or ambiguity
regarding the interpretation of any statute, specially in Indian
evidence act, if there are no precedents
Then Supreme Court can surely dwell on the English common law
for its interpretation. since most of the Indian law comes from the
common law, therefore there is no harm in it.

However English laws are not binding on us, but it can help us to
choose the right path.

Heading Preamble of the section -

it
mainly tell us

Body Parts of the section.

•

meaning
Explanation •

Scope the Section

-

g .

Provision • intention
Illustration To
¢9271 Devi des v. MR Chand

Be

Detailed Analysis of the section .

-
Sometime
, Something is not that much Clear
,

To Clear those doubts we need : -

•
illustrations
)
Part Section
of
•
.

Should be given Some

Bella Mal v. A. Shah (1918 ) Pc Status as
g a Section .

Illustrations are used to construct a body, if the meaning of the

body is doubtful, then the doubt can be clarified through an
illustration.
They clarify the intention of section, but cannot be allowed to
override the body or to negate the body. It is always subservient.

Tehsil dar Singh v. State OP (1959) SC

- of .

Proviso -
A
party the Section

actually add Abstract varies

particular Section
-
or or a .

it controls
/ modify /restrict a section
-

it Should Creed with Section)

not be read
separately along main
-
.
 Explanation : -

Can Come in the

form of Exception Sometimes
(
/given normally
to
it is

Remove
added

ambiguity
to give

from
stress to

the
the
Body
Sections
.

Indian Evidence Act -

(ex tori
( law the place Action where Trial is
of gone
-

of
Cow of Forum ) ( Always the Procedure

that land Applies

of ,

Where the trial is

Place
taking .

Lex fori means the law of place of action, So if an act or event

Occurred in a place outside India but the trial is taking place
in India, the procedural law which will be applicable Will be the
Indian law. Example if the cause of action has taken place in
England but the trial is taking place in India, it will be the
Indian evidence act that will be applicable and not the English
law of evidence.

This matter came for the first time in the case of Niharendu
Dutt v. Emperor (1942) PC
 Reasonable doubt - That doubt which a
Reasonably prudent man would Entail .

I
Vijay Singh 4s State
of Uttar
Pradesh 6990)Sc .

Prove beyond reasonable doubt does not means proove beyond the
shadow of doubt. if the evidence is so strong against the man And
it is of a Such a convening character that any reasonably prudent
person will not hesitate to act over it is the basis of the word
reasonable doubt.

%idenqeA -
167 Section

( I Repealed
3 Party
11 Chapter = 166 Section

Parti -

Relevancy of fact .

[ Preliminary -
CHI Ch -
Z

t
jurisdiction 1
Relevancy -

f- 5£
definition 3 Principle laying Section
-

Presumptions -9 . 6-55

general Relevcncier -
(6-11) -

could be
•

specific Relevoncies .
-
(12-16) categorised as
"
General
"

•
Admissions / Confessions (17-31)
•
People who cannot be
brought Before the Court -

(32/33)
•
Special circumstances , (534-539) -
mi selenious matters .

Judgments (540-44)
•

opinion Evidences ,
(545-51)
•
Character Evidences (552-55)
 preliminary (5-55) Relevancy of fact

(1-4) É
'
Parti __ ctii
( H2

PART -
I

④ ④ 61-9-0 -
documentary
FACT need not 56--58 {violence
Be Proved

PART -2
④ Putz
59-60
④ -

3,415,6
Oral 91 -
too -
Crxclusion of
Evidence Orel And doe Evidence .

1
Burden lol -114A (7 (9-118-139 (witness )
of
Proof .
Part }
=
PART -3
( 10 7,819,10111
(8
135-166
(85-117) Examination
witness )
of
• •
Estoppel neg
,①-
.

neg =
Chapters .

167 -

improper Admission / Rejection

5
6
7
 8

Tony

-
IF You Depose Falsely -
193 IPC
-
7- year

Punishment
•

-
.

Perjury -

offence .

193 (Punishment
→
Fabrication Perjury
[
/
False Evidence
Fake Evidence

191
defined
-
.

I 7-
year

/ Padding of Guide nun .

Indira gandhi
case -
Court
was Formed
8
in a Jail .
 Band

is
magistrate in general
a
judge .
-
only
when he is giving

illustration
a
definitive
£19 IPC -

Judgment.

word
Magistrate -9ns
-

magistral
'
'

French word
Judge
-

-
juger.

9
When India gained independence on 15 August 1947, the Act
continued to be in force throughout the Republic of India and
Pakistan, except the state of Jammu and Kashmir.,[3] Since the
independence of Bangladesh in 26th March 1971, it is in use
throughout Bangladesh though some necessary amendments have
been made. After 1947, the Act continues in force in India, but it was
repealed in Pakistan in 1984 by the Evidence Order 1984 (also known
as the "Qanun-e-Shahadat"). It also applies to all judicial proceedings
in the court, including the court martial. However, it does not apply on
affidavits and arbitration.
1
 1-

G)

Because Proceedings Evidence Are Judicial Proceedings

.

taken under
,

Anywhere Power
Executive Judicial
.

r Could say -

<
Quasi Judicial Because , full Power Court Are
of
- -

not

given .

Tribunals -
Judicial Power of a State .

II -
landmark .

2
• A Tribunal may
also be a
Party .

• Creation of State .
Tribunal Govern only
• its a stale Power , that it Can decide Such controversies .

one matter .

This
cbledly Called Judicial Power of State ! Court deals with
many .

in
always
The hands Executive
of
.

3
 Procedure
by legal
There Justice But Courts
They
is code of Procedure ,
governed by principle
no
Are
of natural are
governed

laid down by
legislature

f.

it Be Judicial Proceeding
, may .

4
Signed

00

5
 Cart for
d.e. Position under
Affidavit
Depose Deponent / oath
-

Come in
"
to
-

-
needs .

in Court .

5.30

So Controversial Process
-
not Save Time
,
Shorten up the .

/ the
of
court
.

,IGA .

6
 29 June not Arbitration
why
-

[ Because
Evidence
Of of the
degree of informality ; we Cannot
imply strict rules

" "

in Arbitration .
Justice Katju - we have to Read down the Law to
bring our End Product

Arbitration
•
we have to be flexible in .

Hence will its is there

be
governed by procedure only if procedure
•
or no
,

it will be
governed by principles of natural
justice .

CPC is
7
•

Also
not Applicable Arbitration -
Parties are Allowed to be Active in the whole
process
to Reach at the Common

Consensus

Arbitration And Reconciliation Act , Based UNICITRAL

modetlaw
1996
-

on

*
cnn.com#a1A-rbilra-n .

•
Commercial matters .
-

Contracts .
Domestic international

•
Torts #
Which does not
•
we have this in our
go
•
matrimonial matters Arbitration And Reconciliation

•
Criminal proceedings . Bhatia Int .
Us Bulk Act
/ 1996 .

Trading 120oz)
Insolvency matters
•

Lon international
Anti Competitors matters (changed monopolies Act) Arbitration
by
• -
.

• All those which have 0

/7- monopoly
Statutory Reliefs through Tribunals // / N Against freedom
-

of
GGG %
Came
or
Special Courts .
Trade -
÷ Competition Law .

Domestic
✓
cneij justice of -

Appoints Abritratork .

High Court

International
Lcneij justice of
India
-
Appoints Arbitrators
9- whether we took oath under Arbitration ?
Raipur Development Authority 4s Chokkhamal Contractors (1989) GD

it was held that Indian Oaths Act 1969 Applies to Arbitration Act .

Section -

2 *
Only Repealed Act in Evidence Act in 1938 .

Section -3 →
Interpretation Clause -
no
interpretation / definition can be taken as

/
Absolutely •
Sacrosanct

Are
we not
defining Them Rather we
Binding
•
are •

interpreting them .
•
unassailable

define things ,
it is
where
difficult to There we Use

•
interpretation clause
!

AHA

A definition or an interpretation in one law cannot be

superImposed on another law. But there is an one exception to it
Which is the Definition in the general clauses Act,1897 its
definitions and interpretations are applied all over the laws.

Hence,
Interpretations presentpresent in section 3 Are only applicable to
this act

Sometimes when we apply the defined term, The results of it are

very absurd, Unreasonable, repugnant to the very meaning of the
section. It is against the ethos of that provision. It is absolutely
fundamentally against the ethos of that section.
In that case we will not use that expression.
Hence expressions present in the section 3 are not watertight bodies.
We will not use them if they go against the ethos of that section.
 Interview

Contrary intention may be shown if the application of the defined

term, in a particular case Leads to absolutely unreasonable result
which is repugnant to the fundamental intention of that provision.

•
Courts → •• Includes all judges and magistrates
•• Judges and magistrates are two different things as per
evidence act.
•• all persons Who are legally authorised to take evidence
But it does not include arbitrator.

The word “Court“Has been defined by the Supreme Court in the case
of Braj Nandan Sinha V.Jyoti Narayan. (1956) SC.

“Court” is a body or forum which must have a power to give a

decision or a definitive judgement, which has finality and
authoritativeness Which are essential test of a judicial
pronouncement, if has to be treated as a court.

Court = This Above Answer

1- 5.19 Ipc -

illustrations

+ 5- zo Ipc Courts
of justice
-

Supreme Court legal aid committee V. Union of India (1994) SC

A court is an agency aided by the sovereign for the purpose of
administering justice.

Appeal Courts - Take Evidence

CRPC _-39l -041 R27

/ Cpc
if This was not there
,

not
Appellate

be Able
Court

to
could

take

Evidence .
?⃝
Fact word to
most
difficult define
-
.

Ptupson

No satisfactory definition of the word “Fact“ has been or perhaps

can ever be given, broadly it applies to the subject of perception or
consciousness.
Bentham -
Classified tact into

Physical Facts
7-
•

,
chooser
•

Psychological Facts By
Evidence
External Facts
A"
!
Internal
Percieued Cannot Seen
• which can be
by others
be

✗
.

by
Five Senses
of a Be
only inferred by Presumptions .

Man .
Can be deduced

I Can intention
always jealousy
•

depose , ,
motive
,
.ch .

"
I See
"
Seat is the mind .

I L

Direct Evidence inferred -

Circumstantial / indirect
-
Evidences .

Evidence
no
hearsay

n.gg/--actumProbandum- The Principle feet which is sought to be Proved in the Court .

÷.fi
Faetum Probans Proved
-
means
By which we are
going
to Establish the
fact .

use
we

A fact is the truth, Reality,

Canadian Criminal Evidence →
something that is come to pass.
Types of facts:
Affirmative fact
Antecedent fact
Circumstantial facts
Collateral facts
Constituent facts
Contemporaneous facts
Direct facts,…. Etc.
 Physical Facts
Fact means And →
•

Anything
includes
Percieved
• State
of Things
-
Capable of Being by Denser

/
.

/
•

Relation Things
g
Direct
.

Conditions
in
Evidence
which things
were
-
State
there at
!
things
.

-
unconscious
'
Sub -

Psychological Person Conscious Conscious

Factor Any mental Condition
of which
Any is
-

/
.

{
" is Not
Realm mind
"

of Ta Only Be Proved

t.TL
A

Psychological
inferences -
Indirect
Fact !
g.n.mg,.nu
good Faith ,
intention , motive
,
knowledge , ,

etc

illustration
Relation of Thing
.

Any / -

Certain
object Arranged in a Certain order in a Certain Place -
Fact (Physical)
State of

Thing

C-act
-

Physical
had Guidance
-3.60 I.
to his direct
give e. A .

Amon Saw Something .

An oral evidence must Be

1
"

direct
A
.

man heard

Amon
Something
.

Said

Those Person
he had
r ⑦ Intention
to
46 SDI
-

Fraud
opinion
AbQ×
a

only Their
opinion evidence

)
/
.

Allowed .

now opinion - Psychological

Fact I
gsxperb are

witness
•

only Acceptable opinion

Are not

Allowed .
 To hold
dijjrent -
giving
An
opinion Evidence I
-
From an
0

opinion

her
-
opinion

hold
if he -
she
- an
does
somethinJ opinion

- her opinion may Be Relevant .

-
he uses A Particular word in

a particular Sense .

is
/ was
-

he was

- At a
specified Concious
,
of a Particular Sensation . .

Time

Hearsay
-

-
A man has a certain Reputation
↳
if it is a
Composite hearsay ,
it is a Fact
.

7
has a
coÉÉiÉiii¥¥¥*¥¥¥
Hearsay
-

Relevan#- one fact is Relevant to other

,
when ④ is

with
Connected
Another

There Always 2-nin

-

Are

1 I
• "

in context connected with Each other

"

of
Another thing
connected
logically •
=

There is
An interconnection
btw Them .
?⃝
Two concept of Relevancy
•

logically connected
Giwa meaning)= Universal
with Each other
(
dictionary meaning)

Connected in
••
Any of the
ways -

Referred to in the

Provisions of The Act

/
. .

• Hence But in the ways

not
logically Provided By
LAW
/ .

go.sn#s::. tW
may Be logical ;
But not
Legal Relevancy
mentioned in those

under the

Not Relevant

Relevancy in the Indian Evidence Act is

Indian Evidence Act •• • *

governed by •

Admissibility
Here we have Word

Only
Relevant
To Become a
Par_tgrt
Legally
Could be Admissible .
it it Become Then

it Becomes the
only ,

Base
of Judgment .
 Indian Evidence Act is Immoral Act
an
!
i

He Stole Presented
you have
- -

-
-

in a court
An Evidence
your Evidence

/
will it Be
-

Record your
Admissible
?
Evidence
illicitly
-

Bea # and Take

7 B

Procurement
you illegal
your Evidence Guidance
of
• M .

.
Patodia V. RK Birla (197 DSC .
-

• Boran Mal v. Dir.

of Inspection (197-4) SC or
There is immoral

RK Mal Rani taking g Evidence

•
v. State Maharashtra (197-4) Sc
of
In all the Supreme Court
judgements it was held
cutlets
clandestinely
or

that, admissibility is
will it ✓
independent of and
Be Admissible How
you Procure
-

irrespective of the fact as to

does not matter
how, an evidence is !
-
procured. Even if the will Be
Relevant -

evidence is procured in an means dont

illegal or illicit manner matter

only
still the evidence remains Ends matter .

admissible.
 Fact in issue

It is a fact which is in the issue before the court, the main fact
which I need to prove the court is my fact in issue. The main matter
is the fact in issue which could also be said as the matter in
controversy.

-
Deal with CPE issue of Fact .

meirmo.tk/FactupIbandum Robers
-
we factors -
Evidences .

issue Fact
of
-
Things which I Am

Asserting
]
•

they Are fait in issue I

•

Denying •
 Explain evidence must be confined to the matter in issue

The expression fact in issue has been defined to means and

includes any effect from which either by itself or in connection
with other facts, the existence, nonexistence, nature or extent of
any right, liability, or disability, asserted or denied in any suit
or proceeding, necessarily follows.
Definition
-

Expression relevant has been defined under section 3 of Indian

evidence act as:

One factor is said to be relevant to another when one is connected

with the other in any of the ways referred to in provisions of this
act relating to the relevancy of facts. -

Definition
Section 5 of Indian evidence act provides the general rule that
evidence maybe given in any suit or any proceedings of the
existence or nonexistence of every fact in issue and of such other
act as me hereinafter declared to be relevant and of no others. Definition
-

So section 6 to section 55 of the Indian evidence act in one way or

the other provide about those facts which may be relevant in any
judicial adjudication process for deciding the controversy. As
pointed above there is a difference between relevant facts and fact
in issue, section 6 to section 55 of the act laid down many
provisions under which evidence is permissible to be led and that is
declared as relevant even if such evidence may not be fact in
issue.
In other words some provisions make certain facts relevant but
such may not directly concern with fact in issue. For example
section 8 of the evidence act provides that the conduct of any
person an offence against whom is the subject of any proceeding,
is relevant,
If such conduct influences or is influenced by any fact in evidence act,
evidence can be laid for all those facts which are necessary to explain fact
in issue or relevant facts which are necessary to introduce or with support
or rebut the fact in issue or relevant fact.

Section 11 of evidence act is one of those provisions which also declared as

to how a fact can be relevant. But careful reading of this provision makes
it clear that section 11 in one sense recognise those facts which are
normally inconsistent with the fact in issue but still can become relevant
and in that they form, exception to the rule that evidence can be confined
to matter in issue.

Section 11 of evidence act provides-

Fact is not otherwise relevant are relevant
If They are inconsistent with any fact in issue or relevant fact.
If by themselves or in connection with other facts they make the existence
or nonexistence of any fact in issue or relevant fact highly probable or
improbable.

Section 11 attempt to state in popular language the general theory of

relevancy and may therefore be described as the residuary section dealing
with relevancy of facts.
One fact is said to be inconsistent with the other when it cannot coexist
with the other.
Whenever under the provisions of the law, for the time
being in force relating to CPC. Any court Records in
issue of fact, the fact to be asserted or denied in answer to
such an issue is a fact in issue.

1
 Brraaekiish.hn

**ABABag

to

EAAB•use

2
 -
Evidences

L A Favour
3
 with FÉ -

I and
my Progeny will allow
villager to have water .

$ ☒
so

ma

a.m

4
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5
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Purpose
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6
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g
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BEKAA

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But

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7
8
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limit the
- scope of definition

AKHARA
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meaning get Enlarged .

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definition Exhaustive in nature .

I
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ueed for Tre

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areBKqoze-F-qo.ro

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 How to appreciate the
testimony of witness
we have different types of witnesses -
There is two aspects

competent → Reliable How will you know whether

a person is reliable
or not

witness chance wit

☒Hee officer as a witness

How vreliabte are witnesses ; will the
testimony of these person 's ,
will
they be taken
as it is g- OOI as a judge have to take their evidences
i the pinch of Sault their evidences
etre worth
appreciating .

No doubt
 exile of caution not a mule oflaw

Aew
always

Hakim

witnesses to be buese.at at midnight

you can't expect
was natural
witness and she has been cross examined in
wife
interested "

partisan witnesses

Relatives "

Heisnotworthy at all
his testimony should be
negated

in the natural course of business

witness is could
Ch¥ d Chance a witness who,

not normally beware when he was

found
 NPI

injured eye witness

highest evidencing value .

Measurable inference that he was fuesent

evidence have needed to discard
convincing grounds of
his evidence .
stunning character
.
 law which
no
says that the
defence witnesses should not
be equally

it was held may be defence

so do prosecution witnesses

Shavelly
testimony is to be discarded the court must

There is no presumption that the defence witnesses lie .

credence

policeman lies a police officer 's

retard
disinterested
.

On the testimony
owstik
 Certainty

Proved
)- non-Existence]
Existence Feet Always
-

Disproved 1 Evidences !
Done After Appreciation of

What not Those things

included which are not

in matter Relevancy
Legal
-

Relevant
-

by Evidence
.

Allowed
Art .

matters -

Everything not there in Evidence

included - which was
1
definition .
Read
highlighted'

only

if the Court is
satisfied that this
-

tact exists .

matters
#
widen The scope of
Evidence

considered
fact

2
 *hiaa-€-g@t
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to

3
 Alumni

4
 -
Justice Arijit Pasay at

certainty

5
 two

•• [
]

6
7
 -

8
9
 sedacity ,

/
Comitative y .

chain ) are given

it all evidences circumstances

BEAK
10
 Heung

Boo ve ⇐→

It means such evidence as would induce a reasonable man to

come to a conclusion
11
Kyung
Prove
Circumstantial
Direct
Evidence

The extent to which a particular evidence aids in proving the fact

in controversy is called as probative force. This probative force
must be sufficient to induce the court either (a) to believe in the
existence of the fact sought to be proved, or (b) to consider its
existence so probable that a prudent man ought to act upon the
supposition that it exists. The test is of probability upon which a
prudent man may base his opinion

No difference in the terminology of word “proove” has been given

in civil as well as the criminal law.
Accused Plaintiff -
Definition
Prosecutor "
Prove
equally Applies to them
"

Defendant of .

But standard
of Proof is
different :

In criminal cases, the standard of proof required is proof beyond

reasonable doubt while in civil cases, the standard of proof is the
preponderance of probability.

It is settled principle of crirhinal jurisprudence that the more

serious is the offence the stricter is degree of proof, since a higher
degree of assurance is required to convict the accused.
 in Criminal Cases

Since Accused is Presume to be innocent

do a

Standard
of Proof
B. op

-
Prosecution -
Beyond Reasonable doubt
-
Accused -

Preponderance of Probability .

1
In NDPS -

B. oP= Beyond Reasonable doubt

.

Dayabai Chaganbai thakkar v. State

of Gujrat

Inder State (Delhi

Singh v.
)
Adm 1978 SC

Credibility of testimony, oral and

circumstantial, depends considerably on a judicial
evaluation of the totality, not isolated scrutiny.

While it is necessary that proof beyond reasonable doubt should

be adduced in all criminal cases, it is not necessary that it
should be perfect.

Proof beyond reasonable doubt is a guideline, not a fetish and

guilty man cannot get away with it because truth suffers some
infirmity when projected through human processes. Judicial
uestq for perfect proof often accounts for police presentation
Feast
of fool-proof- concoction. Infirmity in some aspect or other
of this. prosecution case cannot invalidate the culpability which
is otherwise veraciously made out.
 N .

State of UP v. sukhbasi(1985) SC
Mere suspicion, however grave, cannot take the place of
proof, the judge should not get swayed by emotions,
suspicions and the court should not make any conjectures
and surmises.

Sarwar singh v. State of Punjab 1957 SC

the prosecution story may be true; but between 'may be true' and 'must be
true' there is inevitably a long distance to travel and the whole of this
distance must be covered by legal, reliable and unimpeachable evidence.

Sharad v.state of Maharashtra 1984 SC

It is well settled that the prosecution must stand or fall on its own
legs and it cannot derive any strength from the weakness of the
defence.
This is tritelaw. However, where various links in a chain are in
themselves complete, then a false plea or a false defence may be
called into aid only to lend assurance to the Court.

In other words before using the additional link it must be proved

that all the links in the chain are complete and do not suffer
from any infirmity.

It is not the law that where there is any infirmity or lacuna in

the prosecution case the same could be cured or supplied by a
false defence or a plea which is not accepted by a Court.
Proving - Should
only be done
by Best Evidence
-

Documentary / Electronic
Oral
'

witnesses

material
Ordinary witnesses

witnesses

mainly the
material

They have Evidences

The Base of
become

direct Effect in
The judgment .

the
judgment .

non Examination this witness

g
Bir Singh v. State of UP ( 1978 )Sc throws a doubt on the

prosecution Case .

•
its the Prerogative of the

Prosecution to
produce all or
Any witness .

But Produce the Evidence then it creates doubt

it does not material a

on it .

it Sufficient
Defective_nvestigati is not
ground to throw the
-

a out

Prosecution Case in
totality .

to do
what ?
Further investigation 4s 17318)CrPc if Trial not started
-
•

make it a
complaint Case 181 GPC Start the
inquiry
-
•
.

if Trial started

319 Crpc -

you Can make

any
Person Accuse of
The Crime .
 so .P is
(equally Applicable ) But
yes it Applies to Both
IEA
.
-

dijjrent .

Purely Civil Admissions (1+-23)

Purely criminal (25-30)
-
-

Estoppel (115-117) Character

Damages

Tape Recording -
matter Expressed upon a Recorded material

-
its a document

• its a
Primary Evidence .
-

judgment Can be based on it .

Provided its Reliable .

by Proving its
Credibility .

•
it could be a Corroborated -
Trap .

Sling -

main evidence (original Substantive )

 R.MN/A1Kaniv State Maharashtra
Admissibility of
.

of
Recording 1973 SC

Audio
•
Landmark Case on Tape Recording as an Evidence .

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May presumption
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Specific General
Presumption presumption

Section 114

Common cause of natural events

Human conduct

Public/ private buisness

Public and private buisness

A price tag of a certain time will make a presumption

that the seller is giving the product for sale on such
certain price.

Private buisness

There we could take a presumption that sending a letter

everyday via courier at 10.30 is the ordinary course of
9.00 letter write business.

10.30 everyday the courier goes.

Rebuttals
 RS NAYAK V. AR Antula
"y
Illustration are always consider as a part and parcel of the 1986 So
section, section 114 gives the list of certain illustrations which
court must consider while making a presumption.These
illustrations from A to I are not an exhaustive list, the Supreme
Court held that these mainly are illustrative list. Court can take
presumption on those matters also which are not cover under
this list. However whether the court takes any presumption, it
must weigh both sides of the coin. Presumption should not be
taken at the drop of the hat. Court must apply it’s judicial mind
while taking any presumption. Moment court takes
presumption in favour of a party, the burden of negating such
presumption shifts to another. Any fact may have two sides one
prima facie in favour and second opposing it.
Thus this section provides illustrations from A to I and also
have its rebuttals therefore the court should consider both in its
mind and after coming to the conclusion by applying his
judicial mind decide whether it may presume or it may not
presume.
 -
Possession of
p• There Shall Be An

Stolen goods •
Exclusive Possession >
No Access of others .

(soon After The Theft) - A Reasonable Time Frame .

ffrabhadrappa v. State of Karnataka 19835J

Less The Time GAP , Stronger is The

Presumption .

Unless he tells A Reason For his Possession .

-
He is

either -
• Tneit

•
Recieuer of stolen Property .

Dacoity \
-
Presumption
2
that he is CANNOT Be Taken .

s+%%÷
""
Exclusive
Possession
Presumption is Person Caught with Such
Property .

Presumption he
-
Soon After Very Strong
caught

}
he was
is The Reciever

of stolen
Property 1
year
-

Time gap .
Of The Dacoity .

less
Very
•

The Time
Hence GAP
•
more -

way, y, p.g.my , , ,

Rebuttal

dimming
-

"P

The Court must be

No time limit can be prescribed for the term “soon
/
Flop its
on
guard qq
after” it’s a question of fact and depend on case to
.

Court will Pros Cons

case.
weigh -
all and

and Then Should Come to 9

The term cannot be given a straight jacket formula
Conclusion .

The presumption under this illustrations can also be taken on any such person who has the
property beyond his means or the property which is an ill gotten wealth. For example a police
officer whose income is 20k per month and was found with 2cr in his possession and is
now unable to take its accountability; he will fall under this illustration.

Ronny v. State of Maharashtra 1998 SC

In this case, The articles of the victim were recovered from the possession of the accused
soon after the robbery and murder. When the accused could not explain the possession , The
Supreme Court held that we can safely presume that this Person committed murder also.
Limba Ji v. State of Maharashtra 2002 SC

The act of robbery and murder was committed by the accused, after they get caught, they were
found in possession of stolen property. They were not able to explain the fact that how did that
property came to them. Here Supreme Court again took the presumption that they had also
committed the murder.

But if there is no soon after and there was robbery and murder committed but the recovery of
stolen property has a time gap of one or two years, now there could only be a presumption that he
is the receiver of the stolen property.

Barkat Ali case

it corroborated Then he is Reliable

Active -
Participis Criminis
Accomplice Partner in crime

Passive -

Dormant Role - • 34 -

Common intention

• not
Trustworthy •
120 B-
Conspiracy .

•
Must be Corroborated .
•
Abetment

•
He is a Competent witness .

Accomplice Becomes A

Prosecution witness
quid pro quo .

He Will
Confess

Voluntary in
Exchange of Approver Gjovt . witness
:)

of guilt Some
Out good deed (306)CrR But Confession
Should be
Against
Sey And not for

•
Doctrine of But This others .

Salvage Principle of

criminal Necessity
jurisprudence is on .

Since There are

Provided There is £30 IEA Although lack of Evidence .

a
joint
Trial .

Against The Principle of

if Trial Criminal
no
joint jurisprudence
•

Confession cannot be Taken

Against Co Accused
-

.
•
Natural
justice .

But a Principle of Necessity .

Necessity
seeks no law .
28yd
What is the value of evidence of an accomplice?

Can a conviction be based on the testimony of accomplice?

What is the law of corroboration and when it’s needed in evidence act. It is not rule of law
but of prudence discuss?

Unworthy of credit

Barkat Ali v. Crown 1916

In this case it was dealt that why the accomplice would lie, why an approved will be of
unworthy of credit.

The evidence of the accomplice has to be accepted with great care and caution, it needs lot of
scrutiny because there are inherent problems in the testimony of an approver.
1) he has a motive to shift the guilt from himself to other,
He himself is an immoral person thus there are chances that he might commit perjury
2) if he has been an approver he will embroider his statements like a prosecutor story. He will
embellish each facts of the case to prove the guilt of the accused.

Hence we cannot rely on An accomplice until he is corroborated. He shall be corroborated in all

the material particulars.

He Be
•
may
Accused -5133
One Can
testify Against another Competent Decided by LAW
• • -
.

But not be Reliable

may
if he is
giving After
Fulfilling
Confessional Evidence Conditions £30 by Judge
of Decide on

For him but also Basis of Evidence

not
only alone
,
.

For the Co-accused .

Then Although
Confessional Evidence is only
Upto The Person who made and

not For others, Because it will violate The Principle of Natural

justice .

•
Confession Shall be
against Sey .

L But Balance it The Section 30 I. E. A

to
, legislation provide us .

r
Provided This is done .

Confession Against Co -
Accused
by Accomplice has been Allowed
by
530 II. A

Provided ÷ 1) There Shall be joint Trial both Co Accused

of
a • -

,
•

Accomplice .

2) Accomplice must be cross-Examined .

13£
Conviction -

Cannot be

set Aside

merely because

]
conviction is The statement
of
not
illegal Accomplice Are Uncorroborated .

-Éi . (B) f.
This Statement Although it Appears to be Antithesis

Section 114
goes Contrary with the illustration
By .

"

Hence it was Supreme Court who Clarified The matter in

Dagdu v. State
of
Maharashtra
SC Held that ,
These two 1977 Sc " .

Provisions are not Anti Thesis

-

But are
supportive , supplementing
to Each other .
 Acc to Supreme Court

Steps Should be Taken

Following
.

Step 1- Start with illustration (B) 5114 .

presume that : -

Accomplice is
unworthy of his credit .

But

step -2 -

if Accomplice Prove himself To Be Reliable

By helpoj 53-0
.

Trial
Joint
Accomplice with other Accused
gave •

his Statement

Once he is

Proved to He Cross Examined

Was
by Defence
•
.

Be Reliable •
his
Credibility was unshakable

on
•
it
Brings the Court
,
a Satisfaction that

Examination
If he withstand the Cross -

.
he is
telling truth, he is
trustworthy .

Court Can Pass Conviction his Despite the Fact his Corroboration
a on
testimony ,

has not be done .

Summary:

There is no anti thesis between sections 133 and illustrations B of Section 114 because the
illustration only says that a court may presume a certain state of affairs, it does not seek to
raise a conclusive and irrebuttable presumption. Reading the two together, the position which
emerges is though an accomplice is a competent witness and though a conviction may
lawfully rest on his uncorroborated testimony yet the court is entitled to presume that no
reliance can be placed on the evidence of an accomplice unless there is material corroboration.
Once the accused has been proved to be reliable in the eyes of the court then section 133 can be
resorted to.

How will an accused be corroborated?

Ways for corroboration

Mahadev v. King emperor 1936 PC

Two aspects were laid down by this judgment regarding corroborating the testimony of an
accomplice
previous statement of an accomplice cannot be used to corroborate his own statement.
Neither he could be corroborated by the statement of other co accused.
Principles of corroborating an approver

1) Rameshwar v. State of Rajasthan 1952 SC

2) Kannan singh v. State of Tamil Nadu 1989 SC

3) Abdul sattar v. Union territory of Chandigarh 1986 SC

The honourable Supreme Court has laid down four principles in these judgements
In regard to the nature and extent of corroboration for accomplice.

1) it is not necessary that every material circumstances of the case must be corroborated by
independent evidence in every case.

2) Independent evidence must be reasonable in nature upto the matter it connects accused with
the crime.

3) independent resources does not include other co accused for corroboration

4) it is very difficult to give direct evidences, corroboration can be through circumstantial

evidences
Law of corroboration

Section 134 of evidence act tells us that number of witnesses are not important, a judgment
can be based on the testimony of one witness. A single witness may be sufficient to prove a
matter, it all depends upon how reliable he is. If the testimony of the single witness is
absolutely reliable, unimpeachable and inspires complete confidence in the court then there is
no bar in passing the judgment on the mere statement of one single witness.

In other words, it is not necessary if a witness have been found to be absolutely reliable to
corroborate him. It is not longer necessary.
Corroboration is not a rule of law had it been rule of law, it meant that independence evidence
must be supported by supportive or corroborated evidence. Section 134 clearly says that
corroboration is not a rule of law.
Section 133 also say that a conviction can be based even on the uncorroborated testimony of
an accomplice. Hence corroboration is no longer needed if the accomplice inspires the
confidence of the court.

The question arises when is the corroboration needed.

When the witness/ evidence is not reliable and it cannot stands on his own legs, it needs
supportive evidence then in such case we need other evidences for the support and for the
corroboration.

Some evidences are tainted while some are under the cloud for example evidences of
accomplices, children, interested witness where their evidences are taken to with a pinch of salt.
There any reasonable prudent man will say
He is not ready to pass judgment on basis of these evidence only and hence he need supportive
evidence which are cogent enough which can be the base of the judgment.
Hence corroborated evidence becomes the need of prudence and therefore it’s a rule of prudence
and not of law.

Marwadi Kishore parmanand v. State of gujrat 1994 SC

In this judgment it was clarified by the Supreme Court that when should corroboration be
taken. It was observed that there are three kinds of evidence
1) wholly reliable like eye witness who withstand the cross
2) wholly unreliable like the stock witnesses
'
3) neither wholly reliable nor wholly unreliable and here only the corroboration is needed.

Kathi Bheema bhai v. State of gujrat 1993 SC

It was held that if the testimony of solitary eye witness is wholly reliable then conviction can
be based on the single witness.

÷÷÷.BEe•
 it

ceases
 All laws made the
by parliament are Correct
and are not unconstitutional .

FF€fgig

f qgguumyyy.GG followed
)]-
" A "" " are
That
To cnaienge
gene ,
is the
Appeal
Are not as
Remedy Revision
•

Per
Constitution ,

SC can declare
Them
unconstitutional .
 law
°

Test they become

Sometimes
of Reasonability implementing
•
is not Applied while - .

, ,
draconian

Knee
jerk Reactions in law are
always
counterproductive for Society .

gotticiae
Transaction
,

Mamma

Ahnspsernyt
 illustration
(g)

Swati Lodha v. State

of Rajasthan 1991
Raj tic

if Party Refuses to give

µ
• medical Examination
• Test identification

Handwriting
•

its open for Court draw

may
-

the Court .
an adverse

possession .
 Yes

Proved
ydesser
Than .

1
To
give
prima
Facie
not mentioned
evidence .

s
But For
Cruelty under 5113 B- Where Clear Symptom of Suicide is

Dowry
peg

cruelty
has been
"
shall
Presumed !
 1786

Every

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if capable .

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LAW .

Ataxia Hang
Shall Presume

Sections covered:
S. 79 to S. 85
S. 85A, B, C
S. 105
S. 111A
S. 113B
S. 114A

Section 79: Presumption as to genuineness of certified copy

This section is based upon the maxim omnia proesumuntur
rite esse acta (all acts are presumed to be rightly done).
This section applies to:

an o cer of the Central Government or of a State

Government

is authorized by the Central Government in that behalf,

to be genuine.
The section has also been held to apply to a carbon copy of a
court order is
"true copy .
The words "shall presume" indicate that if no other evidence

the section exists.

Hence, Under this section when a document that purports to
be a certificate or a certified copy and is produced with the
certificate mentioned in section 76. Then the court is bound to
shall presume that the said document is
genuine
it cannot be contended that there are any mistakes in such
document.
This section also lays down that if a document that purports to
have been signed or certified by any officer,
It shall be presumed that such person held that office at the
time when he did so.
Note: such a presumption is permissible only if the certified
copy is substantially in the form and purports to be executed
in the manner provided by the law (S.76) in that behalf.

Section 80:
Presumption as to documents produced as record of evidence.
The section is applicable
to a document which purports to be a record or
memorandum of the evidence given by a witness in a
 authorized by
law to take such evidence and
to a statement or confession by an accused person, taken
in accordance with law, and signed by any Judge or
Magistrate
When a deposition is taken in open Court or a confession is
taken by a Magistrate, there is a degree of publicity and
seriousness
presumption that everything was formally, correctly and
honestly done.
In this section, presumption is taken about the fact that the
Document is genuine
Any statements as to the circumstances under which it
was taken are true
The person who is purporting to made such statements
and the person who signed are same. (A has made
such statement and A has only signed it)
Such evidence, statement or confession was duly
taken.

The presumptions to be raised under this section are

considerably wider than those under section 79. They embrace
not only the genuineness of the document, but that it was duly
taken and given under the circumstances recorded in the
document. The presumptions under this section are not
conclusive; they may be rebutted.
This section merely gives sanction to the maxim "Omnia
praesumuntur rite esse acta with regard to documents taken
in the course of a judicial proceeding.
No presumption can be made regarding the identity of the
person who made the statement. A deposition given by a
person is not admissible in evidence against him in
subsequent proceeding without proving that he was the person
who has examined and made the statement.
Statements in writing made soon after the incident are far
more trustworthy than later denials or embellishments.
no presumption can be taken of the contents of such
statement/ confession.

Section 81: Presumption as to Gazettes, newspapers, private

Acts of Parliament and other documents
Government Gazettes (London Gazette)
newspapers
journals
copies of private Acts of Parliament
printed by the King's Printer are prima facie proof of their
genuineness.
Presumption which attaches to a newspaper under this section
cannot be about the proof of facts published in it in the
absence of the maker of the statement appearing as a witness.
The facts written in such newspaper are hearsay evidence,
therefore they have no evidentiary value. They could only be
helpful for a magistrate to take suo moto cognizance of an
offence. If such facts written in the newspaper are proved by
evidence aliunde, then in such case, the court may take a
reliance on such fact.
Lakshmi Shetty v. State of Tamil Nadu 1998 SC
a newspaper report is merely a hearsay and therefore
inadmissible in evidence. Similarly, translated copies of
newspaper cannot be considered by the court as an original
newspaper. The presumption under Section 81 is only
regarding the existence of a genuine newspaper.

Section 81: Presumption as to Gazettes in electronic forms

The court has to presume the genuineness of any electronic

the electronic record directed by law to be kept by a person.

It is necessary that the electronic record is substantially kept
in accordance with the form required by the law and is
produced from proper custody.

Section 82: Presumption as to

document admissible in England without proof of seal or
signature.
This section enables the courts to recognize presumptions
with regard to certain classes of documents which are
recognized in English Courts.
The court must presume
(a) that the seal or stamp or signature is genuine; and
(b) that the person signing the document held, at the time

Documents which, without proof of the seal or signature, or of

have been signed, are admissible in England or Ireland, will

be admissible in courts in India.

Section 83:
Presumption as
to maps or
plans made by
authority of
Government
The maps and plans are of many types such as:
maps made by government
maps made by society
maps made by an individual
The presumption as to accuracy is limited only to maps or
plans made under the authority of Government.
Such maps or plans contain the results of inquiries made
under competent public authority. It imbibes in itself the
process of checks and rechecks by the bureaucrats and
expertise.
In all other cases proof of accuracy is needed. Where maps are
prepared by private persons no presumption in favor of
accuracy can be drawn under this section.
This section must be read with section 36 (admissibility of
maps and plans made by the govt.), which deals with
statements in maps, charts and plans. These are provable

copies.

Section 84: Presumption as to collection of laws and reports

of decisions
In this section, the court shall presume the genuineness of
every book purporting to be
printed
published
under the authority of the government of any country,
the book contains any of the laws of that country
the book contains reports to decisions of court of such
country.
 This section should be read along with section 38, which
makes relevant statements as to any law and rulings

It dispenses with the proof of the genuineness of authorized

books of any country containing laws and reports of decisions
of courts.
Section 57 authorizes the courts to take judicial notice of
the existence of all laws and statutes in India and in the
UK.
Section 74 recognizes statutory records to be public
records.
Section 78 lays down the method of proving the statute
passed by the legislature.

Section 85: Presumption as to powers-of-attorney

q- what is a power of attorney?
A power of attorney (POA) is a legal document
giving one person (the agent or attorney-in-fact)
the power to act for another person (the principal).
This agent can have broad legal or limited authority to
make decisions about the principal's property, finances,
or medical care.
According to Section 2(21) of Indian stamp act,
"Power-of-attorney includes any instrument empowering a

executing it"
Instrument: any formally executed written document which a
law demands to be made in a legal way.
The court shall presume the due execution and authentication
of a power-of-attorney when executed and authenticated by
a notary public, or
any Court,
Judge,
Magistrate,
Indian Counsil or Vice-Counsil, etc.
The section does not exclude other legal modes of
proving the execution of a power-of-attorney.

For creating the presumption about a foreign power of

attorney, the document has to be authenticated by the
Indian Counsel or the relevant Indian Authority.
Power of Attorney
Raj Kumar Gupta v Des Raj, AIR 1995 HP
The mere fact that the document had not been drafted or typed out by
the executant before the Notary Public and the fact that the typed
matter duly signed by the executant was presented before the Notary
Public, did not in any way, make the execution and authentication
doubtful.
Presumption as to due execution and authentication is available in
favour of the original power of attorney holder provided the mandate
of section 85 is duly followed.
Presumption is only of:
Execution
Authentication of such document
Presumption as to of foreign notaries
Rudnap Export-Import v Eastern Associates Co, AIR 1984 Del
A power of attorney in favour of a company's permanent delegate in
Delhi authenticated by a judge of the foreign country, due execution
and authentication was presumed.
Section 85A Presumption as to electronic Agreement
This section was initially inserted vide Information Technology
(Amendment) Act, 2000
In 2008, an amendment was made in this section, whereby the word
"digital signature" was substituted by the word "electronic signature"
at three places in this section.
This substitution is a part of the entire scheme under which the digital
signature regime is being switched over to the electronic signature
-commerce and e-governance.
This switching over of regime is meant to broaden the spectrum and
follow the global trend.
Meaning of Digital signature

To know the meaning of digital signature, we have to understand

what is e-commerce.
The term e-commercial is used to define commercial transactions
which take place over the Internet through an electronic medium. The
buying and selling of goods and services at different online platforms
and websites is termed as e-commerce.

M-commerce
The term m-commercial can be said to be a form of e-
commerce itself. Though it is a process in which e-commerce
transactions i.e. buying and selling of goods online over a
platform is done through a portable wireless device such as a
Mobile phone, tablet, etc
By the usage of M-commerce or E- commerce, we do the E-
contracts, an e-contract is nothing but an electronic version of
such contracts where both the parties agree for the buying,
selling or use of certain goods and services which are
available over the internet.

It was in the case of Trimex International FZE Vs Vedanta

Aluminium Limited that the Indian Courts recognised the use
of e-contracts for the first time.

Digital signature:
The consent of the parties to an e-contract can be recognised
with the help of the digital signatures which should be present
on behalf of the parties in these contracts.
A digital signature is a code which is attached to every
document online to verify the contents of a document and for
recognition of the s
The digital signature helps to identify the evidentiary value of
an e-contract as the digital signature becomes a proof of
consent given by the parties entering an e-contract.
Section 67A of the Indian Evidence Act considers the
attachment of a digital signature to an e-contract as enough
proof for consent, though such needs to be proved if such
digital signature is alleged to be affixed without consent.

Can e-contracts be valid

evidence by the Indian Courts?
Section 65A:
It is Section 65A of the Indian Evidence Act that is used by
the courts in India to recognise e-contracts as valid evidence.
Section 65A of the Indian Evidence Act, says that electronic
records can be proved at the court of law by way of
complying with the provisions of Section 65B of the Indian
Evidence Act.
Section 65B deals with the provisions with regards to the
admissibility of such documents as evidence under the Indian
Evidence Act.
Section 73A
section 73A talks about the validity and genuineness of such
digital signatures. The section also tells us about the
court in case any doubt arises with regards to the affixed
digital signature to an e-contract.
Section 85A
This section specifically talks about the
presumptions of the courts in India with regards to
electronic agreements and says that the courts shall
presume that every available electronic recording
which has an electronic signature affixed to it shall
be considered to have a valid evidentiary value
under the Indian Evidence Act and in the eyes of
the courts in India.
But first of all the party to a litigation has to prove
before the court that the electronic signature
actually belonged to that only, the terms of
proving are mentioned under section 67A of the
IEA. Once this aspect is proved, the court is under
an obligation to presume that the agreement was

the parties.
No further proof is to be required for the purposes
of proving the execution of that agreement in the
electronic format.
[ 67A Proof as to [electronic signature]. Except
in the case of a secure [electronic signature], if the
[electronic signature] of any subscriber is alleged
to have been affixed to an electronic record the
fact that such [electronic signature] is the
[electronic signature] of the subscriber must be
proved.]
The word secure electronic signature includes
those signatures which involves government
agency. involve those Signature which involve Private key encryption
or , ,
discryphon
by key
Though there are a few restrictions on such
.

presumptions which shall be discussed in the

following sections.

