On Proof

88 Law Guide for Judicial Service Examination
PART II
ON PROOF
CHAPTER III
FACTS WHICH NEED NOT BE PROVED
[SECS. 56-58]
T h e general rule is that all facts in issue and relevant facts must be proved by
evidence, either oral or documentary. T o this rule, there are two exceptions: (a) facts
judicially noticeable (Secs. 56-57), (b) facts admitted (Sec. 5S).44
SEC. 56: Facts Judicially Noticeable Need Not be Proved
S e c. 56 reads: “N o fact o f which the court will take judicial notice need be proved”.
SEC. 57: Facts o f which Court Must take Judicial Notice
S e c. 57 enumerates thirteen facts o f which the court is bound to take the judicial
notice:
(1) All laws in force in the territory o f India.443
(2) All Acts o f the British Parliament.
(3) Articles o f War for the Indian Army, Navy or Air Force.
(4) T he course o f proceedings o f the British Parliament, o f the Constituent
A ssem bly o f India, and o f Parliament and Legislatures.
(5) T he accession and the sign manual o f the sovereign o f U.K. and Ireland.
(6) All seals o f which English courts take judicial notice; the seals o f all the
courts in India, etc. and all the seals which a person is authorized to use
by the Constitution or an A ct o f U.K. and India.
(7) The accession to office, names, tides, functions, and signatures o f Gazetted officers
(8) T he national flag o f every country recognized by the G overnm ent o f India.
44. What facts need not be proved? [U.P. P C S Q) 1988/2000\ [BiharJ.S. 1987\
44a. H ow will you prove a Municipal bye-law? [D elhi J.S. 1984\1
4
2
142. In relation to proof of age:

(a) Opinion of radiologist is relevant.
(b) Entry in the register of births and deaths is relevant.
(c) Opinion of radiologist cannot be preferred over the entry in the
register of births and deaths.
(d) All are correct.
Law o f Evidence 89
(9) T h e division o f time, the geographical divisions o f the world and public
festivals, facts and holidays notified in the official gazette.
(10) T h e territories under the dominion o f the Government o f India.
(11) T h e comm encem ent, continuance and termination o f hostilities between
the G overnm ent o f India and any other country.
(12) T h e nam es o f court officials and o f all advocates, pleaders, etc. authorized
by law to appear or act before the court.
(13) T h e rule o f the road on land or at sea.
T h e provision is supplemented by two declarations at the end o f the section.
O n e o f them says that in all these matters, and also on matters o f public history,
literature, science or art, the court may consult the appropriate book s or docum ents
o f reference. T h e second declaration is that if a party calls upon the court to take
the judicial notice o f any fact, it may refuse to do so unless J*nd until such person
produces any such book or document, as the court may consider necessary to
enable it to take judicial notice.
judicial J'actdXAh — T he expression ‘ take judicial notice’means recognition without
p r o o f o f som ething as existing or as being true. Judicial notice is based upon very
obvious reasons o f convenience and expediency. It is the cognizance taken by the
court itself o f certain matters which are so notorious or clearly established, that the
evidence o f their existence is deemed unnecessary. As a means o f establishing facts,
it is superior to evidence.
T h e matters enumerated in Sec. 56 d o not form an exhaustive list. The court
could take judicial notice o f other facts, not to be found in the list. The court
cannot take judicial notice o f facts stated in a newspaper, as a statement o f facts
in it is merely a hearsay. The Supreme Court in Shashi Nayar v Union o f India (AIR
1992 S C 395) took judicial notice that the law and order situation had deteriorated
over the years and continues to be worsening fast and, therefore, it is an opportune
time to think o f reconsidering death penalty.
44b. What is “judicial notice”and o f what facts a court shall take judicial notice?
Is “Railway strike”such a fact as that a court is enjoined to take judicial notice
o f it? [Delhi J.S. 19821
[Ans. Yes.]1
3
4
O b je c t i v e Q u e s t io n *
(Multiple Choice)
143. The question is whether certain document was written by A. Another
document is produced which Is proved or admitted to have been written
by A. The opinions of experts on the question whether the two documents
were written by the same person or by different persons, are:
(a) Relevant.
(b) Irrelevant.
(c) Relevant and conclusive proof.
(d) None of the above,
144. Opinion o f an expert Is:
(a) Relevant but unsafe.
(b) A conclusive proof.
(c) Supportive and corroborative in nature.
(d) Both (a) and (c).
SEC. 58: Facts Admitted Need Not be Proved

