EVIDENCE LAW

7/7/21
In appeal, the recording of evidence does not take place all over again. All the recording is done
in the trial court stage (which is why interning in the trial court is important).
SUBSTANTIVE AND PROCEDURAL LAW
What are substantive and procedural laws? Substantive law creates rights and duties. Procedural
law enforces substantive law. Both of them work together. The demarcation is not very clear cut.
For instance, CrPC has provisions for maintenance (s. 125), which is a creation of a substantive
right. However, overwhelmingly speaking, CrPC is a procedural statute. Overwhelmingly, IPC is
a substantive statute. It is not possible to create a statute which is purely substantive or purely
procedural.
A hierarchy (that substantive is more important than procedure) is wrong. If procedurally, the
attainment of a right is so difficult that it cannot be enforced, then there is no point of having a
substantive right. E.g., getting a bail is a procedural right. If I make it too difficult to get a bail
(for instance, Father Stan Swamy’s case), what is the point of Article 21?
A lot of times, procedural rules can be made or tweaked in such a way that substantive rights are
taken away. No government will change the substantive rights. They will instead create special
separate procedural rules. This generally escapes scrutiny and criticism since not much attention
is paid to such changes (Example- harsher bail rules in the UAPA in Section 43(D)(5) on no bail
if prima facie case is made out- very easy to allege anything and everything and do that). Lol this
is one of things what Hart and Fuller talked about in their debate.
In criminal law, any case is between an individual or individuals, and the State. The procedural
rules in criminal law (CrPC) limit the powers of the State. For this reason, procedural laws are
not less important or secondary to the substantive law.
Where does evidence law fit? The IEA 1872 contains both. Traditionally, it is treated as
procedural. It governs what happens during a litigation, and not after or before. Some scholars
differ: it is neither substantive nor procedural. It is adjectival, they say. It keeps interchanging –
at times it is substantive, other times it is procedural (such as estoppel effectively denying a right
through precluding its enforcement). In some sections, it is difficult to distinguish. Eg, s. 112 of
IEA: presumption of legitimacy of child. While it is procedural as it bars presentation of
evidence, it also creates substantive rights for child. S. 112 uses “conclusive proof” – if one fact
is proved, the other automatically gets proved – can’t produce further evidence on that. So, if 112
conditions are fulfilled, there is conclusive proof of legitimacy. Further evidence to disprove
paternity is barred.
Evidence is a way to try to prove something. Is evidence used to prove truth? It is used to show
that by some standard, something is likely the truth. Several interpretations are possible from
a piece of evidence. So objective truth cannot be established, only a subjective truth.
So, there are two steps: 1. I use evidence to establish my story or hypothesis that this is what
happened. 2. My story or version is better.

1
Assumption of an adversarial system: In an adversarial system, both sides come and argue. They
present their own versions of the truth, which are conflicting. The judge listens to both sides and
she has to disentangle the true version.
But if it is about the truth, why are certain evidences not admissible? What is the purpose of
evidence then? Does it exist to obscure the truth?
Important note: trials are about facts (not so much about evidence). Appeals can be about law.
But a trial mostly depends on what facts are proved, not proved and disproved.
The lowest standard of proof is ex-facie: when there are no records. There is a contingent
possibility of reaching a higher standard. This is lower than even prima facie.
Balance of probability is a quite high standard, used in civil cases.
Highest standard of proof: beyond reasonable doubt. Note, this does not mean beyond all doubt.
The objective, glorious truth exists beyond all doubt. The law does not concern itself with going
there.
09/07/21
THOMAS WEIGEND
It is not the correct statement that trials have the function of uncovering the truth. Sometimes, the
system incentivizes the parties to hide the truth. See the case of Agnoo Nagesia. S. 25 of IEA is
applied: irrespective of whether it is the truth or not, the confession to a police officer is not
admissible. It can be recorded, but it cannot be used to prove anything. Weigend would say: this
rule of law does not care what the truth is. It cares about procedural safeguards. It is about
privileges: certain communications are barred from disclosure.
There are lots of rules like this. They might help in uncovering the truth, but a rule of law bars it.
Maybe the criminal trial is not about the truth at all (“truth” = substantive sense. What really
happened, who really did it, etc.). The search for truth cannot be totalitarian and unguided. Law
has some other considerations which need to be taken into account: such as procedural
safeguards.
Yet, many SC judgements are present where courts have remarked that the purpose of criminal
trials is finding the truth. Even some scholars believe the purpose of evidence is to get to the
truth (Wigmore- cross-examination is the engine of Truth). But if that were the goal, there would
have not been any laws on active concealment of the truth. For example, there is a rule which
says that illegally obtained evidence by the police is not admissible. Even though it would be
very much near the truth.
<Practical limitation of non-admissibility: Even though on paper you have the right to check
admissibility of evidence, it does not translate. They push the argumentation on that point to the
conclusion of the trial so that the evidence is recorded for the time being and later perhaps struck
out- so it ends up being at least prima facie impressed in the mind of the judge anyway>
These procedural safeguards have actually developed very recently. For example: earlier, it was
believed that the accused would always lie in his evidence and was barred from being his own
testimony.

2
[Garrow: a UK barrister who is responsible for actually creating a number of such procedural
rights. Series recommendation: Garrow’s law.]

Why is the law doing this? Why are there legal provisions which obscure the truth? According to
Weigend, the purpose is actually resolving the conflict which has occurred because of a crime.
An imbalance has been caused in society, in the principles which the law recognize. The purpose
of a trial is to reinstate this balance. This does not mean that the truth is not important. It is
indeed. But if the question is about restoring the harm, there are values other than the truth that
the criminal process must care about. It is to ensure fairness to both sides.
There is this principle: better to let several guilty go free rather than convicting an innocent
person. Convicting an innocent person messes up the abovementioned balance even more. No
goal is being achieved if an innocent is being convicted. The truth of the accused person does not
become the most important goal: something else does.
Why do we tolerate such a system which deviates from the truth? The other systems are not
any good either. They make a number of assumptions which are not realistic. For instance, trial
by ordeal: the accused was punished and tortured, and a confession was made out of him. It was
assumed earlier that a confession is always correct. However, it is never clear whether that
confession is correct or whether it was made out of the accused due to the torture.
It’s not like the legal process today does not care about the truth. It’s still a crucial value even if
not a paramount one. It makes an “honest effort to find the truth”- and that is enough. Example
of a procedure which favours the truth: Oath requirement. Oath is a solemn undertaking as a
witness that the testimony is the sole truth. Taken in the name of a God or conscience.
A criminal trial must prioritize procedural truth over of substantive truth. Procedural truth =
the truth which the law is allowing you to see in the court. It may be only be a part of the total
truth, or even be very close to it. Sometimes, procedural and substantive truth may even
coincide. How to ensure this, for instance in Aghnoo Nagesia? If his confession is properly
recorded before a judicial magistrate. Then in such case the two truths coincide.
Why should procedural truth be prioritized over substantive truth? Note that the court should go
only as far in finding the truth as is necessary to convict/acquit the accused. The legal standard
for the prosecution is not objective truth, but to a particular standard (preponderance, reasonable
doubt, etc.).1 So, it is of no point to pursue the objective truth at the cost of risking fundamental
procedural values such as privacy, liberty etc. There are much worse systems other than this
system of procedural truth which has taught us lessons over the years. So, discarding this current
system is not wise. Additionally, finding the objective truth has vast costs attached to it: time and
resources, risk to human rights, etc. It is near to impossible.
Many times, people do ask for more than the “honest effort”- often while subverting procedural
safeguards. Ex.: Delhi gang rape case and asking for a particular punishment One way is to give
up procedural rights for substantive truth. But we don’t want that because procedural rights
diminish the power dynamic between the State and its subjects. Giving the state to give/take
away procedural rights in finding truth will introduce arbitrariness

1
Makes the job of prosecution easier: they need not prove the objective truth, but only a particular standard.

3
One great value of this system is predictability. It is consistent in its compromise. A system
which tells the prosecution to do anything to get the truth out has no predictability. In conclusion,
we have accepted a tradeoff that we are more concerned with the procedural values of truth.

But is the normative goal of a trial substantive truth, and we are only settling for something
lower? For instance, a technology comes in the future which can read the minds of an accused,
given it is not painful? Note that the Narco test in Selvi and all are seen as very intrusive.
Procedural values would always trump such technologies.
Note: can DNA, fingerprint, blood sample etc be self-incriminating? Can be argued in
both ways. But mostly, these sorts of facts are not alterable (same applies to a password
or face-lock in a phone – can escape the law on self-incrimination because they are not
alterable) Under Narco test, it is something which if the accused wants, he can withhold
or alter. This is a difference between the two.
SIDNEY PHIPSON:
Before going into the article, look at S. 3 of IEA: definition of evidence. It uses the phrase
“means and includes”. This phrase implies that there are at least 2 types which will always be
evidence = oral and documentary. There is no 3rd category under the IEA. these broad categories
are exhaustive; but within these two, there can be various kinds (inclusive).
“Evidence” — “Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) 6 [all documents including electronic records produced for the inspection of the
Court], such documents are called documentary evidence.
Oral evidence will always be admitted by using three safeguards:
i. Oath: a witness will be required to take an oath before they speak. Had a religious
connotation as it developed in law- understanding that if they’ve taken the name of
God, there’s a spiritual obligation to not lie. Now it puts the witness on notice for
perjury-related offences (don't say thing you aren't sure of/ know are wrong). The
only time an oath can be dispensed with is when the witness does not understand the
nature of an oath. Eg, a young child.
ii. Cross-examination: the other side needs to be given an opportunity to cross-examine.
A good cross-examination can cast doubt on the witness and his testimony.
iii. Demeanour: the judge can observe how the witness is talking and accordingly the
judge can decide whether they want to believe the witness [which is why oral
evidence needs to be taken before the court].
Section 280 of CrPC:
280. Remarks respecting demeanour of witness. When a presiding Judge or
Magistrate has recorded the evidence of a witness, he shall also record such
remarks (if any) as he thinks material respecting the demeanour of such witness
whilst under examination.

4
The 2nd and only other type of evidence is documentary evidence. Electronic documents and
records can also be covered within this category. Amendment made by the IT Act, not initially
thought of by the drafters.
Now Phipson claims there is a third category: real evidence. IEA completely ignores this
category.
Defining Real Evidence
Bentham defined it- evidence derived from material objects not being documents- the product of
an object may be capable of giving rise to factual inferences and understandings
Case study) Revolver seized from the house of the accused in shooting murder case, maybe also
at his instance- prosecution produces it before the Court- is it evidence?
12/7/21
There is no mention of production of material objects before court. In routine matters material
objects are produced: revolvers, clothes, etc. The doubt starts whether they can be brought under
the definition of evidence in IEA – oral or documentary? No. So, they can be produced but they
are not evidence. However, they can become a part of the descriptive document, like “a gun was
found here” etc. In that way it indirectly becomes documentary evidence.
These are called facts under IEA. Facts is also defined in S.3 of IEA.
“Fact”. — “Fact” means and includes—
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified time
conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

“…capable of being perceived by the senses” = talking about the 5 senses

“…any mental condition” = happiness, fear, threatened, sad etc. Mens rea also included. See
illustration (d). “…particular sensation” = cold, happy, etc.
Evidence is the means to prove, disprove or not prove certain facts.
Example) to prove mens rea:

5
 ● Make mens rea a fact

● Use oral and documentary evidence to prove fact (Witness statements, etc)

The material object produced will be a part of the oral or documentary evidence. Therefore, there
is no need to bring in a third evidence category: Stephen’s view. Sir thinks he is right.
You could prove not only the thing as a fact (the gun), but also its state/relation with other things
(relation- that it was seized from the house of the accused; that this gun was the one used to
shoot the accused etc.). When objects are produced in Indian Courts, they’re not treated as
evidence- they’re marked as exhibits and treated as facts, to be proved, disproved, or not
proved. Sometimes the methods used to collect facts (such as forensic evidence, blood samples
etc.) are considered methods of collecting evidence- that’s a wrong use of the term- they’re
methods of collecting facts, these facts will later be proved in Court through evidence.
Phipson’s article and several definitions of real evidence make the concept very complex.
What if evidence “speaks for itself”? As in a particular piece of evidence is so clear but no facts
are present to “prove it”. Does res ipsa loquitur apply? It applies to facts. Once a fact is proved,
inference can be drawn. In res ipsa loquitur, the fact itself can give a clear inference. Here, the
fact-evidence distinction is not collapsing. Here, the judge becomes the witness. For instance, if I
see that it is raining, I become the witness myself.
Note: some facts are too preliminary which need not be proved. They are called judicially
noticeable facts. The court notices them as proved. In contrast, res ipsa loquitur are inferences.
Mens rea, actus reus and causation are special types of facts: “facts in issue”.
Each fact is a brick. The prosecution is trying to build a wall. One or five brick is not a wall.
Each fact, once proved, gives an inference. For instance, motive to murder someone is not
enough to build a wall. But the motive can lead to an inference. The job of the defence is knock
off bricks from that wall till the point it collapses.
This does not mean that judges cannot look beyond evidence. There are some things in evidence
law which do not fall into the category of evidence, but they are observed and noted by the court.
They may be in the nature of evidence. For example, demeanour.
Look at proviso 2, S. 60, IEA:
60. Oral evidence must be direct. –– Oral evidence must, in all cases, whatever, be direct; that is
to say –– …
Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.
Also look at S. 165 of IEA:
165. Judge’s power to put questions or order production. –– The Judge may, in order to
discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at
any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order

6
the production of any document or thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, nor, without the leave of the Court,
to cross-examine any witness upon any answer given in reply to any such question: …
“…or of the parties”: this cannot be oral evidence.
“…production of any document or thing” = document toh okay, refers to documentary evidence.
The section also says “thing”.

Then look at S. 3. Definitions of “proved”, “disproved”, “not proved”:

“Proved”. –– A fact is said to be proved when, after considering the matters before it, the
Court; either believes it to exist, or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it exists.
“Disproved”. –– A fact is said to be disproved when, after considering the matters before it, the
Court either believes that it does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition
that it does not exist.
“Not proved”. –– A fact is said not to be proved when it is neither proved nor disproved.
“…after considering the matters before it” = matters can be broad. It can refer to also those
matters under S. 165. The section does not say evidence. Matters = evidence + other things (what
a material object looks like, what inferences it led to, demeanour).
Note. FACTS are proved, disproved, not proved. Not evidence.

Therefore, such material objects do not become evidence. Even in trial courts, the material
objects are named “exhibits”. Nonetheless, material objects do play a role in the IEA, as seen
from the above three provisions.
The distinction between facts and evidence has been consciously created in IEA, 2 unlike in
English common law wherein the two terms are used interchangeably. Why is this distinction
important? Will become clearer over the course. But, its snippet: for example: the rule of hearsay
has confused evidence lawyers for long. But the IEA does not use the term “hearsay”. How is it
possible to construct an entire code of law without using this term? It is possible by doing the
fact-evidence distinction. If the distinction is kept intact, we don’t need to bother the area of
hearsay and other complex rules. Stephen was trying to simplify the code. He re-oriented the
subject itself by breaking it down into its fundamental concepts.
14/07/21

2
Stephen described the significance of the distinction in his introduction to the IEA. The difference between fact
and evidence was being ignored by various actors in a legal fraternity- made the area of evidence very complex- bad
state in the UK, drafted a bill even for the UK but not taken up by Parliament. So when it came to India, Stephen
aimed for this kind of clarity.
Stephen- Because of the neglect of this fact-evidence distinction, the entire subject has been rendered in confusion
and rendered incomprehensible what was plain

7
Does Stephen’s fact-evidence distinction break down in cases such as OJ Simpson trying on the
glove, which is arguably real evidence in the form of a demonstration? Maybe. Or, counter-
argument: the judge becomes a witness here. He is drawing some conclusion from what he is
seeing. So, it can be argued that the fact-evidence distinction holds true. Can Indian courts
order such a demonstration? Yes, read S. 60 proviso 2 with S. 165: “production of such
material” + “production of any document or thing”.
Many scholars have criticized Stephen for ignoring the category of real evidence. Many such
scholars come from common law where this distinction is not present.

Coming back to the definitions of proved, disproved, not proved:

What is the standard of proof? There is no standard of proof in this definition. It is deliberately
kept very aloof from any legally defined standard of proof. It is capable of encompassing any
standard, depending on the nature of the case. For instance, in bail applications, the standard of
proof might be simply prima facie. In other cases, it could be beyond reasonable doubt. In a
criminal trial as well, the question of only guilt needs to be determined beyond reasonable doubt.
Other facts need not be proved to such a standard. So, there can be differences within a trial as
well. The definition is so malleable that it can encompass any such standard.

HISTORY OF IEA – ELIZABETH KOLSKY:

In colonial times, the young British officials did not have much idea about the law. The judges
were aided by learned religious men in the application of customary law. In criminal matters,
maulvis used to guide courts. Courts were supposed to follow equity, and reach equitable results.
All of this was left to the whims of the judge.
There were 2 classes of courts: civil and criminal. They had their appellate courts as well (sadar
diwani adaalat, sadar nizamat adaalat respectively). At this point, the EIC was trying to supplant
the customary laws with a new kind of understanding: this messed up the adjudication system. In
order for the British rule to continue, they needed to put in place codes. The system was earlier
vague, capricious and rudimentary. It should instead be stable. This translated into the British
rule bringing into India a civilized system and the benefit of rule of law, clear laws, fair
adjudication.
In codification, there was no democratic or representative process. It was done by a couple of
English men. Macaulay believed codification was more efficient when it is non-democratic. In
the UK too, codification was at a rudimentary stage. Principles had been derived and followed
based on past precedents. In UK, this method was tolerated because it was generally a
codification-averse country since common law system had been operating for a long time.
Additionally, UK had a democratic process in codification which made the process cumbersome.
In India, there was no tangible opposition to codification.
Codes of law were introduced and experimented in India, a colony. They believed that common
law could not work in India because: people are different; and a large number of sources are
required, judges need libraries and intensive sources which were not available in India.
UK at this time was an extremely class-divided society. So many Englishmen began coming to
India to generate wealth. They realized the legal loopholes in Indian legal system. The British

8
subject could not be tried in Indian courts by Indian law. They can be tried only in the Supreme
Court in Calcutta, which applied English law. So, suppose an Indian farmer has his land taken
away by a British in 1800s. With no literacy, no knowledge, no transport, no Indian would go to
Calcutta to sue this person. At this time, the cost of litigation in the SC Calcutta was exorbitant.
It would therefore be absurd to suggest that an Indian would be able to sue a British in the SC.
This implied that the British subjects (other than company officials) were free to do as they
pleased. They resorted to the worst types of criminality. At this point, a number of protests and
peasant revolts against British rule started coming up.
It was felt that these private British people must be brought under the realm of law. The only
way of making them answerable to law was to make the law English. They cannot be expected to
follow indigenous law. The only way was to change the law itself. The Company cared very
deeply about the longevity of their rule. They feared that if such criminalities continue, they
feared that Indians will rise up in revolt. They wanted the native Indian to be exposed to only the
best of the British life. If they see that the British people are prone to similar criminalities, why
would they respect them?
The British non-officer class were the most vociferous against the process of codification. They
believed that the Company had no authority to codify laws for the private British, since they are
subjected only to British law.
The motive hence to bring in these codes was not really a benevolent one. It was selfish in some
ways, something which will ensure longevity of their rule. It is however painted by the colonials
as something beneficial to Indians. Nonetheless, the introduction of these codes marked the first
time that laws were enacted without any reference to caste and class. It is still not true that
equality was achieved, since even now there was a distinction between British and native
Indians. The rule that the British cannot be tried by Indians continued for long.
IEA, IPC, ICA all have a predominant theme of simplification. Any person reading these codes
would be able to decide many cases. They lay down general principles (simplified those concepts
which developed over years in the common law and which are complex) and many definitions.
Thinkers like Bentham and Mill placed a lot of importance on the idea of codification. Bentham,
particularly, was not a fan of the common law system. In order to determine one question of law,
you’d have to consult volumes of books. It is cumbersome, and has a wide scope of ambiguity
and uncertainty. He believed that laws should be reduced to clear codes divided into sections
containing bare minimum set of principles. You should not make room for provisions which
have several exceptions, or which are conflicting.

Key tenets of codification:

● Reduce it to clear codes, bare minimum first principles

Example) No fault without culpability- causation

This would ensure that the code is symmetrical

● Code to be a self-contained system- predictability, certainty, ease of reference- code

should avoid reference to external sources

9
Example) Section 5 of the IEA- reflects that the act itself will tell us about both kinds of facts
mentioned- relevant facts provided for in Chapter II, facts in issue defined in Section 2
Section 5 makes it clear that if the facts don’t fit under the provisions, no matter which trial or
time period it is, they cannot be proved
Possible only when an exhaustive set of principles has been enumerated, to construct the body of
law (the statute and the subsequent precedents)- rather than trying to cull them out subsequently
from precedents- utilitarians’ preferred method

● Generality of application and consequentially comprehensiveness as well

Example) CrPC- applies to all criminal trials, and concomitantly provides for all stages of the
criminal proceedings

● Also believed in going to the fundamentals- things like what evidence is (and what it
isn’t) etc.

● The provisions should be reflected and consistent no matter which provisions you read
(like the fact-evidence distinction is maintained throughout the Indian Evidence Act)
16/07/21
In India they did more than just codify and rearrange. They brought in more provisions that
would provide clarity. This actually went beyond their terms of reference (Stephen--justification
that he had to modify due to India’s peculiar conditions, Macaulay didn't care to justify)
Stephen then went on to draft two bills in England: penal code and evidence law. Both were
based on the Indian models. However, none of these were enacted.
The Indian model was exported to many colonies across the globe: Pakistan, Sri Lanka, Kenya,
Singapore, etc.
SCOPE OF IEA:
Section 1:
1. Short title. –– This Act may be called the Indian Evidence Act, 1872.
Extent. –– It extends to the whole of India and applies to all judicial proceedings in or
before any Court, including Courts-martial, [other than Courts-martial convened under
the Army Act (44 & 45 Vict., c. 58)], [the Naval Discipline [29 & 30 Vict., 109] Act or
the Indian Navy (Discipline) Act, 1934 (34 of 1934)], [or the Air Force Act (7 Geo. 5, c.
51)] but not to affidavits presented to any Court or officer, nor to proceedings before an
arbitrator.
What is “judicial proceeding”?
Sec. 2(i) of CrPC: (i) “judicial proceeding” includes any proceeding in the course of which
evidence is or may be legally taken on oath.
Not a very helpful definition since it takes us back to evidence law.
What does “Court” mean?

10
“Court” ––“Court” includes all Judges and Magistrates and all persons, except arbitrators,
legally authorized to take evidence.
Everything is circular.
Definition of judicial proceedings not very helpful when differentiating from quasi-judicial- oath
is administered even under quasi-judicial proceedings sometimes
Some features of judicial proceedings from Admin law: existence of a dispute, parties, hearing
on both fact and law, determination of rights and liabilities
In Admin law too there was no principled clear difference between judicial and quasi-judicial -
there they created a difference based on (a) composition (only judges v judges and/or executive
members); (b) nature of functions- may not be a dispute, primarily factual determinations,
culminates in administrative actions
(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the
Local Committee, as the case may be, shall have the same powers as are vested in a civil court
the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following
matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
So, does the Internal Committee proceeding become a judicial proceeding now? The IEA does
not apply- why not?
Union of India vs T.R. Varma:
Allegation of abetment of bribery against a government servant- inquiry- found guilty, dismissal
recommended- argued that inquiry vitiated for 3 reasons:
1. He was not allowed to make a statement on his own. He was only questioned.
2. His own witnesses were not allowed to make statements. They were only cross-
examined.
3. He was not allowed to cross-examine the witnesses arrayed against him (a factual debate
on this one).
Para 10:
“Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in
the mode prescribed in the Evidence Act; but that Act has no application to enquiries
conducted by tribunals, even though they may be judicial in character.”
It is a question of legal right. So, this is a judicial proceeding. It is being taken before court;
evidence is taken on oath. So, IEA should apply. But the court says that IEA does not apply.
Reason for this is not clear.
Note, IEA does not apply to proceedings before Competition Commission and TRAI etc. This is
in fact not given in the section. The definition is broad enough to cover these bodies as well.
Such a distinction has been judicially created.
This case has made it clear that IEA does not apply to tribunals, disciplinary authorities,
departmental inquiries, etc.