Section 85B: This section tells us that the court shall presume
that the e-contract or documents which are being presented in
front of the court have not been tampered with i.e. they are
presented in their original form without anyone making any
alterations in it, in case it has been proved that such records
have been tampered with.
The secure status of such information shall be required to be
maintained until a specific time.
The section also tells us that once a digital signature is affixed
to an agreement available online, such shall be presumed by
the courts to be an acceptance of such agreements
 This section intends to grant the sanctity of rebuttable
presumption to secured electronic records and signatures.
Under sub-section (1), where a secure electronic record is
involved, the court is under an obligation to presume that the

point of time to which the secure status relates, unless the

contrary is proved by the party which wants to impeach the
sanctity of such secure electronic record.
Under sub-section (2), clause (a) provides that where a secure
electronic signature is involved, the court is under an
obligation to presume that the secure electronic signature has

approving the electronic record.

However, clause (b) explains that nothing in this section
imposes any obligation upon the court to presume relating to
authenticity and integrity of an ordinary electronic record or
an ordinary electronic signature, except where it is a secure
electronic record or a secure electronic signature.
These statutory presumptions are rebuttable and the party
which wants to impeach the sanctity of such secure electronic
record or such secure electronic signature can prove the
contrary by leading cogent evidence of the secure electronic
record or the secure electronic signature having been
tampered with.

Secure system is defined in section 2(ze) of the IT Act as follows:

(ze) "secure system" means computer hardware, software, and procedure that
—

(a) are reasonably secure from unauthorised access and misuse;

(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended function; and
(d) adhere to generally accepted security procedures;
mg no

^^

In 2008, an amendment was made in this section, whereby the

,
c

word "digital signature" was substituted by the word "electronic

signature" and the word "digital signature certificate" was
substituted by the word "electronic signature certificate".

After this amendment, the court is under an obligation to presume

that information listed in an Electronic Signature Certificate is
correct, unless the party challenging to impeach the Electronic
Signature Certificate leads positive evidence to shake its veracity.

However, under the second limb of this section, the presumption is

not applicable to information specified as subscriber information,
which has not been verified, if the certificate was accepted by the
subscriber.

Therefore, the presumption is only valid up to the certification done

by statutory regulator who has been empowered to issue certificate
and not for subscriber's information, which is attributable to a
subscriber which remains unverified
 Enrobing the Principle of Necessity

When a document is called for and not produced after proper notice so to do, the court shall
presume that it was duly attested, stamped and executed in the manner prescribed by law. The
section refers only to stamp, execution and attestation of documents. It is restricted to cases
where notice to produce a document is given to a party.

Where a document is shown to have remained unstamped for some time after its execution, the
party who relied on it must prove that it was duly stamped. Where the defendant failed to
produce mortgage deed despite notice, presumption that the mortgage deed was duly attested
could be drawn.

7
¥0
• Applies
offences
.

Exception to
Woolmington Case .
All
In our opinion three cardinal principles of criminal
jurisprudence are well settled, namely:—
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity
of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
(3) that the onus of the prosecution never shifts.

In criminal cases the burden of proof, using the phrase in its strictest sense, is always upon
the prosecution and never shifts whatever the evidence may be during the progress of the
case. But according to this section, the burden of proving any of the exceptions or general
exceptions or provisos is on the accused which is although an exception to the woolmington
case.
The onus of establishing an exception shifts to the accused when he pleads an
exception. The Court never presumes the existence of circumstances which entitle the accused
to his defence. But The burden on the accused to prove his defence stands discharged by
showing preponderance of probability in his favour. This section is to be read with section 6
of the IPC.

Answer:
Section 105 is a negation of the general principle of criminal jurisprudence laid down by
the woolmington v. Public prosecutor 1935 English law. In section 6 of IPC it is very clearly
mentioned that every offence is to be read with entire chapter of general exceptions which as
per Rizan v State of Chattisgarh (2003) The court is under obligation to give this benefit to
the accused if he has not taken it, however, to balance matters, Section 105 in Indian
evidence act has been created. It says that the burden of proving the circumstances under
which the accused want to take a benefit under general exceptions, exceptions or proviso Lies
on the accused. In clear negation of the woolmington principal, not only that, the second
aspect of S.105 is that The court shall presume that circumstance of general exceptions,
exceptions or proviso does not exist. The accused has a Double duty of not only proving but
also dispelling the presumption taken by the court. However, He being an accused, There is a
presumption of innocence which is always there on the accused therefore, The standard of
proof on the accused is always preponderance of probability.

Dahyabhai v State of Gujarat, AIR 1964 SC

the burden of proof upon the accused is no higher than one which rests upon a party to civil
proceedings.

Bhikari v State of UP, AIR 1966 SC

 .net
Amendment
.

11986
Why

When the question at issue is whether a person is guilty of dowry death of a woman and the
evidence discloses that immediately before her death she was subjected by such person to
cruelty and/or harassment for, or in connection with, any demand for dowry, section 113-
B, provides that the court shall presume that such person had caused dowry death. Of course
if there is proof of the person having intentionally caused her death that would attract
section 302, IPC.
Presumption of dowry death under this section has a purpose. It is a beneficial provision
aimed at giving relief to a woman subjected to cruelty routinely in an Indian household. The
meaning to be applied to each word of this provision has to be in accord with the legislative
intent. Even while construing this provision strictly, care will have to be taken to see that its
object is not frustrated,.

The presumption under this section is attracted only in case of suicidal or homicidal
death and not in case of an accidental death.

Presumption under this section is a presumption of law. On proof of the essentials

mentioned therein, it becomes obligatory on the court to raise a presumption that the
accused caused the dowry death.

While the words "shall presume" in section 113-B mandate that the court is duty bound to
proceed on the basis that the person has caused the dowry death, the presumption is rebuttable
and it is open to prove that the ingredients of section 304-B IPC are not satisfied.

Presumption—When may be raised.

The presumption under section 113B shall be raised only on the proof of the following
essentials:
1) The question before the court must be whether the accused has committed the dowry death
of a woman. This means that the presumption can be raised only if the accused is being tried
for the offence under section 304B, IPC.

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for or in connection with any demand for dowry.

4) Such cruelty or harassment was taking place soon before her death

The requirements of this presumption in offence under section 304-B of IPC for the purposes
of its applicability, have been thus re-phrased by Supreme Court :

death should be of burns or bodily injury or has occurred otherwise than under normal
circumstances;

within seven years of the marriage; and

that soon before her death she had been subjected to cruelty or harassment by her husband or
his relatives.

Even if one of the ingredients is not made out, the presumption under section 113-B of the
Evidence Act would not be available to the prosecution and the onus would not
shift to the defence.
A husband committed suicide. The alleged cause was cruelty by wife. The court said that a
presumption under the section could not be raised against the wife.

Soon before her death.—

The term "soon before her death" has been employed by Parliament to refer to cruelty or
harassment which was meted out in proximity to the death and has to be considered as the
cause of death. The provision does not employ the term "at any time before" nor
"immediately before" and must be construed in its true import.

If the alleged incident of cruelty is remote in time and has become stale enough not to disturb
the mental equilibrium of the woman concerned, it would be of no consequence.
Section 114A: it was added by 1983
amendment act,
Tukaram v State of Maharashtra, (1979) 1 SC which is also
known as Mathura rape case , this case is the turning point
of rape laws in India. From this case only, the 1983
amendment came.
However, there are two turning points in the rape legislation
in India. Earlier Rape was not seen with eyes of seriousness. It
was said that if the women do not show any struggle, it was
implied that she has given the consent.

with rape, have been amended twice since the Indian Penal
and the Indian Evidence Act, 1872
were enacted.
The first amendment was made in 1983, in the wake of the
judgement of the Supreme Court in Tukaram v. State of
Maharashtra, ingrained in popular memory as the Mathura
Rape Case.
The Supreme Court, reversing the judgement of the Bombay
High Court, had acquitted the accused policemen of charges
of custodial rape of a 14 16-year-old tribal girl.

had not successfully shown vitiation of

consent by fear, and that she had not offered proof of her
resistance against two fully grown policemen, in a police
station, at night.
the judgement generated sufficient outrage for the creation of

party.
These groups, in turn, created enough political pressure for
the government to amend the law.
Unfortunately, however, the Criminal Law (Amendment) Act,
ignored several of the suggestions

comprehensive.
The changes that made were in S. 376 IPC and S. 114A of the
evidence act and other changes in the code of criminal
procedure.

1997 Vishaka and others v State of Rajasthan case

a PIL was filed by vishakha in which it was prayed that the
offence of rape should mean the invasion of the body of
women in any way. The law commission was also agreeing
with such fact but no heat was catch up to it.
2002 amendment to Indian Evidence Act

-
examination of a rape victim.
This was pointed out in a PIL filed by an NGO named Sakshi.

trials had become to humiliate and degrade the sexual

integrity a
them as someone who had undergone mental and physical
trauma and someone who needed to be protected.

2012: Protection of Children From Sexual Offences

(POSCO) Act

The POCSO Act, 2012 is a comprehensive law to provide for

the protection of children from the offences of sexual assault,
sexual harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process by
incorporating child-friendly mechanisms for reporting,
recording of evidence, investigation and speedy trial of
offences through designated Special Courts.

2013: Criminal Law (Amendment) Act

Almost thirty years after the 1983 Amendment, another
heinous incident of gang-rape came to light on the night of
December 16, 2012. Some said the outcry in Delhi could be
traced to the rape 41 years ago.
A 23-year-old, middle-class girl had been vaginally and anally
penetrated by a group of men using their hands, their penises,
and an iron rod. She did not survive the assault.
The incident took over the news cycle and agitated the middle
class like never before. Protesting masses demanded a stricter,

understanding of rape had thus far been limited to penile-

vaginal intercourse.
Other forms of penetration were, indeed, covered by S 377,
IPC, which proscribes carnal intercourse against the order of
nature.
2018: Criminal Law (Amendment) Ordinance
In January 2018, an 8-year-old girl named Asifa Bano was
raped and murdered in the district of Kathua in Jammu and
Kashmir. Seven people were named in the case chargesheet,
four of whom were police officers charged for attempting to
cover up the case. The main accused, Sanji Ram, is a priest at
the temple where the rape evidently took place. His nephew
and son, both juveniles, were also accused.
The pressure on the government to legally address this crime
led to an almost immediate policy change with this Ordinance
only 3 months after the incident.
This change was mainly made to POSCO since it was against
a child. It made rape of a child below age 16 punishable by a
minimum of 20 years imprisonment but provided for the death
penalty for the rape of anyone below age 12.

In a broader concept two important amendment that become

the turning point in the rape legislations were:
1) 1983 amendment
2) 2013 amendment
Both amendments shows us the glimpse of women
empowerment laws

Consent:
 1) It is a key word for rape
2) Earlier the consent age started from 10 then goes to 12,
16 and now its 18.
3) If its not a vitiated consent, it condemns rape.
4) Major aspect in rape revolves around will and consent of
the women.

Application of S 114A :
it does not apply to all rape cases; the presumption is
applicable only on aggravated form of rape that is in s. 376(2).
Section 114-A no doubt addresses the consent part of the
woman only, when the offence of rape is proved but it also
impliedly would be applicable in a matter where the victim
girl had gone to the extent of committing suicide due to the
trauma of rape, and yet was sought to be disbelieved at the
instance of the defence that she had woven a concocted story,
even though she suffered the risk of death after consuming
poison.
Sexual intercourse by the accused is proved:

those clothes of the victim girl (or women) which were/are

worn beneath the waist as those clothes would contain the
stains of semen. This should be done without any delay as by
washing of those clothes the stains may disappear and entire
investigation may go waste. Women also undergo invasive
medical tests that often end up doing little beyond harming
their case later in the legal process
It is not necessary that sexual intercourse must be proved only
by the transmission of reproductive fluids. It can also be
proved by:
Struggle marks of the victim
DNA and other blood tests
meaning of "Sexual Intercourse" shall be the same that has
been attributed to any of the acts mentioned in clauses (a) to
(d) of section 375 of the Indian Penal Code.
The major part is to prove the sexual intercourse, if it is not
proved then no presumption under Section 114 A can be
taken.
Rape simpliciter under S 376(1) is not proved here.
where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman
alleged to have been raped and she states in her evidence
before the Court that she did not consent, the Court shall
presume that she did not consent.
Standard of proof on accused will be preponderance of
probability
Rafiq v. State of UP 1981 SC
Merely because there is absence of marks of injuries on the
accused or on the victim, it is not a fatal to a rape case. No
presumption could be taken on the fact that rape did not occur.

Conclusive Proof
Section 4: when one fact is declared by the law to be
conclusive proof of another, the court shall on proof of such
one fact, regard the other as automatically be proved and court
shall not allow the evidence to be given for the purpose of
disproving it.
They although against the principle of natural justice that
nobody should condemned without being heard. However,
provisions of conclusive proof are based on the principle of
public policy, whenever natural justice is negated, there is a
balance which has to be seen btw public policy and natural
justice.

Section 112: motherhood is a fact and fatherhood is a belief.

Maternity is always certain and paternity is a matter of
inference.
The section is based on the principle that when a particular
relationship, such as marriage, is shown to exist, then its
continuance must prima facie be presumed.
Under the section the fact that any person was born
(a) during the continuance of a valid marriage between his
mother and any man, or
(b) within 280 days after its dissolution, the mother remaining
unmarried,
shall be conclusive proof that he is the legitimate son of that
man unless the parties had no access to each other at any time
when he could have been begotten.
Evidence that a child is born during wedlock is sufficient to
establish its legitimacy, and shifts the burden of proof to the
party, seeking to establish the contrary.
The presumption can only be rebutted by strong, clear,
satisfying and conclusive evidence.
In a civilised society it is imperative to presume the
legitimacy of a child born during continuation of a valid
marriage and whose parents had "access" to each other.
It is undesirable to enquire into the paternity of a child whose
parents "have access" to each other. section 112 is based on
presumption of public morality and public policy.
The presumption under this section is a conclusive
presumption of law which can be displaced only by
proof of non-access between the parties to the marriage
at a time when according to the ordinary course of
nature the husband could have been the father of the
child.
Part 1: "During the continuance of a valid marriage
between his mother and any man.
The presumption as to paternity in this section only
arises in connection with the offspring of a married
couple. The section applies to the legitimacy of the
children of a married person only.
Live in relation
Ranganath Parmeshwar P Mali v EG Kulkarni, AIR
1996 SC
There is presumption of valid marriage from the fact of living
together as husband and wife for continuous and long period
and sons born to them from such marriage are legal heirs over
the property of the husband.
Void/voidable marriage
In Hindu law till the time the voidable marriage becomes
Void, the presumption regarding the marriage can be taken.
In case of Muslim law, there are batil and fasid marriages.
Fasid marriage is one which is not unlawful in it but unlawful
for something else.
The difference between Fasid and Batil marriages is that
while by removing the impediment or irregularities from
Fasid marriages, they can be converted into shahi marriages,
whereas Batil marriages cannot be so converted.

Access: Earlier, the connotation of the word Access was taken

in a very narrow way as it only meant up to sexual intercourse
but later by the privy council took a wider connotation and
held that:
Karapaya Servai v Mayandi, AIR 1934 PC
Bhagwan baksh v. Mahesh Baksh 1935 PC
It was held that the word 'access' connotes only existence of
opportunity for marital intercourse.
So if a husband and wife are living together, even if they are
not conducting any sexual intercourse, if they are having the
opportunity to do it, then it will means that the man was
having access at that time. Access connotes opportunity for
coitus.
It can be established by direct evidence of positive nature or
by circumstantial evidence of cogent and conclusive nature

The Supreme Court considered the meaning of the word

"access" in Kamti Devi v Poshi Ram 2001 SC and in C.
Venkata swarlu v C Venkata Narayana 1954 SC
It was held that the decision of privy council was correctly
taken and it has now become a settled-law that access means
not only to have an actual sexual intercourse but even an
opportunity to have a sexual intercourse.
Jagannath mudali v. chinnaswamy 1931 Mad HC
If a husband is impotent, he does not have access but where
the husband is potent, adultery on the part of wife and the
child is the product of that adultery, it will not absolve him
from being the lawful legal father of the child. Hence, the
word access becomes very important and can also form the
basis of rather offside law.
Law always leans towards the marriage, legitimacy, it wants
to maintains the rights of a child as of a legitimate child.
There was a case in which it was plead that illegitimate
children should also be made coparcener, the hon ble SC held
that it is the relationship which are illegitimate, children are
never illegitimate.
How proving of access or non-access is done?
Proving of access can be done by direct or circumstantial
evidence, the question arise before us is regarding the
standard of proof required to the accused. For this we had a
case precedent of Gautum Kundu v. state of west Bengal 1993
SC
It was held that the standard of proof has to be of a higher
degree, the degree required by the man to prove his non-
access will require a stronger preponderance of probability.
the standard of proof in such cases must at least be of a degree
in between the two as to ensure that there was no possibility
of the child being conceived through the plaintiff's husband.
P V Sahu v. Mania Kutty 1998 Ker HC
If the woman was pregnant before the marriage and the
husband has no access to that woman, he can get it declare
that marriage is void and thus once a marriage is declared as
void, then presumption under Section 112 cannot be taken.
The expression at the time of the conception of the child,
when the child was begotten, did the man has access will be
the deciding factor to take presumption under S. 112
Narendra Nath Pahadi v. Ram Govind PC 1901
In this case, the question came that husband was ill, the privy
council rightly held that all illness will not be taken as a
ground to dispel non-access, merely the husband is ill cannot
be the called as that he has no-access. The illness should be of
such a nature that it makes a man completely disabled from
having sexual intercourse with the wife.
Part II
Dissolution of marriage
It can be done by:
Divorce
Death of husband
Judicial separation
In all the above cases, if A person born within 280 days after
the death of his father, or after the couple has taken divorce or
judicial separation, it is a conclusive proof that the child is a
legitimate child of such person.
Whenever a child is born early, it still a no ground that
section 112 be get negated. If the access is proved, a child
may be now even a day after the marriage, it will be presumed
as a conclusive proof that such child is legitimate. The fact on
which the conclusive proof is taken is that child is born within
the continuance of a valid marriage btw the mother and any
man.
Here the word He also includes she also as per IPC. If its
expressly written that the term He does not include She for eg.
(HSA) it is implied that it includes she.
Case Proposition
A was having a valid marriage with B and was having access
to her. One day he caught B with another man and she was
also pregnant at the time. A said that child is not mine, its an
illegitimate. When matter went to Court, it was held that A is
the father of that child. Hence, despite the wife has committed
adultery, the presumption is still taken and it cannot be dispel
by any other thing.

DNA and other Blood Tests

presumption under this section can only be displaced by a
strong preponderance of evidence, and not by a mere balance
of probabilities.
Thus following is the position as to permissibility of blood
test to prove paternity:
(1) That Courts in India cannot order blood test as a matter of
course.
(2) Wherever applications are made for such prayers in order
to have roving inquiry, the prayer for blood test cannot be
entertained.
(3) There must be a strong prima facie case in that the
husband must establish non-access in order to dispel the
presumption arising under section 112.
(4) The court must carefully examine as to what would be the
consequence of ordering the blood test, whether it will have
the effect of branding a child as a bastard and the mother as an
unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis.

DNA- Deoxyribonucleic acid

it is present in the chromosomes. D NA is a set of molecules
responsible for the transmitting and carrying the inherited materials or
genetic instructions from parents to children.
The Swiss biologist Johannes Friedrich Miescher first recognized and
named DNA in 1869, during his work on white blood cells.
There are 6 billion threads of DNA in 46 Chromosomes. No two
people can have same DNA.
The use of DNA test is an extremely delicate and sensitive
aspect.
There is an apparent conflict between the right to privacy of a
person not to submit himself forcibly to medical examination
and the duty of court to reach the truth.
The court must exercise its discretion only after balancing the
interest of the parties.
DNA test should be allowed only when it is eminently
needed.
It should not be directed as a matter of course or in a routine
manner.
Diverse aspects have to be considered including presumption
under section 112 and whether it is not possible for the court
to reach the truth without resorting to DNA test.
DNA is not conclusive as per S.45 of the Indian Evidence
Act. It is merely a corroborative and opinion piece of
evidence. In the case of Gautam Kundu, the SC said that DNA
holds very little value and is only corroborative evidence.
Dichotomy of opinions:
Kanchan Bedi v. Gurpreet Bedi 2003 Del HC
DNA is an established science and it is much needed to find
the paternity of child, therefore the hon ble court ordered for
the DNA test.
S. Kheradkar v. Smt. Nandini Khadekar 1995 Bom HC
Medical science has developed very much and it can be found
out by DNA that whether the particular person is the father of
child or not.
Dwarika Prasad Satpathy v. B.P Dixit 1999 SC
If A person denies to give DNA then an adverse inference can
be drawn against him.
DNA cannot be in a matter of course, it cannot be a roving
inquiry. DNA should only be ordered if it appears that
husband is not lying and it is necessary for the interest of
justice. If DNA is used in the matter of course then it indicates
that branding of women is done as an unchaste and also that
the child is illegitimate.
A person cannot be forced to give DNA. However, if court
under extreme circumstances says that DNA as an evidence is
a must then only it should be taken and if in case then the
person refuses, a presumption can be taken 114 IEA.
Kuldip Singh v. Joginder Kaur 2007 PH HC
DNA test as a general rule be refused, it cannot be taken as a
matter of course and mechanically.
V.K Bhuvaneswari v. N. Venugopal 2007 Mad HC
The madras HC adopted an opposite view, they said that
When the paternity of the child is challenged, there is nothing
wrong in ordering the person to undergo DNA test or to give
blood, for analysis as it would help to unfold the truth. Mere
giving blood for analysis certainly will not amount to torture.
the birth certificate and oral testimony may lie, but a scientific
test like DNA and RNA would bring a conclusive proof with
regard to the paternity and maternity of the child.
After this SC held that we have to do the balance and follow
the test of eminent need
Whenever there is a dire need to conduct DNA, only in those
cases court should order the test of DNA .
18th August

DNA continued, .
Even the result of a genuine DNA test may not be
enough to escape from the conclusiveness of section
112 of the Evidence Act like a case where a husband
and wife were living together during the time of
conception.
Therefore, when there is apparent conflict between the
right to privacy of a person not to submit himself
forcibly to medical examination and duty of the court to
reach the truth, the court must exercise its discretion
only after balancing the interests of the parties and on
due consideration whether for a just decision in the
matter, DNA test is eminently needed. DNA test in a
matter relating to paternity of a child should not be
directed by the court as a matter of course or in a
routine manner, whenever such a request is made.

The court has to consider diverse aspects including

presumption under section 112 of the Evidence Act;
pros and cons of such order and the test of "eminent
need" whether it is not possible for the court to reach
the truth without use of such test.
the Courts in Sharda v. Dharmpal AIR 2003 SC and
Bhabani Prasad Jena v. Convenor Secretary, Orissa
State Commission for Women AIR 2010 SC have held
that there is no violation of the right to life, or privacy
of a person, in directing a DNA test to be undergone by
him and to undergo such test is not an invasion of his
right to life;
Bhabani Prasad Jena, affirms the power of Court to
direct a DNA test though cautions that the said power
should be exercised after weighing all "pros and cons"
and satisfying that the "test of eminent need" for such
an order is fulfilled.
Rohit Shekhar v. N.D Tiwari 2012 Delhi HC
In this case, J. Rajiv Sahai was an End Law. The
respondent in the said application sought a direction
that he should not be pressurized, compelled or forced
in any manner to involuntarily provide blood and/or
other tissue sample(s) for DNA testing. The court also
held that there is a prima facie case in favour of the appellant;
the appellant would suffer irreparable injury if immediate
orders for DNA testing were not made and the balance of
convenience is also in favour of the appellant.
It was also held that that compelled extraction of blood
samples for DNA profiling in the course of a medical
examination does not amount to "conduct that shocks the
conscience" and that "use of force as may be reasonably
necessary is mandated by law and hence it meets the threshold
of procedure established by law".

Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik, (2014) 2

SCC
this is a path breaking judgment regarding the admissibility of
DNA as evidence and was passed on 6th January 2014.
The facts of these case were that a DNA test was already
conducted and it was shown that husband is not the father of
the girl child named Netra nandlal.
The respondent not being satisfied with the report of regional
forensic science laboratory made a request to conduct a re-
test.
The above prayer was accepted by the Hon ble Supreme
Court and a further DNA test was now going to be conducted
by the central forensic science laboratory at Hyderabad.
CFSL opined that the appellant Nandlal Wasudev can be
excluded from being the biological father of Miss Neha
Nandalal.
The advocate of the respondent pleads that since the husband
was having the access to the wife then it shall be a conclusive
proof that the girl child is the legitimate child of the father.
The advocate took reliance on catena of judgments including
the case precedent of Gautam kundu.
Judgments on which the reliance was made:
Banarasi Dass v. Teeku Datta 2005 SC in which it was
held that though DNA is scientifically accurate but even
 then, it is not enough to escape the conclusiveness of
section 112. DNA cannot override the said section.

Kanti devi v. Poshi ram 2001 SC in which it was held

that the result of the genuine DNA test is said to be
accurate but even that is not enough to escape the
conclusiveness of section 112IEA that is if the husband
and wife were living together during the time of
conception but the DNA test reveal that the child was not
born to the husband, even then the conclusiveness in law
will remain irrebuttable. This may look hard from the
point of view of the husband who would be compelled to
bear the fatherhood of the child who he may not have
actually fathered. But even in such case, the law leans in
favor of the innocent child from being basterdised if his
mother and her spouse were living together at the time of
conception.

BP Jaina v. Orissa state commission for women 2010 SC

If it is proved that the husband was having the access to
wife but from DNA test, it has been shown that the husband
is not the biological father of the child. Still, it will not be a
sufficient ground to escape from the conclusiveness of the
section 112.
The bench of CK Prasad, Jagdish Singh Khehar after
listening all such judgments held that Section 112 of the
Evidence Act was enacted at a time when the modern
scientific advancement and DNA test were not even in
contemplation of the Legislature. But today s time is of
 DNA and where the scientific advancement which has been
accepted by the world, it should prevail as it is scientifically
said to be accurate.
Interest of justice is best served by ascertaining the truth
and the court should be furnished with the best available
science and may not be left to bank upon presumptions,
unless science has no answer to the facts in issue.
In our opinion, when there is a conflict between a
conclusive proof envisaged under law and a proof based on
scientific advancement accepted by the world community
to be correct, the latter must prevail over the former.
Hence DNA as per the judgment is now accepted and now
becomes conclusive.
29th March 2019 Sc
Pattu Rajan v. State of Tamil Nadu
DNA is not conclusive in nature. In our opinion, it is not an
infallible piece of evidence. It is just an opinion evidence and
court is not bound to accept the opinion as conclusive and it
will depend case to case.
It cannot be said that the absence of DNA evidence would
lead to an adverse inference against a party, especially in the
presence of other cogent and reliable evidence on record in
favor of such party.

Summary:
When section 112 was framed there was no question of DNA;
it is a much later edition. It is scientific evidence in which the
DNA Mapping cannot be same in 30 billion people.
Two people cannot be having the same DNA. Since the
population of the world is less than 30 billion therefore the
corollary is that two people cannot have the same DNA. The
Supreme court in the case of Gautam Kundu on one hand had
said that DNA could not be a roving inquiry and it should be
ordered when there is a test of eminent need.
It also held that it is merely a balance of probability and
merely an opinion evidence and opinion evidence in evidence
act has a mere corroborative value.
It cannot be regaled to the level of the conclusive proof.
However, with the advent of science and time, DNA came to
be accepted as a flawless way of determining paternity and
both Delhi HC whether it was the Kanchan bedi case or of it
is of N.D Tiwari case, it lamented that why we use DNA
as an substantive piece of evidence. The same thought was
acquainted by the Bombay HC in the Khedekar case.
The supreme court however, probably took steps with great
care because one danger in declaring DNA as conclusive was
that it may amount to judicial legislation as it is not the job of
the SC to make laws, the courts can only interpret the law.
Probably with this in mind, they took wire needy, they soften
they stand but they never went out of the four corners of
section 112.
After the ND Tiwari case, even the Supreme Court tone
regarding the DNA change drastically as we see in the
Nandlal case where the SC held that DNA and where the
scientific advancement which has been accepted by the
community then it can override statutory conclusive proof.
With due regards to hon ble SC, this judgment could be taken
as an fringe could even be taken as fringing on judicial
legislation which will be against the ethos of the constitution.
Hence with this in mind the 2019 judgment refurbished
section 112 in the sense that we cannot override 112 as a
thumb rule DNA cannot be regaled as a conclusive proof as it
would change the very legislation enshrined in our
constitution, it will be taken on basis of the circumstances of
each case which appears to be a very balance view. DNA
cannot be taken as conclusive per se after all its opinion
evidence and an expert opinion will always remain as an
opinion.
We cannot order the court to accept opinion as a conclusive
proof. Hence judgment of 2019 balances the judgment of
Nandlal Badwaik until the legislature steps in and alters
section 112.

Section 113: it is an obsolete section as held by the Supreme

court in the case of Magan bhai v. union of India 1969.
This section was enacted to exclude inquiry by Court of
Justice into the validity of the acts of the Government so far as
cession of territory to any Indian State was concerned.
19th August

Section 41:
This section is included under the expression relevancy of
facts
Only those facts are relevant which are included in sec 6 to 55
and out of all, there is a one part that is relevancy of
judgment.
Q when judgments are admissible as evidence?
the relevancy of judgments is covered from Section 40 to
section 43 in which section 43 has been given the irrebuttable
presumption as conclusive proof.
Section 5 lays down the principle that only those matters can
be made admissible that law has mentioned from section 6 to
section 55 and of no others.
Section 40:
Previous judgments relevant to bar a second suit or trial
The existence of any judgment, order or decree which by law (s.11
cpc)
prevents any Court (Civil or criminal) from taking
cognizance(proceedings are not allowed to be start) of a suit or
holding a trial(Sec 300 CrPC and Article 20) (covers both civil and
criminal cases),
is a relevant fact when the question is whether such Court ought to
take cognizance of such suit or to hold such trial.
The defendant will bring the judgment of the former court to the
court in which the subsequent case has been filed and as per section
41 the court will consider the judgment of such previous court as
relevant.
Can a civil case be put up on the same subject in which the criminal
case was pending? Can a civil and criminal case be filed regarding the
same subject matter?
There is no prohibition by law, not to proceed simultaneously in civil
as well as criminal matter. Both civil and criminal are different
matters therefore there is no prohibition regarding it.
Can civil court and criminal court could interchange their evidences?
If a criminal case is disposed of, can civil case be automatically
dismissed?

Dutches of Kingston case 1776

It deals with two purposes
Any judicial proceeding between two parties ought not to be
binding on third, because the third party was not having the
opportunity to do the cross examination. It would be injustice
to bind any person who was not the part of proceeding. Hence
it is based on Natural justice that no person should be condemn
without being heard.
A civil judgment is not relevant in a criminal trial and similarly a
criminal judgment is not relevant in a civil suit. Though both the
cases are based on the same fact. There are two reasons for
the same
The parties are not the same, in criminal law there is state v.
X while in civil law there is X v. Y
Civil courts are not attuned to the matters of criminal courts,
just as a criminal court is not attuned to take civil matter
The standard of proof in civil law is preponderance of
probability and in criminal law, it is beyond reasonable
doubt.
Hence, we cannot hold finding of a criminal court relevant in civil and
vice-versa.

Modern Law
Emperor v. khwaja nazir Ahmad 1945 PC
It was held that finding of a civil proceeding are not binding on a
criminal proceeding and vice versa.
MS Sheriff v State of Madras 1954 SC
Where two sets of proceedings arise out of same facts and are
pending namely, one civil suit for damages of wrongful confinement
and other criminal prosecution for wrongful confinement.
SC held that if there is simultaneous prosecution of these matters, it
will embarrass the accused. As between civil and criminal
proceedings, we are of the opinion that criminal matter should be
given precedence because the standard of proof in them is beyond
reasonable doubt.
But if there are conflicting decisions of civil and criminal court the
hon ble court held that no hard and fast rule could be laid down and
that the possibility of conflicting decisions in civil and criminal courts
was not a relevant consideration.
VM Shah v State of Maharashtra 1996 SC.
The hon ble court overruled the earlier decision of SC .
An opinion was expressed in this case that a finding recorded by a
criminal court becomes superseded when a finding is recorded by a
civil court in a parallel civil case.
Now civil judgment will override criminal judgment.
Kharkan v. State of UP 1964 SC
it was observed that the "earlier judgment could only be relevant if it
fulfils the conditions laid down by the Evidence Act in sections 40 to
43.
The earlier judgment is no doubt admissible to show the parties and
the decision but it is not admissible for the purpose of relying upon
the appreciation of evidence.
Now criminal law judgment is not relevant in civil case and similarly
civil law judgment is not relevant in criminal law. The relevancy
under section 40 to 43 consists of only two things:
Who are the parties?
What is the final result?
Appreciation of evidence is not allowed in the above sections.
KG Prem shanker v Inspector of Police 2002 SC
In this case it was held by the constitutional bench that
criminal proceedings are not required to be dropped on
that ground if a judgment of a civil court has come.
Findings of civil and criminal courts are different and
will have no bearing over each other. Hence
appreciation of evidence of a civil case in a criminal
matter cannot be possible, similarly the vice versa.

As a general rule, it has been cleared that appreciation

of evidence of civil case or a criminal case cannot be
used interchangeably. But there is an exception to this
rule.
In admissions and confessions such appreciation can be
done. They belong to different genre of evidences.
Reason:
It is well settled principle that nobody will give any
admissions and confessions against his own interest and
if he still giving it, it must be true. It is a substantive
piece of evidence because it is presumed that no body
does anything which is not favorable to him.

Seth Ram Dayal Jaat v. Laxmi Prasad 2009 SC

An admission or confessions made by the party in a
previous criminal proceeding is admissible in a
subsequent civil proceeding.
BM Shetty v. Kuttimalu 1958 Ker HC
Where in a criminal case, the judgment is based on the
plea of guilt by the accused, it can be used as it is in a
subsequent suit.
Section 41:
JUDGMENTS OF COURTS OF JUSTICE, WHEN
RELEVANT

There are two types of judgments:

o Judgment in rem
o Judgment in personam

Judgment in rem: these are called as general judgments,

judgments which are conclusive not only against the
parties to them but also against all the world. It affects
the society as whole.
Eg: A and B are divorced, B s legal status has changed
from married to unmarried for the whole world.

Judgment in personam: A judgment in personam is the

ordinary judgment between parties in cases of contract,
tort, or crime. It is no proof of the truth either of the
decision or of its grounds as between strangers, or a
party and a stranger. Hence the rights are only decided
in the parties themselves. They do not affect the legal
status of a person.
Eg: A and B filed a suit for using Drawing room, this
will only bind A and B; C has to file a fresh suit against
A for using drawing room.
Section 41 has two parts:
1. Which matters are covered in judgment in rem
2. Which judgments are conclusive proof of judgment
in rem
The first part makes the final judgment, order or decree
of a competent court in the exercise of
o probate,
o matrimonial,
o admiralty or
o insolvency jurisdiction relevant;
the second part makes the judgments conclusive proof
in certain matters.
Probate: in this a will is brought into effect. For
instance if A has made a will and B is the beneficiary
now the will itself will does not give any right ot B.
B have to take the same to the court and after then court
will issue an notice in the newspaper that this matter is
going to be heard at a certain date, people who are
having any vested interest in the matter can come to
raise objections if any.
NOW if A, B and C all came up with their wills and are
claming rights in the property, then court will scrutinize
all of them, will look to the fact that which will is made
at the latest date.
Once court has a belief that such will is genuine and
latest. Then court will give all the rights of will to C.
This will is a judgment in rem as it changes the legal
status of that person and is against the whole world.
Matrimonial Matters: it is related to marriage and
divorce; they are also judgment in rem.
Maintenance is not a judgment in rem because it is not
final.
A judgment in rem can only be impeached if it can be
shown
(1) that the court has no jurisdiction; or
(2) that the judgment was obtained by fraud or
collusion; or
(3) that it was not given on the merits; or
(4) that it was not final, e.g., interlocutory.

Admiralty : these are the matters concerning with the

high sea.
Admiralty jurisdiction is conferred on several High
Courts by Letters Patent. It was earlier also conferred
on mofussil courts. Their judgments are also judgments
in rem.
There is an act to be dealt with this i.e. English
Admiralty Courts Act 1861.

Insolvency: they are related to bankrupt, insolvent etc.

For instance: Sahara Case was declared insolvent until
SEBI returns their Money. Now the judgment which
declared sahara as insolvent will be judgment in rem.
24th August
Matrimonial Jurisdiction:
There are plenty of matrimonial laws in India, we can
divide whole matrimonial law into two parts:
1. Secular laws
2. Personal laws
In secular laws we have special marriage act, 1954.
In personal laws; The jurisdiction is conferred on courts
by the following Acts
(a) The Indian Divorce Act (IV of 1869) relating to the
divorce of persons professing the Christian religion.
(b) The Parsi Marriage and Divorce Act (III of 1936)
relating to marriage and divorce among the Parsis.
(c) The Native Converts' Marriage Dissolution Act
(XXI of 1866).
(d) The Indian Christian Marriage Act (XV of 1872).
(e) The Dissolution of Muslim Marriages Act, 1939. (f)
The Special Marriage Act, 1954.
(g) The Hindu Marriage Act, 1955.
A judgment of a Matrimonial Court, decreeing divorce
or nullity of marriage is binding as to the status of the
parties concerned.
It is conclusive upon all persons that the parties have
been divorced and that they are no longer husband and
wife. Only those matters which have become final will
only be come under judgment in rem.
But a judgment in a suit for restitution of conjugal
rights and maintenance is in a purely private suit
between two persons, and such a judgment is not a
judgment in rem within the meaning of this section.
Insolvency:
in our legal system there are two types of insolvency:
1. Personal insolvency
2. Corporate insolvency
In personal insolvency, there is always a single
individual who gets insolvent while in corporate, whole
firm or commercial entity get insolvent.
Insolvency is a matter under state lists, therefore it is
governed by state legislation. In most of the cases of
personal insolvency they were governed by state
legislation only. However, if we talk about corporate
insolvency, they were governed by companies act.
There are lot of provisions such as winding up of
company, etc. to be appropriate in case of corporate
insolvency. There was an act called Sick Industrial
Companies Act, 1985 which deals with those
companies which have become sick and needs a wind
up.
It was later realized that these laws are not adequate
specially when it was realized that when our
nationalized banks were facing losses because of their
non-performing assets which leads to bad debts.
Therefore, center came into picture to make a uniform
law related to insolvency.
The first act that was then made was the SARFAESI
Act that is Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act, 2002.
this was the first act that allows banks and other
financial institution to auction residential or commercial
properties (of Defaulter) to recover loans.
After this act, a need of a complete Insolvency code
which should have detailed analysis of laws relating to
insolvency was felt to the legislature and then in 2016
the legislation came up with its Insolvency and
Bankruptcy code 2016 which seeks to consolidate the
existing framework by creating a single law for
insolvency and bankruptcy.
It covers:
Companies act 2013
SARFESI act
Limited liability partnership act 2008
Sick industrial companies act 1958
Provincial insolvency act 1920
All above laws are amalgamated to a single code in
insolvency and bankruptcy act.

Section 41:
A final judgment, order or decree of a competent Court
The term final judgment means that if the judgment is
not final which means if it is appealable then its time
for appeal has been end or it is been completely
adjudicated. If it is not appealable then it s become final
at the time, the courts adjudicate that matter.
Section 41 covers all: judgment, order and decree.
The word competent court is not limited to only courts
of India. It also covers court of foreign jurisdiction.
There is a presumption under section 14 CPC that it is
been properly give.
A foreign judgment will be deemed as final unless it
contravenes the conditions of section 13 of CPC.
The word competent means it has the jurisdiction and
court and not a tribunal. The word court has
separated itself from tribunal under section 41.
in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, which confers upon or takes
away from any person any legal character
judgment in rem has not been used in section 41 but its
been clear from the wording that it covers only those
judgments which are judgment in rem.
Essentials of Section 41:
1. There shall be a final judgment, order or decree
2. It should be dealt by a competent court
3. Such matter should cover only probate,
matrimonial, admiralty or insolvency.
4. It confers or takes away any legal character, a legal
status of person
5. It declares any person to be entitled to any such
character
6. Such person be entitled to any specific thing
7. That judgment is not against any specific person
but is against the whole society.
Such judgment is relevant and admissible.
Second part deals with the aspect that a judgment in
rem is a conclusive proof of which of the matters.
Such judgment, order or decree is conclusive proof
[WHEN ]that any legal character, to which it confers
accrued at the time when such judgment, order or
decree came into operation.
This clause deals with the time and date from which
such legal status got activated. For example, if a person
was having divorce petitions on going and he received
the final green signal to complete dissolution of his
marriage at 10th of January. So, he can now re-marry
after 10th and not before 10th.
[WHOM]that any legal character, to which it declares
any such person to be entitled, accrued {receiving}to
that person at the time when such judgment, order or
decree declares it to have accrued to that person;
[ENDS FROM THAT Day only] that any legal
character which it takes away from any such person
ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
WHAT PROPERTY and that anything to which it
declares any person to be so entitled was the property of
that person at the time from which such judgment,
[order or decree] declares that it had been or should be
his property.

Section 41 deals with two aspects

1. Relevancy and admissibility of judgments in rem in
4 jurisdictions namely probate, matrimony,
admiralty and insolvency jurisdiction.
2. A judgment in rem by its very nature has to be final
judgment, order or decree. It has to be passed by a
competent court.
3. It must confer or take away a right or a legal status
or character not against any specific person but
against the whole world.
4. The first part of section 41 though does not use the
word judgment in rem yet the meaning is very well
conveyed.
5. Any final judgment in rem on the above mentioned
4 matters is relevant and admissible. Whenever the
issue to be determined is regarding the existence,
non-existence of any such legal status, character or
title.
6. The second part of section 41 deals with conclusive
proofs. They are presumptions of law which are
irrebuttable. Sec 41, 113, 112 are the only sections
which deals with conclusive proof.
7. The second part of this section declares that such
judgment, order or decree which is in rem shall be
a conclusive proof regarding 4 matters.
8. Firstly It is a conclusive proof regarding the time
when such legal character came into existence by
the operation of said judgment, order or decree
9. In simple words, it is a conclusive proof as to when
the said legal character came into existence.
10. Secondly the said JDO is a conclusive proof
regarding the person to whom such legal character,
right or title accrued.
11. In other words, to whom does this right given
by such JDO in rem gave the said legal right or
character.
12. Such JDO in rem is conclusive proof of
cession of rights permanently. Hence JDO in rem
 do not give legal characters, they also take away
power, status, legal rights vis-à-vis the entire
world.
The third para deals with cession of such legal character
or status, it clarifies that a legal character may cease to
remain effective from the date of said JDO in rem.
Finally Sec 41 in its 4th para says that JDO in rem is
also a conclusive proof of the subject matter of the
property which was given by such JDO.
To summarise such JDO are conclusive proofs of when
the legal character was approved, to whom it was
accrued, what was accrued, if it ceased at which time it
was ceased.
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Golden Principle
"
Individual Rights
are Always Subservient

to Public Rights !
/

We Are Breaking this

principle to Serve the

 Justice

B-' 3 Public Rights D)

Individual

Rights

Sectioning
Judgments -
not

covered
in

a-
5.40 5.4 ,
542
I 1 1
Reg Judgment Public
in
Judicator .

nature
Rem

Are Not Relevant

As Per Sec -43

"
Unless
"

Such judgment
order

decree

•
itself a

fact in issue

[ R]
 is Relevant as

Per other Provisions

of Indian
Evidence Act .

A- when does JDO

Becomes fact in issue ?
AM =

Example -

-
dispute
 /

Over 2044 .

decision
came in favour
of B
A
got
And
furious
in fit of Rage
killed B

Judgment Become

motive of murder
 Hence A fact in

issue.it
-

Tneif -

get
Convicted

/ 5 Times

P P
-
-
demand enhanced
ok 7- SIR
Punishment
/

Proof -
Those 5 Judgments
-
Hence Become a fact
 in issue .

A- when does Previous

Judgment Becomes

Relevant ?
I. Ertz.

Section 8 11,13 , 14,546×12)

,

in These Provisions 9

Previous Judgment Becomes

Relevant .
Illustrations ;
-

A prosecutes B for adultery with C, A's

wife. B denies that C is A's wife, but the
court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in

marrying B during A's lifetime. C says
that she never was A's wife. The judgment
against B is irrelevant as against C.

A /-⑧ - matter 1

I
② -
was not a

party .

matter decided btw

 ① and ⑨ only
That whether

④ Committed
Adultery
or not .

c-

Case 2- ④ ②
1-
⑨ is outside

The

Purview of

it
② -

says

① -

you
Are not

my husband

now in

such case
A v. ⑧
J
Judgment is
Relevant
not
-
Because
- it was

/
neither in
judgment
Rem
 Nor defining Any
character
legal

1 and C was Also

not a Party to

a case .

/
natural Principle
of Two
judgment
cannot
individual
Third
Be taken Against
A and B separately sue C Person
for a libel
.

which reflects upon each of them. C

in each case says, that the matter
alleged to be libellous is true, and the
n

circumstances are such that it is

probably true in each case, or in
neither.

