EVIDENCE

Introduction;- The word ‘Evidence’ has derived from the Latin expression
‘Evidens Evidere’ which means the state of evidence being plain, apparent, or
notorious. 4. In India, different forms of evidence are presented in court daily and
the area of evidence law is governed by the Indian Evidence Act, 1882. However,
one may wonder what might be the true meaning of evidence and what are the
main types of evidence presented in court. 5. The Evidence act came into force
from 1st September 1872 applies to all over India except the state of Jammu and
Kashmir. The limitation of this act does not end here, as it is not applicable to army
& naval law, disciplinary acts and all the affidavits. 6. It is well known that the
Law of evidence is Procedural Law and it only applies to court proceedings but it
also has a feature in its some part which makes it as Substantial Law like Doctrine
of Estoppel. The law of evidence is the most important branch of adjective law. It
is to legal practice what logic is to all reasoning. Without it, trials might be
infinitely prolonged to the great detriment of the public and the vexation and
expense of suitors. It is by this that the judge separates the wheat from the chaff
among the mass of facts that are brought before him, decides upon their just and
mutual bearing, learns to draw correct inferences from circumstances, and to weigh
the value of direct testimony. The Evidence Act codifies the rules of English law of
evidence with such modification as are rendered necessary by the peculiar
circumstances of this country. Before dealing with “evidence law”, it is important
to discuss about the concept of “evidence” in general since evidence and law of
evidence are two different things. The word “evidence” is originated from a Latin
term “evidentia” which means to show clearly, to make clear to the sight to
discover clearly certain, to ascertain or to prove. Thus, evidence is something,
which serves to prove or disprove the existence or non-existence of an alleged fact.
The party who alleges the existence of a certain fact has to prove its existence and
the party, who denies it, has to disprove its existence or prove its non-existence.
However, all facts traditionally considered, as evidence may not be evidence in the
eyes of evidence law. Rather, evidence is something presented before the court for
the purpose of proving or disproving an issue under question. In other words,
evidence is the means of satisfying the court of the truth or untruth of disputed fact
between the parties in their pleadings.

2.Definition:-
Sec.3 :- According to Section 3 of the Evidence Act 1872, evidence means and
includes: 1. All such statements which the court allows or needs to be presented
before it by the witnesses in connection to matters of fact under inquiry. These
statements are termed as oral evidence. 2. All such documents including any
electronics record, presented before the court for inspection. These documents are
termed as documentary evidence.

3. types of evidence:-

Oral Evidence: - 1. Oral evidence renders to the evidence that is mainly words
spoken by mouth. It is adequate to be proved without the support of any
documentary evidence, provided it has credibility. 2. Section 59 of the Indian
Evidence Act reads as ‘all facts, apart from the contents of a document or
electronic records shall be considered as oral evidence’. When it comes to
recording statements, most of the evidence is given orally hence everything in a
way is oral evidence. 3. Even if a witness cannot communicate orally whatever
they say in writing or any other format to the court will still fall under the category
of oral evidence. The oral evidence of a witness cannot be dismissed on the
grounds of non-production of medical evidence. 4. For example, if the
witness/victim is a person whose throat has been slit and she can point out to the
accused, then her statement would still fall under the category of oral evidence.

Documentary Evidence: 1. Vox Audita Perit, Littera Scripta Manet is an Ancient

Roman Proverb which means “the Spoken word vanishes, the written word
remains”. The law of evidence recognizes the superior credibility of documentary
evidence as against oral evidence. 2. Section 3 of The Indian Evidence Act
provides that documentary evidence means all documents including electronic
records produced for the inspection of the Court; such documents are called
documentary evidence. Documents are divided into two categories, Public
Documents and Private Documents. 3. The production of Documents in Court is
regulated by Civil Procedure Code and the Criminal Procedure Code. The contents
of documents must be proved either by the production of document which is called
Primary Evidence or Secondary Evidence.

Primary Evidence: - 1. Section 62 of Indian Evidence Act provides for the

provision of primary evidence. Primary evidence means the documents itself
produced for the inspection of the Court. Primary evidence is considered to be the
superior class of evidence. 2. Such evidence is an original document that needs to
be submitted before the court for inspection. It is admissible without any prior
notice. Such evidence must be presented before the court before the secondary
evidence. 3. Secondary evidence can be presented only in the absence of primary
evidence by explaining the reason for the absence of such evidence. Primary
evidence, more commonly known as best evidence, is the best available
substantiation of the existence of an object because it is the actual item.

Secondary Evidence: - 1. Section 63 provides for Secondary Evidence means and

includes: Certified copies Copies made from original by a mechanical process and
copies compared with such copies Copies made from or compared with the
original Counterparts of documents against the party who did not execute them
Oral accounts of the contents of document by a person who has seen it. 2. These
are those evidence which are entertained by the court in the absence of the primary
evidences. Therefore, it is known as secondary evidence. If the parties want to
prove a fact by secondary evidence, then they have to satisfied the conditions given
in the section 65 of the Indian Evidence Act. 3. Section 64 of Indian Evidence Act
state that Document must be proved by primary evidence except in the cases
hereinafter mentioned i.e., in Section 65.

Real Evidence/ Personal Evidence: - 1. Real Evidence, often called physical

evidence, consists of material items involved in a case, objects and things the Court
can physically hold and inspect. Examples of real evidence include fingerprints,
blood samples, DNA, a knife, a gun, and other physical objects. 2. Real evidence is
usually admitted because it tends to prove or disprove an issue of fact in a trial.
Real evidence is usually involved in an event central to the case, such as a murder
weapon, clothing of a victim, narcotics or fingerprints. In order to be used at trial,
real evidence must be relevant, material, and authentic. 3. In the matter of Marada
venkateswara rao Vs. Oleti Vana Laxmi AIR 2008 AP 195 , the property in dispute
was self-acquired property of mother. The suit for partition was filed by the
plaintiff (Daughter). The son was defendant. He stated that the plaintiff and her
brother were destitute and not born to his mother. As such they had no right of
inheritance. The Court said that the maternity of the parties was thus disputed. The
Court directed both the parties to undergo DNA test.
Hearsay Evidence: - 1. Hearsay Evidence means the statement of witness not
based on his personal knowledge but on what he heard from others It is not direct
evidence. Evidence that is not direct is what he heard from a third party who is not
himself called as witness. The evidence of such witness is inadmissible to prove
the truth of the fact stated. 2. The reasons why hearsay evidence is not received as
relevant evidence are: (a) The person giving such evidence does not feel any
responsibility. The law requires all evidence to be given under personal
responsibility, i.e., every witness must give his testimony, under such
circumstance, as expose him to all the penalties of falsehood. If the person giving
hearsay evidence is cornered, he has a line of escape by saying “I do not know, but
so and so told me”,

Direct Evidence: - 1. Direct evidence is evidence that will prove the point in fact
without interpretation of circumstances. It is any evidence that can show the court
that something occurred without the need for the judge to make inferences or
assumptions to reach a conclusion. 2. An eyewitness who saw the accused shoot a
victim would be able to provide direct evidence. Similarly, a security camera
showing the accused committing a crime or a statement of confession from the
accused admitting to the crime could also be considered direct evidence. 3. Direct
evidence should not be confused with the concept of direct examination, which is
the initial examination and questioning of a witness at trial by the party who called
that witness.

Circumstantial Evidence or Indirect Evidence: - 1. Circumstantial evidence is

an Evidence that relies on an inference to connect it to a conclusion of fact. such as
a fingerprint at the scene of a crime. Peter Murphy defines Circumstantial
Evidence as “Evidence from which the desired conclusion may be drawn. 2. The
Evidence which requires the court not only to accept the evidence presented but
also draw an inference from it. Supreme Court has given the guidelines for
admissibility of the Circumstantial Evidence in number of cases on of them
mentioned below. 3. The matter of Bodh Raj Vs. State of Jammu and Kashmir as
follows: (a) The Circumstance from where conclusion of guild is to be drawn
ought to be established. The circumstances involved “must” or “should” and not
“may be” established. (b) The facts, therefore, established ought to be as per the
hypothesis of the guild of the accused. (c) Circumstances ought to be conclusive in
nature and tendency. (d) There should be complete sequence of proof so as to not
leave any affordable ground for the conclusion in line with the innocence of the
defendant and should show that the offence must have been committed by the
defendant. 4. Circumstantial Evidence is especially important in civil and criminal
cases where direct evidence is lacking

SALIENT FEATURES

1. Procedural Law: - (a) The Substantive and Procedural Laws are the two
important branches of Law. The terms “Substantive” and “Adjective” seem to have
been invented by Bentham in 1843. (b) Substantive laws define the legal
relationship between different individuals, or between individuals and the State.
Procedural laws define the rules with which substantive laws may be enforced. (c)
In the case of Commissioner of Wealth Tax, Meerut vs. Sharvan Kumar Swarup &
Sons the distinction between Substantive and Procedural Laws was made clear.
“As a General Rule, laws which fix duties, establish rights and responsibilities
among & for persons natural or otherwise are “Substantive laws”, while those
which merely prescribe the manner in which such rights & responsibilities may be
exercised & enforced in a Court are ‘Procedural Laws’.” Thus, Evidence Act is
essentially a procedural law.

2. LEX FORI (a) IEA is the law of the forum (or court) (b) If foreigners come
before an Indian court, they cannot insist upon their law of evidence being
followed. The Indian court knows only the Indian Law of Evidence and will follow
it.

3. Not Exhaustive The Act is not exhaustive. There are many statutes which
supplement the Evidence Act Some of them are- • Crpc • CPC • Bankers book
evidence act • Stamp act • Indian Limitation Act

4. Same for both civil and criminal proceeding: - (a) S.5 IEA provides that
“Evidence may be given in any suit or proceedings…………” Thus it is clear that
evidence act is applicable to both civil & criminal proceedings. (b) However, an
Evidence may be sufficient to prove a claim or right in a civil case but the same
evidence may not be sufficient to prove a charge in a criminal case. (c) Evidence
may be admissible in a civil case and the same evidence may not be admissible in a
criminal case.

ADMISSIBILITY OF EVIDENCE

Section 136 of the Act

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. The judge
would allow the proof only if it is relevant enough to the matters in dispute and if
the judge is satisfied with the reaction of the particular individual. The aspect of
relevance supersedes the aspect of admissibility in the Court proceedings.

Admissibility of Evidence in Courts

 InCivil proceedings- In Civil proceedings, an element of a case is weighed
by the standard or superiority or power of the evidence. However, the
evidence produced is generally government documents such as leases, sale
deeds, rent agreements, gift deeds, etc.

 InCriminal proceedings- In Criminal proceedings, the evidence is used to

prove whether the defendant in a disputed matter is guilty or not beyond a
reasonable doubt. However, in criminal proceedings evidence can only be
used when it is considered admissible and relevant to the facts or issues or
matter or any other factor of dispute. The decision of whether an evidence
is admissible or not is on the Court’s discretion.

Case law:- J. Yashodha v. smtk. Shabha rani

 DYING DECLARATION

INTRODUCTION

Whenever any offence has been committed, there is always the two persons, who
voraciously knew what actually happened i.e. the Accused, who commit the
offence and the other one is Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give
Statements to judge but their story one can not rely on the veracity of statements
which they made to support their stories, as it may be prejudiced or untrue so
generally, the role of Witness becomes crucial to determine the truth.