S e c. 58 lays down that “if the parties to a proceeding agree to admit a fact at the
hearing, or which they agree to admit by writing before the hearing, o r which by
any rule o f pleading in force deemed to be admitted, it need not be proved by the
opp osite party”.
Averments made in a petition that have not been controverted by the respondent
carry the effect o f a fact admitted. Facts, which have been admitted on both sides, are
not in issue and, therefore, no p ro o f need be offered o f them. A files a suit against
B for Rs. 1,000 on the basis o f pronote. B admits to have borrowed the debt but
pleads the payment o f debt. In this case, A need not prove the execution o f the
pronote as that has been admitted by B on the hearing.
Sec. 58 also provides that the court may in its discretion require som e other
p r o o f o f an admitted fact. It may be noted that this section applies to civil suits
only. It is an elementary rule that except by a plea o f guilty, admissions dispensing
with p r o o f are not permitted in a criminal trial.
CHAPTER IV
OF ORAL EVIDENCE
[SECS. 59-60]
Modes of Proof
T h e r e are two m ethods o f proving a fact; one is by producing witnesses o f fact
(oral evidence), and the other, by producing a document, which records the fact, in
question (documentary evidence).
SEC. 59: Proof of Facts by Oral Evidence

“
A i i facts except the contents o f docum ents may be proved by oral evidence”.
All statements, which the court permits or requires to be made before it by
witnesses in relation to the matters o f fact under inquiry, are called ‘
oral evidence’
.
In general, the evidence o f witnesses is given orally, and this means oral evidence.
A witness w ho cannot speak may communicate his knowledge o f the facts by signs
or by writing and in either case it will be regarded as oral evidence.
145. Under Sec. 47, a disputed handwriting can be proved by:

(a) Examining a person who is acquainted w ith th a t p e rs o n ’s
handwriting.
(b) Calling an expert.
(c) Comparison of the handwriting by the court itself.
(d) All of the above.
146. Despite having no special skill In a field, a person's opinion could be
relevant In which of the following cases:
(a) Question of handwriting.
(b) Question of rights.
(c) Question of relationship.
Law o f Evidence 91
Oral evidence, if worthy o f credit, is sufficient without documentary evidence

to prove a fact o r tide. However, as per Sec. 60, where written documents exist, they
shall be prod u ced as being the best evidence o f their own content and no oral
evidence can be p rod u ced to prove as to what is wrong in the document. A and B
enter into a written contract that B shall be supplying 20 m ounds o f w ool to A
every month. I f controversy arises between the parties about the terms o f the
contract it can be p rov ed only by the document. Oral evidence will not be allowed.
SEC. 60: Oral Evidence Must be Direct45
“O r a l evidence must, in all cases, whatever, be direct, Le. - I f it refers to a fact