A obtains a decree against C for

damages on the ground that C failed
to make out his justification. The fact
is irrelevant as between B and C

was
A
not

/ a Party .

Obtained
decree
⑨ to
 case
in This

④ ① judgment
Relevant
.

not

A prosecutes B for stealing a cow from him, B, is convicted.

A afterwards sues C for the cow, which B had sold to him
before his conviction. As between A and C, the judgment
against B is irrelevant.

(d) A has obtained a decree for the possession of land

against B, C, B's son, murders A in consequence. The
existence of the judgment is relevant, as showing motive for
a crime.

[(e) A is charged with theft and with having been previously

convicted of theft. The previous conviction is relevant as a
fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted

A for libel and that A was convicted and sentenced is
relevant under section 8 as showing the motive for the fact
in issue.]
ATB@c0w.s Party
not

of
+
Casely convicted .

③ not a
Party
A hence

stolen ④④ -

Receiving
Judgment
Property has no

Relevancy .
 Section -44 Parties Must Come Court
Background -_

=p with clean hands, .

Fraud or collusion in obtaining judgment, or incompetency

of Court, may be proved

*B& BEA
qq.ae

Then Adverse Party I

z
1) Any Party To Such Says
That
• Suit,

another Proceeding
%
may
show that •

judgment Relevance
/S
-
o order 42
go

• decree

is
and Such
by
proved
him
°
 That Such

Judgment
order
decree
was

given by Bo Bo
was
which
court obtained

has
no jurisdiction by
Fraud-1
Collusion

Explanation
Completed
To Do
proved
-

in a
party 't
Previous
suit .
by

§ Party -2

/
to
disproved
wants
it
BY ✗
- nojorisdiction
fraud

collusion
 Same
of fraud in This section is

fraud defined uls 17 OF ICA .

/
Causative =
Actual fraud
traced /
Cheat .

intention
to

decieve

Collusion

Ba

Prejudice
to Third
1
/ Contract Party
Agreement
.

btw
Sons to cause
Parties -

Two

"
"
fraud / collusion N The
Court
 The Parties By
-

Negligent by Guardian
] suit
•

in minor 's

•
next freind

This Section
is also Covered by
.

It is permissible for a minor to file a separate suit for setting

aside a decree, in an earlier suit in which he was a party, on
ground of gross negligence on the part of his next friend.

Apart from that it is also permissible for a minor to avoid a

decree, if relied upon in a subsequent proceeding, on the
ground that the said decree was obtained on account of gross
negligence on the part of his next friend in the previous suit.

This would be permissible only if section 44 of the Evidence

Act can be invoked.
 cPinionEvid
Opinion -7M
In Sitaram Nai v Puranmal Sonar, the Supreme Court explained the
.
meaning of the term "opinion" in this connection

Opinion means something more than

mere retailing of gossip or of hearsay; it
means judgment or belief, that is, a
belief or a conviction resulting from
what one thinks on a particular
question.

Based
pinion
-
on

Reputation
Knowledge / Acumen

Experience

tlenceconto.in#q Not mere

But
variables
Hearsay
Various
 Also not a

cannot be firm foundation .

• universal

it is in nature
subjective
.

fact
binion is
not a
/
Opinion
But ⑦ Person has a
certain

a
Composite opinion
has
9£ Society 7

They
Are facts .

Rice of
BB
Therefore it is a Corroborative
Evidence .

of witnesses
Opinion y
Ali Ahmad
Mubarak
v.
State of Bombay
1958 SC .

a is
17 job of witness

facts Salt Pepper

to State without Putting and
to it .
witnesses
Are not Allowed
he has a only job
to tell his opinion ,

to State
what he
actually say .

that
""

Thus , he is only
Allowed to
give mere

opinion
is Allowed to give
"
IF he
facts
-

a' Deiigahén of
'

it, will be
"

✓ Judicial function
Because only
is Allowed
judge
to give opinion .

Hence A witness gives Actual facts ,

Connected with

had seen heard or Perceived .

incident what he ,

u Opinion Evidence
Color .

GAGA
- ocular " '" m was
witnesses
.
[ hit
by a lathi
Tesh
Jiving many
w eryide

G- forensics
•
was
his victim
-
gives -

hit
by
{ ✗ pert opinion
The sword .
 • Mani Ram V. State of Rajasthan
1994 SC

Medical evidence is only an evidence of opinion. It cannot be

decisive.

If the medical and ocular evidence is contrary then the ocular

evidence must prevail.

The story recited by eye-witness can be verified by medical

evidence.

The court said in this case:

You must remember this particular point of view that if you
believe the eye-witnesses, then there is no question of having
it supported by medical evidence...But if you do not believe
the eye-witnesses then consideration of the medical evidence
in any manner becomes unnecessary.

Opinion of medical officer cannot be taken as contradicting the positive

evidence of the witness to the facts.

Between the opinion of two doctors the opinion which supports direct evidence
should be accepted.

Darya o v .
State of MP 1991 Sc

Where direct evidence of witnesses is not supported by expert evidence then it is

very difficult to convict the accused on the basis of such evidence.
When the account of eye-witness does not match with
medical evidence then it makes such piece of evidence a
weak evidence and hence in such case, benefit of doubt
shall be given to accused. As per Supreme Court, it is the
most fundamental defect in the prosecution case.

As Rule
general This
(45-5)
a

But A
"
/
Part "
opinion Evidence
Aliowed gg
guider to
is not

An
Exception
Rule
•

is

general
Are
They
opinion of Experts
1
An
having specified
-
At a

Acumen
Subject
.

is
✓
Court
not
Very oxn
' it
° Hence
Adept
°
"

*
the
invokes
in necessity
gun principle
of
with
such

dealing
while
Senen ,
matter Against
.

That
going Rule
Despite
" Opinion Evidence
not Allowed
 Expert
Skill 7 >
Ramesh Chandra Agarwal v Regency

Knowledge
Hospital Ltd, AIR 2010 SC

An "expert" witness is one who has devoted time and study

F-
to a special branch of learning, and thus is specially
Skill skilled on those points on which he is asked to state his
opinion.

Opinions of experts are relevant upon a point of (a) foreign law, (b) science,
(c) art, (d) identity of handwriting and (e) finger impressions.

The opinion of an expert witness on technical aspects has relevance but the
opinion has to be based upon specialised knowledge and the data on which it is
based, has to be found acceptable by the court.

Ajoy Kumar Das v Kalpana Das, AIR 2007

The job of expert is to supply the necessary data Who is not

supposed to give any independent conclusions. Expert opinion
is merely an aid to the court to arrive at a conclusion. Such an
opinion is not binding. It is optional for the court to accept or
reject it.

Whether corroboration is necessary in case of opinion evidence

Murarilal v State of MP, AIR 1980 SC

The honourable Supreme Court held that The opinion evidence always
remain an opinion evidence only. if a scientific opinion evokes a
confidence to the court and it is such of a nature that it creates a doubt in
the mind of the court and it is free from lacunas. Then, it is not necessary
that it is to be substantially corroborated.
The evidence of handwriting expert is only an opinion evidence
and is not conclusive and cannot be relied upon unless
corroborated by clear direct evidence or by circumstantial
evidence.

Similarly in case of determining the age of the accused, the

ossification test conducted by a medical officer needs to be
corroborated by certain direct evidences because the report that
came from the ossification test is always vague in nature. But
in case of DNA in certain cases it can be taken directly as
evidence without being get it corroborated.

Similarly Where the ballistic expert was not examined and,

neither did the accused request for his cross-examination nor did
the court find it necessary to summon him, it was held that the
report of the ballistic expert was admissible in evidence without
calling him as witness

Hence in simple words we can say that whether an opinion

evidence need to get corroborated or not is a question of fact.

opinion of an expert witness on technical aspects has

relevance but the opinion has to be based upon
specialised knowledge and the data on which it is
based, has to be found acceptable by the court
The duty of an expert is to furnish the court his
opinion along with all the materials. It is for
the court thereafter to see whether the basis of the
opinion is correct and proper and then form its
own conclusion, unlike a witness of facts where
facts are facts and they remain and have to
remain as such for ever and he does not give his
opinion on facts but presents the facts as such
-
opinion
of
court
opinion
.

of
expert expert :
-

Specially
• Skilled

•
Science
"w
in
only # •
knowledge

Experience
Those 5
•
foreign
Art persons
Handwriting
• .

Impressions
.

• finger

• Evidence of Tracker Dog :-B

 it is not a Scientific Pe ice

of Evidence .

In Abdul Razak v State of Maharashtra 1970

SC

Scientific evidences are those evidence which

are based on science and on facts; acts of
scientific dog are justified by its handler. It is
just a hearsay evidence but still it is admissible
because a sniffer dog is a tool of investigation.

While the services of a sniffer dog may be

taken for the purpose of investigation, its
faculties cannot be taken as evidence for the
purpose of establishing the guilt of an
accused.

illustrations :→•←←
The question is, whether the death of A was caused by
poison. Opinion of evidence
The opinions of experts as to the symptoms produced by the
poison by which A is supposed to have died, are relevant.
The question is, whether A, at the time of doing a certain
act, was, by reason of unsoundness of mind, incapable of
knowing the nature of the act, or that he was doing what
was either wrong or contrary to law.

The opinions of experts upon the question whether the

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

( noticed by Psychiatrists are

Relevant
Behaviour
-

in nature

The question is, whether a certain document was written by A. Another

document is produced which is proved or admitted to have been written by
A.
The opinions of experts on the question whether the two documents were
written by the same person or by different persons, are relevant.
 Experts
foreign law
-

of foreign
✓ •
Practitioner

}
The
mainly
laws are
law
foreign
.

Can Also be Experts in

A foreign
person who has Acquired
jurist Skills
some special .

Area covers
Science - A wide ; many
Aspects .

-
Skid Scientific
Are Also
Marks Experts
Experts .

1
To Tell Direction To determine
]
car
•

of the

• Speed whether Driver was

not
At fault or
.

-
Another

Ballistics
of
Example
experts -

scientific
 Rigor Mortis -

Time of death.—Rigor mortis is an important factor for assessing time of death.

In the determination of time of death Rigor mortis is only rough guide. The doctor who had
held post-mortem examination had occasion to see the injuries of the deceased quite closely.
No evidence that he had deliberately given wrong report. His evidence could not be discarded.

Viscera Examination
A viscera report is prepared to
determine the cause of death under
suspicious circumstances where
autopsies are unconvincing. In these
tests, the internal organs of the body,
explicitly those within the chest,
abdomen, or the pelvis are tested
thoroughly.
 →
31 August •
Blood
will it

• fingerprint -
Amount to

Self - Incrimination

Body
.

fluids
Sperm / other

/
•

•
Specimen signature .

my

÷÷÷m
"

Kathi Kalu
"
up in
✓ ^

Evidence Taken for

- Bombing "

Mere comparison can

also go
in favour of

Such Person

)
So it is not

the
Principle
Against
.in .
% .

01A 20 (3) COI .

kgzI.FI#ka.netakihMw
 Lots Test made due
of are

to Advancement in Science

Such As :

1) Narco Analysis
Activation
2) Brain
Electro
Test
Profile
etc
Test
mapping
.

,
3) Brain

~
Shall This be Allowed ?
Self in
Ans : -
These Test Are -

incriminating
Article 2013)
nature and under violation
of
.

Prohibited
They are
strictly .

it Can only be Taken if A Person Willfully

Consents for it .

Presumption in
They may lead a
 favour of Accused and once

Act as
Proved then it
, may
Rice g
Evidence
strong
.

Rest in all •

it is violative
Cases -

)
of
Article 21,2013

Cannot be taken as an
And
" "
Evidence .

Police powers of investigation cannot override constitutional protection

wider scope
Art
.

:-B has a

T which
G"Hon+a;n
is
A 's "
works
, music
,
literary

Handwriting

all other
Rices of Evidence .

I weakest Amongst

Murari Lal v. State of MP 19805C

The Science of handwriting is not the exact science, Great care and
i
caution should be exercised by the court in determining the
genuineness of handwriting. An expert's evidence as to the
handwriting is opinion evidence and it can rarely, if ever, take the
place of substantive evidence. Before acting on such evidence it is
usual to see if it is corroborated either by clear direct evidence or by
circumstantial evidence.

State of Maharashtra v Sukhdev Singh, AIR 1992 SC

Prosecution to see
care The to be put
by
Such
handwriting Reliable or
is
whether

not
?
/ Samcro Sonet
must be genuine
1) • Such handwriting
be Samcro
Shall
-

specimen Recieued
The
it should not be
Samet it means
,
in front
doubtful .
it must be taken
of
witness
Dependable
.

2) He should be • Competent

•
Reliable

o
dependable
 - fingerprints
-

887
Two Persons

does not

have Same

to
fingerprints .

And -
Until

8_Rv.Buck1eyi9 9@Ridgeraremateh.we
unless
-

Cannot
Say
That it is matched .

-
footprints
 Babu Khan
-

V o

State
g Rajasthan 19975C

The Supreme Court observed that the science of identification of footprints is not a fully
developed science. Evidence of footprints for the purpose of proving identity of
the accused can be used to reinforce the other evidence.

It is the weak corroborated evidence.

Matin the

Skeleton with the Photograph .

.
$ t.ba
Typewritten documents : -

The Supreme Court has observed that the

opinion of those who are capable of knowing
the origin of a typescript should fall, in
view of the scientific advances, within the
meaning of expert opinion

P+sePt-_
Big

-
p

4'S GSA
Experts -
foreign law
Examiner
handwriting of
+ Electronic
Science
Evidence
Art

fingerprint
This section was inserted vide Information Technology (Amendment) Act, 2008

Both Corroboration opinion

]
•

evidence
o Contradict

support
inconsistent
opinion
with opinion
Evidence evidence .

ILLUSTRATIONS
(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons, who were poisoned by that poison, exhibited certain symptoms
which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain sea- wall.

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

Mmnmmmmmauuammhmhammam
nmnMnmmmnAnmmmmmnmmnmmnyyBk nnv
Easom
God
-0g

By the insertion of this new section, the said statutory regulator, i.e. the Certifying
Authority which has issued the electronic signature certificate, has been conferred the
status of an "expert" meaning thereby that whenever the court has to form an opinion
regarding the electronic signature of any person, the opinion given by Certifying
Authority of electronic signature shall be admissible as a relevant fact under this newly
inserted section.

Absorbed in
Customs -

Antiquity .

Private General Public

Customs
Customs Customs
.

They Are not

just
"

Hearsay Evidence "

 it is conduct
a -

you are
applying
←
Habit ±☒¥
Hence it must be
Followed ,
d-
observe

from Centuries

immemorial

Private customs -

for families ,

Class
General Customs -

Villages , of People ,

Particular to
Any
community
* Class of ←
Considerable
'
Persons !

Public Customs : -
whole society / Societies
to
No Special Reference in Indian Evidence
Act .
 know About origin or

✗ we do not

of Custom
Existence
.

- Senior most Aborigines .

Existence
But Those Who Can Testify Their .

Shall be Called for giving Testimony .

Opinions of persons who are in a position to know of the existence of a custom or usage
in their locality are admissible

Old folks
Pundits etc .

who must be 548 Talks About

The persons
About their ←
Aware • Custom
Existence ; Their
Testimony
↳y
in Context * •
Rights
Are Relevant gipc
area ,
Corporeal Right to
"

-
1-
wage
House
# -1
Can't be seen
•

can be seen
•
Gilds ie intangible
• etc . .
. .
.
i. e. tangible
 Custom
Habit -
usage
-

( Time
immemorial )
/
force of
low ( more)
*
-

Hundi

(merchants're customary
law

usage) ( recognized by
statue ]

Usage is
"
A fact
" "
Custom is a Law

B*¥ without
There Can be a usage

a custom .

Cannot be Possible
But
.

vice -
versa
 Eaton Boog

counted

The opinions of persons who have special means of knowledge as to

(a) usages,
(b) tenets, of any body of men or family,
(c) constitution of any religious or charitable foundation,
(d) meanings of words or terms used in a district, are admissible in evidence

Usages".—
These will include usages of trade and agriculture, mercantile usage and any usage common
to a body of men or family.

Tenets".—
This will include any opinion, principle or doctrine which is held or maintained by a body of
men. It will apply to religion, politics, science, etc.

Special means of knowledge".—

All that is meant by this expression is that the person must have had opportunities for
acquiring knowledge of a usage or custom and that he had acquired the necessary knowledge.

Evidence relating to works that are technical is also admissible under this section.

hooch
 A-says - he is the Son of FB

Lnt court wants to form an

opinion About

Relationship
A-B_
from
Then
Any opinion Expressed

Conduct
Any -
*
by
only
By conduct
=
member
•

of

having
special means family or

of knowledge otherwise .

other
Regarding
members - like freinds ,
such fact .

Servants etc .

The question is, whether A and B were married.

The fact that they were usually received and treated by their friends as husband
and wife, is relevant.
 75¥

Provided that such opinion shall not be sufficient to prove a

-

marriage in proceedings under the Indian Divorce Act, 1869

abased
(4 of 1869) or in prosecutions under section 494, 495, 497 or
498 of the Indian Penal Code (45 of 1860).
tfg
• it can be Prove only if
Evidence is
given of solemnization

of marriage .

not
proving conduct is
•
mere
of enough .

Solemnization =

only by Ceremonies
,
As
per Hindu

Act
marriage .

if wife is unable to
prove then in Such Case

Wife Can
only file a
ground of Divorce .

A can live with B- Married .

I 1
unmarried unmarried
Married

Solemnization : Can also be done

by Registration
OF marriage .
 Under Muslim laws in Sunni two witnesses
only
-

are
required .

There Can be Maumlat as well as

lbadat
Bigamy is not an offence
.

• .

Dissolution of Muslim Marriages Act, 1939

Talaq rights with males

•

were

1939 Act
gave females grounds for divorce
•
-

Khola

Muslim law ? -

first Personal law to

give
Divorce Provisions .

Mubarat : -

Concept of mutual divorce was

There .

Solemnization =
Proposal Acceptance
, of
marriage And Mehar mama

Character Evidence Character What

you Possess .

nature ← disposition
what other Think
oj a- Reputation

Temper and disposition - Are not same

 Temper -

Anger
disposition
-

Soft and
gentle .

Temper -
Soft

disposition -

wrong and
anger

haracter : -
Inner metal

Total
of Disposition and Temper .

Not Relevant in IPC .

Reputation -
when a person cause third person to

think
negative of the victim
,
then it amounts

to Reputation .

IPC makes it as an offence .

What is character and when Can its Evidence be

given ?
In IEA 7*
Character includes Reputation and disposition both

in and
general way not

based on specific Events .

 Explanation OF Section 55

sections 52, 53, 54 and 55, the word "character" includes both
reputation and disposition; but, except as provided in section
54, evidence may be given only of general reputation and
general disposition, and not of particular acts by which
reputation or disposition were shown.

Bhagwan Swaroop v. State

of
MAH 196.sk

The word "character" includes both reputation and

disposition. "Reputation" means what is thought of
a person by others, and is constituted by public
opinion. "Disposition" respects the whole frame and
texture of the mind. It comprehends the springs
and motives of actions. "Temper" influences the
action of the moment, "disposition" is permanent
and settled; "temper" may be transitory and
fluctuating. It is possible to have a good disposition
with a bad temper, and vice versa

Scott v.
Sampson 1882

A man's "character", it is sometimes said, is what he in fact

is whereas his reputation is what other people think he is."
 Character

witness -
See 52-55 does
not talk about
character
of witnesses

Parties
They deal with Character of .

Civil law Criminal law .

in Civil Cases

if character is in issue .

it becomes important
in case
of damages .

Here it is

WHILE → Character of Parties Relevant .

IN others ,
in civil Cases it is not Relevant .

it Could be supportive Evidence

only a

to
prove or
disprove the Conduct of the

Parties .
In civil cases the fact that the character of any person
concerned is such as to render probable or improbable any
conduct imputed to him is irrelevant, except in so far as
such character appears from facts otherwise relevant.

In civil cases evidence of the character of any party to the

suit to prove the probability or improbability of any
conduct imputed to him is irrelevant.

The general exclusion of character evidence is based on

grounds of public policy and fairness beCause a good
character person may have a bad cause and a bad character
person may have a good cause. Hence, each matter must be
decided on its own merits.

The Queen Rowton

The business of the court is to try the case, and not the
man; and a very bad man may have a very righteous
cause.

admission of character evidence would surprise and

prejudice the parties by raking up the whole of their careers,
which they could not possibly come into court prepared to
defend
General rule is that character in civil law is irrelevant .
However, there are two exceptions in this:

1) When the character itself is in issue, and;

2) In cases of damages as given in section 55.

Here the character is important to quantify the damages
accruing to the person.

There are two sections on relevancy of character in damages

that is section 12 and section 55 of Indian evidence act.
Section 12 is general in nature, it states that anything
which is helpful in determining the damages will be
relevant. Section 12 is a genius while section 55 is its
specie. Section 55 tells us that whenever the character is
important to quantify the damages accruing to a person
then such character is admissible.

Criminal law :*

Relevant Bad Charactery

,

not Relevant

Because it cause
may
Prejudice to
Party And
. will be
against
The Principle of Natural justice .
 A- murder -
B

Although of character not Relevant

good
-
.

v6

weak Evidence. Value

of good character ?

Ram Lakhan v State of UP, AIR 1977 SC

A man's guilt is to be established by proof of the facts alleged

and not by proof of his character; such evidence might create
prejudice but not lead a step towards substantiation of guilt

Relevancy of good character is in :

-

1) Probation under probation of offenders Art

2) Sentencing in case of mitigating

circumstances .

Rea
3.) in case of of Bargaining .

The bad conduct cannot be taken into consideration as laid

down in this section, unless and until the defence is taken
that the accused had good character.
Where the bad character of any person is itself a fact in
issue, then the principle of this section does not apply.

See section 110(f) of the Code of Criminal Procedure.

Therefore, evidence can be given of particular trait of bad
character which may be in issue.

Best Prove Bad

" "

of character is always
its Previous Convictions .

[s 53] In criminal cases previous good character relevant.

—
In criminal proceedings the fact that the person accused is
of a good character is relevant.

The principle upon which good character may be proved is

that it affords a presumption against the commission of
crime. But Character evidence is a very weak evidence; it
cannot outweigh positive evidence in regard to the
guilt of a person.

It can only be helpful to mitigate the punishment during

sentencing.

Bhagwan Swarup v State of Maharashtra, AIR 1965 SC

 mm

Mamou

Evidence of bad character of an accused person (of whose

good character evidence has not been given) is not relevant
under this section for the purpose of raising a general
inference that the accused is likely to have committed the
offence charged.

Such evidence is irrelevant and cannot be legally admitted

in evidence whether elicited by the prosecution or by the
defence.

Previous convictions—

[Explanation 2].—A previous conviction is not admissible in

evidence against the accused, except where he is liable to
enhanced punishment under section 75 of the Penal Code on
account of previous conviction or unless evidence of good
character be given, in which case the fact that the accused has
been previously convicted of an offence is admissible as
evidence of bad character
A previous conviction may also be relevant under section 8 as
showing motive.

It may also become relevant within the meaning of section 14,

Explanation 2, when the existence of any state of mind, or
body, or bodily feeling, is in issue or relevant.

It may also be relevant under section 43. See illustration (e).

MG

MY

This section was inserted vide the Criminal Law

(Amendment) Act, 2013 on the basis of recommendation
given by Justice JS Verma Committee report in the
aftermath of the Nirbhaya Rape incident
This section bars the leading of evidence of the character of
the victim or her previous sexual experience with any person
on the issue of consent given by the victim or the quality of
consent, by making it not relevant

the defence is barred from either leading any evidence or

putting questions in cross-examination, which relates to or
is suggestive of the victim's past previous sexual experience
with any other person, in order to show that the victim was
a consenting party to the offence which is being tried.

Relevancy of facts .

5- f- Be

egg Baas

fac turn Probandum : The Principal fact which needs to be

Proved
Of no fact can evidence be given unless it be
.

either a fact in issue or one declared relevant

under the following sections

Evidence Be given to Prove

may
Existence
]
•

Probendum
-

• non -
Existence faction -

Principal fact need to

\ be Proved
Relevant facts
.
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20th sept.

Conduct: conduct is the external manifestation of a

mind of a person. Guilty mind begets guilty conduct.

The conduct of any party, or of any agent to any

party, to any suit or proceeding, in reference to such
suit or proceeding, or in reference to any fact in
issue therein or relevant thereto, and the conduct of
any person an offence against whom [accused] is the
subject of any proceeding, is relevant, if such
conduct influences or is influenced by any fact in
issue or relevant fact, and whether it was previous
or subsequent thereto.

Conduct of parties and their agents in civil law

and conduct of accused in criminal law is
relevant.
Only those conduct which is influenced and
connected with either fact in issue or relevant
facts are relevant.
It is immaterial whether such conduct was a
previous conduct or a subsequent conduct.

Explanation 1. in this section

does not include statements, unless those statements
accompany and explain acts other than statements; but
this explanation is not to affect the relevancy of
statements under any other section of this Act.
 Mere statements does not included in conduct. If
those statements are connected with the act and
explain the behavior of that person only in that case
they become conduct. For example:
Deceased wife gives a statement that deceased had
left the village and had not returned. This statement
was made so that she could put off her relatives on
a wrong track. Hence this statement is relevant as is
showing her conduct.
Statements and conducts are two different
analogies.
However in some cases such as dying declaration
under sec 32 or it acts as a corroborative statement
under section 157, the sole statement can also be a
conduct.
Illustrations:
The question is, whether A was ravished.[ seize and
carry off (someone) by force]
The facts that, shortly after the alleged rape, she made a
complaint relating to the crime, the circumstances under
which, and the terms in which, the complaint was made,
are relevant.

The fact that, without making a complaint, she said that

she had been ravished is not relevant as conduct under
this section, though it may be relevant as a dying
declaration under section 32, clause (1), or as
corroborative evidence under section 157
Q- statement made by A, would it be relevant to show
the conduct of person B ?
Yes as provided by explanation II. Explanation 2.
When the conduct of any person is relevant, any
statement made to him or in his presence and hearing,
which affects such conduct, is relevant

(f) The question is, whether A robbed B. The facts that,

and that immediately afterwards A ran away, are

relevant.
(h) The question is, whether A committed a crime. The
fact that A absconded, after receiving a letter warning
him that inquiry was being made for the criminal, and
the contents of the letter, are relevant.

Silence as a Conduct:
This is very well explained by illustration G:
(g) The question is, whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D

not
A went away without making any answer, are relevant
facts.
Sometimes silence May amounts to admission or
confession but sometimes mainly before elders a person
is too scared to say yes or no, then there in such case
silence may not amounts to any conduct. We cannot say
silence always is a conduct. As stated by Phipson
many times junior remains silent before their elders
not because they are guilty but out of respect they
remain quiet . Hence, we cannot always say that silence
is a clinching evidence

Absconding as a conduct:
(h) The question is, whether A committed a crime. The
fact that A absconded after receiving a letter warning
him that inquiry was being made for the criminal, and
the contents of the letter, are relevant.

(i) A is accused of a crime. The facts that, after the

commission of the alleged crime, he absconded, or was
in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal things
which were or might have been used in committing it,
are relevant.
Sometimes absconding may not be a conduct to show
that the person who absconds had done a crime because
as the fear of police or criminal justice system in India
is as that many can run away by fear.
Innocent people sometime run away to avoid arrest, as
observed by SC in Rehman v. State 1972 SC
Similarly SC in the case of Ramanathan v. state of
Tamil Nadu 1978 SC held that mere absconding does
not mean that he has done a crime. If a person comes
back and explains the reason of his absconding and
gives a plausible explanation then in such case no
presumption about his conduct will be taken.

Hence, mere absconding is a very weak circumstance

and the court should not take such conduct as a be all
and end all. The illustration I shall be look with
reference to sociological aspects of our country.

Senseless conduct when relevant:

A murderer was arrested after 5 days, he was wearing
blood stained clothes even after 5 days. This was a
senseless conduct as observed by the Supreme Court in
the case of Khalil Khan v. State of MP 2003 SC We
find it extremely difficult to believe that a person who is
involved in such a serious crime like murder would still
be wearing clothes which are blood stained even four
days after the murder which fact we find is opposed to
normal human conduct. In this background, the
evidence of the hostile witness that the recoveries were
made at the police station assumes importance. We
think it is not safe to place reliance on this part of the
prosecution case also.

Confessional FIR: this may not have any value under

Sec 154 CrPC as it is hit by sec 25 of IEA, but the
same has relevancy under sec 8 as a conduct.
Purkha Ram v. State of Rajasthan 1997 Raj HC
The accused murder his wife and then lodge a FIR at a
police station though it was hit by confession under
section 25, however it may not be relevant as a FIR but
will be relevant under section 8 as a conduct of a
person.
 SI
21st Sept
Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or
which
establish the identity of any thing or person whose identity is relevant, or fix the
time or place at which any fact inissue or relevant fact happened, or which show the
relation of parties by whom any such fact was transacted, are relevant in so far as
they are necessary for that purpose.

section 9

Every Relevant fact is to be started with an

introductory facts .

This section makes admissible facts which are

necessary to explain or introduce relevant facts, such
as place, name, date, identity of parties, circumstances
and relations of the parties.

A is accused of a crime.
The fact that, soon after the commission of the crime, A
absconded from his house, is relevant under section 8, as
conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home he had sudden
and urgent business at the place to which he went, is
relevant, as tending to explain the fact that he left home
suddenly.
The details of the business on which he left are not relevant,
except in so far as they are necessary to show that the
business was sudden and urgent
 •

Explanatory
Relevant

Introductory
°

illustration
(c) ,

Support
Taken in detail section
mainly under 1,

penny I
⑤ pecie]
Section-9 is a

Genus

Supportive Evidences
Evidences are
Grroboyated
✓ first time used in

Rule Prudence Section -133

of .

Starts from Sec

9,11

Rebut : All Evidences

Corroborating
-

] g.
.

Cg Plea of Alibi µ,
-
?⃝
Time -

Rigor mortis -
Relevant fact -
determines time
of
Death .

Place
-1
Plea Alibi Both time
of Always Cover Component of and
-

place .

fact Place
Any stating time and are relevant .
Journey of the word corroboration starts from section 9
itself. Then it has been made relevant in section 11 as well.
All evidence which are supportive in nature are relevant.
Then it is been used in section 133.

As per section 134, sometimes supportive evidence is not

required. A judgment can be made even on a single
judgment. Corroboration is not required at the place
where evidence is not fully reliable nor fully unreliable. It
is not a rule of law but a rule of prudence.

Section 9:
As discussed earlier, there are 9 types of facts which are
declared as relevant under this section.
1. Explanatory facts
2. Introductory facts
3. Supportive facts
4. Rebut
5. Identity of thing
6. Identity of person
7. Time
8. place
9. Relationship

Identity:
It connects a thing or person with a transaction. It is a
most important piece of evidence. Identity in this section
is of a person or a thing. In judicial proceeding, civil or
criminal, the courts have very often to determine the
identity of persons or things.
Identity of a thing stand at a different footing from identity
of persons. Whenever a thing is identified, immediately it
connects a person with a thing and transaction.

The identification of articles is capable of being

established not only by direct evidence but also by means
of circumstances.

some Judges are of the view that identity of common

property also can be fixed.

a person may identify his article and distinguish it from

others even without any special marks on them.

Orissa High Court has held that a woman can identify her
necklace even without special mark on it if it is whole or
unbroken, but she can never identify a piece of a necklace.

Earabhadrappa Alias Krishnappa vs State Of Karnataka 1983

It is a matter of common knowledge that ladies have an

uncanny sense of identifying their own belongings,
particularly articles of personal use in the family. That apart,
the description of the silk sarees in question shows that they
were expensive sarees with distinctive designs and still the
ladies be able to find their owns.

Hence identity of things is relevant evidence as per section 9

of Indian evidence Act.

Collection, preservation, and securing evidence are critical

from the time it is collected. If the chain of custody
documentation is incomplete, inaccurate, or omitted, it will
cause the evidence to be inadmissible in a court of law.

When trace evidence is identified, the following steps in the

collection of the evidence is outlined below:

1. Document and photograph the evidence

2. Properly secure the evidence by placing it in a paper bag
or envelope
3. Close, seal, or tape the paper bag or envelope. The
examiner must initial, date, and time across the sealed
area
4. Label the bag or envelope with the patient's identifying
information
5. Examiner must place signature, date, and time on the
envelope

Clothing evidence:
The patient's clothing must be handled and examined carefully
to avoid loss of evidence. Each piece of clothing must be
dried thoroughly if wet or damp. Each piece must be
identified, labeled with the patient's identifying information,
date, time, and examiner's initials. All stains or tears to the
clothing must be documented.

Injury to the Body

The forensic examiner will take a history from the patient to

help guide in performing a detailed head-to-toe assessment to
identify injury or findings to the patient's body.
Injury or findings must be documented by taking photographs,
measuring the injury utilizing measuring tools, and/or using
age-specific body diagrams.

The correct terminology must be used to describe injury and

findings. For example, medical personnel confuse lacerations
versus cuts.

Lacerations are caused by blunt force trauma, and cuts are

caused by sharp force trauma, usually by a sharp object.

Identity of a person:
It was held that identification of accused by witness in the
Court is substantial piece of evidence where accused is not
known previously by the witness.

Test identification - parade must be held at earliest possible

opportunity with necessary safeguard and precaution.
However, when accused had been seen by the witness for
quite number of times at different point of time and places no
test identification is necessary. Direct testimony will place a
important role there.

Ways of identification of person:

1. Direct testimony if witness know him
2. Opinion evidence
3. Similarities or dissimilarities
4. Photographs superimposed on skeleton
5. Religion
6. Education
7. Gait
Ram cochan v. state of WB 1963 SC
Superimposed photograph put on skeleton was held to be
relevant and good identification of deceased.

Voice samples are also sometimes used as for an

identification but it shall be used with proper care and caution
as voice can be imitated. Similarly, Gait is also very important
piece of evidence. Hence these evidence can be relevant but
they are not conclusive in nature.

Accused sketch can also be relevant under section 9 because

on basis of this similarities are matched.

Test identification parade:

It is not necessary in those case where the witness do knows
the person. It is only be conducted where witness does not
know but remember some traits of the accused.

Two times test identification is done

1. At the time of police investigation
2. In court under oath
Police is not credible, hence it will be a mere statement given
by the person who identifies in TIP. It will be a statement
under sec 161 which can be used for corroboration which is
done under oath in the court. It is supportive and
corroborative piece of evidence of identification which a
witness does in the court under oath.

TIP is conducted by a magistrate. TIP done for first time is a

very weak form of identification, hence it is conducted twice
and for second time is it in oath.
 The object of test identification parade was
given in the case of Ramanathan versus
state of Tamil Nadu 1978 SC

Since there is an identification of a person therefore

it is essential before the test identification parade
that the suspect must be kept in secrecy. it is shown
that the very purpose of such identification is gone.

It is the duty of the magistrate to see that the witness was not shown, the
suspect otherwise the very basis of identification parade fails. Same was
clarified by the honourable Supreme Court in the case of SV Madar v.
State of Mysore, 1979 SC

The main object of holding a test identification parade during the

investigation is to test the memory of the witness based upon his
impressions,
The second object is to ensure that the police investigation is going in the
right direction.

Once the witness has identified the suspect, it becomes easier for the
police Investigation to carry.

Who is supposed to conduct the TIP?

By virtue of section 162 of CRPC, any statement taken by a police
during investigation cannot be used for any other purpose. Except the
contradiction of the witness
Since the TIP identification will be used later for corroboration of the
identification of the accused by the witness during the trial in the court.
Hence, to use it as a corroborative evidence and to circumvent section
151 of CRPC, a TIP is held - by a magistrate.

If the police holds and TIP then it will be taken to be 161 CRPC
statement which can be used only for the purpose of contradiction and
not for corroboration at a later stage. The same was clarified by the
honourable Supreme Court in the case of RM . Sharma V.state 1955 SC

If the property TIP is arranged, The police must nowhere be in the picture
and it must be done in the supervision of a magistrate.

What is the evidentiary value of a TIP?

A TIP is not made under oath and hence cannot be taken as a

substantive piece of evidence. A TIP however is an extremely important
corroborative evidence. It becomes the previous statement of a witness to
corroborate the identification done by him of the accused during the
trial. A question came up before the honourable Supreme Court in the
case of State of Andhra Pradesh V. . KV Reddy 1976 SC

In a test identification parade, does the witness have to point out the role
played by the Suspect?
It was held that the witness job is to merely identify the witness, he need
not point out the exact role played by the suspect during the course of the
offence.

I
what are the precautions to be taken while conducting a TIP?

any TIP since it’s going to be used as a corroborative evidence and

connects the suspect with the crime. It is imperative that the TIP should
be absolutely fair.
The word fair means that,
A. There should be no delay, a TIP should be held as early as possible. In
case of a delay which should be reasonable and satisfactorily explained.

A delay which is satisfactorily explained and also where it is ensured, the

suspect was not shown to the witness. Delay is not fatal.

What has to be shown is that the suspect was not shown to the witness.
The same was clarified with Supreme Court in the case of MullahV.State
of Uttar Pradesh 2010 SC

The second aspect is that the suspect should be mingled with identical
person in the ratio of at least four is to one. The dummies should be
similarly build and in case, the suspect has a special mark then such
mark should be specially covered.

The third aspect of the word fairness is the reliability of the witness, was
there any light for him to see the suspect shall be taken into
consideration. Was he close enough To see the suspect closely.

Where The witness who identifies the person in the dead of the night and
he was long sighted and not very his specs, the TIP was under a cloud.

A question came up before the honourable Supreme Court in Machi

Singh V.State of Punjab 1983 SC

The Supreme Court said that where the villagers where there was no
electricity are used to living in the dark and they can see much better
than an ordinary person even in the light of the lantern.

Is a test identification parade mandatory?

1. Mohanlal V.State of Maharashtra 1982 SC

2. SC Bahari v. State of Bihar 1994 SC

Where it was held though it is not mandatory that the TIP should be held
and failure to hold a TIP does not make in-admissible the Evidence
Of identification in the court but then first time identification in the
court is a weak type of evidence. as far as the identification in the court is
concerned, there is a landmark judgement on it that is Suresh Chandra
BAhari v. state of Bihar 1994 SC

Where it was held that the identification by the witness in the court is the
main substantive evidence. Identification for the first time in the court is
not completely useless but then since the trial takes many years, it is
easy for the defence to prove that’s the witness had the opportunity of
seeing the suspect during the course of these years. As a result, it becomes
a weak for operating evidence.

Hira v. State of Rajasthan 2007 SC

Identification in court for the first time is an evidence of weak character.

It derives strength if identification has taken place right after the crime
had occurred. No doubt TIP is not obligatory and its absence does not
make identification in the court in-admissible but it seriously
undermines the identification in the court for the first time.

Can the suspect refuse to submit for the test identification parade?

The suspect had a right To refuse to go under test identification parade

but it would lead to presumption against him under section 114 of
evidence Act.

However, after the introduction of section 54A of CRPC, A court can order
forcibly the test identification parade. the question arises is
identification in a TIP can form the basis of conviction

As said earlier, it is a corroborative piece of evidence and thus cannot by

itself sustain a conviction. Therefore it has to be corroborative in other
material particulars too. If other material particulars are sufficiently
proved then a TI P followed by identification in the court can form the
basis of conviction.
Can the accused demand a TIP?

The matter came before the Supreme Court in the case of Mulla versus
state of UP 2010 SC
It was held that the TIP is to be asked by the police at the stage of
investigation and thus The accused has no right in it.

Suppose witness does not identify him in the court, will the accused
gets the benefit?

Simon v. State of Karnataka 2004 SC

It was held that if other evidences are clinching then no identification

by witness of the accused in the court cannot be a reason for acquittal.
There could be variety of reasons for such failure for example where the
witness maybe one over, he may lost his memory and the time period
always fades memory.

Is TIP necessary in every case?

Prem v. State of Maharashtra 1998 SC

Where the police arrested the accused when they were running away or
where the witness know the accused then what was the need of a TIP.
Hence, where the witness already knows the suspect then a TIP would be
an exercise in futility.

Piara lal v. State 1961 cal HC

The question arises before the court that whether the TIP offends Article
20(3) of our constitution?

Same was reiterate in kathi Kalu v. State of Bombay 1962 SC

It was held that a test identification parade does not per se amounts to
infringement of article 20(3) Because if the suspect is innocent it will
go in his favour.
To summarise test identification parade is a tool of investigation and has
to be negate the bar laid down by the Sec 162 CrPC and though the
Identification and investigation stage is not substantive in nature and
can be used only to corroborate identification in the court , if this
identification is absolutely reliable. Then it can form a very important
link in the chain of circumstances thus helping the court to come to a
proper conclusion.

1%Aa.tk#
9
of Section
he has erty for will
[s 10] Things said or done by conspirator in reference to common design

Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written
by any one of such persons in reference to their common intention, after the time
when such intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing that any such
person was a party to it.

Ans:

section 10 applies to criminal as well as civil

proceedings. In civil cases for instance, conspiracy
to do trespass in someone s field which is a civil
matter. Hence, it is applicable on civil matters and
actionable wrongs.

There is no need to prove that conspiracy exists

only the preponderance of probability will be
sufficient to prove that there exists a reasonable
ground of conspiracy.

A conspiracy is hatched in secrecy, and executed in

darkness. Naturally, therefore, it is not feasible for
the prosecution to connect each isolated act or
statement of one accused with the acts or
statements of the others.

Section 10 is the exception to hearsay. To attract

the applicability of this section, the court must have
reasonable ground to believe that two or more
persons had conspired together for committing an
offence and

then the evidence of action or statement made by

one of the accused could be used as evidence
against the other. whatever is done or said by any
one in furtherance of that design, a part of the res
gestae and therefore the act of all.

As per this section, Anything said, done or written

"in reference to the common intention" is admissible,
and therefore the contents of letters written by one
in reference to the conspiracy is relevant against the
others.

I.C Narang v. emperor 1929 PC

Hence, "An overt act committed by any one of the
conspirators is sufficient on the general principles of
agency to make it the act of all."
section 10 is therefore based on the doctrine of
agency. A conspirator is an agent of others in
carrying out the object of conspiracy.

The expression "in reference to their common

intention" in this section is very comprehensive with
the result that anything said, done or written by a
co-conspirator, after the conspiracy was formed, will
be evidence against the other before he entered the
field of conspiracy or after he left it.

Confession:
A confession by a conspirator made to a Magistrate
after arrest disclosing the existence of a conspiracy,
its objects and the names of its members, is not
admissible under this section against the co-
conspirators jointly tried with him, but only under
section 30.

In favor:
Bhagwan Swarup v State of Maharashtra, AIR 1965
SC:
The evidence of a co-conspirator can only be used
for a negative purpose. It cannot be used in favor
of the other party or for the purpose of showing that
such a person was not a party to the conspiracy.
The word used in this section is as against .

Object:

Once the object of conspiracy has been achieved

then the section 10 has no value.

Illustrations:
Wheel conspiracy:
(ii) The facts that B procured arms in Europe for the purpose of the
conspiracy,

C collected money in Calcutta for a like object,

D persuaded persons to join the conspiracy in Bombay,

E published writings advocating the object in view at Agra, and

F transmitted from Delhi to G at Cabul the money which C had collected at

Calcutta, and
the contents of a letter written by H giving an account of the conspiracy, are
each relevant, both to prove the existence of the conspiracy, and

to prove A's complicity in it, although he may have been ignorant of all of
them, and

although the persons by whom they were done were strangers to him, and

although they may have taken place before he joined the conspiracy or after
he left it.

Section 11:
[s 11] When facts not otherwise relevant become relevant

Facts not otherwise relevant are relevant

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) if by themselves or in connection with other facts they make the existence
or non-existence of any fact in issue or relevant fact highly probable or
improbable

The usual theory of essential inconsistency is that a certain fact cannot co-
exist with the doing of the act in question, and, therefore, that if that fact is
true of a person of whom the act is alleged, it is impossible that he should
have done the act.

Thus the fact of presence elsewhere is essentially inconsistent with the

presence at the place and time alleged, and therefore with personal
participation in the act cannot be possible (theory of alibi).
Fact in clause 1 is relevant because it is inconsistent with the main fact. If it
is consistent then in such case that fact is of no use as per this section.

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.

Inconsistent: dark black

Highly improbable: dark grey
Highly probable: light grey
Plea of alibi:
Alibi is one of the best evidences, the evidence of alibi is a
conclusive proof of acquittal. The standard of proof
required in this beyond reasonable doubt.

The Supreme Court has observed that it is well settled that

the plea of alibi must be proved with absolute certainty so
as to completely exclude the possibility of the presence of
the person concerned at the place of occurrence.

WIGMORE:
the word alibi is a Latin word which means elsewhere .
The theory of alibi is based on the fact that the presence of
person elsewhere is inconsistent with the place and time
alleged and hence with his participation in the act.

Elements of Alibi:
1. Time
2. Place
Both are to be in co-existence and simultaneous that
means a person at a same time cannot be at two different
places.

State of Delhi Admn. V. Laxman Kumar 1986 SC

The plea of alibi postulates the physical impossibility of
the presence of the accused at the scene of offence by
reason of his presence at any other place at such time.