11
So, what applies? PNJ.

3 principles of natural justice:

1. Audi alteram partem [this is what is used here]
2. A person should not be a judge in his own case (no bias)
3. It should be a reasoned order.
According to the Court, these principles are enough.
Nonetheless, there is nothing barring application of IEA. It can be an opt-in example.
Why is this distinction present? No principled reason. Of course, this distinction saves times,
might be more effective, those in charge might not have expertise in evidence law etc. These are
valid, but still not a principled reason.
Look at the 3 grounds. If the IEA applies, these rights positively exist. But PNJ could be
malleable, and rights vanish.
Specific exclusions
There is a specific exclusion in Section 1 in the last line. IEA specifically does not apply to
affidavits and arbitration proceedings (this is followed in S3, “courts” as well).
What is an affidavit? It is a sworn statement of fact. It contains a recounting or description of
facts. The person who makes the affidavit is called the deponent. He swears to the truthfulness of
those facts. Public notaries record and administer affidavits. (s. 297 CrPC).
What does this exclusion imply? Two of the three safeguards of oral evidence cannot apply to
affidavits. Oath is being taken, but cross-examination and demeanour cannot be applied.
[cross-examination of an affidavit can technically take place – called cross examination by
interrogatories. But this is a very unsatisfactory process. It is a written process, and a lot of time
is taken to answer the questions, and the person has enough time to think and write].
If 2 out of 3 safeguards are missing, there is no point of using it as evidence.
Nonetheless, several special legislations do allow you to take evidence on affidavit. IEA is
general. Special will override general. Examples: CPC Order 19; CrPC S. 295 [they are special
compared to the IEA as it is the most general and applies equally to both, but they are general in

12
their own areas]: Rule 1 Order XIX of Code of Civil Procedure 1908 "Power to order any point
to be proved by affidavit", s. 295, 296 of crpc.
Even in such cases, the Court has a discretion, and the other side has a right, to ask for the
production of the witnesses making the affidavit- enforcement of the 3 safeguards.
Other examples from LMS (all these sections are worded quite similarly):

Arbitration proceedings are also excluded from IEA. Why? The parties are free to choose
whichever law applies to them. Their goal and nature are very different from judicial
proceedings. It is an opt-in system; the parties are free to choose IEA.
If IEA is not applied to a judicial proceeding, it could lead to some problems. For instance, IEA
mandates the complainant’s witness to go first before the defendant’s witness. This is so as to
ensure that the defendant gets to reply and contest each of the complainant’s allegations. If the
complainant’s witness goes after, he may raise a new point to which the defendant will not get a
chance to reply. If IEA is not being followed, this provision might be disregarded.
Certain Court Proceedings
Extra-IEA:
1. PILs- strict proofs of some things may not be available, PILs are not adversarial
2. Contempt of Court proceedings
Concepts
Proved, Disproved, Not proved (Section 3)
Subject-matter of all 3- a fact, never a piece of evidence- evidence is never proved/ not proved/
disproved
Some facts are not proved, disproved, not proved- presumed away (Section 4)
Preconditions

13
 ● when considering the matters before it (evidence AND demeanour, condition of material
objects under various provisions, answers to questions posed under Section 165 etc.-
deliberately left unclear)

● The Court either believes it to exist

● Considers its… exists- basically that if a prudent man had considered all the matters, he
would’ve believed that it existed
Disproved- You’re proving the fact’s non-existence- again, will have to give existence to prove
the negative of the fact
Not proved- Neither party was able to do anything about it
Standard of proof in these definitions
The lack of any one standard of proof
There are 2 parts to this- believes it to exist, OR considers its existence…. exists- give no
indication of the standard of proof
The mention of prudent man doesn’t turn it into a balance of probabilities standard, drawing
parallel to civil law- in civil law, the reasonable man standard is a standard of care/conduct, not a
standard of proof.
Ambasta- the definition is kept aloof from any legally recognised standard of proof- Stephen
knew about the standards of proof, couldn’t mention them.
Popular assumption is that prudent people act on preponderance generally.
First part talks about the Court believing it- in the second part, even if the Court doesn’t believe
it, doesn’t matter- if Court considers that prudent man must think even if Court does not think,
it’s proved.
The different standards of proof in different kinds of proceedings
Standards may correctly vary, considering the different kinds of proceeding before court (or
different types of facts even in the same kind of proceeding)- contingent on nature of
proceedings and nature of facts.
This definition is capable of encompassing them all- the standard on which the Court believes it
to exist/ the prudent man ought to act upon it is not mentioned
Criminal Proceedings and standard of Proof
Different standards for different kinds of facts. Bail has a prima facie standard.
In criminal law, ultimate guilt is to be proved beyond reasonable doubt (as well as all facts-in-
issue), only then court will believe in sentencing. But in the case of other facts even in a criminal
case (the related facts other than facts-in-issue), don’t have to prove beyond reasonable doubt
(such as the presence of the accused at the crime scene)- they can’t all feasibly proved/disproved

14
beyond reasonable doubt, you’ll never have a conviction if that’s the standard you set for all
facts.
After all these individual facts are proved on preponderance, the facts-in-issue and ultimate guilt
have to be proved beyond reasonable doubt- a gap- so no automatic inference that the person is
guilty, there may be a reasonable doubt, prosecution may prove everything it wants to prove and
still not get a favourable verdict.
Even in the same kind of trial for the same kind of fact, in 2 trials, in one trial the standard may
be preponderance and in another beyond reasonable doubt- so standards may vary- just that in
criminal trials, except matters of interim relief, they don’t go below preponderance.
19/07/21

THEORY OF RELEVANCE
What is the set of facts or things which are relevant for a certain judicial proceeding to proceed
and decide a particular case?
Definition of relevance as per IEA:
“Relevant” –– 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 this Act relating to the relevancy of facts.
Relevance is always determined independently by using logic taking into account what is the
nature of the proceeding and what are the set of facts. This is the theory of relevance.
LOGICAL AND LEGAL RELEVANCE
Theory of logical relevance: logically show how your facts are relevant. If the court agrees,
you’ll be allowed to prove those facts.
Theory of legal relevance: only facts that are declared by law to be relevant will be proved.
Every fact is presumed to be irrelevant. If a provision says that a particular fact is relevant, then
it is relevant. So, I as a lawyer am not in liberty to argue the relevance of a fact based on logic.
The first system does not give you much guidance on what could be more relevant. The second
system gives very precise guidance.
In IEA definition of relevance, theory of legal relevance is being followed.
Anything in the universe can be remotely connected by using logic and stretching it to an absurd
extent. For instance, the sun rising in the east could be somehow connected to the guilt of a
person. Or say, the fact that he was born becomes relevant since if he wasn’t even born, there is
no question of guilt. This is the drawback of logical relevance.
Legal relevance, on the other hand, embodies a principle of logic. You need to follow the
provision, and not the principle independently. Many provisions are an extension of principles of
logic. But puts strict limits on how far you can stretch that logic, reduces the principles’
independent application.
Other times, legal relevance can supplant logic. Some rules of legal relevance can render
irrelevant even logically relevant facts, because of their violation of other principles or values
that are considered relevant in the trial.

15
Example) The fact that the accused has been previously convicted for a similar offence in the
past- logically relevant (slightly higher chance of his guilt than a first-time offender). But legally
ruled out from relevance- since it can cause prejudice in the minds of the judges/ especially
juries.
Generally, legal relevance is a better theory to adopt, especially in the Indian context: Too much
subjectivity and discretion in logical relevance- becomes contingent on the judge and the lawyers
in the case. There’s some discretion in legal relevance too, provisions themselves might give it-
but then relatively, it is better. In addition, logical relevance favours those with quality legal
representation, and that’s only for the privileged in India.
The IEA definition and the adoption of Legal Relevance (Section 3)
Subject-matter
Fact is the subject matter of relevancy. So, never say that evidence is relevant/irrelevant.
Meaning
It’s a circular definition- it’s relevant to another fact if one of the provisions of the Act says that
it’s relevant to that other fact.
Example) Fact of guilt of the accused and fact of the presence of the accused on the crime scene
at the time of the crime- two separate and independent facts. If you are arguing that the latter is
relevant to the former, you have to show a provision in the IEA’s relevancy of facts chapter
which recognises the connection between them.
Clearly follows the principle of legal relevance - adopted especially in the British colonial
context, to comprehensively guide untrained British officer-judges, who were without resources
or the training to appreciate common law development OR the knowledge of the nature of Indian
disputes and local conditions.
The structure claims to recognise all factual interrelationships that will ever be relevant for any
kind of trial- bold claim.
The relevance of relevance under the IEA (Section 5):
In putting limits on the evidence that can be given
Section 5- Puts limits on the evidence you can give in a suit/proceeding- only to prove (of the
existence...) or disprove (of the… non existence) facts-in-issue and relevant facts.
“And of no others”- shows that it’s an exclusionary rule.
Facts in issue: actus reus, mens rea, causation. Question of liability can be followed only if all
the three are fulfilled.

16
Explanation: Express bars under the Civil Procedure rules will override this general rules
Illustration (b) shows one such situation- basically that the general rule here will not override
procedural rules, on the ground that the bond must be allowed to be produced since Section 5
allows evidence of relevant facts and it’s relevant.
But for the IEA, it is the rule that evidence can be given of all facts-in-issue and relevant facts.
The three doors for proving a fact under the IEA
3 sequential doors for proving a fact under the IEA:
1. Relevance of the fact
The judge/ finder-of-fact must be shown that the fact would be relevant.
By pointing to Section 3 and 5, and further the provision between Section 6 and 55 that makes it
relevant. Example) For motive- show Section 8.
2. Admissibility of the evidence being advanced to prove the fact
Evidence is either admissible or inadmissible. You must show that you have evidence that is
admissible under the IEA framework.
Does it fall under the definition of evidence under Section 3? Is it excluded from being evidence
under any law?
Section 136- The judge is entitled to ask how the fact for which the evidence is being given
would be relevant: admissibility only if the fact is relevant, and not otherwise. The condition in
136 - for contingent facts (which are relevant only if another relevant fact is proved).
3. Reliability/ sufficiency of evidence
Related to the quality of the evidence. Is your evidence enough? Is it of a particular quality?
Does it meet the standard of proof for proving the fact? If (and only if) all these doors open- your
fact is proved.
Facts-in-issue
Meaning
Very specific type of fact, the core ones- in common language, such facts that answer the
question before the Court
Illustration:

17
 1. Causation- from its non-existence, necessarily follows that liability does not exist (though
not vice versa)
2. Mens rea- from its non-existence, necessarily follows that liability does not exist (though
not vice versa)
3. Special defense (Section 300 Exception 1)- from its existence, necessarily follows that
the extent of liability gets diminished (to CHNAM)
4. General Defense (Unsoundness of mind)- from its existence, necessarily follows that
liability does not exist
Illustration in Section 5: all the facts mentioned will lead to liability together if proved, and
individually negate liability if not proved/ disproved.
It doesn’t necessarily have to be the ingredients of the section/offence- like alibi is a fact-in-issue
too (alibi is a defense)- the list in the example is not exhaustive
Kunal: Alibi is not a fact-in-issue by itself, can become one if you manage to prove it
Explanation) In Civil suits, the Court first notes the issues for determination- all those issues of
fact, and any assertions of fact in denial thereof, are facts-in-issue.
Ultimate fact-in-issue in a trial- whether the accused committed the offence, not “who
committed the offence” - trial is not an inquiry, inquiries aim to find what happened generally.
Relationship between facts in issue and relevant facts

● Facts-in-issue as a subset: Each fact-in-issue is always a relevant fact- and can always
be advanced evidence for and proved/ disproved under Section 5
Relevance is a lower threshold- many facts can be relevant

● Relevant facts do not lead to conclusions by themselves

Example) Motive- whatever we may answer as to the existence of the motive, the conclusion
regarding liability does not necessarily follow. Even if motive is proved, it does not conclusively
establish guilt – it is a relevant fact. But it does surround the fact-in-issue since it gives the court
an inference and makes it more likely that the accused is guilty. Prosecution can use such things
to bolster their case. On the other hand, facts-in-issue can conclusively answer a question. They
must be answered in any trial.

● Facts-in-issue as the determinant of the ambit of relevant facts: Facts-in-issue are the
core ones, surrounded by relevant facts, surrounded further by irrelevant facts- while
deciding which facts are (or should be) relevant, it’s like a wall, where you start with the
facts-in-issue and see which facts are relevant to prove these
The facts-in-issue influence what the relevant facts are, those that are connected to the facts-in-
issue (such as mens rea making motive relevant), and these relevant facts could further make
other facts relevant (such as a fact that rebuts motive becoming relevant)
It’s like a flower blossoming- the bud is the facts-in-issue, and they spread relevance around

18
Only that in the case of legal relevance, for the fact concerned to be relevant, the connections of
relevancy must be recognised by the IEA

● Relevance as a brick: Justice Benjamin Cardozo- Relevance is a brick- a brick is not a

wall, but many bricks together might form a wall
So, the prosecution will try to bring in various bricks- proving any one will not build the wall,
and knocking one out won’t demolish it (conceptualize how knocking out motive will not
demolish the prosecution’s case)- but all of them together can lead to the building of the wall.

Doesn’t ‘in connection with the facts’ lead to the definition becoming too broad, to include all

Fact-in-issue can answer the question in trial. Relevant facts will not do that. They can
lead to interesting inferences though as to what has happened.

relevant facts?3 Like motive could also lead to inference of guilt in connection with other facts
1. Seems that way but the test is whether the particular fact, if either proved or not proved,
leads to a conclusion regarding the liability
2. Facts-in-issue- the ones that the Court itself frames as issues to be determined-
framing of issues is part of every trial
Example) Issues for determination- can be legal, and factual (like possession- mixed question of
fact and law but assume that it’s a factual question).
Applying the definition, the Court itself has framed the facts concerned as one that will
determine the outcome.
Importance
Facts-in-issue form the core of any trial- are the question that need to be answered.
They give a direction to the judge, and the parties- ensures that the trial does not digress too far,
and also determines the relevant facts
Example) Form of a charge under Form 32 Schedule 2 CrPC
Facts that already become important in this form: ingredients of the offence, whether the person
was present there on that date etc.- some of the facts in the charge can become facts-in-issue,
others might be relevant facts (like the time and place of the offence). [all facts here are not fact-
in-issue].

19
During the framing of charges, not all facts-in-issue are unearthed. For example, unsoundness of
mind. It is a fact-in-issue, but comes up at a later stage.
Example of facts-in issue and relevant facts
R v Donellan

The age of the deceased here is logically relevant as an introductory fact, that could introduce
another fact- made legally relevant under Section 9

● If it came to Mrs. Donellan, it would’ve come to him- since women couldn’t hold
property back then - so this fact shows a potential motive- not a fact-in-issue by itself, but
a relevant fact

20
 ● Could negate the suggested motive if proved. Meaning, this fact would show that there is
no motive. Evidence can be given for the existence or non-existence of a relevant fact.

5 – preparation – relevant under S. 8. He is preparing that no one should suspect him to be the
murderer.
Next portion

● Getting the feet wet- could make one fall sick in a cold climate as was present there

21
He’s trying to tamper with evidence

He’s trying to tamper with evidence, concealing facts, insisting on the lie that the deceased had
taken cold

This contraption could’ve been used to make prussic acid

22
 ● In the various examples, there are some facts that are logically relevant by virtue of their
connection with the facts-in-issue- but for the IEA, what matters is the legally recognised
connections, which have been specified under some or the other provision of the IEA
Munshi Prasad v State of Bihar
Facts
Murder in a village- accused with his family member and friends surrounded the deceased and
his brother while they were going to the village by cycle- complainant ran away but he saw his
brother being caught, assaulted with agricultural implements, and killed.
The complainant tells people on the way, and also goes to the police station and gets an FIR
registered, names the accused- never goes to the Panchayat himself- investigation starts.
Panchayat happening 400-500 yards away- Accused argued that he was present in the Panchayat,
people had seen him there, so claimed alibi- this entire fact of panchayat was introduced by the
defense as alibi.
Analysis
Logical understanding of alibi- a defense as it negatives the possibility that the person had
committed the actus reus- can’t be at 2 places at the same time. If the alibi is proved, there’s
acquittal generally.
But in this case, the distance is so short that even though the presence in the Panchayat is proven,
actus reus is not negatived- Court argues that it’s not a significant distance at all, especially for
the people of the village.
So, the inference regarding the fact-in-issue that the defence wanted the Court to draw was not
drawn.
Does it even count as alibi in the first place?
Lessons regarding relevance:
1. If you’re relying on a particular fact (or even rely on a particular kind of evidence/ make
a certain admission), once you prove it, you’re bound by it- estopped. After it is proved,
you cannot ask the court to ignore it.
2. Be careful what facts you raise as relevant- by design, the IEA does not give guidance on
the kind of inference that the Court will draw from the proved facts.
Here the inference drawn ended up favouring the prosecution.
The fact that the IEA allows you to prove something does not mean that you have to go around
proving it.
Specific Chapter II Provisions regarding relevancy
Section 6

● Ingredients: The following facts declared relevant:

23
 ● The facts here are not in issue

● But have a connection with a fact-in-issue (and not to another relevant fact)

● The connection: Being part of the same transaction

● Doesn’t matter whether they occurred at the same time as the fact-in-issue, or at different
time and place as compared to the fact-in-issue

● Definition of Transaction: Transaction not defined in the IEA- Stephen defined it in the
digest of the law of evidence.
A transaction- any set of things that can be referred to under a single legal name
Example) A contract would be a single transaction- and the various constituent elements of it are
relevant facts (offer, acceptance, communication, consideration etc.).
Example) The stages of a crime (intention, preparation, attempt, commission)

● Scope of ‘transaction’: Anything said and done during that transaction can be made
relevant
Example) If you say to a person “I will kill you” before shooting- part of preparation/ attempt
Example) Anything said/done under a conspiracy
Illustration (b): Waging war against the government of India is the transaction here, since it can
be referred to under a single legal name. There are various events happening at different times
and places- but all are within a singular legal name (waging war against the government of
India)- for offences, that would include facts relating to all the stages of the offence concerned,
even if temporally they’re very far away
Illustration (d)- all of them form part of the transaction of delivery

● The most common usage of Section 6- for things done immediately before/after the fact-
in-issue- but can also be used for transactional facts (such as the delivery example)

● Judges’ role: Can ask how a fact is relevant under any of the provisions, including this,
and decide whether they are
Judges: gatekeepers of evidence- ultimate authorities to decide which evidence will, and
will not, be admitted- even when there are juries
Ratan Singh v State of Himachal Pradesh
Facts
Lady in advanced stage of pregnancy- shot with pellets by the accused- pierced her lungs
immediately- accused ex-army man, appealed right to the SC

24
Deceased’s husband was an employee in PWD, was mostly away- not there at the time of the
alleged offence- accused had been stalking the deceased for several months, had been shot down
by her- prior incident where the accused had shot the dog of the deceased, firearm taken away,
later restored
At the night of the incident: She was alone in her room- there was courtyard in the house, some
people were sleeping there as well- mother-in-law heard the deceased shouting that the accused
had pointed a gun at her, moments later they heard a gunshot- appellant jumped into the
courtyard, then ran away, leaving his gun behind along with torch and slippers- fingerprints not
able to be retrieved
So, the deceased identifies the accused, the mother-in-law hears this, and moments later the
accused was shot
Analysis
Is this statement by the deceased part of the same transaction as the fact-in-issue, so as to be
relevant fact under Section 6? (Statement of the deceased- fact under Section 2 definition as it is
a thing perceived by the senses, hearing here)
Court answers in the affirmative and draws parallel with illustration (a)
In this case, even the attempt has started when the deceased said it- what the deceased said
becomes a relevant fact
Proving this relevant fact- through oral evidence in this case- with the mother as a witness
The Court in this case brought in hearsay- but no need- could easily be proved under Section 6
There was, and generally is, no necessity of going down the hearsay route.
After the fact is proved, it’s time for inference- in this case, the inference would be that the
accused was there and he shot the deceased.
So, 4 questions:
 Is it a fact?
 Is it a relevant fact?
 How will you prove it?
 If you’re able to prove, what is the inference?
Note: A same fact can be relevant under two or more sections of chapter 2. (in this case, the
woman shouting is relevant under both s. 6 and s. 9).
Sukhar v State of UP
Facts
Trial of attempt of murder. Victim goes to the police station with 2 persons- injured- said that
there was an attempt to murder by his nephew (Sukhar)- tells them of enmity between the two
relating to the share of the crops- Sukhar caught hold of his bag and fired a pistol at him.

25
The victim was discovered by the 2 persons after the shooting- said that Sukhar had shot him-
they took him to the police station.
Analysis
The statement made by the injured person prior to going to the police station- is that a relevant
fact?
But then how long does the transaction extend? How long does the crime of attempt to murder
last? The illustration (a) mentions ‘so shortly’, what does that mean? Statements made
immediately after the crime are covered under s. 6. No possibility of concoction. If there is too
much of a time lapse, the statement might be concocted- while if it’s fresh, there is less scope for
fabrication- res gestae, a hearsay exception.
But res gestae has nothing to do with Section 6- hearsay and res gestae are about admissibility of
evidence, not relevancy of fact
Applying Section 6 through a literal interpretation, it’s clear that this would be a relevant fact-
though temporally, you’d draw a line somewhere in terms of time after the attempt, like when
FIR is filed. You cannot stretch s. 6 too far. The transaction would end at some point.
Note: example of a situation: people’s reactions after a crime differ. Say someone is murdered
but immediately after their parents do not cry. Is this relevant? Ch 2 makes it relevant, the policy
problem here is not relevancy of fact, but what kind of inference can be drawn from the relevant
fact. IEA does not guide the judge’s inference, and that is proper because each case, all facts and
circumstances are different. Another similar example: how rape victims should or should not
react.
26/07/21
Yusufalli v State of Maharashtra
3 judge bench- SC
Facts
Offence of illegal gratification of public servant
Ali’s wife served a notice that house needed repair and that she had to do it- failed to comply,
summons served, didn’t appear before magistrate, bailable warrant to be done by Sheikh- clerk
Sheikh was offered a bribe by the accused not to execute the warrant- clerk upright, reported him
Again, Yusuf Ali offered the officers bribe when they came to his office- they tried to set up a
trap after getting necessary permissions- tape recording with microphones and all- the
conversation was between Yusuf Ali and Sheikh, and the others were in a separate room where
they couldn’t see or hear anything. Ali offered bribe- said “paan laao” (that the bribe had been
offered)- caught
Legal Issue: Whether the conversation at the time of the bribe would be relevant
Analysis: Yes, it is- the fact-in-issue here is whether bribe was offered- and this conversation
formed part of the transaction.

