E-Notes: SUBJECT NAME: Law of Evidence Class & Section: Bba/B.A.Ll.B V Semester Subject Code: LLB 303

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E-Notes
CLASS & SECTION: BBA/B.A.LL.B V Semester

SUBJECT NAME : Law of Evidence
SUBJECT CODE : LLB 303
Unit-3
A.PRESUMTIONS
Presumption generally means a process of ascertaining few facts on the basis of

possibility or it is the consequence of some acts in general which strengthen the
possibility and when such possibility has great substantiate value then generally facts can
be ascertained. A presumption in law means inferences which are concluded by the court
with respect to the existence of certain facts. The inferences can either be affirmative or
negative drawn from circumstance by using a process of best probable reasoning of such
circumstances. The basic rule of presumption is when one fact of the case or
circumstances are considered as primary facts and if they are proving the other facts
related to it, then the facts can be presumed as if they are proved until disproved. Section
114 of Indian Evidence Act specifically deals with the concept that ‘the court may
presume the existence of any fact which it thinks likely to have happened, regard being
had to the common course of (a) natural events, (b) human conduct, and (c) public and
private business, in their relation to the facts of the particular case’.
Difference between May Presume Shall Presume and Conclusive proof

May presume is a condition when the court enjoys its discretion power to presume any/
certain/ few facts and recognize it either proved or may ask for corroborative evidence to
confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the
Indian Evidence Act provides that a fact or a group of facts may be regarded as proved,
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until and unless they are disapproved. The concept is defined under Section 4 of this act
that ‘May Presume’ deals with rebuttable presumption and is not a branch of
jurisprudence.
Whereas, shall presume denotes a strong assertion or intention to determine any fact.
Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court
does not have any discretionary power in the course of presumption of ‘Shall Presume’,
rather the court has presumed facts or groups of facts and regard them as if they are
proved until they are disproved by the other party. Section 4 of the Indian Evidence Act
explains that the concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or
‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of
Law’ and tells that it is a branch of jurisprudence.
While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest
presumptions a court may assume but at the same time the presumptions are not
completely based on logic rather court believes that such presumptions are for the welfare
or upbringing of the society. With regards to Conclusive proofs, the law has absolute
power and shall not allow any proofs contrary to the presumption which means if the
facts presumed under conclusive proofs cannot be challenged even if the presumption is
challenged on the basis of probative evidence. This is the strongest kind of all the existing
presumptions whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of the
Indian Penal Code are one of the most important provisions related to the irrebuttable
form of presumptions or Conclusive Presumption.
The general definition of Conclusive Proof is a condition when one fact is established,
then the other facts or conditions become conclusive proof of another as declared by this
Act. The Court in its consideration shall regard all other facts to be proved, only if one
fact of the case is proven without any reasonable doubt. And if the other facts are proved
on the basis of proving of one fact that the court shall not allow any evidence contrary to
other facts which are presumed as conclusive proofs.
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Illustration- A and B married on June 1 and the husband left home to his work for 6
months later he discovered that her wife is pregnant he divorced the wife and challenges
that he is not liable for paying damages either to his wife or to his illegitimate son. And
also explains that he never consumed his marriage as just after one day of marriage he
left his home for his work. But in this case, the court will conclusively presumed that the
son born out of his wife is legitimate because he was with his wife for at least 1 day and
shall not allow any proof contrary to the conclusive proof even if he provides probative
evidence.
General Classification of Presumption