Dhananjay v. State of West Bengal 1994 SC

The plea of alibi if raised by the accused is required to be
proved by him by cogent and satisfactory evidence so as to
completely exclude his possibility of presence at the place
of occurrence at the relevant time.
Mangu v. State of UP 1983 ALL HC
The burden of proving alibi is always on accused. Alibi is
not an exception in IPC or any other law. However, the
burden of proving on the accused is as per section 103 of
Indian Evidence Act. The standard of proof is strict proof,
it is much more than preponderance of probability.

Brij Bihari v. State of UP 1985 All HC

Plea of Alibi has to be looked into at the stage of trial and
not at the stage of investigation.
The plea of alibi must exclude completely the possibility of
the presence of the accused at scene of crime. This plea of
alibi must be proved by cogent, reliable and
unimpeachable evidence.

Thankamma v. Kerela 1987 Ker HC

Defence of Alibi is the only defence of innocent man.
Hence, sec 11 comes to the aid of an innocent accused. The
requisites of a satisfactory alibi are:
1. It should be pleaded at a earliest opportunity
2. It should adequately cover the time of the alleged
crime. If it is reasonably possible that accused could
be present at both places then the plea of alibi is
useless.
State of Mah v. Narsingh Rao
The plea of alibi must be proved with absolute certainty.

Narendra Singh v. State of MP 2004 SC

The burden to prove the plea of alibi is on accused.

Can the plea of accused can be used in favor of another?

It was held in the case of B. Pandey v. state of Bihar 2004
SC that plea of alibi is only applicable on the accused and it
does not entitle the co-accused to claim the benefit of this
plea. Each accused has to prove his own plea. In this sense,
the plea of alibi is purely personal in nature.

Conclusion: the plea of alibi is like a double edge sword. If

the plea is claimed and proved and it can be the best
evidence for the accused and if disproved can be a handle
in the hands of prosecution against him.

Section 12: specific relevancies from this section onwards.

This section applies on civil cases only.

12. In suits for damages, facts tending to enable Court to

determine amount are relevant. In suits in which
damages are claimed, any fact which will enable the Court
to determine the amount of damages which ought to be
awarded, is relevant..
Sec 13:
13. Facts relevant when right or custom is in question

Where the question is as to the existence of any right or

custom, the following facts are relevant

(a) any transaction by which the right or custom in

question was created, claimed, modified, recognized,
asserted, or denied, or which was inconsistent with its
existence;

(b) particular instances in which the right or custom was

claimed, recognized, or exercised or in which its exercise
was disputed, asserted or departed from.

[intangible rights]Illustration: The question is, whether A

has a right to a fishery. A deed conferring the fishery on
a a
subsequent grant
irreconcilable with the mortgage, particular instances in
, or in which the
neighbors, are
relevant facts.

RIGHTS:
They are of three types:
1. Private rights : personal in nature
2. General rights: for class of persons
3. Public rights: fundamental rights

Rights are all recognized and enforceable by law.

Evidence act recognizes private rights as well, it also does
not differentiate btw general and public rights. Therefore
general and public rights are same as per the evidence

Rights are further:

1. Tangible/ corporeal
2. Intangible/ incorporeal[right to fisheries]

Gupta lal v. fatelal 1881 cal FB

The illustration is a part of the section and since
illustration only deals with incorporeal rights. So sec 13
deals with incorporeal rights.

Tepu v. Ratni 1898 Cal

It restricted the decision of the full bench

Others HC s agree with the decision of the Calcutta

HC.
1. Ranchoddas vs Bapur 1886 bom HC
2. Collector v. Palak Dhari All Hc
3. Mahavir v. Sonmati 1964 Pat HC

It was held all these cases, that the decision of Calcutta HC

is to narrow interpretation of the illustration. The narrow
interpretation of sec 13 should not be taken.

We will take a broader view of Interpretation of statute

and we can safely say that sec 13 notwithstanding with the
illustration deals both with corporeal and incorporeal
rights.
Facts relevant when right or custom is in question. –– Where the
question is as to the existence of any right or custom, the following facts
are relevant: ––
we
get it
.

(a) any transaction by which the right or custom in question was

created, claimed, modified, recognized, asserted or denied, or which was
inconsistent with its existence;
claim it
we

I (F)
(b) particular instances in which the right or custom was claimed,
recognized or exercised, or in which its exercise was disputed, asserted or
departed from.

Rights / customs -

mostly hearsay 7
- Opinion of Person who know

• Private About him - 548 Relevant .

general
]
•

mix
Together
-

• Public •
Senior citizens
Aborigines
•

section 48
Section 13

•
merely opinions
Tangible Things

•
Consists •
Transactions
Both Corporeal •
Particular instances
/
-
.

incorpea , Rights

(well settled from Case

-
Precedents)

How To Prove a Custom ?

•
Section 48 -

opinions of Those Person who

ought to know .

•
Section 32 (4) (7)

•
Section 13
Transactions : where Performance is
completing
-

C. Bahadur Pat A Transaction is

Manto b-
Jang Singh 1957 HC
something
-

Already done and Completed

it Should not

Proceeding
"
with the word
"
be confused .

Something which is still

fateh
-

Gujju lal lal 1881 going

on
v.
.

A Transaction is
something which

have been Concluded btw Persons

by a Reciprocal Action

•
Benami Transactions -
as not Concluded Therefore is not
a Transaction .

•
it is not a Transaction btw two actual Persons .

• There is no
Reciprocal action .

Suit -

is a
Piroceeding and not a transaction .

Declaratory Decree

④ -
②
wants
1
This is called as an
Instance

Instances =
Claims
 State of Bihar v Radha Krishna Singh

It was held that section 43 specifically deals with judgements, the word
transactions under section 13 does not deals with judgements and
anything if it is not allowed by section 43 cannot be allowed by virtue of
section 13. some courts have use section 13 to prove the admissibility of
judgement under the provisions of section 43, we don’t agree. If a
judgement does not fall under the ambit of section 40 to 42 and is in
admissible Under the ambit of section 43 then it cannot be made relevant
under section 13.
The word other provision of this act used in section 43 does not cover
section 13 because section 13 does not deal with judgement at all. Section
43 is a specific section which deals only with judgements and the word
transaction in section 13 Will not include judgements which is bound by
section 43.

oo-i-nkrommmmkmumyfnot.hn
aokMmmmmgmmmmEo-__-

Exhaustive Definition

•I
5
6
7
8
9
10
11
 7¥ •
-

Where it is uncertain, whether an act was done with a guilty knowledge or

intention or whether it was innocent or accidental, proof that it formed one
of a series of similar acts raises the presumption that the act in question
and the others, together forming a series, were done upon system, and were
therefore not innocent or accidental.

This section is an application of the general rule laid down in section 14,
and the words of the section as well as of Illustration (a) show that it is not
necessary that all the acts should form parts of one transaction, but that
they should be parts of a series of similar occurrences.

For example under Illustration (a) the fact that the shops of the same
person insured against fire were successively burnt down on different
occasions is relevant to prove that the incidents were not accidental but
part of a design
Section 14 provides that the facts showing the existence of any state of
mind, such as intention or knowledge, are relevant, when the existence of
any such state of mind is in issue or relevant; and this section provides
specifically for allowing evidence of similar occurrences, in each of which
the person doing the act was concerned, whenever there is a question
whether an act is done with a particular knowledge or intention

Ru
gearing
→
2 ⇐_ The
.

question was whether

( 1899) she murdered her husband

by Poisining
him
?

The fact her Son BIC ;D -

had been
Same Poison and
given
All the Food was given
hence Act was

By ② only
And made
intentional And .

not accidental .

All Become
Allergic After That .

Kerr

✗
- Hales V .

1908

1
unsanitary
Razor .

Allergy

Barber was held liable -

This was not Accidental .
cottages

Lily f- Presumption .
 Common Course OF -

}
Buisness
)
/ Public
Private

Presumption
114 illustration

All letters
→
Are Put here Before

Dispatch

-B• illustration
(A)
.

b.
Common Course
of Bigness .
 Whether
-

letter

Reached

To A
?

I
•
it was Posted in due Course .

•
it was not Returned .

The Post Was Registered

Relevant uls S -
16

1
Presumption 01s 114 illustration t
 Sec -16
32127
-

- Presumption
114 ill -
F .

Essential ÷ Constant RE Piti -110N .

A- A -

Reg letter Post

1 "
REFUSED To
Letter return
-

ACCEPT
"

1
Presumption B tears Recieved
,

Taken it .

/ CPH]
GYAN SINGH V '

Deuinder Kaur 1887

↳ to
Refusal Tent amounts
Presumption .

Post
A- Notice Sent by Reg
deemed to Be served ?
Clauser
Ansi -

Section 27 -

general
Act
/
.

Jagdish Singh v.

Nathu Singh 19925C

Tenant - Refused
Notice
To Accept The

/
Deemed to be served .
United Comm Bank . v.

1994
Bhimsen Mukhija
DEL ttc

Unnoticed when required under statutory law

rules to be sent by registered AD :
acknowledgement due and if it is not sent by
acknowledgement due and is only sent after
getting it registered. Then the presumption
regarding the service of notice under registered post
is neither tenable nor based on sound exposition of
law.

Admissions

C- -35

Anything stated z
•
statement -

|
Orally
Admissions
•

• Confessions
•
writing
connected to A Person .
 who stated .

- Statement
is a

genus .

Statement
which are against
Them are generally
not spoken .

]
They Are detrimental
They Are
.
-

Self harming Admissions

-
•

-
Complete Admission

OF material facts

is called as a
 Confession

-
Statement

\ Admission

confession 7
it must
-
Be voluntary .

Under

Pressure
]7
•

•
Fraud etc
may not
Amount to
 [ Confession or

Admission ]
/
Presumption : -
No Person
Speak Against
/ himself voluntarily
if he

Then it is A Truth
say so
- .

/
Nathu lal v. Durga Prasad
1954 SC .

Wherever There is An

Admission - No need to
prove
 That fact .

Admissions are very weak kind of evidence and the court may reject
them if it is satisfied from other circumstances that they are untrue.

An admission must be examined as a whole and not in parts.

"It is settled law that an admission of any party has to be read in its
entirety and no statement out of context can constitute admission of
any fact.

relevancy of admission is that an admission being a statement against

the interest of the maker, should be supposed to be true, as it is highly
doubtful/dubious that a person will voluntarily make any false statement
against his own interest.

But this is not the only reason for the relevancy of admissions.
EVIDENTRY VALUE OF AN ADMISSION:

Admission can be oral or documentary or

contained in electronic form.
Admissibility is the concept in the law of evidence
that determines whether or not the evidence can
be received by the court.
Under the Indian Evidence Act, 1872, when any
fact has been declared to be legally relevant then
they become admissible.

All admissible facts are relevant but, all relevant

facts are not admissible.
Admissibility is a decisive factor between relevance
and proof and only legally relevant facts are
admissible.
Thiru john v. returning officer 1977 SC
Admission are a substantive piece of evidence, it
act as a best evidence against the party make it
and though not conclusive, shifts the onus to the
maker on the principle that what the party admits
must be reasonably presume to be true.
UOI v. Moksh Builders 1977 SC
It reiterated that admission is a substantive piece
of evidence of the fact admitted.
Evidentiary value of the admission is one of the
highest. It conforms the very bases of a decision.

Any thing stated is a statement, if a statement is

made against the maker will be called as an
admission and if such admission admits all the
acts or parts of transactions will become
confessions.

In other words, confession is an admission, all

confessions are admissions but all admissions are
not confessions.
Statement is a genus and admission is a specie
while confession is a sub-specie.
In IEA, no separate headings called confessions
but law of confession starts from sec 24 onwards.

Is admission a domain of civil law?

At the time of pre-independence, at the time of
British law, the admissions were considered in the
domain of civil law. But in Indian law, no such
distinction had been made.
There can be admissions in criminal law as well,
however the terminology used in sec 24-29 are
pertaining to the accused. Hence, as far as
language is concerned, confessions in Indian
evidence act clearly smack off pertaining to
criminal law.

But there is no bar as such to use confessions in

civil law, for instance, there were five trespassers
and all of admitted that they have climbed over the
gate and went through the field and clearly
trespass; this admission will amount to
confessions even if it is going in the realm of civil
law.
In Indian law hence we can say that there is no
clear demarcation that admission belong to civil
law or confession belongs to criminal law per se.

Admission or confession be addressed to someone?

Where a person went to a temple and is confessing
his guilt to God unknown to the fact that the
pujari was listening. It was held to be a valid
confession. The reason of this is that admissions
are species of statements. Statement means
something stated and not communicated. The very
genus does not deal with communication but with
that only which is stated. Hence, it is immaterial to
whom an admission or confession is made.
An admission made to a stranger or that
admission which was never intended to be an
admission will also be relevant.
 That is why it is immaterial to whom an
admission is made, it is for that matter that even if
it is not addressed to somebody but is heard by
anyone will be relevant.
If a person wrote a confession on a paper and he
wanted to give that to his wife, but it fell in the
hands of someone else. It is a valid confession as
clarified by supreme court in-
Rakesh wadhwan v. jagdamba industrial corp.
2002 SC

This term statement is a genus, admission is

specie, confession is a sub-specie was taken from
the case of sahoo v. state of UP 1966 SC
An admission or confession is a voluntary
acknowledgment made by the parties regarding the
existence of certain facts which are relevant to the
matter and are against the interest of the maker of
that statement.
There can be two types of admissions
1. Judicial admissions
2. Informal or extra judicial admissions
Judicial admissions are formal admissions made
by a party during the proceeding of the case. These
are those admissions which are made in a court
before the judge. Since they are made in a formal
atmosphere and in the court. Therefore, they are
fully binding on the party making them.
Judicial admission amounts to waiver of proof. It
goes with the double presumption that admission
is made before the judge itself and if any fact is
been admitted before them certainly there is no
need to call a proof for it.

A waiver of proof is not conclusive in nature. They

are never a conclusive proof because they may
have a taint of fraud, force or inducement.

Informal admissions: they are partially binding

except where they act as estoppel. They are
usually made in casual conversation in ignorance
of the possibility of it being used in future
litigation. For example, with friends, family,
neighbor, and so on.

The party can always deny such admission. It

cannot act as a waiver of proof.

58. Facts admitted need not be proved. No fact

need be proved in any proceeding which the
parties thereto or their agents agree to admit at
the hearing, or which, before the hearing, they
agree to admit by any writing under their hands,
or which by any rule of pleading in force at the
time they are deemed to have admitted by their
pleadings:

Provided that the Court may, in its discretion,

require the facts admitted to be proved otherwise
than by such admissions.

As per sec 58, there can be two types of

admissions:
1. During the hearing
2. Before the hearing
Admissions made by parties during the hearing
will amount as waiver of proof. Any fact admitted
whether oral or writing need not be proved.
But if it is before the hearing, the fact must be in
writing, if it wants to be admitted.

If there is fraud or collusion been done by the

parties, then such admission is not valid. Hence
admissions can never be conclusive so here the
court reserves all rights to say that it does not
accept the admission as admission and need
proofs for it.
So if there is any doubts regarding the integrity of
such admissions, then court may call a proof for it
as per the proviso of this section.

Judicial admission whether stands at higher

footing then informal admissions:
Nagin Das Ram das v. Dalpat ram 1974 SC
In this judgment, the Hon ble SC held that yes the
judicial admissions stands at higher footing then
to evidentiary admissions {e.j}.
Admissions if true and clear are by far the best
prove of the fact admitted. Admissions in pleading
or judicial admissions admissible under sec 58
made by the parties or their agents stands at
higher footings then as of evidentiary admissions.

In civil law:
1. Admissions in pleading
2. Admissions by notice, etc..

Oral v. written admissions:

Certainly written admissions are better then oral
admissions. Oral admissions must be taken with
great caution and care. There could be inherent
imperfection in such oral admissions. Oral
admissions must be given in verbatim i.e., word by
word.
Wali mohd v. emperor 1924 ALL HC
Prosecutor: do you have three packets of cocaine?
Le accused: yes I have three packets.

Admission rejected as it was a vague admission. It

was not in verbatim. There is a clear chance of
concoction.
Process of taking admissions court.
Admissions and confessions be pick and
choose. The whole admission or confession must
be placed before a court. Every admission or
confession has two parts:
1. Inculpatory
2. Exculpatory
In simple terms, an inculpatory statement refers to

an exculpatory statement, on the other hand, is

the statement which discharges the accused from
his liability.
Any evidence which is beneficial to the defendant
in a criminal trial is exculpatory. Likewise, any
evidence favourable to the prosecution is
inculpatory.

H
20. Admissions by persons expressly referred to by
party to suit

Statements made by persons to whom a party to

the suit has expressly referred for information in
reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is
sound. A says to B

KM Singh v. secretary association of Indian

universities 1992 SC
In this case, plaintiff made an application for a
direction that if the respondents A and B took
special oath in front of mandir and gurudwara
respectively then he will admit the contentions.
The same challenge was accepted by both the
respondents. Hence, such admission was valid as
per section 20 of the evidence act as the plaintiff
has himself expressly referred the respondents to
the god.
21. Proof of admissions against persons making
them, and by or on their behalf:
[Admissions are relevant] it is not section 17 but
section 21 which justifies this statement.
Admissions and confessions are only relevant
when they are made against the interest of the
person who makes it.
(a) The question between A and B is whether a certain deed is or is not forged. A affirms
that it is genuine, B that it is forged. A may prove a statement by B that the deed is
genuine,
And B may prove a statement by A that deed is forged;

But, A cannot prove a statement by himself that the deed is genuine, nor can B prove a
statement by himself that the deed is forged.

Admissions are relevant and may be proved as against the

person who makes them or his representative in interest; but
they cannot be proved by or on behalf of the person who
makes them or by his representative in interest, except in the
following cases:

(1) An admission may be proved by or on behalf of the person

making it, when it is of such a nature that, if the person
making it were dead, it would be relevant as between third
persons under section 32. [common course of business]
(2) An admission may be proved by or on behalf of the person
making it, when it consists of a statement of the existence of
any state of mind or body, relevant or in issue, made at or
about the time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person
making it, if it is relevant otherwise than as an admission.

q- when can an admission be used in favor of the

person making them?
An admission is an inference which can be taken
against any fact in issue but when we go to section
21, it very clearly ordains that they can only be
used against the person who is making it.
However the very section also states that same
admission can be used in favor of that person but
only if it falls under the three exceptions listed
therein.
(b) A, the captain of a ship, is tried for casting
her away. Evidence is given to show that the
ship was taken out of her proper course.
A produces a book kept by him in the ordinary
course of his business showing observations
alleged to have been taken by him from day to
day, and indicating that the ship was not taken
out of her proper course.
A may prove these statements, because they
would be admissible between third parties, if he
were dead, under section 32, clause (2).
(c) A is accused of a crime committed by him at
Calcutta. He produces a letter written by
himself and dated at Lahore on that day,
and bearing the Lahore post-mark of that
day.
The statement in the date of the letter is
admissible, because, if A were dead, it would be
admissible under section 32, clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove
that he refused to sell them below their value. A may prove these statements, though
they are admissions, because they are explanatory of conduct influenced by facts in
issue.
(e)
1
2
 Document is Forged .

-
Electronic Records

3
4
5
6
1
2
words
,

1.

3
 in

4
5
 in court
.

re -

6
7
8
1
2
3
 factor

4
5
6
7
Kora Ghasi v State of Orissa, AIR 1983 SC

Queen empress v. Gharya 1894

State of Tamil Nadu v. Kutty 2001 SC

Sn pare v. State of Maharashtra 1985 SC

Retracted confession

The rules regarding a confession, which is subsequently retracted, are:

(1) that a confession is not to be regarded as involuntary merely

because it is retracted.

(2) as against the maker of the confession the retracted confession

may form the basis of a conviction if it is believed to be true and
voluntarily made.

(3) as against the co- accused, both prudence and caution require the
court not to rely on a retracted confessional without independent
corroborative evidence.

(4) retraction should not be ambiguous vague or imaginary.

The corroboration should not only confirm the general story of the
alleged crime, but must also connect the accused with it.

The Supreme Court observed As, however, the confession was a

retracted one it could be acted upon only if substantially corroborated
by independent circumstances.
It is not necessary that retracted confession should be corroborated in each
material particular, it is sufficient that there is a general corroboration of
the important incidents mentioned in the confession.

The Supreme Court has held that there can be no absolute rule that a
retracted confession cannot be acted upon unless it is corroborated
materially.

But as a matter of prudence and caution which has sanctified itself into
a rule of law, a retracted confession cannot be made solely the basis of
conviction unless it is corroborated.

It is not necessary that each and every circumstance mentioned in the

confession regarding the complicity of the accused should be separately
and independently corroborated nor is it essential that the corroboration
must come from facts and circumstances discovered after the confession
was made.

It would be sufficient if the general trend of the confession is

substantiated by some evidence which would tally with what is contained
in the confession.

It has also held that a voluntary and true confession made by an

accused, though it was subsequently retracted by him, can be taken into
consideration against a co-accused, but as a matter of prudence and
practice the court should not act upon it to sustain a conviction of the co-
accused without full and strong corroboration in material particulars
both as to the crime and as to his connection with that crime.

The amount of credibility to be attached to a retracted confession would

depend upon the circumstances of each particular case.

However, such retracted confession cannot be used to support the evidence

of the other accomplices.
It has further held that a retracted confession must be looked upon with
greater concern unless the reasons given for having made in the first
instance (not for retraction as erroneously stated in some cases) are on
the face of them false.

Once the confession is proved satisfactorily any admission made therein

must be satisfactorily withdrawn or the making of it explained as
having proceeded from fear, duress, promise or the like from someone in
authority

A confession which has not been retracted even up to the last stage of the
trial and also accepted by the accused in examination under section 313,
CrPC, can be fully relied upon.

in Dagdu v State of Maharashtra:

Reading section 133 and Illustration (b) to section 114 of the Evidence
Act, 1872 together, the courts in India have held that while it is not illegal
to act upon the uncorroborated testimony of the accomplice, the rule of
prudence so universally followed has to amount to the rule of law, that it is
unsafe to act on the evidence of an accomplice unless it is corroborated in
material aspects, so as to implicate the accused.
The reasons for requiring corroboration of the testimony of an accomplice
are that an accomplice is likely to swear falsely in order to shift the guilt
from himself and that he is an immoral person being a participator in
crime who may not have any regard to any sanction of the oath and in
the case of an approver, on his own admission, he is a criminal who gives
evidence under a promise of pardon and supports the prosecution with the
hope of getting his freedom.

Who % The Police officer :*

Raja Ram v State of Bihar, AIR 1964 SC

The Supreme Court has held that the test for determining whether a
person is a police-officer for purposes of this section would be whether the
powers of a police officer which are conferred on him or which are
exercisable by him establish a direct or substantial relationship with the
prohibition enacted by this section, that is relating to the recording of a
confession
Central Excise Officer who has the powers of a police-officer for
investigation but not the power to frame a charge-sheet under section 173
of the Code of Criminal Procedure is not a
police-officer for the purposes of this section.
.

A Customs Officer is not a police- officer.

Officers empowered under the Narcotic Drugs and Psychotropic

Substances Act, 1985 have been held to be not police officers. Hence, a
confessional statement made to them was held to be admissible
against the person making the confession
 An officer under the FERA is not an officer in charge of a police
station, though he has certain powers which are similar to the powers of
a police officer. The Act does not confer upon him the power to lodge a
report under section 173 CrPC. He can only file a complaint. He is not
competent to submit a report. Powers of investigation are not
conferred upon him. Hence he cannot be said to be a police office

The members of the Railway Protection Force

constituted under the Railway Protection Force Act, 1957, are not Police
Officer

To A Police officer
}
Accused most know -

That Person
1-
impliedly is
Expressly a

Police officer

Accused of any offence".—

-

This expression covers a person accused of an offence at the trial whether

or not he was accused of the offence when he made the confession

A Nagesia v State of Bihar, AIR 1966 SC 119

Bheru Singh v State of Rajasthan:

By virtue of the provisions of section 25 of the
Evidence Act, a confession made to police
officer is not admissible in evidence under
any circumstances. A confession made to a
policeman even before investigation had begun
is also ruled out. The expression "accused of
any offence" in section 25 would cover the case
of an accused who has since been put on trial,
whether or not at the time when he made the
confessional statement, he was under arrest or
in custody as an accused. Inadmissibility of
a confessional statement made to a police
officer under section 25 is based on the
ground of public policy. The section excludes
all statement of incriminating nature made
to a police officer whether made before or after
becoming an accused person.
FIR in form of confession.

The FIR written at the instance of a person who is accused of an offence

is inadmissible under section 25 unless some recovery in pursuance to
the statement is made and only that part is admissible

Bandlamuddi Atchuta Ramaiah v State of AP, AIR 1997 SC

A confessional FIR cannot be used against the accused himself or

against his co-accused whom he implicated in it. If he offers himself as
a witness at the trial, the statements in the FIR can be used to
contradict or corroborate his testimony

Kanhaiyalal v UOI, AIR 2008

Confession under NDPS Act.—
SC 1044

A statement of the accused under section 67 of the Narcotic Drugs and

Substances Act, 1985 is not the same as a statement under section 161,
CrPC. It can be used as a confession against him. It is excluded from the
operation of sections 24-27 of the
Evidence Act. A conviction can be based on it.

The Supreme Court has added this note of caution that such confession
should be subjected to close scrutiny.

King-Emperor v Pancham, (1933) 8 Luck

I
⑦ -
chowkidar

I
Sec-2# {Arrested

later
Accused

|
- for

he
A

was

of
time

in
,

Custody
villagers . \
he
came he was
- Already
Back confessed in
/ infront of 300 village
still

Police Custody
men

voluntary .

-
not Admissible -
even police officer is

Temporarily absent .
1
2
3
4
5
6
7
Tofan Singh vs State of Tamil Nadu 2020 SC
In a landmark judgment, the Court held that confession to
officers under the Act is not admissible as evidence during
trial and infringes on the Constitution.
It ruled that officers authorised to investigate NDPS cases

Evidence Act and hence confessional statements made to

them are not admissible in law for the purpose of
conviction.

of NDPS Act, one has to keep in mind the fact that severer
the punishment, the greater the care taken to see that the
safeguards provided in the statue are scrupulously

Thus, this case overruled the Kanhaiyalal Judgment.

Section 26:
No confession made by any person whilst he is in the
custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as
against such person.

Explanation.
include
 1. the head of a village discharging magisterial
functions in the Presidency of Fort St. George
[redundant explanation.]
2. 2 *** or elsewhere, unless such headman is a
Magistrate exercising the powers of a Magistrate
under the Code of Criminal Procedure, 1882.

This section is a further extension of the principle laid

down in section 25.
Section 25 applies to all confessions made to police-
officers, this section to confessions made to persons other
than police-officers but made while in police custody.
A confession made to a police-officer would, however, be
admissible in evidence under section 26 if it is made in the
presence of a Magistrate and it is recorded by him in the
manner prescribed by section 164, Code of Criminal
Procedure, 1898.

State of Punjab v Harjagdev Singh, AIR 2009 SC

An extra-judicial confession can be made to or before a
private individual. It can also be made before a magistrate
who is not especially empowered to record confessions
under section 164 of CrPC or who receives the confession
at a time when section 164 is not applying
Hence A Magistrate means only that who is empowered
under sec 164 of CRPC to take confessions. If he is not
then it is deemed to be an extra judicial confession.

I. Confessions made under section 164 CrPC are signed

but not made under oath. It can be used both for
corroborating and contradicting other pieces of
evidence.
II. To invoke confession under sec 164, the accused must
be in police custody.
III. The confession shall follow the procedure laid down
in section 164 otherwise such confession is a tainted
confession.
Section 27:
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.

Section 27 starts with the word "provided". Therefore, it is

a proviso by way of an exception to sections 25 and 26 of
the Evidence Act
In the light of section 27, whatever information given by
the accused, in consequence of which a fact is discovered,
only would be admissible in evidence, whether such
information amounts to a confession or not.

The basic idea embedded under this section is the doctrine

of confirmation by subsequent events.

The doctrine is founded on the principle that if any fact is

discovered in a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is
true.

The information might be confessional or non-inculpatory

in nature, but if it results in discovery of a fact, it becomes
a reliable information
27th oct:

Darogaji [police-officer]
Today I have committed the murder of my wife Sneha. She
was having the illicit relation with my friend Madan, who
has run away.

this letter before the dead body of Sneha. Whether this

confession will consider relevant?
Sita Ram vs State of Uttar Pradesh 1965
A confession to a police officer was within the bar of s.
25, though it was not made in his presence.
A confessional letter written to a Police officer and sent to
him by post, messenger or otherwise is not outside the
ban of s. 25 because the police officer was ignorant of the
letter at the moment when it was being written.
The letter was inadmissible in evidence and was a
confession made to a police officer.

Section 27:
Discovery of Fact:
The doctrine is founded on the principle that if any fact is
discovered in a search made on the strength of any
information obtained from a prisoner,
Such a discovery is a guarantee that the information
supplied by the prisoner is true.
The information might be confessional or non-inculpatory
in nature, but if it results in discovery of a fact, it becomes
a reliable information.

Note: discovery of fact does not mean recovery of

property. however, recovery of property can be a part of it.

A comes to the Police station, before FIR is registered. He

is not been arrested neither he is custody. He takes the
police officer for a discovery of the fact.
Whether this be valid under section 27 of IEA?
There has been a dichotomy of opinion on this. As per
Bombay HC, it would amount to a deemed custody. While
Punjab HC was having a different opinion on this. In the
case of Sarabjit singh v. State of Punjab, the court held that
custody should be a real custody and merely an accused
comes to a police station does not amounts to a deemed
custody.

This section is based on the principle that if the accused by

his own volition leads to discovery of fact and that fact is
 only with knowledge of the accused. Then that fact may be
presumed to be true. However, for section 27 to come into
operation,
1. the discovery of fact must be in consonance of
information received from the accused.
2. The accused person must be in police custody
3. The information relates distinctively to the facts
disovered.
Sometimes this information may amount to confession and
that too before a police officer. But then it is not a mere
verbal confession, it is an information which is privy only
to the accused and that information leads to the discovery
of a fact. It is wrong to treat facts discovered as equivalent
to object recovered.
It is a discovery of the fact that some material thing has
been found. So when the accused says that he is ready to
produce the knife by which he killed the victim. This part
of statement is inadmissible as it hit by section 25.
However, the statement that he can produce a knife is
relevant as an evidence.

P. Kottaya v. Emperor 1946

Section 27 specifically says that it deals with discovery of the

fact. So when the accused says that he will produce a knife
concealed On the roof of his house. It is not the discovery of
the knife but the discovery of the fact that A knife is concealed
in the house of the accused.
 Section 27 start with the word provided.

A Nagesia v State of Bihar, AIR 1966 SC

The Supreme Court has held that this section controls sections 24, 25 and 26. It
is the proviso to all these sections.

State of Bombay v Kathi Kalu, AIR 1961 SC

The information given by an accused person to a police-officer leading to the

discovery of a fact which may or may not prove incriminating has been made
admissible in evidence by the section unless compulsion has been used in
which case it will be an
infringement of Article 20(3) of the Constitution.

State (NCT) of Delhi v Navjot Sandhu, (2005) 11 SCC 600

The fact that the informant accused was not taken to the spot of recovery
would have no bearing on admissibility but it might be one of
the aspects that goes into evaluation of the particular piece of evidence

State of Rajasthan v Teja Ram, 1999 (SC).

It is not obligatory on the part of the investigating officer to get the signature
of the accused on a confessional statement recorded under section 27.

State v. Abdul Rashid 2002 SC

It was held that merely the accused resigns from his statement, it is not the
valid reason to reject the discovery. Only the court has to be on its guard And
corroborate the material facts.

Sarabjit Singh v State, 1998 Cr LJ (P & H)

If at the time when the confession was made the person was not the accused
then section 27 will have no operation. If there is a recovery of a material
object when the accused was not in the police custody, it will not be taken as
admissible. On this fact, there is a dichotomy of opinion between Bombay
High Court and Punjab High Court.
The Bombay High Court in the case of Memon Mohd v. State 1958BOM
Bakshia v. State 1959 bom
The court held that if the person goes to the police officer and make the
statement that he has committed an offence though he is not formally arrested
but he would be deemed to be in the custody of the police. However, Punjab
and Haryana High Court in the above-mentioned case hide that unless there
was a forma
arrest, it would not be deemed to be in custody.
Hence, unless there was a formal arrest, It would not be deemed to be a
custody and hence any such recovery would be in admissible.

In sakal deep v. State of UP 1993 SC

In this case, the accused had assaulted the deceased with an axe which
resulted to her death. The accused came to the police station and handed it to
mr X, an investigating officer. The Allahabad High Court held this recovery
is not advisable under section 27 because no information was passed By the
accused while in the custody.

Karam Singh v. State of UP 1994 SC

Where the investigating officer recovered articles belonging to the deceased
before the rest of the accused. It was held by the Allahabad High Court such
recovery was inadmissible . Hence, If we go with the literal interpretation of
the statutes, the word “custody would mean A formal custody and not a
deemed custody.

The word discovery means that it is not in the knowledge of anybody else.
Naturally the question arises, if any material object is recovered then the
place of hiding Should not be bound to anybody except the accused. Earlier,
the connotation of the word place of hiring what is that it is the secluded spot
like in a jungle, etc.but this was too narrow of you. In the landmark case of
the state of Himachal Pradesh v. Jeet Singh 1999

Supreme Court gave a new and a much wider meaning to the expressions
place of hiding. The honourable court held that the place of hiding need not
be in a desolate secluded space. A wider dimension has been given in the
sense then the place of hiding can even be in a public place. A place which is
accessible to every people. That place of hiding can even be in A public case.
Place which is accessible to many people but then it is not ordinarily visible
to everybody
So where a person had buried a gun or a Main Road or had concealed it in
bushes even though their public places but they are hidden from the eyes of
the passers-by. Hence, it would be covered in the town place of hiding.
However if the place was accessible and the place of hiding was too visible to
everybody. Or;

If there are more than one people who know about it, then it cannot be called
as a discovery of fact.

Discovery under this section can Only be made once by the accused.

Recovery underneath section 27 can only be made once by the accused. We

cannot let co- accused, going for the same discovery after that it has been
discovered. One cannot discovered a fact again and again.

Whenever we discover any aspect, the first thing which we see is is the
recovery natural,
For instance, recovery of a currency notes from the well. it could be called as
a natural discovery.

Babu Das v. State of MP 2003 SC

The manner in which the alleged recovery is made also creates a lot of doubt in
our mind. It is seen from the evidence led by the prosecution that at every place
where the accused took the Panchayatdars and the Police, according to the
prosecution witnesses themselves, there were thousands of people present
witnessing the recovery. We find it extremely difficult that such a large
gathering would be present at the recovery unless people in the village had
already come to know that there is going to be such a recovery. Then the
manner in which the currency notes were allegedly kept in a damp area under a
rock also creates doubt in our mind since no prudent man would conceal
currency notes in such a place. Then there is a very serious doubt about the
recovery of the wrist watch. It is stated that on 28.5.1988 the wrist watch in
question was recovered from the place where it was hidden and was seized and
sealed in an envelope to which PWs.10, 17 and 19 appended their signatures.
But surprisingly, when the sealed packet was opened in the court, it was found
that the watch was wrapped in a newspaper dated 3.6.1988 a newspaper
published about 6 days after the date of seizure.
 Madan singh v. State of Rajasthan 1978 SC

Mere rejection of seizure witness does not means the discovery be rejected.

T. Kamble v. State of Maharashtra 2000 bomb Hc

If the articles Recovered under section 27 are not seized immediately by the
investigating officer then they may lose it’s evidentiary value And in such cases
there credibility are lost.

Ghanshyam Das v. State of Assam 2005 SC

Recording of information while doing the discovery of fact is important. Non-

recording of information could be fatal to the case.

Seizure
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Section 28:
It is an extension to section 24.
If such a confession as is referred to in section 24 is made
after the impression caused by any such inducement, threat
or promise has, in the opinion of the Court, been fully
removed it is relevant.

Shobha v. state of MP 1959 MP HC

Once the impression caused by an inducement, threat, or
promise, has been fully removed in the eyes of the law and
the court is satisfied from it then that confession can be
made admissible because it becomes free and voluntary.

Section 29:
A relevant confession does not become irrelevant because
it was made
(1) under a promise of secrecy; or
(2) in consequence of a deception practised on the accused;
or
(3) when the accused was drunk; or
(4) in answer to questions which the accused need not have
answered; or
(5) in consequence of the accused not receiving a warning
that he was not bound to make it and that it might be used
against him.
This section applies to criminal cases and is to be read
along with section 24.

This section indicates the immoral nature of the Indian

evidence act. No matter what are the means, how are the
evidence taken. If they are reliable, relevant then they are
admissible and hence can be the part of record.
DECIET DOES NOT TAINT EVIDENCE. Ends are
important.
If such a confession is otherwise relevant:
the confession shall be otherwise relevant. If confession is
made under section 29 to police officer, then it could not
be said as a relevant confession.
admissions in civil law can be accepted in criminal law
and vice versa. This is the only exception to section 43.
This section is however in contrast to the section 164 of
CRPC where the confessions are taken voluntarily and the
accused is given a warning that such confession will be
used against him.
BUT THIS SECTION SHALL NOT BE READ WITH
SEC 164 CrPC.
DUTY OF THE MAGISTRATE U/S 164 CrPC
Magistrate shall make a memorandum at the foot of such
record to the following effect:-" I have explained to (name)
that he is not bound to make a confession and that, if he
does so, any confession he may make may be used as
evidence against him and I believe that this confession was
voluntarily made
Queen empress v. Sageena 1867 PC
The evidence of a police man who overheard the accused
statement made in another room and in ignorance of the
police man vicinity and un-influenced by him gave that
confession. Therefore, such confession is admissible.

Confession in an intercepted call:

The attempt to intercept calls by investigating agencies is a
matter of great concern as it directly interferes with the
constitutional right to privacy of an individual. The
legislation gives free hand to an official in this regard if
there is a matter of national security and public safety.

The famous cases in which intercepted calls were taken as

evidence are:
1. Afzal guru case
2. Sanjay dutt case
3. Praful desai case

Section 30: When more persons than one are being tried
jointly for the same offence [the offence within same
trancsaction], and a confession made by one of such
persons affecting himself and some other of such persons
is proved [whole procedure of 306, 307, 308 CrPC has
been followed], the Court may take into consideration such
confession as against such other person as well as against
the person who makes such confession
- The object of this section is that where an accused
person unreservedly confesses his own guilt,
- and at the same time implicates another person who is
jointly tried with him for the same offence,
- his confession may be taken into consideration against
such other person as well as against himself,
- because the admission of his own guilt operates as a
sort of sanction, which, to some extent,
- takes the place of the sanction of an oath and so
affords some guarantee that the whole statement is a
true one.
Jurisprudence of section 30:
As a general rule, if any person confesses to his guilt,
then that confession or admission can be used only
against that person making that confession. A confession
by one person cannot be used by another person. The
nature of confession is such that it is made against the
interest of the maker so It should be used against only
that person who is making such confession.
Section 30 is an exception to the rule. The confession
made by the person can be used against another person
In this section, the principle of necessity is invoked. In
the Indian evidence Act, the admissions and confessions
of one person can be used against another for the first
time in section 10. But section 10 does not used the
word admission or confession, it is more generic in
nature, in that anything said, done or written by a co-
conspirator after the conspiracy was first hatched is
relevant against each and every other co-conspirator.
However, anything said, done or written in section 10
may not be a confession per se but the idea is the same.
In section 30, the subject matter is only confessions
which can be used against other co-accused negating the
basic principle that one confession cannot be used
against other.

Is it against the principle of natural justice? Is it a

substantive piece of evidence?
Section 30 ensures natural justice by introducing the fact
that confessions of accused can be used against other
only in a joint trial. Where the co-accused will have the
opportunity to cross examine the accused who is making
this confession.
As far as second question is concerned, the confession
of the accused against other is not a substantive piece of
evidence and cannot form a basis for conviction of such
accused.
It was stated in State NCT of Delhi v. Navjot sandhu
2005 SC
There can be lot of interlinking of law because the
whole law of the approver under 306 CrPC is based on
the confession of co-accused against himself and the
other accused. If we go to section 133 of evidence act, it
says that conviction can be based of the co-accused even
on an uncorroborated testimony of co-accused provided
he prove himself to be absolutely reliable under ill. B of
sec 114 of evidence act.

The corroborative evidence must show or tend to show

that the story of the approver that the accused committed
the crime is true; in other words, the corroborative
evidence must be such which confirms not only the
evidence that the crime has been committed but also the
evidence that the accused committed that crime.
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q- what should be the form of dying declaration?
Ans:
State of Karnataka v. shariff 2003 SC
Dying declaration as far as possible should be recorded in the
language of the person who is dying. This gives the credibility
to the dying declaration.
Note: if dying declaration is recorded in a different way i.e. in
an another language, it cannot be disregarded.

Dying declaration to a relative:

It does not suffer from any infirmity merely because it is
given to an interested witness [relative].
Habib Usman v. State of Gujrat 1979 SC
It was held that dying declaration is bound to be given to an
interested witness. So merely because it was given to the
parents, it cannot be held to be inadmissible.
For instance, where a woman was a victim of gangrape and
she discloses the offence and the reasons to her husband and
died. It was held that there was no reason to discard her dying
declaration solely on the ground that her husband is an
interested witness.
RB Yadav v. state of Bihar 1998 SC
The best way of recording a dying declaration is in
questionnaire form. However, if it is not recorded in such
manner then it could also be given in a narrative manner. But
preference is given to a questionnaire form.
Can a dying declaration be in an oral form?
An oral dying declaration basically means that a witness is
speaking out of his memory. It is not written or signed. There
is no requirement of law that it must be under oath or even
signed. That is why where there are such circumstances that it
is not possible to take written DD then an oral DD may also
be recorded.
Darshana devi v. state of Punjab 1996 SC
The treatment of an oral DD is different from written DD as
both stands on a different scale.
In this case, the entire law regarding oral DD was dismissed.
It was held that whenever there is an oral DD then the exact
words of declarant should be reproduced in the court.
Conviction be based on oral D.D?
SC held that there is no ground for rejecting an oral DD. In
case oral DD invokes reliability and confidence in the court
and proved to be trustworthy, then there is no reason why
conviction cannot be based on oral D.D. however, when
conviction is based on oral dying declaration then it is
imperative that the exact words used in dying declaration
must be reproduced in the court.

Does delay effect Dying declaration?

G.S Walia v. state of Punjab 1998 SC
Delay if satisfactorily explained would not damage a dying
declaration. However, where no satisfactory explanation been
given then the court must employ the rule of prudence and ask
for the corroborative evidence.
Ramesh Kumar v. state of Chhattisgarh 2001 SC
In this case, a married woman done suicide and later her
diary was revealed in which she was prone to cruelty.
The SC held that in the language of s 32(1) there is a term,
circumstances of the transaction . So, what are the
circumstances of the transactions would be covered by noting
which are in the diary.
So, it can have good evidentiary value as dying declaration,
provided it is proved to be written in normal course of
business.
What is the law, if there are more than 1 dying declaration?
Harijit Kaur v. state pf Punjab 1999 SC
Gangaram gehani v. state of Maharashtra 1982 SC
S.D Kohli v. state of Maharashtra 2009 SC
It was held that whenever there are more than 1 dying
declaration. The first dying declaration should be performed
over the latter ones. First D.D automatically carries a
presumption of being more truthful than later one which could
be tutored.
However, if D.D are contradictory and inconsistent then
according to SC, firstly it is necessary that corroboration must
be there and even after the corroboration, if the things are very
confusing then we can drop that dying declaration.

Chinamma v. state of kerela 2004 SC

In this case, woman gave dying declaration after lot of burns.
She gave two absolutely contradictory dying declaration. It
was held that this D.D is not reliable and be discarded.
State of Andhra-Pradesh v. sheikh Mohil 2004 SC
Two contradictory DD cannot be taken as substantive
piece of evidence.
The court always has a duty to see whether any DD appears to
be tutored.
A truthful dying declaration has a different flavor. If such DD
is tutored then there is always a doubt that it is not free and
fair. The court must immediately resort to corroboration. Rule
of prudence must be followed.
Whether sec 32 only deals with suicide or does it deal with all
types of homicide?

Kans Raj v. state of Punjab 2000 SC

It was clarified by the SC that the word death includes both
suicidal and culpable homicide.
Emperor v. Kunwar Pal Singh 1948 PC
In this case, the person who was dying not only gave the
cause of death of himself but also cause of death of the
another. It was held that DD is a statement only regarding his
own death and not the death of the another.