26
Caution regarding the 3 judgements: all of them say that Section 6 makes particular kinds of
evidence admissible- but Section 6 does not make evidence admissible, it makes the facts
relevant- confusion between relevance of fact and admissibility of evidence on the Courts’ part
Here the evidence through which this conversation will be proved will be the tape recording-
documentary evidence- where the purpose is of storing something on another substance to
create a record/ store something- the marks need not be visible, not necessary that you can make
sense of them
(PS: A tape recorder is not an electronic device)
Once the fact is proved, inference regarding the fact-in-issue can be drawn- the judge can infer
that bribe was actually given.
Facts that are occasion, cause, or effect of facts-in-issue (Section 7)
Ingredients
Non-contemporaneity
Immediate or otherwise removes contemporaneity as a requirement for occasion/cause/effect
Doesn’t mean that opportunity should be within a particular timeframe- for them, when exactly
they should occur in terms of time depends on the facts of the case
What the connection of the fact concerned should be with
“Of relevant facts, or facts-in-issue”- shows that the fact being made relevant under Section 7
could be connected to facts already made relevant as well
Connection required with the relevant fact/ fact-in-issue
One of the mentioned 5 (occasion/ cause/ effect/ state of things/ affording an opportunity)
None of these are defined.
Cause and effect
How direct/ indirect can causes/ effects be? Require a causative/direct link- See illustration b
Illustration b) The marks are an effect of a fact-in-issue.
Other things like blood splattering because of hit.
R vs Donellan: gurgling in stomach, smell of the poison, etc are direct effects.
Occasion
A fact that fixes the time and place for a particular thing. Still part of the sequence of events,
though not affording an opportunity/ being a cause; no causative relation when something is an
occasion for the something else, very indirect causation at best.
Going to fair with money in my pocket: occasion. It is not an opportunity (having money in
pocket is not giving someone an opportunity to rob it).
Affording an opportunity

27
Some kind of a but-for connection- more particular than occasion
Illustration a) Wrt the first fact, of going to the fair with money: Doesn’t seem like a cause unless
you apply very broad tests- would be victim-blaming if we call it cause here
It cannot be said to be affording an opportunity- it just gives rise to the occasion at which the
robbery takes place
Even telling others that the person has money does not afford the opportunity- still a fact
constituting the occasion (didn’t cause or afford an opportunity for an offence, but still part of
the sequence of events having some remote indirect causation)- affording the opportunity would
be something like leaving the money unattended on a table// money being shown to the robber//
the fact of the presence of the money with the accused becoming known to the robber. You need
some more degree of particularity, a more logical and closer relation.
Illustration (c)- from R v Donellan
Habits of B [affording an opportunity]- in the facts of the case the habits were that the draught
comes from a servant, and this habit was known to A- it’s because the habits were known to the
accused that this turned from occasion/ state of things to opportunity for occurrence
Applying this to illustration (a)- if the money were shown to the robber- would have become an
opportunity
State of things
Much broader than occasion- occasion requires particularity of time and place, state of things
can refer to various background facts. Facts about the lighting in the area where the offence
happened etc.
State of B’s health- state of things

Broad to narrow: State of things -> occasion -> opportunity

Kunal: not a very well drafted provision. He says we might be wondering where is the line bw
opportunity and occasion?
Cases
Balram Prasad Agarwal v State of Bihar
Facts
Deceased married to the accused- no children for half a decade so the husband’s family wanted
to kill the wife for the husband to have children with someone else. Demands made from in-laws
regarding dowry. Even after she was treated and was able to bear a child, she was still tortured
(physically and mentally)
On 31st night- she was crying out for help, at 3am “she attempted to commit suicide” in the
backyard well of the accused’s house

28
Found in the well- charged with 498A, 302 (killed by pushing her into the well to make it seem
like she committed suicide) and 120-B
Analysis
Whether these facts can be made relevant, and how, for the murder charge: (Try to make it as
specific as possible to make it qualitatively good for inferences to be drawn)
Background facts:

● Marriage happened (time and place of marriage not relevant by themselves)

● No children 4 years into marriage

● Conversation about marrying someone else after getting rid of her

● History of domestic violence, demands for dowry

● Attempted suicide 4 years ago- will be made relevant by the defence

All these are relevant as state of things. Note that these facts stretch back to many years.
Other more specific facts:

● Crying for help a few hours before the death- part of the same transaction AND effect
of actus reus

● Causative facts here- that they wanted to kill her initially because she couldn’t have
children (immediate or otherwise), or the non-fulfilment of the dowry demands.
Her not bearing children is not a factor in the harassment at the time of death- but can still be
shown as a cause in connection with dowry harassment- wouldn’t form part of motive for sure.
[motive could be remarriage]
Motive, Preparation, and previous or subsequent conduct (Section 8)
Motive/ Preparation
[1] 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.
- this is the 1st part
s. 6 also makes preparation a relevant fact. But this section makes it specific. Making it relevant
under this section is pointing it out to the judge: inference drawn from preparation will be
qualitatively different from the inference drawn from a general statement of same transaction.
Meaning of motive
Motive- the object with which the crime is being committed. What do you hope to achieve by the
commission of a crime?

29
Intention- could be an impulse to do something.
There are crimes without motive, but not without intention- latter is an ingredient in most
offences but motive is never an ingredient/ fact-in-issue.
Motive in R v Donellan- gaining property from the deceased dying.
Importance of motive
Gives inference as to what might have happened.
Legal treatment of motive- double-edged sword- one of the inferences can be that the accused
wanted to commit the offence- can also be used by the defence (usually in cases of prior enmity
– the prosecution has made a false allegation).
Conduct
“agent to any party” = duly authorised agent.
Specific types of conduct made relevant
 The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding
Example) That certain things are not produced despite notice, certain admissions are made.
This is conduct in reference to suit or proceeding itself.
Or: in reference to any fact in issue therein or relevant thereto this is the 2nd part.
Example) Immediate conduct subsequent to the offence, preparation, fleeing the country, etc.
This is conduct not in reference to suit or proceeding, but in reference to the facts of the case,
e.g. what happens immediately after the crime.
 and the conduct of any person an offence against whom is the subject of any proceeding
this is the 3rd part.
o This part is talking about the victim. Basically, the conduct of the victim.
o This part is often used in sexual offences cases to make the conduct of the victim
relevant- often invoked by the defence to argue that the subsequent conduct is
inconsistent with the offence having happened. Courts then draw problematic inferences
from this relevant fact.
If this pertains to the conduct of the victim, then what pertains to the conduct of the accused?
The 2nd part since “party” = state and accused.
Conditions attached for relevance
These conducts are relevant when/relevance is conditional to:
if such conduct influences or is influenced by any fact in issue or relevant fact,
and whether it was previous or subsequent thereto.

30
Does this apply to only the 3 rd part, or to both the 2 nd and the 3rd part? The provision says “is
relevant”, and then qualifies it by this condition. So, it should apply to both. Contrary argument:
the 2nd part has its own condition (“in reference to”). Also, the 2 nd and the 3rd parts are divided by
the word “and”, so they have to be read disconjuctively.

● ‘Influenced by’: Influenced by does not mean ‘caused by’- not that high of a threshold

● Interpretation by Courts: Applies to both the second and third part because the rule of
relevance is only mentioned later with the condition

● Reasoning: They’re separate requirements, one doesn’t make the other redundant- see
illustrations and how being in reference to a suit/fact-in-issue/relevant fact, and being
influenced by the same/ potentially different fact-in-issue and relevant facts, are different
things
Explanation 1 – what is conduct?
Meaning: Conduct is not speech/statement, but the latter can be included within conduct if
accompanied by some other act and explaining such act. Conduct refers to physical conduct. But
conduct can include statement. If a statement accompanies and explains some
non-verbal/physical conduct, it can be a part of it.
Example) Conduct of running is non-verbal but a speech during conduct may become relevant.
Example, the accused is absconding and says “I am escaping the country”. Merely the statement
without the physical action will not be conduct.
Principle: Merely saying something is not conduct, unless it influences non-speech acts.
Written communication as ‘statement’: can be argued to be conduct not speech, but can be
considered speech too
Explanation 2 – stretches explanation 1 by a little
If to the accused or in their presence, someone says something that affects the conduct of the
accused- that statement is relevant
Example) Someone else says that the police are coming so the accused runs away without saying
anything. That speech is then conduct. It is something which has been said which has affected
and influenced the conduct of the accused.
In both explanations, the conduct first has to be made relevant under s. 8.
Note: the act of writing can be considered conduct. So written statements can be covered under
conduct.
28/7/21
Illustrations

● Illustration (a): Fact-in-issue: Whether A has murdered B

31
The facts mentioned are relevant under [1]- all show/ constitute motive- motive here being
avoiding the disclosure of information by B

● Illustration (b): Fact-in-issue - whether the bond was made

The fact of B needing money- constitutes motive to enter into the bond

● Illustration (c): Preparation to commit the fact-in-issue

● Illustration (d): Fact-in-issue- whether the document is the will of A

All these facts are preparation. They’re conduct too- though A is not a party to the suit (dead
that’s why the question of will), so this is not relevant as conduct. Check
whether they are a party or not.

● Illustration (e): Conduct in reference to the suit or proceedings- trying to derail them
But then in illustration (d) and (e), is the influencing requirement satisfied?

● Illustration (f): C’s statement relevant under explanation 2- conduct of A is relevant

under part 2, and C’s statement influenced the conduct

● Illustration (g): Another statement relevant under Explanation 2 (made in his presence or
hearing)

● Illustration (h): Relevant under explanation 2 even if communications through writing are
considered statements- otherwise it can be included under conduct itself

● Illustration (i): Relevant as subsequent conduct (para [2])- this is generally how a lot of
accused’s conduct is made relevant. Emphasis on concealment of dead body, weapons,
etc.

● Illustration (j): First fact- Conduct of the victim (Part [3])

Here it can be said to be influenced by the fact-in-issue Don’t forget

checking the last bit of the provision.
Second part- not relevant because of Explanation 1. Here she does not make a complaint-
no act done, it is only a statement

● Illustration (k)- Conduct of the victim of the crime is relevant (Part [3]), but not mere
statements (Explanation 2)
Cases
Amina v Hasan Koya
Facts
Criminal Appeal under Section 125 CrPC, but it’s essentially a civil remedy being sought

32
Parties got married in 1972- baby to wife 4 months later- child named Soda, parties registered as
parents
Parties got divorce after 4 years- wife sued for maintenance
Lower Courts- child didn't get maintenance because of not being his, wife did- but in appeal,
husband argued that the marriage would be void as the husband had no knowledge of pregnancy
at the time of marriage (so fraud)- HC accepted it, wife didn’t get maintenance
Analysis
SC- Conduct indicates that he knew, or was bound to have known, about the pregnancy
The conduct here indicating full knowledge:

● 4 month pregnancy couldn’t have been concealed, especially in the case of husband and
wife, given potential intimate relations- but didn’t say anything or claim voidness

● Put his name in the official registry- on the opposite, claims to be the father of the child

● Had no problem for 4 years till the divorce happened- no whisper of any objection

Inference by the Court- there was full knowledge of pregnancy- there was no fraud. His conduct
sheds light on a fact-in-issue.
Held
Maintenance granted
R v Blastland
Facts
Young 12 year old boy- has an argument with his mother, leaves the house in anger some time in
the evening- didn’t return- mother started searching for him but without success
Shortly before midnight, mother reported to the police that he’s missing- dead body found in a
drainage ditch half a mile away. When was this body found?
Argued that he was subjected to sexual assault and strangled- strangulation occurred in the
evening but exact time not known
Accused- Blastland- admitted to the facts that:
● He met the boy on the evening

● He engaged in sexual intercourse with the boy in the evening (in a public park not very
far from where the body was found)- and the boy consented to it for money
● Conduct limited to penetration- He did not kill the boy, strangle the boy etc.
He argued that there was another man at the place- so feared that he had been seen committing
the offence (buggery)- accused ran away.

33
Inference that the accused is trying to show: that when he left the crime scene, the boy was alive-
after that whatever happened had not been done by him, hinting that he might have been done by
the other man.
Other man- Mark- accused trying to prove that Mark had strangled and killed the boy.
Injury to Mark’s penis, witness evidence that they had seen Mark in the evening at the park-
witness account (at home, met a woman named June who had been living with him: Mark was
shaking like a leaf in total shock- He said that a boy has been murdered. So, inference from this:
Mark has the knowledge that the body is killed. By this time, at least from the facts, only Mark
knows that the boy is dead- even the missing person complaint had not been filed yet.
Mark fully investigated by the police- don’t bring in charges against Mark, so not an accused,
only Blastland.
Prosecution about Mark’s involvement in the crime: Told the jury that they did not find any
forensic evidence etc. against Mark- but did not tell the jury that in the series of interviews with
the police, he made and later withdrew confessions of guilt to the police.
We’ll never know why Mark was never charged- (Ambasta) Not the purpose of the trial, refer to
Weigend- from the perspective of procedural truth, the only thing that matters during this trial is
whether Blastland did it.
Analysis
Defense wanted to bring in all the facts relating to Mark- presence, knowledge of the killing of
the boy, conduct, statements to June and to the police- to create reasonable doubt about the guilt
of Blastland by suggesting the inference that Mark could also have committed the offence
Tries to prove them in 3 ways:
1. Summoning the police as witness and cross-examining them
2. Cross-examining Mark on these facts
3. Calling all the witnesses who had seen him/ he had talked to
Relevance
Blastland not allowed to do any of this- Mark was not on trial- his conduct and state of mind not
relevant- can’t introduce facts related to these. Struggling to open the first door of relevancy
itself.
What Blastland can, and can’t, prove: Blastland is being allowed to claim that there was
someone else on the scene- what he’s not being allowed to prove is the conduct, state of mind
related to Mark, his speech to police and June- can’t take those further steps
Section 8: Mark’s conduct/ state of mind would not be relevant even under Section 8
Logical relevance of Mark’s conduct: There’s clear logical relevance here- makes sense or the
jury to get the full account of the facts, including what was happening with and around this Mark
who seems to be somehow involved. But then excluding certain kinds of facts for reasons that go
beyond mere logic is what legal relevance does- procedural truth.

34
Mark’s guilt as a fact that rebuts the fact-in-issue: Mark’s guilt would not become a fact-in-
issue even if raised- it could be a fact that could rebut the fact-in-issue
Ambasta: Anyways, can you make a fact as a fact-in-issue merely by claiming it as a defence?
Rationale for only making conduct of parties relevant: Why this exclusion? Fairness
perspective- all the accused would need to do to create doubt and derail the trial is to give
evidence that someone else was there, shaking like a leaf etc.- can get a couple of witnesses to
affirm that.
Mark’s potential guilt was a question of investigation- in a trial, the prosecution can’t always be
looking at whatever the defence might argue as the conduct of someone else.
Hearsay aspect of the judgement:
Court- other people’s evidence about what mark said/did would be hearsay evidence- barred
under a separate rule. Assume that Mark had said to June that I have killed the boy- still can’t
prove it by summoning June, hearsay- the inference being sought to drawn here, as per the Court,
is hearsay inference.
No direct evidence exists regarding the guilt of Mark- the way Blastland is going about it is
speculation- Blastland is indirectly trying to get in hearsay inferences.
If Mark testified- admissible evidence, not hearsay- but then the facts would still be irrelevant if
the Court’s reasoning is followed.
Is there any provision under the IEA which can make these facts relevant?
Mark’s guilt is not a fact-in-issue. The fact-in-issue is whether Blastland is guilty (not “who is
guilty”).
Facts necessary to explain or introduce relevant facts (Section 9)
Various kinds of facts made relevant
(a) Necessary to explain or introduce a fact-in-issue or relevant facts
Role: These may by themselves not relevant to the trial at all but provide the context (for
introductory facts) or explanation
Example) Fact of ill-will etc.- not constituting motive as such, just necessary to explain certain
things
Rule of laying foundation: Basis of this rule- before you jump directly to facts-in-issue or
relevant facts, lay the context or foundation for them- why is that relevant fact important?
Example) Eyewitness comes and starts deposing about the crime they have seen- will be
deposing on facts-in-issue as an eyewitness
In the examination in chief, question cannot be if the witness saw the murder happening [Side
note- it’s also a leading question, indicates the answer within itself- not allowed in the EIC,
considered unfair]

35
First lay the foundation of the witness’ testimony, and only provide guidance regarding sequence
of giving information (not content of the answer)
This laying the foundation: Happens through preliminary questions that are about completely
irrelevant facts (example: in an EIC, first question to the eyewitness would be who the witness is,
what they do etc.), then why exactly they came to Court, then if they know what this case is
about etc.-
Can’t presume anything about the witness in your questions, such as that they were there and
they saw things- let the witness say these things first and then come to the actual questions
[[Technique of looping- used in examinations- use the words used to answer the last questions to
start the next questions]]
[[In cross-examinations, you should only ask leading questions, nothing else- control witnesses
in the cross- ask questions that have answers within them, and the witness should either accept or
deny- if you’re allowing the witness to talk and explain things through questions, it’s a bad one]]
Rationale for the rule of laying foundation: Fairness
(b) Support/ rebut inferences suggested by facts-in-issue/ relevant facts
Example) Inference of motive in R v Donellan from the fact of spes successionis- the fact sought
to be introduced to rebut this inference of motive was the settlement of all property to the wife
(c) Establishes the identity of people/things when it’s relevant
Scope: Could be the identity of the accused, victim, things also (like stolen property, how a
murder weapon looks)
Importance: Identity of something or the other needed in all criminal trials
Identity of the accused- can tie the accused to the crime scene (can draw inferences that the
accused was present on the crime scene, or tied with more facts, that the accused committed the
criminalised act).
Methods: Various methods of establishing it
For identity of accused:

● In-Court identification: through witnesses who claim to have seen the accused- the
witnesses asked if they see the accused in the Courtroom- witnesses point out the accused
(in- Court identification). Called in-court as the oral evidence is being recorded inside the
Courtroom

● Out-of-Court identification: Test identification Parade- happens during the

investigation stage, non-judicial procedure- of people or objects
29/07/21
Rationale: When suspect/ accused arrested, might be important for the investigation to know if
they’ve got the right person- might conduct a parade where the accused and others are present
and the witness is told to identify

36
Importance and mandatoriness: Not compulsory to do it but it’s good practice to do it when it
can be done- memory of witness remains fresh in TIP, trial might be happening a lot later
Usually done for serious offences, or if the police has hit a wall
Taken as a ground by Courts to use it to establish identity even if in-Court ones don’t work out-
legally it shouldn’t override in-Court evidence though, in-Court has much more weight
Procedure for TIP: In the police manual of each state police- also CrPC [Police manuals-
guidebooks on investigation given to the police, cover a lot of things that police do]

● Only done if suspect and witness have no pre-existing relation (like if the witness says
that their brother did it, no point doing the TIP, since they can easily identify them
anyways)

● Have to be done after arrest

● Can take place at a police station/ inside a prison/ another particular place

● Witness who says that they’ve seen the accused is called

● Happens in the presence of executive/judicial magistrate (executive magistrate- like

Block Development Officer etc.), who’ll identify that it’s being done properly

● In the presence of 2 witnesses too who’ll see how it’s being done

● Whatever happens there has to be written down- Mahazar/ Panchnama- records the
manner and details of the test identification, how the witness was brought, how the line-
up was prepared, whether the witness could identify the suspect

● For every suspect, there should be 8-10 others in the lineup- of similar age group, similar
build etc.- to prevent fixing the outcome of the TIP

● Sometimes double-blind test identification parade- even police don’t know who the
accused out of all of them is- but usually police know

● There can be dummy identifications as well- suspects is not there- to check confirmation
bias

● Should be done multiple times

● TIP result forms a part of the chargesheet.

Shortfalls of TIPs: Confirmation bias- when people have already said that they know who the
accused is, they’re likely to point people out even if the accused is not even there
Assuming strong memory: TIPs rely on the assumption that witnesses will be able to identify
people based on a few seconds of exposure- even though that’s not really very accurate, there

37
can be a lot of mistakes but difficult to rebut. It can also become tricky when there are multiple
accused.
Malpractices: Susceptible to police malpractice, like bringing suspect in handcuffs so that the
witness knows who to identify
Evidentiary value of these methods: Weight of the evidence: In-Court identification is
substantive evidence (can be used to prove facts by itself)
TIP per se is not evidence (doesn’t meet Section 3 definition by itself)- but can be brought in
during the trial in some circumstances
In any case, will always be corroborative evidence only (supports other evidence), never
substantive evidence- not being given on oath even if it’s in the presence of the magistrate, not
that convincing. Meaning, if there is identification in court, TIP evidence can be brought in to
support that.
If eyewitness testimony and TIP are consistent: very difficult to disprove identity- to not lose,
defence lawyer must attack the veracity of the identification in some way [Ambasta gave
examples how witnesses are unfairly influenced to be able to recognize the accused. So here TIP
is happening not based on the memory of the witness, but on an artificially created memory. The
veracity of the identification is attacked if anything like this is proved.]
Tutoring: Tutoring for witnesses generally is an issue, like the police telling the witnesses who to
identify- cross-examination is the only way out
When trial goes on for years: often TIP is conducted when the memory of the witness is fresh.
When trials take place after several years, in-court identification can become tricky. Judges
therefore use the TIP over the in-court identification in such cases on the ground that the witness
memory was fresh back then. But on principle, corroborative evidence cannot override
substantive evidence.
Dana Yadav v State of Bihar
Analysis
Accused demand so when they’re sure they’re not guilty so the witness can’t identify
Accused does not have a right to demand a TIP.
Accused’s application to be decided based on whether it’s bona fide- has to be considered
Court has to look at it without holding a mini-trial- no detailed arguments to be heard- if the
Court believes that the TIP is justified in the facts of the case, and there’s no harm for the
prosecution, Court may order TIP
Bibhabati Devi v Ramendra Narain (Bhowal Raja case)
Facts
Kumar of Bhuwal (a large Zamindari in Bangladesh)- lived luxuriously- second kumar of
Bhuwal (second brother) took over because of medical reasons- hunted and killed animals-
married to a lady called Vibhavat Devi, also had a mistress called Akoleshi

38
Contracted Syphilis- treatment not advanced back then, disease spread rapidly- terminally ill and
in a lot of pain- doctors asked that he be taken to Darjeeling- they all went to Darjeeling, rented
out a huge hotel
One evening, Kumar fell particularly sick and said to have passed away- decided that he’d be
cremated in the city itself- entry made, servants returned and said that cremation had been done
properly- everyone returned to Bhuwal- since next successor was a minor, trusteeship went to the
local Court and then EIC- great source of revenue for them
One day, a Hindu ascetic man came to a particular village near Bhuwal- people remarked he
looked like the deceased Kumar- intrigue spread like wildfire- man started identifying himself as
the Kumar- people started paying rent to him instead of the palace
His version of facts- he had not died that evening, slipped into some kind of coma- had taken
him to be cremated but just as the pyre was about to be lit, huge hailstorm, all the servants had
run away from the cremation ground without doing it, and come back and lied- he had lain there
till a group of Aghori sadhus discovered him and nurtured him back into health- found a guru,
travelled across India with him- gradually memories started coming back, Guru told him to
return and claim his rightful place
Court Proceedings
Issue arose regarding his identity- money came to him from the villages, he filed a case for
declaration of identity in district Court- extensive evidence presented- no fingerprint technology
back then, identification happens through body marks and eyewitness testimony
Various claims regarding all sorts of things: colour of eyes, whether Sadhu could read and write
Bangla (couldn’t) but then others argued that even Kumar had been illiterate
Kumar’s former mistress also summoned- argued that he was not the Kumar- but then admitted
to being paid off by the Royal Family to give wrong evidence
Trial Court ruled that on preponderance of probabilities, Sanyasi had proved that he was the
Kumar- declared as the rightful owner of the estate
Family challenged it in the HC- HC upheld the decision- appeal to the Privy Council
WW2 broke out during the hearing- London Blitz by the Allies (bombing), hearing delayed- later
on judgement of Privy Council also upheld his claim
Outcome
After receiving the opinion, widow withdrew from public life and disclaimed revenue- Kumar
went first to the family temple where he prayed to the family deity- as he was coming out,
suffered a stroke- died 2 days later
In the end, was never solved adequately- no one knows who he really was
R v Crippen
Facts

39
Crippen a doctor- Married to an American lady Kora- went to the UK- not qualified enough so
became a pharmacy distributor
Open marriage- Crippen had affair with Secretary- one day, after dinner party, Mrs. Crippen
disappears and not seen/heard ever again- when neighbours enquire, Mr. Crippen says that she
has gone back to the USA- Dr. Krippen gets his secretary to start living with him in his house
immediately- she wore the clothes and jewellery of Mrs. Krippen
Police summoned to Scotland Yard, interrogated- admitted that the story of his wife going to the
USA is false, actually his wife left him for another man and he’d made up this story to avoid
embarrassment- scotland yard decides to close the case
Crippen didn’t know that police closed the case- afraid that something is up- he and Secretary
run away to Brussels (subsequent conduct of accused)
Because of this, they reopened the case- further searches on the house- 3 thorough searches
carried out- nothing discovered except in the last search- under the cellar, found remains of the
dead body without limbs and head- in the high state of decomposition
Semi-circular scar in the abdomen- preserved- Dr. Crippen was on the ship to Canada with
Secretary disguised as a man- officers reach Canada before Crippen and arrest him as he’s
disembarking- reported to have said that he couldn’t have taken it any longer
Court Proceedings
Put on trial- denied committing any offence- issue regarding whether the body was the wife’s
Prosecution needed to show that the body was of the deceased- had no other facts except scar-
argued that it matches with the medical records, she had earlier undergone a surgery that had left
her with a semi-circular scar
Defense argued that it was not a scar, it was folded tissue formed as the body was decomposing-
brought an expert who said that he’d observed hair follicles on the site of the scar- so couldn’t be
a scar.
Court decided that the body was of wife- husband convicted, executed.
Identity of the body could never really be conclusively established- some say that it was the body
of a woman he was performing illegal abortions on.
02/08/21
MM Hills Police (Veerappan Case) (how identification happens in court, corroboration of
evidence)
Facts
2 buses full of police personnel- going to arrest Veerappan and gang- have received information
that they’re at a particular place- bus in the front exploded allegedly by Veerappan through
landmine.
Blast, people injured- firing from both sides, one side being the forested area across the river-
several policemen killed, several injured.