which could be seen (or heard or perceived by any other senses), it must be the
evidence o f a witness w h o says he saw (or heard or perceived it by that sense) it;
If it refers to an o p in ion o r to the grounds on which that opinion is held, it must
be the evidence o f the person w ho holds that opinion on those grounds.
Provided that the opinion o f an expert can be cited in his absence if it has
been expressed in a b o o k form and the expert himself is either dead or is otherwise
unavailable as a witness. Provided also that, if oral evidence refers to the existence
or condition o f any material thing other than a document, the court may, if it thinks
fit, require the produ ction o f such material thing for its inspection.”
Oral evidence m ust be direct. This means that a witness can tell the court o f
only a fact o f which he has the first hand knowledge (eye-witness) in the sense that
he perceived the fact by any o f the five senses. If the statement was not made in
his presence o r hearing and he subsequently came to know o f it through som e
other source, he cannot appear as a witness, for his knowledge is a derived knowledge
and is nothing but a “hearsay”evidence which is considered not relevant.
45. “Oral evidence must in all cases be direct.”Explain fully the said rule with
illustration. Is there any exception to the rule?
[DelhiJ.S. 1999\[U.P. PCS Q) 1983/1984/1992\ [Bihar J.S. 1987\
Objective Qeieationm
(Multiple Choice)
147. Which section of the Evidence Act makes the opinion of a person
expressed by his conduct, who as a member of the family or otherwise
has special means of knowledge as to the relationship of one person
to another, relevant?
(a) Sec. 46.
(b) Sec. 47.
(c) Sec. 49.
(d) Sec. 50.
148. In which of the following cases, the evidence of marriage cannot be
given by opinion of an expert:
(a) Cases of offences against marriage.
(b) Proceedings under the Indian Divorce Act.
(c) Both (a) and (b).
(d) None of the above.
H earsay Evidence46
T h e word ‘hearsay* mean whatever a person is heard to say (rumour or gossip) or
whatever a person declares on information given by som eone else, or it may be
synonym ous with irrelevant A statement, oral or written, by a person not called as
a witness (or statements made out o f court) com es under the general rule o f hearsay.
Sec. 60 o f Evidence Act is directed against avoiding or excluding hearsay evidence.
T he test to distinguish between direct evidence and hearsay evidence is: It is
direct evidence if the court, to act upon it, has to rely only upon the witness,
whereas it is hearsay if it has to rely not only upon the witness, but som e other
person also. Thus, if X is charged with Y ’s murder, and if Z, in his evidence, states
that “I saw X stabbing Y with a knife”, it would a direct evidence. Instances o f
hearsay evidence would be the evidence o f A that “Z told m e that he had seen X
stabbing Y ”o r that “Z wrote a letter to m e stating that he had seen X stabbing Y”
o r that “I read in the newspaper that X had murdered Y”.
It may be noted that hearsay evidence is not admissible even if not objected
to, or even if consented to. The court has no discretion in this matter, except in
certain exceptional cases. The rule against the admission o f hearsay evidence is
fundamental. It is not the best evidence and it is not delivered on oath. The
truthfulness and accuracy o f the person w hose words are spoken to by another
witness cannot be tested by cross-examination. It is a second-hand evidence; the
person giving such evidence d oes not have any sense o f responsibility. There is a
tendency that truth will be diluted and diminished with each repetition and the
frauds may be practiced under its cov et Further, the litigation is likely to be prolonged.
Exceptions to the Hearsay Rule

People’ s memories are fragile and short. Subsequent publicity, discussions and suggestive
questioning all exert their influence. This may lead to exclusion o f evidence which is
superior in trustworthiness to evidence which is freely admitted (i.e. direct evidence).
In Sharda Birdichand v State (AIR 1984 SC 1622), the testimony o f persons who had
seen the pitiable condition o f a young woman in her-laws* home where she lost her
life was, thus, held to be relevant.
46. ‘Hearsay evidence is no evidence*. Explain the reasons for the exclusion o f
hearsay evidence. To what extent has the principle o f exclusion o f hearsay
evidence been adopted in the Indian Evidence Act? State the exceptions.
[U P P CS (J) 1986/1987/200C\ [Raj.J.S. 1991/19991
149. When does a person's character becom e relevant?

(a) The character of that person is a fact in issue.
(b) The character becomes evident from other relevant facts.
(c) The character affects the amount of damages.
150. Mark the Incorrect statement:
(a) In civil cases, character evidence is inadmissible unless the character
of a party is a fact in issue.
(b) In criminal cases, the fact that the person accused is of a good
character is irrelevant.
(c) A previous conviction is relevant as evidence of bad character in
criminal cases.
(d) In criminal proceedings, evidence of bad character is admissible
when evidence of good character has been given.
Law o f Evidence 93
The courts have modified the rigid rule as to direct evidence by a number o f exceptions;
(i) Res gestae (Sec. 6) —A statement made by a person who is not a witness
b e c o m e s relevant and admissible if the statement is part o f the
transaction in question.
(ii) Admissions and confessions - An admission o f liability or confession o f
guilt which takes place outside the court through the testimony o f a
witness to w h om the admission or the confession was made. Such a
witness is n ot a witness o f fact
(iii) Statements relevant under Sec. 32 —These are mostly the statements o f deceased
person (dying declarations) or persons who are not available as witnesses.
(iv) Entries in books o f account kept in the course o f business (Sec. 34); Entries
in public registers (Sec. 35).
(v) Statements o f experts in treatises — See first proviso to S ec 60.
(vi) Sometim es, a slanderous statement made by a third person and heard
by the witness will be relevant, not regarding the truth o f the contents
o f the statements, but regarding the fact o f the statement being m ad e
CHAPTER V
OF DOCUMENTARY EVIDENCE
[SECS. 61-90]
SEC. 61: Proof o f Contents of Document
“
T h e contents o f docum ents may be proved either by primary or by secondary
evidence”.
D ocum entary evidence means aU documents produced for the inspection o f
die court. D ocu m en ts are denominated as “ dead p r o o f”, as distinguished from
witnesses w h o are said to be “living proofs”. Documentary evidence is superior to
oral evidence in permanence, and in many respects, in trustworthiness. There is n o
O b jective g a e f t f o a s
(Multiple Choice)
151. In criminal cases, the good character Is relevant under which section
o f the Evidence Act?
(a) Sec. 51.
(b) Sec. 52.
(c) Sec. 53.
(d) Sec. 54.
(a) To prove good or bad character, the evidence can be given of both
reputation and disposition.
(b) To prove bad character, evidence can be given of previous conviction.
(c) Evidence may be given only of general character and not of particular
acts by which the character is shown.
(d) Good character is also relevant in civil proceedings.
third m ethod o f proving the contents o f a document. The contents need not be
proved by the author o f document, and can be proved by any other evidence.
SEC. 62: Primary Evidence47
A c c o r d in g to Sec. 62, the expression ‘