FIR as a dying declaration:

State of UP v. Chetram 1989 SC
The SC held that it was a declaration and there was no
expectancy of death in Indian law. So, it is not hit by English
common law principles.
161 CrPC Statement used as DD?
Yes.,
Mukesh bhai Burot v. state of Gujrat 2010 SC
a statement recorded u/s 161 CrPC under certain
circumstances can be treated as DD if the injured declarant
dies and also FIR which clearly implicates and gives details
can be used as DD.
What happens if a Declarant survives?
Maqsood v. state of UP
Ram prasad v. state of Maharashtra 1999 SC
It was clarified by the SC that if the declarant survives that
statement can be used for corroborative purposes also. It no
longer remains as a dying declarant.
So, dying declarant can be used for the purposes of
corroboration u/s 157 of IEA.
If the magistrate had recorded that DD then it can be taken as
s 164 CrPC.- [Ranjit singh v. state of MP 2011 SC]

A dying declaration is a substantive piece of evidence

provided the declarant dies. In case, he survives it loses that
substantive probative value but the question arises, will it be
treated as s 161 CrPC statement.
The Hon ble SC has categorically held that DD cannot be
treated as 161 statements but it can be used for corroboration
purposes u/s 157. In case it is given to a magistrate then it can
be raised to the status of s 164 crpc statement.

Can there be DD by nodes and gestures?

Yes, sign language is also admissible as a dying declaration.
M Ramakrishna v. state of AP 1994 SC
It was held that dying declaration made by nodes and gestures
or by sign language is also admissible as DD.
So, where a girl was unable to speak but was in a fit condition
of mind then if questions are put like: Did A killed you?
Person says: yes. These are admissible as DD.

Fitness of declarant:
Naturally dying declaration to be acceptable has to undergo
the most important litmus test that the declarant must be fit
enough to make coherent statement that declarant state of
mind is such that the statement which he or she is making is
not hit by any incapability.
The law of fitness has undergone a sea change. Earlier, a
medical certificate of fitness was necessary without which the
DD was rejected but then came a landmark judgment of SC
which was Laxman v. state of Mah 2002 SC
1. It was held that medical certificate is not necessary, what
is necessary is that anybody who is recording should give
 a certificate that when I recorded the statement, the
declarant was in fit state of mind.

2. Or it is made in course of business

when a statement by dead person who cannot be found are
admissible?
When the statement was made by that person in common
course of business. Anything which is done in common course
of business raises a very important presumption that it is not
tutored.
In particular when it consists of any entry or memorandum
made by him in books kept in the ordinary course of business
or in discharge of professional duty.
(2) or is made in course of business. When the
statement was made by such person in the ordinary
course of business,
This means it was not a pre-determined and a pre-
conceived statement. It was made at the spur of the
moment. Hence there is no element of tutoring.
Therefore, there are no infirmities in it.

and in particular when it consists of any entry or

memorandum made by him in books kept in the ordinary
course of business,

the diary of a deceased surgeon regularly kept in the

course of business, stating that, on a given day he
ivered her of a son, is a
relevant fact.
(c) The question is, whether A was in Calcutta on a given
day. A statement in the diary of a deceased solicitor,
regularly kept in the course of business, that on a given
day the solicitor attended A at a place mentioned, in
Calcutta, for the purpose of conferring with him upon
specified business, is a relevant fact.
or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt
of money, goods, securities or property of any kind; or of
a document used in commerce written or signed by him;
or of the date of a letter or other document usually dated,
written or signed by him.
(g) The question is, whether A, a person who cannot be
found, wrote a letter on a certain day. The fact that a
letter written by him is dated on that day is relevant.

(3) or against interest of maker. When the statement is

against the pecuniary or proprietary interest of the person
making it, or when, if true, it would expose him or would
have exposed him to a criminal prosecution or to a suit
for damages
This clause deals with admissions.
A statement of a deceased person in order to be
admissible under this clause must be a statement of a
relevant fact and must be against the proprietary or
pecuniary interest of the person making it.
When one makes a declaration in disparagement of one's
own rights or interests, it is generally true, and because it
is so, the law has deemed it safe to admit evidence of
such a declaration.
Illustrations (e), (f) and (h) apply to this clause.
(e) The question is, whether rent was paid to A for

saying that and

(f) The question is, whether A and B were legally

married. The statement of a deceased clergyman that he
married them under such circumstances that the
celebration would be a crime, is relevant.
(h) The question is, what was the cause of the wreck of a
ship. A protest made by the captain, whose attendance
cannot be procured, is a relevant fact.

(4) or gives opinion as to public right or custom, or

matters of general interest. When the statement gives
the opinion of any such person, as to the existence of any
public right or custom or matter of public or general
[IEA recognizes either ind/private right or gen/public
right] interest, of the existence of which, if it existed, he
would have been likely to be aware, and when such
statement was made before any controversy [the opinion
must be made before the controversy] as to such right,
custom or matter had arisen.
This deals with rights and customs. The opinion of any
deceased person about rights and customs are relevant.
This has to be read with sec 48 of IEA.
(5) or relates to existence of relationship. When the
statement relates to the existence of any relationship 1
[by blood, marriage or adoption]
between persons as to whose relationship [by blood,
marriage or adoption] the person making the statement
had special means of knowledge, and when the statement
was made before the question in dispute was raised.
(l) The question is, what was the date of the birth of A. A
deceased father to a friend, announcing
the birth of A on a given day, is a relevant fact

(m) The question is, whether, and when, A and B were

married. An entry in a memorandum book by C, the
deceased father of B,
on a given date, is a relevant fact.

(6) or is made in will or deed relating to family affairs.

When the statement relates to the existence of any
relationship 1 [by blood, marriage or adoption] between
persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such
deceased person belonged, or in any family pedigree, or
upon any tombstone, family portrait or other thing on
which such statements are usually made, and when such
statement was made before the question in dispute was
raised.
This provision mainly talks about the relationship of two
dead persons. What were their relationship and makes
their fact relevant.
Only written statements are allowed here.

photo of a family pedigree

relevant.
 Janam pattri could also act as an important piece of
evidence.
(7) or in document relating to transaction mentioned in section
13, clause (a). When the statement is contained in any
deed, will or other document which relates to any such
transaction as is mentioned in section 13, clause (a).

(8) or is made by several persons and expresses feelings

relevant to matter in question. When the statement was
made by a number of persons, and expressed feelings or
impressions on their part relevant to the matter in question
(n) A sues B for a libel expressed in a painted caricature
exposed in a shop window. The question is as to the similarity
of the caricature and its libellous character. The remarks of a
crowd of spectators on these points may be proved.

Ra

Evidence of depositions in
former trials is admissible
as it forms an exception to
the hearsay rule.
Depositions are in general
admissible only after proof
that the persons who made
them cannot be produced
before the court to give
evidence
Provided—
that the proceeding was between the same parties or their representatives in
interest;
that the adverse party in the first proceeding had the right and opportunity to
cross- examine;
that the questions in issue were substantially the same in the first as in the
second proceeding.
The section enumerates the cases in
which the evidence given by a witness
(a) in a judicial proceeding, or
(b) before any person authorized by law
to take it, is relevant in a subsequent
judicial proceeding or a later stage of the
same proceeding.
Such cases are five in number, viz.
(a) when the witness is dead;
(b) when he cannot be found;
(c) when he is incapable of giving
evidence;
(d) when he is kept out of the way by the
adverse party; and
(e) when his presence cannot be obtained
without an amount of delay or expense
which the court considers unreasonable.
off
waive
IF you
Then
its your
Loss
y
.
The adverse party must have both the right and the opportunity to cross-
examine. The word "and" cannot be read as "or".

The word "right" means a legal right.

This proviso is based on the fundamental principle in the administration of

justice that every man should have an opportunity of cross-examining witnesses
whose evidence is to be used against him.

If the adverse party has had liberty to cross-examine and has not chosen to
exercise it, the case is then same in effect as if he had cross-examined.

It is not necessary that the opponent should have exercised his right of cross-
examining, for the depositions will be relevant if he deliberately forbore from,
or waived the absence of, an opportunity for cross-examining.

The death of the witness whose evidence is to be admitted should first be

strictly proved unless it is admitted on the other side.

The deposition of a witness taken before one Magistrate is admissible in

evidence at a re-trial before another Magistrate if the witness was dead at the
time of re-trial.
Explanation. —A criminal trial or inquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.

The Explanation is intended to do away with the objection that, in criminal

cases, the State is the prosecutor

The effect of the Explanation is that the

deposition taken in criminal proceedings may be used in a civil suit, and vice
versa.

The deposition of a witness taken in the course of an enquiry before the

Coroner cannot, in the event of death of the witness, be taken in evidence at the
trial of the case in the High Court, because the enquiry before the Coroner is
not a proceeding between the prosecutor and the accused.
 A coroner is a government or judicial official who is
empowered to conduct or order an inquest into the manner
or cause of death, and to investigate or confirm the
identity of an unknown person who has been found dead
within the coroner's jurisdiction.

Sec 33 IEA be connected with Sec 299 CrPC Excel "%.se#

✓

Pori
Exception

yoTnefo
I

There
~
!
Examination
be

would -

Cross

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

Are only Corroborative Evidence .

-
Entries in books of account including those maintained in an electronic form]
when relevant:-
-only specific To This ; it is a specie .

Entries in the books of account, including those maintained in an electronic

form], regularly kept in the course of business, are relevant whenever they
-

refer to a matter into which the Court has to inquire, but such statements shall
not alone be sufficient evidence to charge any person with liability

-516
534

Course of Business -8 1) See -16

Ordinary 2) See -326)

3
)sec34_
A sues B for Rs. 1,000, and shows entries in his account books showing B
to be indebted to him to this amount. The entries are relevant, but are not
sufficient, without other evidence, to prove the debt.

At
CBI v VC Shukla, 1998 Cr LJ 1905 Banker
Books Applicable !
-
↳ %eets-insap.ua file!
Also
Section
Bound
This
-
Spiral To
Also a Book .

Book' ordinarily means a collection of sheets of

paper or other material, blank, written, or printed,
fastened or bound together so as to form a material
whole. Loose sheets or scraps of paper cannot be
termed as 'book' for they can be easily detached
and replaced.
book" in S. 34 aforesaid may properly' be
taken to signify, ordinarily, a collection of
sheets of paper bound together with the
intention that such binding shall be
permanent and the papers used collectively in
one volume.

Hotel Register.—

A hotel register kept at its counter was not taken to be a book of account for
the purposes of this section. It could have been so regarded if it were shown
that the
register also pertained to pecuniary transactions relating to customers

Books of account maintained in electronic form have also become relevant

under the section by reason of the addition of these words to the section under
the amendments introduced by the Information Technology Act, 2000. The Act
has introduced similar changes in the Bankers' Books Evidence Act, 1891. The
amendment was necessary to accommodate the present practice of keeping
only computerised accounts.
 5¥
Relevancy of entry in public [record or an electronic record] made in
performance of duty.—

An entry in any public or other official book, register or [record or an

electronic record] stating a fact in issue or relevant fact, and made by a public
servant in the discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of the country in which
such book, register or [record or an electronic record] is kept, is itself a
relevant fact.

This section is based upon the circumstance that in the case of public
documents entries are made in discharge of public duty by an officer
who is an authorized and accredited agent appointed for the purpose.
The law reposes such a confidence in public officers that it presumes
they will discharge their several trusts with accuracy and fidelity.

To render a document admissible under this section three conditions are

necessary:—
(1) the entry that is relied upon must be one in any public or other official
book, register or record;
(2) it must be an entry stating a fact in issue or a relevant fact; and,
(3) it must be made by a public servant in the discharge of his official duty,
or by any other person in the performance of a duty specially enjoined by
the law.

Fourth condition was added by Supreme Court in the case of Ravinder

Singh Ghorkhi v. State of Uttar Pradesh 2006 SC

namely that "all persons concerned indisputably must have an access to the
public record or register.
entry in Birth and Death Register maintained under Birth and Death
Registration Act, 1969, by competent authority showing birth of a male child,
admissible to prove parentage and date of birth.

Voters' list was also held to be admissible for the same purpose. Such list is
prepared by competent officers in Election Deptt. in discharge of their official
duty.

Entries in Death Register maintained by Gram Panchayat under the Bihar

Panchayat Raj Act, 1948 are admissible in proof of a person's date of death.

A map prepared by a person, who is dead, in a previous case not inter partes,
showing the limits of a particular district is not admissible as it cannot be
called a public map offered generally for public sale or made under the
authority of Government.

Entries made by a police officer in site inspection map and site inspection of a
memo of a motor vehicle accident were held to be record made in discharge of
his official duties. They were relevant under the section. They were also in the
category of public documents.
Baleshwar Tewari v Sheo Jatan Tewari, AIR 1997 SC

Explaining the reason why entries in revenue records are not taken to be
evidence of
ownership, the Supreme Court said: or
Exist
"Entries in revenue records are the paradise of the Patwari. The tiller of
the soil is rarely concerned with the same. So long as his possession and
enjoyment are not interdicted by the due process and course of law, he is
least concerned with entries. It is common knowledge in rural India that a
raiyat always regards the lands he ploughs as his dominion and generally
obeys with moral fibre, the commands of the intermediary so long as his
possession is not disturbed. Therefore, the creation of records may be a
camouflage to defeat the just and legal right or claim and interests of the
riyat, the tiller of the soil on whom the Act confers title to the land he
tills."

A raiyat was
defined as
someone who has
acquired a right to
hold land for the
purpose of
cultivating it,

Revenue records:

Entries in revenue record as to possession are presumed to be true

But they are not taken to be proof of an ownership or title by themselves
by virtue of the provisions of section 101 relating to burden of proof,
advantage could not be taken of the weakness of the defendant's title for
proving the plaintiff's title.

An entry in revenue record creates a presumption in favour of the person

whose name is entered. Burden lies on the party who challenges the entry to
establish by unimpeachable evidence that the entry in question was
erroneous.
Khasra is a record of right. Its entries
are presumed to be true. The court should not have discarded them on the basis
of statements in the plaint.
[s 36] Relevancy of statements in maps, charts and plans.—
Statements of facts in issue or relevant facts, made in published maps or
charts generally offered for public sale, or in maps or plans made under the
authority of [the Central Government or any State Government], as to matters
usually represented or stated in such maps, charts or plans, are themselves
relevant facts.

To render inquisitions, reports, surveys, and other similar documents

admissible in evidence as public documents, it must appear that they were
made so that the public might make use of them and be able to refer to them,
for the fact that the public are interested in the documents, and are in a
position to challenge or dispute them, if inaccurate invests them with a
certain amount of authority.
Neither this section nor section 83 has any application to maps prepared for
private purposes, that is, for the purpose of any particular suit or by any
Government officer for any special purpose.

Thus, a map made by a Deputy Collector for the purpose of the settlement of
land forming the silted bed of a river is not one which is admissible in
evidence under this section and section 83 of the Act; but it is a map the
accuracy of which must be proved before it can be admitted in evidence

But maps printed by Government of different wards of a city are admissible in

evidence

s 37] Relevancy of statement as to fact of public nature contained in

certain Acts or notifications.—
When the Court has to form an opinion as to the existence of any fact of a
public nature, any statement of it made in a recital contained in any Act of
Parliament [of
the United Kingdom] or in any Central Act, Provincial Act or [a State Act]
or in a Government notification or notification by the Crown
Representative appearing in the Official Gazette or in any printed paper
purporting to be the London Gazette or the Government Gazette of any
Dominion, colony or possession of His Majesty, is a relevant fact.
[s 38] Relevancy of statements as to any law contained in law-books.—

When the Court has to form an opinion as to a law of any country, any
statement of such law contained in a book purporting to be printed or
published under the authority of the Government of such country and to
contain any such law, and any report of a ruling of the Courts of such
country contained in a book purporting to be a report of such rulings, is
relevant.
No court takes judicial notice of the laws of a foreign country, but they
must be proved as facts.

Production of a copy of a foreign Government Gazette attested as true copy

by a seal
of the court is not the mode approved by this Act for proving a foreign law
and the court cannot take notice of such copy for the purpose.
The opinion of an expert on foreign law can be received under section 45.
Strictly speaking, under this section the report of a case in a newspaper does
not appear to be relevant, because a newspaper cannot be regarded as a book
purporting
to be a report of the rulings of the court.

[s 39] What evidence to be given when statement forms part of a

conversation, document, electronic record book or series of letters or papers.

When any statement of which evidence is given forms part of a longer

statement, or of a conversation or part of an isolated document, or is
contained in a document which forms part of a book, or is contained in part
of electronic record or of a connected series of letters or papers, evidence
shall be given of so much and no more of the statement, conversation,
document, electronic record book or series of letters or papers as the Court
considers necessary in that particular case to the full understanding of the
nature and effect of the statement, and of the circumstances under which it
was made.
When evidence is given of a statement which forms part of

(a) a longer statement or

(b) a conversation, or
(c) an isolated document, or
(d) a document contained in a book, or
(e) a series of letters of papers,

the court has discretion as to how much evidence should be given of the
statement, conversation, document, book, or series of letters or papers for the
full understanding of the nature and effect of the statement and the
circumstances under which it was made.

CHAPTER III.— FACTS WHICH NEED NOT BE PROVED

56. Fact judicially noticeable need not be proved.

57. Facts of which Court must take judicial notice.
58. Facts admitted need not be proved.

All relevant facts must be proved, is there any exception to this rule, critical
examine?

Judicial notice is an exception to the general law of evidence, elucidate ?

Judicial notice: notorious facts.

Common knowledge of everyone. So no need to invest the time of the

court into it.

Shashi Nayar v UOI, AIR 1992 SC

Judicial notice is based upon very obvious reasons of convenience and

expediency; and the wisdom of dispensing with proof of matters within the
common knowledge of every one has never been questioned. Taking judicial
notice of the scarcity of dwellings, the Calcutta High Court held that a dwelling
house cannot be acquired without providing alternative accommodation
 Fatehchand Himantlal v State of Maharashtra, AIR 1977 SC
Judges cannot and do not act within "ivory towers". Not to take notice of
matters which are notorious is to shut one's eyes in the face of reality. It is in
the interest of state that there shall be an end to litigation.

It is true that judges cannot act on their own private knowledge or belief
regarding the facts of a particular case but they are entitled to use the
knowledge of the common affairs of life which men of ordinary intelligence
possess.

Sec. 57: Onkar Nath v Delhi Admn., AIR 1977 SC

The list of facts of which the court shall take judicial notice and which are
enumerated in this section is not exhaustive
It is for the sake of convenience that the courts are allowed to take judicial
notice of certain facts which are so clearly established that evidence of their
existence is unnecessary.

Under clause (1) of this section the court should take judicial notice of all
Indian laws. "Indian law" is defined by the General Clauses Act, section
3(29), and includes any law, ordinance, order, bye-law, or regulation passed
or made at any time by any competent legislature, authority, or person in
India.

It is not including customs. But as custom has acquired the force of law
therefore, it are also included in it.
Clause 2].—Statutes are either public or private, general or special. A public or
general Act is a universal rule applied to the whole community, which the
courts must notice judicially
But special or private Acts are rather exceptions than rules, since they
only operate upon particular persons and private concerns, and the courts
are not bound to take notice of them.

Clause 3].—Articles of War for officers, soldiers, etc., are contained in the
Army Act

Clause 4].—The court is bound to take judicial notice of the prorogation of a

State Legislative Assembly.

so also of the budget speech of the Finance Minister.

Refusal to take judicial notice of statutory notification has been held to be an

error which is of patent nature justifying review

Clause 5] The accession and the sign manual of the Sovereign for the time
being of the United Kingdom of Great Britain and Ireland

Clause 6] All seals of which English Courts take judicial notice: the seals of
all the Courts in India and all Courts out of [India] established by the
authority
of [the Central Government or the Crown Representative]

the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries

Public, and

all seals which any person is authorised to use by [the Constitution or an Act
of Parliament of the United Kingdom or an] Act or Regulation having the
force of law in [India];
 [Clause 7].—Judicial notice of the signatures of the Secretaries to the
Government on any instrument can be taken under this clause.

A true copy of a Gazette notification can be received in evidence if the other

party does not object to its admissibility as secondary evidence.

Clause 8].—All courts must take judicial notice of the existence and title of
every State or Sovereign recognised by the Government of India.

Clause 9].—The phrase "divisions of time" includes also Indian eras. Thus,
Samvat, Shaka, Hindi, Bengali, Hizari and Jalus eras will be judicially
noticed. The court is bound to take judicial notice of the holidays notified in
the Official Gazette of any Local Government.
Where an incident took place at 7 a.m. in the month of April, it was held
that the court could take judicial notice of the fact that it was not dark at
that time

A Magistrate ordering demolition of a dilapidated house taking judicial

notice of incessant rains in the area was held to be justified

(10) The territories under the dominion of 18 [the Government of India];

(11) The commencement, continuance and termination of hostilities between
[the Government of India] and any other State or body of persons.

(12) The names of the members and officers of the Court and of their deputies
and subordinate officers and assistants, and also of all officers acting in
execution of its process, and of all advocates, attorneys, proctors, vakils,
pleaders and other persons authorized by law to appear or act before it;

(13) The rule of the road [on land or at sea].

In all these cases, and also on all matters of public history, literature, science
or art, the Court may resort for its aid to appropriate books or documents of
reference.
If the Court is called upon by any person to take judicial notice of any fact, it
may refuse to do so unless and until such person produces any such book or
document as it may consider necessary to enable it to do so.
 Laxmi Raj Shetty v State of Tamil Nadu, AIR 1988 SC
The court cannot be called upon to take judicial notice of facts published in a
newspaper. The presence of the newsman who personally perceived the
reported facts would be necessary.

59-60 CHAPTER IV OF ORAL EVIDENCE

Oral evidence has been defined by the Act to be all statements which the
court permits or requires to be made before it by witnesses in relation to
matters of fact under inquiry (section 3).

ORAI Evidence

Per Se OF
witnesses
Examination

✗
OF
witnesses

59 60

61-99 -

Law of Documents in IEA .

[s 59] Proof of facts by oral evidence.— Best Evidence

Rule
All facts may be proved by oral evidence. except the [contents of
documents or electronic
records]
Documents ,
•
Existence
-
ORAL Evidence

•
Condition can be given .

• Contents
B. E. Rule .

Contents in a document

cannot be Proved 92
orally .

91

59

oral Evidence
-

Based on a deposition made

witness
by a
@
under Oath / 7 .

Pa
But Because -

Presume to Be True
OF "
Audi Alter am

The Person is cross-Examined The opposition

by .
 Evidence of Deaf Person :-B Sign language ORAL Evidence
-

A dumb person need not be prevented from being a credible and reliable
witness merely due to his/her physical disability. Such a person though unable
to speak may convey himself through writing, if literate or through signs and
gestures, if he is unable to read and write. A case in point is the silent movies
which were understood widely because they were able to communicate ideas
to people through novel signs and gestures
When a deaf-mute is a witness the court will ascertain before he is
examined that he possesses the requisite amount of intelligence, and that he
understands the nature of an oath.

A deaf-mute's evidence may be taken

(a) by written questions to which he may reply in writing or
(b) by means of signs

The both will be considered as oral evidence.

Queen-Empress v Abdullah, (1885)

It is not necessary that the words should be spoken. The words of another
person may be adopted by a witness by a nod or shake of the head or even
squeezing the hands of the questionnaire.
The case falls under dying declaration as well as oral evidence.

Ali sandiri v. King emperor 1937 Bom HC

In this case, a women throat was cut. However, she was fully conscious and
was able to give her testimony. She was asked to nod to the person who had
cut her throat. She nodded ahead and then she died. It was held that the
nodding was her dying declaration and be considered as an oral evidence.
 Contents of documents may be proved by oral evidence under certain
circumstances, viz., when evidence of their contents is admissible as
secondary evidence.

Oral evidence of an electronic record?

There is no secondary evidence as oral evidence of an electronic record.

Evidence
"

Direct
Indirect
Hearsay
-

Evidence Can be Corroborative

Always
.

Evidence
For Oral Evidence
157
4s

Primary not To

]- Documents .
Why
Accept Hearsay
Secondary Evidence ?
So as a general rule of evidence, the oral evidence must be direct. Law does not
allow hearsay or indirect evidence because:

Hearsay evidence being second hand evidence based on information given by

other people, it is considered to be suspectible piece of evidence and will not lead
the court to any concrete logical conclusion.

Hearsay evidence cannot properly be subjected to a test of cross-examination,

because witness giving hearsay evidence having no first hand and direct
knowledge of fact relevant, will escape while replying only I had so heard only

Admission of hearsay evidence will open the doors of fraud

Admission of hearsay or indirect evidence would encourage tendency to lead a
weaker proof of fact then a strong and more reliable proof.

So it require the proof of any fact, must be given by most reliable and probable
evidence, this can be done by insisting upon any direct oral evidence. However
Indian evidence act has recognised certain exceptions to general rule requiring
direct oral evidence.
 sec-60-wE-BE.ie
This section says that oral evidence must be direct, that is, if it refers to

(1) a fact which could be seen,

the evidence must be of a witness who says he saw it;

(2) a fact which could be heard,

the evidence must be of a witness who says he heard it;

(3) a fact which could be perceived by any other sense or manner,

the evidence must be of a witness who says he perceived it by that sense or
that manner;
neral Provision

(4) an opinion, or the grounds on which that opinion is held,

the evidence must be of a person who holds that opinion on those grounds.

This section, subject to the proviso excludes opinions given at second-hand.

The use of the word "must" in the first clause of the section imposes a duty
on the court to exclude all oral evidence that is not "direct"

The word "direct" is opposed to mediate or derivative or "hearsay".

Exception in CRR
Book !
There is An
Expert
.

/ opinion
Provided that the opinions of experts expressed in any treatise commonly
offered for sale, and the grounds on which such opinions are held, may be
proved by the production of such treatises if the author is dead or cannot be
found, or has become incapable of giving evidence, or cannot be called as a
witness without an amount of delay or expense which the Court regards as
unreasonable:
 Provided also that, if oral evidence refers to the existence or condition of any
14.0
material thing other than a document, the Court may, if it thinks fit, require the
-

production of such material thing for its inspection.

gfry Matt ""

Comes as Corroborative

qjdeÑ°
of
Rice of Evidence
ORAI
Against
Evidence .

⑦
5-61-66 [which Evidence To

Produced]
Secondary .

Primary
③
567-73 -

Proving of document

②
Types of Documents

Prove
Public does
74-1-8 How To
[
1 \
Public Certified Copies
Private
.

document
document

d7I-9oA-ResomPtiorÉg
 ⑨ ④ 1
11
*
Be 93 -9g
Terms have to

Proved Documents
by
Ambiguity of

Documents

nrrrrrrn will Bound

""

shall (it
"

use

§
-

cut The hands

[s 61] Proof of contents of documents.— may

The ""

r
Prerogative OF The judge .

The contents of documents may be proved either by

primary or by secondary evidence.¥4 Not
By
Only
-

Direct
1 Evidence
Existence
[ Conditions ] Missing
.

of - -

Documents
from
•

it .

Original Doc To
Evidence
Primary
]✓-
•

These Are
Be Filed
only
.

Secondary Allowed .

Tertiary ]✗
•

Only in those areas

where Case falls 4s 65 .
?⃝
 Primary Secondary Evidence :
-

v.

Primary evidence is evidence which the law requires to be given first.

Secondary evidence is evidence which may be given in the absence of the
better evidence which the law requires to be given first, when a proper
explanation is given of the absence of that better record.

Secondary evidence is an exception and hence cannot be given as a matter of

will. When and what type of secondary Evidence is to be given has to be
determined by the law.

Primary evidence is defined in section 62 and secondary evidence in section

63

Q-does the court has inherent power to circumvent the law which require
secondary evidence to be given in certain conditions?

Admissibility of documents.— Generalia specialibus non derogant

Where there is a specific provision covering the admissibility of a

document, it is not open to the court to call into aid other general provisions
in order to make a particular document admissible.

62 63
64
/
✓ ,
Q- what is primary evidence? What is secondary evidence? Can both be
given ? If no then under what circumstances secondary evidence be given?
"
④
5¥
[s 62] Primary evidence.

Primary evidence means the document itself produced for the inspection of
Ad
the Court.

document
Original

Document /Contract
made
Explanation 1.—Where a document is executed in several parts, was

in Party .

each part is primary evidence of the document.

yoriginal
-
-
Carbon
Copies
made
/A¥TRANSAN_
Simultaneously All

/ primary Evidence
1- Are
signed :)
Dittrent
OF
in
Party
will made documents
original
.

Carbon copy .

Kamala Rajamanikham v Sushila Thakur Das, AIR 1983

Two wills in identical language were prepared by the process of typing in

which the second copy was obtained by carbon impression. Both were duly
executed and attested. Both were held to be original and not one a copy of the
other.
Where a document is executed in
several parts, each part is primary
evidence of the document.

Where a document is executed in

counterpart, each counterpart is
primary evidence, as against the
party executing it. Read Sec 63 CD
-

with .

Where a number of documents are

made by printing, lithography, or

÷
photography, each is primary
evidence of the contents of the
rest.

But Where they are copies of a

common original they are not
primary evidence of the contents
 Copy
i+a
-

NEWSPAPER

PRINTED
in
]
TRANSACTION PRIMARY
one

Evidence
Be
may Other
.

They EACH
For
FR

Pies

Aµrañ%Poss From
A

7 Negatives
To
-
Form
Their
-

Common positives
original
1
NOTA
PRIMARY

PRIMARY EVIDENCE .

-
EVIDENCE . MORPHINGOF

PHOTOS
Done
.

BE
CAN
 Counter parts

Let us understand the meaning of the term counter

part.

Mr B

Mr. A

The landlord
Thetenant
.
-

Mr B wants certain
Mr A has certain requirements too for the
conditions for a tenant house:
to stay at his house:
1) well-furnished
1) no booze,no dogs
and no girls friend 2) independent and free
from incumbrance.
2) no illegal activities
3) fully air conditioning
3) rent and bills be and maintenance done.
paid at or before due
date

Contract is
formed.

Now each party will receive their

counterparts of the contract.
 This will be used
AS AN PRIMARY
Evidence Each
other .

MR
B
MR ①
condition conditions
G- d-

U¥g% NST .

- ,

Each
document
a
is part
it
country
•

To mR① MRBO
To -

When a document is executed in counterpart, each party signing only the part
by which he is bound, each counterpart is the best evidence against the party
signing it and his privies.

As to the other party it is only secondary evidence.

 BANK Counterfeit

*
This Been
to

BANK it deposited
Use The Bank
Primary
.

Can

Against
a
as

Evidence you
.

But
have it ' "
Be
you
fixed money
no Paid .

BANK Puts A

stamp over
here .

This
Counterpart But it is
is A
Evidence if you want
used
by
As
A Evidence secondary ,

it in
your
firm
-

you Favor .

to

To Put liablity To The Bank .

To Show you have

 deposited The

money .

Illustration by Taylor:
If the transaction is a contract between A &
B and the document is copied out twice. A
alone signs the document while B signs the
other. A then hands to B the document
signed by himself. B hands the vice versa
to A.

Then as against A the document signed by

A is primary evidence. Similarly that is for
the B too.

Hence, if there are two contemporary

writings counterparts of each other. One of
which is delivered to the party and the other
preserved as if both may be considered as
original have equal claims of authenticity
 B
Counter A
Part .

B 's Promise I
in That A 's Promise
in That

⑦
document
B. document

I 1
USA
India

copied
Document is
contract of Out Twice .

A And B

For Him
Counterpart is Secondary
Evidence
tofnisdocument .
?⃝
 Similarly ④ counterpart
s For

him - is Secondary

Evidence To

document
That
Legal
.

If a transaction is a contract between A and B and a document is copied out

twice. A sign one doc alone and B signs one doc alone. Both interchanges their
signed documents. Then as against A the doc signed by him is the primary
evidence. Similarly doc signed by B is primary evidence against him.

s 63] Secondary evidence.—

Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter contained;

Deemed
76 IEA
.
- Public documents as
"
PRIMARY "

✓
Clicking Photographs -
From 09
Doc
(2) copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with such
copies;

Xerox CANNOT

ENSURE The ACCURACY .

 The correctness of certified copies will be presumed under section 79; but
that of other copies will have to be proved.

This proof may be afforded by calling a witness who can swear that he has
compared the copy tendered in evidence with the original or with what
some other person read as the contents of the original and that such is
correct.

Certified copies of money lenders licences are admissible in evidence.

Certified copies of sale deeds were held to be admissible as secondary

evidence.

The court, however, said that they could not be relied upon unless the
vendor or vendee was examined to prove the consideration for the
transaction and other circumstances, such as nearness to land.

Copies made by mechanical process -

GUARANTEED NO Concoction .

Reading clause 2 and illustrations (b) and (c) together it will appear that a copy
of a copy, i.e. a copy, transcribed from, and compared with, a copy, is
inadmissible unless the copy with which it was compared was a copy made by
some mechanical process which in itself ensures the accuracy of such copy. See
Illustration (b).

XEROX COPIES -
MECHANICAL Process ?
J Yashoda v K Shobha Rani, AIR 2007 SC 1721 0

The documents in question were admittedly photocopies. There was no

possibility of comparing them with the original as the same were with
another person. Thus, the requirement of section 65(a) was not satisfied. The
Court did not accept them as
secondary evidence.
Govt of AP v Karri Chinna Venkata Reddy, AIR 1994

Photostatic copies of document should be

accepted in evidence only after examining original records. These documents
cannot ensure that there were no tampering.
Copy -
made
From mechanical

\ Process .

it it Proved - No
Tampering was done .

Evidence
Secondary
.

As
Can
a
Act

Copy 2 of copy I
Cannot

✓ be -
For 0g
Doc
Secondary
.

Evidence

Provided mechanical
-

Concocted / made by Process)

it copy ±
- was

copy of copy 1 .

And copy z
-
og

s 63.3] Copies made from original—

Copies made from the original or copies compared with the original
are admissible as secondary evidence. A copy of a copy, when
compared with the original, would be receivable as secondary
evidence of the original [Illustration (b)].

Documents which are merely copies of copies, the originals not having been
/

satisfactorily accounted for, are inadmissible in evidence and must be

rejected
A photograph is a copy prepared from the negative, the original
document
[Clause 5].— But a written statement of the contents of a copy of a document,
the original of which the person making the statement has not seen, cannot be
accepted as secondary evidence.

This clause does not necessarily mean that a witness who is called to
give evidence as to a lost document must have himself read the
document. He would be a competent witness if, having physically seen
the document, the contents
thereof had been read out or explained to him

Secondary evidence of a document which is lost or difficult to trace can

be adduced in two ways; (1) by oral evidence of persons who were
present when the document was executed; (2) by a certified copy of
the original document
Oral evidence of electronic evidence cannot be given.

C does not
\ [ mean Xerox .
 i
\ Transcribed
Original
Not
Allowed
•

(d) }
=3
evidence

copy
-

g-
- ,
-
of

Contents of Documents
.

↳g- oral Evidence

-*i
may
Be
ORAL Evidence
_
Not
Allowed
of Allowed
✗ machine
copy
Photograph
A draft of a document cannot be treated as secondary evidence; but the Kerala
High Court has held that a draft can be accepted in evidence only if there is
proof that the original has been prepared without any corrections and that it is
exactly a true copy of the draft.

The Allahabad High Court has similarly held that section 63 is not exhaustive of
all types of secondary evidence. It, therefore, allowed the draft notice
from which the final notice was prepared to be produced as secondary evidence.

The statement as to the contents of a document by a witness, who has not

himself read the document, is not secondary evidence of the contents of the
document.

Rule )
(BEST Evidence
Seyed
-

Primary Eiden ce = Rule

Secondary
Evidence
=

exceptional
circumstances

£
 23N
s¥T
which
what
Evidence
type are to
of

Evidence
be
given .

This section enumerates the seven exceptional cases in which secondary

evidence is admissible.

Under it secondary evidence may be given of the contents of a document in

civil as well as in criminal proceedings.

The party has to explain first, that why he cannot give the primary evidence.
Secondary evidence cannot be accepted unless a sufficient reason is given for
the non-production of the original.

Document means those documents which are admissible as per the law of
evidence. If the document is for instance, not properly registered or stamped or
cannot be made admissible then in such case there is no question of secondary
evidence on the document being given.

Hence, if a primary evidence is not allowed on such document then the

secondary evidence does not comes into question.

"Document" means a document admissible in evidence.

If a document is inadmissible in consequence of not being registered or not

being properly stamped, secondary evidence cannot be given of its existence.
Secondary evidence cannot be given to establish a fact, proof whereof by
primary evidence is forbidden. Under no circumstances can secondary
evidence be admitted as a substitute for inadmissible primary evidence.
secondary evidence cannot be made admissible mechanically. Sufficient reason
for non-production of the original document must be shown.

The seven circumstances

Secondary evidence may be given of the existence, condition or contents of a

¥
document in the following cases

be

Secondary can
When the original is shown or appears to be in the possession or
guidance !
given
power— of the person against whom the document is sought to be
proved, or of any person out of reach of, or not subject
A
to, the
process of the Court, or of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such person does
not produce it;

Clause (a)].—

When the original is shown or appears to be

control (cons Possession
ftp.Yfessiof
.

-
in the possession or power of the person against whom the document is sought
to be proved

and when, after notice mentioned in section 66,

such person does not produce it,

then, the secondary evidence relating to these documents can be permitted.

 The document need not be in the actual possession of the party; it is
enough if it is in his power.

Where the original power of attorney was not produced by the defendant in
whose possession the same was; not even after having a. Legal notice given by
the plaintiff.

and the xerox copy of the said power of attorney was produced by the plaintiff
in evidence and the signature and the contents of the said xerox copy of the
power of attorney were admitted as secondary evidence.

Legally bound to produce it."

Secondary evidence of a document is admissible only when the original
appears to be in the possession or power of any person who is legally bound
to produce it.

If the document is outside the league of the court, or is with the possession or
power of that person who is not legally bound to produce it. Then, in such
case the principles of necessity is to be invoked. Hence in such case, diluted
evidence is much better than no evidence.

If the document is a material evidence and no document is available then in

such case secondary evidence could be given.

After notice mentioned u/s 66, the person still not produce the document then
in such case also secondary evidence be given.

This expression "not subject to" seems intended to include the case of a
person not legally bound to produce the document, who refuses to
produce it.
 _7
Cia

•
original 7
Shown
]
•

- no -

Appear need
Can Be
to Procne Presumption
taken 4s 114cg ) -1
Actual

\ Possession is
OF
]o+- opposition -
He

Power not Producing guidance

Act
.

g "+
constructive
Tfn FAVORABLE
.

To Him .

Reach
_µ
o Person is • out OF
] -
To The

out
of legacy court .

o document
with Such
Person >
is
Who
is not
to Produce
Bound
legally it .

• if notice
to
4s Go - is given he
Produce
Any
Person -
To
document
] .
-

Refuses to

Send it .

1
Applied ?
Principle of necessity is

To
For
Only
Secondary
The interest

of Justice / give
o
aide nee .
?⃝
 ④ -

notice -

BOY
/
4566

To Produce

]
• Refuses
it
•
Denies - not
giving
•
Negligent

mn-
Produces
secondary -

One
of

Evidence yne unfavourable

omitted
clause -
was

by ⑦

Tends to

⑧
Allowed
not

to [ give Primary
guidance
now

give original
now
Evidence
>

Gause2 ÷
]
.

When -
• Existence
•
OF
Condition
original
• Content
 HAVE BEEN
To BE
Proved
ADMITTED
1
(By Party , Representative
In WRITING etc.

1
Then Secondary
For
Evidence Can Be given
That document .

Original lost or destroyed

Secondary evidence is admissible when the party offering evidence of the
contents of a document cannot for any reason not arising from his own default
or neglect produce the original document in reasonable time.

Document :
-

Destroyed
1-
Natural .

wilful
 : -
lost
Document
I
it
B. op -
That Really

[ testy
has Been

Sec 104
Due
↳ Cill B)
iniganee
-

has Taken

To Search
it
Proof
.

That it has

Been
Searched .

Where an original book of accounts is in a very tottering condition and is also

worm-eaten, secondary evidence of such accounts cannot be given. Let the
person to be allowed to bring that primary evidence as it is.

for any other reason not arising from his

own default or neglect, produce it in
reasonable time;
 Original not easily movable
This clause covers things not easily moved, as in the case of things fixed
in the ground or a building; for example, notices painted on walls, tablets
in buildings, tombstones, monuments, or marks on boundary stones or
trees.

Secondary evidence is admissible on account of the great inconvenience

and impracticability of producing the original.

The principle of law is that where you cannot get the best possible
evidence, you must take the next.

Public document

This clause is intended to protect the originals of public records from the
danger to which they would be exposed by constant production in evidence.
Secondary evidence is admissible in the case of public documents
mentioned in section 74.

Certified copies permitted by law

Certified copies are admissible as secondary evidence under this clause.

Sections 76, 78 and 86 may be read along with it. Where an original
document cannot be given in evidence owing to a statutory ban, its
certified copy cannot be admitted in
evidence, e.g. certified copy of the income tax return
Where both the original and the certified copy of a public document were
proved to
have been lost, the court allowed secondary evidence in the form of an
ordinary copy
Can any type of secondary evidence be given or are only
certain types of evidence been allowed?
in cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible. This means that
oral evidence can also be given for them.
In case (b), the written admission is admissible.
Marwari Kumar v. Bhagwan puri Ganesh puri 2000 SC
Where certified copies have been lost or destroyed and no
original document is available. Then in such cases
secondary evidence in the form of an ordinary copy is
allowed.
When secondary evidence be put up and when should its
objection be taken?
Moment the secondary evidence is tendered as evidence,
immediately the other party should take its objection.
Once such document is admitted without getting objected
then it is deemed that the party itself has waive off its right
to question the veracity of such secondary evidence.
- Dayamati bai v. KN Shaffi 2004 SC

Admissibility of electronic evidence

The concept of "electronic evidence" has been introduced
through the Information Technology Act, 2000 ("IT Act")
and the related amendments in the Evidence Act, 1872
("Evidence Act") and the Indian Penal Code, 1860
("IPC"). The IT Act and its amendment are based on the
United Nations Commission on International Trade Law
("UNCITRAL") model Law on Electronic Commerce.
According to Section 2(1)(t) of the IT Act, the term
"electronic record" means data, record or data generated,
image or sound stored, received or sent in an electronic
form or micro-film or computer-generated micro fiche.
Section 4 of the IT Act expressly recognises the validity
and use of electronic records in place of ordinary paper-
based records.
One of the greatest and most revolutionary inventions of
mankind has been the proliferation of computers and
digitalization.
As with other spheres of human life, the cyber space has
not been free from dangers and commission of crimes.
This has resulted from diversity in the content and
information available along with the ease of accessibility
and wide reach.
However, with the proliferation of the cyber space, there
has been a tremendous increase in its misuse.
The authenticity of e-documents has always been
debatable, considering how prone they are to be tampered
with.
Investigation agencies are also increasingly facing issues
with regard to the admissibility of such electronic
evidence.
Since electronic evidence, as compared to conventional or
traditional evidence, requires specialized and expert
training in the field of cyberspace, therefore the method
used to investigate and analyze the data maintained on or
retrieved from electronic media for the purposes of
presentation in a court of law is of prime importance.
IT acts brought to us various amendments in IEA, IPC,
Banker s Book etc.

Developments made in Indian Evidence Act after IT ACT

Provisions amended:
1. Sec 3 [definition of evidence electronic evidence
included]
2. Sec 17 [admission defined admission could now be
done in electronic form also]
3. Sec 22 A [When oral admission as to contents of
electronic records are relevant relevancy of oral
evidence for contents]
4. Sec 39 [When any statement of which evidence is
given is contained in part of electronic record then to
understand its nature, court may keep now either that
part or whole record of such electronic evidence for
consideration]
5. Inclusion of sec 65A and 65B
6. Presumptions related to evidence were added in sec :
81A. Presumption as to Gazettes in electronic
form
 85A. Presumption as to electronic agreements.
85B. Presumption as to electronic records and
[electronic signatures]
85C. Presumption as to [Electronic Signature
Certificates]
88A. Presumption as to electronic messages
90A. Presumption as to electronic records five
years old
Secure digital signature: S 15 IT ACT 2000

The Evidence Act was amended by virtue of Section 92 of the

IT Act and the term "evidence" was amended to include
"electronic record", thereby allowing for admissibility of the
digital evidence.
the exclusion of electronic record under Section 59 of
Evidence Act clearly signifies the clear and explicit legislative
intention to not extend the applicability of Sections 59 and 61
to 65 of the Evidence Act to electronic record, in view of
overriding provision of Section 65B of the Evidence Act,
which deals exclusively with the admissibility of such
electronic record.

Changes brought in IPC:

The word electronic record in IPC was added in the
following sections:
1. Sec 172
 2. Sec 173
3. Sec 29
4. Sec 175
5. Sec 192
6. Sec 204
7. Sec 463
8. Sec 464
9. 466, 468, 470, 471, 474, 476, 477A

In banker book changes made were in sec 2(3).

Xerox copies certified by the designated Public Information Officer under the
RTI Act are not certified copies as envisaged by section 65 of the Evidence
Act. They are merely true copies of private documents in the records of a
particular department. Only true copies of public documents certified by the
said Officer can be taken as certified
copies.
65B. Admissibility of electronic records.