40
Area belonged to Veerappan, accused believed to be his members- it’s a tri-junction between 3
states- they’ve formed a Special Task Force to catch the dacoits.
Several accused, including Veerappan, absconding- several being tried.
Most are just accused for abetment though- only 4 main accused- they’ve been arrested in the
past and have similar cases pending.
A1- Veerappan- not on trial because of absconding but still charged and tried as accused.
Analysis
Gist of identification in this case:

● All of them are corroborating each other- leads Court to infer their identity

● Only identification at the crime scene led to conviction

PW87 has identified with names (A42, 18, 21, 30, 31), shows prior association- because of
having been involved and arrested before. Said saw there wearing Khaki dress and firing
PW 89 and 97 are forest guards who heard the blast and saw the shooting
Saw Veerappan, Arjuna, Iyendore, A18, 21, 30, 31
PW97 is an injured witness (part of the bus blast)-- highest kind of reliability in law
PW 99
PW 89 identified them and later he also saw them
PW 98- other eyewitness- also saw them
All of them are corroborating that PW89 has seen some accused, and that they saw the accused -
corroborating each other

People consistently identified: A18: Simon, A21: Meke Madaiyah, A30: Gran Prakash, A31:
Madaiah, A32: Bilavendra.
Only these people are later convicted too (out of 108)

Cross of PW 45: Suggestion of the counsel, accepted- that they were at the northern bank and the
movements of the gang of A1 were on the southern bank.
Great distance diminishes veracity of evidence- with fire, smoke, dust flying around due to the
blast, you’ve identified them so properly
So, witnesses were on the northern bank and gang on the southern bank
Witness in cross-examination: he saw somebody, not sure whom
Cross of PW 63:
41
Omission- kind of contradiction
Have not been successful
Cross of PW 74:
There is an omission made to statement to police officer
Casts doubt but this omission is not major, especially in the presence of other corroborating
evidence
Similar suggestions being made in cross-examination to all witnesses, that they did not say xyz
earlier

Judge finally: The 4 are identified through the witness evidence

These were the only four to be convicted ultimately- called Veerappan boys
Counsel for the accused raised an objection- on the day of the trial, the accused were in prison,
some of the witnesses were shown them- difficult to identify accused when there are multiple.
Witnesses denied it, though Court warned the SP not to let these things happened
Even otherwise, this Court has not given much weight to the identification of the accused by the
PWs during the trial- so no prejudice to them
So, the Court lowkey believed this since they reprimanded the Superintendent of Prison, but said
that they didn’t give much weight to these particular witnesses’ identification anyway

Kunal on the identification in this case

There were other police officers as well as mentioned in the judgement- could also have been
tutored by taking to prison- but very difficult to prove, you can only raise a doubt
The way there was such distance, and many of the witnesses knew the accused from earlier-
highly possible that they were actually not identified at the crime scene
PW97- So badly injured, and so highly impacted (bus thrown up 20ft, and he was thrown out to
land in a ditch, passes out), that identification is impossible. Passes out within 5 mins
PW89 identified for them and they just followed him- what if PW 89 got the name wrong- also
he knew them earlier, identified by name
Entire evidence of identification is suspect- if it was properly cross-examined and evidence
appreciated, no way identification would’ve happened
When facts not otherwise relevant become relevant (Section 11)
Types of facts made relevant
Is inconsistent with any fact-in-issue/ relevant fact

42
Either can be true at one time, not both
Example) Alibi disproves presence on the crime scene- illustration (a)
Make the existence or non-existence of any fact in issue or relevant fact highly probable or
improbable
By themselves or in connection with other facts
Inconsistent- impossible, so probable/improbable is a lower threshold
Example) Illustration (b)- make A’s guilt highly probable
Application to Blastland: Mark’s conduct and state of mind would NOT become relevant under
this- the facts here should still be about the accused. Those facts will not make it highly
improbable that Blastland committed the offence.
In illustration (b), you are sufficiently excluding others from the scope of suspicion to establish
A’s guilt. But that cannot be done for Mark.
Section 11 as a residuary provision
It’s a broad rule of logic- so seems to break the legal/logical relevance divide
But still a posited rule that has to be invoked, and need to meet the threshold specified- highly
probable/improbable/inconsistent.
Still a higher threshold than ‘probable or improbable’.
And it’s not like every fact excluded from logical relevance would fit here.
Facts that would allow the Court to determine the damages (Section 12)
Would include loss of reputation, loss of property, etc.
Facts relevant when right or custom is in question (Section 13)
Right could be over a piece of land, possession, etc.
(a) talks about some transaction. (b) talks of particular instances.

● Deed- Created

● Mortgage- modified

● Subsequent grant of fishery irreconcilable with mortgage- inconsistent with the existence
of the right

● Neighbours stopping- Exercise of right disputed

Facts showing existence of state of mind/body/bodily feeling (Section 14)

43
 ● The fact can show the existence of the state of mind directly (like a statement of the
accused), or can lead to the inference (like conduct – state of mind can be inferred from
conduct).
Examples) Stabbing 20 times (intention), drunk driving on road (enough fact from which the
state of mind of negligence is being inferred.)

● The facts should show the state of mind towards a particular person (fact that they’re
generally in that state of mind can’t be made relevant. You cannot claim that a person is
generally negligent so he must have been negligent in this case too--touches on character
evidence). Read with Explanation 1 (particular matter in question. State of mind must
exist particularly.)
Illustration (o)- irrelevant to the issues in hand- can't prove a general disposition (will only cause
prejudice)
Illustration (p)

● Explanation 2 makes previous conviction for an offence relevant- where the fact of
previous commission of that offence complies with the two conditions above and is thus
relevant
Example) tried for attempt to commit murder earlier- shows state of mind
For the fact of previous criminal conduct to be brought in, does there have to be a conviction? Or
only a charge? Or neither of these, only the conduct having happened is enough?
Language suggests the last one- previous commission (previous conviction also made relevant
but does not seem like a necessity)
Illustration (i): previous shooting made relevant, nothing about trial or conviction
So, it is only the conduct having happened
But using the previous conduct for which a person was not tried can be unfair- the person is on
trial not for those conducts, but for the offence currently in issue
Leaves room for the prosecution to overwhelm the judge by introducing a lot of previous
criminal conduct, might lead to bias in the mind of judge that this person must have
committed the offence even presently-- probative prejudice-- judge will start to infer guilt
going beyond the present facts and evidence
Evidence regarding character barred by character evidence rule- Section 54 of the IEA. Also
connect w explanation 1 – a general disposition of bad character not relevant.
OJ Simpson Trial-- tried for the murder of wife- 62 counts of domestic violence on her
Do 62 counts of DV show intention to kill the wife? If they do, the facts will be relevant under
Section 15
This kind of problem- probative hazard- facts seem to be probative in a case, but are not actually
so, they just show propensity to commit that kind of crime

44
Hazard as there’s nothing to show that the previous conduct will automatically help in proving
the conduct here
Also- moral hazard- the tendency to believe that this person has acted in morally bad manner
earlier, so the person deserves to be punished- irrespective of whether the evidence is sufficient
in the present case
These kinds of facts (about the bad character of the accused) are excluded from legal relevance
under Section 54- Character evidence rule
04/08/21
Is there any way to use previous conduct under Section 14, without effectively bypassing
Section 54?
Because effectively, this evidence about earlier conduct is evidence of bad character.
Not much guidance in the IEA (s 136 – a judge can ask why a particular fact is relevant. Does
the judge have the discretion to disallow evidence even for relevant facts?) - but some guidance
in the federal rules of evidence.
403. The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Each piece of evidence here has probative value- and evidence may cause prejudice to the other
side, that’s part of the game.
But it shouldn’t be unfair when considered alongside probative value. Test of balancing
prejudicial value vs probative value.
Applying this, evidence relating to previous conduct would be excluded- would cause unfair
prejudice because the person is not on trial for their character. S 14 does try to limit the scope to
only particular instances and excludes general disposition. But what happens in reality?
Facts bearing on the question whether something was done accidentally or with intention
(Section 15)

● Called as the “Similar fact evidence rule”.

● Question before the Court: regarding the state of mind while doing the act

● Facts being made relevant: The act concerned formed part of a series of similar
occurrences

● This is an exception to the general rule that facts can be given only for the case in hand.
Should be treated as an exception
Relationship with Section 14

45
 ● Like Section 14 previous conduct, here unconnected facts (to the current issue) are
being looked at to understand whether the present fact is also similar- drawing an
inference that the person has been doing similar things, so this one has also been done
with a particular mindset, it is not a coincidence

● Illustration: These similar facts leading to the inference that this is A’s modus operandi

● This Section and Section 14 border on character evidence- not much difference in saying
that (a) A has a propensity to do it/ A is generally fraudulent, and that (b) he’s been doing
similar things so that shows state of mind here

● Using these facts and under these sections, inferences of bad character and
propensity can’t be drawn [distinction is in the inference drawn]- only inferences of
state of mind currently. S 15 can be used only to draw the inference whether the act was
accidental or intentional.
In jury trials, this is sought to be ensured through instructions to the jury, after the
evidence is complete

● So, the facts admitted under 14/15 might overlap with those made irrelevant under
54, the difference will be in the kind of inferences you can draw- if you’re drawing
the inferences under 14 and 15, and nothing else, there’s no unfair prejudice.
There can be colourable exercise of statutory rights as well- prosecution tries to use them
under 14 but it causes irreparable prejudice to the accused
But then there’s always the issue of unfair prejudice ultimately being caused after all- it’s
not subject to reason

● Does this section apply when the question is regarding other culpable states of mind
(knowledge etc.)?

● It’s an exceptional rule, should be invoked in exceptional circumstances: That

justification comes from the defence raising a particular kind of defence (denying mens
rea)- can’t raise it if the defence doesn’t deny mens rea.

● Wrt allegations, Section 15 may be implicated when one set of allegations is being used
to substantiate another- not when evidence is being given directly on facts-in-issue of that
case (like a victim’s testimony)
Makin v Attorney General, New South Wales
Facts
Appellant and accused were married to each other- one couple that gives their baby- found dead
and buried in a neighbouring property on George Street- there had been previous instances of
such corpses being found.

46
Here the prosecution tries to introduce evidence for previous deaths and burials- but they’re not
on trial for those here, they’re on trial for this one murder.
Analysis
It is not competent for the prosecution to adduce evidence tending to show that the accused has
been guilty of criminal acts other than those.
Following para used everywhere:

So can’t show that they have committed murders previously and hence are likely to have done
this one as well/ has a propensity to commit crimes- that’s character evidence
But the facts can still be relevant if they are relevant for other purposes (forget propensity
here):
1. Identity
Similar modus operandi can establish that they were all committed by one person.
Example) Gang of dacoits in Karnataka- broke locks in a specific manner, killed the inhabitants
of the house in a specific manner, only stole articles of a particular kind.
These facts, if brought in, would establish the identity of the people as the same gang.

47
 2. Identifying whether it was accidental or deliberate
Incorporated in Section 15
3. Rebutting a defence open to the accused
Can the prosecution use similar facts to preclude a defence argument (assume that they will raise
an argument and hence by anticipating they use similar fact evidence) (like in Smith, to preclude
a defence of accidental drowning)? Can the prosecution use them to make arguments of intention
even if the defence does not raise that specific argument (of lack of intention)?
In Smith, the prosecution can rebut the defence of accidental drowning.
There might be cases when the defence is not about denying mens rea.
Example) Defence of denial- no argument from the defence’s side, just that they didn’t do it- not
an issue as the burden to prove rests on the prosecution.
Section 313 of the CrPC: done in all serious trials which are not summons cases
313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling
the accused personally to explain any circumstances appearing in the evidence against him, the
Court—
(a) may at any stage, without previously warning the accused put such questions to him as the
Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on
for his defence, question him generally on the case:
313 examinations not done on oath – therefore not oral testimony. Note the word “shall” in the
second part. All elements of the prosecution’s case and given to the accused. It is an opportunity
given to the accused to explain the facts of the prosecution’s case. If defence of denial is being
taken, no need for the accused to give facts in defence. But if there are facts, it is good practice
for the accused to explain the facts.
Similar to Section 165 power: though that’s general and for evidence, this is for the accused to
explain relevant facts
Accused doesn’t have to say anything, can just keep denying any knowledge (“I don’t know”)-
but good practice is for the accused to explain the facts directly against them
Kunal: You can’t assume a defence from the accused wrt Sections 14 and 15 (specially 15) - you
can’t invoke them right off the bat, unless the defence goes down the road to show lack of the
mentioned mens rea. You must show what is the case of the defence. Not open to prosecution to
assume the defence’s argument.
If the accused has taken a defence of denial, can s. 15 be invoked? In the sense that you’ve
done somethings with a striking similarity in the past, so I will make those facts relevant. But
you can’t go around arguing that you have done things in the past, so you must have done it in
the present (essentially bringing in Section 15 without a defence of that nature) (borders on
propensity/character evidence) - despite an overwhelming urge on the side of the prosecution to

48
make the Court draw this kind of inference. This would work when the accused has taken a
defence of accident or coincidence. Then those facts can be made relevant to show a system.
Therefore, prosecution should wait for the defence to raise arguments to invoke s. 15.
Here the previous deaths and burials were made relevant- prosecution argued that this was
part of a design of a money-making scheme- they were taking money while taking these
children and burying them.
Here there were proven facts that Makin did adopt a child, that child did die and buried-
Makin involved in all of them (“in each of which the person concerned was involved”).
So the purpose for which the facts are used here: Establishment of a system (so Section 15
similar facts).
What is the degree of similarity that’s needed for a fact to fall under Section 15 similarity? Here
the similarity: Babies are being procured and buried in the same way, for the same manner
R v George Joseph Smith (brides in the bath case)
Facts
George Joseph Smith has several names and professions- on trial for the murder of his wife
Wife has died through drowning in a bathtub (strange as they used to be very small then)-
alleged epileptic fit because of which she lost control over her muscles.
No injuries at all.
She had taken a life insurance policy, the beneficiary of which was the accused- but nothing to
show foul play in her death.
One lady who’d read about this pointed out to Scotland Yard that there had been reports of
women dying in similar ways- the women were either widows or had passed their youth as per
the existing social standards and remained unmarried- had written life insurance policy for
husband, died shortly after by drowning in the bathtub.
In none of these cases was there any sign of any injury or foul play.
Medical evidence- if there was an epileptic fit, the body would straighten- contrary to drowning,
the body would be pushed even further out- so epileptic fit didn’t make sense
Scotland Yard tried to find possible modus operandi, but there was resistance from the divers
whenever the methods were tried- another method used, diver told to lie in the bathtub with the
legs protruding out and subsequently legs were suddenly pulled towards the person- diver
suffered a blackout immediately because of water entering the nose- argued to be the modus
operandi, with the argument that these were all murders
Evidence admitted - person convicted- another Section 15 case
Basically, the facts brought in because of the inference that there seems to be a system for
the deaths of his wives.
Boardman v DPP

49
Facts
3 pupils in the school made allegations against the accused
2 counts: buggery and inducement to commit buggery
Professor would go in early hours of morning and sexually harass the boys- took one of them to
bar and touched his private parts
He denied all the allegations by giving explanations- argued that the allegations were concocted,
maliciously made, and he had actually tried to discipline the boys- like taking the boy to bar to
have him confront a lady of bad reputation he had associated with
Trial for all the offences being held
S.218 CrPC: Separate charges for distinct offences.—(1) For every distinct offence of which any
person is accused there shall be a separate charge, and every such charge shall be tried
separately.
There are provisos in the CrPC itself that provide for joinder of persons and charges (Sections
219, 221, 223 etc.)- but the principle is important
Reason for this general rule: Prosecution should be able to prove each charge through evidence
of its own- if you club evidence, defence will be overwhelmed; or the judge might look at so
much evidence and try to convict for something even if they’re not individually proved
In this case, because of evidence coming in together, the pieces of evidence start corroborating
each other
Legal Issue
Whether the similar fact evidence rule applies for these facts stated by different victims to
become relevant in each other’s trial
Analysis
Similar fact evidence rule only establishes a system- different from the issue of corroboration
Using facts that are part of the oral testimony to corroborate each other is problematic because
these are not proved facts yet- they’re still allegations in the same trial- issue of fairness, and
difficult for the defence to rebut. Different from Makin and Smith where the past allegation was
already proved. S. 15 becomes extremely complicated in Boardman.
Defence will just argue that the evidence is so similar because of collusion.
Here we’re not talking about past facts, only allegations- allegations having a striking similarity-
if they’re concocted, there’ll definitely be striking similarity. Also seen in the #MeToo
movement.
What should be the degree of similarity? Court- there has to be striking similarity for the
unproven facts/ facts of a similar nature to be relevant- no ordinary similarity, can’t be the
result of coincidence. The modus operandi should be similar. Striking similarity test.

50
Being introduced as a safeguard for the accused- can’t be just any similarity- has to point out that
it has been done by the same person or the same motive or manner. Striking similarity could be
of the preparation, the post-conduct behaviour, etc.
In this case- the accused allegedly asked the boys to play the active role in sexual intercourse, so
striking similarity.
How many previous instances are enough? Would 2 be enough to call it a “system”? Lack of
clarity.
Test changed in DPP v P. Striking similarity test substituted.
DPP v P
Facts
Being tried for 2 counts of rape and 8 counts of incest of two daughters.
Accused argued that the trials should not have been held together- allowed, conviction quashed-
appeal to the House of Lords.
Unproven allegations used to corroborate each other- 2 victims, the way the offences take place
were too similar.
Analysis
Balancing test- judge whether this similar fact evidence is more probative or prejudicial-
evidence is admissible if it’s more probative.
One of the factors behind probativeness- how strikingly similar the facts are.
So striking similarity is now a facet of the balancing test- not the absolute one.
Laxmandas Bhatia v State
Facts
Pedro, Yusuf Merchant, and accused 6- smuggling used to take place between the first two and
two accused were financiers.
Prosecution was trying to show that accused 6 and 14 had a previous association with Ahmad
Sultan, not directly connected here- applied for registration for a telegram etc.
They’re trying to make these facts relevant under Section 14 and 15, on the ground of there being
a dishonest intention behind these and systematic series of fraud, respectively.
Jethmalani:
1. These sections are applicable only where mens rea is a fact-in-issue or relevant fact (14
talks of state of mind etc., and 15 talks about accident or intention)- but here the offences
concerned were strict liability. Therefore, 14 and 15 does not apply here.
Ambasta: There’s a mental element in these offences but very indirect- possession being
conscious possession- but that’s relevant for charges under the NDPS Act, not here

51
Court- Sections 14 and 15 can be invoked
As long as there is a charge of conspiracy, mens rea remains in issue
2. Invokes Section 54- he argues it has an overriding effect- these facts are irrelevant for
they show bad character
Court- Section 54 is not worded to have an overriding effect- all the facts are at the same level,
no overriding effect, have to be harmoniously interpreted
As long as the inference from the facts is not that of propensity, Section 54 does not bar the
facts- the inference of propensity is what Section 54 prohibits.
Proper inference under 14 and 15, and improper inference in 54 are differentiated by a very thin
line.
06/08/21
Chandrakant Jha v State
3 appeals in the SC against 3 judgements of the Delhi HC (criminal appeals can be bunched
together)
Facts
3 murders, all on the same day- accused convicted of all of them in 3 different trials- Indian
serial killer
Peculiarity in the modus operandi: accused used to chop off the head of the deceased- in two
cases, he cut off limbs and threw bodies outside Tihar Jail in carton boxes or bags- wrote 2
letters to the police for torturing innocent people, and challenging them to catch him
Identity of the perpetrator is the same in all these
Similar fact issue: Prosecution used the facts in one charge as similar fact in another, to
corroborate the latter. Can you use the facts in one allegation as facts in another trial? During
trial they are unproven allegations. It’s an appeal in this case, so these facts have been proved
once, but can be shaken so not so proved yet
Accused took a defence of complete denial. But these nuanced facts are ignored by the court.
Analysis
If the prosecution is allowed to mix allegations, the point of different trials would be defeated
Also Section 15 requires that the person be concerned in each of the occurrences- like in George
Smith, the accused was married to all the deceased, and in Makin, the accused had adopted all the
deceased- for unproven murder allegations, no surety of that, culprit could be some other serial
killer(s) too
So essentially in using unproven allegations, in admitting these things, they’re assuming the truth
of what they’re alleging - unlike Section 15, where the ingredients are satisfied. But that’s not
how it’s supposed to work.

52
 HEARSAY RULE
Meaning and Test
Definition

Hearsay must be a statement, made out of court, to prove the truth, of the matter asserted. If any
one of these components is not satisfied, it is not hearsay.
It is asking you to take a trip to the mind of the declarant. (“declarant” = someone said it out of
court who believed it; “witness” = one who reports it to the court).

● So must be a statement

Can be through signs/ in writing

● Made out of court

● Purpose of introducing them: To prove the truth

● Of the matter asserted

So the bar is on the use of the statement for a particular purpose

Triangulation of Hearsay
Another test: Will require the finder of fact to do this kind of exercise: A said it, A believed it, so
it was true

53
Hearsay requires A (a declarant) to make a particular statement (such as C has stabbed B)- A
believed it- statement comes into evidence with the purpose of proving that C has stabbed B
If a statement is asking you to take this trip through the mind of the declarant and making these
conjectures/ inferences about the declarant’s thought process, it’s hearsay: someone said it,
someone (presumably) believed it, so it’s true
Example) Ratan Lal - the deceased said that the accused was attacking them- the deceased must
have believed it- the statement is being introduced now for the purpose of proving that the
accused attacked them
Hearsay is a fact-evidence divide
It’s a rule of admissibility of evidence- not relevance of facts
Case Laws
Walter Raleigh Trial
Facts
British knight- fell out of political favour when King James I asserted the throne (Position in
Court was determined by religion, beliefs etc.)
Tried for high treason- treason against the crown itself- allegation of conspiracy to have the king
assassinated with Lord Cobham
Confession given by co-conspirator prior to the trial (Lord Cobham) that they’d conspired-
recanted later on the grounds that it was given under torture- receives a royal pardon from the
charge
Prosecution introduced signed confession of Cobham in the trial- only evidence
Analysis
Raleigh’s argument: Raleigh demanded that he be placed face-to-face with this only witness and
cross-examine them

54
Court- if Cobham came in Court and repeated the treasonous and conspiratorial facts, it’ll harm
the reputation of the king- so nothing doing
Raleigh- Even in trials generally, there was the requirement that the evidence must be given in
Court- here it was a question of life and death for him
Court- Laws plead for the king, can’t allow his destruction
So many circumstances confirming the case- may retract for fear or favour
Raleigh- Since he’d himself retracted the confession, let him come here and clarify
Status of confession as hearsay: The statement needed the Court to take this trip through the
mind of the declarant and make these assumptions: Cobham said that he and Raleign had
conspired- Cobham believed it- Cobham and Raleigh had conspired
Also an out-of-court statement being used to prove the truth of the matter asserted (matter
asserted: the conspiracy)
Fairness Issues in the trial: Implicates fairness: can’t present a defense against such an out-of-
court statement
You can’t question the maker of the statement, or test its veracity- can just plead again that
you’ve not done it
Also implicates the right to confront witnesses
Proposition laid down after the case: An out-of-court statement should not be used to prove the
truth of the matter asserted
OJ Simpson Murder Case
Accused of killing his wife. The deceased (declarant), some time before her death, said to a
friend of hers: The accused has been stalking her, and that if anything should happen to her, the
accused would be responsible- found dead some days after making it.
Nicole Simpson: declarant.
Her friend to which she said this: witness.
Prosecution tried to bring in the statement through friend’s oral testimony
Analysis
Statement’s status as hearsay: Nicole’s statement was an out-of-court statement being now
introduced to prove the truth of the matter asserted (that she was being stalked by the accused
and the accused killed her)
Also required the Court to conjecture what was going through the mind of the deceased: Nicole
Simpson said she was being stalked, she believed she was being stalked, so she’s being stalked
Relevance and probative value: Relevance and probative value of the statement is obvious- fair
that victim’s statement be heard, especially those from days before the death (reasoning: stalking
usually happens in a clandestine manner, victim’s evidence is the best evidence for this).