But there is a condition when the statement made by the person to be treated as
true evidence in spite of the fact that he made the statement in his own favour and
hardly any doubt behind the reason for that statement. That condition is Dying
Declaration.

Dying Declaration is a statement made by the person while he was dying and states
the reason for his death. The statement given by the dying person can be
circumstantial or tells the cause for his death. Hence, the only statement given just
before the death of a person is called Dying Declaration. The person who is
conscious of Compos Mentis and knows that death is about to happen can make a
declaration and state the cause of his death and that statement will be Admissible
and treated as Evidence in the Court. Declaration made by the deceased person can
be in oral, written and by conduct. The word Dying Declaration explain the word
itself.
A dying declaration is a statement made by a person while they are dying,
explaining the reason for their death. This statement can be either indirect or direct,
revealing the cause of their death. Therefore, the only statement given shortly
before a person’s death is called a dying declaration.

If a person is mentally sound and aware that they are about to die, they can make a
declaration stating the cause of their death. This statement will be accepted as
evidence in a court of law. The declaration can be made orally, in writing, or
through actions. The term “dying declaration” is self-explanatory, as it describes
the statement given by someone who is dying.

2. DEFINITION

SEC.32(1):- IN Section 32 (1) of Indian Evidence Act defines when the statement
is made by the person as the cause of his death, or as any of the circumstances of
the transaction which resulted in his loss of life, in cases in which the cause of that
person’s death comes into question. Such statements made by the person are
relevant whether the person who made them was alive or was not, at the time when
they were made, under the expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into question.

3.TYPE OF D.D

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the
offence of murder before the court of session. That he had murdered one DULARI,
a prostitute by cutting her throat through RAZOR. It seems that one-morning dulari
with her throat cut was taken to the police station and from there to the dispensary.
She was alive till the morning. The post-mortem report shows that the windpipe
and the anterior wall of the gullet had been cut through. When Dulari was taken to
the police station, she was questioned by her mother in the presence of a sub-
inspector. She was again questioned by the sub-inspector, deputy magistrate and
subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs.
Magistrate asked dulari, as who had wounded her, but due to the injured condition
dulari was unable to speak. After that, The magistrate mentioned several names
one by one and asked if they had wounded her. Dulari moves her hand forward and
backwards and made negative and affirmative signs. Subsequently, the magistrate
asked whether Abdullah had wounded her, for that dulari waved her hand made the
sign in the affirmative, the magistrate recorded the statement. After that question
was put to her that if she been wounded with a knife or sword. In this regard, dulari
makes a negative sign, again magistrate asked her if she had been wounded with
the RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same
was accepted as evidence to prosecute Abdullah.

In this way, the magistrate records the dying declaration of Dulari and the same
was accepted as evidence to prosecute Abdullah. Similarly, in the recent
“Nirbhaya’s Rape Case,” Dying Declaration was made by her in the form of sign
and gesture.

2. Oral and written: - When the person gives the name of the murderer to a
person present and written by any of them then it is a relevant dying declaration.
However, people may dispose of the name of the mugger orally. An oral dying
declaration is admissible in evidence as an exception to the general rule of
evidence that hereby evidence is no evidence in the eyes of law.

In the case of Amar Singh v. State Of Rajasthan The deceased’s mother and
brother gave the evidence, that the deceased made the statement month prior to the
incident of suicide by her that the appellant, her husband used to taunt the deceased
saying that she had come from a hunger house and the appellant himself go to the
house of deceased and asked for 10.000/-. It was held that the dying declaration
and appellant were convicted under section 304B and 498A of IPC.

3. Incomplete Dying Declaration: - Dying declaration made by the person, which

is found to be incomplete can not be admissible as evidence. When the condition of
the deceased is grave and at his own request a statement made by him in the
presence of the doctor was later taken by the police but could not be completed as
the deceased fell into a coma from which he could not recover. It was held that the
dying declaration was not admissible in court as the declaration appears to be
incomplete on the face of it. In the case of Muniappan v. State of Madras The
deceased made the dying declaration as follows: “Sir, This day 24th January 1960
in the afternoon at 12:30 Muniappan son kola goundan of kamnav-kurechi stabbed
me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after
he was dead. This declaration against Muniappan was complete and admissible.

4. Question- Answer form:- (a) Dying Declaration can be made in the form of
Question-answer. the deceased, in some of her statement, did not state the actual
part played by the appellant. She merely answered the questions put to her.
(b) The court held that when questions are put differently than the answer will also
appear to be different. At first glance, the detailed description of the offence may
appear to be missing but the statement of the deceased construed reasonably.

(c) However, when the magistrate records the dying declaration, it must be
preferred to be recorded in the form of a question-answer must be preferred. If
there is nothing to doubt that the person who records the statement made by the
deceased exact word to word, would not make any difference merely because the
same was not recorded in the form of question and answer.

5.Reason for admitting dying declarations in evidence

A dying declaration is admitted in evidence that is truly based on the principle of

“Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in
his mouth). Dying declaration does not require any corroboration as long as it
creates confidence in the mind of the Court and free from any form of tutoring. In
case Uka Ram v. State of Rajasthan[5]. Court held that dying declaration is
admitted upon consideration is made in extremity; when the maker of the statement
is at his bed end, every hope of this world is gone; and every motive of falsehood
is silenced and mind induced to speak only truth. Indian law recognises this fact
that “a dying man seldom lies”.

6.Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person
who is recording the dying declaration must have some nexus with the deceased
either circumstantially or by some fact. However, the doctor or police officer hold
more value as compared to the normal person. As far as the dying declaration is
concerned the magistrate entrusted to record the dying declaration, as the statement
recorded by him is considered more evidential rather than statement recorded by
the doctor, police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the
person dies of burn injuries. Court hold the opinion that “The law on the issue can
be summarized to the effect that law does not give any direction that who can
record a dying declaration but just provided that magistrate is above all the person
in subject for recording the statement, nor is there any definite form, format or
procedure for the same,” said a bench of Justices B S Chauhan and Dipak Misra
while quashing the high court order in the case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in
a fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police

officer, but if it is recorded by the judicial magistrate that it will have more
credential value and reliability.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some circumstances

where the judicial magistrate, police officer and doctor is not available, the Court
can not reject the dying solely statement made before the normal person. But the
person who records the statement must show that the deceased was in a fit state of
mind and conscious while making the statement no matter if the statement is not
recorded by Judicial Magistrate, doctor and police officer. The statement is
admissible in a court of law.
Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated
condition of the declarant, the statement can be recorded by the doctor or by a
police officer. But one condition must be coupled with it that while recording the
statement there shall one or two-person present there as a witness otherwise the
Court may find the statement to be suspicious. Moreover, the statement record by
the doctor, later endorses that the declarant was not in a stable condition and his
statement would not be considered as evidence, rectify by the witness that the
deceased was in a fit state of mind and conscious to make the declaration. It was
held in the case of N. Ram v. State[11] that the medical opinion can not wipe out
the direct testimony of an eye witness which states that the deceased was in a fit
mental condition and able to make a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has deemed to
be considered as reliable and attracts the evidentiary value as he presumed to know
how the dying declaration should be recorded and he is a neutral person. Moreover,
the magistrate has empowered to record the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to
record the statement of the dying person, no matter whether he has jurisdiction
over that case or not, and in case where the statement recorded by the magistrate
who has no jurisdiction in that case subsection (6) will apply. Here the word
“statement” does not confine to only the statement by the deceased and witness but
also include a statement of the accused, in order to satisfy himself, but the accused
statement will not amount to a confession.
Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall
have the power to record the dying statement made by the dying person, whether
the magistrate has jurisdiction in that particular case or not, he will be able to
record the state provided under this chapter or by any other law for the time being
enforced, or at the time before the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who record
the statement should tell the accused that he has to made only statement which
shall not be amount to confession, but if he did so, then the confession can be used
against him for the purpose of conviction. This is the sine qua non for recording
confession. The other important requirement is that the Magistrate must raised
questions from the wrongdoer to satisfy himself that the confession made by the
accused was voluntary so as to enable him to give the requisite certificate under
subsection(4) of this chapter. The judicial magistrate here tell the accused that he is
not bound to make a confession, but he did not ask the question from the accused
in order to satisfy in question, whether the statement made by the accused is
voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the
Magistrate did not clear the rule that the statement made by the accused should not
be amount to confession, if he does so then it will be used as evidence against him,
can not be considered. The Magistrate must satisfy himself that the statement made
by the accused voluntary, no pressure or force was used on the accused while
making the confession. Any mark of the person of the accused to vitiate the
voluntary character of the confession. When was held not only inadmissible under
the section but it could not be used under the other provision of Indian Evidence
Act such as sections 21 & 29.
7.CONDITION FOR ADMISSION OF D.D

1. The declarant must have died Dying declaration to be admissible, the

declarant must be dead. If the declarant survives, it is not admissible under
Sec.32(1) although it is admissible under Sec. 157 (Corroborative evidence).
Maqsoodan vs. State of U.P, AIR 1983 SC 126: In this case, survival of the
declarant was held to be admissible under Section 157 for corroborating his
testimony in the court.

Ram Prasad vs. State of Maharashtra, AIR 1999 SC 1969: In this case, dying
declaration was recorded by the Judicial Magistrate. But, the declarant survived. It
was held that the statement/declaration could not be used under Section 32, but it
could be used to corroborate his evidence under Section 157 of the Evidence Act.
The term ‘death’ under Section 32 includes both suicidal and homicidal deaths
(Kans Raj v. State of Punjab, AIR 2000 SC 2324, Sudhakar vs. State of
Maharashtra, AIR 2000 SC 2602).

2. Injuries must have caused the death The person (declarant) must have been
dead as a consequence of the injuries inflicted, but not as a consequence of some
other reason or ailment. Moti Singh vs. State of U.P, AIR 1964 SC 900: It was held
in this case that, if the person survives, his statement cannot be said to be the
statement as to cause of his death

3. Statement as to cause of death or circumstances leading to death The

statement must relate to the cause of his death or circumstances of the case
resulting in his death. Statements which relate to cause or circumstances not
responsible for his death are not admissible as dying declaration under the Clause
(1) of Section 32.
4. Cause of death must be in question The statement as to cause of the death of
the deceased person will be relevant only if the cause of his death is in question.

5. The declarant must be in fit condition to make the declaration Dying

declaration to be admissible under Section 32(1), the person making the statement
must be in a fit condition to make the statement.

6. The statement must be complete To be admissible in evidence, dying

declaration must be complete. This is a matter of common sense because the
deceased might have added something in contradiction to things already stated. It
is, therefore, necessary that incomplete declaration should not be received in
evidence.

7. Competence of declarant The admissibility of statement under Section 2 is

based on the assumption that the maker of the statement was competent to take
oath as a witness.

7. Evidentiary Value of Dying Declaration in India

A dying declaration carries significant weight in legal proceedings and can serve as
the sole basis for a conviction without the need for additional corroborating
evidence. It is considered a piece of evidence and can be relied upon if found to be
genuine and reliable. However, the court must be satisfied that the dying
declaration instils complete confidence in its accuracy.

The court must ensure that the statement of the deceased was not influenced,
coached, or a result of imagination. It must also ascertain that the deceased was of
sound mind and had a clear opportunity to observe and identify the assailants.
Once the court is convinced that the statement is truthful and voluntary, it can base
a conviction solely on the dying declaration without requiring further
corroboration. Hence, this adds up an evidentiary value of a dying declaration.