(1) Notwithstanding anything contained in this Act,

[nothing in the act have any affect on this section]
any information contained in an electronic record [material
recorded on substance] which is printed on a paper, stored,
recorded or copied in optical or magnetic media produced
by a computer (hereinafter referred to as the computer
output) shall be deemed to be also a document,
if the conditions mentioned in this section are satisfied in
relation to the information and computer in question and
shall be admissible in any proceedings, without further
proof or production of the original, as evidence or any
contents of the original or of any fact stated therein of
which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect

of a computer output shall be the following, namely:

(a) the computer output containing the information was

produced by the computer during the period over which
the computer was used regularly to store or process
information for the purposes of any activities regularly
carried on over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind from
which the information so contained is derived was
regularly fed into the computer in the ordinary course of
the said activities;

(c) throughout the material part of the said period, the

computer was operating properly or, if not, then in respect
of any period in which it was not operating properly or was
out of operation during that part of the period, was not
such as to affect the electronic record or the accuracy of its
contents; and

(d) the information contained in the electronic record

reproduces or is derived from such information fed into the
computer in the ordinary course of the said activities.

(2) Where over any period, the function of storing or

processing information for the purposes of any
activities regularly carried on over that period as
mentioned in clause (a) of sub-section (2) was
regularly performed by computers,
whether
 (a) by a combination of computers operating over that
period; or
(b) by different computers operating in succession over
that period;
(c) or by different combinations of computers
operating in succession over that period; or
(d) in any other manner involving the successive
operation over that period, in whatever order, of
one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that period
shall be treated for the purposes of this section as
constituting a single computer; and references in this
section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a

statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say,
(a) identifying the electronic record containing the
statement and describing the manner in which it was
produced;

(b) giving such particulars of any device involved in the

production of that electronic record as may be appropriate
for the purpose of showing that the electronic record was
produced by a computer;
 (c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate, and purporting to be
signed by a person occupying a responsible official
position in relation to the operation of the relevant device
or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this subsection it shall
be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to a computer
if it is supplied thereto in any appropriate form and
whether it is so supplied directly or (with or without
human intervention) by means of any appropriate
equipment;

(b) whether in the course of activities carried on by any

official, information is supplied with a view to its being
stored or processed for the purposes of those activities by a
computer operated otherwise than in the course of those
activities,[general computer] that information, if duly
supplied to that computer, shall be taken to be supplied to
it in the course of those activities;
(c) a computer output shall be taken to have been produced
by a computer whether it was produced by it directly or
(with or without human intervention) by means of any
appropriate equipment. [processor]

Explanation. For the purposes of this section any

reference to information being derived from other
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process.]

Section 65 B
Any computer output will be taken as primary evidence
notwithstanding the fact that it is coming out of computer.
Section 65 (2) B
it states that:
1. Computer must be in regular use
2. Data/ information should have been fed into the
computer in its ordinary course of business.
3. Computer must be properly operating
4. The information contained in electronic records
should be derived from the information that is being
 feed into that computer in the ordinary course of
business.
5. There shall be no chances of concoction, tampering or
evidence being doctored.
Section 65 (3) A&B
Combination of computers or different computers
operating in successive operation will be deemed as one
single computer.
65 (4) B
It requires a certificate to be produced that inter alia
identifies the electronic record containing the statement
and prescribes the manner in which it is produced and
gives particulars of the device involved in the
production of electronic record to show that electronic
record was produced by computer either by person
occupying a responsible official position in relation to
the operation of the relevant device or the management
of the relevant activities whichever is appropriate.

State NCT of Delhi V. Navjot Sandhu @ Afzal Guru

2005 SC
The SC held that the requirement of certificate under S
65 B is not always mandatory and irrespective of the
compliance of the requirement of sec 65 B. there is no
bar to adducing secondary evidence under other
provision of the evidence act.
This judgment was overruled in Anwar V. Bashir 2014
SC
The SC held that S 63 and S 65 have no application to
secondary evidence by way of electronic record as this is
wholly governed by S 65 A and 65 B. the court held that
these two sections forms a complete code now when it
comes to admissibility of information contained in
electronic records and an electronic record by way of
secondary evidence shall not be admitted unless the
requirements under sec 65 B are satisfied including a
written certificate u/s 65 B (4) which has to be taken in
it own spirit.

65(5)
Information which is being fed to a computer must be in
an appropriate form. Appropriate form does not only
means that it must be fed by humans. It can also be
mechanically filled.

Section 66:
Court will not allow secondary evidence to be given of
matters unless the party has given notice to other party
for the access of those document as per law [s 91 CrPC
and O11 R 15] and if there is no law concerning that
aspect then as per the directions of the court.
66. Rules as to notice to produce.
Secondary evidence of the contents of the documents
referred to in section 65, clause (a), shall not be given
unless the party proposing to give such secondary
evidence has previously given to the party in whose
possession or power the document is, [or to his attorney
or pleader,]
such notice to produce it as is prescribed by law; and if
no notice is prescribed by law, then such notice as the
Court considers reasonable under the circumstances of
the case:

Provided that such notice shall not be required in order

to render secondary evidence admissible in any of the
following cases, or in any other case in which the Court
thinks fit to dispense with it:
(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party
must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party
has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original
in Court;
(5) when the adverse party or his agent has admitted the
loss of the document;

(6) when the person in possession of the document is out

of reach of, or not subject to, the process of the Court.
PROVING OF A DOCUMENT:
Sec 65-73

To prove that a document is genuine there are

two things generally required:
1. Signature and handwriting of the person
2. Attestation of that document

A document becomes a statement if its signed

or its in the handwriting of the person.

attested by some witness who states that

document was executed in front of him.

Execution of a document includes:

1. Scribing
2. Signing
3. Sealing
4. Delivery
It is a complete formal completion of a deed.
Scribing can be
1. Handwritten
2. Mechanically written
Signing: it converts the document into a
statement. It also includes attesting.
Sealing: it makes the document more
authentic
Delivery: it is the last step which is necessary
to be followed. Without delivery the purpose of
making such documents stands in abeyance.

The signature and the handwriting must

always be proved. If they are not proved, the

doubt on the genuinely of the document.

Ways of proving the document:
1. Testimony given by the person himself
[ocular evidence]
2. Expert opinion who will compare the
writing in question with the established
handwriting of the person.
3. Comparison by the person who is
acquainted with the handwriting of such
person [47]
 4. Calling of attestators who saw the
execution of such document
5. Court may itself compare such document
u/s 73.

Section 67:
If a document is alleged to be signed or to
have been written wholly or in part by any
person, the signature or the handwriting of so
much of the document as is alleged to be in
that person's handwriting must be proved to
be in his handwriting.

This section merely requires proof of signature

and handwriting of the person alleged to have
signed or written the document produced.
Mere admission of execution of a document is
not sufficient. Proof that the signature of the
executant is in his handwriting is necessary.
Where merely the signature of a person to a
type-written document was identified by a
witness, it was held that what was formally
proved was the signature and not the body of
the document.
In cases of thumb impressions two things are
needed to be proved:
1. Thumb impression belongs to such
person
2. The document was read over to the
person and was converted to his
language so that he could understand
the contents of the document before
attesting.

Registration of a document:
KK Thankaappan v KS. Jayan, AIR 2003 Ker
HC
Mere registration of a document is not in itself
sufficient proof of its execution. Original sale
deed had to be proved. The identity of the
executant has to be established by oral
evidence before the deed can be taken to have
been proved.
Section 67 says that person whose
handwriting is must be examined, that means
going by the best evidence rule, the person is
the best person to now give the evidence that
this is his handwriting or signature.
In other words, if the person is alive and
available then he must be called to give
evidence. If he does not appear that means
the document is not favourable to him.
Presumption can be taken by the court against
him.

Section 67A: proof as to electronic evidence

This section was initially inserted vide
Information Technology (Amendment) Act,
2000.
Digital signature is totally secured whereas a
mere electronic signature is just a proprietary
fact with no standard for security.
For example, even a typed name or a digitized
image of a handwritten signature is also a
electronic signature.
Consequently, the integrity, sanctity and
security of electronic signatures are a big issue
since nothing prevents one individual from
typing another individual's name.

Therefore, a party to litigation, who asserts on

the basis of an electronic signature of a
subscriber, has been put under an obligation
to prove before the court that the electronic
signature actually belonged to that subscriber.

A Court is no longer entitled to take an

electronic signature on its face value without
the party harping upon such electronic
signature on a document having proved the
same by leading cogent evidence.

68] Proof of execution of document required

by law to be attested:

This section applies to cases where an

instrument required by law to be attested
bears the necessary attestation. What the
section prohibits is a proof of execution of a
document otherwise than by the evidence of
an attesting witness if available.

There are three kinds of document which are

need to be attested by the law
1. Will:
Will as per sec 57, 63 of Indian Succession
Act,1925 clearly stated that it is to be
attested.

2. Mortgage:
In mortgage also, the property above the
value of rs 100 needs to be attested. Mortgage
as per sec 59 TPA clarifies the same.

3. Gift Deed
As per sec 132 of TPA, it is also necessary to
attest the gift deed.

The object of attestation is that some person

should verify that the deed was signed
voluntarily.

Attesting witness:
There shall be at least one attesting
witness.
That attesting witness must be alive
Capable of giving evidence according to
court.
 Attestation must be done subject to the
process of court.

Proviso:
If the document has been registered then
there is no need to call for attesting witness.
But there are exceptions to this proviso.
In case of will, even if it is registered, it still
needs to get attested.
Second exception is that in case if the
executant himself denies that this document is
not made by me, then in such case no need to
call for attesting witness.

Attesting:
It means that a person has signed a document
to testify that he saw the document been
executed. The attesting witness signs the
document in the presence of the executor.
The executor i.e, the maker cannot himself be
the attestator.
Until one attesting witness at least has been
called for the purpose of proving its
execution".
The word "called" means tendered for the
purpose of giving evidence. It is not used in
the sense of summoned

What if attesting witnesses are not available:

See sec 69.
An attesting witness, if available, should be
called in evidence.

If the attesting witness is

dead,
or is living out of the jurisdiction of the court
or cannot be found after diligent search,
or if the document purports to have been
executed in the UK of Great Britain and
Ireland, two things must be proved:
1) the signature of at least one attesting
witness, and
(2) the signature of the executant
the section demands proof of execution in
addition to attestation and does not permit
execution to be inferred from proof of
attestation.

However, section 69 presumes that once the

handwriting of the attesting witness is proved,
he has witnessed the execution of the
document.

Various ways of proving:

Section 45, 47, 73 etc.

Section 70:
This section serves as a proviso to section 68.
The effect of this section is to make the
admission of the executant a sufficient proof of
the execution of a document as against the
executant himself, even though it may be a
document attestation of which is required by
law.
The admission here spoken of relates only to
the execution. It must be distinguished from
the admissions mentioned in sections 22 and
65B which relate to the contents of a
document.

The Calcutta and the Allahabad High Courts

have held that the word "admission" relates
only to the admission of a party in the course
of the trial of a suit, and not to the attestation
of a document by the admission of the party
executing it.
When an attesting witness becomes Hostile?
Section 71

Where an attesting witness has denied all

knowledge of the matter, the case stands as if
there was no attesting witness, and the
execution of the document may be proved by
other independent evidence.

The section has no application when one

attesting witness has failed to prove the
execution of the will and other attesting
witnesses are available who could prove the
execution if they were called.
[s 72] Proof of document not required by law
to be attested. An attested document not
required by law to be attested may be proved
as if it was unattested.
Where the law does not require attestation for
the validity of a document, it may be proved
by admission or otherwise, as though no
attesting witnesses existed.
Section 73:
[s 73] Comparison of signature, writing or seal with others
admitted or proved.
The provisions of this section will apply only when a matter
is pending before the court and not otherwise.
The Court may compare the disputed signature, writing, or
seal of a person with signatures, writings or seals which
have been admitted or proved to the satisfaction of the court
to have been made or written by that person.
A Court may rely upon its own comparison of the
signature, writing, or seal, unaided by expert evidence.
the rule of prudence is that comparison of signatures by
Courts as a mode of ascertaining the truth should be used
with great care and caution.

State of Bombay v Kathi Kalu, (1961)

This section does not infringe Article 20(3) of the
Constitution of India. Taking of handwriting only for mere
comparison cannot be called as a self-incrimination. In fact,
such can be put as a shield by the accused.
The dispute about the genuineness of handwriting or
signature should not be decided by the court merely on the
basis of its personal comparison.

How to prove a Handwriting?

Handwriting can be proved in the following ways:
(1) By proof of signature and handwriting of the
person alleged to have signed or written the
document (section 67).
(2) By the opinion of an expert who can compare
handwritings (section 45).
(3) By a witness who is acquainted with the
handwriting of a person by whom it is supposed
to have been written and signed (section 47).
(4) By comparison of signature, writing or seal
with others admitted or proved (section 73).

It has observed that the section "does not

sanction the comparison of any two documents,
but requires that the writing with which the
comparison is to be made ... shall be admitted or
proved to have been written by the person to
whom it is attributed, and next the writing to be
compared with the standard. must purport to
have been written by the same person, that is to
say, the writing itself must state or indicate that
it was written by that person.
Where such signature, writing or seal on a
particular document is not proved or admitted to
be genuine, it cannot be legitimately used for
comparing it with the signature, writing or seal
other documents.

This section limits the power of the court to

direct a person present in court to write any
words or figures only where the court itself is of
the view that it is necessary for its own purposes
to take such writing in order to compare the
words or figures so written with any words or
figures alleged to have been written by such
person.
The power does not extend to permitting one or
the other party before the court to ask the court
to take such writing for the purpose of its
evidence or its own case.
The writing obtained by the court under this
section does not come within the expression
"evidence .
Can court force the accused to give his
specimens?
Earlier the court could not force the accused to
give his specimens and at the time when he did
not give them, the court were used to draw a
presumption against him under section 114A.
Now the amendment has been made in CrPC
under section 311A which allows the magistrate
to forcibly take the specimens of the accused.

Ajithkumar v Rejinkumar, AIR 2010 ker HC

In this case signature on vakalatnama and
acknowledgements card. Decision on the basis
of such comparison was held to be not proper
because subsequent signatures are only of self-
serving value. The magistrate should have
compared the signature with those available on
earlier agreements and stamp paper.

State of Maharashtra v. Sukhdev Singh 1992 SC

The Hon ble SC held that prudence demands
that the court should be extremely slow in
comparing the writings by its own self specially
when the quality of such evidence is very hazy.
Though the Hon ble Sc had compared the
handwriting in two cases i.e., in Shashi Kumar v.
Subodh kumar 1964 SC & Fakruddin v. state of
MP 1967 SC
though the court itself compared the
handwritings but then the SC said if the court
compares writing on of its own then its nothing
illegal. It is allowed by sec 73, but the rule of
prudence is always to take help of expert. The
Court also cannot send such a document to an
expert who is a prosecution witness, but it can
call its own expert as a court-witness.

This section also applies to [with necessary

modifications] finger impressions.

Section 73A:
Proof of digital signature.

For the purpose of ascertaining whether a digital

signature is that of the person by whom it
purports to have been affixed, the court may
direct that person or the controller or the
certifying authority have to produce the digital
signature certificate.

The Court may also direct any other person to

apply the public key listed in the digital
signature certificate and verify the digital
signature purported to have been affixed by that
person.
For this purpose, the "controller" means the
controller appointed under section 17(1) of the
Information Technology Act, 2000

Public documents:
The documents which by law are told to be kept
for public. They are necessary for the
governance of the society, led the government to
discharge its duties imposed by the law.
They are evidence that something was written as
per the dictates of law. Public documents are
generally made by a public officer. They
need any formal proof. They are exception to the
rule of hearsay as the maker does not come to
give the proof of such document.
Public documents are always made for public
interest to serve them. Hence, it is immaterial to
call the maker or to produce the original public
document, a certified copy is enough.
Public document shall be made by a public
officer [2(2) CPC].
To be a public document, proving of document
is not needed. It itself carries its sanctity. But to
get this sanctity, the document must be final. In
other words, those incomplete, tentative
documents are not public documents.
The documents which are not definitive such as
noting recorded in a file are not public
documents.
Hence, all public documents must be final acts
of a public officer.

Narattam Das v Md. Masadharali, (1991) 1 Gau

Public records are those records which a
government unit is required by law to keep or
which it is necessary to keep in discharge of
duties imposed by law. A public record is one
required by law to be kept, or necessary to be
kept in the discharge of a duty imposed by law,
or directed by law to serve as a memorial and
evidence of something written, said or done.
Therefore, a private document would be a
"public record" within the meaning of section
74(2) if the private document is filed and the
public official is required to keep it for a
memorial or permanent evidence of something
written, said or done."
PUBLIC DOCUMENTS:
Public documents form an exception to the
hearsay rule and their admissibility rests on the
ground that the facts contained therein are of
public interest and the statements are made by
authorised and competent agents of the public in
the course of their official duty.

[s 74.1] "Documents forming the acts or records

of the acts
The acts there mentioned are all final completed
acts as distinguished from acts of a preparatory
or tentative character.
These documents are documents of:
(i) the sovereign authority,
(ii) official bodies and tribunals, and
(iii) public officers [2(17) cpc], legislative,
judicial and executive, [of any part of
India or of the Commonwealth (hence
foreign public records are also included)],
or of a foreign country
"Public records kept in any state of private
documents"
This clause refers to public records of original will
and of registered documents.
According to the Bombay High Court an income-
tax return is not a public document or a public
record of a private document.
The Madras High Court has held that an income-
tax return or a statement filed in support of it is
a public document and certified copies will be
admissible under section 65(c).
Memorandum of Association of a company is a
public document within the meaning of this
section.
A plaint or a written statement filed in a
case is not a public document.

s 75] Private documents.

Documents which are not public documents are
private documents, e.g., contracts, leases,
mortgage-deeds, etc

[s 77] Proof of documents by production of

certified copies.
Such certified copies may be produced in proof of
the contents [no need to show original
documents] of the public documents or parts of
the public documents of which they purport to be
copies.
Certified copies of a public documents are GIVEN
AS evidence of such public documents and they
take away the need of giving original documents.
SECTION 77.

[s 78] Proof of other official documents.

The following public documents may be proved

as follows:

Acts, orders or notifications of

the Central Government in any of its
departments,
or of the Crown Representative
or of any State Government
or any department of any State Government,

by the records of the departments, certified by

the heads of those departments respectively,

or by any document purporting to be printed by

order of any such Government [G.O.I Press]
or, as the case may be, of the Crown
Representative
(2) the proceedings of the Legislatures,
by the journals of those bodies respectively, or
by published Acts or abstracts, or by copies
purporting to be printed [by order of the
Government concerned]

(3) proclamations, orders or regulations issued

by:
Her Majesty or by the Privy Council,
or by any department of Her Majesty's
Government:
by copies or extracts contained in the London
Gazette,
or purporting to be printed by the Queen's
Printer

(4) the Acts of the

Executive
or the proceedings of the Legislature of a
foreign country

by journals published by their authority,

or commonly received in that country as
such,
 or by a copy certified under the seal [IF
JOURNALS ARE NOT AVAILABLE] of the
country or sovereign,
or by a recognition thereof in some Central
Act.

(5) the proceedings of a municipal body in a

State,
by a copy of such proceedings, certified by
the legal keeper thereof,

or by a printed book purporting to be

published by the authority of such body

(6) public documents of any other class in a

foreign country, THEY MAY NOT BE RELIABLE
HENCE HAS MANY REQUIREMENTS.

by the original
or by a copy certified by the legal keeper thereof,
with a certificate under the seal of:
a notary public,
or of [an Indian Counsel] [BEST]
or diplomatic agent,
that the copy is duly certified by the officer
having the legal custody of the original,
and upon proof of the character of the document
according to the law of the foreign country.
Section 90&91

These are the best evidence rule

indicating sections.

When the terms of a contract,

or of a grant [kind of gift but with
certain conditions],
or of any other disposition of
property, [eg sale deed]

that has been reduced to the form

of a document,

all must be in a written form. All

oral contracts are excluded in
this section.
and in all cases in which any
matter is required by law to be
reduced to the form of a document,
example of any other matter:
1. FIR = reduced to be in writing
2. 164 statements

no evidence shall be given in proof

of the terms of such contract,
grant or
other disposition of property,
or of such matter,

except the document itself,

or secondary evidence of its
contents in cases in which
secondary evidence is admissible
under the provisions hereinbefore
contained.

Best Evidence rule:

This rule is based on the principle that
the best evidence, of which the case in
its nature is susceptible, should always
be presented.
It is adopted for the prevention of fraud,
for, when better evidence is withheld, it
is only fair to presume that the party
has some sinister motive for not
producing it, and that, if offered, his
design would be frustrated.
The rule thus becomes essential to the
pure administration of justice.
There are two exceptions to these
provisions:

(1) When a public officer is required by

law to be appointed in writing, and any
officer has acted as such, the writing
need not be proved;
A judge appointed by an order made in
writing then there is no need for that
judge to prove his authority by proving
the veracity of that writing.

(2) Wills admitted [if a probate order

been given then there is no need to ask
for the original will] to probate in India
may be proved by the probate.

How to apply for probate of a will?

The following is the process for obtaining the probate of a will-
The executor of the will is required to file a petition and the
original will to the court for grant of probate. In the petition, the
executor (who will be the petitioner in the case) has to mention
that
notice can be issued to them.

The executor will have to pay the applicable court fees

depending upon the value of the assets.

The petition must be filed before a competent court. The

pecuniary jurisdiction (Jurisdiction of the court depends on the
pe
probate for high-value immovable assets through an advocate.

The next step is that the court asks the petitioner to establish

been validly executed and confirm that this is the last will of the
deceased.

Next, the court calls for objections by issuing notice to the next
of kin of the deceased to raise objections, if any, and also orders
the publication of a citation of the probate petition on board to
notify the general public.

If there are no objections, then the court grants the probate.

If there are objections, then the probate petition becomes the

original suit, and the parties will have to lead evidence and
argue the matter. The court will pass judgment in the probate
suit based on the evidence and arguments.
The general rule laid down in this
section is also subject to the exceptions
laid down in the following sections 95
99.

The section has no application when the

writing is not evidence of the matter
reduced to writing.

Transactions in one or more than one

documents.
[Explanation 1].
Illustration (a) to the section
exemplifies this Explanation.
(a) If a contract is contained in
several letters, all the letters in
which it is contained must be
proved.

If the document was made in parts then all parts are necessary to prove.
 Explanation 2. Where there are more originals than
one, one original only need be proved.
(b) If a bill of exchange is drawn in a set
of three, one only need be proved.
If the document is made [more than 1 at a
time] for eg carbon copy.. then only 1 be
sufficient for proving.

Explanation 3.
The statement, in any document whatever,
of a fact other than the facts referred to in
this section,

shall not preclude the admission of oral

evidence as to the same fact.

Illustrations (d) and (e) exemplify this

Explanation
A contract, in writing, with B, for the
delivery of indigo upon certain terms [upto
this no oral evidence can be given].
The contract mentions the fact that B had
paid A the price of other indigo contracted
for verbally on another occasion. [this was
not in the terms of contract, so oral
evidence can be given]

Oral evidence is offered that no payment

was made for the other indigo. The evidence
is admissible.

(e) A give B a receipt for money [this not a

term] paid by B. Oral evidence is offered of
the payment. The evidence is admissible.
Section 92

This section is a continuation of section 91.

once the matter has been proved in section 91
then the question arise here is can later on, we
can add, subtract or contradict such terms
orally.
Under this section:

(1) when the terms of

(a) a contract,
(b) a grant, or
(c) any other disposition of property, have been
reduced to the form of a document,
or

(2) when any matter required by law to be

reduced to the form of a document, have been
proved by the production of the document or by
giving secondary evidence of its contents,
no evidence of any oral agreement or statement
shall be admitted as between the parties to any
such document or their representatives in
interest, for the purpose of
(i) contradicting,
(ii) varying,
(iii) adding to, or
(iv) subtracting from, its terms

(a) A policy of insurance is affected on goods

"in ships from Calcutta to London".
The goods are shipped in a particular ship
which is lost.

The fact that that particular ship was orally

excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay B Rs.

1,000 on the first March, 1873.
The fact that, at the same time an oral
agreement was made that the money should
not be paid till the thirty-first March cannot be
proved.

As between the parties: third party is allowed.

understand the concept by the help of an

example.
A and B are two parties. A is the customer and
B is a Carpenter. A made a contract with B for
500 chairs in consideration of 2 lakh rupees.
The terms of contract were as such:
1. A will give 50000 in advance and 1.5 lakh
at the completion of contract.
2. B will deliver the same by 1st of MAY.
According to sec 92:
Now the terms of this contract cannot be
changed by an oral agreement. Nor there can
be any addition, modification or subtraction.
This is as between the parties.
Another example:
If A takes the loan from C to pay B and in such
contract, he promises him to pay the due
amount by 2nd may.

Later due to some oral modification in the

contract of A v. B there occurs a prejudice to
the interest of C. it is not disallowed to C to
prove the modification of contract btw A and B
orally.

99 is a kind of explanation to section 92.

[s 99] Who may give evidence of agreement
varying terms of document.

Persons who are not parties to a document, or

their representatives in interest, may give
evidence of any facts tending to show a
contemporaneous agreement varying the terms
of the document.
ILLUSTRATION A and B make a contract in
writing that B shall sell A certain cotton, to be
paid for on delivery. At the same time, they
make an oral agreement that three months'
credit shall be given to A.

This could not be shown as between A and B,

but it might be shown by C, if it affected his
interest.

Section 92 forbids the admission of evidence of

an oral agreement for the purpose of
contradicting, varying, adding to, or
subtracting from, the terms of a written
document as between the parties to such
document or their representatives in interest.

The rule of exclusion laid down in the section

does not apply to the case of a third party who
is not a party to the document.

On the contrary, this section distinctly provides

that persons who are not parties to a document
may give evidence tending to show a
contemporaneous agreement varying the terms
of the document.

The principle of section 92 does not apply to

third persons.
If it were otherwise, third persons might be
prejudiced by things recited in the writings,
contrary to the truth, through the ignorance,
carelessness, or fraud of the parties, and,
therefore, ought not to be precluded from
proving the truth, however contradictory it may
be to the written statements of others.

Exceptions to section 92:

There are six exceptions to this
(1) Any fact which would
(i) invalidate any document, or
(ii) entitle any person to any decree or order
relating thereto may be proved,
such as fraud, intimidation, illegality, failure of
consideration, mistake in fact or law.
This proviso applies to cases where evidence is
admitted to show that a contract is void, or
voidable, or subject to re-formation, upon the
ground of fraud, duress, illegality, etc., in its
inception.
See Illustrations (d) and (e).

A enters into a written contract with B to work

certain mines, the property of B, upon certain
terms.
A was induced to do so by a misrepresentation
of B's as to their value.
This fact may be proved.

(e) A institute a suit against B for the specific

performance of a contract, and also prays that
the contract may be reformed as to one of its
provisions, as that provision was inserted in it
by mistake.
A may prove that such a mistake was made as
would by law entitle him to have the contract
reformed.

Matters on which document is silent.

See Illustrations (f), (g) and (h). Parties can

prove that, either contemporaneously or as a
preliminary measure, they entered into a
distinct oral agreement on some collateral
matter.
The only case in which oral evidence will be
admitted under this proviso is where the
instrument is silent on the matter sought to be
proved and the agreement to be proved is
consistent with the terms of the document.
It is allowable to urge an oral agreement which
will have the effect of leaving matters otherwise
than if they had depended on the written
agreement alone, but such oral agreement
must be clearly proved and the onus lies on
him who sets it up.
(f) A orders goods of B by a letter in which
nothing is said as to the time of payment, and
accepts the goods on delivery.
B sues A for the price.
A may show that the goods were supplied on
credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him
sound.
A gives B a paper in these words:
"Bought of A a horse for Rs. 500". B may prove
the verbal warranty.

7th dec

Roop kumar v. Mohan thedani 2003 SC

Bai Hira devi v. official assignee of Bombay
1958 SC
Sec 91 and sec 92are supplementary to each
other and are based on principle of best
evidence rule.

Illustration H
This illustration is divided into two parts.
If the document is so formal and any term
which was verbally made. It will be very
difficult to prove that such agreement was
made verbal as the document is so formal that
it covers the minute details.

(h) A hires lodgings of B, and B gives a card on

which is written "Rooms, Rs. 200 a month". A
may prove a verbal agreement that these terms
were to include partial board. [informal
agreement]

A hires lodgings of B for a year, and a regularly

stamped agreement, drawn up by an attorney,
is made between them.
It is silent on the subject of board. A may not
prove that board was included in the terms
verbally. [formal agreement].

[Proviso 3].
Where, at the time of the execution of a written
contract, it is orally agreed between the parties
that the written agreement shall not be of any
force or validity until some condition precedent
has been performed, parole evidence of such
oral agreement is admissible to show that the
condition has not been performed, and
consequently that the written agreement has
not become binding.

This rule will not apply to a case where the

written agreement had not only become
binding, but had actually been performed as to
a large portion of its obligations

See Illustrations (i) and (j).

A applies to B for a debt due to A by sending a
receipt for the money. B keeps the receipt and
does not send the money.
In a suit for the amount A may prove this.

Proviso 4:
Sec 92 applies to formal documents.
1. Which required by law to be in writing
2. Or which are registered by the party.
Under this proviso a prior written contract may
be varied by a subsequent verbal one, in cases
in which the law does not require the contract
to be in writing.

Where the original contract is of such a nature

as that the law requires it to be in writing or
where its execution has been followed by the
formality of registration,
the only way of proving the rescission or
modification of the original contract must be by
proof of an agreement of the like formality and
not by an oral agreement.
other than those formal documents or those
registered documents. Any distinct oral
agreement if made for any such informal
contract.
Then such distinct oral agreement can be
allowed as evidence to cancel out or modify
such contract.

Eg. Contract for 50Rs pen to be given at 40 by

the party but then after via an oral agreement
they cancel such contract. Now this oral
agreement be allowed as the contract was
neither formal in nature nor it was registered
as per the law.

Dictation:
Section 92 is carries on the best evidence rule
and envisages that once the terms of contract,
grant or disposition of property have been
already proved under section 91. Then they
cannot be orally changed or cancelled.
In other words, the only way of challenging or
cancelling is by writing.
However, proviso 4 says that in case distinct
oral agreement pertaining to same subject
subsequent oral agreement to cancel or modify
the previous agreement be allowed.

Then this oral agreement should be allowed to

be used as evidence in all cases where
document is informal in nature.
In other words, where the document is required
by law to be in writing or document has been
registered as per registration act then no
subsequent oral agreement cancel or modify
the terms can be allowed.
however, if not formal then the terms of the
contract can be changed or even rescinded or
cancelled by subsequent oral agreement on it
by the same parties.

Proviso 5:
By usage or custom

A contract with B to give 10 tola gold

The measurement unit tola is a usage and been
used in case of gold as 12 gms from time
immemorial.
though today tola may not be referred in the
legal dictionary.
A give 10 tola as 10 grams and therefore does
not give the remaining 20 grams of that 10 tola.
Therefore, B sues A. B may proof that usage
that 1 tola = 12 gms as per the usage.

the rule for admitting evidence of usage must

be taken always with this qualification, that the
evidence proposed is not repugnant to, or
inconsistent with, the written contract. It ought
never to be allowed to vary or contradict the
written instrument, either expressly or by
implication...
where the incident sought to be annexed to a
contract is unreasonable or illegal, it cannot be
annexed to the contract by evidence of usage.

sold by a deed which contains a map of the

property sold.

The fact that land not included in the map had

always been regarded as part of the estate and
was meant to pass by the deed, cannot be
proved.

Proviso 6 opens the door of section 93-98

It states that when in the document there is an
ambiguity therefore to clear that ambiguity;
oral evidence can be given.

Ahmadi J observed: The object of admissibility

of such evidence in such circumstances under
the 6th proviso is to assist the court to get to
the real intention of the parties and thereby
overcome the difficulty caused by the
ambiguity.

In such a case the subsequent conduct of the

parties furnishes evidence to clear the blurred
area and to ascertain the true intention of the
author of the document.

Section 92 read with sections 94 and 95 clearly

suggests that proviso (6) of section 92 comes
into play only when there is a latent ambiguity
in a document, that is, when the language of
the document is not prima facie consistent with
the existing facts, or, in other words, when
there is conflict in the plain meaning of the
language used in the document and the facts
existing or when put together, they lead to an
ambiguity.

In a case, therefore, where the language used

in a document is plain and not in any way
ambiguous in reference to facts existing, there
is no scope for coming into play of the rule of
interpretation laid down in proviso (6) to
section 92.
Sections 93 97 partly develop and partly
restrict the principle laid down by this proviso.

Law of ambiguity:
Sections 93 98 deal with rules for
construction of documents with the
aid of extrinsic evidence.

Sections 93 99 deal with the

interpretation of documents by oral
evidence.
There are two sorts of ambiguities of
words the one is ambiguitas patens
and other latens.

Patens is that which appears to be

ambiguous [on the face of it] upon the
deed or instrument;

latens is that which seems certain

and without ambiguity, for anything
that appears upon the deed or
instrument;

but there is some collateral matter

out of the deed that breeds the
ambiguity.
A good test of the difference is to put
the instrument into the hands of an
ordinary intelligent educated person.
If, on perusal, he sees no ambiguity,
but there is nevertheless an
uncertainty as to its application, the
ambiguity is latent; if he detects the
ambiguity from merely reading the
instrument it is patent

Section 93:
This section deals with patent ambiguities. If
the language of a deed is, on its face,
ambiguous or defective, no evidence can be
given to make it certain.
(a) A agrees, in writing, to sell a horse to B for
"Rs. 1,000 or Rs. 1,500." Evidence cannot be
given to show which price was to be given.
 (c) A deed contains blanks. Evidence cannot
be given of facts which would show how
they were meant to be filled.

q- can evidence be given of ambiguities or

under what circumstances evidence to be
tendered when document is ambiguity?
q- how patent ambiguity different from latent
ambiguity, how can they be proved?
q- the question whether evidence can be given
on ambiguous document depend upon nature
of ambiguity. Elaborate?
Start all these answers from the proviso 6 of
section 92.
That geneses for giving evidence of ambiguous
document lies in proviso 6 of section 92. It
says:
Evidence can be given of any fact proved which
shows that in what manner, the language of
document relating to existing facts.
In other words, there is ambiguity then we can
always prove the document orally.

The main job of the court is to find out the

truth to shift the grain from the chaff. How can
we do that if such document is ambiguous.
The level of ambiguity is the determining factor
whether evidence to be allowed or not.
If ambiguity is of such a level that no head or
tail can be made of it, and to allow evidence
would lead to erroneous judgments then in
such cases no evidence can be allowed.

Such ambiguities will go to the very root of the

matter and therefore called as paten ambiguity.

Section 93 expressly deals with this in detail.

Section 94 lay down a rule of caution that in

case, there is no ambiguity in the facts stated
in document which corresponds squarely to
existing facts then we cannot create
unnecessary confusions by challenging the
established facts. In other words, if no
ambiguity arises then court cannot allow the
party to create a new one.

However, there are certain ambiguities which

can be deciphered by the court by using little
common sense. These ambiguities can be
sorted out as they are latent ambiguities.

Mangals woman Karandikar v. Prakash ranod

2021 SC
When the languages used in the document is
plain then no evidence can be allowed. But in
case there are ambiguities which can be set
right then evidence can be given to clear such
ambiguities.

ILLUSTRATION

A sells to B, by deed, "my house in Calcutta".

A had no house in Calcutta, but it appears that
he has a house at Howrah, of which B had
been in possession since the execution of the
deed.
These facts may be proved to show that the
deed related to the house at Howrah.

Where the language of a document is plain in

itself but is unmeaning in reference to existing
facts, evidence may be given to show that it
was used in a peculiar sense.

It is based upon the maxim falsa demonstratio

non necet (a false description does not vitiate
the document).

Section 97 is a part of the rule in this section,

and both the sections must be read together.

The illustration to this section shows that if A

sells to B "my house in Calcutta," and if A has
no house in Calcutta but has a house in
Howrah, of which B has been in possession
since the execution of the deed, these facts may
be proved to show that the deed related to the
house in Howrah.

[s 96] Evidence as to application of language

which can apply to one only of several
persons.

When the facts are such that the language

used might have been meant to apply to any
one, 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.
ILLUSTRATIONS

(a) A agrees to sell to B, for Rs. 1,000, "my

white horse". A has two white horses. Evidence
may be given of facts which show which of
them was meant.

(b) A agrees to accompany B to Haidarabad.

Evidence may be given of facts showing
whether Haidarabad in the Dekkhan or
Haidarabad in Sind was meant.

This section modifies the rule laid down in

section 94 by providing that where the
language of a document correctly describes two
sets of circumstances but could not have been
intended to apply to both, evidence may be
given to show to which set it was intended to
apply. Here the language is certain.

The doubt as to which of similar persons or

things the language applies has been
introduced by extrinsic evidence.
Section 97:

This section is based upon the maxim falsa

demonstratio non necet. It is only an extension
of the provision of section 95.
Sections 95, 96 and 97 all deal with latent
ambiguity. "
Where in a written instrument the description
of the person or thing intended is applicable
with legal certainty to each of several subjects,
extrinsic evidence, including proof of
declarations of intention, is admissible to
establish which of such subjects was intended
by the author.

The illustration to this section shows that if A

agrees to sell to B "my land at X in the
occupation of Y", and A has land at X but not
in the occupation of Y, and has land in the
occupation of Y but it is not at X, evidence may
be given to show which was intended to be
sold.

Another common case is where land within

certain boundaries is sold and is wrongly
described as containing a certain area, the
error in area is regarded as a mere
misdescription and does not vitiate the deed.
The maxim falsa demonstratio non necet
applies.

Section 98:
Evidence as to the meaning of illegible
characters (e.g., shorthand-writer's notes) or of
foreign obsolete, technical, local and provincial
expressions and of words used in a peculiar
sense may be given.

In such cases the evidence cannot properly be

said to vary the written instrument; it only
explains the meaning of expressions used.
Mercantile usage has given special meanings to
many ordinary words.
Evidence of the meaning which these words
bear in mercantile transactions can be given
under this section.

Section 100
2 laws override Indian Evidence ACT
1. Sec 5 CPC
2. Sec 100 Indian succession act that relates
to construction of mills.

Burden of PROOF
Q- what is Burden of Proof and how it is
different from onus of proof?
Q- Burden of Proof is based on principle.
Elaborate with case law?
Q- Burden of proving is very important tool of
Evidence act. Elaborate with examples.

Person goes to the court for relief and that is

why he has the burden of proving his claim.
Roman principle:
He who moves the court, prove his point.

Burden of proof:
It is seen as from two different angles.
general principle that accused need not to
prove his innocence.

Evidentiary burden: that is onus of proof; it

keeps on shifting.

Earlier in 1935, there came the woolmington

case in which it was held that burden of proof
is always on the prosecution and it NEVER
shifts.
The prosecution has to prove
In criminal case: beyond reasonable doubt
In civil case: preponderance of probability.

This is burden of proof as a principle. Hence it

never shifts. But onus of proving always shifts
like a ball of tennis to each of the parties. For
instance, A charge B for murder. Here BOP as
a principle to prove guilt of B is always on A.
but if B pleads that he is insane then he has to
give evidentiary proof regarding the fact
therefore such burden which is called as onus
is now on B to prove that he is or was insane.

In Indian Evidence Act, onus of proof; this term

is not been used, As evidentiary burden, it
keeps on shifting till the quest of truth is
completed,

Section 101:
This burden will, at the beginning of a trial, lie
on one party, but during the course of the trial
it may shift from one side to the other.
The BOP lies on that person who desires from
the court to give judgment in his favour.
Section 101 is applicable in both civil and
criminal trials.
In a criminal trial the burden of proving the
guilt of the accused beyond all reasonable
doubts always rests on the prosecution and on
its failure it cannot fall back upon the evidence
adduced by the accused in support of his
defence to rest its case solely thereon.

In criminal cases it is for the prosecution to

bring the guilt home to the accused.

When two views are possible, the view

favourable to the accused should be adopted.

It is not correct to say that when the

prosecution has adduced such evidence as the
circumstances and nature of the case require,
it is for the accused to establish his innocence
for the reason that there is no burden laid on
the prisoner to prove his innocence and it is
sufficient if he succeeds in raising a doubt as to
his guilt.
Prosecution cannot succeed just by showing
that the defence raised is suspicious.

(a) A desires a Court to give judgment that B

shall be punished for a crime which A
says B has committed. A must prove that
B has committed the crime.

Civil case:
(b) A desires a Court to give judgment that he
is entitled to certain land in the
possession of B, by reason of facts which
he asserts, and which B denies, to be
true.
A must prove the existence of those facts

Section 102:
Shifting of onus
The phrase "burden of proof" has two
meanings one, the burden of proof as a
matter of law and pleading, and the other the
burden of establishing a case;

the former is fixed as a question on the basis of

the pleadings and is unchanged during the
entire trial, whereas the latter is not constant
but shifts as soon as the party adduces
sufficient evidence to raise a presumption in
his favour.

This section lays down a test for ascertaining

on which side the burden of proof lies.

The section makes it clear that the initial onus

is on the plaintiff.

If he discharges that onus and makes out a

case which entitles him to relief, the onus
shifts on to the defendant to prove those
circumstances, if any, which would disentitle
the plaintiff to the same.

There is an essential distinction between

burden of proof and onus of proof:

burden of proof lies upon the person who has

to prove a fact and it never shifts but the onus
of proof shifts.
Such a shifting onus is a continuous process in
the valuation of evidence.

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

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

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

Therefore, the burden of proof is on B.

Landmark cases:
1. Raghavamma v Chenchamma, AIR 1964
2. Abdulla Mohammed v State, (1980)
3. State of Maharashtra v Vasudeo
Ramchandra Kaidalwar, (1981) 3 SC
There is an essential distinction between
"burden of proof" and "onus of proof"; burden of
proof lies on the person who has to prove a fact
and it never shifts, but the onus of proof shifts.

Burden of proof has two distinct meanings,

namely, (i) the burden of proof as a matter of
law and pleadings, and
(ii) burden of proof as a matter of adducing
evidence.

Section 101 deals with the former one while

section 102 deals with the latter.

Standard of proof is different from the burden

of Proof:
Burden of proof means on whom and who will
prove. While SOP means to what extent it is to
be proved.
In criminal law:
1. On prosecution [BOP as a principle]
Beyond reasonable doubt
2. On accused [onus of proof]
Preponderance of probability

The reason is the accused has already a

presumption of innocence around him. Hence,
the SOP is lesser than of the prosecution.
MP Gupta v State of Rajasthan, AIR 1974 SC
MS Narayana Menon v State of Kerala, (2006) 6
SC

the accused has not to disprove the

prosecution case in its entirety. The onus on
the accused is not as heavy as on the
prosecution; it may be compared with that on
the defendant in a civil case.

13th dec:

Section 103:
This section amplifies the general rule laid
down in section 101. It differs from section
101. We can say that this section is an
amplification of both 100 and 101.

By section 101 the party has to prove the

whole of the facts which he alleges to entitle
him to judgment when the burden of proof is
on him.
 This section provides for the proof of some one
particular fact.

The illustration sufficiently points out the

meaning.

All the facts, however numerous and

complicated, which go to make up the
accused's guilt, must be proved by the
prosecution.

If the accused wishes to prove a particular fact,

his alibi for instance, he must prove it.
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]

Somabhai v. state of Gujrat 1975 SC

The plea of alibi has to be to the complete
satisfaction of the court. Hence, it is not mere
preponderance of probability.
Doodnath pandey v. state of UP 1981 SC
State of Maharashtra v. Norsing Rao 1984 SC

The plea of alibi must be proved with absolute

certainty as to complete exclude the possibility
of the presence of accused at the place of
occurrence.

Standard of Proof is much higher than in

case of plea of alibi.

Section 104:
If one evidence based on other evidence then
both has to be proved by the person who
affirms it.
If one evidence is causa causam then in that
case both matters have to be proved.
Whenever it is necessary to prove any fact, in
order to render evidence of any other fact
admissible, the burden of proving that fact is
on the person who wants to give such evidence.

ILLUSTRATIONS
(a) A wish to prove a dying declaration by B. A
must prove B's death.
(b) A wish to prove, by secondary evidence, the
contents of a lost document. A must prove that
the document has been lost.

Section 105:
BY VIRTUE OF SECTION 6 OF IPC, any general
exception if available, has to be read with all
provisions of IPC. In fact, if party fails to take
advantage then court would remind that
person to take benefit of general exception.
In criminal cases the burden of proof, using the
phrase in its strictest sense, is always upon the
prosecution and never shifts whatever the
evidence may be during the progress of the
case.

When sufficient proof of the commission of a

crime has been adduced and the accused has
been connected therewith as the guilty party,
then the burden of proof, in another and quite
different sense, namely in the sense of
introducing evidence in rebuttal of the case for
the prosecution is laid upon him.

Under this section, the onus of establishing an

exception shifts to the accused when he pleads
an exception.
If on a consideration of the evidence as a whole
a reasonable doubt is created in the mind of
the court as to the guilt of the accused, he
would be entitled to acquittal.
In a case where s. 84 was invoked by the
accused, it was held that the burden of
bringing his/her case under section 84 IPC lies
squarely upon the person claiming the benefit
of that provision.

It was further held that the standard of proof

which the accused has to satisfy is not the
same as is expected of the prosecution, which
has to prove the charges beyond reasonable
doubt.