55
Fairness issues: Logically speaking, her statement is very relevant to the facts-in-issue, and very
probative- may establish a lot of things- but excluded from legal relevance because of concerns
like fairness. The court cannot cross-examine Nicole Simpson herself. The Court is being asked
to believe that she was being truthful, sincere, was not under a mistaken belief, etc. May aid
getting closer to substantive truth but not part of the determination of the procedural truth

09/08/21

Problems from point A to B:

Problem of Sincerity = it cannot be assumed that if someone said something, they are sincere
about believing it. It could be a possibility that the declarant actually does not believe it to be
true.
Problem of Ambiguity/narration = words can have multiple meanings. The assertion itself could
have been unclear. In the narration of that out-of-court statement, some statements might get
missed out. A possibility exists that the declarant meant something else, but the witness believed
something else. It cannot be automatically said that if someone said something, they believed it.
The problem w hearsay is that the court cannot test these things. In general, if someone says
something, there are safeguards against insincerity such as oath. Then there are safeguards of

56
cross-examination and demeanour. Ambiguity problem is solved by oath = when you take oath,
you cannot say tricky or unclear statement while you are on oath.
Problem from point B to C:
Even if it is assumed that the above two problems are non-existent, there are still 2 problems
from B to C which are out-of-court and cannot be solved.
Problem of memory = the declarant is making a statement from his memory. He may believe he
saw something, but may not recall all parts he saw. His memory cannot be tested since the
statement was made out-of-court. Therefore, if someone believes something to be true, it cannot
be said to be automatically to be true.
Problem of perception = the declarant may actually believe something, but due to faulty
perception, this could be a false belief.
These problems can normally not be solved during trial. It is made without all the three
safeguards. You can test only the reporter of the statement, not the statement itself. You could
have tested it if the declarant itself would have been present as the witness. But that opportunity
is lost in hearsay.
Note, the safeguards can always be applicable to the reporter. But can the declarant be put on
these safeguards? No. Therefore, regardless of the number of reporters, the above-mentioned
problems will still persist.
Using hearsay statements to prove facts other than the truth of the matter
If it’s being used to prove something else- may be admissible, may not be hearsay
Example) In Rattanlal, using the fact of deceased’s statement being heard only to prove that the
witness heard something
Colourable use of hearsay statements
Sometimes there may be a colourable use of an out-of-court statement (like if A’s out-of-court
statement is allegedly being used to prove C’s state of mind and not that C killed B, it’d not
technically be hearsay as nobody is asking you to believe that C killed B// that the matter
asserted is true- but everyone knows what inference you’re trying to impress so) [Blastland
case].
What is not hearsay?
Subramaniam v. Public Prosecutor:
Facts
In Malay- appellant arrested for carrying ammunition- crime was possession- death sentence for
it
His defence: He did not dispute carrying the possession. But he did not possess the mens rea of
possession- the terrorists forced him to carry them, he was helpless- so no mens rea of
possession, was only acting to save life.

57
He tried to defend himself by claiming out-of-court statements made by terrorists to
Subramaniam- admitted the actus reus but not mens rea.

In the latter case, it’s being used to prove the truth of the matter asserted- taking a trip through
the mind of the declarant (here, declarant = terrorist).
He’s not using the out-of-court statement to prove the truth of the matter asserted (that they
would have killed him); not the truth of what the statement asserts. He is not trying to show that
the terrorists would have killed him. He’s using it to prove something else: what effect the
statement has on him.
The line of inquiry here will be whether the statement was made, and whether it placed
Subramaniam under duress- you’re not needed to believe that what was said in the statement
itself was true, and he’s not asserting its truth either (if Subramaniam was asserting that the
threat was genuine and tried to prove that, hearsay). The introduction of the statement is not
asking the court to take a trip through the mind of the terrorist – the issue doesn’t concern with
whether the terrorist actually wanted to kill him.
Lyons Partnership v Morris Costumes (Mistake/ confusion)
Facts
Morris costumes- business of lending out costumes

58
Kindergarten school rents out a costume from the company looking similar to the character
called Barney- called Duffy the Dragon
Lent out for the childrens’ show at a school- children get excited and start shouting Barney
Company sued for trademark infringement by unauthorised use of the costume- defence that it
was not Barney, it was Duffy- plaintiff sought to bring into evidence the statement made by the
children (“Barney!”)
Benchmark to establish trademark infringement: Sufficiency to establish confusion in the minds
of ordinary class of consumers
Analysis
A hearsay use would be using the children’s statement to prove it was Barney. But they are not
trying to prove that it is Barney.4

But here it’s not being used to prove the truth of the matter asserted- it’s being used to prove that
the declarant was confused, not that the declarant was correct.
The essential point is what are you introducing the statements for. Here, showing that the Duffy
the Dragon is actually Barney would constitute it as hearsay (trip through the mind of the
declarant – what did the children say, what did they believe, whether that is true? – asking the
court to believe the childrens’ assertion is true). But that is not what is the aim of the defence
here. They are trying to show that the costume is confusing.

4
Ask this question: what is the party trying to prove? And whether the declarant is correct? Do the two coincide?

59
Non-hearsay uses of out-of-court statements

Performative Utterances

By uttering something, you perform an act = performative utterance.

In these utterances, no independent matter/fact is asserted in Court except the utterance itself.
So, all that is sought to be proved is whether the statement alleged was made or not- whether the
utterance was performed or not.

60
No triangle here- it’s true by virtue of the declarant’s saying it- so all that’s sought to be proved
is that the statement itself was said.
Implied Assertion:
What if the statement is not explicit, but an implied assertion? For example, nodding your head is
understood to be a ‘yes’. Or a factory whistle going off signalling the end of the shift.

First kind can be further broken down into the following two:

In non-assertive conduct, can a person’s act of taking off a sweater lead to the conclusion that it
is warm? Not necessarily. Maybe they just don’t like it.
11/08/21

61
Wright v Tatham HL 1838: celebrated judgement on the question whether implied conduct can
be said to be a statement, and therefore implicate hearsay rule.
The owner of the castle dies and, in his will, he leaves a large part of his estate to his servant,
who had been taking care of him for the last several years. The rationale is understandable, but at
that time in England, this was unheard of [England was very class-divided at that time]. His
relatives file a case in which they say that the person who is dead lacked testamentary capacity to
make a will. A person who is not of sound mind cannot make a will. It was argued that due to
extreme old age and health, he had lost testamentary capacity. The claimant brought into
evidence letters that had been written to the testator [the guy who dies - Marsden] by other
people seeking his advice on questions of how to properly govern and administrate their
colonies. The writers of these letters were administrators of colonies in North America. Purpose:
to show that other people acted that Marsden was of sound mind.

Is this what is being done? It seems to make sense. The problem only is that nowhere in the letter
is directly stated that Marsden is of sound mind.
Had the letter clearly stated that they believed him to be of sound mind, that is clear hearsay.

62
(Judge of the case – Baron Parks)
Conduct = writing letters
Belief = writer’s belief that Marsden is of sound mind
It was therefore held that implied assertions are also hearsay. The relatives won this case. The
conduct itself does not say anything. But there is an implied meaning in the conduct.
Another example of implied assertion:

63
The conduct itself does not admit the commission of the crime. But there is an implied meaning
in the conduct. In this example, conduct = fleeing. Belief (of the declarant himself) = guilt.
Actually proving = guilt. Baron Parks would say it is hearsay.

Problems arising because of this:

Problem of narration or ambiguity: you are giving meaning to the particular action. It is implied
that the reason for fleeing the country is because he was the killer. But in reality, there could be
so many meanings. Here, belief = declarant’s belief of his own guilt. This is led to prove that
declarant is actually guilty.
In Tatham, one other meaning while going from points A to B could be that the letter writer
knows that Marsden is of unsound mind, but he is lonely. As a matter of entertainment for him
and for courtesy, they write letters to keep him busy. So, we don’t really know why exactly they
wrote those letters.
Then again, letter writer thought that Marsden was of sound mind leading to the conclusion that
he was actually of sound mind: problem of mistaken belief. Maybe he met him a long time ago
when he was of sound mind, but now he is not, which the letter writer is not aware of. Problem
of memory too, that you may recall that he was of sound mind but he is not actually so.
In Tatham, Baron Parks (celebrated judge) gave the following example:
All ships by law have to be insured (maritime insurance). Say the ship is lost, great damage is
caused. The owner of the ship claims the insurance amount. Maritime insurance has a condition:
if the ship is in “seaworthy” condition, only then can the loss be indemnified by insurance. The
owner of the ship brings in evidence to show that conduct of the captain of the ship, who knows
everything happening on the ship. The captain took his own family on board. It was argued that
due to this conduct, the captain thought the ship was safe. And therefore, the ship was safe.
Baron Parks says that if we use this form of reasoning, this would be considered to be hearsay.
Declarant = captain. You are trying to take a trip through the mind of the declarant. The captain
might not have perceived or checked properly whether the ship was safe = problem of mistaken
belief. Also, a problem of narration = you do not know why the captain took his family on board.
Maybe he wanted to get rid of them and took them on the unsafe ship.
Additionally, the 3 safeguards are missing.
Question: is it not better to consider this evidence at the time of weightage? As in, admit it, but at
a later stage it can be analyzed whether it is a weak piece of evidence. Would that be fair on the
other side? It is not possible to rebut this evidence, cross-examination cannot be done. There are
several problems of narration, memory, perception etc. So even if such conduct is logically
probative, the reason for excluding hearsay is fairness. Better to not admit them at all.
Question: how is it an assertion as per hearsay’s definition: “matter asserted”? It is only an
implied assertion. Common law = it is hearsay; Federal law = not hearsay since it is not
considered a “statement” (Rule 801 of FRE). There is an intentional requirement in the definition
of a statement – if the declarant intended or meant the particular assertion, only then would it be
considered a statement. In the captain’s case, the captain’s conduct is not intended as a statement.
So, it would not amount to hearsay under the FRE.

64
Under Indian law, this issue has not been decided. “statement” has not been defined in IEA. A
close question came up in Queen Emperor v. Abdullah: whether conduct can be a statement? It
was held that non-verbal conduct is also a statement. If this judgement is followed, then meaning
can be read into the phrase “matter asserted” and would include non-verbal conduct. Statement
can be read into a physical conduct – therefore, hearsay rule can be applied.
Difference from Barney case: There the truth of the matter asserted (that the figure was Barney)
was not sought to be proved; here the truth of the (implied) assertion was sought to be proved.
The definition requires that the conduct should be an attempt to prove the existence of the fact.
So, in Barney’s case, the children’s conduct aligned with their belief that the costume was in fact
Barney. But that is not the fact that the party was trying to prove in that case. Therefore, in Baron
Park’s definition, the train stops at the 2nd point in this case.
Another example: in religious conversion cases, it is shown that the person has started following
the practices of another religion. There is the person’s conduct, which is consistent with their
belief that they have converted, and this is introduced to prove that they have converted. Is this
an implied assertion, and hence covered by hearsay? Ambasta: it mostly becomes a performative
act. You’re not taking a trip through the mind of the declarant. You’re observing. But yeah, if
conduct is not too clear, then this issue could come up.
Hearsay and the IEA framework
Hearsay rule is a rule of admissibility. But sometimes it seems as something related to
relevance. The rule against hearsay has become very convoluted in the common law.
Consequently, Stephen reintroduced two categories in IEA: facts and evidence. He has divided
the subject matter into these two categories. For instance, relevance of facts and admissibility of
evidence. So, facts can’t be “admissible” and evidence can’t be “relevant”.
Hearsay: the statement can be evidence, and the truth of the matter asserted is a fact. The fact is
relevant, but the evidence is inadmissible. So, hearsay does not rely on relevance per se. It lies on
admissibility. There is no problem on the fact’s relevance: the fact can be proved by any other
admissible evidence, but not hearsay.
Now we have to fit this rule in the IEA scheme of things. To Stephen, hearsay rule does not
make any sense. At that point, the common law on hearsay was in a complete disarray. It created
numerous exceptions to the rule of inadmissibility of hearsay. The rule became more
complicated due to the several exceptions. Stephen chucks the rule of hearsay; he focuses on the
fact that is asserted: the question is whether the fact is relevant. The common answer would be
yes. Accordingly, S. 5 says that evidence can be given to prove this fact. This is the first,
fundamental principle [a classic Benthamite way of codification]. Next, this evidence can be oral
or documentary according to S. 3. Then, as per S. 60, oral evidence must be direct. The
witness must have directly perceived it. He cannot give evidence of facts he has not directly
perceived.
Stephen leaves the hearsay part as a question of inference. Evidence is not stopped as long as it
satisfies relevance of fact and admissibility of evidence. If the fact is proved, an inference has to
be drawn as to the statement’s truth. This is done by the judge. The last step is the step of
interference, and not of admissibility.

65
Stephen aims to solve the issue of hearsay by breaking it down into several steps of relevancy
and admissibility. Whether what was said was true is a matter of the court to decide.
Example: In Ratan Lal, the witness can testify that she heard the deceased shouting out the name
of the accused. It is an out of court statement, but it is a relevant fact as per s. 6. It is being
admitted only to prove the relevant fact that the witness heard the deceased. It is not being
introduced to prove that the accused killed the deceased. It is left to the court whether or not to
draw that inference.
Stephen makes two mistakes: First, he uses the word “dying declaration” (which is an exception
to hearsay) in some illustrations. Second, he himself does not clearly state what he is trying to do
in his introduction to the IEA. He does not say that he is not using hearsay in IEA. There could
be a reason: the terms of reference to the Law Commission were very restricted: they allowed the
Law Commission to only codify the common law and not create a new law.
Where are we today? Everything Stephen did has been undone by courts. Courts and scholars
have not understood IEA’s scheme. Reason: 1872 onwards, courts were full of English judges
trained in common law. They were so ingrained in the common law understanding that when
they read the IEA, the imputed rules of common law into it. For example, S. 6 has been called
the rule of res gestae. The same has been followed for years. We are back to square one where
we are trying to trace exceptions.
One notable exception: opinion of Justice Mahmood of Allahabad HC in Queen Emperor vs.
Abdullah (to an extent). He seems to have understood Stephen’s dichotomy, but he did not get
many cases on criminal law.
Common law jurisdictions are still struggling w hearsay and its exceptions. Many are arguing
that it should be done away with. It is being argued that let evidence be admissible, leave it for
the court to decide and draw inferences. Something which Stephen did long back.
16/08/21
EXCEPTIONS TO HEARSAY:
Res gestae
Where the declarant’s statement corresponds to the event in question, then there is no chance of
the declarant fabricating the details. A res gestae statement is made when the declarant is in such
a mind such that the sincerity problem is taken care of due to the overwhelming circumstances in
which the statement is made. Therefore, it is okay to admit such statements even though they are
made without oath, cross-examination and demeanour. This of course does not mean that the
problems in the other leg is taken care of: those can still arise.
In order for a statement to become res gestae you must first show that the declarant is in an
excited or agitated state of mind which renders them incapable of incapable of fabricating
details. How do you show this?
First test: applied in R vs. Bedingfield:
Facts: An attack has taken place on a woman. Her throat has just been cut, blood is rushing out
of her throat and she rushes out shouting “look what Harry did to me”. In this case, all
components of the definition of hearsay are being satisfied. Does it fall into any exception? The
prosecution has argued res gestae. In a state panic, she would not think of uttering a falsehood.
66
She would have been so overwhelmed by the incident that she would report the truth. There is so
little time between the two that she would not have fabricated the statement. A usual person
would not lie.
Decision: The court said that the statement was made not during the incident, but after it. There
was a gap, even though it was small. Res gestate = declaration/statement made during the
incident/ when the transaction is going on. After the incident is completed, a gap disqualifies a
statement from being res gestae. A gap gives the declarant to fabricate the statement.
This test is called “very strict contemporaneity test”: meaning, statement and incident must be
exactly at the same time – even a small gap of 1-2 min disqualifies it as res gestae.
Note, the accused was also found with his cut throat in his room. Additionally, the full report of
the judgement is not available to us. It is a version of the judgement taken down by the reporters
sitting and watching the trial: it’s a “law report”.
Second test: R vs. Andrews: overrules Bedingfield test.
Two accused attacked the deceased using knives, robbed him and evaded. The deceased, while
bleeding profusely, comes out of the house and asks for help and the police and paramedics
reach quickly. The paramedics ask him how he sustained these injuries. He makes a statement:
he says the word Donald, which is registered as Donovan. He is asked again since they were
unsure of the word. But now he was unconscious and feeble. Would this statement be considered
res gestate statement or not? Applying Bedingfield Rule, the clear answer would be no.
However, the court held that several factors need to be looked at:
1. Nature of wounds (gunshot)
2. Possibility of concoction or fabrication
3. Drama and climax: Utterance can be the true reflection of the event (circumstances of the
event)
We need to look at the subjective state of the mind of the declarant. Do these other facts indicate
that the incident was overwhelming the mind of the declarant at the point of time? Even if the
incident has elapsed, if the declarant is in such a state of mind that they cannot fabricate details,
then res gestae should apply. Whether the statement was “spontaneous”: the first chance the
deceased gets to make the statement, he makes the statement. In such a case, it can be safely
assumed that the sincerity problem is taken care of.
A case cited in this case: Ratten v. R.
Man shot his wife with a gun. He argued in his defence that he was cleaning a gun and
accidentally shot her. The prosecution tried to prove that it was intentional, and hence a murder.
The wife had made a call to a telephone operator, saying in a hysterical voice to get her the
police. Before any other statement, the line was cut: implying that probably the phone was
snatched away from her. The prosecution tried to admit this and prove that the transaction of her
murder had started.
There could be a non-hearsay use: woman was alive at this point of time, the state of mind of the
declarant - her state of mind was hysterical or scared. But in this trial, the prosecution does not
want to stop there. They want to prove that the declarant was killed by her husband (Implied
assertion). The defence countered that it was hearsay. Prosecution argued that it is res gestae.

67
This case is unique since the statement was made before the event had taken place: it was leading
up to the event. But is the logic of res gestae satisfied: the situation was so overwhelming that the
declarant is incapable of lying? For instance, in Bedingfield, the cut throat was a proved fact.
Something happens that puts the declarant in an overwhelming state of mind. In Ratten however,
we do not know what has happened up till the point of shooting.
Circularity of the statement: The statement itself becomes the reason for which it was admitted.
The statement denotes her hysterical state of mind -> which is why it is admissible to prove her
hysterical state of mind.
However, her state of mind has to be proved independent of the statement. But here there is no
independent event other than the statement: the statement itself shows her hysterical state of
mind. The statement can't be admissible unless you’ve proven the hysterical state of mind. In
comparison, in Bedingfield and Andrews, the court was aware that an attack has occurred and
hence an agitated state of mind was proven. But in Ratten, the court doesn’t know what
happened before the phone call – no way of finding this out; only clue is the statement itself.
[see the rule of contingent admissibility – s. 136, para 2]. According to this, 1. Show the
overwhelming situation arises. 2. The statement is made thereafter.
So, can any statement like this without any independent fact be considered res gestae?
Deciphering a state of mind from the statement itself and the using it to admit the statement
itself. This would stretch the rule making it too broad.

Courts have interpreted S. 6 of IEA to be the rule of res gestae. This is not compatible with the
language of the statute itself (res gestae about spontaneity, but S. 6 uses the language “whether
they occurred at the same time and place or at different times and places.”) It deals with
relevance of facts, not admissibility of evidence. This follows the general confusion bw facts and
evidence. Consequently, courts have imported the requirements/restrictions of res gestae into s.
6.
Gentela Vijayavardhan Rao v. State of Andhra Pradesh
Court observed that s. 6 deals with res gestae.
Facts: drive and conductor identified the accused who burned the bus.
The judicial magistrate took statements after certain people were injured. It is recorded as if they
were dying declarants. They did not die.
Analysis: Court said time gap. Not res gestae. The Indian test is of spontaneity and
contemporaneity.

68
The test seems to be a curious mixture of spontaneity and contemporaneity. While they have
used the word ‘spontaneity’, their focus is on the time gap. They have not cited the case of
Andrews, which was decided after Teper and before this case, which drastically changed the
legal position. In conclusion, this case brought in a time requirement.

Which is a better test? One argument for Andrews: The Bedingfield is very strict. It is not
possible for a victim to utter a statement in that particular moment itself. Sometimes a victim
might go absolutely numb and not say anything, and say something only later on after regaining
ability to speak. Additionally, if a victim is alone, how do you know that the victim did not shout
for help during the incident? Andrews solves this insofar as the victim gets the first opportunity
to tell any third person. It is not fair that a delay of 1-2 min results in disqualification of the
statement as evidence. Look at the very logic behind the exception: the overwhelming nature of
the incident will not lead to fabrication. This logic cannot be bound by a strict time limit. The

69
Ratten problem can be avoided by clarifying that the statement cannot be used to prove the state
of mind.
Counter: Bedingfield is at least clear and objective. It lays down a strict limit. Res gestae is an
exception to hearsay, and exceptions must be narrowly constructed. Andrews makes it a
completely amorphous concept which is dependent on the judge’s perspective.
A problem for both: in an excited state of mind, the victim might not be able to comprehend its
statements and their consequences. This then becomes an issue relating to weightage. Also, can
you ever be sure of someone’s state of mind?
Does a situation like Ratten arises due to spontaneity? Meaning it would have never arisen due to
contemporaneity test. How to solve that?
Dying Declaration
It is made, as traditionally understood, at the moment of death. The assumption is not of
incapacity of lying as in res gestae. But it is the choice of not lying at the moment of death. At
this point it is believed that people assume a very solemn state of mind. The understanding was
the no person would die after uttering a lie: “no person wants to meet his maker with a lie on his
lips”. This is coming from very moral or religious grounds. Another assumption: there is no
motive to lie, and nothing to gain or lose from lying. All of this means that the problems in the
first leg are taken care of. Note, it still is hearsay, but it is admissible.
What if a person is atheist? Or what if they want to benefit someone else or screw over a person
they hated?
18/08/21
[The hearsay exceptions are as good or as bad as any kind of evidence. They can be both
conclusive and corroborative. There is no rule of thumb. Read the Kushal case (conviction only
based on dying declaration). There is no rule of law that dying declaration is a weak piece of
evidence. It is only a general rule of prudence that dying declaration should be corroborated. But
otherwise, even if uncorroborated evidence inspires confidence, conviction can be solely on
dying declaration.]
It’s easy to poke holes in the underlying rationale of dying declaration. Let's say you are in a lot
of pain – you enter the state of delirium and you enter such an unstable state. Then is such
evidence reliable?
When this exception was created, its application was limited to cases of homicide. Further,
because forensics was not as developed, there was no better way of getting evidence and this was
the most reliable. So, it became almost necessary to create this exception, in addition to the fact
that in many cases it is the most important/reliable evidence since it is coming from the deceased
itself.
The assumption is: you will choose not to lie.
Requirement: knowledge of imminent and certain death. 1. Certainty of death 2. Death must be
imminent. Otherwise, you cannot substitute the safeguards of oath and stuff. This is a tricky
requirement: how do you ascertain the subjective state of mind?

70
R V. JENKINS
Facts: Victim pushed into the river by the accused. She is recovered but dies two days later.
woman was on her death bed and a magistrate under oath ask questions. She ascribes the actus
reus and mens rea to the accused. She said that she has no hope of survival. When the statement
is read over to her, she adds two words “at present” – she has no hope of survival at present.
Issue: Is there a hope of survival?
Analysis: The addition may indicate that she was harbouring some (slight/unreasonable) hope.
She thinks that there is a future (who knows what might happen in the future?). Counter: the
statement is a paradox: if I don’t survive, there is no question of the future. “At present” is a
descriptor of her current state of mind.
Even if the physical state improves and later, she dies. But the focus is on when the statement
was made.
Court decides that she had hope of recovering, hence the exception is inapplicable.