The evidentiary value of the dying declaration will vary according to the
circumstances of a particular case in which it is made. While considering the value
of dying declaration, the courts take into account the whole, but not a part of it. It
cannot be allowed as sole basis for conviction for the following reasons. 1. The
declarant is not subject to cross-examination.

2. The declarant may be in a state of confusion.

3. The declarant may take last opportunity to take revenge against his enemies.

The declaration must be as to the cause of death or as to any of the circumstances

that resulted in death.

CASE LAW Case Analysis of Pakala Narayana Swami Vs. King Emperor
The appellant was charged with the offense of murder. The body of the deceased
which was cut was recovered from a trunk in a railway compartment on March 23,
1937. One of the items of evidence against him adduced by the prosecution was a
statement by the deceased to his wife on March 20, 1937, that he received a letter
asking him to go to the house of the accused of receiving money due to him and
that he was so going. On the question of its admissibility in evidence, the Privy
Council- observed "The statement was rightly admitted under Section 32(1) of the
Evidence Act.

For admissibility under the section, the statement may be made before the cause of
death has arisen, or before the deceased has any reason to anticipate being killed.
The circumstances must be circumstances of the transaction general expressions
indicating fear/or suspicion whether of an individual or/otherwise and not directly
related to the occasion of the death will not be admissible.

But statements made by the deceased that he was proceeding to the spot where he
was in fact killed, or as to his reason for so proceeding, or that he was going to
meet a particular person, or that he had been invited by such person to meet him
would each of them be circumstances of the transaction, and would be so whether
the person was unknown, or was not the person accused.

Such a statement might indeed be exculpatory of the person accused.

Circumstances of the transaction is a phrase that no doubt conveys some limitation.
It is not as broad as the analogous use in circumstantial evidence which includes
evidence of all relevant facts.

It is one the other hand narrower than 'res gestae'. Circumstances must have some
proximate relation to the actual occurrence though as for instance, in a case of
prolonged poisoning they may be related to dates at considerable distance from the
date of the actual fatal dose. It will be observed that circumstances are of the
transaction which resulted in the death of the declarant.

It is not necessary that there should be a known transaction other than that the
death of the declarant has ultimately been caused, for the condition of the
admissibility of the evidence is that the cause of (the declarant's death comes into
question. In the present case, the cause of the deceased's death comes into question.
The transaction is in which the deceased was murdered on March 21 or 22 and his
body was) found in a trunk proved to be bought on behalf of the accused.
The statement made by the deceased on March 20 or 21 that he was setting out to
the place where the accused lived, and to meet a person, the wife of the: accused,
who lived in the accused's house, appears clearly to be a statement as to some of
the circumstances of the transaction which resulted in his death.

8. CAN CONVICTION BE SOLELY BASED ON D.D

The Supreme Court of India in Kushal Rao vs The State of Bombay established the
following principles regarding dying declaration.:

1. There is no absolute rule of law that states that a dying statement cannot
be used as the sole ground for conviction unless it is backed up by other
proof. A real and voluntary declaration that is free from compulsion
needs no corroboration.

2. Each case must be determined after seeing the fact and circumstances of
the case in which the dying declaration was required.

3. A dying declaration is a not weaker evidence than any other form of

evidence.

4. A dying declaration, like any other piece of evidence, must be assessed in

view of the surrounding circumstances and in accordance with the rules
regulating the weight of evidence.

5. A dying declaration recorded in an appropriate manner, that is, in a

question-and-answer method, by a competent magistrate and as far as
possible in the words of the declarant, will stand on the higher footing
 rather than a dying declaration which depends on oral testimony, which is
susceptible to many of the flaws in human memory and character.

6. To test the reliability of a declarant the court must keep in mind the
circumstances like the possibility of the dead man for observation.
ADMISSION

INTRODUCTION:- Admission plays a very important part in judicial

proceedings. If one party to a suit or any other proceeding proves that the other
party has admitted his case, the work of the court becomes easier.
An Admission may be proved by or on behalf of the person making it under
certain exceptional circumstances. The Evidence Act, Sections 17 to 23 deals with
the Admissions. According to Sections 17 of IEA, admission under Evidence Act
refers to the voluntary acknowledgment of the existence or truth of a specific fact.
It encompasses statements, whether oral, written, or contained in electronic form,
that imply an inference about a fact in issue or a relevant fact.

The Act outlines the parameters of what constitutes an admission. Focusing on

whether it may be oral or documentary, who can make such admissions under
Evidence Act, as specified in Section 18 of the Act, and the circumstances under
which these admissions are relevant, detailed in Sections 18-30.

Admission, as demonstrated in legal cases like Banarasi Das v. Kanshi Ram &
Others, function as prima facie evidence and can potentially create an estoppel
effect. It’s essential to note that their evidentiary strength is relatively weak, and
the court may reject them if proven otherwise.

Correspondingly, in the case of Bishwanath Prasad and Others v. Dwarka Prasad

(Dead) and Others, the Supreme Court clarified that admissions, while not serving
as conclusive proof of the matter admitted, hold substantive value in themselves.
Importantly, the admissibility of admissions is not contingent upon the party
making them appearing as a witness; even if the party is not called as a witness,
admissions remain admissible as evidence.

Admissions are defined under Section 17 to 31 under the Indian Evidence

Act ,1872. Sections 17 to 23 deal with general admission whereas Sections 24 to
31 deal with Confession. A Confession is an admission of guilt by the accused in a
criminal case which is acceptable and valid in evidence.[1]
Admission in evidence act can either be self-harming or self-serving (serve own
interest). Self-harming evidence are acceptable evidence in a court of law.
Admission can be done by silence too.

DEFINITION:- Section 17- An Admission is a statement, oral or documentary

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

TYPE OF ADMISSION

1. Formal or Judicial Admission: These admissions occur when a party makes

statements during the official proceedings of a case, such as statements given to a
magistrate. They are recorded as part of the legal process.

2.Informal and Casual Admission: These admissions are of an informal nature

and are not officially recorded in the case documents. For instance, if a murder
suspect, while receiving medical treatment, informs the doctor about the cause of
their injuries, this informal statement is considered an admission.

3.Admission by Conduct: This type of admission arises from a person’s behavior

or actions. For example, if an individual flees the scene during a casual police
interrogation, their conduct is viewed as an admission by conduct.

WHO CAN MAKE ADMISSION:- Section 18 of the Indian Evidence Act lays
down the rules regarding as to who can make an admission. According to this
section, there are five classes of persons whose statements will be considered as an
admission in a suit. These five classes are: –

Party to the proceedings

The statements made by the parties to a proceeding as against himself are
considered as relevant admission in Evidence Act. Under this Section, the term
‘parties’ not only means the persons who appear on the record in that capacity but
also includes those persons who are parties to a suit without appearing. Persons
who have an interest in the subject matter of the suit but are not parties on the
record are also considered as parties in the proceedings and their statements have
the same relevancy as the parties on record. Similarly, a person who although
appears as a party on the record but has no real interest in the subject matter will
not have any effect through his admission against the person he is appearing on
behalf of.
By the agent of such party who is authorised
The statements made by an agent in a suit would be admissible against the person
he is representing. The statements made by an agent are, however, binding only
when they are made during the continuance of his agency. So, when the agent’s
right to interference has come to an end any statement made by him after that will
not have any effect on the principal.

Suitor is a representative character, when he held that character

When a person such as trustees, administrators, executors etc., sue or are sued in a
representative character, any statement made by them will only be admissible if
made in their representative character. Any declarations made by them in their
personal capacity will not be taken as an admission in Evidence Act.

Party having pecuniary or proprietary interests

In any such suit where several persons are interested jointly in the subject matter
of the suit, then any admission made by anyone of the parties will be taken as an
admission against himself as well as the other parties jointly interested in the
subject matter. It does not matter whether the persons jointly interested in the
subject matter are suing or being sued jointly or separately. However, for this rule
to apply there has to be a prima facie foundation showing that joint interest exists
between the parties suing or being sued.
Predecessor in the title (who was in the title before me)
Any statement made by the predecessor-in-title from who the party to the suit
derives his title will be admissible. But this will only be held as an admission in
Evidence Act if the predecessor-in-title made the declaration while still holding the
title and not after the title has been transferred. The statement made by the former
owner will not be considered as an admission as against the parties if it was made
title has been passed.

Section 19- Person Whose Position or Liability in Question Can Make

Admissions.
As general rule statements made by a third party to a suit are not considered as
admissions but Section 19 is an exception to this rule. It refers to the statements
made by a third party as against himself when it affects his position or liability and
when such liability or position is relevant to be proved as against the party to the
suit. The statements made by the third party, in this case, would only be relevant if
the liability or position of that third party still exists at the time of the suit.
 Section 20- Admissions by persons expressly referred to by the party to suit
This section refers to when a party to the suit refers to a third party regarding some
information a matter of dispute. Under this section, any statement made by such
party will be taken as an admission against the person who referred to the third
party. This Section is another exception to the general rule that statements made by
strangers are not considered as an admission.

Admission means conceding something against the person making the admission.
The sections deal only with admissions oral and written. Admissions by conduct
are not covered by the sections. The relevancy of such admissions by conduct
depends upon Section 8 and its Explanations.

Evidentiary Value of Admission -

An admission is the best evidence against the party making the same
unless it is untrue and made under the circumstances, which does not make it
binding on him. Admission by a party is substantive evidence of the facts admitted
by him. Admissions duly proved are admissible evidence irrespective of whether
the party making the admission appeared in the Witness box or not. In fact,
Admission is best substantive evidence that an opposite party can rely upon it. The
evidentiary value of admission only by government is merely relevant and not
conclusive, unless the Party to whom they are made has acted upon and thus
altered his detriment.

Admissibility of evidence in the Courts

Admissibility of evidence in the criminal proceeding

In criminal proceedings, evidence can only be produced when it is considered admissible and
relevant to the facts or issues. Here, the evidence is used to prove whether the defendant in a
disputed matter is guilty or not beyond a reasonable doubt. The general rule is that the
burden of proof always lies with the prosecution to prove the guilt of the defendant. The
substantive law in the criminal proceedings defines what the appellant has to prove to convict
the defendant. In criminal proceedings, the prosecution must prove all the necessary elements
of the offence laid out in the Criminal Code against the defendant.
Admissibility of evidence in the civil proceeding

In civil proceedings, the evidence is generally produced in the form of government

documents such as leases, sale deeds, rent agreements, gift deeds, etc. The general rule in a
civil proceeding is that the burden of proof lies on “the person who claims must prove”. In a
civil trial, the legal burden of proving a fact lies on the party who claims that fact. If the
defendant denies the allegations and finds a positive default such as “counterclaim”, then in
that case the burden of proof shifts towards the defendant. However, at first, the burden of
proof lies on the plaintiff in civil proceedings, after that it will shift to the defendant.

Admissions When Irrelevant [Ss.22, 22-A, 23]

When Oral Admissions as to Contents of Documents Are Relevant:

According to Section 22, when there is a document then nobody can be allowed to
prove the content of that document. However, there are some exceptions to this
rule: –

a. In the case the party is entitled to give secondary evidence of the contents of
the documents then he can rely on oral Admission.
b. In the case where the original document is lost or if it is in the possession of
the opposition party, then also the party may make oral Admission.
In the context of a gift deed, one of the donors pleaded that he was a minor at the
time of the execution of the deed. His statement in the deed was that he was of 22
years. He was held to be bound by his statement in the deed. It was his burden to
show that he was below the majority at that time. [9]

The document must be proved by the document itself. But when the document is
not available, then secondary evidence may be given for it under Section 65.
Section 59 says all facts except the contents of documents or electronic records
may be proved by oral evidence.