Section 106:

Presumption when having special knowledge:

Burden of proof is always on prosecution.
If any fact is specially known to any person,
then the proving comes to him.
When any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him.

Where the knowledge of the subject-matter of

an allegation is peculiarly within the province
of one party to a suit the burden of proof must
lie there also.
Similarly, in a case of a servant charged with
misappropriation of goods of his master, if the
failure to account was due to an accidental
loss, the facts being within the servant's
knowledge, it is for him to explain the loss.

Arushi Talwar Case:

There was no evidence to the police that
someone came from outside. As per parents
claim that nobody visited and door was also
bolted. Yet the girl was found dead with throat
slit.
The BOP was on parents as they having special
knowledge about the cause of the death.
Bhanwari devi v. State of Rajasthan
The girl blackmailing the minister and then she
vanished. The factum of kidnapping and
abduction was proved and what happened to
her.. all was within the special knowledge of
the minister.

Last seen together.

The theory of "last seen alive" comes into play
when the time gap between when the accused
and the deceased were last seen together, and
the deceased was found dead was so small,
that the possibility of any other person
committing the murder becomes impossible.
Thus, on the principle that the person who is
last found in the company of another is dead or
missing, the person with whom he was last
found alive has to explain the circumstances in
which he parted company.

Shortly before the death of the victim. The man

and a lady entered the house of the victim and
bolted door from the inside. Finally the
neighbours had to invade and it was found that
the victim was dead and accused was found
hidden beneath the bed.

Both the accused was under the obligation to

explain their presence and the circumstances
in which the deceased died.

Whenever abduction takes place and later on

dead body is found then as per section 106 we
apply the last seen theory.

Sucha singh v. state of Punjab 2001 SC

When there was raid in the godown on
essential commodities and in the bag of the rice
it was found that half of it was filled with the
stones. Here also the BOP is on the possessor
of the goods.

the Supreme Court in Sayed Akbar v State of

Karnataka 1979 SC. the Kerala High Court
held that where a live wire was hanging on the
road from an electric pole, it must be presumed
that it must have been due to negligent
management of the Municipal corporation
creating liability to the dependents of the
pedestrian who was electrocuted.

A person was a fake doctor and he then opened

a clinic and did not possess the qualifications
as written on the board.
BOP is on him to prove that he had gained
such qualifications.

Burden of proving negligence and res ipsa

loquitur. It has been considered by the Privy
Council that the burden of proving negligence
always rests with the plaintiff, even when the
maxim res ipsa loquitur applies.
Once the initial burden of showing the setting
of the mishap is discharged, this maxim will
relieve the plaintiff of showing further evidence
of negligence.

Sumati Debnath v Sunil Kumar Sen, AIR 1994

Where the vehicle suddenly went off the road,
overturned and killed the victim, doctrine of res
ipsa loquitur was attracted and onus was
shifted from the claimant to the driver to prove
his non-negligence or vigilance.

Ng Chun Pui v Lec Chuen Tat

It has been considered by the Privy Council
that the burden of proving negligence always
rests with the plaintiff, even when the maxim
res ipsa loquitur applies.

Section 107:
Burden of proving death of person known to
have been alive within thirty years. When the
question is whether a man is alive or dead, and
it is shown that he was alive within thirty
years, the burden of proving that he is dead is
on the person who affirms it.

Section 108:
Sections 107 and 108 must be read together
because the latter is only a proviso to the rule
contained in the former, and both constitute
one rule when so read together.

There is no presumption in law that a person

was alive for seven years from the time when he
was last heard of.

14thDec

court shall presume that person is dead and

now BOP is on that person who says he is
alive.

Generally speaking, if the person is seen to be

alive in last 30 years, court shall presume that
he is alive and so if now anybody claims him to
be dead then he has to prove it.

But if in past 7 years he is not been heard by

anybody who in normal course of events would
have known about him. Then court can still
presume that he must be dead. If then anybody
claims that he is alive then BOP is on that
person.

Ramrati Kuer v Dwarka Prasad, AIR 1967 SC

If a person has not been heard of for seven
years, there is a presumption of law that he is
dead and the burden of proving that he is alive
is shifted to the other side.

The earliest date to which the death can be

presumed can only be the date when the suit to
claim that right is filed. It cannot have a
further retrospective effect
Section 109:
Presumption of continuity in a relationship:
It is based on the presumption of continuity.
When the existence of a personal relationship,
or a state of things, is once established by
proof, the law presumes that the relationship
or state of things continues to exist as before,
till the contrary is shown, or till a different
presumption is raised, from the nature of the
subject in question.
A partnership, tenancy, or agency, once shown
to exist, is presumed to continue, till it is
proved to have been dissolved.
Relationships included in this section are:
1. Partners
2. Landlord and tenant
3. Principle and agent
Once these relationships are formed then
unless there are specific provisions for
dissolution of relationship. We go with the
presumption that they are in continuance.

Principal governing this section is that once the

relationship is been show to exist. Then it is
presumed that it be continued.

.Churharmal v CIT, AIR 1988 SC

even if tenant does not pay his rent then also
the relationship would be deemed to continue.
Mere non-payment of rent is not enough.
Evidence to prove that relationship not existed
is required.

Section 110
BOP as to ownership
This section gives effect to the principle that
possession is prima facie evidence of complete
title; anyone who intends to oust the possessor
must establish a right to do so.
Possession is prima facie proof of ownership; it
is so, because it is the sum of acts of
ownership. This applies both to prior and to
present possession. Possession has a two-fold
value; it is evidence of ownership, and is itself
the foundation of a right to possession. To
recover possession a plaintiff must show a
better right in himself to possession than is in
the defendant. He may, within the period
prescribed by the Limitation Act, 1963, succeed
in a case where he is dispossessed, either by
establishing title or by showing a prior legal
possession entitling him to be restored to the
same.
Section 111
The principle of the rule embodied in this
section which was called "the great rule of the
Court" is "he who bargains in a matter of
advantage with a person placing confidence in
him is bound to show, that a reasonable use
has been made of that confidence; a rule
applying to trustees, attorneys, or anyone else.

A person who claims to have acted under a

bona fide belief must himself appear as a
witness to establish his claim. The version of
other persons in that respect may not be
sufficient.

the relationship between the parties must be

such that one is bound to protect the interests
of the other. This had been held to apply to a
trustee, an executor, an administrator, a
guardian, an agent, a minister of religion, a
medical attendant, an auctioneer, and
attorney.
Section 111 is an exception to section 103.
Mere signature of a blind person on the sale-
deed cannot have any force. Where an illiterate
and blind woman is alleged to have executed a
sale-deed, the execution of which is denied by
her, a heavy burden is laid on the purchaser to
prove that she not only agreed to sell but she
knew what was being written and the
document was in accordance with the terms of
the agreement.

CHAPTER IX OF WITNESSES

118-134

q- who are competent witness, whether an

accused be a competent witness?
q- whether parties to suit are competent
witness?
q- whether an interested witness is competent?
q- whether diseased, old age, stock, trap, child,
accomplice is competent in nature?
The test of competency is laid down in section
118 tells us that acid test of competency of
witness.
At the very outset, it is clear on two things:
1. Testimony
2. Reliability
Everybody is a competent witness but very few
of them are reliable witness. Competency is a
realm of law; reliability is a realm of judge.

Competency is a creation of law; reliability is

an appreciation of evidence.

Everybody is competent witness as per sec

118, but million dollar question- is that person
reliable? Can judge use his evidence in his
judgment?

Reliability is purely appreciation of evidence,

can be upto various degrees. Reliability can be:
1. Wholly reliable
2. Wholly unreliable
 3. Partially reliable and partially unreliable.
[it requires corroboration]

Reliability is appreciation of judge. Everybody

may be competent but everybody evidence may
not be reliable.
Reliability will find its place in judgment; non-
reliability may find the place in record but not
in judgment. Competency will give place in
record but mere competency will not be enough
for evidence. Judgment is based on not
competent records but on reliable records.

Is an interested stock, child witness is

competent?

Yes, by section 118- even accused are also

competent. Section 315 CrPC says competent.
Cross examination by prosecution and if he
sticks to it then can win the case itself.
Under this section all persons are competent to
testify, unless they are, in the opinion of the
court (a) unable to understand the questions
put to them, or (b) to give rational answers to
those questions, owing to
(i) tender years,
(ii) extreme old age,
(iii) disease of mind or body or
(iv) any other such cause.
(v) Even a lunatic, if he is capable of
understanding the questions put to him
and giving rational answers, is a
competent witness.

Ghewar Ram v State of Rajasthan, 2001

It has been held that an omission to
administer oath under the Oaths Act, 1969
does not affect the admissibility of evidence
unless the judge considers the witness to
be otherwise incompetent.
Once the child-witness is found competent, his
inability to take or understand oath or
omission in administering it, neither
invalidates the proceedings nor renders his
evidence inadmissible.

The testimony of a child witness must find

adequate corroboration before it is relied on.
However, it is more a rule of practical wisdom
than of law. It cannot be held that the evidence
of a child witness would always stand
irretrievably stigmatised.
It is not the law that if a witness is a child, his
evidence shall be rejected, even if it is found
reliable.
The law is that evidence of a child witness must
be evaluated more carefully and with greater
circumspection because a child is susceptible
to be swayed by what others tell him and thus
a child witness is an easy prey to tutoring.
Who is a child?
No precise age can be fixed for a child. We may
have smart 6 years old person and a 10-year-
old dumb person.
So, it is on the basis of intellectual capacity.
Whether he passes the twin test or not.
Is the child an incompetent witness?

State of Karnataka v. shantapa galapuji 2009

SC
In a murder trial, the child witness who was
below 12 years in age, clearly deposed in terms
of the prosecution case. His evidence was
found reliable and corroborated with the
evidence of other witness.
All children are dangerous witness. Every child
lives on their own words of dreams and

imaginary and he can cook up cock and bull

stories.
Zafar v State of UP, 2000 Cr LJ
Golla yellugu Govinda v. State if Andhra
Pradesh 2008 SC

It is a sound rule of prudence not to act on

uncorroborated evidence of child. A child is a
dangerous witness- his evidence may be taken
with caution.

The right way is that first the judge must

personally examine the child, personally in his
chamber and once the judge has his confidence
and assessed him thoroughly then only, he
should proceed to take evidence.

Court should not straight away take the

evidence of child.

Affidavits By Minor:
No affidavit of minor hold any importance.
Child under general clauses act, cannot swear
to an affidavit . s Amutha v. CM Bhupati MAD
HC 2007
An affidavit of child cannot be accepted.

15th dec
State of MP v Ramesh, AIR 2011 SC
The deposition of a child witness may require
corroboration but in case his deposition
inspires the confidence of the court and there
is not any embellishment or improvement there
in the court may rely upon his evidence.

Only in case there is evidence on record to

show that a child has been tutored, the court
can reject his statement partly or fully.

Sec 119: dumb witnesses

Not only persons cornered who are actually but
also those ascetics who taken vows of silence
they are also covered in sec 119.

Lakhan Singh v King-Emperor, (1941) 20 Pat

Where the witness had taken a religious vow of
silence, and the magistrate took his evidence in
writing in open Court when he could not get it
in any other way without forcing the witness to
break his religious vow, it was held that the
witness should be deemed unable to speak
within the meaning of this section and the
course adopted by the magistrate was correct.

Dumb or mute witness when appear before

court then court can take his evidence.
This answer is now clarified by 2013
amendment.
They can be taken in writing or in gestures.
They will be deemed as oral evidence.

Sign language: court is not master of sign

witness therefore they call for the interpreter or
a special educator for the same.
State of Rajasthan v. darshan singh 2012 SC
In case the interpreter is provided, he should
be a person of the same surrounding but
should not have any interest in the case and he
should be administered oath.

A dumb person need not be prevented from

being a credible and reliable witness merely
due to his/her physical disability.

Such a person though unable to speak may

convey himself through writing, if literate or
through signs and gestures, if he is unable to
read and write.

A case in point is the silent movies which were

understood widely because they were able to
communicate ideas to people through novel
signs and gestures.

Emphasised body language and facial

expression enabled the audience to
comprehend the intended message. Therefore,
a deaf and dumb person is a competent
witness.
If in the opinion of the court, oath can be
administered to him/her, it should be so done.

Such a witness, if able to read and write, it is

desirable to record his statement giving him
questions in writing and seeking answers in
writing.

In case the witness is not able to read and

write, his statement can be recorded in sign
language with the aid of interpreter, if found
necessary.

Section 120:
Husband or wife as the parties
1. Civil
Plaintiff, defendant and their spouses get
appreciated in the same way as any other
witness testimony.
Merely because spouse is the party there is no
reason to disbelieve his evidence. In civil
proceedings parties to the suit are competent
witnesses.
Husbands and wives are competent witnesses
for or against each other in civil as well as
criminal proceedings.
Parties in civil proceedings are competent
witnesses and therefore their testimony is to be
scrutinised in the same manner as that of any
other witness.
There is no inflexible rule that if a party gives
his testimony he must be disbelieved because
he is a party to the suit
2. Criminal
The husband or wife of the accused is a
competent witness.
In ancient times, husband and wife were
consider as one in the eyes of the law. Even in
English law, they are considered as same.
But in Indian law, husband or wife are taken
as different legal entities.
In both the cases, the spouses can give
evidence against each other.
Section 122:
Communication during marriage

Court must strive to save marriage and should

not be instrumental in breaking a marriage
which can be saved.
Marriage is a unique relationship in which a lot
of secrets are shared btw spouses.
The basic presumption of this relationship is
that secrets of one spouse is safe with another
spouse. The whole relationship framed on trust
that whatever communicating to spouse will
remain with him or her.

If court compel the spouse to reveal the

communication, it would definitely lead to
many frictions in marriage even to the extent of
breakup.

Hence, to serve the institution of marriage,

section 122 was crafted.
Subject- communication of marriage protected
by law, no spouse to be compelled to divulge
any communication made to him/her by the
other spouse.

The object to save institution of marriage is

that all public policies aim at saving marriage
and that is why court is also under a delimit.
Its duty is to save a marriage. The legislature
recognizes and accepts this point and hence
this section 122.
On one hand, section 120 says that husband
and wife are competent witness for one another
but it is limited to certain extent which says
that any communication made btw them
remains btw them only.

No court can compel a spouse to divulge any

communication made btw them.

PRIVILIDGE COMMUNICATION
121-132
Sections 121 132 declare exceptions to the
general rules that a witness is bound to tell the
whole truth, and to produce any document in
his possession or power relevant to the matter
in issue.
They deal with the privilege of certain classes of
witnesses.

SECTION 121
The privilege of the judge or the magistrate,
extends only "to his own conduct in court as
such Judge or Magistrate, or as to anything
which came to his knowledge in court as such
Judge or Magistrate.

A distinction should be drawn between

questions which a witness cannot be compelled
to answer (sections 121, 124 and 125) and
those which he cannot be permitted to answer
(sections 123 and 126).
The latter class of questions might properly be
forbidden but questions of the former class are
in no way barred;

a witness has merely the right of refusing to

answer such questions, without any hostile
inference being drawn from his refusal.

The most that a Court can do, in the case of a

witness who is ignorant of his privilege, is to
warn him that he need not answer.

But if the witness elects to waive his privilege of

refusing to answer, his answer is admissible in
evidence

SECTION 121
Under this section a judge or magistrate shall
not be compelled to answer questions as to

(a) his conduct in court as such judge or

magistrate, or
 (c) anything which came to his knowledge in
court as such judge or magistrate, except
upon the order of a Court to which he is
subordinate.

He may be examined as to other matters which

occurred in his presence while he was so
acting.

Section 122:
Under this section a married person shall not
be
(1) compelled to disclose any communication
made to him during marriage by any person to
whom he is married; and

(2) permitted to disclose any such

communication, except

(a) when the person who made it or his

representative in interest consents, or
(b) in suits between married persons, or

C. in proceedings in which one married person

is prosecuted for any crime committed against
the other.

"Compelled to disclose any communication".

Ram Chandra Shanker Shet v Emperor, AIR
1933 Bom
a wife was not allowed to tell what her husband
told her about a murder with which he was
charged.
The section protects the individuals, and not
the communications if it can be proved without
putting into the box for that purpose the
husband or the wife to whom the
communication was made.
Marital communications can be proved by
evidence of the over-hearers.
Letters written by husband to wife were held to
be provable otherwise than through wife.
A communication made to a woman before
marriage would not be protected. But the
privilege continues even after the marriage has
been dissolved by death or divorce.
The ban of the section is confined to
communications only. A wife can testify to the
deeds of her husband of which she was the
eyewitness.

Mc Verghese v TJ Ponnan, AIR 1970 SC

Husband has written a letter to his wife and
abused his father-in-law. Wife carelessly left
the letter open and the same went to the hands
of her father-in-law. As the consequence, he
filed for defamation.
Communication if came to anybody else is
admissible as it is not now a privilege
communication.

Relevant time:
The bar to the admissibility in evidence of
communications made during marriage
attaches at the time when the communication
is made, and its admissibility will be adjudged
in the light of the status at that date and not
the status at the date when evidence is sought
to be given in court.

Features
this section contains both compel and
permitted.
There shall be a marital communication
during marriage
Party not permitted unless obtained
consent of opposite spouse or if he dies
then his representative in interest may give
consent.
Where there is no "representative in
interest" who can consent, under this
section, to the disclosure of
communications made by a deceased
husband to his wife during marriage, the
wife should not be permitted, even if
willing, to disclose such communications.
The widow of a deceased husband is not his
"representative in interest," for the purpose
of giving such consent.
16th dec

Section 121
Judge or Magistrate as witness.
Protection to judges:
Ipc sec 77
Judges protection act
Crpc sec 197
IEA sec 121

Judge in his legal capacity is not allowed to

answer any questions of his conduct except if
ordered by the higher court.
Only the superior court can question him. This
is because of the pyramid structure being
followed by our judicial system.
Conduct here is the professional conduct and
includes giving orders, passing of the
judgment, etc.
If judge himself wants to explain then there is
no bar, but he cannot be compelled by anybody
except his superior court.

No Judge or Magistrate shall,

except upon the special order of some Court to

which he is subordinate,

be compelled to answer any questions as to his

own conduct in Court

as such Judge or Magistrate, or as to anything

which came to his knowledge in Court as such
Judge or Magistrate;

but he may be examined as to other matters

[eye witness] which occurred in his presence
whilst he was so acting.
A, on his trial before the Court of Session, says
that a deposition was improperly taken by B,
the Magistrate.
B cannot be compelled to answer questions as
to this, except upon the special order of a
superior Court.

(b) A is accused before the Court of Session of

having given false evidence before B, a
Magistrate. B cannot be asked what A said,
except upon the special order of the superior
Court.
(c) A is accused before the Court of Session of
attempting to murder a police officer whilst on
his trial before B, a Sessions Judge. B may be
examined as to what occurred.

Section 123:
This section involves two things:
(1) That the document is an unpublished
official record relating to any affairs of State
and
(2) that the officer at the head of the
department concerned may give or withhold the
permission for giving the evidence derived
therefrom.

On grounds of public policy, evidence derived

from unpublished official records of State
cannot be given, except with the permission of
the head of the department concerned.
The court is bound to accept without question
the decision of the public officer.

It is for the court to decide whether a document

falls within the category "unpublished official
records relating to any affairs of State." In
doing so the court can have regard to all the
circumstances, barring the inspection of the
document itself.
It is only such documents which relate to the
affairs of the State the disclosure of which
would be detrimental to the public interest that
come within the category of unpublished
official records relating to affairs of State
entitled to protection under this section.
Under this section and section 162, the court
cannot hold an enquiry into the possible injury
to public interest which may result from the
disclosure of the document in respect of which
privilege is claimed under this section.

Reasons for non-publication of the document.

The only ground sufficient to justify non-
production of an official document marked
confidential is that production would not be in
the public interest, for example where
disclosures would be injurious to national
defence or to good diplomatic relations or
where the practice of keeping a class of
documents secret is necessary for the proper
functioning of the public service.
the maxim salus populi est suprema lex, which
means that regard for public welfare is the
highest law, is the basis of the provisions
contained in this section.
SP Gupta v UOI 1982 SC
The case arose out of the matter of the transfer
of a High Court judge and the non-renewal of
the term of an additional judge. The
correspondence between the Law Minister and
the Chief Justice of India and that between the
Chief Justice of the High Court and the State
Government was required to be produced.

It was held that though the "advice" was

protected from judicial scrutiny by virtue of
Article 74 of the Constitution, the material on
the basis of which the advice was formulated
was not protected.

The court also added that the common law

protection known as the "Crown privilege" or
"public interest immunity" does not apply in
India and observed as follows:

"Meaning and scope of section 123 cannot

remain static.
 It must be interpreted keeping in view our new
democratic society wedded to the basic values
enshrined in the Constitution."

"The concept of an open government is the

direct emanation from the right to know which
seems to be implicit in the right of free speech
and expression guaranteed under Article
19(1)(a).

Therefore, disclosure of information in regard

to the functioning of Government must be the
rule and secrecy an exception justified only
where the strictest requirements of public
interest so demand.

Court has to balance these two public interests

and decide which aspect predominates in each
particular case before it.
Official communications. section 124
A public officer cannot be compelled to disclose
communications made to him in confidence if he
considers that public interests would suffer by this
disclosure. This section is confined to public officers;
section 123 embraces everyone. Section 123 deals
with unpublished records; this section deals with
communications made in official confidence.

The object of the section is to prevent the disclosure

of things not known outside that circle which is in
confidence.

All public officers are governed by the

secrets Act. If anyone discloses it will then commit
an offence. Hence if anything a public officer thinks
that this information shall not be disclose as it
otherwise would infringe public interest then he
cannot be compelled to disclose such information.

Section 125:
It is well established that the police may suppress
the identity of informants in the interests of
combating crime. It was, therefore, held that within
the scope of this principle the secrecy of observation
posts could be maintained.

According to this section, on grounds of public

policy, a magistrate or a police-officer cannot be
compelled to give the source of information received
by him as to the commission of an offence.
Similarly, a revenue-officer cannot be compelled to
say whence he got information as to any offence
against the public revenue.
Such officer may, if he likes, disclose the name of
the informant.
It is of importance to the public for the detection of
crimes that those persons who are the channel by
means of which the detection is made should not be
unnecessarily disclosed.
a detective cannot refuse, on grounds of public
policy, to answer a question as to where he was
secreted.

Section 126:
This section is based upon the principle that if
communications to a legal adviser were not
privileged, a man would be deterred from fully
disclosing his case, so as to obtain proper
professional aid in a matter in which he is likely to
be thrown into litigation.

Under this section no barrister, attorney, pleader or

vakil shall at any time [forever] be permitted to
These words indicate that the legal adviser is not to
disclose the communication even when the relation
is ended or even after the client's death. The rule is
"once privileged always privileged.

Under this section an advocate is not permitted 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.
Legal advice:
It is not every communication made by a person to
his legal adviser that is privileged from disclosure.
The privilege extends only to communications made
to him confidentially, and with a view to obtaining
professional advice.

Illegal Purpose [Proviso 1].

This proviso differs from the English law. Under it
any communication made in furtherance of an
"illegal purpose" is not privileged. Under the English
law the purpose must be "criminal" and not merely
"illegal."
The section does not protect from disclosure:
any fact observed in the course of employment
showing that any crime or fraud has been committed
since the commencement of the employment.

Karamjit Singh v Govindan Chettiyar, AIR 2010

This privilege has not been done away with by the
RTI Act. It has to be given effect to notwithstanding
the RTI Act. Communications between a client and
his lawyer remain protected.

Under section 127 the above provisions apply to

interpreters and the clerks or servants of barristers,
pleaders, attorneys and vakils.

Section 128
The privilege belongs to the client and therefore he
alone can waive it. The privilege is not lost by calling
the legal adviser as a witness, unless the party
having the privilege questions him relating to
confidential matters.
SECTION 129:
Sections 126, 127 and 128 prevent a legal adviser or
his clerk, servant, etc. from disclosing professional
communications.
This section applies where the client is interrogated,
whether he is a party to the suit or not.
EXCEPTION: WHEN HE HIMSELF APPEAR AS A
WITNESS. In such case, he can be compelled.
Confidential communications with legal advisers.
No one shall be compelled to disclose to the Court
[CIVIL/ CRIMINAL] any confidential communication
which has taken place between him and his legal
professional adviser, unless he offers himself as a
witness, in which case he may be compelled to
disclose any such communications as may appear to
the Court necessary to be known in order to explain
any evidence which he has given, but no others.

Once a client reveals in court part of the

communication between himself and his legal
adviser regarding a transaction in issue, the client
thereby waives his privilege with respect to all
communications connected with the same
transaction.
EXAMPLE: APPROVER.

Section 130:
This section is based on the principle that great
inconvenience and mischief would result to
witnesses if they are compelled to disclose their titles
by the production of their title-deeds.

The object of the privilege is that the title may not be

disclosed and examined.
The section protects a witness, who is not a party to
the suit in which he is called, from producing
(1) title-deeds to any property,
(2) any document in virtue of which he holds any
property as pledgee or mortgagee, or
(3) any document the production of which might
tend to criminate him, unless he has agreed in
writing to produce such document.
It would be entirely optional for the witness to
produce his title-deeds, and to raise any objection
whatever.

Sec 131:
Persons in possession of documents on behalf of
others are generally agents, attorneys, mortgagees,
trustees, etc. This section extends to these persons
the same protection which the preceding section
provides for a witness who is not a party to a suit.

Section 132:
Under this section a witness is not excused from
answering any question relevant to the matter in
issue on the ground that answer to such question
may criminate him or expose him to a penalty or
forfeiture.

Section 132 reflects a judicial power. The

background of this section is a good judgment is
based on good evidence and if such evidence are
withheld then its futile to expect a complete
satisfying judgment.
A controversial matter occurs in the sense that if a
witness has been called and if it answers then it may
incriminate him or make him liable to certain civil
prosecution. So, in that case, whether still he should
divulge such information?
Article 20 also provides the fundamental right
against the self-incrimination. So, can the court
force such witness in such case?
But then on the other hand, if the witness chooses
not to reply, it would mean a complete or partial
demolition of the case and therefore may lead to an
incomplete judgment.
Thus, complete case btw the devil and the deep
sea. Sec 132 brings about a very successful and
balancing act btw art 20 and interest of justice.
The entire justice system would suffer if a witness
was allowed to withhold information, which itself
would be an infringement of Art. 21 as right to fair
trial is entailed under right to life.
132:
A witness shall not be excused from answering any
question as to any matter relevant to the matter in
issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to
such question will criminate, or may tend directly or
indirectly to criminate, such witness, or that it will
expose, or tend directly or indirectly to expose, such
witn and, in the absence of any ess to a penalty or
forfeiture of any kind:

[complete power to the court]

Proviso. Provided that no such answer, which a
witness shall be compelled to give, shall subject him
to any arrest or prosecution, or be proved against
him in any criminal proceeding, except a prosecution
for giving false evidence by such answer. [protection
of the witness]
The proviso to section 132 is a facet of the rule
against self-incrimination and the same is statutory
immunity against self-incrimination, which deserves
the most liberal construction. Therefore, no
prosecution can be launched against the maker of a
statement falling within the sweep of section 132 on
the basis of the "answer" given by a person while
deposing as a "witness" before a Court.

Suppose the witness still not answer any question?

There is a punishment against him under 349 CrPC.

As the word compel suggest that if a person giving

the answers voluntarily then this section does not
apply.
MP Gangadharan v State SI of Police, 1989 Cr LJ

The Kerala High Court has similarly held that a

witness who is summoned by the court feels the
compulsion not only in appearing but also that he is
bound to answer questions put to him and is,
therefore, entitled to the protection of the proviso.
CHAPTER X OF THE EXAMINATION
OF WITNESSES:

In civil proceedings the order is to be regulated by the

provisions of the Civil Procedure Code.
in criminal proceedings, by those of the Criminal Procedure
Code.
Civil proceedings:

In civil suits, it is the plaintiff who generally

has the right to begin (Civil Procedure Code, O
XVIII, rule 1).

The other party has then to state his case (O

XXVIII, rule 2).

If the defendant admits the facts alleged by

plaintiff and relies on a defence, it is for him to
establish that defence.

The plaintiff may then prove his case in

rebuttal, if any (O XVIII, rule 3).
Where a party is taken by surprise by a point
made against him at the hearing, the judge
may, if he thinks right, at any stage of the trial,
allow him to produce rebutting evidence.

Such evidence must be that which goes to cut

down the defence, without being in
confirmation of the original case.

Criminal proceedings:
In criminal proceedings, the complainant or the
prosecutor, as the case may be, has the right to
begin;

and, if necessary, the accused is asked to

adduce his evidence in defence.

The trial before a magistrate may be

(a) in summons cases (Criminal Procedure
Code, sections 251 258), or
(b) in warrant cases instituted by the Police,
section 238; otherwise, then on Police report
(sections 244 249) or

(c) summary (section 260).

Where a trial takes place before a Court of

Session, or High Court, the procedure as laid
down in section 226, et seq. of the Criminal
Procedure Code is followed.

In hearing appeals, the appellant begins and if

necessary, the other side is heard next (section
385).

Where the procedure is not clear then the court

may use his discretionary power.

Section 136
It is one of the sections of judicial discretion.
Judicial discretion is not an undiluted
discretion. Relevancy is a core matter of IEA
and in this judicial discretion cannot be done.
Section 136 of the Indian Evidence Act, 1872
states that:
Only the judge can decide whether evidence is
admissible or relevant or permissible in Court.
The judge may ask an individual to explain in
what way or manner the individual person
proposes to show proof or establish a fact. If it
is not relevant or remotely connected with the
case then it is better to nip the evil in the bud.
Hence this section is like a judicial sieve in
which a judge can sift the trash from actually
relevant matters.
Section 136 is the very important section to
ensure justice and also to ensure that
unnecessary time of the court is not wasted by
frivolous matters which may be put up by the
parties as a delaying tactic.
[Clause 1].

In order to focus the attention of the litigants to

the points in dispute between them, issues are
raised on the pleadings.

The parties are called upon to lead evidence on

them.
Such evidence must primarily relate to facts
in issue;
but it may also refer to relevant facts
(section 5).

In the latter case, the first paragraph of this

section enables the presiding judge to ask the
party to show the relevancy of the fact which is
sought to be proved.

Questions of admissibility of evidence are to be

determined by the judge.

In dealing with the relevancy of facts as above,

two sets of special circumstances may arise;

first, where the evidence of one fact is

admissible only upon proof of some other fact,

such last-mentioned fact must be proved first,

unless the court accepts the undertaking by

the party that it will be proved later on (clause
2);

and,

second, where the relevancy of one fact

depends upon the proof of another fact, the
judge may in his discretion permit either of
them to be proved first (clause 3).
ILLUSTRATIONS
(a) It is proposed to prove a statement about a relevant fact by a person alleged
to be dead, which statement is relevant under section 32. The fact that the
person is dead must be proved by the person proposing to prove the statement,
before evidence is given of the statement.
Part 2
(b) It is proposed to prove, by a copy, the contents of a document said to be
lost. The fact that the original is lost must be proved by the person proposing
to produce the copy, before the copy is produced.
Part 2
(c) A is accused of receiving stolen property knowing it to have been stolen. It is
proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property.
The Court may, in its discretion, either require the property to be identified
before the denial of the possession is proved, or permit the denial of the
possession, to be proved before the property is identified.
Part 3
(d) It is proposed to prove a fact (A) which is said to have been the cause or
effect of a fact in issue. [law of conspiracy, alibi]
There are several intermediate facts (B, C and D) which must be shown to exist
before the fact (A) can be regarded as the cause or effect of the fact in issue.
The Court may either permit A to be proved before B, C and D is proved, or
may require proof of B, C and D before permitting proof of A
Part 3

Questions:
Determination of relevancy of fact is both the matter of law and judicial
discretion, how far you agree with the statement?
The judicial discretion in determining relevancy of facts is not absolute. Give
reasons for your answer?
 section 137:

Examination in chief is the first examination

of witnesses after the oath.
It is the state in which party called a witness
for examining him in chief for the purpose of
eliciting from the witness all the material facts
within his knowledge which tend to prove the
party's case. It is also known as Direct
Examination.
objectives of examination in chief are as
follows:
A. Major objectives
1. All the evidence must be admissible.
2. The witness needs to present as
intended and capable of being believed.
3. Each and everything related to the fact
of evidence of the offence must be proven
 beyond a reasonable doubt through the
oral evidence and exhibits.
B. Minor objectives
You also achieve some additional objectives
which are less essential but still important:
1. Present a complete and logical, rational
theory of the offence.
2. Witnesses present in the best possible
light.
3. Mention all the facts in the evidence
and attempt to explain the relation between
propositions that cannot both be true at the
same time.
Examination in chief questions
There would be general questions asked in the
examination in chief which is related to the
facts of the evidence no leading questions are
asked in the examination in chief. Leading
questions are asked only in cross examination
and reexamination, first of all, prosecutor ask
the question in the examination in chief in the
criminal trial.
Cross examination:
It is mainly done to:
1. Shaken the credibility of the witness
2. Contradict all the facts of such
witness stated by him in evidence.
There are many ways of impeaching the
credibility of witness for e.g., bringing those
persons in custody who give evidence that the
said witness is not trustworthy.
For contradicting the facts, there need some
prior evidence like previous statements.
Therefore in such cases, sec 161 CrPC
statements are required.
Re-examination:
The viva voce examination consists generally of three
stages: first of all, the witness is examined by the party
who calls him; this is called examination-in-chief (section
137). He is next examined by the adverse party; this is
called cross-examination (section 137). Finally, he is
examined again by the party who called him; this is called
re-examination (section 137). This re-examination is
mainly done to remove any kind of ambiguity.

Ques on cross examination:

It is a basis of natural justice. A party must be given a fair
chance to cross examine the witness.
Modula India v Ramakshya Singh Deo, AIR 1989
A party must be given a fair chance to cross-examine the
witness otherwise it will be a negation of justice.
Summary procedure cannot take away the right of a party
to cross-examine the other side.
Juwar Singh v State of MP, AIR 1981
The object of cross-examination is:
 1. To impeach the accuracy, credibility and general
value of the evidence given in chief.
2. To sift the facts already stated by the witness,
3. To detect and expose discrepancies.
4. To elicit supressed facts which will support the case
of the cross-examining parties.

Cross-examination is a double-edged sword. Sometimes it

wounds the person who wields the sword.
Knowledge, experience and practice are necessary while
handling cross-examination.
If it given in in-experienced hand then more injury may
cause.

Khairati Lal and Sons v Hari Singh, AIR 2002 Delhi

The court did not consider it proper that a counsel should
have been allowed to furnish a copy of questions
proposed to be asked to the defendant in his cross-
examination, the intention being to conclude the cross-
examination expeditiously.

Bachapalli Abbulu v State of AP, 2002 Cr LJ

The court deprecated the practice of getting the affidavits
of witnesses in advance. The court said that it amounts to
an attempt to dissuade witnesses from speaking the truth
before the court. This type of interference in criminal
justice should not be encouraged and is to be viewed
seriously.
Mishri Lal v State of MP, (2005)
It has been held by the Supreme Court that once a witness
has been examined-in-chief and cross-examined fully,
such a witness should not have been recalled and re-
examined to deny the evidence he had already given
before the court even though he had given an inconsistent
statement before any other forum or Court subsequently.
Also, merely with the change of counsel, a witness cannot
be recalled for further cross-examination, when the
prosecutrix is thoroughly cross-examined and otherwise,
no case for recalling the witness is made out.

State of Rajasthan v Ani, AIR 1997 SC

Where a witness was confused while facing his cross-
examination, it was held to be not improper for the trial
Court to ask questions to him to find out the truth.
The power of the court of questioning parties is of
extraordinary nature. It is to be used for eliciting truth in
the interest of justice. The party cannot tell the court that
the question put to him is irrelevant.

Section 138:
Witnesses shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined, then (if the
party calling him so desires) re-examined.

Tej Prakash v State of Haryana, 1996 Crlj

where a witness was not examined in examination-in-
chief, tendering him for cross-examination is not
permissible.
There is no purpose in tendering a witness for cross-
examination only. Tendering of a witness for cross-
examination without examination-in-chief amounts to
giving up of the witness by the prosecution.
The re-examination shall be directed to the explanation of
matters referred to in cross-examination; and, if new
matter is, by permission of the Court, introduced in re-
examination, the adverse party may further cross-examine
upon that matter.

Every advocate representing the parties in such matter

must be given a chance to cross-examine others.

The range of cross-examination is unlimited, the only

circumscribing limits being that it must "relate to relevant
facts". Cross-examination is not limited to matters upon
which the witness has already been examined in chief but
extends to the whole case.
re-examination
The re-examination must be directed to the explanation of
matters referred to in cross-examination. If any new
matter is introduced in re-examination, the adverse party
may further cross-examine upon that matter.

Rammi v State of MP, AIR 1999 SC

Questions in re-examination cannot be confined to
ambiguities alone which became exposed in cross-
examination. Questions can be put to seek explanation of
any matter referred to in cross-examination.

Pannayar v State of Tamil Nadu 2009

However, totally new facts which have no concern with
the cross-examination cannot be introduced in re-
examination.

The concept of re-examination was introduced by section

138. It is done by the party of its own witness. As a
general rule, re-examination shall be regarding
explanation of ambiguities occurred in the matter. In other
words, no new matter is to be introduced in re-
examination without the permission of the court. In case,
if new matter been introduced then this gave the
opposition party a chance to do cross-examination.
Examination in chief should not be supplemented by the
way of re-examination. New matters which are material in
deciding the case should only be allowed if they are
important in determining the main facts in issue.

Examination by Court.
1. Sec 165 IEA allows the court to examine any
witness. But still as a general rule, court should leave
the witnesses to get examine by the pleaders.
However, It is not the province of the court to
examine the witnesses, unless the pleaders on either
side have omitted to put some material question or
questions; and the court should, as a general rule,
leave the witnesses to the pleaders to be dealt with as
laid down in this section.
The judge right to ask questions, is a very limited right
and it should be limited only to cases where lots of gaps
are left by the pleaders. The judge's right to question is
circumscribed by the adversary system. Where the judge
rebuked a witness and threatened him with prosecution
for perjury, the whole trial was held to be vitiated. The
job of the judge while asking questions is merely to
clarify its mind and not to play a pro-active role like a
prosecutor.
Ram Chander v State of Haryana, AIR 1981 SC

[s 139] Cross-examination of person called to produce a

document. A person summoned to produce a document
does not become a witness by the mere fact that he
produces it and cannot be cross-examined unless and until
he is called as a witness.

Parmeshwari Devi v State, AIR 1977 SC

The wife of a partner was called upon to produce the deed
of dissolution of the firm. She was not permitted to be
examined as a witness.

[s 140] Witnesses to character. Witnesses to character

may be cross-examined and re-examined.
This section must be read with section 53. In most cases,
witnesses to character not only may but must be cross-
examined. The use of character evidence is to assist the
court in estimating the value of the evidence brought
against the accused.
Holt CJ, observed in a case that "A man may be reputed
an able man this year, and yet be a beggar the next; it is a
misfortune that happens to many men, and his former
reputation will signify nothing to him upon this occasion."

Leading questions:
A "leading question" is one which suggests to the witness
the answer which it is desired he should give.
Leading questions cannot ordinarily be asked in
examination-in-chief or re-examination.
The witness is presumed to be biased in favour of the
party examining him and might thus be prompted.
The reason for excluding leading questions is quite
obvious:
it would enable a party to prepare his story and evolve it
in his very words from the mouth of his witnesses in
court.
It would tend to diminish chances of detection of a
concocted story.
What are leading questions: 141
Any question suggesting the answer which the person putting it wishes or expects to receive is called a
leading question

When they may not be asked: 142

When they must not be asked.

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or
in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which
have, in its opinion, been already sufficiently proved

Leading questions can only be asked in examination-in-chief when they refer to matters which are (1)
introductory; (2) undisputed or (3) sufficiently proved
Section 143:
When they may be asked. Leading question may be
asked in cross-examination.

The reason why leading questions are allowed to be put to

an adverse witness in cross-examination is that the
purpose of a cross-examination being to test the accuracy,
credibility and general value of the evidence given, and to
sift the facts already stated by the witness, it sometimes
becomes necessary for a party to put leading questions in
order to elicit facts in support of his case, even though the
facts so elicited may be entirely unconnected with facts
testified to in an examination-in-chief.

Why leading questions allowed in cross and not in chief?

Leading questions can be freely asked in cross-examination: "First, and principally, on the supposition
that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent.
Secondly, that the party calling a witness has an advantage over his adversary, in knowing beforehand
what the witness will prove, or at least is expected to prove; and that, consequently, if he were allowed
to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the
witness as would be favourable to his side, or even put a false gloss upon the whole.

Section 104:
This section is meant to enable parties to carry out the
provisions of sections 91 and 92. It should be read along
with those sections.
It refers both to the examination-in chief and cross-
examination.
A party can compel the opposite party to produce a
document (or to make out a case for letting in its
secondary evidence)

(1) when a witness is about to give evidence as to any

(a) contract, (b) grant, or (c) other disposition of property,
which is contained in a document; or

(2) when he is about to make any statement as to the

contents of any document.
This rule does not forbid a witness to give oral evidence
of statements as to relevant facts, made by other persons,
about the contents of documents.

The question is, whether A assaulted B. C deposes that he

heard A say to D "B wrote a letter accusing me of theft,
and I will be revenged on him." This statement is relevant
as showing A's motive for the assault, and evidence may
be given of it, though no other evidence is given about the
letter. [section 99 as an exception to sec 92]
SECTION 145:
A witness can be:
Contradicted=155
Corroborated=157
Contradiction is done for two purpose:
1. Regarding matter in issue; deposition covered in 145
2. Regarding his character. This is covered in 155

Steps for how and when shall the counsel record the
Contradiction during the evidence.

When the Witness is called for his testimony, the

advocate for defense may ask the witness any question in
order to dig up the contradictions in the statement of the
witness recorded before the investigating officer and of
what he is deposing in the court.

If any such part of his statement u/s 161 of Cr.P.C is

found contradictory the said part of his statement shall be
brought to the notice of witness himself and he shall be
further questioned to the truthfulness of the same.

If the witness admits the said contradiction, then it is

proved; if he denies to the said contradiction then the
presiding judge shall mark the said part of the statement
for identification, commonly called as "Portion mark or
passage mark".

In order to prove the contradiction, the advocate shall put

questions to the investigating officer who recorded the
statement of the witness U/s 161, as to whether the
Portion marked is true extract and was it recorded by him.
If there is some additional information or any
contradictory statement by the witness which is different
from what has been stated in his statement u/s 161 of
Cr.P.C then a question to that effect as why is such an
information was not recorded by the investigating officer
may be put to him in order to prove the contradiction.
Likewise, the contradiction of the statement can be
proved.
Statements made under 154 and 164 are not covered
under this section.
Sec 145:
A witness may be cross-examined as to any statements as to
relevant facts made by him on a former occasion, in writing or
reduced into writing, without showing the writing to him or
proving the same. The main purpose of this is to test the
memory and veracity of such witness. Under section 161, CrPC
Whatever the witness speaks, the investigating officer reduced it
to writing and whenever such witness appears to the court, he is
questioned on that statement. A copy of such is to be given to
the accused before the questioning of witness so that accused
may have a proper time to get prepared. Then the depositions
made by him before the court are done under the oath.
The defence then compare both the statements made by that
witness i.e., statements made before the I.O and statements
made before the court. If there are any discrepancies then that
means his evidence cannot be taken without a pinch of salt.

Can addition of a fact before the court which was omitted before
the I.O be taken as contradictions?
Sec 162 CrPC, says very clearly that omissions can be taken as
contradictions. Insignificant omissions cannot be taken as
contradictions. The witness must be ask the reasons of why his
statement was omitted and if there is no satisfactory reasons then
only it is taken as contradictions.
Does the public prosecutor is allowed to show the 161 statement
to the witness?
No as its totally denied by sec 145 IEA. If he shows then the
very sanctity of the evidence of that witness will go to the docks.
Sometimes some witnesses speak in a verbatim, there also a
suspicion arises that how his memory is so fresh.

Role of case diary:

Section 172 of The Code of Criminal Procedure, 1973 deals
with case diaries. A case diary is a diary maintained by police
officers while investigating a case which contains details of how
the inquiry was carried out and other particulars such as the date
on which the investigation began, places visited as a part of the
investigation, etc. They are inadmissible as evidence; however,
they can be used to aid the Court while the investigation/trial.
These diaries are essentially made for the purpose of helping the
investigating officer refresh his/her memory while being
presented as a witness for a trial.
Such diaries may be demanded by any Criminal Court for a case
that is under inquiry or trial. These diaries shall be used to aid
such inquiry/ trial. They cannot be used as evidence.
Case diaries should only mention relevant and actual steps taken
towards proceeding with the investigation.
The diaries should be kept with care and should be maintained
properly. Even though it is not used as evidence, it is an
important official document that serves to aid the Court and
should not be kept haphazardly. Negligence in handling it is
frowned upon.
Police officer allowed to refresh his memory:
"Where the Police-officer who made, the special diary is
allowed to refresh his memory and does look at an entry in the
Diary for the purpose of refreshing his memory, the provisions
of section 161 of the Indian Evidence Act...apply, and the
accused or his agent is entitled to see such entry in the special
diary and to cross-examine such Police-officer thereupon.
There is no provision in section 172 of the Code of Criminal
Procedure, 1973 enabling any person other than the Police-
officer who made the special diary to refresh his memory by
looking at the special diary and the necessary implication is that
a special diary cannot be used to enable any witness other than
the Police-officer who made the special diary to refresh his
memory by looking at it.