But think about the kind of confusion that this ‘state of mind’ requirement has caused. You can
never be sure of the state of mind and that results in cases like this where you are hyper focusing
on these two terms – this leads to inconsistencies. Common law is very ambiguous on this point.
This is not a good feature of the law since law should be consistent.
Position in India:
Now in the IEA, Stephen changes this from the common law position. You find dying
declaration in the illustrations in the IEA.
But the principle behind DD can still be there without the complication of the common law. This
can be achieved by making the statement itself a relevant fact.
S. 32 of IEA
Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or
who cannot be found, or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which under the circumstances of the
case appears to the Court unreasonable, are themselves relevant facts in the following cases
Incapable of giving evidence: coma, insanity, senility.
The statement itself is the relevant fact. What is contained in the statement is therefore relevant.
(1) When it relates to cause of death. –– When the statement is made by a person as to the cause
of his death, or as to any of the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

71
Cause of death (A has shot me).
Circumstances of the transaction – there is no causal requirement. You might make a statement
that indicates place or time. With this Stephen has broadened the scope of the definition, but at
the same time reduced the rule from that of admissibility to that of relevance.
There is no requirement that this must be a murder case (common law requires DD to be used
only in homicide cases). Any case where cause of death is an issue – then it is relevant.
No requirement of expectation of death. Therefore, Stephen has radically changed these 2
aspects.
[you can make the same fact relevant under multiple sections. There is no bar. You can invoke
both res gestae (S. 6) and dying declaration (S. 32)] Queen Empress v. Abdullah
Under 6, the statement is made then and there.
Under 32, the statement can be backward looking.

PAKALA NARAYANSWAMI V. KING-EMPEROR, (1939) IA 66

(It provides the definition of confession)
Facts: the deceased has lent money to accused prior to death. The accused writes a letter and
asks him to come get the money. The deceased shows the letter to his wife and says that he is
going to get the money. The deceased never returns and his body is found cut out into 7 pieces.
Issue: can the statement be admitted through second part of S. 32(1)?
How can we presume that the letter is a part of the transaction? The same circularity problem
arises here.
Analysis: don’t get confused between relevancy and admissibility. We are only concerned with
relevancy now and the same has a lower threshold.
S. 32(1) is broad. He is letting a lot of facts come in as being relevant. What Stephen is doing in
return is reducing the status from admissible evidence to relevant fact.
To say that 32 admits dying declaration as evidence is a misinterpretation. It does not admit
anything.
The prosecution wanted to introduce this fact to prove that he met the accused
The court said it is relevant. The transaction is the murder. This is indicating the place of the
death. Very broad interpretation. You may not even know that the transactions relating to death
have started. So, a number of facts can be made relevant under 32(1).
Another example: when Nicole Simpson says that if anything happens to her, her husband has
done it. This is also a forward-looking statement.

What about gestures? For example, https://www.youtube.com/watch?v=MbMFLDb3CbI

Joffrey’s death scene in GOT. Was he pointing at his uncle or at the goblet? This is a problem in
evidence law – different meanings can be given to the same incident. Also note that in such
gestures, meaning is usually implied into the gesture by a third person.

72
23/08/21
QUEEN-EMPRESS V. ABDULLAH, (1885)
Facts: Young woman’s throat was slit. In the clinic, her dying declaration as taken. Signs of the
hand. Upwards – positive. Downwards – negative. They only mentioned names and she agreed
to Abdullah.
Issue: Would this gesture amount to a “statement” under the meaning of s. 32(1)?
Analysis: In the GoT case, we saw that the meaning was being ascribed to the action by someone
else. This case is different. Meaning is ascribed by the declarant itself. Even when there is a clear
statement, we are still faced with a narration and ambiguity problem. Here, especially, leading
questions were asked to the deceased: “is it Abdullah? /is it XYZ” – answers hidden in the
question itself. So, this shows the ambiguity problem. These are exacerbated when there is a
gesture instead of anything else.
There is a disagreement by the majority judgement and the concurring judgement in this case.
5 judges.
Majority: these gestures are “verbal”. Verbal = broader meaning = acts of speech +
gestures/conducts which substitute speech. Where it uses “verbal” even gestures may be
considered as good as speech.
Minority: But in other places the word “oral” is used. Looking at the statute as a whole, it needs
to be conclusive. Oral means something which pertains to the mouth.
Mamood J. – 32 includes only written and spoken statements. If it is a gesture, it should be
something else. It can be a conduct - S.8 IEA: Conduct. (shaking your hand).
Would this satisfy S.8? CJI’s opinion - This conduct by itself is not affecting a fact in issue or a
relevant fact. She is just shaking her hand. What does this mean?
Majority The only way to make her conduct relevant is to make the statement relevant. The
statement is the question that is asked to her (“Was it Abdullah?”). You cannot make the
question relevant under S.8 because it is not conduct.
Minority: Justice Mahmood takes us to the illustration:
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A’s presence –– “the police are coming to look for
the man who robbed B,” and that immediately afterwards A ran away, are relevant.
Explanation 2 –– When the conduct of any person is relevant, any statement made to him, or in
his presence and hearing, which affects such conduct, is relevant.
There is no consequential requirement in explanation 2 – this can be seen in the above
illustration.
Petheram (majority): there has to be a consequential requirement. First make the conduct
relevant, then anything said or done in their presence can be made relevant – this is how s. 8 has

73
to be constructed. If the conduct itself is not relevant to begin it, you cannot make it relevant by
the statement – this is again a circular method.
Who gets it right?
CHANDRASHEKHAR’S CASE
Facts: woman was attacked and rendered incapable of speech. She indicates that the accused is a
person who owns a particular bullock cart. Coconut trees near his house. When asked whether it
is the accused, she then gestures that it is him. Meaning is given to her gestures and she confirms
that meaning. Shortly after she dies.
Issue: will it be relevant under 32(1)?
Court: Gestures are a part of S.32(1). But the meaning that is ascribed by the onlookers is not
relevant. Very fine distinction. So, a witness can come to the court and testify what gestures she
made. What inferences can be drawn has to be left to the court. 5 This is because the general rule
is that you are not allowed to give your opinion as a witness (s. 60).
Compare Chandrashekhar’s and Abdullah’s case. Would it be better to include such things under
s. 8 or s. 32? Maybe under s. 8 things said by onlookers will also be relevant?
PRACTICAL DIMENSION TO DYING DECLARATION:
It is used by the court to infer something. Generally, someone is attacked and taken to the
hospital. Normally it is here that their statement is recorded. Then they die.
In some cases, they die after 2 hours or in some after 2 days.
The most reliable way of recording DD is getting it recorded by a magistrate in a proper format.
Least reliable – one recorded by a police officer. All these are admissible, question arises only on
reliability.
KUSHAL RAO V. STATE
1. Circumstances in which it was recorded. How much time has passed?
2. Who was it recorded by? The best case is the one recorded by a Magistrate. Second case
is the doctor itself. Third parties can also record it.
3. The proper way is through questions and answers. Transcribe it as close as possible in the
language of the declarant
4. State of mind of the declarant.
5. Must avoid multiple dying declarations
The class of cases where it is most commonly recorded is cases of dowry death. In-laws will take
her to the hospital. Stove burst (except stoves/cylinders don’t burst lol).
Death is not instant. Kerosene burns are very severe. Morphine injection is given. A deep hole is
drilled into the sole of your foot and morphine is given. Then you cannot give any statement.
If delirium has set in then you are not in the state of mind to give a statement. The doctor has to
certify how is the state of mind.
Contradictions in dying declarations:

5
Finally, when the onlookers understand what she is saying and they confirm “is it Chandrashekhar” and she says
yes, that can be brought in. But interpretations such as bullock cart and coconut trees cannot be allowed.

74
Could be simple contradiction of facts or omission of facts. Often in dowry death cases the
victim initially names the accused, but once she gets more stabilized, she says her saree caught
fire or something due to pressure. The consequence is that both statements become unreliable.

Contradiction must be material. It must go directly into the fact in issue

Courts can read down the contradiction. When I have just gone through the crime, there
is lesser chance I'm fabricating. After 1-2 days when I am more stabilized, then I mention
more facts in more detail. These can be made relevant as well. Courts can read down
inconsistencies in such cases since it is understood that the statement need not be
encyclopaedic.
Corroborating dying declarations:
DD can get more reliability if it is corroborated. One way: Corroborating with facts: “my
husband poured kerosene over me”. Facts which can corroborate this – kerosene spilled on the
ground, husband buying it, combustions correspond to burns by kerosene. Second way:
Corroborates with witnesses. An independent witness corroborates certain facts.
Dying declarations can be contradicted also.
DYING DECLARATION TREATED AS EVIDENCE
Kushal rao
(1) that it cannot be laid down as an absolute rule of law that a dying declaration
cannot form the sole basis of conviction unless it is corroborated6;
(2) that each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made;
(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker
kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principles governing
the weighing of evidence;
(5) that a dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, and, as far as practicable, in the
words of the maker of the declaration, stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all the infirmities of human
memory and human character, and
(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the
circumstances like the opportunity of the dying man for observation, for example, whether
there was sufficient light if the crime was committed at night; whether the capacity of the man
to remember the facts stated, had not been impaired at the time he was making the statement, by
circumstances beyond his control; that the statement has been consistent throughout if he
had several opportunities of making a dying declaration apart from the official record of
it; and that the statement had been made at the earliest opportunity and was not the result
of tutoring by interested parties.

6
Corroboration is only a rule of prudence, not a rule of law.

75
25/08/21
BUSINESS RECORD EXCEPTION
S. 32 (2) IEA
Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which under the
circumstances of the case appears to the Court unreasonable, are themselves relevant facts in
the following cases: ––
(2) or is made in course of business.––When the statement was made by such person in the
ordinary course of business, and in particular when it consists of any entry or memorandum
made by him in books kept in the ordinary course of business, or in the discharge of professional
duty; or of an acknowledgement written or signed by him of the receipt of money, goods,
securities or property of any kind; or of a document used in commerce written or signed by
him; or of the date of a letter or other document usually dated, written or signed by him.

Exception of ordinary business records (meaning routine activities). You have to prove this.
When the maker of these documents cannot be found. The record itself can be brought into
evidence to prove the truth of the matter asserted.
Which hearsay problems can be eliminated here? Problems from A to B do not exist. The
sincerity and fabrication problems are eliminated.
Professional duty: Doctors – medical opinion. Professional ethics. Independence – he is
independent.
AGAINST THE INTEREST OF THE MAKER
S. 32(3) IEA:
(3) or against interest of maker. –– When the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it would expose him or would have exposed him
to a criminal prosecution or to a suit for damages.
Takes care of the sincerity problem. There is no incentive in lying against your interest.
PUBLIC OPINION
S. 32(4) IEA:
(4) or gives opinion as to public right or custom, or matters of general interest––When the
statement gives the opinion of any such person, as to the existence of any public right or custom
or matter of public or general interest, of the existence of which, if it existed, he would have been
likely to be aware, and when such statement was made before any controversy as to such right,
custom or matter had arisen.
Opinion can be formed by knowledge or belief.

76
There is a general rule that opinions are not allowed. In some situations, opinions can be given.
This is one such exception.
Takes care of the sincerity problem. When I give my opinion, at that time there was no
controversy. Nature of the question is about the public right.
This also takes care about the problem from B to C. Other people can also give evidence
regarding the same. Can be verified.
EXISTENCE OF A RELATIONSHIP – SPECIAL KNOWLEDGE
S. 32(5) IEA:
(5) or relates to existence of relationship.––When the statement relates to the existence
of any relationship 1[by blood, marriage or adoption] between persons as to whose
relationship 1[by blood, marriage or adoption] the person making the statement had
special means of knowledge, and when the statement was made before the question in
dispute was raised.
A person makes a statement regarding the existence of a relationship (special knowledge = not
the opinion of any third party, but someone who is intimately close to the people in the
relationship).
No faulty perception problem.
EXISTENCE OF A RELATIONSHIP – WRITTEN DOCUMENT
S. 32(6) IEA:
(6) or is made in will or deed relating to family affairs.––When the statement relates
to the existence of any relationship 1[by blood, marriage or adoption] between persons
deceased, and is made in any will or deed relating to the affairs of the family to which any
such deceased person belonged, or in any family pedigree, or upon any tombstone, family
portrait or other thing on which such statements are usually made, and when such statement was
made before the question in dispute was raised.
1. Written requirement
2. Usualness requirement
Takes care of sincerity problem: You will not lie in your will and tombstone and all.
S. 32(7) IEA:
(7) or in document relating to transaction mentioned in section 13, clause (a).––When the
statement is contained in any deed, will or other document which relates to any such
transaction as is mentioned in section 13, clause (a).

13. Facts relevant when right or custom is in question.––Where the question is as to the
existence of any right or custom, the following facts are relevant:––
(a) any transaction by which the right or custom in question was created, claimed,
modified, recognised, asserted or denied, or which was inconsistent with its existence;

77
(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.

S. 32(8) IEA:
(8) or is made by several persons and expresses feelings relevant to matter in question.––When
the statement was made by a number of persons, and expressed feelings or impressions
on their part relevant to the matter in question.
Illustration (n): A sues B for a libel expressed in a painted caricature exposed in a shop window.
The question is as to the similarity of the caricature and its libellous character. The remarks of a
crowd of spectators on these points may be proved.
PRIOR STATEMENTS
Prior statement made by the witness – can it be brought in? (“self-hearsay”)
Here, the witness is the declarant. Is there a hearsay problem here?
S. 33 IEA (only in regard to prior judicial proceedings + other safeguards)
Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts
therein stated.––Evidence given by a witness in a judicial proceeding, or before any
person authorised by law to take it, is relevant for the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the
facts which it states, when the witness is dead or cannot be found, or is incapable of giving
evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained
without an amount of delay or expense which, under the circumstances of the case, the Court
considers unreasonable:
Provided ––
that the proceeding was between the same parties or their representatives in interest; that the
adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Facts of the case will be known. If it’s between unrelated parties, then that statement will be
misapplied.
It is as if you are carrying forward the evidence from that to this proceeding. This is only allowed
because judicial safeguards are present.

What about general statements?

Would it be hearsay? Yes. There are absolutely no safeguards.
Definitionally speaking, a prior statement is hearsay. The proper way for the witness to give
evidence is to repeat the content of the statement under oath as fresh evidence. But this does not
mean that we cannot take prior statements into evidence. One example is S.33.

78
Two other ways in which prior statements can be used: to contradict or corroborate.
S. 145 IEA
Cross-examination as to previous statements in writing. –– A witness may be cross-examined
as to previous statements made by him in writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him, or being proved; but, if it
is intended to contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the purpose of contradicting him.
To contradict a witness. For cross examination in general prior statements can be used. It has to
be reduced into writing so as to prevent any harassment towards the witness.
This is to show that he has contradicted himself in the past.
S. 157 IEA
157. Former statements of witness may be proved to corroborate later testimony as to
same fact. –– In order to corroborate the testimony of a witness, any former statement
made by such witness relating to the same fact, at or about the time when the fact took
place, or before any authority legally competent to investigate the fact, may be proved.
You can also corroborate it. To support something which he is saying now.
So these two provisions allow their use only to prove/disprove consistency.
Read s. 34 to 44 read on your own.
Note: if there are multiple hearsays, at least one exception should apply to every stage.
HILLMON DOCTRINE
(not expressly applied in India, but no express bar)
Facts: Hillmon died in a very remote area. His wife claimed money on 3 companies – life
insurance.
He wanted to set up a new business and then call his wife. He died because of an accidental
discharge from a gun. He was buried. The insurance companies denied compensation because
they said that Hillmon was still alive and he had gone into hiding. Someone else was buried in
Hillmon’s clothes. Fraud of this kind was not very uncommon at that point. Walters had met
Hillmon shortly before he died. He had decided to go with Hillmon and set up a sheep ranch.
Walters writes a letter to his GF and narrating this. Insurance companies wanted to get this letter
into evidence to show that Walters had died, not Hillmon.
Hillmon’s lawyer said that this is hearsay. The truth of the matter or an implied assertion was
being made.
Analysis: The case was tried 6 times and even went to the US SC (rarely the US SC hears
appeals). Thayer solved the problem (he was a law clerk to the judge). This is not hearsay
because it is expressing intention regarding a future event. There is no insincerity problem. He is
talking about the future. Later on, the wife and insurance companies settled outside court for an
undisclosed amt.

79
The SC created a new exception to the hearsay doctrine. (Court unsatisfied with the result
coming out of the application of hearsay?)
This is codified in the USA under Rule 803(3), FRE.
The following are not excluded by the rule against hearsay, regardless of whether the declarant
is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s
then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it relates to the validity or
terms of the declarant’s will.
Future looking possible under this, but backward looking not possible.
Pakalanarayana Swami: statement admitted by 32(1). Facts are similar though. Hilman doctrine
would apply here too.
30/08/21

EVIDENCE IN CONSPIRACIES
S. 120A of IPC – criminal conspiracy - Agreement to do an illegal OR agreement to do an act by
illegal means.
Conspiracy is also called as an inchoate offence. An incomplete offence. It is also called as a
continuing offence. As long as the common agreement exists, the crime continues.
Proving Intention: Conspiracy is so focused on the mental aspect. It is quite difficult to prove it.
You need certain external aspects. This is quite difficult. The prosecution bears a disadvantage.
Agency: An act done by one conspirator is attributable to everyone. Each conspirator is the agent
and principal of another: each conspirator acts on behalf of another conspirator.
2 broad types of conspiracy: chain conspiracy and wheel conspiracy. In some large-scale
conspiracies, not all conspirators would know who the other members are. In chain conspiracy, 2
enter into a conspiracy. The 2 nd person goes to the 3 rd who also agrees. The 3 rd goes to the 4th and
so on. No. 4 and No. 1 may not know each other. In wheel conspiracy, person no. 1 approaches
no. 2, 3 and 4. Again, no. 2, 3 and 4 are not aware of each other.
How does a conspiracy end?
Through fulfilment: With the object being completed.
Through frustration: When all the conspirators are caught.
Through abandonment: As long as there are at least 2 people – the conspiracy continues.
S. 10 IEA
Things said or done by conspirator in reference to common design.–– Where there is
reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was first

80
entertained by any one of them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose
of showing that any such person was a party to it.
Preconditions: the court must have a reasonable ground to believe that there is a conspiracy.
What is the standard of proof? Prima facie. (whenever “reasonable grounds to believe” is used)
Rule of Evidence Aliunde: Facts independent than those made relevant by S. 10. Before invoking
this section, you need to establish this prima facie standard. These must be independent from the
facts being made relevant under s. 10.
What is relevant? Speech, conduct and writing in reference to the conspiracy. The special rule
starts applying after the time the intention was framed by any one of them.
Starting point – as soon as common intention starts.
There is no end point.
Ex: A and B start Conspiracy on 1 st. C joins on 3rd. A left on 7th. On 10th, the conspiracy is
fulfilled. A, B and C are arrested. It is prima facie shown from independent facts that a
conspiracy has occurred. Prosecution now looking to invoke s. 10.
Prosecutor says on 2nd, A procured a pistol with which the murder was done – act in reference to
their conspiracy. Prosecution tries to establish this is relevant against A, B and C. Is this act
relevant against C? Yes. The section uses “any of them”. All facts become relevant when the
common intention starts by any one of them. Counter: this is based on the principle of mutual
agency. How can you apply this to C who is not an agent on 2 nd? But: even if you join the
conspiracy later on, you are responsible for whatever has been achieved till then. So, it would be
relevant against C too.
B and C on 8th analysed the place where the murder has to be done. Prosecution tries to make this
fact relevant against A, B and C. Is this attributable to A? One argument: since A has abandoned,
it should not be made attributable to A. But: the crux of s. 10 is whether the conspiracy exists or
not. Even if you have left, you still have committed it before leaving. A is equally responsible to
it as much as B and C is. So, even after a conspirator has abandoned the conspiracy, a fact can be
made relevant against them. As long as the conspiracy continues, everything will be attributable
to everyone.
It is possible that a new conspiracy begins after A leaves when the object changes. The old
conspiracy has now been ended. So, things done in the new conspiracy cannot be made relevant
against A. But all three can still be tried for the previous one.
Let’s say that the conspiracy ended on 10 th. Then C wrote something referring to the past act.
Can this be made relevant? “In reference to their common intention”. Note that there is no end
point in s. 10. Refer to Mirza Akhbar’s case.
These are hearsay statements. During the conspiracy, the problem of hearsay is solved because of
the principle of agency (acts of one conspirator are adopted by the others). They are made
without reflection and on the spur of the moment.

81
But after the event, about the past, these safeguards do not apply. They also do not apply to the
other erstwhile conspirators.
It does three things:
1. The existence of the conspiracy
2. A person was a party to it
3. It is relevant against each of the persons

Illustration:
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against
the 1[Government of India].
The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money
in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E
published writings advocating the object in view at Agra, and F transmitted from Delhi
to G at Kabul the money which C had collected at Calcutta, and the contents of a letter
written by H giving an account of the conspiracy, are each relevant, both to prove the existence
of the conspiracy, and to prove A’s complicity in it, although he may have been
ignorant of all of them, and although the persons by whom they were done were
strangers to him, and although they may have taken place before he joined the conspiracy
or after he left it.
S. 10 can ONLY be used by the prosecution. We have such a rule because conspiracies are
very difficult to prove for the prosecution (it is defined as a vague offence in a manner involving
meeting of minds).
It can always be used as a sword and not a shield.
01/08/21
MIRZA AKBAR V. EMPEROR, (1940)
Facts: there was an extramarital affair. Both plan to murder the husband. They hired a person to
do this. They exchanged 3 letters. The hitman is caught with the gun in hand. The conspiracy
ends when the person died (through commission).
The wife gives a statement in front of a court.
Issue: Can this statement be made relevant under S.10?
Analysis: The court refers to the case of R v. Blake. “in furtherance of” – this is the common law
position. This means that you need to do something towards a particular aim/goal. Hence, you
cannot further the conspiracy that has ended.
“in reference to” – position in India. You can refer to the past act.
Stephen seems to have altered the common law position and make it broader.
But, the court says they will adopt the narrow standard. Once the conspiracy has ended, you
cannot make any fact relevant.

82
BADRI RAI V. STATE OF BIHAR, 1958
Facts: Ramji and Badri Rai. Former – shop and latter – school. Police found molten gold and
silver. They were melted using certain instruments supplied by Ramji. Police arrested 6 men +
Ramji. Ramji was let out on bail.
One evening Ramji and Badri met w the officer and asked him to let the case go for some
money. They meet him on the road. Ramji spoke.
Badri came to police station and gave money and said Ramji has sent it.
Issue: what all can be made relevant? What is the evidence aliunde?
Analysis: The court said that the first instance of them meeting on the road shows the aliunde
evidence.
Remember that the conspiracy here is of bribing the officer. You will keep the crucial evidence
for S. 10. You want this to be applicable against everyone.
Is this actually evidence aliunde?

SARDUL SINGH CAVEESHAR V. STATE OF BOMBAY, AIR 1957

Facts: Accused and other people wanted to buy a company Jupiter. They entered into a
conspiracy of using the companies own funds to buy it and entered into a conspiracy with the
promoters of the company.
They make a down payment and using this they transfer shares and controlling stake to them.
They start disposing Jupiter’s assets to raise the balance amount.
Issue: when does this conspiracy end?
Analysis: The court splits the conspiracy into 3 stages: writing statements
Ends: Jan 20 – conspiracy by commission – when they take over the controlling stake of Jupiter.
OR later – when they are hiding the conspiracy and selling off the stuff. Maybe the latter is a
different conspiracy. To hide evidence.
So the conspiracy ended on Jan 20. When Jupiter has been taken over.
Can things happening after this made relevant? State says okay conspiracy has ended. But these
actions are still relevant under S.8 under conduct and then once these facts are relevant, they
can be used against other conspirators also by using S.10.
Court says fuck no. In general, such evidence is only admissible against a person and not against
all accused. S.10 is barred.
Either fulfill S.10’s conditions and then make it relevant against everyone or can't use it against
everyone.