Section 63(5) says oral accounts of the contents of a document given by some
person who has seen it.

When Oral Admissions As To Contents Of Electronic Records Are Relevant

Section 22A Inserted by IT Act 2000. When the genuineness of electronic records
produced is in question, then only oral admissions as to the contents of electronic
records are relevant.
When Admission in Civil Cases Is Relevant

Section 23 –Where there is an agreement to the fact either express or implied that
evidence of admission will not be given, then it will not be produced before the
court. It is just to encourage the parties to settle their matter of dispute with full
freedom where they can diverse the things.

It is only applicable to civil cases and does not extend to criminal cases. According
to this Section, an Admission in a civil case will not be relevant if it is declared
that upon the express condition made by the parties to the suit that the Admission
should not be given or under some circumstances, the court infers that the parties
have made an agreement that Admissions will not be given.

Section 21 lays down that when an Admission is given without prejudice then such
Admission will not be considered as relevant.

CASE LAW:- Bishwanath Prasad And Others Vs Dwarka Prasad (Dead) And
Others

The Supreme Court held that:

Admissions are not the conclusive proof of the matter admitted but are by
themselves substantive in nature.

It does not matter whether party is making them appeared as witness or not
irrespective of the fact that admission which is duly proved is admissible.

Even when the party is not called as witness admission will be admissible.
 CONFESSION

1.INTRODUCTION:- Confession is the statement of the person accused of any

offence accepting or draw inference of the guilt for the charged he has been
convicted. Confession has been defined from section 24 to 30 of Indian Evidence
Act, 1872. Confession is a part of admission means all confession is an admission
but all admission is not a confession. Confession is used in criminal cases because
in confession accused is admitting his guilt directly or draw some inferences of the
guilt thatswhy confession can be made by the accused only no other person can
make a confession on behalf of other person. The confession should be done
voluntarily any confession caused by threat or by fraud would not amount to
confession In every criminal trial, confession plays a major role in deciding the
fate of the accused. When a person is arrested the police try to extract information
from the accused by using various methods which encompasses third degree
torture as well. The accused out of excruciating pain and torture will either speak
the truth or will take the guilt on his head. When the person takes the guilt on his
head, the police considering it as confession record it.

But in reality such an admission will not amount to confession because here it was
not an admission of the guilt of the crime for the said person never committed. The
excruciating pain forced him to admit. The word confession has not been defined
in the Indian Evidence Act, 1872. Confession has been discussed under sections 24
to 30 of the Indian Evidence Act.

In Aghanoo Nagesia vs the State of Bihar (1965), the Supreme Court held that
confession is a species of admission.
In the State of UP vs Deoman Upadhyaya (1961), Justice Shah referred to
confession as a statement made by a person stating or suggesting the inference that
he has committed a crime.

2.DEFINITION:-Mr. Justice Stephen in his Digest of the law of Evidence

defines confession as “confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that
crime.”
According to Black's Law Dictionary, confession is defined as "A voluntary
statement made by a person charged with the commission of a crime or
misdemeanor, communicated to another person, wherein he acknowledges himself
to be guilty of the offense charged, and discloses the circumstances of the act or
the share and participation which he had in it."

3.TYPE OF CONFESSION

Judicial confession

Section 80 of the Indian Evidence Act give the evidentiary value to the judicial
confession and expresses that a confession made in the presence of magistrate or in
the court which is recorded by the magistrate as prescribed by the law then such
confession shall be presumed to be true and genuine confession and the accused
can be tried with the offence. Section 164 of CrPC empowers magistrate to record
confession so it is not necessary that which magistrate recorded the confession
unless he is restricted to record the confession. Hence, for raising the presumption
the identity of the accused must be clear and proved in the confession to persecute
him for the guilt of the offence he committed.

Extra-judicial confession

Though extra-judicial confession don’t have much evidentiary value as compared

to judicial confession but in the case of a written confession the writing of the
accused itself is one of the best evidence available to the court to charge the
accused of the offence. And if the confession is not available in the form of written
statements then the court may test the oral confession of the accused which was
made to any other person. On the court’s discretion and satisfaction, the statements
of the accused to any other person may be admissible and thereafter the accused
may be prosecuted for the offence on which he is charged.

Retracted confession

Retracted confession has circumstantial evidentiary that the cognizance of any

offence the police investigate the case on the basis of their investigation they
examine the witnesses, fact in issues, accused and many more things. If in the
opinion of investigation, police found that the accused is guilty of a particular
offence then they submit a report to the concerned magistrate or the court. During
the court proceeding, the magistrate has to take pieces of evidence and examines
the accused and if on the behalf of investigation report the courts find someone
guilty of any particular offence then the court shall direct the accused to confess
the statements again. When the trial begins the magistrate has to ask the accused
that if he is guilty of an offence or not and if the accused don’t plead guilty then he
may retract all the confession made to the police during the police investigation
and must substantiate his retracted confession. So the value of retracted evidence
has circumstantial evidentiary value, therefore, the court has to make any inference
very cautiously.

Confession by co-accused

The Supreme Court in the case of Pancho v. State of Haryana [7], held that the
confessions made by the co-accused do not have much evidentiary value and they
cannot be considered as a substantive piece of evidence. Therefore the confession
made by the co-accused can only be used to corroborate the conclusion drawn out
by other probative evidence.

4.EVIDENTAIRY VALUE OF CONFESSION

5.PROVISION RELATED TO CONFESSION

5.1 Section 24 Evidence Act – Confession by Inducement, Threat or Promise

According to section 24 of the Indian Evidence Act, a confession shall be

irrelevant in a criminal proceeding if:
 The confession has been obtained by any inducement, threat or promise.
 Such inducement, threat or promise was given from a person in authority.
 Such inducement, threat or promise, was about the charge against the accused
person.
 Such inducement, threat or promise must, in the opinion of the court, be
sufficient to give the accused person grounds for supposing that by making it, he
would gain any advantage or avoid any evil of a temporal nature about the
proceedings against him.

Section 28 of the Indian Evidence Act says that confession shall be relevant when
the impression of such inducement, threat or promise is removed.

5.2 Section 25 Evidence Act – Confession to Police Officers Not to be Proved

According to section 25 of the Indian Evidence Act, no confession made to the

police officer shall be proved against the person who made it.

The purpose behind this restriction is:

 To protect the accused person from third-degree treatment.

 To ensure a proper and fair investigation.
 To bring the actual culprit to the books.
 However, if a person confesses in the presence of someone other than a police
officer, it is not rendered irrelevant solely due to the presence of a policeman.
This section only applies to confessional statements, whether orally or in a First
Information Report (FIR). Other admissions can still be presented as evidence to
establish facts or facts.
5.3 Section 26 Evidence Act – Confession by Accused When in Custody

According to section 26 of the Indian Evidence Act, a confession by the accused

while in police custody cannot be proved against him.

Exception to Section 26 of the Evidence Act.

If such confession while in the custody of police was made in the immediate
presence of a Magistrate, it shall be proved as against such person.

Section 26 is similar to the preceding section and asserts that no confession made
by a person in police custody is admissible as evidence. This provision recognises
that false confessions may be obtained under duress or fear, not limited to
interactions with police officers alone.

Police custody encompasses not only confinement within the walls of a police
station but also situations where the police exercise control over an individual in
their home, car or public places. The only exception to this rule is when the person
makes a confession in the presence of a Magistrate, in which case it becomes
admissible.

6.EXCEPTION TO CONFESSION TO POLICE OFFICE

6.1 Section 27 Evidence Act – Information Received From Accused That May
be Proved

Section 27 of the Indian Evidence Act is considered an exception to sections 25

and 26 as it enables certain statements made in police custody to be proved.

Conditions of Section 27

Following are the conditions for a confession to be proved under section 27 of the
Indian Evidence Act
 There must be the discovery of a fact in consequence of information received
from a person accused of any offence.
 The accused must be in the custody of a police officer.
 Such information should relate distinctly to the fact discovered.

For instance, the statement given by the person was “I will produce a sword
concealed in the courtyard of my house with which I stabbed A”. And the sword
was recovered.

There are two parts to this sentence. The second part i.e. with which I stabbed A, is
not relevant. But the remaining part is relevant, which led to the discovery of the
weapon used in the offence.

In Navaneethakrishnan vs the State by Inspector of Police (2018), it was held that

section 27 of the Indian Evidence Act incorporates the doctrine of confirmation by
subsequent facts. According to this doctrine, the statement made in police custody
is subject to the subsequent discovery of facts.

7. Section 29 Evidence Act – Confession Otherwise Relevant Not to Become

Irrelevant

As per section 29 of the Indian Evidence Act, if such a confession is otherwise

relevant, it does not become irrelevant merely:

 because it was made under a promise of secrecy; or

 because it was made under in consequence of deception’ or
when he was drunk; or
 because it was made in answer to questions which he need not have answered; or
 because he was not warned that he was not bound to make such confession, or it
can be used against him.

7. CONSIDERATION OF PROVED CONFESSION

Section 30 Evidence Act – Consideration of Proved Confession

Section 30 of the Indian Evidence Act deals with consideration of proved

confession by the court, which is made by a person affecting the person making it
and others that are being tried jointly for the same offence.

Elements of Section 30 of the Indian Evidence Act.

Elements of section 30 are as follows:

 When more than one person are tried jointly.

 The trial is for the same offence.
 A confession is made by one of such persons affecting him and some other such
persons.
 Such confession is proved.

The court may take into consideration such confession as against such other person
as well as against the person who makes such confession.

8. DIFFERENT BETWEEN CONFESSION AND ADMISSION

Confession
1. Confession is a statement made by
an accused person which is sought to
be proved against him in criminal
proceeding to establish the
commission of an offence by him.
2. Confession if deliberately and
voluntarily made may be accepted as
conclusive of the matters confessed.
3. Confessions always go against the
person making it
4.Confessions made by one or two or
more accused jointly tried for the
same offence can be taken into
consideration against the co-accused other defendants.
(section 30)
5. confession is statement written or
oral which is direct admission of suit.
Admission
1. Admission usually relates to civil
transaction and comprises all statements
amounting to admission defined under
section 17 and made by person mentioned
under section 18, 19 and 20.
2. Admissions are not conclusive as to the
matters admitted it may operate as an
estoppel.
3. Admissions may be used on behalf of the
person making it under the exception of
section 21 of evidence act.
4. Admission by one of the several
defendants in suit is no evidence against
5. admission is statement oral or written
which gives inference about the liability of
person making admission.
EXPERT

Generally, when a person is summoned to court for giving testimony as a witness,

he is expected to state only facts and not to give any opinion. It is the job of the
court to form an opinion in the case. Moreover, if a person is asked to give his
testimony then it is expected that the person must be factually related to the case
not merely a third party.

But there is an exception to this rule. The experts are considered as witnesses
although they are not actually related to the case. The court requires these experts
to give an opinion regarding the case to help the court in having a wider
perspective to give justice. The rationale behind the same is that it is not practical
to expect the Judges to have adequate knowledge of medical issues [1]. The
statutes regarding the experts’ opinion are discussed in The Indian Evidence Act,
1872.