Challan:
-
the end-result of such investigation by police.

Sec 145 [part 2]

If the writing of a witness is itself taken into consideration and
thus had become a issue then it is necessary to showcase such
writing to that witness.

Contradiction and corroboration:

 1. FIR [taken before the investigation, hence can be
corroborated]
2. 164 statement CrPC
3. 27 IEA
4. 32 IEA
Sec 162 CrPC gives 27& 32 as an exception.

Section 146:
The main job of the cross-examination is two-fold. The first
objective is to ensure that the witness is reliable. If he is not, his
evidence has no value. Similarly, if he is found to be untruthful,
unreliable, etc, then his evidence could not be taken and relied
upon. Under this section, witness can be asked questions which
were not pertaining to facts of the case just to check his veracity.

This section gives very wide powers to the cross-examiner in addition to those given by section 138; and
is more extensive in scope. As long as the cross-examiner confines his questions to the points of testing
the veracity of a witness or discovering his status in life, there seem to be no limits to his power of
putting questions. But when he undertakes the difficult yet delicate task of impeaching the character of
witness, the following sections (sections 147 150) give ample protection to a witness in speaking the
truth and impose wholesome restraints upon groundless assertions levelled against him. "If any such
question relates to a matter relevant to the suit or proceeding, the provisions of section 132 are by
section 147 declared applicable to it. If the question is as to a matter relevant only so far as affects the
credit of the witness by injuring his character, the court is by section 148 directed to decide whether or
not the witness is to be compelled to answer, and may...warn the witness that he is not obliged to
answer it When there is a question asked to which the answer may tend to criminate a witness, he may
object that it is not as to a matter relevant to a matter in issue, or that, if relevant, it is relevant only as
affecting his credit by injuring his character."
Ques:
Cross examination has a far wider ramification than examination
in chief, critically examine?
Cross examination is basically the basic tenet of natural justice
because the common jurisprudence is that no body should be
condemned without being heard or without being tested by the
opposite party. The statement made by a witness cannot be
always sacrosanct and that is the reason why cross examination
forms the backbone of a trial.
In the course of cross-examination, a witness may be asked
questions
(1) to test his veracity;
(2) to discover who he is and what is his position in life;
(3) to shake his credit by injuring his character, although his
answer might criminate him or expose him to penalty or
forfeiture (section 146).
Sections 146 152 deal with questions which can be put to a
witness with a view to shake his credit by damaging his
character.
These sections along with section 132 embrace the entire range
of questions which can possibly be put to a witness.
Section 146:
This section gives very wide powers to the cross-examiner in
addition to those given by section 138; and is more extensive in
scope.

As long as the cross-examiner confines his questions to the

points of testing the veracity of a witness or discovering his
status in life, there seem to be no limits to his power of putting
questions.

If the question is as to a matter relevant only so far as affects the

credit of the witness by injuring his character, the court is by
section 148 directed to decide whether or not the witness is to be
compelled to answer, and may...warn the witness that he is not
obliged to answer it

Testing the veracity:

A witness may be examined not only as to the relevant facts but
also as to all facts which reasonably tend to affect the credibility
of his testimony. However, while asking the questions, rules laid
down by IEA must be followed. Any question can not be asked
if it is forbidden by. Sec 148-152 deals with safeguarding such
witness against an improper cross examination.
To discover who is he," etc.
it is common practice to make inquiry into his relations with the
party on whose behalf he was called business, social and
family;
also, to enquire as to his feelings towards the party against
whom his testimony has been given.
This is permissible in order to place his testimony in a proper
light with reference to bias in favour of the one party or
prejudice against the other.

"Proviso" prior to the amendment of 2013.

Prior to the amendment of 2013, the proviso was inserted by the

it is read as under:
"Provided that in a prosecution for rape or attempt to commit
rape, it shall not be permissible to put questions in the cross-
examination of the prosecutrix as to her general immoral
character."
A prostitute cannot be asked about her immoral character.
Neither a girl could be asked if she was earlier virgin or not.

2013 amendment:
The amendment was made on the basis of recommendations
given by the Justice JS Verma Committee.
this newly amended section read with section 53-A and 114A,
totally bars the leading of evidence about the character of the
victim or her previous sexual experience with any person on the
issue of consent given by her or the quality of consent, by
making it not relevant as also inadmissible.
Hence no evidence and even no question can be asked from the
victim about her past character or her past sexual relationships.
Questions can only be asked about her relation with the accused.

2018 amendment:
In section 146 of the Evidence Act, in the proviso, for the words,
figures and letters "
section 376A, section 376B, section 376C, section 376D", the
words, figures and letters "section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA, section
376DB" have been substituted.
The section required amendment to bring sections 376AB,
376DA and 376DB of the Indian Penal Code within its purview.

When witness to be compelled to answer

If any such [sec 146] question relates to a matter relevant to the
suit or proceeding, the provisions of section 132 shall apply
thereto
This section is a continuation of section 146
This section only applies to question referred to in clause (3) of
the preceding section. If refers to "matters relevant to the suit or
proceeding."
The following section (i.e., section 148) refers to "matters not
relevant to the suit for proceeding. [this section comes when it is
only to test his character]
Section 148:
Impeaching the credibility.
Here it is the discretion of the court to decide whether this
question should be answered or not. If the court feels that this
will not be so important, he will tell the witness that there is no
need to reply the question.

Under this section there are two circumstances:

1. Proper question asked
2. Improper question asked

Examples:
Is it true that you yesterday night were drinking liquor with the
accused?
Proper question.
Is it true that you were called by police 30 years ago for the
alleged offence of theft?
This may be proper if it relates with the offence of theft. But if
material question is on murder and the time period here is too
remote, therefore this question is improper.
Such questions are proper
if they are of such a nature that the truth of the imputation made
touches the credibility of the witness.
They are improper
(1) if the imputation refers to matters
so remote in time, or
of such a character, that its truth does not affect the
credibility of the witness; or

(2) if there is a great disproportion between the importance of

the imputation and the importance of the evidence.
If the witness refuses to answer any question it is open to the
court to draw the inference that the answer if given would be
unfavourable [cf. section 114, Illustration (b)].

The object of this section is to prevent the unnecessary raking up

of the past history of a witness, when it throws no light
whatsoever on the questions at issue in a case. It protects a
witness from the evils of a reckless and unjustifiable cross-
examination under the guise of impeaching his credit.
R v. Barker 1829:
Here Barker was convicted 40 years ago and that too for a trivial
act. Now imputing this incident in the present time will be too
remote. Therefore, anything asked from such incident might be
improper.

Emperor v. Gulam Mustafa 1904 All HC

In this case, he had given a false evidence 50 years back and that
too in a trivial matter. They said that a person who can give false
evidence at that time might be giving it now also.
Here it was held that no this is too remote to judge, we
know under what circumstances, the statement was given by the
accused at that time and it is not necessary that he is giving false
statements now also.

State of Punjab v Gurmit Singh 1996 SC

Justice Anand:
"There has been lately a lot of criticism of the treatment of the
victim of sexual assault in the court during their cross-
examination some defence counsel adopt the strategy of
continual questioning of the prosecutrix as to details of the
incident.
The court should not sit as a silent spectator. While every
latitude should be given to the accused to test the veracity of the
prosecutrix and credibility of her version through cross-
examination, the court must also ensure that cross-examination
is not made a means of harassment or causing humiliation to the
victim.
A victim of rape has already undergone a traumatic experience
and if she is made to repeat again and again, in unfamiliar
surroundings what she had been subjected to, she may be too
ashamed and even nervous or confused to speak and her silence
or a confused stray sentence may be wrongly interpreted as
discrepancies and contradictions in her evidence.

Section 149:
No such question as is referred to in section 148 ought to be
asked, unless the person asking it has reasonable grounds for
thinking that the imputation which it conveys is well-founded.

There cannot be any wild goose chase while asking the

questions from the witness.

(a) A barrister is instructed by an attorney or vakil that an

important witness is a dakait. This is a reasonable ground for
asking the witness whether he is a dakait.
(b) A pleader is informed by a person in Court that an important
witness is a dakait.
The informant, on being questioned by the pleader, gives
satisfactory reasons for his statement.
This is a reasonable ground for asking the witness whether he is
a dakait.

(c) A witness, of whom nothing whatever is known, is asked at

random whether he is a dakait.
There are here no reasonable grounds for the question.
Protection to witness: sue/ complaint against the
advocate.
"In order to protect witnesses against needless questions of this
kind, section 150 IEA has been made. A court always provide a
written instruction that these certain kinds of non-ethical
behaviour is totally been proscribed. Therefore, who obey
such instructions are sued for the contempt of the court. Under
section 150 IEA, court punishes the advocate by reporting him
to the higher authorities. Court will record such imputed
question and submit the same to the authorities. Also, such
witness has a right to file a defamation case against him.
Now the BOP is on the advocate to show that it was for the
public good that the imputation should be made (Exception 1,
section 499, Indian Penal Code), or that it was made in good
faith for the protection of the interest of the person making it or
of any other person (Exception 9).

Section 151:
This section forbids the putting of any question which is
indecent or scandalous, unless it relates to facts in issue or is
necessarily connected with them.
Sec 152:
The court has the power to forbid any question which is
intended to insult or annoy, or which is couched in a needlessly
offensive form.[shall]

Section 153:
The object of the section is to prevent trials being spun out to an
unreasonable length. If every answer given by a witness upon
the additional facts mentioned in section 146 could be made the
subject of fresh inquiry, a trial might never end. These matters
are after all not of the first importance, beyond what is
comprised in the exceptions.
However, a witness answering falsely can be proceeded against
for giving false evidence under section 193 of the Indian Penal
Code in the procedure given by 195 CrPC read with 340 CrPC.

There are two exceptions to this: (1) previous conviction when

denied can be proved (section 298, Criminal Procedure Code);
But the matter should not be prolonged. The matter should be
disposed within one hearing.

and (2) any fact tending to impeach his impartiality when denied
can be proved. Character becomes the part of the main issue.
A is asked whether his family has not had a blood feud with the
family of B against whom he gives evidence. He denies it. He
may be contradicted on the ground that the question tends to
impeach his impartiality.
(c) A affirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta.
He denies it. Evidence is offered to show that A was on that day
at Calcutta.
The evidence is admissible, not as contradicting A on a fact
which affects his credit, but as contradicting the alleged fact that
B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false,
be charged with giving false evidence.

This is a salutary rule and is meant to curtail every inquiry. If

contradictory evidence be allowed on side issues for instance, as
shaking the witness's credit by injuring his character, there can
be no limit to an enquiry.

The two exceptions engrafted on the section are capable of easy

proof and are material in assessing the weight to be attached to
the testimony of an individual witness.
Sec 154:
This section impliedly deals with hostile witness.
Who is a hostile witness?
A "hostile witness" is one who from the manner in which he
gives evidence shows that he is not desirous of telling the truth
to the court.
Where a party calling a witness and examining him discovers
that he is either hostile or unwilling to answer questions put to
him,
he can obtain permission of the court to put questions to him
which may be put to him by way of cross-examination.
This section vests discretion in the court to permit such person
to put any such question. Such a request can be made in civil as
well as in criminal cases.
The courts are under a legal obligation to exercise the discretion
vesting in them in a judicious manner by proper application of
mind and keeping in view the attending circumstances.

Does hostile witness always tell a lie?

Shatrughan v State of MP, 1993 Cr LJ
a hostile witness is not necessarily a false witness. In fact, he is
the one whose statement is not favourable to the party calling
him.
Merely because his testimony is averse to the party does not
necessarily means that he is a false witness.
Hence there can be no presumption on the fact that a hostile
witness is always a false witness.
The mere fact that a party has cross-examined its own witness
does not make him an unreliable witness. There must be some
material to show that the witness has resiled from his earlier
statements.

Gulshan Kumar v State

it was held that the court is not precluded from taking into
account the statement of a hostile witness altogether and it is not
necessary to discard the same in toto.
G Parshwanath v State of Karnataka, AIR 2010 SC 2
The testimony of a hostile witness need not be rejected in its
entirety.
Balu Sonba Shinde v State of Maharashtra 2002 SC
State of UP v Ramesh Prasad Misra 1996 SC
It is equally settled law that the evidence of a hostile witness
would not be totally rejected if spoken in favour of the
prosecution or the accused, but it can be subjected to close
scrutiny and that portion of the evidence which is consistent
with the case of the prosecution or defence may be accepted.
Gurpreet Singh v State of Haryana 2002 SC
Incidentally, it is now well-settled that in the event of a portion
of evidence not being consistent with the statements given under
161, CrPC, and the witness stands declared hostile that does not
mean and imply total rejection of the evidence. The portion
which stands in favour of the prosecution or the accused may be
accepted but the same shall be subjected to close scrutiny.

Gura Singh v State of Rajasthan, 2001 Cr LJ

The testimony of a witness who has turned hostile is not to be
excluded entirely or rendered unworthy of consideration.

Can a conviction be based on the testimony of a hostile witness?

Yes, if he is sufficiently corroborated.
Anil Rai v State of Bihar, 2001 Cr LJ
A conviction can be based on it if it finds some corroboration

Is it necessary to declare such witness as hostile first and then

ask permission from the court for the cross examination?
it was clarified by the Hon ble SC that Under this section, before
a party calling a witness can cross-examine him, it is not
necessary that the witness should first be declared to be hostile
to the party calling him, and the court has unfettered discretion
to allow a counsel to put questions of a cross-examination nature
to his own witness even though he did not show himself hostile
to the party calling him, but the court ought not to exercise its
discretion unless during the examination-in-chief something
happens which makes it necessary for the facts to be got from
that witness by cross-examination.

How to impeach the credibility of the witness?

Section 155:
This section enables the parties to give independent testimony as
to the character of a witness in order to indicate that he is
unworthy of belief by the court.
Its provisions apply to both criminal and civil cases.
The section indicates four ways in which the credit of a witness
may be impeached;
(a) by the adverse party, or
(b) with the consent of the court by the party who calls him.
They are:
(1) evidence of persons that the witness is unworthy of credit;
(2) proof that the witness
(i) has been bribed;
(ii) has accepted the offer of a bribe; or
(iii) has received any other corrupt inducement;
(3) former statements [oral are covered here as written were
covered under sec 145] inconsistent with the present evidence
and
(4) general immoral character of the prosecutrix in cases of rape
or attempt to ravish. [this is no longer allowed]
The above sub-clause (i) has an explanation, which is a re-echo
of section 153. Witnesses deposing to character can be asked in
cross-examination to give reasons for their opinion. They are not
liable to be contradicted in those reasons; but, if they are false,
they can be charged with giving false evidence.

ILLUSTRATIONS

(a) A sues B for the price of goods sold and delivered to B.

C says that A delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said

that he had not delivered the goods to B. The evidence is
admissible.

(b) A is indicted for the murder of B. C says that B, when

dying, declared that A had given B the wound of which
he died.
Evidence is offered to show that, on a previous occasion, C said
that the wound was not given by A or in his presence.
The evidence is admissible.
Law of corroboration; Sec 156

Corroborated facts are unconnected facts to the case but still are
connected.
A, an accomplice, gives an account of a robbery in which he
took part.
He describes various incidents unconnected with the robbery
which occurred on his way to and from the place where it was
committed.
Independent evidence of these facts may be given in order to
corroborate his evidence as to the robbery itself.

corroboration is meant to test the truthfulness of a witness.

Section 157
This section is very well connected with section 6 of the
evidence Act.
A witness's former statement relating to the same fact made at or
about the time when the fact took place may be proved in order
to corroborate his present testimony. There are only two things
which are essential for the section to apply. The first is that a
witness should have given testimony with respect to some fact.
The second is that he should have made a statement earlier with
respect to the same fact at or about the time when the fact took
place or before any authority legally competent to investigate
the fact.
Statements of witnesses before an investigating officer are also
not evidence. Such statements can be used only to contradict a
witness in the witness box.
Section 162 prohibits the use of the record containing the
statement of a witness to the police as evidence against the
accused as well as proof of such statement by oral evidence.
Such statements cannot be used as corroboration under this
section
A first information report is not a substantive piece of evidence
and can only be used to corroborate the statement of the maker
under this section or to contradict it under section 145 of this
Act.
The Supreme Court has held that the main test as to whether a
previous statement was made "at or about the time when the fact
took place" is whether the statement was made as early as could
reasonably be expected in the circumstances of the case and
before there was an opportunity for tutoring or concoction.
 Emperor v Rana Sattu, (1902) 4 Bom LR

Maqsoodan v State of UP, AIR 1983 SC

Where the maker of statement is alive and has also been

examined, her statement is not admissible under section 32 but
admissible under section 157.

Section 158:

Sections 32 and 33 of the Act permit the putting in of

statements, oral or written, or statements made in a judicial
proceeding, by a person who cannot be examined as a witness.

The Legislature intends by this section to submit such

statements to the tests of contradiction and corroboration, in the
same way as if those statements were made by the witness in the
box.

No sanctity attaches to such statements simply because the

person is dead or cannot be examined as a witness. His
credibility may be impeached or confirmed in the same manner
as in the case of a living witness.

Section 159:

This section says how a witness may refresh his memory.

He may, during his examination, refresh his memory by
referring to

(1) any writing made by himself

(i) at the time of the transaction concerning which he is

questioned, or

(ii) so soon afterwards that the court considers it likely that the
transaction was fresh in his memory;

(2) any such writing made by any other person and read by the
witness within the time aforesaid;

(3) professional treatises, if the witness is an expert (section

159). It is not necessary that the writing referred to should be
one which is admissible in evidence.

A document not produced in court within proper time and, in

consequence, rejected, may be referred to, to refresh memory if
it comes within the purview of this section.

Even if a panchanama containing a statement made by a witness

as to the crime committed is not admissible in evidence, a panch
witness can make use of it for the purpose of refreshing his
memory, where the panchanama is made by the police but is
immediately read over to the panch and admitted by him to be
correct.
The special diary may be used by the police-officer who made it,
and by no witness other than such officer, for the purpose of
refreshing his memory.
This section is to be read with section 161.
[s 161] Right of adverse party as to writing used to refresh memory.

Any writing referred to under the provisions of the two last preceding sections must be produced
and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the
witness thereupon.

This section gives the opposite party a right of inspecting

documents used in court for the purpose of refreshing the
memory of a witness. He may look at the writing to see what
kind of writing it is in order to check the use of improper
documents

Section 160:
State of Andh. Pra. v Ganeswara Rao, AIR 1963 SC
A witness testifying to large number of transactions contained in
account books or in other documents can be permitted to testify
by referring to them that all these transactions were made by
him and all in his own hand.

Section 162:
When a witness is summoned to produce a document which is in
his possession or power, he must bring it to Court,
notwithstanding any objection that he may have with regard to
its production or admissibility.
This section refers to official as well as private documents. The
second paragraph of the section provides that when a document,
in respect of which an objection to production or admissibility is
raised, refers to matters of State, the court has no power to
inspect the document. With regard to other documents in respect
of which privilege is claimed, the court, if it thinks fit, may
inspect the documents.
Can a witness refuse to testify?
NO. 132 rw 162.
163:

Where a party to a suit gives notice to the other party to produce

a document, and when produced, he inspects the same he is
bound to give it as evidence if the other party requires him to do
so.

A party is bound to give the opponent's documents as evidence

in the case if three conditions are fulfilled:

(1) the document should be required by that party to be

produced in evidence;

(2) it should be inspected by the party calling for its production;

(3) the party producing the document should require the party
calling for it to put it in evidence.

Using, as evidence of document production of which was

refused on notice. When a party refuses to produce a
document which he had notice to produce, he cannot afterwards
use the document as evidence without the consent of the other
party or the order of the Court.

ILLUSTRATION A sues B on an agreement and gives B notice

to produce it. At the trial A calls for the document and B refuses
to produce it. A gives secondary evidence of its contents. B
seeks to produce the document itself to contradict the secondary
evidence given by A, or in order to show that the agreement is
not stamped. He cannot do so.

Section 165:

This section is intended to arm the judge with the most extensive
power possible for the purpose of getting at the truth. The effect
of this section is that in order to get to the bottom of the matter
before it, the court will be able to look at and enquire into every
fact whatever.

Each party in a case is interested in setting up his own case and

demolishing the one set up by his adversary. There is danger in
some cases that the whole truth may not come out before the
court.

The judge, in order to discover, or to obtain proper proof of

relevant facts, may exercise very wide powers indeed; but they
all pivot upon the ascertainment of relevant facts.

He may approach the case from any point of view, and is not
tied down to the ruts marked out by the parties.

He can ask
(1) any question he pleases,

(2) in any form,

(3) at any time,

(4) of any witness,

(5) or of the parties,

(6) about any fact relevant or irrelevant.

No party is entitled to object to any such question or order, or to

cross-examine the witness without the leave of the court.

But out of the evidence so brought out, the judge can only use
that which is relevant and duly proved. There are three
exceptions to the very wide powers given to the judge.

The witness cannot be compelled to answer

(1) any question or to produce any document contrary to

sections 121 131;

(2) any question contrary to section 148 or 149; and

(3) the judge shall not dispense with primary evidence of any
document except as provided before.
 Noles
ullhm a
Date.

paly eAAeA t0ApcuLcO

OCUmimt uuuich h.a natico to_pADALCO
-teuuuad can it AI tuat dotmins
04 th 0the Palty aE
AtLatim Baa a& -lo9
Sec165 udanl Poen to put qUOStiOA
0 OCd pipductnoin
This i the Heod Section Zudlicial
AisCRetiOw
CnihoeiuduneR tnaAioA euidon

The hasicalm d Ony iUo atlamulaal

CAMUmAlutLcO y4TOmto pLAisAne
bLing eMa pAoeluCt i eidg nUst
eAMALLO that TAO pAAmwno_eAuoA_pilmdh==
MPnt noula qRA 1nnoCAAduAld 6o
Alt Me0
otes Date
CL
JutA yatm AuoLves alwuyA
md
AD AOuhty wo do aguQL h n
TUdgmlut baui
applaluon 0 ewdaucl
tAe 0pien_04 t CoUUL bosec ttre ColUE
adduco.doluuhig A L A a l _in
dlncoA a 2uce sawm

nCOAAplLA_O HOlmted t NCU

ncOmplite EauLty udgmlad a a
ecause

hat tU Aaw mdLaL

nOuldbo the bOt fa thi_pulpoP UD-

McukeRial

_Udge 4 nevelaPaiiy
a pali
 Notes Date

May mlaLnas may aus0 1 ambiguitg

imOlal udomt 0 Cetam tiwmu
ttap.atLLs naHH
docummtal
uapoAatue
o mateuial edomtos 1u
that mind Ol Cout muat ho
altuutughoutdo
KLe_ha4 32Atw Rost ndoomo
boonc
Lden tneasRICaLO
A0e4t Gidomco Rulo AeMLbjo0424 o Bont
eIwdlnce tHD0Mm Tuo Raw matual

WAD tho antln0J GALdoM thie ad AAA1dICi

discaotion ALn thsoupdst the leRallal
ApoapiunA LA0 Tadae dhoLild haw alLto
plueyto llct ta Gyidmc &ukoatin=
The QueA Aiisd4 Cam tneAe be any
ClulChIL
balamaOs OMa4LUdge 1 FoL tnudPuspo1e
9ploaly ApLapaf ThR AhOula_9n0t heuy
Chooce balaLLA
ANaJuolge but sue
lonOt LuO Ana utopoaM wOLldua
lo a UDALd inum Vemted_by l

hedonisti
 Notes Date.

ThCdt s yAUcidal diacAOLiom mula

IEAJU
temnpesed byudicial AOstAaind,
GALAOAAL mea /_b0t dlicial diicOTTO n a m yO E I O N

dUuLaL AOLtiaiucE 7heie ae mamy StE Z l c d a L

ROAtaalt Eo Enemhl
lAnAlaDii a a0ldem mOA O
SeC:l65
Uiual Rentaimt R Aica_poUeA
Tht caUn be tappm as 0A0 O to
SOottos AUCh Cam bl mado
2hhlicahle

c u l u t c e SuALem empolL
Qm4 CiMunal 0 2ULATIOm

a nudL qLul weap0M pOLASL.

doCLmlA4t _OLathngACm aMDOYolle

QuetDIU OP tiue CoLae bas
Mao cula audagHNOL-
tD_ CloaLth miuad 04tu
Aam b0 callea wdeMCRA 20 cea A dge
Canb0 Callod to a witmDAA bOr pe ci-
Tns leR Cead make tuid a
pliulLged CommLusnication.
 Notes
Sec-165
Date.

O ided into to paiiu

udol Tal mteeAt

wdonce
oaAmdiliuted o Lismitlesseitaum
t o Autuc TheAeLAtIaLAtihaue
Wb0put o t in SOC 165 bs thetwD
PAOnAD Mah ae aphlndid b4y ceCL6S
SeC 165 aumA_a Judge uuth tho mO4E
CHAndhe pouLeRpouible,Luttp a6ase
AOlo aimm o/ aLLing atuh Ihe baaic
ggece-of hod_dop_tothe bottom.06
thl matterSo that tur cOult COm {halty
lopatat Qm abJOlutrly clea mamno

TodsCOLL
To_Oltau_pief AeltuantE PaCI
 Noles Date.

Qvdonco 26 m PalLy A COA M o t a

poOrtyw_amy påittye hat is heLOONOn
LUhL/ he LO 0iaiming a pOppioof of
am LeLeuasnA_lactA2m zlms tv claity
tu imd Lmaa m0t to CLatL Od nu
6o oc165 dos nt_alouw a udgp to Ceatz

6ahically dehaLLa_pituup Cleas clalts

lhe udge may asp my quenDn he
plaasesio Auy GOunai any tina
0l 0 m dnuypalty
tu gULLIONMmay ho Alouasut bMLeloua
PoLtne ttime ueleamt Questiow aLe
allouweoLto heCOme pakt 04 Recola,Oul
LumdeSOC165 Jn_.eA.

lg4udge may 2cle ni DioducHn O

uy doCuIn0nt"gl tum
NO pautin au Allouned to_hL Ct o l
dth agemiu thl pastL__Anall he
 Notes
SuC Queatul
Date

Ol 01des
6 WtQiut at
DClAmisnign
Lla aAnn allowed to 083-CuaMUns
Utntasub0n ay 0nue utn u
l o amy sulqualt0n
JudiualRostiaum
lheRe1AAam AA quM by tho Pevo
_CeC.16S
ThL Tudoe mut bi boned upondw {acn
daclannd 6y mi At to he AclPUamt 2
-duly plaiud
TLLOAa udge_hau Aho p0uelto
au_elevant quoitions but dhat tam
be ths palt of W UdGmmt oK a4ude
ThQt fuo sechigrn Lhall not autthoie
tta0 Adg to 0mbel _ay Udme to md
Qmy PIUILga tommuOtonThuo
Mai powOB tO UE QULhso qudge.ane
AubuetD thAAA)UMtA m de secl2L
 Notes Date.

131.1EAPuvilLged commnbintiow alwaiA

Aemams Puuluhed cam't be
evn p0w qwen to udgebuacha
u[cec 61 16A
06

ton
NO sual ho udae ac any q
to Oth_p2AASn to_asp ulMcI49 4 LObeLQ u i O N A
ipnd
aAn udge _aup aMy Linobes QD
OR
JA th Aidge CLLAD ubbosed to aAp U

ILS2C-4G Lwtnat quouttom aL PAP 2 e 2 0 t a s d B n s

wn tt COut Camy f umpI

uswch melns4 ROLLAAChOns
a4suminhgpaty aln apbly
Coutl04 a 0udgelulce -l651ON
t h u t amy ALanInal2liyGLOLma UN
camy asf nnbop 9-
paw(on

hl dae aup umploje0) Ouy h

Go FoL RUviien umde CP0
 lotes Date

udgeCa14 Oveuwde w Sec.6S

0thet.wO1ds CecOnday evidonco (a
Sn
acutr Only in d0me conddiou , the
ualge n t an allow &avewd tuu
CCc 65
11Tonuay0a
Cm iapash Statt.04 mabaLahtna L993J
Mpoito{ m ea coult_Cam be
alloue 4 t helbtmg Omy pasy imgalt to
CO amy lacumd
StO
peualy ploblom CasmelmCimuhat
CasLA theu Jlo
0AR CL20n thuoyLLNOW AOlg tamE
ALL hat lacuma

Sec:l66 Pausev o uy oALeOL

Pu Queutioms my sYAAtn tndd
 t h e person

Notes 7 Date
0Can thi uuy asOmy qUeAtion tw w
llne42 Sec-166 mpe uuODpe CE uUy
clear
n Gandua dont
thiwT Soctiom Mas bioie
pno1 edundunt
usChy SecOn e E An 1A, but hs bl00me

The uy 0 seMOLU may_put any quetie

ilh thludge nAllpnlola
plue uwth heOndel plapela
 hitrarilyom

Notes a Date.

CHRPTER K
OFLmb0buy NdmiMign &Rejecthon
YHdonc
eo lot No moy hial Ao mpiobe admii
Yeotion oeidlnco
SOC 16 7 appliou AG-tA Appellati oLuiEA

Ludunce u mot tatM

aat uillAabben d n uadu shi
edomcoi tan
tuhatual happem'ul admipiblL euidont
het dapeh
9
KJDotneJudamemt timds Athaud a
eutdenoe nOtapen.Y1

RuauptA poceduhe ond ploumptiom

thoApntL
 Notes 7
Date
AnCPeuAn a pALo wiongey Oin
Daxt 0wongky0n
paitus Jho0
O thw taw oR action
phoceddual
m0t uaUtd _miktakes the deca
SOc 99CPC
Simi Laly
D

465 Sec o Op: peALOnlpalty

tiesLiwic th Reuonal couutCaM COt asido,
dy Jeguuak Ain a poceduude does mot UHath
th pddk tial both n aiilL Lao a4 uel
Q Lin CimnalLaw

Aume Lan has bRlAM OLouued

n COie 20m udoMc uA AelouaMt aMd
adnMlblo but he coUAEAAALuLed to do so
O COnae widlmL AUas Jinacunblo nd t
cOLLlt QadumiaseAt , ShOuld tat qudgznlmt hu
dependhQuw p0itant t_adniolity
pOdmddibilu
Thg 1St OuwJioh ALed hy dang ti LMeQulo
tu MLGulaty Aad nothoum conmitieo
o u l d t huc madr a moj0 Changu4
the Ldhmlmt hAsid NO,the
 7
Notes Date

i T h equlckitayAas h00m_coAmtLg
th Cout itShÓuld be igmaAedse
BLLt th_admiAuhLiy Osa non admitble
OCLR hadlutbLir_ioudiky
n 4naaisAl edenc mapea hajolz4
nge udommt thOn COUNAL LE
ato btaboM imdos ComaidbiiMma
nDOpOA adniasionO Ronin 0f_edince
Qn Leaulaity mcam loaalit
lebolat iiuth elousamt_ploHeh o eA,
Naoth Soc:l6, _gmbobe adni en a LOectis
of ewdonca houll npI bi a giownd
acl401 nuw tzial o euusal e
ayclocidiDn
Oded tnat is ShalI appea to te
Ouit begpAL Uh SLh Objectin
iiALd n abbealiate COuut 0 10ulsional
au
uould houe ClalamgedHheclegM
tuem ndebeully
ha denc jeAAd hos
 Notes 7 Date
udgmenl uen he
dLefAACoAt L wOuId
Aeciy OsA,
cOULthan

HdOMde daeA ngtCOLNL MAN

mayoiKAnge a HUdmeaataMdA
adgme4at lie AtUALUegeulautyea

hin neLly
ewdlenco

Mew tual
SOC 29 CPO menti0M tueae LectieA
# Soc 65 CLPt

DeciAen Tu w04d dehon iunwnally

OoLA aMAeA thatloti sOCl67 deal

LhAe Of(ueom Empleis HC AhoAN 1G76Calout

 Notes Date.

uaAaldthat mo LOuht ttho

wDLd ecioniugeuelcLly uaed and
ahpllcable to t ciuilDAOcQidingj but
CiTon 167 l20 ahhlie 0quaUy y
Chiminalcasess
ttN SOCtS7uA OQcually applucablone
tv oLauWL aJ Umhal casQA
Law on Estoppel
Estoppel is based on the principle that it would be most
inequitable and unjust that if one person, by a
representation made, or by conduct amounting to a
representation, had induced another to act as he would not
otherwise have done, the person who made the
representation should not be allowed to deny or repudiate
the effect of his former statement, to the loss and injury of
the person who acted on it,

Section 115 deals with estoppel in general.

The section says that when one person has by his,

declaration,

act or

omission,

intentionally caused or permitted another person,

(i) to believe a thing to be true and

(ii) to act upon such belief,

(iii) then neither he nor his representative shall be

allowed to deny the truth of that thing in any suit or
proceeding between himself and such person or his
representative.
To invoke the doctrine of estoppel three conditions must be
satisfied;

(1) representation by a person to another,

(2) the other shall have acted upon the said representation
and

(3) such action shall have been detrimental to the interests of

the person to whom the representation has been made.

Even where the first two conditions are satisfied but the
third is not, there is no scope to invoke the doctrine of
estoppel.

As a doctrine based on equity; the principle of estoppel is

only applicable in cases where the other party has changed
his position relying upon the representation thereby made.

The doctrine of Estoppel is steeped in the principles of equity

and good conscience. Equity will not allow a person to say
one thing at one time and the opposite of it at another time
that would be like running with hare and hunting with the
hounds.

The burden of proving the ingredients of this section lies on

the party claiming estoppel.

The representation which is the basis for the rule must be

clear and unambiguous and not indefinite, upon which the
party relying on it is said to have, in good faith and in belief
of it, acted.
This section is founded upon the doctrine laid down in

Pickard v Sears,

"By his words or conduct, when one wilfully causes another

to believe the existence of a certain state of things, and
induces him to act on that belief, so as to alter his own
previous position, the former is concluded from averring
against the latter a different state of things as existing at the
same time."

Estoppel is based on the maxim:

allegans contraria non est audiendus (a person alleging

contradictory facts should not be heard).

Sukhdev Singh v UOI, 1989

Estoppel is essentially a rule of civil action. It has limited

application to criminal proceedings, though in such
proceedings it would be prejudicial to set up a different
story.

Estoppel is binding not only on parties but on privies as well-

COKE:

Privies by blood, estate and by law.

Chhaganlal Keshavlal Mehta v Patel Narendas Haribhai,

AIR 1982 SC
"To bring the case within the scope of estoppel as defined in
section 115 of the Evidence Act;

(1) there must be a representation by a person or his

authorised agent to another in any form a declaration, act
or omission;

(2) the representation must have been of the existence of a

fact and not of promises de futuro or intention which might
not be enforceable in contract;

(3) the representation must have been meant to be relied

upon;

(4) there must have been belief on the part of the other party
in its truth;

(5) there must have been action on the faith of that

declaration, act or omission, that is to say, the declaration,
act or omission must have actually caused another to act on
the faith of it, and to alter his former position to his prejudice
or detriment;

(6) the misrepresentation or conduct or omission must have

been the proximate cause of leading the other party to act to
his prejudice;

(7) the person claiming the benefit of an estoppel must show

that he was not aware of the true state of things if he was
aware of the real state of affairs or had means of
knowledge, there can be no estoppel;
(8) only the person to whom representation was made or for
whom it was designed can avail himself of it. A person is
entitled to plead estoppel in his own individual character
and not as a representative of his assignee.

Bhanu Kumar Jain v Archana Kumar 2005 SC

Estoppel differs from res judicata:

(1) Estoppel is part of the law of evidence and proceeds upon

the equitable principle of altered situation; the doctrine of res
judicata belongs to procedure and is based on the principle
that there must be end to litigation.

(2) Estoppel prohibits a party from proving anything which

contradicts his previous declarations or acts, to the prejudice
of party, who, relying upon them, altered his position; res
judicata prohibits the Court from enquiring into a matter
already adjudicated.

(3) Estoppel shuts the mouth of a party; res judicata ousts

the jurisdiction of the court.

Estoppel and waiver.

Estoppel and waiver are different. Estoppel is not a cause of

action.
It may, if established, assist a plaintiff in enforcing a cause
of action by preventing a defendant from denying the
existence of some fact essential to establish the cause of
action; or, in other words, by preventing a defendant from
asserting the existence of some fact the existence of which
would destroy the cause of action.

Waiver, on the other hand, is contractual, and may

constitute a cause of action; it is an agreement to release or
not to assert a right.

If an agent, with authority to make such an agreement on

behalf of his principal, agrees to waive his principal's rights,
then, subject to any other question such as consideration,
the principal will be bound, but he will be bound by contract,
not by estoppel. There is no such thing as estoppel by
waiver.

Radha Kishan v Election Tribunal-cum-sub-Judge, AIR 2001

SC

For attracting the principle of waiver, there are two essential

elements to be satisfied. Firstly, waiver should be voluntary
and intentional and secondly, there should be two parties
one waiving and the other getting benefit from such waiver.

Kinds of estoppel.

There are different kinds of estoppels:

(1) estoppels by matter of record;

(2) estoppels by deed; and

(3) estoppels in pais.

(1) Estoppel by matter of record. A matter of record is

something part of the records of a Court. It is at once the
narrative and the proof of its proceedings.

Estoppel by records results from the judgment of a

competent Court.

The law allows a party ample opportunity, by way of appeal

and otherwise, of upsetting a wrong decision.

And if he takes the opportunity and fails, or does not choose

to avail himself of it, he cannot subsequently re-open or
dispute that decision.

(2) Estoppel by deed.

Where a party has entered into a solemn engagement by

deed as to certain facts, neither he nor any claiming through
or under him is permitted to deny such facts.

This rule, however, is subject to certain, qualifications:

(1) The rule applies only between parties and privies, and
only in actions on the deed.

(2) No estoppel arises upon recitals or descriptions which are

either immaterial or not intended to bind.

(3) No estoppel arises where the deed is tainted by fraud or

illegality.
(4) A deed which can take effect by interest shall not be
construed to take effect by estoppel.

Thus if a party leases premises to another for a longer term

than he himself possesses, it only ensures to the extent of
his own interest and no further.

(3) Estoppel in pais by conduct.

" the estoppel in pais of the present day has grown up

entirely since the time of Coke, and embraces cases never
contemplated in that character by him or by the lawyers of
even much later times though the old lines are often visible
in the newer pathways."

Estoppel in pais arises

(1) from agreement or contract and

(2) from act or conduct of misrepresentation which has

induced a change of position in accordance with the
intention of the party against whom the estoppel is alleged

The following are the recognised propositions of an estoppel

in pais:

(1) If a man by his words or conduct wilfully endeavours to

cause another to believe in a certain state of things which
the first knows to be false, and if the second believes in such
state of things, and acts upon his belief, he who knowingly
made the false statement is estopped from averring
afterwards that such a state of things did not in fact exist.
(2) If a man, either in express terms or by conduct, makes a
representation to another of the existence of a certain state
of facts which he intends to be acted upon in a certain way,
and it be acted upon in that way, in the belief of the
existence of such a state of facts, to the damage of him who
so believes and acts, the first is estopped from denying the
existence of such a state of facts.

(3) If a man, whatever his real meaning may be, so conducts

himself that a reasonable man would take his conduct to
mean a certain representation of facts, and that it was a
true representation, and that the latter was intended to act
upon it in a particular way, and he with such belief does act
in that way to his damage, the first is estopped from
denying that the facts were as represented.

(4) If, in the transaction itself which is in dispute, one has

led another into the belief of a certain state of facts by
conduct of culpable negligence calculated to have that result,
and such culpable negligence has been the proximate cause
of leading and has led the other to act by mistake upon such
belief, to his prejudice, the second cannot be heard
afterwards, as against the first, to show that the state of
facts referred to did not exist.

Does IEA deals with all matters of estoppel? Whether IEA is

exhaustive regarding Estoppel?

No IEA is not exhaustive because sec 115 deals with

declaration, act or omission and sec 116, 117 deals with
tenant, licensee, bailee and bailor and is covered. All other
matters are not covered in IEA and there are many other
laws dealing with estoppel such as:

1. Sec 234 of ICA

2. Sec 18 of SRA

3. Sec 41&43 of TPA

4. Sec 27, 53 of SOGA

5. Sec 28 of IPA

Evidence act is a purely adjective law. In this purely

adjective part, there are some splashes of substantiveness
i.e., law of estoppel [115-117].

Baidyanath Mahapatra v State of Orissa, AIR 1989 SC 2

Where the Government caused delay in communicating

adverse remarks to an employee, the Government was not
permitted to reject the representation of the employee as
belated. The Government was held to be bound by an
equitable estoppel to consider the representation on merits.

RK Deka v UOI, AIR 1992 Del

Estoppel being a product of equity the court has to go by

equities on both sides so as to hold them in a balance. A
scheme for allotment of plots to non-resident Indian
generated a poor response. Time was extended. It resulted
in a long gap of time from the original date. In between the
cost of development increased substantially. The Central
Government was held to be justified in dropping the scheme.

Proprietary estoppel:

Henry v. Henry 2010 ENG

The claimant lived for more than 30 years on an agricultural

land of which the landlord lady was the half owner. She had
given a promise to the claimant that she would leave her
share in the land to him on her death if he cared for the land
until her death and cultivated it. The claimant paid no rent,
but he continued to fulfil the conditions in the owner's
promise. He sold the surplus agricultural produce and
retained the proceeds for himself. But the owner sold the
land to a purchaser for value, who notified the claimant to
quit the land. The claimant brought an action against the
purchaser on the basis of promissory estoppel. The court
ruled that he was entitled to half the share of the land. The
court said that the question depended on what assurances
were given to him and what was the degree of his reliance
on those assurances and the detriment which was likely to
be caused to him.

Promissory estoppel:
When one party has, by his words or conduct, made to the
other a promise or assurance which was intended to affect
the legal relations between them and to be acted on
accordingly, then, once the other party has taken him at his
word and acted on it, the one who gave the promise or
assurance cannot afterwards be allowed to revert to their
previous legal relations as if no such promise or assurance
had been made by him, but he must accept their legal
relations subject to the qualification which he himself has so
introduced.

This doctrine, which is derived from a principle of equity

enunciated in 1877, has been the subject of considerable
recent development.

This is a doctrine evolved by equity in order to prevent

injustice.

It differs from estoppel properly so called because the

representation relied upon need not be one of present fact.

The doctrine of promissory estoppel is premised on conduct

of party making a representation to the other so as to enable
him to arrange its affairs in such a manner as if the said
representation would be acted upon.

It provides for a cause of action. It need not necessarily be a

defence.

Hardwari Lal v GD Tapase, AIR 1982 P&H 4

Estoppel was pushed to service in the favour of a person

who was appointed the Vice Chancellor of a University for
one term on the assurance that his appointment would be
extended for one more term and he had on that basis given
up his political career and his seat in the Assembly.

Waverly Jute Mills v Raymon & Co, AIR 1963 SC

A person who participates in arbitration proceedings as a

party may become estopped afterwards from dragging the
same matter to civil courts, but he can nevertheless still
question the validity of the underlying arbitration agreement.

What do you mean by estoppel against estoppel?

Estoppel against an estoppel sets the matter at large. When

one applies estoppel against estoppel then the court has to
see what were the original rights.

No estoppel applies in cases of maintenance as it is always

an everchanging thing. Thus, on maintenance neither res
judicata nor estoppel applies. The matter was discussed by
the PH HC in jawan v. Meva Singh 2001

Section 116:

This section enumerates the principle of estoppel which is

merely an extension of the principle that no person is
allowed to approbate and reprobate at the same time.

The section deals with estoppel of (1) a tenant, and (2) a

licensee of the person in possession.

It is not exhaustive as containing all kinds of estoppel which

may arise between landlord and tenant.
The underlying policy of section 116 is that where a person
has been brought into possession as a tenant by the
landlord and if that tenant is permitted to question the title
of the landlord at the time of the settlement, then that will
give rise to extreme confusion in the matter of relationship of
the landlord and tenant and so the equitable principle of
estoppel has been incorporated by the legislature in the said
section.

Section 117:

This section deals with further instances of estoppel by

agreement.

Sections 116 and 117 are however not exhaustive of the

doctrine of estoppel by agreement.

Agents, for instance, are not ordinarily permitted to set up

the adverse title of a third person defeat the rights of their
principals.

Under this section an acceptor of a bill of exchange cannot

deny that the drawer had authority to draw such bill or to
endorse it.

But he may deny that the bill was really drawn by the
person by whom it purports to have been drawn
(Explanation 1).

A bailee or licensee cannot deny that his bailor or licensor

had, at the commencement of the bailment or license,
authority to make the bailment or grant the license.
But a bailee, if he delivers the goods bailed to a third person,
may prove that such person had a right to them as against
the bailor (Explanation 2).