83
BHAGWAN SWARUP V. STATE OF MAHARASHTRA, AIR 1965
Facts: After these men acquired Jupiter, they were finding it difficult to hide their fraud. So
smarty pants decided to buy another company and use their funds to hide their previous frauds.
(an argument about double jeopardy – court rejected)
Analysis: Proper interpretation of S.10:
(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe
that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or written by any one of them in
reference to their common intention will be evidence against the other;
(3) anything said, done or written by him should have been said, done or written by him
after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the conspiracy or after
he left it; and
(5) it can only be used against a co-conspirator and not in his favour.

STATE V. NALINI, (1999)

Assassination of Rajiv Gandhi.
Issue: If there’s a conspiracy to assassinate RG, when does the conspiracy end?
Analysis:
Maybe, when conspirators get arrested. Then after how many people need to get arrested for the
conspiracy to end?
In this case, the LTT superior was the head conspirator.
Maybe, when he was assassinated? But the plan was quite elaborate. It included forging
passports and stuff.
In this case, the conspirators were all arrested at different points in time.
The prosecution argues that even if have arrested one of them, the conspiracy still continues. The
others are still furthering it. If the arrested person says something then it is still within the Mirza
Akbar rule because the conspiracy is going on.
In this case, the SC says no. We will not extend it till after the arrest. The prosecution was not
able to prove that the arrested person was still conspiring.

When did it end?

21 May – RG assassinated.

84
After this, arrest.
If you take the object of conspiracy as assassination, then yes ended. (offence-centric)
In this case, most of what is found is found after he is assassinated.

Also, just by the arrest of one conspirator – doesn’t mean it ended.

S. 30 IEA
Consideration of proved confession affecting person making it and others jointly under trial
for same offence.––When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting himself and some other of such
persons is proved, the Court may take into consideration such confession as against such
other person as well as against the person who makes such confession.
Explanation.––“Offence,” as used in this section, includes the abetment of, or attempt to
commit, the offence.

This is also a special rule that something said by someone else can be used against you. This is
not limited to conspiracies only and can be used for a lot of offenses.

Requirements:
1. Joinder of offence (CrPC)
2. Proved confession which implicates the maker and someone else

“Court can take into consideration” – it doesn’t use the words “relevant”
A confession made by someone else is used against someone else.
This happens in cases where there are accomplices. One of them will rat everyone out.

S.114 IEA:
Court may presume existence of certain facts.
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
illustration (b) ––A, a person of the highest character, is tried for causing a man’s death by an
act of negligence in arranging certain machinery. B, a person of equally good
character, who also took part in the arrangement, describes precisely what was done,
and admits and explains the common carelessness of A and himself;

85
Accomplices when become witnesses, their testimony should not be given too much weightage
and court should look for corroboration.

S.133 IEA:
Accomplice. –– An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of
an accomplice.

S.118 IEA:
Who may testify. –– All persons shall be competent to testify unless the Court considers
that they are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of body or mind,
or any other cause of the same kind

Competence and reliability are two different thigs.

There is no illegality if a court decides to convict merely on the basis of this.
It depends on the facts and circumstances of a case.

86
 UNIT VIII: CONFESSIONS AND ADMISSIONS

Definition of confession (from Pakala Narayan Swami)

A confession should do one of two things:
1. Admit the confession of an offence
2. Admit all the elements that constitute an offence

Pakala Narayanswami: “a confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An admission of a gravely incriminating
fact, even a conclusively incriminating fact is not of itself a confession, e. g. an admission that
the accused is the owner of and was in recent possession of the knife or revolver which caused a
death with no explanation of any other man's possession.”

What if the confession contains exculpatory matter?

Pakala Narayanswami: “no statement that contains self-exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true would negative the offence
alleged to be confessed.”
Exculpatory matter could be a statement that indicates the applicability of any defence under the
IPC (Eg: insanity, RPD)
Pakala Narayanswami
Facts: When the accused was examined at his house by the police, he made a statement that the
deceased had come to his house on the evening of 21st March, slept in one of the outhouse rooms,
and left the next evening. Before the examining magistrate the accused’s statement was that the
deceased never came to his house at any time in March.
Issue: Whether the statement of the accused to the police was admissible?
Held: The statement was inadmissible by reason of S. 162 of the CrPC (no statement made by
any person to a police officer in the course of investigation shall be used for any purpose at trial)

S. 17, IEA: Admission defined

An admission is a statement, 8A[oral or documentary or contained in electronic form], which
suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances, hereinafter mentioned.

Confessions are a sub-set of admissions.

S. 18, IEA: Admission- by party to proceeding or his agent

Statements made by party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly authorized by him to
make them, are admissions.
87
By suitor in representative character — Statements made by parties to suits, suing or sued in a
representative character, are not admissions, unless they are made while the party making them
held that character.
Statements made by—
(1) By party interested in subject-matter—persons who have any proprietary or pecuniary
interest in the subject-matter of the proceeding, and who make the statement in their character of
persons so interested, or
(2) By person from whom interest derived- Persons from whom the parties to the suit have
derived their interest in the subject-matter of the suit, are admissions, if they are made during the
continuance of the interest of the persons making the statements

Basant Singh v. Janki Singh

Facts: A woman was claiming a life interest in her husband’s (Ramyad Singh) share of the
property. She would only be entitled to it if her husband had died after the enactment of the
Hindu Women's Rights to Property Act, 1937. Her in-laws (Janki Singh) argued that she could
not claim the life-interest since the husband died in 1936. The appellant relied strongly upon an
admission made by the in-laws, in a plaint signed and verified by them and filed in Title Suit No.
3 of 1948. The plaint contained a clear admission that Ramyad Singh died in 1939. 7
Held: “The plaint was read over to Janki Singh. Both Janki Singh and Kailashpati Singh signed
the plaint after understanding its contents and verified all the statements made in it as true to
their knowledge. They then well knew that Ramyad Singh had died in 1939 after the passing of
the Hindu Women's Rights to Property Act. It is not shown that the admission in the plaint as to
the date of death of Ramyad Singh is not true or that it was made under some error or
misapprehension. This admission must be regarded as a strong piece of evidence in this suit with
regard to the date of death of Ramyad Singh.”

S. 19, IEA: Admissions by persons whose position must be proved as against party to suit
Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions, if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against them, and if they are made
whilst the person making them occupies such position or is subject to such liability.
Illustration
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A
denies that C did owe rent to B.

A confession is a very powerful piece of evidence – there are provisions in the CrPC that the
court can go straight to sentencing if a confession is obtained, that the accused has a limited right
to appeal if he confesses.

7
This is an admission against interest – strong evidence (Presumption that persons will not make statements against
their interest unless they are true)

88
S. 164, CrPC provides for the recording of confessions. Each High Court has rules of practice
governing the procedure of recording confessions.
Custody is a much broader concept than arrest – if a person is under the subjective perception
that they are not free to walk away – they are in custody.
When in police custody – accused is kept in police station – under the custody of the
investigating officer (S. 167, CrPC – can be kept in police custody for maximum period 15 days)
When in judicial custody – accused is kept in jail
Under the law, under no circumstances can a magistrate record a confession of a person
who has come directly from police custody. He has to mandatorily be sent to judicial
custody first – so that he can reflect on whatever has happened to him and to overcome any
influence that may have been exerted by the investigating officer.
Manner for recording confession: S. 164, CrPC:
- The Magistrate shall not record the confession unless he has reason to believe that it is
voluntary (he should ask the accused whether he has been told to confess, whether the
investigating officers tortured him)
- Confession has to be recorded by the judge, in writing, in the language of the accused
A confession recorded by a judicial magistrate is a very powerful piece of evidence – sufficient
to convict.
See Page No. 30 of Surinder Koli’s confession to the magistrate – he admits, and it is recorded in
the confession, that he was tortured in police custody in order to correctly identify the pictures of
his victims. However, the issue of torture in police custody was never dealt with by the court.
State of Maharashtra v Damu
Grounds for challenging the confession:
- The accused remained in police custody for a considerably long period of time
- The location of the sub-jail (judicial custody) was very close to the police station – there
was a possibility that the investigating officers could continue to exercise influence over
the accused.
- There was no explanation for why the magistrate recording the confession was from a
distant place despite there being a magistrate at a near place
- The investigating officer was not able to explain how he knew that the accused wanted to
confess (voluntarily)
On these grounds, the HC acquitted the accused.
However, the SC reversed the finding of the HC, holding that despite these factors there were a
number of circumstances supporting the truth of the confessional statement.

Who is an accused?
Generally, a person becomes an accused as soon as an accusation is made against the person –
could be in a complaint or in an FIR.

S. 24, IEA: Confession caused by inducement, threat or promise when irrelevant in

criminal proceedings

89
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of
the confession appears to the Court to have been caused by any inducement, threat or promise,
having reference to the charge against the accused person, proceeding from a person in authority
and sufficient, in the opinion of the Court, to give the accused person grounds, which would
appear to him reasonable, for supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings against him.

Thus, the court has to make 2 determinations to make a confession irrelevant under S. 24:
- The court has to determine, prima facie, that an inducement threat or promise was made
- The court has to determine, prima facie, that from the accused’s perspective, he believed
that he would gain an advantage or avoid an evil of the temporal world

For the second part of S. 24 (sufficient, in the opinion...): two standards: one is the extent to
which the accused should believe that he would gain advantage or avoid evil – which should be a
reasonable belief (in the situation in which he is – different from a reasonable man’s standard).
second is the extent to which the court should have proof of this belief of the accused – which is
the prima facie opinion of the court.
Thus, the court has to come to a subjective determination, on a prima facie standard, that the
accused person had grounds that appeared to him to be reasonable to believe that the inducement
would cause him gain.

Pyare Lal Bhargava v. State of Mahrashtra

On S. 24: The crucial word in the first ingredient is the expression "appears". The appropriate
meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof.
under s. 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is
laid down as the criterion. The standard of a prudent man is not completely displaced, but the
stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's
opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may
be adopted as the standard laid down. To put it in other words, on the evidence and the
circumstances in a particular case it may appear to the court that there was a threat, inducement
or promise, though the said fact is not strictly proved.
What is more important is that the mere existence of the threat, inducement or promise is not
enough, but in the opinion of the court the said threat, inducement or promise shall be sufficient
to cause a reasonable belief in the mind of accused that by confessing he would get an advantage
or avoid any evil of a temporal nature in reference to the proceedings against him : while the
opinion is that of the court, the criterion is the reasonable belief of the accused. The section,
therefore, makes it clear that it is the duty of the court to place itself in the position of the
accused and to form an opinion as to the state of his mind in the circumstances of a case.

Ratan Gond v State of Bihar

90
Facts: The accused had chopped off the head of the girl. When the girl went missing, the
villagers searched for the accused and found him, he was produced before certain villagers,
including members of the panchayat, before whom the he confessed that he murdered the girl.
Issue: Relevance of this extrajudicial confession – is it hit by S. 24?
Held:
- The court found that the persons taking the confession were persons in authority, given
that there were members of the panchayat
- Whether there was any inducement, threat, or promise: The court observed that he was
not subjected to continuous interrogation or questioning.
The court finally held that “nothing has been brought to our notice which would show that the
confessional statement contained any untrue or inaccurate statement ... such a statement was
again of an incriminatory nature, and if the evidence of Maheshwar Sai is correct, the statement
was absolutely voluntary and was not the result of any questioning at all.”

S. 25, IEA: Confession to police officer not to be proved

No confession made to a police officer shall be proved as against a person accused of any
offence.

S. 25 lays down a rule of policy (a bright line rule – one that permits of no exceptions)

Who is a police officer for the purpose of S. 25?

Police forces are constituted sepa rately for each state – so how do you set a uniform standard for
determining who is a police officer under S. 25?

Romesh Chandra v State of West Bengal

Issue: Whether a customs officer amounts to a police officer for the purposes of S. 25?
Held: “the test for determining whether an officer of customs is to be deemed a police officer is
whether he is invested with all the powers of a police officer qua investigation of an offence,
including the power to submit a report under Section 173 of the Code of Criminal Procedure.”
Police officers are concerned with general law and order. The customs officer is only concerned
with enforcing compliance with the customs law. Within that limited sphere, he has powers to
arrest, detain, search, and seize. However, the enquiry made by a customs officer is a judicial
proceeding. He does not exercise powers of investigation that police officers do, he does not
have the power to submit a chargesheet pursuant to the enquiry.

91
Criticism: The court decided this case on the basis of a technicality – the power of the officer to
file a chargesheet. They did not look into the primary rationale of S. 25 – whether there was a
risk of coercion.
Illias v Collector of Customs: Customs officer does not become a Police Officer within the
meaning of Section 25 of the Evidence Act unless he is empowered to file a charge sheet under
Section 173 of the Code of Criminal Procedure

S. 26, IEA: Confession by accused while in custody of police not to be proved against him
No confession made by any person whilst he is in the custody of a police officer, unless it be
made in the immediate presence of a Magistrate, shall be proved as against such person.
18[ Explanation- In this section "Magistrate" does not include the head of a village discharging
magisterial functions in the Presidency of Fort St. George 19[***] or else where, unless such
headman is a Magistrate exercising the power of a Magistrate under the Code of Criminal
Procedure, 1882 (10 of 1882).

Sita Ram v State of UP

Facts: The appellant was accused of having killed his wife. A letter, addressed to the “Sub-
inspector” was found on the table near the dead body by the Sub-inspector. The letter was
written by the appellant and it contained a confession in full to the crime.
Issue: Whether the letter amounted to a confession made to a police officer?
Held:
Majority: “No doubt, the letter contains a confession and is also addressed to a police officer.
That cannot make it a confession made to police officer which is within the bar created by s. 25
of the Evidence Act. The police officer was not nearby when the letter was written on knew that
it was being written. In such circumstances quite obviously the letter would not have been a
confession to the police officer if the words "Sub-Inspector" had not been written. Nor do we
think it can become one in similar circumstances only because the words "Sub-Inspector" had
been written there.”
Dissent (Justice Bachawat): “A confession can be made to a police officer by an oral message to
him over the telephone or the radio as also by a written message communicated to him through
post, messenger or otherwise. The presence or absence of the police officer near the accused is
not decisive on the question whether the confession is hit by s. 25. A confession to a stranger
though made in the presence of a police officer is not hit by s. 25. On the other hand, a
confession to a police officer is within the ban of s. 25, though it was not made in his presence. A
confessional letter written to a police officer and sent to him by post, messenger or otherwise is
not outside the ban of s. 25 because the police officer was ignorant of the letter at the moment
when it was being written.”

S. 27, IEA: How much of information received from accused may be proved

92
Provided that when any fact is deposed to as discovered in consequences of information received
from a person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confessions or not, as relates distinctly to the fact thereby
discovered, may be proved.

Simplified version of S. 27: When information from an accused in police custody has been said
to lead to the discovery of a fact, that part of the information which distinctly relates to the fact,
whether or not it is a confession, can be proved.
Eg: A statement made by the accused to the police officer – “the knife with which I committed
the murder is buried in the backyard of the house” – led to the discovery of the fact of the knife
being buried. That part of the information that is relevant to the discovery of the fact can be
proved – the truncated statement of the accused “the knife is buried in the backyard of the house”
- can be proved.
S. 27 speaks of the “discovery of a fact,” however, it is routinely interpreted to mean that there
must be recovery of an object.
Eg: The accused confesses that he threw the knife/murder weapon into the ocean. The object
cannot be recovered. Can S. 27 be used to prove the “fact” of the mental state of the accused of
knowledge of the murder weapon?
Aghnoo Nagesia
Facts: The first information of the offences was lodged by the appellant himself at police station
Palkot on August 11, 1963 at 3-15 p.m. The information was reduced to writing by the officer-
in-charge, Sub- Inspector H. P. Choudhury, and the appellant affixed his left thumb- impression
on the report. The Sub Inspector immediately took cognizance of the offence, and arrested the
appellant. The next day, the Sub Inspector in the company of the appellant went to the house of
Ratni, where the appellant pointed out the dead bodies of Ratni and Dilu and also a place in the
orchard of Ratni covered with bushes and grass, where he had concealed a tangi. The appellant
then took the Sub Inspector and witnesses to Kasiari garha khet and pointed out the dead body of
Chamin lying in a ditch covered with Ghunghu. The appellant then took the Sub Inspector and
the witnesses to Dungijharan Hills, where he pointed out the dead body of Somra lying in the
slope of the hills to the north.
Held: “The entire confessional statement is hit by s. 25 and save and except as provided by s. 27
and save and except the formal part identifying the accused as the maker of the report, no part of
it could be tendered in evidence. For the purposes of the case, we shall assume that the appellant
was constructively in police custody and therefore the information contained in the first
information report leading to the discovery of the dead bodies and the tangi is admissible in
evidence. The entire evidence against the appellant then consists of the fact that the appellant
gave information as to the place where the dead bodies were lying and as to the place where he
concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the
information, the discovery of a blood-stained chadar from the appellant's house and the fact that
he had gone to Dungi Jharan Hills on the morning of August 11, 1963 - This evidence is not
sufficient to convict the appellant of the offences under s. 302 of the Indian Penal Code. ”

93
State of UP v Deoman Upadhyaya
Constitutional challenge to S. 27 as violative of Art. 14. The petitioners argued that S. 27
unjustifiably discriminates between persons in custody and persons not in custody (because it
only makes admissible information given in police custody – whereas someone who gives
information to the police outside of police custody would be protected by S. 25)
Held: The rule under S. 27 is one of practicality – the fact is that most statements of the nature
referred to in S. 27 are made in police custody.
Dissent (Subbarao, J.): S. 27 leads to an unfair situation where persons who make the same
statements in police custody and outside police custody would get different treatment. Further,
the drafting history of S. 27 shows that there was no intent to differentiate between persons in
and out of custody.

UNIT IX: ADMISSIBILITY OF EVIDENCE

S. 136, IEA: JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE
When either party proposes to give evidence of any fact, the Judge may ask the party proposing
to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge
shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not
otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some
other fact, such last-mentioned fact must be proved before evidence is given of the fact first
mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with
such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the
Judge may, in his discretion, either permit evidence of the first fact to be given before the second
fact is proved, or require evidence to be given of the second fact before evidence is given of the
first fact.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which
statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing to prove the
statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy,
before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen.
It is to prove that he denied the possession of the property.

94
The relevancy of the denial depends on the identity of the property. The Court may, in its
discretion, either require the property to be identified before the denial of the possession is
proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in
issue. There are several intermediate facts (B, C and D) which must be shown to exist before the
fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A
to be proved before B, C or D is proved, or may require proof of B, C and D before permitting
proof of A.

Art. 20(3), Constitution of India – No person accused of any offence shall be compelled to
be a witness against himself. Is this a bar on admissibility?
TEST OF BALANCING
In the USA- a balance must be drawn between the probative and prejudicial value of evidence.
All evidence will prejudice, so what is the test? The test is- are you prejudicing the other side in a
permissible manner or impermissible manner.
For instance: If you give evidence that- the accused person was convicted of the commission of a
violent crime 5 years ago. This does not tell you anything about the present crime, but about the
person’s disposition in general. This is an example of evidence with very high prejudicial value
and very low probative value, so it is inadmissible. This is to be decided by the judge. If the
evidence provided has very high probative value and very low prejudicial value, the judge will
admit it, if they are same, he will admit it, if vice versa, inadmissible.
In India- there is no such balancing test but the judge can resort to it under the discretion
awarded under Sec. 136 r/w Malkani case.
THERE ARE TWO THINGS TO CONSIDER WRT ADMISSIBILITY:
1. Evidence that is illegally procured
2. Evidence which is coerced/ self-incriminatory

95
RELEVANT EVIDENCE LAW DOCTRINES IN THE US:
 “Fruit of the poisonous tree”: illegally obtained evidence is inadmissible. This rule is
not applied in India. In India, if evidence is recovered, the mode of recovery doesn’t
matter till the point its relevant and reliable.
 Balancing test: Evidence that is probabtive can be made inadmissible on the basis that it
is unfairly prejudicial. (all evidence is prejudicial, but the same should not be unfair) –
eg: hearsay evidence, evidence as to character. (It is a balancing exercise between
probative value and prejudicial effect of the evidence)
Eg. Character evidence: has low probative value (does not prove the charges at hand, the
person is not trial for his life), but highly prejudicial

PROBLEMS OF PROPENSITY EVIDENCE

1. judge may think that the person is of bad character and likely would have committed
crime; even though there is lack of evidence of convict him,
2. the judge may think that he ought to be punished because he generally escapes the
clutches of the law.

State of UP v Deoman Upadhyaya: obiter on admissibility of confessions

Pulukuri Kottaya v. King Emperor (Admissibility under Sec. 27)

Facts: The accused confessed, in police custody, to killing the victim with a spear. He then took
the police to see the spear.
The fact discovered in this case is the fact that the accused knew of the whereabouts of the
object.
Held:
Overruled Athappa Gaundan v. Emperor, which held that once a fact or object is discovered as a
result of the information, all parts of the information relating to the object are admissible under
S. 27. (Which would mean that even the statement that the accused used the spear to kill the
victim would be admissible).
Only that part of the information that led to the discovery of the fact is admissible under S. 27 –
the fact of the accused’s knowledge of the whereabouts of the spear is made admissible under S.
27.

R. M. MALKANI V STATE OF MAHARASHTRA (ATTACHING A RECORDING DEVICE;

ILLEGALLY PROCURED EVIDENCE)
Facts: Crime of offering gratification to a public servant. The police attached a recording
device to the phone, recorded the conversation of the appellant. To record a conversation,
special permission is required under the Telegraph Act from a secretary level officer. The

96
appellant argued that the evidence was illegally obtained since the requisite permission was not
obtained.
Held:
Even if the evidence had been procured illegally , it continues to be admissible as long as the
fact is relevant and the evidence reliable.
1. In the present- case the recording of the conversation between Dr. Motwani and the appellant
cannot be said to be illegal because Dr. Motwani allowed the tape-recording instrument to be
attached to his instrument. The tape-recorded conversation is contemporaneous relevant
evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no
reason to exclude this evidence.
2. It was said that the admissibility of the tape-recorded evidence offended Articles 20(3) and 21
of the Constitution. The appellant's conversation was voluntary. There was no compulsion. As
long as it is not tainted by an inadmissible confession of guilt, evidence, even if it is illegally
obtained, is admissible.
3. Article 21 was invoked by submitting that the privacy of the appellant's conversation was
invaded. Article 21 contemplates procedure established by law with regard to deprivation of
life or personal liberty. The telephonic conversation of an innocent citizen will be protected by
Courts against wrongful or high handed interference by tapping the conversation. The protection
is not for the guilty citizen against the efforts of the police to vindicate the law and prevent
corruption of public servants.
In obiter: “The judge has discretion to disallow evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused.”

Relevant evidence law doctrines in the US:

 “Fruit of the poisonous tree”: illegally obtained evidence is inadmissible. This rule is
not applied in India.
 Balancing test: Evidence that is probative can be made inadmissible on the basis that it is
unfairly prejudicial – eg: hearsay evidence, evidence as to character. (It is a balancing
exercise between probative value and prejudicial effect of the evidence)
SCOPE OF WARRANT AND ILLEGALLY APPROPRIATED EVIDENCE
A warrant should have a specific, limited scope – it cannot lead to an exploratory search. In
India, the warrant requirement is not strict. The police seldom obtain a warrant. They carry out
the search and justify it by saying that they had a reasonable apprehension that the person would
destroy the evidence if they obtained a warrant. In any case, they know that even if evidence is
found to be illegally obtained, it will not create a bar on the admissibility of the evidence.

What is the value of making evidence inadmissible in India? – at the trial stage, because there is
no jury, the judge will be privy to the evidence at the stage of deciding its admissibility and thus
may be prejudiced by such evidence even if he finds it to be inadmissible. However, at the
appeal stage, such evidence will not be considered.
97
R.K ANAND V. REGISTRAR
- A sting operation was conducted by NDTV and the recording was handed over to the
police
- Question: Is the recording admissible as evidence? Is there a testimonial compulsion?
- Admissible evidence because there was not testimonial compulsion (Re: Kathi Kalu
Oghad- duress and threats)
- The mere possibility of tampering doesn’t rule out the admissibility of the evidence. It the
court feels that the evidence had not been tampered with, it will be admitted and treated
to be a reliable evidence.