It is assumed that when a person is called to court for testimony as a witness, he

will only state facts and not give any opinion. It is the duty of the court in the case
to shape an opinion. In addition, if a person is asked to testify, then it is anticipated
that the individual must be factually relevant to the case, not simply a third party.
But an exception to this law remains. Even if they are not directly relevant to the
case, the experts are known as witnesses. The court needs these experts to give an
opinion on the case to assist the court in giving justice from a broader perspective.
The reasoning behind the same is that asking the judges to have sufficient
knowledge of medical problems is not realistic. The statutes regarding the Experts
opinion in Indian evidence act 1872.

Definition of opinion of Experts :

Expert is defined under section 45 of The Indian Evidence Act, 1872. The court
needs an expert to form an opinion upon: (a) Foreign law. (b). Science & Art. (c).
Identity of Handwriting. (d). Identity of finger impression (e) Electronic evidence.

2. Section 45 of Indian Evidence Act defines Opinions of experts as, "When the
Court has to form an opinion upon a point of foreign law, or of science, or art, or as
to identity of hand writing or finger-impressions, the opinions upon that point of
persons specially skilled in such foreign law, science or art, or in questions as to
identity of handwriting or finger impressions, are relevant facts. Such person called
experts

Who is an expert?
The court cannot form a correct judgement without the help of a person with
special skills or experience in a particular subject. When the court needs an opinion
in a subject which requires special assistance, the court calls an expert, a specially
skilled person. The opinion given by a third person is considered as relevant facts
if the person testifying is an expert.

An expert is one “who is skilled in any particular art or trade, or profession, being
possessed’’ of particular knowledge concerning the same. According to Lord
Russell, any person who is skilled or has adequate knowledge in a particular
calling is an expert. If a person has acquired any special experience or special
training in a particular subject to which the court’s enquiry relates, such a person
can be considered as an expert.

An expert operates in a field, which is beyond the range of common knowledge.

An expert is however not required to be a professional expert who makes a living
by giving such evidence, but he must have devoted sufficient time and study of the
subject to make his evidence trustworthy.

Types
There are various types of expert evidence, and many more new methods and
mechanisms are being developed and applied everyday with the continuous
advancement in science and technology. The currently available expert evidences
are divided into the following types[4]:

1. Medical Evidence- This type of expert evidence is given by a medical

practitioner and it is conducted in a medical laboratory. These are further
subdivided into the following types-
 1. Cause of Death in cases alleged to be due to physical violence;
2. Cause of Death in cases alleged to be due to causes other than physical
violence;
3. Whether Death was accidental, suicidal or homicidal;
4. To prove Legal Insanity;
5. In cases of Sexual Offences;
6. To determine age;
7. In disputed Paternity cases; and
8. Miscellaneous matters.

1. Non-Medical Evidence- These are the expert evidences other than medical
in nature. These are further sub-divided into-

1. Fingerprints;
2. Footprints;
3. Handwriting;
4. Typewriting;
5. Forensic Ballistics;
6. Narco-analysis;
7. Polygraph Test; and
8. Brain Mapping.
These are just some of the methods that are currently practiced in the investigation
process in India. Many new methods and techniques are being developed and will
soon be in use for the purpose of investigation, but in each method it must be
ensured that the rights of the individual are not hampered. In cases where the rights
of the accused are affected, the constitutionality of the evidence comes into
question, which is further discussed in the next section of this research paper.

OR LAWYERSCLUBINDIA.COM

Relevancy of Opinion:

1. Opinion of examiner of Electronic Evidence (Section 45A)

When in a proceeding, the court has to form an opinion on any matter

relating to any information
transmitted or stored in any computer resource or any other electronic or
digital form, the opinion

of the Examiner of Electronic Evidence referred to in section 79A of the

Information Technology

Act, 2000 (21 of 2000), is a relevant fact.

Explanation - For the purposes of this section, an Examiner of Electronic

Evidence shall be an

expert.

2. Opinions as to handwriting, when relevant (Section 47)

When the Court has to form an opinion as to the person by whom document
was written or signed,

the opinion of any person acquainted with the handwriting of the person by
whom it is supposed

to be written or signed that it was or was not written or signed by that person,
is a relevant fact.

Explanation: - A person is said to be acquainted with the handwriting of

another person when he

has seen that person write, or when he has received document purporting to
be written by that

person in answer to documents written by himself to under his authority and

addressed to that

person, or when in the ordinary course of business document purporting to be

written by that

person have been habitually submitted to him.

3. Opinion as to digital signature when relevant (Section 47A)

When the Court has to form an opinion as to the "digital signature" of any
person, the opinion of

the Certifying Authority which has issued the Digital Signature Certificate is a
relevant fact.

4. Opinion on relationship, when relevant (Section 50)

When the Court has to form an opinion as to the relationship of one person to
another, the opinion,

expressed by conduct, as to the existence of such relationship, or any person

who, as a member of

the family or otherwise, has special means of knowledge on the subject, is a

relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in

proceedings under the

Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495,
497 or 498 of the

Indian Penal Code (45 of 1860).

Illustrations:-

1. 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.

2. The question is, whether A was the legitimate son of B. The fact that A was
always treated

as such by members of the family, is relevant.

 Opinion for foreign law (Section 38 r/w Section 45)

When there is a law of prevailing in any foreign country which needs to be considered for
giving judgement in any case, the court needs an expert who is well versed with that law.

Otherwise, the court can take opinion from a law-book which contains the answer regarding
any foreign law. These books must be printed or published under the authority of the
government of that country. Other reports of the ruling of the courts can also be taken as
relevant which are given in such books of foreign law.

Foreign law in India is always considered as a question of fact. There have been cases where
the court has interpreted personal laws as Indian laws and thus are the laws of the land.
Therefore, the court does not require a person to interpret the law as the courts can do that
task on their own.

Opinion for fingerprint

Generally, finger impression expert’s opinion is given more value because:

 The fingerprints of any person remain the same from their birth till death, and
 No two individuals’ are ever found to have the same finger impressions

Footprint studies are gaining importance nowadays but the courts have been reluctant to
accept that as a piece of evidence. A person, who is a fingerprint expert, is called to match
two or more fingerprints, than the opinion of such an expert is relevant and admissible in the
court.

Opinion for Science or Art

The words ‘Science and Art’ are to be broadly constructed. The term ‘science’ is not limited
to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses
of handicraft, trade, profession and skill in work.

To construe that if any expertise comes under the head of ‘art’ or ‘science’; the following
tests can be applied

 Is the subject matter of the injury such that inexperienced people are not capable of forming a
correct judgement without the assistance of experts?
 Is the character of a science or art as such that it requires a course or a study to obtain a
competent knowledge or skill.
 Science and Art signify the activities which include the fields which require special
knowledge or expertise form an opinion. Before designating that a person is an expert, it
needs to be checked that the field or the matter on which we are seeking the opinion should
not be something which can be easily understood by layman or court without any special
knowledge or skill.

The scientific question involved is assumed to be not within the court’s knowledge. Thus
cases, where the science involved, is highly specialized and perhaps even esoteric, the central
role of an expert cannot be disputed

Every science has its own technical terms, which are so much Greek or Hebrew to the
average juryman. What would the Ordinary man make of this answer to a question whether a
certain dose of a prescription containing chloral would have been dangerous!

There can be various categories which can be treated under art and science. Some of them are
discussed below for better understanding.

Opinion of Medical Expert

In many cases, the opinion of medical experts is required. Especially in criminal cases, the
medical examination of accused and victim is necessary. When in a case, the court requires
some opinion which involves medical technicalities, they ask medical officers.

Opinions of a medical officer can be used to prove:

1. The Physical condition of the person,

2. Age of a person
3. Cause of death of a person
4. Nature and effect of the disease or injuries on body or mind
5. Manner or instrument by which such injuries were caused
6. Time at which the injury or wounds have been caused.
7. Whether the injury or wounds are fatal in nature
8. Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
9. Probable future consequences of an injury etc.

Say in a rape case, the medical report of the victim and accused are of great importance. If
the medical officer says that he thinks that act was not consensual referring to the injuries on
the body of the victim and the nail scratches on the body of the accused, this opinion carries
a lot of importance.
But the problem with these experts is that they are always called by one party only who has
evidenced in their favour. This is the reason that the court is reluctant to rely completely
upon the views and opinions of the expert though they consider the same while imparting
their judgement.

In other cases, if the court finds that the expert’s opinion is in contradiction with the opinion
of an eye-witness then for obvious reasons, the normal witness’s opinion is given preference
over the expert’s opinion. This is because the expert’s statement is just opinionative whereas
the other witness’s statement is based upon the facts of the case.

Opinion of Ballistic Expert

Ballistic experts, also known as firearms expert are people who are experts in the study of
projectiles and firearms. Their help is taken is cases say where guns are involved.

A ballistics expert may trace a bullet or cartridge to a particular weapon from which it was
discharged. Forensic ballistics may also furnish opinion about the distance from which a shot
was fired and the time when the weapon was last used.

It must be noted that the opinion of the ballistics expert can be taken into consideration only
when he himself has given the report. In the case where the expert gives opinion only by
looking at the picture of the wound, the court denied relying upon such opinion.

5) Evidentiary Value of Expert Opinion/ Admissibility of Expert :

According to Section 45 of Indian Evidence Act, 1872 before a

person characterized as an expert, it is necessary that there must be some material
on record to show that he is skilled in particular science and is possessed of a
particular knowledge concerning the same. He must have special study of the
subject or acquired special experience therein. Thus testimony of witness
becomes admissible, his competency of an expert must be shown, may be, by
showing that he was possessed of necessary qualification or that he has acquired
special skilled therein by experience, It is for judge his expertisation of the
particular subject.
Case Law :
a) In S. Gopala Reddy v. State of A.P , it was held that the evidence of an Expert
is a weak type of evidence and court consider it is unsafe to relay on it without
independent and reliable corroboration.

b) In Anwar Vs.State of Haryana, 1997) SCC 766, it was held by the Court If the
medical evidenceis totally inconsistent with the occular evidence it would be
permissible for the court to reject the oral evidence thougghbmedical evidence is
opinion evidence.

CASE LAW

1. State of Karnataka v. J. Jayalalitha (2017) 6 SCC 263, In this case, the

Supreme Court had held that an expert is not a witness of fact and that his
evidence is only of advisory nature. It was further held that the expert only
has the duty to furnish the Court with scientific test criteria for testing the
accuracy of conclusions. It was finally held that the Court should not rely
solely on the opinion of the expert. The same was also held in the case
of Jalapathi Reddy v. Baddam Pratapa Reddy (2019) 14 SCC 220.

ESTOPPEL

It’s a human tendency to make claims, some true, some false. The problem arises
when a person hearing this claim acts the same, to discover that the claim is wrong.
This is where the Doctrine of Estoppel comes into play. This principle was
established in the landmark case of Pickar vs Sears. Estoppel as a principle of
equity has stopped many claimants from going back on their words especially in
situations where the person who “acted on these claims” has suffered losses. The
word ‘Estoppel’ is derived from an Old French word ‘estoupail’ which means
‘stopper, bung’. This term is derived from the legal maxim, “allegans contraria
non-est audiendus” which implies that a person alleging contradictory facts is not
to be heard, and this is the species of presumptio Juris et de jure, the fact
presumed is taken to be true against the party stating it.

The principle of estoppel, which is dealt with in Sections 115 to 117 of the Indian
Evidence Act of 1872, forbids a person from providing false evidence by
forbidding them from making contradictory remarks in a court of law.
This philosophy aims to prevent fraud against another person from being
committed by one person. This concept holds that a person is accountable for
whatever false claims they make, whether they were expressed verbally or by their
actions.