The traditional approach of common law system has classified presumption only under
two categories that are a presumption of law and presumption of facts but to avoid any
ambiguity in deciding any case the Indian legal system has adopted the third
classification that is mixed presumptions which includes both the aspects of facts as well
as law. Hence the existing legal system has three types of presumptions which are as
follows:
Presumption of Facts- Presumptions of facts are those inferences that are naturally and
reasonably concluded on the basis of observations and circumstances in the course of
basic human conduct. These are also known as material or natural presumptions. Natural
Presumptions are basically instances of circumstantial evidence as it is believed that it is
very good to act in the course of reasoning where much inferences can be easily
concluded from other evidence otherwise it will keep much ambiguity on the legal
system because it will be much more difficult because of the legal system to prove every
fact to capture the offenders or law conflicted member of the society. Natural
Presumptions are generally rebuttable in nature.
There are few provisions that are directly expressing about Natural Presumptions such as
Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where
Section 113A & 113 B are one of the most important provisions of presumptions under
this Act, whereas Section 86 talk about certified copies of foreign judicial records,
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Section 87 expresses presumption of Books, Maps and Charts, Section 88 deals with
presumption related to Telegraphic Messages, Section 90 deals with documents aged
thirty years old, whereas Section 113 A deals with hardcore crime that is Presumption as
to abatement of suicide by a married women and Section 113 B deals with the
presumption as to dowry death. Under the Presumptions of Facts, the concept of ‘shall
presume’ is utilized. And by the concept, the court will presume that a fact ascertained
before them are proven facts until and unless they are proven disproved by the accused.
The concept of ‘shall presume’ expresses that the courts are bound to maintain and
recognise some facts as proven by making a mandatory presumption and the court has to
consider them as completely proven until such presumption are challenged and
disapproved. When these presumptions are disproved by the challenging party then the
court has no discretion on maintaining such presumptions.
Few Conditions Where Court May Use the Presumption of Facts To Ascertain Some
Facts:-
Foreign Judicial Records- Section 86 explains the principle that the court has the
discretionary power to make presumptions with respect to the originality and accuracy of
the certified copies of a different foreign country’s judicial records and the called
document should be consistent with the local or domestic rules. The presumption
explained under this Section has a very significant role, therefore, should be complied
with it. It is also observed that if the court does not feel that the foreign judgments are not
consistent with the local laws then these judgments lose the evidentiary values in the
court.
Abetment as to Suicide by a Married Women- Section 113A deals with the
presumptions of abetment of suicide of a married woman either by her husband or any of
his relatives. The court has mentioned few essentials to check that whether a suicide
executed by married women is inconsistent with the essentials mentioned under the
provision, and if they are consistent to it then the court in such cases will presume that
such suicide has been abetted either by the husband or his relative. The essentials of this
provision are:
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(i) The incident of suicide was committed within a period of seven years from the date of
her marriage; and
(ii) Her husband, or his relative, has subjected her to cruelty as according to the Section
498A of IPC.
In Chhagan Singh v State of Madhya Pradesh, the victim was badly beaten by the
accused at some place and for such guilty act the accused explains the reasons that the
victim was stealing rice and because of it, he has beaten the victim. But just after the few
days of the incident victim committed suicide. The court in this matter acquitted the
accused or discharged the accused of offence mentioned under Section 113A of Indian
Evidence Act as the court didn’t find any evidence subject to cruelty and also mentioned
that the essentials of Section 113A are not fulfilled with the facts of the cases, hence in
the case of murder legal presumptions of Section 113A is not a part of it. Because the
death of the person is caused due to other reasons and the legal principles of 113A cannot
be just applied blindly as one has to see the nexus of it. The advantage of the presumption
of Section 113A can only be granted if either her husband or any of his relative has
treated the women with cruelty in any sense.
In, Nilakantha Pati v State of Orissa, in this case, the accused married the victim in April
1982 and has been benefited with a dowry. But later the accused desired to purchase a
house, and of the purpose, he asked the victim to get Rs 70,00 from her parents. When
she could not get the amount she was tortured and in 1986 she died. The accused
supported his arguments with proper reasoning and logic that the court found the
presumption to be of rebuttable nature. As the arguments advanced by the accused have
enough relevance, the accused was acquitted of Section 113A. The High Court said that
they presumption exited here is rebuttable and such presumption can be escalated
whenever the circumstances of the case match the essentials or the interpretation of the
legal provisions. And here, in this case, the accused has disproved all the presumptions of
the court hence, the accused was released.
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In, Mangal Ram & Anor v State of Madhya Pradesh, in this case, the wife of the accused
was living with her parents for many years and has no visited her matrimonial home for a
long time. But within one month of returning to her matrimonial home, she committed
suicide. Therefore the court presumed the circumstance that the accused is responsible for
the death of the lady and the case comes under Section 113B of Indian Evidence Act. But
the husband and her in-laws proved that the death was not caused because of the reasons
subjected to cruelty. The court in that matter said that the presumption was of rebuttable
nature and the presumption can’t be sustained anymore, hence the accused acquitted.
Abetment of Suicide to married Women for the purpose of Dowry- Section 114B of
Indian Evidence Act deals with the principles of presumption related to abetment of
suicide to married women for the purpose of dowry. This Section empowers the court to
presume that the husband and his relative are the abettors of suicide and the wife was
subjected to cruelty or any torture related to demand of dowry. While explaining the
concept of Section 113B the court explains certain essentials which are to be fulfilled for
raising any presumption related to abetment of dowry death. The essentials of Section
113B are completely the same as of essentials of Section 113A of Indian Evidence Act.
But a thin line difference between Section 113A & 114B is that the presumption of
Section 114B only comes to the picture if the prosecution has certain proofs that the
cause of death was cruelty or maltreatment or harassment for dowry demand. Hence,
under this Section, the presumption is carried only when the prosecution proves the case.
In Hem Chand v State of Haryana, the couple married on 24 May of 1962. The wife left
her husband’s home just after 2 months of her marriage and explained the reason to her
parents that her husband is demanding for a TV and a refrigerator. After listening to such
demands her father out of his hard money gave her around Rs. 6,000 and she left for her
matrimonial home. But the husband’s desire was not finishing and he again asked her to
get twenty-five thousand rupees from her home as he is willing to buy some real estate
property. Thereafter the accused took his wife to her parents’ home and said that he’ll
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take back her only if he will be paid Rs. 25,000. One year after she came back to her
matrimonial home with Rs. 15,000 and promised the balance amount will be paid soon.
But on the same day, she died of strangulation in her husband’s home. The trial court and
both Supreme Court found accused to be guilty and convicted on carrying the
presumptions that her husband has performed cruelty against her and the reason for her
death could be the husband’s cruelty for the purpose of dowry.
In Shanti v State of Haryana, The Supreme Court held that the victim’s death should be
soon after the victim was subjected to cruelty or harassment for the purpose of dowry.
But in this matter, the wife was taken back to her home as the dispute was solved by the
local panchayat and this incident happened before 10-15 days of her death. However, the
facts seem to be so clear but the presumption cannot be made as there was no evidence
which indicates that she was treated with cruelty for the purpose of raising dowry when
she was taken back to her matrimonial home. Hence in these circumstances, the
presumption for dowry death cannot be raised and Section 113B of the Indian Evidence
Act cannot be brought into action.
In, Baijnath & Others v. State of Madhya Pradesh, Supreme Court expounded that, “One
of the essential ingredients of dowry death under Section 304B of the Penal Code is that
the women must have subjected to cruelty either by the husband or his relatives for the
purpose of dowry soon before her death and bring it as an essential ingredient of Section
304B of IPC the prosecution has to prove the connection of the victim’s death with the
act of cruelty by the husband or by his relative for the purpose of demanding dowry and
the connection must be proved beyond reasonable doubt then only the court will put the
case into the window of Section 113B of Indian Evidence Act.
May Presume- Section 114 of the Indian Evidence Act deals with the concept
‘presumption of certain facts by the court’. The Court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common course of
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natural events, human conduct and public and private business, in their relation to the
facts of the particular case.
Illustrations-
• Every negotiable instrument is presumed that it is drawn for the purpose of good
consideration.
• There shall be continuity of things unless proven contrary like if a property is
considered to be an ancestral property, it shall be presumed that it is so until it is proven
contrary to the presumption (Chito Mahtoo v Lila Mahto).
• If a person refuses to answer a question, which is not compelled by the law to
answer, the court may presume that if he answers the question then the answer would be
unfavourable to him.
• That if a man possesses some stolen goods soon after the theft then it is believed
that he is either the thief or has received the goods knowing the nature of the goods
unless he can account for his possession.
Presumption of Law-
Presumptions of law are such inferences and beliefs which are established or assumed by
the law itself. It can further be divided into rebuttable presumptions of law and
irrebuttable presumptions of law.
Rebuttable Presumptions (praesumptio iuris tantum): Rebuttable Presumptions are certain
presumption which is regarded as evidence of good quality and does not lose their quality
until proven contrary to the presumption. Although it does not easily measure the extent
of such presumption as their validity only exists until they are not proven wrong. The
basic example of rebuttable presumptions can be- if a person who is in possession of
some stolen property than it is quite obvious that he can either be a thief or a receiver.
Matrimonial offences are one of the best examples to explain any presumption because in
such offence the possibility of getting evidence is nearly low as these offences that take
place within the closed area of matrimonial house. Hence the presumption is very
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important in such cases/offences. There are broadly three important provisions regarding
the presumption in matrimonial offences which are:
• Presumption as to abetment of suicide by a married woman within seven years of
marriage covered under Section 113A of Indian Evidence Act.
• Presumption as to dowry death within seven years of marriage covered under
Section 113B of Indian Evidence Act.
• Birth during the marriage is the conclusive proof of legitimacy covered under
Section 112 of the Indian Evidence Act.
In, Shantiv. State of Haryana, the in-laws of the bride did not allow her to visit her
maternal house to meet her parents, and when the bride’s parents came to meet her they
were not permitted to enter the house and complained to them about the amount of dowry
that the demand of scooter & TV was not fulfilled. Soon after the incident, the wife of the
accused suffered an unnatural death. The Supreme Court allowed the presumption stated
under Section 113B of Indian Evidence Act as the death was caused within seven years
of marriage and that too just after such incident prohibited under this Act, and on the
basis of applications of this Section one of the in-laws was convicted for causing dowry
death.
In State of M.P. v. Sk. Lallu, a newly wedded wife was facing severe beating regularly by
her in-laws from the very first day of her marriage, and at last, she ends up dying with
100% of burn injuries. The Court executed the application of presumption stated under
Section 113A and explained that such presumption can be invoked to punish the accused.
Ir-rebuttable Presumption (praesumptio iuris et de iure)- Such presumptions cannot be
ruled out by any additional probative evidence or argument. Therefore the presumption
explained comes under the roof of conclusive presumption which cannot be proven
contrary. Eg. A child under the age of seven years is presumed that he is not capable of
committing any crime.
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Few Conditions Where Court May Use the Presumption of Law To Ascertain Some
Facts:
Presumption of Innocence (ei incumbit probatio qui dicit, non qui negat)- According
to this legal maxim, the burden of proof is with the person who declares the facts, not the
person who denies the fact. The presumption of innocence is the legal principle which
means every person should be considered as an innocent person unless it is proven guilty
or until court believes that the person is in charge of acts prohibited under law.
In, Chandra Shekhar v. State of Himachal Pradesh the High Court made great
observations and mentioned that freedom of any individual is the prime objective of the
constitution and such right cannot be dissolved by any means unless provided by the law
itself. It is concluded that unless the person is proved guilty he must be presumed as
innocent.
In, Dataram Singh v. State of Uttar Pradesh & anr., the Supreme Court said that a person
should be presumed and believed to be innocent unless proven guilty.
Birth During Marriage- The Latin maxim ‘pater est quem muptice demonstrat’,
explains a basic assumption that the person who marries women is the father of son/
daughter out of wife. Section 112 of the Indian Evidence Act deals with the legitimacy of
a child born during the marriage. The Section implies that if a child is born during the
continuance of a valid marriage between the couple then it is conclusive proof of that the
child is legitimate and the only ground which is available to either of the parties to prove
the illegitimacy is to prove any access to each other in such a way that their marriage was
not consumed. The main objective of the lawmaker institute is to provide legitimacy to
the child born during a valid marriage and the legislature also explains that such
presumption is not only limited to provide legitimacy to the child but also it is to maintain
the public morality so that the legitimacy of the child cannot be questioned.
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It must be noted that the application used under the Section 112 derives from Section 4 of
the same Act and must be read together to understand the general applicability Section 4
which expresses that wherever there is a doubt of the legitimacy of children born during a
valid marriage the court will presume, fact that the person whom the mother married the
father of that child. Hence to achieve the objective of the legislature the court must
assume it to be a case of ‘conclusive proof’. Just like all laws, no law is absolute
therefore the legitimacy of such a child can only be rebutted the party proves no non-
access to each other or if no marriage was consumed. Which means even the DNA test
other such tests are not capable of disproving the presumption.
In Revanasiddappa v. Mallikarjun the Supreme Court opined that: the objective of the
Constitution is broadly expressed in the Preamble of our Constitution which focuses on
equality, equity, equal opportunity and separate individual’s dignity. The Court while
adjudicating such cases must remember the objectives of the constitution that everybody
has separate and individual dignity of his own, therefore the court has to look into the
matter that illegal or immoral or illegitimate relationships of parent do not hinder the
dignity of the child born out of such relationships. As a child born out of such a
relationship is innocent and has all the rights empowered to him under the Constitution
and the status of the child must be as equal to as of child born out of valid marriage.
In Shanta Ram v. Smt. Dargubai, the Bombay High Court expressed its view that the
child born out of void marriages would be deemed to be legitimate child irrespective of
any nullity, although such child would not acquire the same right of succession as the
original successor will enjoy.
Gautam Kundu v. State of West Bengal the Supreme Court in its observations expresses
that-
• Courts have no authority to direct blood test to challenge the legitimacy of the
child.
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• The husband has only one possibility to get rid of such presumption and for that,
he must satisfy the court by proving no- access to consume the marriage.
• The Court should carefully examine the fact that what will be the consequences if
the blood test comes in favour of a husband who is challenging the legitimacy of the
child. And what if the further consequence has a serious impact on the child’s legitimacy
or makes the mother as an impure/ unchaste woman.
Presumption of Death- The presumption of death is explained under Section 107 and
108 of Indian Evidence Act which refers to a situation when a person has disappeared for
many years, and after such situations the law presumes him to be dead.Section 108 of this
Act describes the amount or the tenure i.e. 7 years, where, there should be no proof of the
existence of the person in the society.
In Balambal v. Kannammal , the court held that the presumption of death could only be
invoked if the death or inexistence of that person is proved when the presumption is
raised in the court and no person can utilise such presumption for generating any type of
death record of the called person.
In T.K Rathnam v. K. Varadarajulu [9], the dissenting opinion of the learned judge
explains in his judgment that the presumption of the existence of the person or death of
the person is always rebuttable. He also observed that the accurate timing of death is not
a matter of presumption rather it is a matter of evidence.
1. Presumption of Sanity- It refers to the mental state of a person facing a criminal
trial. Specifically, the court assumes that every person is sane and is fit to his mental
capacity until someone proves contrary to the assumptions of the court.
2. Presumption of Constitutionality- The presumption of constitutionality refers to a
concept that all statutes, bills, policies, guidelines etc., drafted by different levels of
governments are consistent with the constitutional requirements. The court generally
presumes that the statues are meeting the constitutional requirements’ and are helping in
achieving the constitutional objective. But the person, who interprets these statues in such
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a manner which makes such statues contrary to constitutional requirements, then has to
prove the same.
Presumption of Possession- Section 110 deals with such presumption and explains it as
when a person who is enjoying the possession of anything and he claims himself as the
owner then the court inferences that he is the real owner. These are generally rebuttable
presumptions and do not lose their substantiality until they are proven contrary by the
affecting party.
Mixed Presumptions (Presumption of Fact and law both):