KATHI KALU OGHAD V. STATE OF BOMBAY

Issue: Scope of S. 20(3) – no person can be compelled to “be a witness” against himself – if
incriminating fingerprints or handwriting samples are obtained from the accused, is this hit by
Art. 20(3)?
Held:
- "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or
written statements, but not in the larger sense of the expression so as to include giving of thumb
impression or impression of palm or foot or fingers or specimen writing or exposing a part of the
body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense
could not have been within the contemplation of the Constitution-makers for the simple reason
that - though they may have intended to protect an accused person from the hazards of self-
incrimination, in the light of the English Law on the subject - they could not have intended to put
obstacles in the way of efficient and effective investigation into crime and of bringing criminals
to justice.
- The giving of finger impression or of specimen signature or of handwriting, strictly
speaking, is not "to be a witness"." To be a witness" means imparting knowledge in respect of
relevant fact, by means of oral Dagduas or Dagduas in writing, by a person who has
personal knowledge of the facts to be communicated to a court or to a person holding an
enquiry or investigation.
- When an accused person is called upon by the Court or any other authority holding an
investigation to give his finger impression or signature or a specimen of his handwriting, he is
not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal
testimony' must depend upon his volition. He can make any kind of statement or may refuse to
make any statement. But his finger impressions or his handwriting, in spite of efforts at
concealing the true nature of it by dissimulation cannot changed their intrinsic character. Thus,
the giving of finger impressions or of specimen writing or of signatures by an accused person,
though it may amount to furnishing evidence in the larger sense, is not included within the
expression 'to be a witness'.
- A specimen handwriting or signature or finger impressions by themselves are no
testimony at all, being wholly innocuous because they are unchangeable except in rare cases
where the ridges of the fingers or the style of writing have been tampered with.
LAPTOP PASSWORD
Testimonial in nature because is it 1. within your personal knowledge and 2. you can alter it.
(Test in Kathi Kalu Oghad).

98
Nadini Satpathy and Selvi are other cases deal with A. 20(3).
SELVI V. STATE OF KARNATAKA
Issues:
1. Constitutionality of narco analysis
2. Constitutionality of lie detection tests /polygraph test
Held:
1. In case of narco analysis, a person is incapacitated from withholding or altering what he
wants to say – this affects his ability to voluntarily give information.
2. In a polygraph test, nobody is being forced to answer any questions. However, the inference
that is being drawn is not with respect to his physiological state, but with respect to his mental
state (truthfulness or untruthfulness) – so, it is a ‘compulsion’ leading to the disclosure of such
mental state.
3. “However, we do leave room for the voluntary administration of the impugned techniques in
the context of criminal justice, provided that certain safeguards are in place. Even when the
subject has given consent to undergo any of these tests, the test results by themselves cannot be
admitted as evidence because the subject does not exercise conscious control over the responses
during the administration of the test. However, any information or material that is subsequently
discovered with the help of voluntary administered test results can be admitted, in accordance
with Section 27 of the Evidence Act, 1872.”

There are several factors which indicate whether a lie detection test is reliable:
1. Accuracy
a. Sensitivity: Does it detect lies? (80% sensitivity means that 80% of the time, lies
are correctly identified as lies & there are 20% false negatives)
b. Specificity: Does it detect truthfulness? (80% specificity means that 80% of the
time, truths are correctly identified as truths and 20% false positives)
2. Predictive Value

Generally, there is a greater possibility of false positives than false negatives – thus, there is a
danger because innocent people who are telling the truth would be recorded as having lied.
Selvi and Oghad: Selvi cannot overrule K. Oghad. Selvi transforms the test. They held:
(i) what matters is whether a particular form of investigation is asking you a question which
pertains to a decisional aspect of your knowledge. This decisional aspect, pertains to the mind.
Mind= testimonial evidence. Thus Article 20(3) is attracted. This is how the Court transforms the
test in K. Oghad.
For the first time, the SC holds that a particular kind of test cannot be conducted- exclusionary
rule. Also for the first time they hold that, certain evidence collected which goes against Article
20(3) is not admissible.

99
Selvi creates a category of evidence which is not just illegal, but unconstitutional. This gives rise
to the question of: What is the status of evidence which is just illegal but not unconstitutional?
After Selvi you can say- if any investigation technique violates a fundamental right, the fruits of
the investigation technique are inadmissible as evidence.
MP Sharma- no volitional acts
K. Oghad- only no testimonial evidence, i.e- only things which you cannot change can be
admitted- fingerprints, blood, DNA etc.
Selvi- only where (????)
SECTION 132 IN THE INDIAN EVIDENCE ACT, 1872
132. Witness not excused from answering on ground that answer will criminate.—A
witness shall not be excused from answering any question as to any matter relevant to the
matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the
answer to such question will criminate, or may tend directly or indirectly to criminate, such
witness, or that it will expose, or tend directly or indirectly to expose, such witness to a
penalty or forfeiture of any kind:
(Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false evidence by such answer.

UNIT XII: PRESUMPTIONS AND BURDEN OF PROOF

Burden of proof – burden of production – burden of persuasion

One way of understanding burden of proof is to see which party has the burden of going forward
(initiate the production of evidence)

Another way is to see which party bears the burden of persuading the decision maker

Standard of proof: To what extent a thing must be proved. In a criminal trial, facts have to be
proved to a preponderance of probabilities; while guilt, taking into account the facts and other
matters, must be proved by the prosecution beyond reasonable doubt.

Presumptions: are they part of substantive or abjective law? Thayer says substantive

Thayer: Theory of bursting the bubble – Burden of persuasion does not shift due to a
presumption, only the burden of production. As soon as evidence is presented that successfully

100
contradicts the presumption – the bubble bursts – the presumption ceases to operate. Thus: a case
should be decided on the basis of a presumption only if there is no other evidence that can be
used to prove/disprove.

Morgan: Presumption reallocates burden of production as well as burden of persuasion. This

means that if the presumption operates against the accused, the accused will have to disprove the
presumed fact. It is not sufficient to merely come forward with contrary evidence, but the judge
needs to be persuaded that the presumed fact is untrue.

Dahyabhai Chhaganbhai Thakker v State of Gujarat

Held: There is a presumption of sanity – a plea of insanity must be proved to a prima facie
standard

Sharad Birdi Chand Sharda

The prosecution must stand on its own two feet and not borrow the defence evidence or rely on
the absence of defence evidence.

S. 101, IEA: 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.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B,
by reason of facts which he asserts, and which B denies, to be true.

101
A must prove the existence of those facts.

S. 102, IEA: 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.

While 101 speaks of the general burden at the beginning of the suit/proceeding, S. 102 also
accounts for shifts in burden, for eg: under the NDPS Act, if possession was proved, the
presumption would operate against the accused, and if no more evidence were adduced, he
would fail.

S. 103, IEA: 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) 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. 3 defines proved/not proved/disproved

S. 4 defines may presume/shall presume/conclusive proof

S. 104, IEA - 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.

102
S. 105, IEA - 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.

Dahyabhai Chhaganbhai Thakker v State of Gujarat

General burden of proof never shifts, the presumption of innocence continues. Once the accused
rebuts the presumption of sanity, the prosecution must discharge its burden to disprove insanity.

S. 106, IEA: Burden of proving fact especially within knowledge

When any fact is especially 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.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a
ticket is on him.

S. 106 was used in the Aarushi Talwar case – since the murder took place in the house and there
were no signs of forced entry or exit – the persons inside the house would have had ‘special
knowledge’ of whatever happened.

103
 “LAST SEEN TOGETHER” THEORY – SINCE SOMEONE WAS SEEN AT THE TIME,
PLACE, AND WITH THE VICTIM, IT IS LIKELY THAT HE DID SOMETHING. THIS
AMOUNTS TO WEAK, CIRCUMSTANTIAL EVIDENCE. UNIT XIV: DOCUMENTARY
EVIDENCE
S. 3, IEA: INTERPRETATION CLAUSE
"Documents" – "Documents" means any matter expressed of described upon any substance by
means of letters, figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
Words printed, Lithographed or photographed are documents;
A map or plan is a document;
an inscription on a metal plate or stone is a document;
A caricature is a document.

Electronic records are also documents.

S. 59, IEA: PROOF OF FACTS BY ORAL EVIDENCE

All facts, except the [contents of documents or electronic records], may be proved by oral
evidence.

S. 61, IEA: PROOF OF CONTENTS OF DOCUMENTS

The contents of documents may be proved either by primary or by secondary evidence.

104
S. 62, IEA: PRIMARY EVIDENCE
Primary evidence means the documents itself produced for the inspection of the Court.

Explanation 1—Where a document is executed in several parts, each part is primary evidence of
the document :
Where a document is executed in counterpart, each counterpart being executed by one or some of
the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2- Where a number of documents are all made by one uniform process, as in the
case of printing, lithography, or photography, each is primary evidence of the contents of the rest
; but, where they are all copies of a common original, they are not primary evidence of the
contents of the original.
Note: At the time the IEA was drafted, newspapers were produced by typeset, so there was no
document until the copies were printed. So then, they would fall under Part I of Explanation 2.
Now, newspapers are designed on computers. That is a document in itself, of which copies are
made. The document on the computer can be altered as well. So newspapers may now fall under
Part II of Explanation 2 of Section 62.
Illustrations
A person is shown to have been in possession of a number of placards, all printed at one time
from one original. Any one of the placards is primary evidence of the contents of any other,
but no one of them is primary evidence of the contents of the original.
Thus, to prove an original, another original created by the same process is primary evidence.
To prove a copy, the original or another copy made from the original is primary evidence.

Photography:

 Photos developed from photo negatives are considered primary evidence.

 Digital photos – the electronic copy is the original whereas a printed physical copy is a
copy
 Instant photo – the photo is original

S. 63, IEA: SECONDARY EVIDENCE

Secondary evidence means and includes—
(1) certified copies given under the provisions hereinafter contained;

105
(2) Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies.
(3) copies made from or compared with the original ;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a documents given by some person who has himself seen it.
Illustration
(a) A photograph of an original is secondary evidence of its contents, though the two have not
been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence
of the contents of the letter, if it is shown that the copy made by the copying machine was made
from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but a copy not so compared is not secondary evidence of the original, although the
copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine copy of the original, is secondary evidence of the original.

Encryption and Decryption – Leads to creation of new documents

S. 64: PROOF OF DOCUMENTS BY PRIMARY EVIDENCE

Documents must be proved by primary evidence except in the cases hereinafter mentioned

Where documents annexed to plaint/written submissions are certified copies, they need not
be proved.

STAGES OF PROVING A DOCUMENT (IN TRIAL COURTS):

1. The document must be marked: Produce the document before the court, inform the court of
what the document purports to be, how it is relevant. Marking has a very low threshold, courts
generally mark all documents. It will be marked as an ‘exhibit.’

106
2. The document must be proved: For eg: In a sale deed/will, it is important to show execution.
This can be done by calling persons who have signed on the document as witnesses to testify to
the existence of the document. This signature can then be marked as an exhibit.
S. 65, IEA: CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY BE

GIVEN

Secondary evidence may be given of the existence, condition, or contents of a documents in the
following cases: -
(a) When the original is shown or appears to be in the possession or power—
- of the person against whom the document is sought to be proved, or
- of any person out of reach of, or not subject to, the process of the Court or
- of any person legally bound to produce it,
- and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any
other law in force in [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in court and the fact to be proved is the general result of the whole
collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is
admissible.
In case (g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.

107
S. 74, IEA: Public documents
The following documents are public documents :-
(1) documents forming the acts, or records of the acts –
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, 48[of any part of India or of the
Commonwealth] or of a foreign country;
(2) Public records kept 49[ in any State] of private documents.
65A. SPECIAL PROVISIONS AS TO EVIDENCE RELATING TO ELECTRONIC RECORD-
The contents of electronic records may be proved in accordance with the provisions of section
65B.
65B. ADMISSIBILITY OF ELECTRONIC RECORDS
(1) Notwithstanding anything contained in this Act, any information contained in an electronic
record which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any proceedings, without further
proof or production of the original, as evidence of any contents of the original or of any fact
stated therein or which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the
following, namely :-
(a) the computer output containing the information was produced by the computer during the
period over which the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the
kind from which the information so contained is derived was regularly fed into the computer in
the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not,
then in respect of any period in which it was not operating properly or was out of operation
during that part of the period, was not such as to affect the electronic record or the accuracy of its
contents; and

108
(d) the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the functions of storing or processing information for the purposes of
any activities of any regularly carried on over that period as mentioned in clause (a) of sub-
section (2) was regularly performed by computer, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of
one or more computers and one or more combinations of computers.
all the computers used for that purpose during that period shall be treated for the purposes of this
section as constituting a single computer; and references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this
section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which
it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that the electronic record was produced by a
computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to
the operation of the relevant device or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this
sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied directly or (with or without human intervention)
by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a
view to its being stored or processed for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information, if duly supplied to that
computer, shall be taken to be supplied to it in the course of those activities;

109
(c) a computer output shall be taken to have been produced by a computer whether it was
produced by it directly or (with or without human intervention) by means of any appropriate
equipment.
Explanation.- For the purposes of this section any reference to information being derived from
other information shall be a reference to its being derived there from by calculation, comparison
or any other process.]

The police can look at the call detail record (CDR) of a person’s cellular device to determine
whether or not they were at a particular place at a particular time. The record is generated by the
company officials (of the cellular service provider) and sent to the police. This record would
have to be certified by the person responsible for generating the record. Such certificate will
contain particulars as mentioned in S. 65B (4).

Navjot Sandhu held that if a document meets the requirement of S. 63 and S. 65, that is sufficient
for it to be proved – the requirements of 65B need not be met.

Anvar overruled Navjot Sandhu, holding that where secondary evidence of computer output is
sought to be produced, the certification requirements under S. 65B would have to be met.  this
is strange reasoning – what is secondary evidence of computer output? All computer output
under 65B is deemed to be a document even in the absence of proof of the original.

Section 68- You have to have been there to attest to the will. You cannot attest to a past fact. If it
is not a will but some other kind of document which has been registered under the Registration
Act, then you do not need attesting witnesses to come, as you can infer that it has been validly
executed else it would not have been registered. Except, if one of the parties said that he has not
executed it, then attesting witnesses again become important.
Section 69- You get other people to come and testify and identify the handwriting of the
attesting witness. Sections 71, 72 are similar exceptions.

Navjot Sandhu
Held: “According to Section 63, secondary evidence means and includes, among other things,
"copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies". Section 65 enables secondary
evidence of the contents of a document to be adduced if the original is of such a nature as not to

110
be easily movable. It is not in dispute that the information contained in the call records is stored
in huge servers which cannot be easily moved and produced in the Court. That is what the High
Court has also observed at para 276. Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of the service providing Company can
be led into evidence through a witness who can identify the signatures of the certifying officer or
otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of
the requirements of Section 65B which is a provision dealing with admissibility of electronic
records, there is no bar to adducing secondary evidence under the other provisions of the
Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in
sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that
secondary evidence cannot be given even if the law permits such evidence to be given in the
circumstances mentioned in the relevant provisions, namely Sections 63 & 65.”

Narbad Devi Gupta v. Birendra Kumar Jaiswal (2003)

Facts: Dispute over certain property, the question is whether the right of tenancy was ever
created. The that is sought to be introduced is rent receipts bearing the signatures and thumb
impressions of Narbad Devi and her son. Narbad Devi contested that she gave blank paper
signed.
Whether certain rent receipts can be introduced in court. The rent receipts contained the
signatures of the plaintiff, and were being used to show that the plaintiff knew that the tenant was
a tenant. The plaintiff did not contest the signature in his pleadings – so the existence of the rent
receipts could not be disputed.

Pawan Kumar v. State of Haryana

Facts: 3 persons came to a hotel late at night, spoke to the waiter, took a room. Next morning,
two of the persons left, telling the hotel employee that “my uncle is in the room, take care of his
needs as and when he requires it.” Later, the person in the room was found dead. Document
sought to be adduced at trial – the hotel register, showing that the accused had visited the hotel.
The witness who was called to court was the owner of the hotel, not the waiter who had made the
entry in the register. The owner was not present at the time that the persons checked into the
room (hit by S. 60).
[How would the contents of the document ordinarily be proved? – you would call the person who
made the entry and get him to testify that he made the entry because the accused had actually
checked in at the time that he made the entry] The register may be marked as evidence.
Held: The accused’s presence could not be proved. If a person has not been witness to a certain
fact, he cannot claim to give direct evidence as to the existence of the fact.

111
S. 68, IEA: Proof of execution of document required by law to be attested
If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution , if there be an
attesting witness alive, and subject to the process of the court and capable of giving evidence :
47[Provided that it shall not be necessary to call an attesting witness in proof of the execution of
any document, not being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]

Janki Narayan Bhoir v. Naryan Nandeo Kadam

Facts: will – written by a scribe and attested by two witnesses. A woman, claiming under the
will, had to prove the execution of the will.
The High Court took the view that though the scribe had written down the Will he had also
signed it and he could have been treated as an attesting witness as he had also signed the Will.
[What does it mean to attest? An attesting witness is one who witnesses execution of a particular
document. The attestor is made to agree that he has read and understood the document, that he
knew the mental condition of the person signing the document.]
In the case on hand, it was not established that the two witnesses attested the Will. The High
Court was also wrong in treating the scribe of the Will, as an attesting witness without any basis.
A scribe does not amount to an attesting witness, because he does not possess animo
attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received
from him a personal acknowledgment of his signature. If a person puts his signature on the
document for some other purpose, e.g., to certify that he is a scribe or an identifier or a
registering officer, he is not an attesting witness.

S. 71, IEA: Proof when attesting witness denies the execution

If the attesting witness denies or does not recollect the execution of the document, its execution
may be proved by other evidence.

Janki Narayan Bhoir also explained the interplay between S. 68 and S. 71 of the IEA: One of the
two attesting witnesses can be examined even though the other one was available, but he must
prove execution of the will as per S. 63(e) of the Succession Act, that is, attestation by him as
well as by the other witness. If he fails to do so, the other witness will have to be called. S. 71 of
the IEA is intended to meet a situation where an attesting witneess could not be called and

112
supplements S. 68. Normally, S. 68 has to be followed, but when it is not possible to do so, S. 71
is intended to help the party to produce other evidence.

It is only in a case falling under S. 71 (where the attesting witnesses have not confirmed the
execution of the document) that the court goes into the surrounding circumstances of the
document

Probate: If probate on a document is conducted, that means that a proper enquiry into the validity
of the will has already occurred in court. Probate actions determine the validity of the will as a
whole (with respect to the capacity of the testator and its execution) but not the construction of
the terms of the will. Then, if someone later claims under the will, it can go straight to the
execution stage. The testator has to be examined by the court when conducting probate.

Venkatachala Iyengar v. Thimmayamma

Facts: 5 parcels of land – jointly owned by husband and wife. The husband made a lot of
expenditures. Accordingly, the wife claimed that the husband had exhausted his share in the
property, and that the property was now wholly owned by her. In her will, she bequeathed a life
interest in the property to certain persons. The will was registered.
Held: The will was not proved to be validly executed - none of the witnesses could prove that
she had willingly and knowingly accepted the contents of the will. “even the interested testimony
of the appellant does not show that be obtained approval of the draft from the testatrix after
reading it out fully to her clause by clause.”
“Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed
by some other person in his presence and by his direction and that the signature or mark shall be
so made that it shall appear that it was intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the propounder is proved to be the last will of
the testator has to be decided in the light of these provisions. Has the testator signed the will ?
Did he understand the nature and effect of the dispositions in the will ? Did he put his signature
to the will knowing what it contained? Stated broadly it is the decision of these questions which
determines the nature of the finding on the question of the proof of wills.”
“Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case
of the proof of documents. The propounder would be called upon to show by satisfactory
evidence that the will was signed by the testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood the nature and effect of the dispositions
and put his signature to the document of his own free will. Ordinarily when the evidence

113
adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his signature as required by law, courts would be
justified in making a finding in favour of the propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of the essential facts just indicated. There
may, however, be cases in which the execution of the will may be surrounded by suspicious
circumstances. In such cases the court would naturally expect that all legitimate suspicions
should be completely removed before the document is accepted as the last will of the testator.”

Documents are required to be ‘registered’ to serve as public notice as to the contents of the
document.

S. 91, IEA: Evidence of terms of contracts, grants and other dispositions of property
reduced to form of document
When the terms of a contract, or of a grant, or of any other disposition of property, have been
reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter, except the document itself, or
secondary evidence of its contents in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
Exception 1. – When a public officer is required by law to be appointed in writing, and when it
is shown that any particular person has acted as such officer, the writing by which he is
appointed need not be proved.
Exception 2. – Wills 75[ admitted to probate in 40[India] may be proved by the probate.
Explanation 1- This section applies equally to cases in which the contracts grants or dispositions
of property referred to are contained in one document and to cases in which they are contained in
more documents than one.
Explanation 2—Where there are more originals than one, one original only need be proved.
Explanation 3. – The statement, in any document whatever, of a fact other than the facts
referred to in this section, shall, not preclude the admission of oral evidence as to the same fact.
Illustration
(a) If a contract be contained in several letters, all the letters in which it is contained must be
proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in set of three, one only need be proved.

114
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract
mentions the fact that B had paid A the price of other indigo contracted for verbally on another
occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence is
admissible.
(e) A gives B receipt for money paid by B.
Oral evidence is offered of the payment.
The evidence is admissible.

S. 91 can be said to be the foundational fact that must be proved for S. 92 to be triggered.

S. 92, IEA: Exclusion of evidence of oral agreement

When the terms of any such contract, grant or other disposition of property, or any matter
required by law to be reduced to the form of a document have been proved according to the last
section, no evidence of any oral agreement of statement shall be admitted, as between the parties
to any such instrument or their representatives in interest, for purpose of contradicting, varying,
adding to, or subtracting from, its terms;
Provision (1) – Any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting party, 76[want or failure] of
consideration, or mistake in fact or law.
Proviso (2) – The existence of any separate oral agreement as to any matter on which a document
is silent, and which is not inconsistent with its terms, may be proved. In considering whether
or not this proviso applies, the Court shall have regard to the degree of formality of the
document.
Proviso (3). – The existence of any separate oral agreement, constituting a condition precedent to
the attaching of any obligation under any such contract, grant or disposition of property, may be
proved.
Proviso (4). – The existence of any distinct subsequent oral agreement to rescind or modify any
such contract, grant or disposition of property, may be proved, except in cases in which such
contract grant or disposition of property is by law required to be in writing, or has been
registered according to the law in force for the time being as to the registration of documents.

115
Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract
are usually annexed to contracts of that description, may be proved.
Provided that the annexing of such incident would not be repugnant to, or inconsistent with the
express terms of the contract.
Proviso (6).—Any fact may be proved which shows in what manner the language of a document
is related to existing facts.
Illustration
(a) A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are
shipped in a particular ship which is lost. The fact that that particular ship was orally excepted
from the policy cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the first March, 1873. The fact that, at
the same time an oral agreement was made that the money should not be paid till the thirty-first
March cannot be proved.
(c) An estate called "the Rampore tea estate" is sold by a deed which contains a map of the
property sold. The fact that the land not included in the map had always been regarded as part of
the estate and was meant to pass by the deed cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain
terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be
proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the
contract may be reformed as to one of its provisions, as that provision was interested in it by
mistake. A may prove that such a mistake was made as would be law entitle him to have the
contract reformed.
(f) A orders goods of B for the specific performance of a contract, and also prays that the
contract may be reformed as to one of its provisions, as that provision was inserted in it by
mistake. A may prove that such a mistake was made as would be law entitle him to have the
contract reformed.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought
of A horse Rs. 500". B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written – "Rooms, Rs. 200 a month". A
may prove a verbal agreement that these terms were to include partial board.
A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney , is
made between them, it is silent on the subject of board, A may not prove that board was included
in the term verbally.

116
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and
does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain
contingency. The writing is left with B, who sues A upon it. A may show the circumstances
under which it was delivered.
S. 99, IEA: Who may give evidence of agreement varying term of document.—Persons who
are not parties to a document, or their representatives in interest, may give evidence of any facts
tending to show a contemporaneous agreement varying the terms of the document.
Illustration
A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery.
At the same time they make an oral agreement that three months’s credit shall be given to A.
This could not be shown as between A and B, but it might be shown by C, if it affected his
interests.

S. 99 is generally considered to be a statutory exception to privity of contract.

An attesting witness (who is not a party to the contract) can give evidence under S. 99.

117