primary evidence’includes:
(i) The original document itself produced for the inspection o f the court.
(ii) Where a document is executed in several parts (e.g. duplicate, triplicate-
required when there are several partners), each part is primary evidence o f
the document. Where a docum ent is executed in counterparts, each
counterpart is primary evidence against the party' signing it (Explanation 1).
For example, in the case o f a cheque, the main cheque is signed by the drawer
so that it is a primary evidence against him, and the counterfoil may be signed by
the payee o f the cheque so that it will be a primary evidence against the payee.
Similar is the case o f patta (executed by lessor/ landlord) and the qabuliat or mnehilka
(executed by lessee/ tenant).
(iii) Where a number o f documents are all made by one uniform process, as for
example, by printing, lithography or photography, each is primary evidence
o f the contents o f document. But, where they are all o f copies o f a
com m on original, they are not primary evidence o f the contents o f the
original {Explanation 2).
Primary evidence is the best or highest evidence, or in other words, it is the kind o f proof
which, in the eyes o f the law, affords the greatest certainty o f the fact in question. Primary
evidence o f a transaction, evidenced by writing, is the original document itself) which should
be produced in original to prove the terms o f the contract, if it exists and is obtainable
SEC. 63: Secondary Evidence48
T h e expression ‘
secondary evidence’includes:
(i) Certified copies o f the original document (i.e. public documents certified
by a public officer). , i
47. What is primary evidence? [Ruj.J.S.199I\

48. Explain ‘
secondary evidence’
. [UP. PCS (J) 19S7\ [Raj.J.S. 1989\
153. Which of the following facts need not be proved?