Mixed presumptions is a blend of different concepts explained above in this article. When
the court in its inferences uses such blend consists of different classification of
presumption i.e., Presumption of Facts and Presumption of Law then the presumption is
considered to be a Mixed Presumption. The principles of such presumptions are only
reflected in the English which specifically deals with statute of real property. But in the
Indian legal system, the principles of presumptions are expressed specifically and The
Indian Evidence Act deals with such principles. The Indian Evidence Act has mentioned
few provisions both for the presumption of law and for presumptions of facts. The scope
of this statute just does not end here rather it also has different provisions which deal with
the discretionary power of Indian Court in raising presumption such as¬- Principles of
May Presume, Shall Presume and Conclusive Proof.
B.EXPERT OPINION
Law related to expert evidence is mentioned particularly in S.45 to S.51 of Indian

Evidence Act and restricted to the interpretation of these sections only. The general rule
is that the opinion of persons or the beliefs of the witnesses is not admissible in the Court.
However, in the course of time, the law related to expert evidence has been developed
with the rapid development of technology and with the help of judicial decisions.
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Witnesses are ordinarily to testify the facts in their direct knowledge leaving it to the
judge to form opinions, inferences, or conclusions on the basis of such facts. Witnesses
are ordinarily not to say what they thought or believed to be and therefore their opinions
are irrelevant in a judicial inquiry but in certain special matters requiring special skill in
the subject concerned, opinions of persons having special study, training, or experience
are accepted as evidence.
In cross-examination, the lawyer may try to prove the incompetence of the expert by
putting questions relating to his qualifications, training, and experience. Expert evidence
is covered under s.45-51 of the Indian Evidence Act. S.45 of the Act allows that when the
subject matter of inquiry related to science or art, as to require the course of the previous
habit or study and in regard to which inexperienced persons are unlikely to form a correct
judgment.
It allows an expert to tender evidence on a particular fact in question, and to show to the
court that his findings are unbiased and scientific.S.46 of the Act states that facts, not
otherwise relevant, are relevant if they support or are inconsistent with the opinion of
experts when such opinions are relevant. S.47 of the Indian Evidence Act exclusively
deals with the opinion as to the handwriting. The explanation further elaborates on the
circumstances under which a person is said to have known the disputed handwriting. The
expert opinion is not confined to handwriting alone. The opinions in relation to custo.ms
are also admissible according to S. 48 of Indian Evidence Act.
Opinions of Experts: S.45, Indian Evidence Act, 1872

Principle:
Under Section 45, opinions of experts are relevant to questions of foreign law, science,
art, identity, handwriting, or finger impressions. Expert testimony is admissible on the
principle of necessity. The help of experts is necessary when the question involved is
beyond the range of common experience or common knowledge or where the special
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study of a subject or special training or skill or special experience is called for. No man is
omniscient; in fact, perfection is an attribute of divinity only.
As a general rule, the opinion of a judge, only plays a part and is thus relevant in the
decision of a case, and therefore, the opinion of any person other than the judge about any
issue or relevant fact is irrelevant in deciding the case. The reason behind such a rule is
that if such opinion is made relevant, then that person would be invested with the
character of a judge. Thus, Section 45 Is, therefore, an exception to this general rule, as it
permits the experts' opinion to be relevant in deciding the case.
The reason behind this is that the The judge cannot be expected to be an expert in all the
fields-especially where the subject matters involve technical knowledge as he is not
capable of drawing an inference from the facts which are highly technical. In these
circumstances, he needs the help of an expert- who is supposed to have superior
knowledge or experience in relation to the subject matter.
Scope:
“When the Court has to form an opinion upon a point of foreign law, or of science, or art,
or as to identify handwriting or finger impressions, the opinions upon these points of
persons specially skilled in such foreign law, science or art or in questions as to the
identity of handwriting or finger impressions, are relevant Facts. Such persons are called
experts.”
A Fact is something cognizable by the senses such as sight or hearing, whereas opinion
involves a mental operation. Under Section 3, the opinion of a person will be a fact too.
U/s 60 oral evidence in all cases must be direct if inter alia it refers to an opinion or to
grounds on which that opinion is held. It must be the evidence of the persons who hold
the opinion on those grounds.
A distinction must be drawn, however, between the cases where an opinion may be
admissible u/s 6 to 11 as forming a link in the chain of relevant facts to be proved and
between cases where opinions are admissible under sections 45-51. The former evidence
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is given by the non-expert or the unskilled witness while the latter is given by the expert
witness. Thus, in matters of calling for special knowledge or experience or skill, opinions
of expert witnesses are relevant u/s 45-51.
Prerequisites of expert evidence:

For the sake of consideration of expert testimony, there are two important conditions that
are necessary to be shown:
That the subject is such that expert testimony is essential.
That the witness in question is really an expert.
It must be proved that the witness is competent enough to give the evidence and that the
fact to be proved a point of science or art of which the witness is an expert in, before the
opinion of a person can be admitted in evidence.
If A witness is not proved to be an expert. His opinion will become irrelevant. It must be
proved that the witness is an expert. He must be examined as a witness in the Court and
be subject to cross-examination.
Who is an expert?
Section 45 defines an expert as a person who is especially skilled in a given field. An
expert is a person who has special knowledge and skill in a particular calling to which the
inquiry relates. An expert witness is one who has devoted time and study to a special
branch of learning; this is especially skilled on those points on which he is asked to state
his opinion. His evidence on such points is admissible to enable the tribunal to come to a
satisfactory conclusion.
The section does not refer to any particular attainment, the standard of study or
experience, which would qualify a person to give evidence as an expert. All persons who
practice business or profession which requires them to possess certain knowledge of the
matter in hand are experts, so far as expertness is needed. It is the duty of the judge to
decide whether the skill of any person in the matter on which evidence of his opinion is
offered is sufficient to entitle him to be an expert.
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Opinion:
It is estimation, a belief or assessment, a view held as probable, what one thinks about a
particular question or topic, an assessment short of grounds of proofs, a formal statement
of reasons for the judgment, a formal statement of professional advice.
Competency And Credit of An Expert
Under Section 45 of the Indian Evidence Act, the evidence of an expert can be led on a
question of foreign law, etc., to enable the tribunal to come to a satisfactory conclusion. It
is for the Court to decide the competency or fitness of a witness.
The test is to see if the witness is sufficiently qualified by experience. His credit can be
challenged by cross-examination, or by the contrary evidence of another expert or by
showing that he had expressed a different opinion on the same question previously or in
any of the modes allowed u/s 146 to 153 and S. 155 to impeach the credit of a witness
generally.
The Questions put to an expert are generally hypothetical as they assume something for
the time being. An expert witness must himself come and give evidence in court. His
certificate cannot go in automatically without proof unless permitted by statutory
exceptions like. 509 (medical certificate), or section 510 or the CrPC (report of the
chemical analyst).
When the expert evidence is presented by the prosecution particularly, the expert Must
not assume the role of an advocate. The expert is not supposed to ask or to give his
opinion regarding an issue in the case and he should not become a Part in the functioning
of the Court.
Because even though the expert may state his opinion, the prosecution presents his
opinion in relation to the guilt of the accused when the judge accepts it as it is and
delivers the judgment accordingly such as judgment is not the result of interpretation of
available Evidence, but it violates the mandate of S. 45 of Indian Evidence Act. An
expert opinion according to S.45 is not conclusive proof of the guilt of the accused but
merely a relevant fact for deciding the fact in issue.
The Courts have full powers to derive its own conclusion upon considering the opinion of
the experts, which may be adduced by both sides, cautiously, and upon taking into
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consideration the authorities on the point on which he deposes. The opinion could be
admitted or denied. Whether such evidence could be accepted or how much weight
should be given thereto, lies within the domain and discretion of the Court. The evidence
of an expert should, however, be interpreted as any other evidence.
Thus, it can be concluded that the expert opinion in numerous matters relating to
identification of thumb impression, handwriting, footprints, fixing paternity, time of
death, age of the parties, cause of death, possibility of the weapons used, disease, injury,
sanity and insanity of the parties and other question of science or trade has become the
need of hour and the person having required skill on that subject (called experts), are
allowed to give their opinions in evidence as well as testify to facts/details leading to
their opinion.
The opinion of an expert having a special skill in that particular field is relevant to the
point of admissibility before the Court of law. There may be exceptions to this rule; in
spite of it, when their direct evidence is lacking, then to corroborate the existing
evidence, expert opinion is sought.
Evidentiary Value of Expert Opinion

The Opinion of an expert must be of corroborative nature to the facts and circumstances
of the given case. If the opinion contradicts an unimpeachable eyewitness or
documentary evidence, then it will not have the upper hand over direct evidence. The
Section does not provide for any specific attainment of knowledge or study or experience
for, being called an expert. Experts are admissible as a witness but, they are not to make a
conclusion as it is a judicial function.
In Forest Range officer v. P. Mohammad Ali, it was held that expert opinion is only the
opinion evidence. It does not help the Court in interpretation. The mere opinion of an
expert cannot override the positive evidence of the attesting witness. Expert opinion is
not necessarily binding on the Court.
In Muralila v. State of Madhya Pradesh, it was held by the Supreme Court that there is no
justification for condemning the opinion evidence of an expert to the same class of
evidence as that of an accomplice and insist upon corroboration.
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The court also stated that it would be a grave injustice to base a conviction solely on the
opinion of handwriting expert or any other kind of expert, without substantial
corroboration. An expert deposes and not decides. His duty is to furnish the judge with
the necessary scientific criteria for testing the accuracy of his conclusion so as to enable
the judge to form his own independent judgment by the application of these criteria to the
facts proved in evidence.
Foreign law:
Law Which is not in force in India, is foreign law. In England, it can be proved by
leading expert evidence. In India, it may be proved the same way under section 45 or by
producing of official books and reports on foreign law u/s 38. Foreign law is, therefore, a
question of fact. Hindu law and Mohamedan law are laws of the land, and it is the duty of
the court to interpret the law of the land, and hence, the opinions of experts, however,
learned will be irrelevant.
Science or Art:
The Expression Science or Art includes all subjects on which a course of special study or
experience is necessary for the formation of an opinion. The words science and art are,
therefore, to be broadly construed; the term ‘science’ not being limited to higher sciences
and ‘art’ not being limited to fine arts.
To determine whether a particular matter is of a scientific nature or not, the test to be
applied is whether the subject matter of inquiry is such that inexperienced persons are
unlikely to prove capable of forming a correct judgment without the assistance of experts.
Medical Experts:
The The deposition of a medical officer in the court and the reports produced by him are
considered as evidence. A mere post-mortem report, however, is no evidence since no
facts could be taken from it.
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Value of Medical Evidence:

Expert Evidence should be approached with care and caution. An expert witness,
however, impartial is naturally biased in favor of the party who calls him. He is often
called by one side simply and solely because it has been ascertained that he holds view
favorable to his interest.
Medical evidence isn’t direct, and, therefore, the value of such evidence lies only on the
extent to which it supports and lends weight to the direct evidence of eye-witnesses or
contracts that evidence and removes the possibility that the the injury could take place in
the manner alleged by those witnesses. The opinion of a doctor is entitled to great weight
but maybe discarded on good grounds.
Opinion of Handwriting Expert:

U/s 45 of the Indian Evidence Act an expert can depose to the identity of handwriting
between the questioned document and the document admitted or proved. Disputed
handwriting may be proved either by calling an expert (S.45) or by examining a person
acquainted with the handwriting of the person by whom the a questioned document is
alleged to have been written (S.47) or a comparison of the two u/s 73.
However, the opinion of a handwriting expert is only made admissible; it is not the only
Method of proving to handwrite.
In Fakhruddin v. State of M.P., the SC suggested three modes of proof of document:
firstly, by Direct evidence, secondly by expert’s evidence and thirdly, by the court
coming to a conclusion by comparison.
Finger-impression:
The man’s signature is called an unforgettable signature. This head was added to Expert
evidence’s scope in l899. The study of fingerprints are generally Admitted to constitute a
science. Its two basic hypotheses are that:
Firstly, fingerprints of a person remain the same from birth to death;
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Secondly, there has never yet been found any case where pattern made by one finger
exactly resembled the pattern created by any other finger of the same or any other hand.
Then, the opinion of thumb impression expert is entitled to greater weight-age than that
of a handwriting expert.
Firearms Experts:
Ballistic Expert Evidence: Ballistics is the science that deals with the motion, behavior,
and effects of projectiles, especially bullets, gravity bombs, rockets, or the like; the
science or art of designing and hurling projectiles so as to achieve the desired
performance. Where the opinion is given by the Expert of Ballistics who, after
conducting all the tests, deposes in the Court of law, there is no reason to distrust his
opinion. It can be accepted.
That does not mean, in spite of having direct evidence, one should call for the opinion of
the expert. In every case where a firearm is alleged to have been used by an accused
person, in addition to the direct evidence, the prosecution must lead the evidence of a
ballistic expert, however good the direct evidence may and though, on the record, and
there may be no reason to doubt the said direct evidence.
Where the ballistic expert has not seen the wound himself but has given his opinion based
upon the recordings or photo produced by the doctor who saw or inspected the wound,
and no reliance can be placed on such expert opinion. Therefore, the firearms or ballistic
expert must have concluded the opinion based on his own findings and personal
observation.
Footprints:
Footprint Identification is reliable. Our bare feet contain friction ridge patterns that are
unique to each individual. Hence, the fingerprints and footprints found at the scene of
offense can be used to help identify the offender. They can be used for identifying the
victim as well. The validity of the scientific method used for fingerprinting and the
Courts accept footprinting. In Pritam Singh vs. State of Punjab, disputed footprints in
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blood near a dead body and going towards the bathroom were compared with those of the
accused taken in printer’s ink.
The expert gave evidence giving points of nine similarities in respect of the right foot and
ten in respect of the left foot: And three dissimilarities only in each case and explained
the dissimilarities with reference to the different densities of blood and ink. It was held
that the comparison stood the test well, and under the circumstances, these foot
impressions in blood near the place of the incident were proved to be those of the
accused.
Deoxyribonucleic Analysis (DNA):

Each A person's genetic makeup contains DNA. This differs from individual to
individual. DNA can be obtained through blood, saliva, semen, or hair. This helps in
identifying a person. If a drop of blood or a strand of hair is found at a crime scene, it can
be compared to a person's known DNA to see if there is a match, thereby linking the
person to the crime.
An expert witness can give an opinion about the likelihood that the blood that was found
at the crime scene came from the individual whose sample was compared. The DNA
analysis is also used to establish paternity. Experts believe that the ability to link the
culprit to the crime scene through his DNA prints is unquestionable as unlike
conventional fingerprints that can be surgically altered, DNA is found in every tissue, and
no known chemical intervention can change it.
Lie Detector:
Generally, Courts refuse to admit the results of a polygraph test as evidence. The
polygraph measures a person's unconscious physiological responses, such as breathing,
heart rate, and galvanic skin response while the person is being questioned.
The underlying theory is that stress occurs when a person lies and that this stress is
measured by changes in the person's physiological responses. There is a concern that an
individual can conceal stress when he or she is lying. Polygraph tests are also considered
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unreliable because it is not possible to tell whether the test itself or causes the stress that
is measured during the test by a lie.
Various Rules For Expert Opinion

The first rule is of expert educational background. That means even the doctor is
examined and is subjected to scrutiny and cross-examination. And if his opinion and
observations contained in his statement are supported, then the report can be looked at
otherwise not. So, even the examination of a doctor becomes essential.
The second test is of the exhibits and the illustrations that the expert brings with him or
makes. He should not base his opinion on the basis of memory and abbreviated notes. But
he should have the opinion of such a level that even if there is expert evidence of the
opposite party, then also, he is able to defend his stand.
The third test is of readiness to detail his techniques and procedures. An expert should not
be of skillful nature to outlining the procedures that he has followed. And he should be so
confident that no qualms can say that he has skipped procedures in reaching his own
conclusions.
And the conclusive test is that an Expert is conservative and is cautious. It is a well-
settled principle that the opinion of an Expert should be taken with great caution, and
moreover, the decision should not be based simply on the basis of the opinion of an
Expert, without a substantial corroboration, as it is unsafe otherwise. The opinion of an
Expert by its very nature, weak, and infirm and in itself cannot of itself form the basis for
a conviction and should be taken with great caution.
It is their duty of court not to occupy the role of an expert by themselves and S.C. has
always deprecated the courts to take the role of an expert. But before applying the
opinion of an expert, the court has to see to apply it's own admitted or proved things and
compare them with the disputed ones. And they have to verify the premises of the expert
in one case and value the opinion in the other case.
When the direct evidence is well corroborated by the circumstantial evidence and
conforms to probabilities, and there is no reason why it should not be accepted. The mere
fact that the expert has come to a different conclusion on a particular point would not
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render that part of his story open to doubt , especially when the data on which the expert
has come to that conclusion is insufficient. The data on which the expert weighs must
weigh with the Court, and the opinion of the expert must be judged in the light thereof.
C.ORAL & DOCUMENTARY EVIDENCE
Oral Evidence
Evidence that is restricted to spoken words, gestures or motion is known as Oral

evidence. It is evidence that has been personally heard or seen by the witness. Oral
evidence must always be direct or positive which means it goes straight to establish the
main fact in the issue. Section 3 of Evidence Act 1872 defines evidence as “All
statements which the court permits or requires to be made before it by witnesses, about
matters of fact under inquiry, such statements are called as oral evidence”. The word oral
indicates something spoken or expressed by mouth; so anything which is accepted in the
court about the inquiry and expressed by any witnesses who are called in the trial is
called oral evidence. The importance of Oral evidence has been explained by the Bombay
High Court in one of the cases that “if the oral evidence is proved beyond reasonable
doubt it can also be enough for passing conviction”.
Section 59 and Section 60 deal with Oral evidence.
Section 59 Proof of facts by oral evidence

This section enacts that all facts except that of the contents of a document can be proved
as oral evidence. In a landmark case of Bhima Tima Dhotre v. The pioneer chemical co.
It was held that “Documentary evidence becomes meaningless if the writer has to be
called in every case to give oral evidence of its contents. If that were the position, it
means that, in the ultimate analysis, all evidence must be oral and oral evidence would
virtually be the only kind of evidence recognised by law. This provision would indicate
that to prove the contents of a document utilizing oral evidence would be a violation of
this section.”
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Section 60 Oral evidence must be direct

There are 4 main principles of this section to be satisfied. It refers to a fact that is ‘Seen’
by the witness. This deals with the directness of oral evidence. Oral evidence can only be
given by such witnesses who have seen the crime/ issue themselves.
For example, A is present at the time B was murdered by C. A will be the witness and
give oral evidence.
If it refers to a fact that is ‘heard’ by a witness.
Oral evidence can only be given by such a witness who has heard the crime/ issue
themselves. For example, A has heard the conversation of C over the phone to kill B. A
will be the witness and give oral Evidence.
If it refers to a fact which could be perceived by any other sense or in any other manner,
by a witness.
Oral evidence can only be given by such a witness who has sensed the crime/ issue
themselves. For Example, A finds the behaviour of B very odd around C who is B’s wife.
Later C is found dead.
If it refers to an opinion or to the grounds on which that opinion is held by the witness.
It means that if a person has an opinion on an incident, it should be solely his opinion
based on some grounds then only his testimony will be considered. For Example, If A
thinks C is a wicked person and responsible for the incident, then C’s personal opinion
shall be considered on those grounds.
Case law of Oral Evidence