The expression 'Estoppel' is derived from the French word 'Estoup' which
means, 'shut the mouth". When a person by declaration (act or omission) makes/
induces another to believe a thing, cannot deny its truth subsequently. The other
person cannot be estopped from proceeding upon such declaration.

Estoppel is rule of evidence, by which a person is not allowed to plead the

contrary of a fact or state of things, which he formally asserted as existing.

DEFINITION

SECTION 115

When one person has —

By his (i) Declaration (ii) Act, or (iii) Omission

Intentionally caused or permitted another person (i) To believe a thing to be true,

and (ii) To act upon such belief,— Neither (i) he, nor (ii) his representative
can be allowed to deny the truth of that thing in a suit or proceeding between
himself and such person or his representative.

TYPES

1. Estoppel by record: Under this kind of estoppel, a person is not permitted to

dispute the facts upon which a judgment against him is based. It is dealt with by (i)
Ss. 11 to 14 of the Code of Civil Procedure, and (ii) Ss. 40 to 44 of the Indian
Evidence Act.

2. 2. Estoppel by deed: Under this kind of estoppel, where a party has entered into
a solemn engagement by deed as to certain facts, neither he, nor any one claiming
through or under him, is permitted to deny such facts. Problem: A deed of gift by
D in favour of his daughter M for life provided that the property should go to her
male issue, and in default, to D’s sons. One of D’s two sons induced a purchaser to
buy his sister’s property, and the sale deed was attested by the other son. M died
without leaving any male issue, and D’s son filed a suit to recover the property
from the purchaser. State, giving reasons, whether the plea of estoppel would be
available to the defendant against the plaintiff. Ans: So far as the son who had
induced the purchaser is concerned, he is estopped. But, so far as the son attesting
the document is concerned, the plea of estoppel will not be available, if such
attesting person denies the knowledge of the contents of the document. The Privy
Council has held in Pandurang Krishnaji v. Markandeya Tukaram (40 I.A. 60), that
the knowledge of the contents of the deed is not to be inferred from the mere fact
of attestation. In the above problem, there is nothing to show that the attesting son
did so attest with the knowledge of the contents of the document. Therefore, the
plea of estoppel will not be available against him.

3. Estoppel by conduct: Sometimes called estoppel in pais, may arise from

agreement, misrepresentation, or negligence. Estoppel in pais is dealt with in Ss.
115 to 117. (Estoppel in pais means “estoppel in the country” or “estoppel before
the public.”) If a man, either by words or by conduct, has intimated that he
consents to an act which has been done, and that he will not offer any opposition to
it, although it could not have been lawfully done without his consent, and he
thereby induces others to do that from which they otherwise might have abstained
from doing, he cannot question the legality of the act to the prejudice of those who
have so given faith to his words, or to the fair inference to be drawn from his
conduct. If a party has an interest to prevent an act being done, and acquiesces in it,
so as to induce a reasonable belief that he consents to it, and the position of others
is altered by their giving credit to his sincerity, he has no right to challenge the act
to their prejudice. (Chand Sing v. Commr., Burdwan, (A.I.R. 1958 Cal. 415). S.
115 deals with estoppel by representation by act or conduct, and Ss. 116 and 117
deal with estoppel by agreement or contract,

4. Equitable Estoppel:

The Evidence Act is not exhaustive of the rules of estoppel. Thus, although S. 116
only deals with the estoppel that arises against a tenant or licensee, a similar
estoppel has been held to arise against a mortgagee, an executor, a legatee, a
trustee, or an assignee of property, precluding him from denying the title of the
mortgagor, the testator, the author of the trust, or the assignor, as the case may be.
Further, S. 116 is not exhaustive of all instances of estoppel as between landlord
and tenant. Thus, there are cases of estoppel which, though not within the terms of
Ss. 115 to 117 of the Evidence Act, are recognised instances of estoppel. Estoppels
which are not covered by the Evidence Act may be termed equitable estoppels.

Estoppel by Negligence: This type of estoppel enables a party, as against some

other party, to claim a right of property which in fact he does not possess. Such
estoppel is described as estoppel by negligence or by conduct or representation or
by a holding out of ostensible authority. Such estoppel is based on the existence of
a duty which the person estopped is owing to the person led into the wrong belief
or to the general public of whom the person is one.
5. Estoppel on benami transactions: If the owner of property clothes a third person
with the apparent ownership and a right of disposition thereof, not merely by
transferring it to him, but also by acknowledging that the transferee has paid him
the consideration for it, he is estopped from asserting his title as against a person to
whom such third party has disposed of the property and who has taken it in good
faith and for value

Essential Elements of Estoppel

To invoke the doctrine of estoppel, the following conditions must be satisfied:

1. There must be two parties, one party making representation to another party.
2. The other shall have acted upon such representation.
3. Relying on such representation, there must have been a change in the position of
a party.

6 ) Provisions in Indian Evidence Act As to Estoppel -

A) 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 tenant and landlord between him and subsequent
vendor. It was held that tenancy right is not extinguished.

B) 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

No Estoppel Against Minor: -

1. Section 3 of The Maturity Act’, 1875 defines a minor to be a person who is

under the age of 18 years and Section 11 of the Indian Contract Act, 1872 says that
parties entering into a contract should be competent, i.e. should be a major, of
sound mind and barred by no law to enter into a contract. A contract with a minor
is void ab initio which means void from the very beginning.

2. SO when a minor misrepresenting himself to a major enters into a contract, then

he cannot be made liable for it, not even on the grounds of estoppel. The minor can
always plead that at the time of entering into the contract he was a minor.

3. In the case of Ajudhia Prasad And Anr. v. Chandan Lal And Anr.two minors
fraudulently entered into a mortgage deed by concealing the fact that they were
minor as a guardian has been appointed for them under the Wards Act. The court
held that no estoppel would arise in this case.

CASE LAW

Estoppel: A rule of evidence and not equity: - The doctrine embodied in this
section is not a rule of equity, but a rule of evidence formulated and applied in
court of law. It precludes a person from denying the truth of some statement
previously made by himself. No Cause of action arises upon estoppel itself.
(Municipal Corporation of Bombay v. Secretary of state)
EXAMINATION

INTRODUCTION

In court of law, without evidence, a case cannot be supported. So, Witness of a

particular case is one of the strong evidence which aid and help the parties to prove
their contentions both in civil and in criminal cases.

A witness is a person who testifies in front of the court about what they are
personally aware of the events or crimes or happenings, where most of the time
this information will bring to light many new or hidden facts present in the case. In
short, they are the "eyes and ears of justice". But, there is a need for the court to
also examine the witnesses to check their veracity of the facts put forth by them.

To validate an evidence, it is must to prove that it is a reliable or true evidence

bought before the court, which also applies to the witnesses of the case.

The art of examination is where witness will be questioned to get the statement or
truth which will be favourable to decide the case. An examination of the witness is
done to find the truth or to check the veracity of the facts said by the witness. In
simple words examination of witness is the process where relevant questions are
asked related to the fact in issue to a witness.

The examination and cross-examination of witnesses are integral components of

the legal system, deeply rooted in the pursuit of truth and the administration of
justice. Witness testimony often serves as a vital source of evidence, providing
firsthand accounts and insights into the events under scrutiny. The examination
process allows attorneys to present their case, while cross-examination provides an
opportunity to challenge the credibility and accuracy of witness testimony.
Together, they form a dynamic interplay aimed at eliciting reliable information,
exposing inconsistencies, and influencing the decisions of judges and juries.
The examination of witnesses enables the presenting party to carefully orchestrate
the narrative of the case. Attorneys must skillfully craft questions to elicit pertinent
details, elicit opinions or expert analysis, and establish the facts that support their
client’s position. The examination allows for the exploration of witness
knowledge, experiences, and perceptions, painting a comprehensive picture of the
events in question. Moreover, it offers an avenue to present evidence that may
corroborate or contradict witness testimony, thus shaping the course of legal
proceedings. ([1])
Following the direct examination, the cross-examination emerges as a crucial stage
for challenging the witness’s veracity, assessing their credibility, and unearthing
potential biases or inconsistencies. The opposing attorney strategically employs
various techniques to dismantle the witness’s account, probing for weaknesses and
aiming to cast doubt on their testimony. Cross-examination entails a delicate
balance between the right to challenge and the duty to maintain fairness and
respect for the witness’s rights.

Witness is one who sees, knows or vouches for something or one who gives
testimony, under oath or affirmatio in person or by oral or written deposition, or by
affidavit. The questioning of a witness plays a vital role in the presentation of
evidence to a court of law, irrespective of the essence of the case, i.e., whether it is
civil or criminal. The admissibility of facts is also a critical topic determined only
by the judicial officers. The testimony of the witness shall be reported in the form
of a question and answer. Witness is not required to make a speech to the court, but
is only intended to address the issue. The testimony of the witness is limited to the
actual facts of the case. Such a method of recording evidence shall be referred to as
the examination of a witness.

KINDS OF EXAMINATION

Examination-in-Chief

The examination by the party who calls a witness is referred to as a direct

examination. The testimony is first examined in chief and then cross-examined if
requested by the opponent.

When a witness appears in court, he is administered an oath or affirmation. His

name and address are recorded. The party calling the witness then has the authority
to question him in order to induce all material facts within his knowledge that tend
to prove his (the party calling the witness) case. This is known as examination-in-
chief.

Object of Examination-in-chief

The objective of cross-examination-in-chief is to elicit the facts and to prove

pertinent facts in favor of the party who called the witnesses. The aim of his
examination is, in other phrases, to obtain all facts from the witnesses regarding the
cases of the parties he is aware of. It must be limited to the facts concerned, and
without the permission of the court, leading questions cannot be asked.

Cross-examination

The adverse party’s cross-examination of a witness is known as cross-examination.

A party’s opponent has the right to cross-examine his chief witness after he has
been examined.

The importance of cross-examination is the questioning of witnesses summoned by

one party’s attorney with the goal of either obtaining a favorable admission or
discrediting the witness.

Object of the Cross-examination

The objective of cross-examination is to determine whether the witness’s
statements are true. It’s an attempt to dissect a witness or show that his testimony
can’t be trusted.

Cross-main examination’s purpose was to examine the accuracy, authenticity, and

value of the evidence presented in chief, to shift the facts already stated by the
witness, to identify and expose differences, and to produce suppressed evidence to
substantiate the cross-examining party’s case.

Re-examination

Re-examination is the examination of a testimony when he has been cross-

examined by the defendant who called him. If the party who called the witness
wishes and if it is necessary, he may re-examine him. The re-examination must be
restricted to the objections faced during cross-examination.

The Object of Re-examination

Re-examination’s purpose is to ask any questions that may be required if the

opposing party has the right to cross-examine the testimony at that point so that the
witness should provide a proper explanation or interpretation of expression during
cross-examination.

ORDER OF EXAMINATION

Sec. 138 of the (I.E.A) Indian Evidence Act governs the order of examination,
wherein the witness is examined in chief, then cross-examined, and then re-
examined (if the opposition party so desires).

The examination & cross-examination must be concentrated on pertinent facts, but

the cross-examination should not be limited to the facts on which the witness
testified during his chief examination.

EXAMINATION OF NON-WITNESS
 Section 139
Section 139 of Evidence Act “Cross-examination of person called to produce a
document”
A individual summoned to produce a document does not become a witness by the
simple fact that he produces it and cannot be cross-examined unless and until he is
called as a witness.