Amar Singh v.s Chhaju Singh and another
In this case, it was held that a relationship between section 50 and 60 of the Indian
Evidence Act has been established which says that for proving evidence completely, two
things shall be fulfilled firstly, there shall be a presence of relevant facts and those facts
have been presented directly by the person who has either seen them, heard them, etc.
State v. Rajal Anand
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It was held in this case that section 60 of the Indian Evidence Act only includes the word
“direct” hence it excludes hearsay evidence. Any evidence given must be direct and the
hearsay evidence doesn’t have any area under oral evidence since it’s not direct. But the
doctrine of Res-gestae has been observed as an exception to this rule of hearsay and has
explained that any person who has experienced any series of relevant facts, this testimony
by him/her after the incident even if he has not seen the crime being committed will be
accepted.
Documentary evidence
Section 3 of the Indian Evidence Act defines documentary evidence – All documents
presented before the court for inspection, to demonstrate or show a reality are called
documentary evidence. This definition also includes electronic records produced before
the court. Chapter 5 of the Indian Evidence Act deals with documentary evidence.
Section 61 to 90A falls under this chapter. Sections 61 to 73A deals with the general rules
for proving documentary evidence in various cases, specifically Sections 61-66 of the
Act, which gives answers to the questions that how the contents of a document are to be
proved. The content of documentary evidence can be separated into three sections that
are:
• How the record is to be proved to be authentic?
• How far and in what instance oral evidence is excluded by documentary
evidence?
• How can the subject matter of a document be demonstrated?
Sections 74 to 78 deals with public documents and Section 79 to 90-A deals with
presumptions as to documents.
There is an ancient Roman proverb that is “Vox Audita Perit, Littera Scripta Manet”
which means that Spoken Word will Vanish, but the Written Word Remains. Hence the
law of evidence recognises the superiority and credibility of documentary evidence as
against oral evidence. There are two kinds of documentary evidence:
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Public Documents (Section 74)
A public document is a reproduction of an entry contained in some kind of public
register, book or record relating to relevant facts or a certified copy issued by an
authority. Documents such as a birth certificate, marriage certificate, a bill of a public
water utility, an FIR filed before the police station etc are some examples of public
documents.
Private Documents (Section 75)

Documents like letters, agreements, emails, etc. which are exchanged between contesting
parties to a litigation are private documents.
Courts generally lean in favour of accepting public documents more readily than private
documents as the presumption is that the risk of tampering with public documents is far
less. Additionally, public documents have genesis to some reliable source that can be
traced back to for verification if necessary.
a) Primary Evidence (Section 62)
These are the “original documents” that are produced in the court for inspection. There
are 2 special circumstances explained under this section:
• When a document is executed in parts. In such cases, each part is the primary
evidence of the document.
• Where several documents are made by one uniform process such as printing,
lithography or photography, each is the primary evidence for the contents of the rest.
b) Secondary Evidence (Section 63)
• Certified copies.
• Copies made from the original using a mechanical process while ensuring the
accuracy of the copy.
• Copies made from and compared with the original.
• Oral accounts of the contents of a document given by some person who has seen
it.
When the contents of a document are to be verified by oral evidence then such document
becomes secondary evidence.
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Meaning, Role and Functions of Public Prosecutor

With the advancement of technology there came up new devices and modes by which
evidence could be collected. One of these forms was electronic recordings. But since the
Act was enacted in the year 1872, these new developments were not a part of its
definition for evidence. Hence after an amendment to the same, these new forms of
evidence were made admissible in the court.
Section 65 A and B
Section 65 A and B provide the rules about the admissibility of Electronic records.
Section 65 A -This section merely provides that the contents of electronic records are
admissible in the court of law and are to be proved following the provisions of Section
65B.
Section 65 B – This section provides the various conditions to be fulfilled for an
Electronic record to become admissible.
With this amendment, electronic records became admissible as evidence in criminal
cases. But their use was still not permitted in civil cases until the case of Amitabh Bagchi
v. Ena Bagchi where the court allowed recording the statements of the husband through
video conferencing while maintaining the usual safeguards. In this case, the court said
that there was no problem with using an electronic method for recording the statements of
a witness. In the case of Bodala Murali Krishna v. Bodala Prathima the court explicitly
held that during recording evidence through video conferencing the usual safeguards has
to be maintained.
Case law of Section 65

In a landmark case of State (NCT of Delhi) v. Navjot Sindhu the accused was convicted
under various provisions of IPC and POTA. One of the main pieces of evidence produced
in the court against the accused was the call records of the accused’s phone. The court, in
this case, said that Cellular phone records are secondary evidence since the primary
evidence will be the records maintained by the telecom servers. However, the court said
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that although the provision for the requirement of certification under section 65B (4) is
not complied with still it would not be a bar to produce the evidence which is otherwise
admissible under section 63 and 65 of the Indian Evidence Act.
This case became the precedent and due to this in many cases, certification was not done.
At last in the case of Anvar P.V. v. P.K. Basheer the court made certification compulsory
stating that section 65B is a special provision and thus it has to be complied with.
Exclusion of Oral Evidence from Documentary evidence

In India, the “Best Evidence Rule” has been regarded as a fundamental principle on
which evidence law depends, although it is not specifically mentioned anywhere it’s the
basis of section 91 and 92 of the Indian Evidence Act 1872.
Section 91
The provision of S 91 states that when evidence is reduced to a document, then no
evidence is required to be given for proof of those matters except the document itself.
Here documents such as contract, or of a grant, or any other disposition of property, and
in all cases in which any matter is required by law to be reduced to the form of a
document.
D.BURDEN OF PROOF
The Courts require the evidence in order to make a judgment on the facts of any case and
the burden to prove the existence of such fact generally lies on the party who has
provided the evidence. The Law relating to Burden of proof and onus of proof has
enumerated from the Indian Evidence Act, 1872, and its related provisions are covered
under Section 101 to section 114 in chapter VII of the act. Now the question may arise on
whom the Burden of proof lies and who has the onus of proof?
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WHAT IS BURDEN OF PROOF?

Commonly, the Burden of proof is referred to as an obligation to prove one’s assertion.
However, it is nowhere defined in the Evidence Act. It is the fundamental principle in the
criminal jurisprudence that the offence committed by an accused is to be proved by the
prosecution. Further, in a strict sense, the burden of proof is the responsibility to prove a
fact in a case. The term Burden of proof explained under section 101 of the Indian
Evidence Act as “whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that those facts
exist. When a person is bound to prove the existence of any fact, it is said that the burden
of proof lies on that person.” This clearly means the burden of proof is the responsibility
of the party to establish such facts in issue or relevant facts in the case to the required
degree of certainty in order to prove the case. For instance, in case of theft, the
prosecution may allege that all the required conditions for constituting a theft are
fulfilled. All such conditions are fact in issue and there is an obligation to prove their
existence and such obligation is a burden of proof. Further, there is two principles of
Burden of proof the first one is Onus Probandi which means the burden of proof,
generally, the party who alleges an affirmative position has to prove it and the second is
Factum probans means proving a fact.
WHAT IS ONUS OF PROOF?

The onus of proof is not defined anywhere in the Evidence Act, however, the provisions
relating to the same is provided under the Evidence Act and under many judgments given
by the court. Further, there is a general rule in the criminal law that it is the duty of the
prosecution to proof the burden in the case, however, when the accused calls upon to
proof the burden is an exception to the above generality, this we called that onus of proof
falls on accused to proof his case under an exception. The term ‘Onus of Proof’ is the
burden to produce actual evidence that can be shift from one to another party and such
shifting is the continuous process in the evolution of evidence. In the case of Jarnail Sen
v. State of Punjab, if the prosecution fails to adduce the satisfactory evidence to discharge
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the burden, they cannot depend upon the evidence adduced by the accused person in
support of their defence.
If any person claims that the fact exists then the burden of proof lies on that person now it
would create confusion that on whom the burden of proof lies, therefore, Section 102 of
Evidence Act is clear on this part which provides that the burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given on either
side. For instance, A sues B for the 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.
DIFFERENCE BETWEEN BURDEN OF PROOF AND ONUS OF PROOF

The burden of proof lies upon the person who has to prove a fact and the burden remains
constant which never shifts while on other hand onus shifts from one to another.,
Addagada Ragavamma & Anr v. Addagada Chenchaamma & Anr. Supreme Court held
that there is an essential distinction between the burden of proof and onus of proof, the
first one is the burden to prove the main contention of the party requesting the action of
the court, while the second one is the burden to produce actual evidence.
In the case of Anil Rishi vs. Gurbaksh Singh, it was observed that a distinction exists
between a burden of proof and onus of proof. The right to begin follows onus probandi. It
assumes importance in the early stage of a case. The question of onus of proof has greater
force, where the question is which party is to begin.
CONCLUSION
The term burden of proof has two different meaning one is Burden of proof establish a
case and the other burden to adduce evidence which is also known as the onus of proof,
thus we can say the onus is nothing but one part of Burden of proof which is unstable and
has a feature of shifting, in addition, the burden to proof is not same in the civil and
criminal cases, this deals differently in both the cases and the accused can be considered
guilty when the facts have been proved in the court of law.
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E.ESTOPPEL
Introduction Estoppel -
The doctrine of Estoppel is based on the principle of equity. S.115, S.116 and S.117 of
Indian evidence Act deals with the provision doctrine Estoppel. It would be most
inequitable and unjust if one person is allowed to speak contrary to his earlier statement.
As it would cause loss and injury to the person who has acted on such statement.
Object-
To Prevent commission of fraud against another.
Meaning of Estoppel -
“ Estopped means stopped, which means a person is not allowed or permitted to speak
contrary to his earlier statement. "
Definition of Estoppel :
S.115 of the Indian evidence Act defined Estoppel as follows,
" When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither
he nor his representative shall be allowed, in any suit or proceeding between himself and
such person or his representative, to deny the truth of that thing."
Illustration :
'A' intentionally and falsely leads 'B' to believe that certain land belongs to A, and thereby
induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the
ground that, at the time of the sale, he had no title. He must not be allowed to prove his
want of title
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Conditions for Application of Doctrine of Estoppel -

For the application of the doctrine following conditions have to be satisfied -
1) There must be a representation made by one person to another person.
2) The representation must have been made as to fact and not as to law.
3) The representation must be as to an existing fact.
4) The representation must be intended to cause a belief in another.
5) The person to whom the representation is made must have acted upon that belief and
must have suffered a loss.
6 ) Provisions in Indian Evidence Act As to Estoppel -
S.116.Estoppel of tenant and of license of person in possession

No tenant of immovable property of person claiming through such tenant shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at
the beginning of the tenancy, a title to such immovable property; and not person who
came upon any immovable property by the license of the person in possession thereof,
shall be permitted to deny that such person has a title to such possession at the time when
such license was given.
S.116 prevents and disables the tenant from denying the title of the landlord at the
beginning. No tenant in possession shall be permitted to challenge or question the title of
landlord at the time of commencement of Tenancy. And no person who came upon any
immovable property by the licence of the person in possession thereof, shall be permitted
to deny that such person had a title at the time when the licence was given. Thus no
licencee shall be permitted to question or challenge the grant or licence at the time of
granting the licence.
In Kuldeep Singh vs Shrimati Balwant Kaur ,AIR 1991 P & H. 291, when the tenant
become wealthy of the property portion of which was let out to him, under the sale deed
registered prior to one registered in favour of other. denied by him of relationship of
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tenant and landlord between him and subsequent vendor. It was held that tenancy right is
not extinguished.
S.117 Estoppel of acceptor of bill of exchange, bailee or licensee

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority
of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny
that his bailor or licensor had, at the time when the bailment or license commenced,
authority to make such bailment or grant such license.
Explanation (1)
The acceptor of a bill of exchange may deny that the bill was really drawn by the person
by whom it purports to have been drawn.
Explanation (2)
If a bailee delivers the goods bailed to a person other than the bailor, he may prove that
such person had a right to them as against the bailor
Case law -
1) Rajesh Wadhwa vs Dr.(Mrs) Sushma Goyal AIR 1989 Delhi 144.
In this case, the lease deed executed by land lady's father on behalf of the landlady.
Eviction petition by father under power of attorney of the landlady. The tenant was
estopped from taking the plea that the land lady's father was not duly constituted attorney
to file the eviction petition.
2) Ambika Prasad Mohanty Vs Orissa Engineering College and others AIR1989

Orissa 173.
In this case, the plea was against cancellation of admission of student admitted in private
Engineering College after the selection. The cancellation of his admission was on the
ground that he had secured minimum marks in the qualifying examination as prescribed
in college prospectus. The university regulation does not prescribe any minimum marks
for eligibility for admission to the engineering college estopped from canceling the
admission.
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Conclusion-
The principle of estoppel is a rule which prevents a person from taking up the
inconsistent position from what he has pleaded or asserted earlier. The principle Estoppel
is based on equity and good conscience the object of this principle is to prevent for and to
manifest good faith amongst the parties. only parties and no stranger can take advantage
of it. Estoppel is only a rule of law. It does not give rise to a cause of action.
F.PRIVILEGED COMMUNICATIONS
Evidence is an essential part of a trial as it is used to establish any relevant fact and reach
a conclusion. Evidence can be in many forms; witness testimony is one of them. A
witness can testify based on any event they have seen or any communication they have
heard or been a part of.
However, some conversations do not need to be disclosed, even if required during a trial.
Such conversations are known as privileged communications. These communications can
be privileged because of personal or professional reasons.
Communications during marriage
The communications between a husband and a wife have been given the status of
privileged communication under Section 122 of the Evidence Act. It states that a married
person:
• Shall not be compelled to disclose any communication made to them during the
marriage by their spouse or ex-spouse.
• They are not permitted to disclose anything without their spouse’s or ex-spouse’s
consent even if they are willing to.
In the case of S.J Choudhary v. The State, the Court held that compelling spouses to
disclose their private communications is far worse than not ge
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tting any information at all. Therefore, such communications must be privileged.
The idea behind this privilege is that if testimonies are accepted from private
communications between spouses, such testimonies have the power to destroy household
peace among families and create a domestic broil. It will hamper the mutual trust and
confidence between the spouses and weaken the marital bond.
What communication is confidential?

Under this section, it is irrelevant whether the communication was sensitive or
confidential in nature or not. Any conversation or communication between a husband and
wife is privileged no matter what the means of communicating was. The same was held
in the case of Emperor v. Ramachandra.
However, this rule was overruled in the case of Bhalchandra Namdeo Shinde v. the State
of Maharashtra, wherein the Court laid down that Section 122 must not have any broad
interpretations that expand the scope of this section.
The literal rule of interpretation must be followed if the Court has to interpret it and the
scope must be kept limited because it reduces the scope of admissibility of evidence in
the Court, which could be very essential in any case.
The Court further held that communication for the purpose of this Section would refer to
only verbal or written words said by a spouse and not their actions.
The wife, in this case, was called in to give testimony against her husband who was being
tried for allegedly committing a murder. She was allowed to testify regarding his
conduct and actions but not the communication between them.
Also, for the purpose of this Section, the communication must be made only by a spouse
during a marriage for it to be privileged. Any communication made before the marriage
or after its dissolution will not have this privilege.
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In the case of Ram Bharosey v. The State of Uttar Pradesh, the Court laid down that mere
doing of an act in the presence of the spouse cannot be considered as communication
between them. It is not like any domestic act will be considered as communication.
Communication must be conveyed in some way; be it verbal, or non verbal.
In the instant case, the wife has seen her husband coming down from the roof and then
coming out of the bathroom again with changed clothes. The wife testified regarding the
same and the testimony was admissible as the act of the husband was not a
communication.
Is this privilege absolute?