Apart from witness testimonies, there are numerous other forms of evidence
admissible in the Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them. A

person might be called just in order to produce a document. Section 139 of the Act
states that- such a person called in for producing documents, does not become a
witness.

He can be examined in order to establish the credibility of the document. But, he

cannot be cross-examined unless he has been called as a witness.

Section 140
Section 140 of the Evidence Act “Witnesses to character”
Witnesses to characters can be cross-examined and re-examined.

Section 140 talks about the character of a party. “Character” of someone refers to
their quality or characteristics that distinguish them. Especially mental and moral
characteristics. It also includes a person’s reputation in society.

The section states that the witness to a party’s character can be cross-examined if
the examination-in-chief has already been completed.

The evidence of character is helpful to assist the Court in determining the value of
statements given by the witnesses.

Section 141 - Leading Questions in Examination-in-Chief:

This section states that leading questions should not be generally asked during the
examination-in-chief (the initial questioning of a witness by the party who called them).
However, leading questions can be asked when a witness is deemed hostile or adverse to the
party calling them.

The phrase “Leading Questions” literally means a question that suggests an

answer. Any questions that ultimately led to an answer, as predicted by the person
who asked the question.

“Whatever question trying to suggest the answer which the person who put it
desires or receives,” according to “Leading Questions.”

Examples: –

 Is your name so and so?

 Have you not lived with him for so many people?
It is evident that using this form, any type of information can be expressed in the
witness statements in disguise using this form.

It could be used to prepare him to obtain a required response to the questions that
would be presented to him, the examiner while denying the truth and asking for
information/details is actually providing rather than receiving it.

Section 142 - When They Must Not Be Asked:

Section 142 prohibits leading questions in examination-in-chief unless the witness is

declared hostile or adverse. Leading questions should not be asked to elicit a general
narrative of the facts from the witness.

When it’s not appropriate to ask leading questions (section142)

If the opposing party objects, leading questions will be asked only with the court’s
permission during an examination-in-chief or re-examination. The court may ask
leading questions about matters that are either introductory or undisputed or that
have already been sufficiently proved in its opinion.
Section 143 - When They May Be Asked:

Leading questions may be asked during cross-examination, As per Sec.143

of I.E.A,1872.

This section allows leading questions to be asked during cross-examination, re-examination,

and when the witness is hostile or adverse. The court can allow leading questions if it finds
that the witness is evasive or unwilling to give a direct answer.

Section 145 of Evidence Act “Cross-examination as to previous statements in

writing.” –
A witness can be cross-examined as to previous statements made by him in writing
or reduced to writing, and related to the matters in question, without having been
shown or proven to have been made; however, if it is intended to refute him in
writing, his attention must be drawn to certain parts of it which are to be used for
the purpose of contradicting him before the writing can be proved.

Section 146 of Evidence Act “Questions lawful in cross-examination.” –

When a witness is cross-examination, he can, in addition to the questions alluded
to above, pose any question that appears to occur.

(1) to the detriment of his veracity.

(2) to find out who he is, and what his place in life is, or

(3) to shake his credit by damaging his integrity, even if the answer to such
questions can appear, directly or indirectly, to criminalise him or may directly or
indirectly expose him or her to a penalty or forfeiture.[4]

Section 147 of Evidence Act “When witness to be compelled to answer.” –

If any such question relates to a matter relevant to the suit or proceeding, the
provisions of section 132 shall apply thereto.

Section 148 of Evidence Act “Court to decide when question shall be asked
and when witness compelled to answer.” –
If any such question concerns an issue which is not relevant to the suit or
proceedings, except in so far as it affects the credit of the witness by harming his
character, the Court shall determine whether or not the witness is obliged to answer
it and can, if it finds it necessary, notify the witness that he is not obliged to answer
it. In the exercise of its discretion, the Court of Justice shall take account of the
following considerations:

(1) Such questions are right in that they are of such a nature that the validity of the
imputation they have provided will have a significant effect on the judgement of
the Courts as to the integrity of the witness in the matter testified to;

(2) Such questions are inappropriate if the imputation they render relates to matters
so distant in time, or of such character, that the truth of the imputation would not
have an impact, or would have a slight effect, on the judgement of the Court as to
the integrity of the witness in the matter testifying to it;

(3) Such questions are unacceptable if there is a significant difference between the
importance of the imputation made against the character of the witness and the
importance of the evidence;

(4) The Court may, if it deems it necessary, draw from the reluctance of the
witness to respond an inference that the response, if given, would be unfavourable.

HOSTILE WITNESS (SECTION 155)

Section 155 of Evidence Act “Impeaching credit of witness.” –

The credit of the witness can be charged in the following manner by the adverse
party or, with the permission of the Court, by the party who so requests[7]:

(1) By the testimony of individuals who testify that they conclude, from their
experience of the witness, that he is unworthy of credit;

(2) By proof that the witness has been bribed, or has accepted an offer of bribery,
or has obtained some other unethical evidence to prove it;

(3) By proof of an earlier assertion which is inconsistent with some part of its facts
which may be contradicted;

(4) Omitted Indian Evidence Amendment Act, 2002

Explanation – A witness who has found another witness to be unworthy of credit

does not give reasons for his belief at the time of his test, but his reasons may be
questioned in cross-examination, and the responses he gives cannot be
contradicted, even if they are incorrect, he may subsequently be charged with
giving false proof.

Illustrations

(a) A sue B for the price of the products sold and sent to B.

C states he shipped the goods to B.

Evidence is provided to prove that, on a previous occasion, he had said that he had
not supplied goods to B.

The proof is admissible.

(b) A is charged with the murder of B.

C says that B, when he died, declared that A had given B the wound from which he
died.

Evidence is provided to prove that, on a previous occasion, C said that the wound
was not given by or in the presence of A.

The proof is admissible.

REFRESHING MEMORY (SECTION 159)

Section 159 of Evidence Act “Refreshing memory.” –

A witness may, while under questioning, refresh his memory by referring to any
writing made by himself at the time of the transaction in respect of which he is
questioned, or so soon thereafter that the Court finds it probable that the
transaction was fresh in his memory at that time.

The witness can also refer to any other writing made by any other person and read
by the witness at the time referred to above, if he has known that it is accurate
when he reads it.

Where a witness may use a copy of the document to refresh his or her memory. –
When a witness may refresh his or her memory by reference to any document, the
witness may, with the permission of the Court, refer to a copy of the document as
follows:
Provided that the Court is satisfied that there is a sufficient explanation for the
failure to produce the original. An expert can refresh his memory by referring to
professional treaties.

In the case of Jivan Lal Dage v. Nitmani, the plaintiff’s brothers were not produced
in due time. The Court refused to allow the plaintiff to produce his books of
accounts, but allowed him to check his memory by looking at their entries. The
private council held that the proof was appropriate under Section 159. A document
not included in the list of documents as required by Order VII, Rule 13 of the CPC
may be used for the analysis of the memory. Papers filed late can be used to
recover the memory.

POWER OF THE JUDGE

Section 165 of the Evidence Act talks about the power of the judge to pose
questions and order the production of evidence.

In order to procure proof of relevant facts, the judge may ask any question that
suits him. It does not matter whether the question posed by him is relevant or
irrelevant. The question may be asked at any time during the trial, it may take any
form and he could ask anyone, be it the witness or the parties.

However, the judge cannot compel the witness to answer his questions and his
decisions should not be solely based on his questions. The decisions must be based
on relevant facts and evidence produced.

CONCLUSION
ORAL & DOCUMENTARY

INTRODUCTION:- section 59-60 and from section 61 to 63 deals eith the

provision of oral document and documentary document respectively 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 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.

Defination :

 Oral :- . 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”
 Documentary:- 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.

Provision related to 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.”

(b) Section 60 Oral evidence must be direct

There are 4 main principles of this section to be satisfied.
1. It refers to a fact that is ‘Seen’ by the witness.

2. 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.
3. 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.
4. 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.
Case law of Oral Evidence: - 1. Amar Singh vs. 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

2. Provision related to documentary evidence:-

Section 61 provides that the contents in documentary evidence can be proved
by
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)
Section 63 of the Act provides Secondary Evidence.
Secondary evidence means and includes:
 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.
Important Case law: -
Documentary evidence outweighs oral testimony Shri Partap Singh v Shiv Ram
 In a recent judgment, the Supreme Court held that revenue recorded entries have
statutory presumption attached to them, and oral evidence, on the contrary, will not
be sufficient, since witnesses may lie but documents do not.
While allowing the appeal in this case the Supreme Court held that the defendant
had failed to rebut the presumption of truth based on reliable, trustworthy and
cogent documentary evidence to prove the relationship of a tenant, and it would
not be proper to rely on the oral evidence, as its credibility in comparison to
documentary evidence is much weaker.

Difference Between Oral And Documentary Evidence

The distinction between oral and documentary evidence can be known on the
following bases:

Definition
Oral Evidence means the statements which are given by a witness before the court,
this includes all statements which the Court requires, or permits, to be made before
it, by witnesses concerning matters of fact under inquiry.

Documentary evidence means “when a document is produced before the court then
such document is considered as documentary evidence”.
Scope
The oral evidence is discussed under section 59 and section 60 of the Indian
Evidence Act.

The provisions of the documentary evidence have been discussed under section 61
to section 66 of the Indian Evidence Act.
Form
The oral evidence is required to be direct and it becomes doubtful if the statement
contradicts the previous statement.

Documentary evidence requires that the contents of the documentary evidence

need to be supported by primary or secondary evidence.
Submission
Oral Evidence is the statement of a witness in oral form. Oral Evidence is stated
through voice, speech or symbols for its recording before the court.
Documentary Evidence is a statement submitted through the documents and is
composed of words, signs, letters, figures and remarks and submitted before the
court.
Types of documentary evidence
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.
 Burden of proof

Introduction :- The term ‘Burden of Proof’ means when a person states

something and considers it to be fact he or she needs to prove the statement made
by him. This is an important concept integrated in the Indian Evidence Act, 1872.
The concept of burden of proof is explained in Chapter VII of the Indian Evidence
Act, 1872. From section 101 to 114. The word 'burden of proof' has not been
defined in Evidence Act. It is a fundamental principle of criminal jurisprudence
that guilt of accused is to be proved by the prosecution, and an accused should be
presumed to be innocent. The expression burden of proof is explained in S.101 of
Indian Evidence Act as, " When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that person". The question is which
out of two parties has to prove a fact. The answer to this question decides the
question as to burden of proof.

Meaning of 'Burden of Proof' -

In short, The burden of proof means the obligation to prove a fact. Every
party has to establish fact which go in his favour or against his opponent and this is
the burden of proof. Evidence Act lays down some principle of burden of proof of
general nature

What of burden of proof

Section 101 of Indian Evidence Act

“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.”

The section states that if someone is desirous of obtaining a judgement or an order from the
courts or authorities upon some facts which he thinks are true and correct that he is required
to prove the same. Whoever is required to prove the said fact it is said that the burden of
proof lies on that person. The following examples will help for understanding this concept
better:
 If Ram is of the opinion that Shyam has committed a crime and that he must be punished for
the same, then it is upon him to prove that Shyam has committed the said crime.
 Rita is of the opinion that a certain land belongs to her but Sita has occupied the same stating
it is her land. If Rita decides to file a suit and obtain a decree stating that the land belongs to
her then she is required to prove the same to the court. Hence, here the burden of proof is on
Rita.

Principle of burden of proof

The principle of proof-bearing is based on the concepts of onus probandi (proof-

bearing) and probans factum (proof-of-fact). Even if the burden of proof does not
change, responsibility shifts from one side to the other. The evidence needed is not
clear. Jarnael Sen v. Punjab unless the prosecution provides satisfactory evidence
to remove the burden, they cannot rely on the evidence presented by the accused to
support their defence

Burden of proof in case of Civil Cases

When a person files a civil proceeding, it contains two things within it. The first one is the
facts of the case and the second one being the legal reason. The burden of proof in such cases
is upon the person who files such civil suit known as the plaintiff.

This means that if the plaintiff is unable to provide evidence and proof or is not able to
convince the court that the facts are in existence or are true then even if the Defendant does
not offer any defense or states anything he will win the case. Therefore, in such cases the
defendants usually try to harm the plaintiff’s case in some way or the other rather that
positively proving their side.

Burden of proof in case of Criminal Cases

Generally, the most important rule is that a person is innocent until proven guilty. Hence, it is
the duty of the prosecution to convince the court the accused has committed a crime which
means that the burden of proof lies upon the prosecution mainly. The burden of proof may
change if and when the accused claims one of the exceptions to the crime, claims or states
something.
In this case the burden of proof shall then lie upon the accused to prove such exception or
claim. It is necessary for the prosecution to prove their case beyond reasonable doubt which
means that the burden of proof upon the prosecution is quiet heavy and thus the accused or
the defendant gets a good advantage.

Various Provision related to the burden of proof under Indian evidence act

Section 102.On whom burden of proof lies :

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.

Illustration
(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.

S.103.Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the
Court to believe in its existence, unless it is provided by any law that the proof of
that fact shall lie on any particular person.

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.

S.104.Burden of proving fact to be proved to make evidence admissible

The burden of proving any fact necessary to be proved in order to enable any
person to give evidence of any other fact is on the person who wishes to give such
evidence.

Illustrations
A wishes to prove a dying declaration by B .A must prove B’s death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

S.105.Burden of proving that case of accused comes within exceptions
When a person is accused of any offence, the burden of proving the existence
of circumstances bringing the case within any of the General Exceptions in the
Indian Penal Code, (45 of 1860), or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence, is
upon him, and the Court shall presume the absence of such circumstances.

Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind,

he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was
deprived of the power of self-control.

The burden of proof is on A.

S.106.Burden of proving fact specially within knowledge

When any fact is specially within the knowledge of any person, the burden of
proving that fact is upon him.

Illustrations
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention
is upon him.

S.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.

S.108.Burden of proving that person is alive who has not been heard of for seven
years.
Provided that when the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would naturally have
heard of him if he had been alive, the burden of proving that he is alive is shifted to
the person who affirms it.

S.109.Burden of proof as to relationship in the case of partners, landlord and

tenant, principal and agent
When the question is whether persons are partners, landlord and tenant, or
principal and agent, and it has been shown that they have been acting as such, the
burden of proving that they do not stand, or have ceased to stand to each other in
those relationships respectively, is on the person who affirms it.

S.110.Burden of proof as to ownership

When the question is, whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner

S.111.Proof of good faith in transactions where one party is in relation of active

confidence.
Where there is a question as to the good faith of a transaction between parties, one
of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of
active confidence.

Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought
by the client. The burden of proving the good faith of the transaction is on the
attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a
suit brought by the son. The burden of proving the good faith of the transaction is
on the father

Presumption

S.113A.Presumption as to abatement of suicide by a married women

113A (Amendment 1983). Presumption as to abetment of suicide by a married
woman.- When the question is whether the commission of suicide by a women had
been abetted by her husband or any relative of her husband and it is shown that she
 had committed suicide within a period of seven years from the date of her marriage
and that her husband or such relative of her husband has subjected her to cruelty,
the court may presume, having regard to all the other circumstances of the case,
that such suicide had been abetted by her husband or by such relative of her
husband.

Explanation
For the purposes of this section, “cruelty” shall have the same meaning as in
section 498-A of the Indian Penal Code (45 of 1860).

S113B.Presumption as to dowry death

S.113B. Presumption as to dowry death.- When the question is whether a person
has committed the dowry death of a women and it is shown that soon before her
death such woman had been subjected by such person to cruelty or harassment for,
or in connection with, any demand for dowry; the court shall presume that such
person had caused the dowry death.

Case Laws

 M.S. Reddy Vs State Inspector of Police, A.C.B., Nellore – Preliminary burden of proof
falls upon the prosecution

In the above case it was held that the preliminary burden of proof falls upon the prosecution.
It is unfair on the part of the defendant to be the one bearing the burden and it is important
for the prosecution to establish its case upon its own findings. It gives an undue advantage to
the prosecution if the defendants place their evidence first as this will only give a chance to
the prosecution to poke holes and use strategies to get through things.

 Savithri Vs Karthyayani Amma – Each party had to prove its allegations

In this particular case there was a question of execution of a will and it being executed by
coercion. The court held that each party had to prove its allegations which means the one
alleging that the will was executed by coercion has to prove the same.
Relevancy of Facts

Introduction:- As per the sec. 2 of the Indian Evidence Act [I.E, A], one fact is
said to be relevant to another when one is connected with the other in any of the
ways referred to in the provision of I.E.Act relating to relevancy of facts.I.E. Act
does not give any specific definition which defines the relevancy and relevant fact.
According to I.E. Act, all the facts relevant to another will be considered as a
relevant fact. On the other hand According to I.E.Act all fact which will fall under
the category of Section. 5 to 55 of I.E.Act will be called the relevant fact that
means section 5 to 55 of I.E.Act provides the several ways in which one fact is
connected with another fact and that facts are known as a relevant fact. Relevancy
refers to the degree of connection and probative value between a fact that is given
in evidence and an issue to be proved.

Definition:-
Fact :- section 3

1.Anything, state of things, or relation of things, capable of being perceived by

senses.
2.Any mental condition of which any person is conscious.

Facts in issue Section 3

Facts in issue are those facts that are sought to be proved and are also called
“principal facts” or factum probandum. When the rights and liabilities of the
parties are dependent on a fact that is in dispute or controversy, that fact is in issue.

Relevant fact Section 3

2) “Relevant Fact” -

One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of Indian Evidence Act,
relating to the relevancy of facts. (Section 3 of IEA).

The word 'relevant' has two meanings. in one sense, it means "connected" and
another sense "admissible". One fact is said to be relevant to another when the one
is connected with the other, in any of the way referred to in the provisions of the
Evidence Act relating to the relevancy of facts (Section 5 to 55 of IEA).

There are two kinds of relevancy -

(i) Logical Relevancy -

(ii) Legal Relevancy -

(i) Logical Relevancy - A fact is said to be logically relevant to another when by

application of our logic it appears that one fact has a bearing on another fact.

(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as

relevant under Section 5 to 55 (Relevancy of Fact).

ESSENTIAL INGREDIENTS OF RELEVANCY

1. Relevancy is not dependent on the law.on the other hand it is not mandatory
the relevant fact must be relevant under law.
2. Relevancy is determined on the basis of practical experience, logic, common
sense, basic knowledge and human experience of the conduct.

Provision related to relevant fact

5. Evidence may be given of facts in issue and relevant facts.

Evidence may be given in any suit or proceeding of the existence or non-existence
of every fact in issue and of such other facts which are declared to be relevant, and
of no others.
Note- This section shall not enable any person to give evidence of a fact which he
is disentitled to prove by any provision of the law for the time being in force
relating to Civil Procedure.
Illustrations-
(a) A is tried for the murder of B by beating him with a club with the intention of
causing his death.
At A’s trial the following facts are in issue:-
A’s beating B with the club;
A’s causing B’s death by such beating;
A’s intention to cause B’s death.

6. Relevancy of facts forming part of same transaction/ Res Gastae.

Facts which, though not in issue, are so connected with a fact in issue as to
form part of the same transaction, are relevant, whether they occurred at the same
time and place or at different times and places.

Illustrations-
(a) A is accused of the murder of B by beating him. Whatever was said or done by
A or B or the by-standers at the beating, or so shortly or after it as to form part of
the transaction and is a relevant fact.

7. Facts which are occasion, cause or effect of facts in issue.

Facts which are occasion, cause or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction, are
relevant.

Illustrations-
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery B went to a fair with money in his
possession, and that he showed it or mentioned the fact that he had it, to third
persons are relevant.

8. Motive preparation and previous or subsequent conduct.

Any fact is relevant which shows or constitutes a motive or preparation for any fact
in issue or relevant fact.
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 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.

9. Facts necessary to explain or introduce relevant facts/Support Fact.

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 in issue 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.

Illustrations-
(a) The question is, whether a given document is the will of A.
The state of A’s property and of his family at the date of the alleged will may be
relevant facts.

10. Things said or done by conspirator in reference to common design/ Facts

by conspirator
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 as
for the purpose of proving the existence of the conspiracy as for the purpose
showing that any such persons was a party to it.

11. When Facts not otherwise relevant become relevant.

Facts not otherwise relevant, are relevant,
a- if they are inconsistent with any fact in issue or relevant fact.
b- if by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations-
(a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance
from the place where it was committed. Which would render it highly improbable,
though not impossible, that he committed it, is relevant.

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.

13. Facts relevant when right or custom is in question.

Where the question is as to 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, recognised, asserted or denied, or which was inconsistent with its
existence.

(b) Particular instances in which the right or custom was claimed, recognised, or
exercised, or in which its exercise was disputed, asserted, or departed from.

Illustrations-
The question is whether A has a right to a fishery.
A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s
father, a subsequent grant of the fishery by A’s father, irreconcilable with the
mortgage, instances in which A’s father exercised the right, or in which the
exercise of the right was stopped by A’s neighbours, are relevant facts.

14. Facts showing existence of state of mind or of body or bodily feeling.

Facts showing the existence of any state of mind, such
as intention, knowledge, good faith, negligence, rashness, ill-will or
goodwill towards any particular person, or showing the existence of any state of
body or bodily feeling, are relevant when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.

RELEVANCY ADMISSIBILITY

Admissibility is not based on the logic it is

Relevancy is based on logic.
based on the strict rules of law.

The rule of admissibility is not described

The rules of relevancy described under the
under sec. 5 to 55 of I.E.Act, 1872 but in
sewc. 5 to 55 of I.E.Act, 1872.
sec. 56 or onwards.

The rule of admissibility means that court

The rule of relevancy declares what is
can permit the evidence to be given of a
relevant to be proved.
fact only if it is relevant.

ARE ALL THE RELEVANT FACTS ADMISSIBLE IN THE COURT?

All the relevant facts may not be admissible in court and vice-versa. Thus, the fact
which is admissible in court will be relevant but all the relevant fact is not
necessarily admissible. Relevancy is the genus of which admissibility is a species.
All the legal relevancy is admissible in the court but all logical relevancy needs not
to be admissible in the court. For example, the hearsay evidence is the relevant fact
but hearsay evidence is not directly admissible in the court.

Relevancy depends upon the logic but admissibility is only based upon the law.
The question of relevancy has been dealt with under section 5 to 55 of I.E.Act and
that of admissibility under section 56 and onwards.

The admissibility is the means and method by which the relevant fact is proved.
The relevancy and admissibility are not co-extensive and synonymous. The rule of
relevancy declares that certain facts relevant, rules of admissibility declares as to
whether certain evidence about relevnt fact may be admitted or rejected by the
court