The privilege provided under Section 122 is for the welfare of the marital bond shared
between spouses and for protecting their families.
However, this privilege is not absolute and information can be disclosed if:
• The person who made such communication or their representative gives free
consent; or
• There is a suit between a married couple; or
• One of the spouses has been prosecuted for any crime committed against the
other.
In the case of Nawab Howladar v. Emperor, a widow wanted to act as a witness and
disclose communications made by her deceased husband.
The Court held that in order to be admissible as evidence – the consent for disclosure
must be express and can not be implied. In case there is no representative in interest, it
would be impossible to obtain consent and therefore such communication is entirely
inadmissible.
A widow is not a representative in the interest of her deceased husband, and hence,
cannot give her consent.
Further, the Court clarified that communications between spouses must be confidential
only if it had happened during the marriage and not before marriage or after the
dissolution of marriage.
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Any conversation made before marriage or after its dissolution is not protected by this
provision. For example:
Situation 1
• Ron and Hermoine are soon to be married;
• Ron tells Hermoine how he committed fraud.
• Hermoine’s testimony is admissible before the Court as the communication was
not made during the marriage.
Situation 2
• Harry and Ginny are husband and wife.
• Harry tells Ginny about how he diverted funds to his own account.
• Ginny’s testimony will be inadmissible as the communication was made during
their marriage.
Situation 3
• James and Lily have recently been divorced.
• Lily tells James about how she stole the gold.
• James can testify regarding the same and his testimony will be admissible as the
parties were not married during such communication.
Professional Privileges
Communications made between an attorney and his client is a privileged one, and no one
can compel either the advocate or his client to disclose anything regarding the same.
Section 126 of the Act says that – no barrister, attorney, pleader or vakil is permitted to
disclose any communication made to him by his client during the course and for the
purpose of his employment without the consent of his client.
The privilege under this Section is applicable to anyone who is registered as a legal
practitioner in India and falls under the aforementioned categories, which simply means
an advocate.
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In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that everyone has
the right to a fair trial, and for obtaining such right one might need to seek help from an
attorney.
People have a hard time trusting their advocates and are often scared of sharing the entire
facts with them. They are under constant fear that their advocate might expose them.
With the fear of being exposed in mind, they might not be able to express their problems
properly and get proper legal advice.
To ensure that advocates cannot expose their clients, the conversations between them
have been made privileged under this act.
In order for a conversation to be privileged under this section, the client-attorney
relationship must exist when the communication took place. Any communication made
with a lawyer before actually appointing him is not protected under this Section.
Similar to Spousal Privileges, this privilege is not absolute. The Act itself states that this
privilege does not apply under some conditions. Communication in furtherance of an
illegal purpose could be one example of the same.
In order to understand this better, let’s look at some illustrations.
Situation 1
• Harry, a client, says to Ron, an attorney – “I have murdered a man and the body is
in my freezer. I want your advice on how I should get rid of it”. This communication is
made in furtherance of a criminal purpose, it is not protected from disclosure.
Situation 2
• Hermoine wants to appoint Draco as her lawyer but Vakalatnama (a document
empowering an advocate to represent his client in the Court) has not been signed yet.
• She tells Draco about how Tom was brutally killed by her and her friends.
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• The communication is not protected from disclosure because the client-advocate
relationship does not exist as the Vakalatnama has not been signed yet.
Situation 3
• Harry, a client, says to Ron, an attorney – “I stole a BMW and sold its parts in the
black-market”. This communication is protected from disclosure as the crime is already
done and the client-advocate relationship exists between them.
State Privileges
Affairs of the State
Section 123 of The Indian Evidence Act states that no person is allowed to give any
evidence that may be derived from any unpublished records of any state affairs.
Unless with the permission of the officer-in-charge or the head officer at the concerned
department. Such an officer can give or withhold permissions regarding the same as he
thinks fit.
In the case of Duncan v. Cammell Laird & Co. Ltd, it was held that in case such a
situation arises, the Court is bound to accept the decision of the public-officer without
any questions.
Further, the decision ruling out of such documents is entirely the decision of the Judge. It
is the Court who is in charge of a trial and not the executive.
The phrase “Affairs of State” has not been per se described in this section or any other
provision in this Act. So, it is not very practical for the judiciary to come up with a single
definition of the phrase.
Therefore, the Court must determine whether any documents fall under this category,
depending upon the facts and circumstances of every case. However, it is clear that only
the Court has the power to decide whether any document can be classified as an
‘unpublished document of state affairs’.
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Official Communications
Section 124 of the Evidence Act talks about official communications. It states that a
public officer can not be compelled to disclose any communication made to him in
official confidence if he believes that such disclosure could harm the public interests.
While Section 123 talks about unpublished documents related to affairs of the state,
section 124 restrains the disclosure of all communication made in an official capacity, be
it in writing or not and it is immaterial whether they relate to state affairs or not.
In the case of in re. Mantubhai Mehta, it was held that it is upon the Court to determine
whether a document is a communication made to a public officer in official confidence
and if the document does not deal with any affairs of the State, it may be taken up as
evidence.
While determining whether the communication was made in official confidence or not,
only primary evidence must be used and the same cannot be determined by secondary
evidence, as laid down by the High Court of Madras in Sivasankaram Pillai v. Agali
Narayana Rao.
Secret Informants
Section 125 of the Evidence Act states that a Magistrate or a Police Officer can not be
compelled to reveal as to how they got any information regarding the commission of a
crime.
The section further states that a Revenue Officer can not be compelled to reveal as to how
he got any information regarding the commission of any offence against the public
revenue.
For example:
Situation 1
• Harry is a Police Officer.
• Someone told Harry about riots that are being planned to happen later today.
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• Harry can not be compelled to tell where he received such information.
Situation 2
• Ron is a Revenue Officer.
• Someone told him that Draco is hiding millions of rupees in black money in his
basement.
• Ron can not be compelled to tell as to where he received such information.
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43

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Chanderprabhu Jain College of Higher Studies

CLASS & SECTION: BBA/B.A.LL.B V Semester

Presumption generally means a process of ascertaining few facts on the basis of

Difference between May Presume Shall Presume and Conclusive proof

General Classification of Presumption

Mixed Presumptions (Presumption of Fact and law both):

Law related to expert evidence is mentioned particularly in S.45 to S.51 of Indian

Opinions of Experts: S.45, Indian Evidence Act, 1872

Prerequisites of expert evidence:

Evidentiary Value of Expert Opinion

Value of Medical Evidence:

Opinion of Handwriting Expert:

Deoxyribonucleic Analysis (DNA):

Various Rules For Expert Opinion

C.ORAL & DOCUMENTARY EVIDENCE

Evidence that is restricted to spoken words, gestures or motion is known as Oral

Section 59 Proof of facts by oral evidence

Section 60 Oral evidence must be direct

Case law of Oral Evidence

Private Documents (Section 75)

Meaning, Role and Functions of Public Prosecutor

Case law of Section 65

Exclusion of Oral Evidence from Documentary evidence

WHAT IS BURDEN OF PROOF?

WHAT IS ONUS OF PROOF?

DIFFERENCE BETWEEN BURDEN OF PROOF AND ONUS OF PROOF

Conditions for Application of Doctrine of Estoppel -

S.116.Estoppel of tenant and of license of person in possession

S.117 Estoppel of acceptor of bill of exchange, bailee or licensee

2) Ambika Prasad Mohanty Vs Orissa Engineering College and others AIR1989

What communication is confidential?

Is this privilege absolute?

In order to understand this better, let’s look at some illustrations.

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