(a) Relevant facts.
(b) Facts judicially noticeable.
(c) Admitted facts.
(d) Both (b) and (c).
154. Which of the following Is the fact of which the court Is not bound to
take the judicial notice under Sec. 57:
(a) War between India and Pakistan.
(b) All Acts of the British Parliament.
(c) Rule of the road on land or at sea.
(d) Facts stated in a newspaper.
Law of Evidence 95
(ii) Copies which are made from the original by mechanical processes (e.g.
printing, lithography, photography), which in themselves assure the accuracy
o f the copy; and copies compared with such copies (e.g. a photograph o f
an original, a carbon copy).
A Photostat copy o f a document is admissible as secondary evidence if it is
proved to be genuine; it has to be explained as to what were the circumstances
under which the Photostat copy was preferred and who was in the possession o f
the original document at the time its photograph was taken. It can be permitted to
be given in evidence when it is proved that the original document was in possession
o f adversary (Ashok v Madho Lai AIR 1975 SC 1748; Govt, of A.P. v Karri Chinrta
Venkata Reddy AIR 1994 SC 591).49
An uncertified photocopy o f a Government order cannot be given in secondary
evidence (Union o f India v Nirmal Singh AIR 1987 All 83). Generally speaking, “copy
o f a copy”is not admissible as secondary evidence but the copies prepared by a
mechanical process and copies o f a copy compared with the original are secondary
evidence.
(iii) Copies made from or compared with the original. If a copy is prepared
word-to-word from the original it is secondary evidence.
(iv) Counterpart o f a document as against the party who did not sign it. Thus,
a patta will be a secondary document against the lessee (tenant), as he did
not execute it; and qabuliat will be a secondary document against die landlord,
as he did not execute it.
(v) Oral account o f the contents o f a document given by a person who has
himself seen (i.e. read) the document. An oral account o f a copy compared
with the original is not a secondary evidence.
49. To prove his tide, the complainant produces an unattested Photostat copy of
a document on the ground that the original one is lost. Decide whether the
document produced by the complainant may be admitted as a secondary
evidence? [U.P. PCS (f) 1997\
Objective Q uestion*
(Multiple Choice)
155. The court may In its discretion call for proving the facts
(a) of which judicial notice has to be taken.
(b) which have been admitted by the parties.
(c) both (a) and (b).
(d) none of the above.
156. All facts except the contents of documents may be proved by oral
evidence. This Is laid down In:
(a) Sec. 56.
(b) Sec. 58.
(c) Sec. 59.
(d) Sec. 60.
I
SEC. 64: Proof of Documents by Primary Evidence
A c c o r d in g to Sec. 64, “a docum ent must be proved by its primary evidence except
in the cases hereinafter mentioned.”
SEC. 65: When Secondary Evidence Relating to Documents May be Given50
I n the following cases, the secondary evidence may be given o f the existence,
condition, or contents o f a document:
(a) When the original is show n or appears to be in the possession or power
o f a person against w hom the docum ent is sought to be proved (adversary
party), or o f any person out o f reach o f or not subject to the process o f
' court, or any person legally bound to produced it, does not produce it
despite due notice.
(b) When the existence, condition or contents have been proved to be admitted
in writing by the party against w hom the docum ent is to be proved.
(c) W hen the original has been destroyed or lost, or when the party offering
evidence o f its contents, cannot for any other reason not arising from his
ow n default o r neglect, produce it in reasonable time.
(d) When the original is o f such a nature as not to be easily movable (e.g. bulky
documents).
(e) W hen the original is a public document within the meaning o f Sec. 74.
(f) W hen the original is a docum ent o f which the Evidence Act or any other
law o f the country permits certified copies to be given in evidence.
(g) When the originals consists o f numerous accounts or other documents,
which cannot be conveniently examined in the court and the fact to be
provided, is the ‘
general result’o f the whole collection.
It may be noted that secondary evidence o f the contents o f a written instrument
cannot be given, unless there is som e legal excuse for non-production o f the
original (primary evidence). Further, secondary evidence can only be given when the
50. D iscuss the circumstances in which a secondary evidence is admissible.

[UP. P C S (J) 1987\
157. Oral evidence:

(a) Must be direct.
(b) Can be hearsay.
(c) Can be circumstantial.
158. According to Sec. 60, the oral evidence must be direct except In the
ca se of:
(a) Statements of experts in treatises.
(b) Hearsay evidence.
(c) Admissions.
Law o f Evidence ■97
primary evidence or the document itself is admissible (If a deed o f gift is inadmissible
in evidence for want o f registration, no secondary evidence o f the deed can be
given in a suit to recover the gifted property). When the contents o f docum ent have
been admitted by the party against whom it has to be proved, his written adm ission
can be given as a secondary evidence o f document.
SECS. 65A/ 6SB: Admissibility of Electronic Records in Evidence
Secs. 65A and 65B have been added by the Information Technology Act, 2000. Sec.
65A lays d ow n that the contents o f electronic records may be proved in accordance
with the provision s o f Sec. 65B.
Sec. 65B lays d ow n that “notwithstanding anything contained in this Act,
inform ation in an electronic record which is printed on a paper, stored, recorded
or cop ied in a com pu ter shall be deemed to be a document and shall be admissible
in any proceedin gs (without further p ro o f or production o f the original) as evidence
o f the contents o f the original or o f any fact stated therein o f which direct
evidence w ou ld be admissible.”
It is further laid dow n that the following conditions have to be satisfied in
relation to a “com pu ter output”:
(a) Inform ation was produced during the regular course o f activities by the
person having lawful control over the computer’ s use.
(b) Inform ation has been regularly fed into the computer in the ordinary
course o f the said activities.
(c) T hrou ghou t the material part o f the said period, the com puter was
operating properly, or the improper operation was not such as to affect
the electronic record or the accuracy o f its contents.
(d) Inform ation contained in the electronic record reproduces or is derived
from such information fed into the computer in the ordinary course o f
activities.
Sec. 65B then lays dow n that for the purpose o f evidence, a certificate identifying
the electronic record containing the statement and describing the manner in which
it is p rod u ced by a com puter and satisfying the conditions mentioned above, and
Objective Questions
(Multiple Choice)
159. Hearsay evidence Implies:

(a) Rumour or gossip.
(b) Whatever a person declares on information given by someone else. -
(c) Statements made out of court.
(d) All o f the above.
160. If X Is charged with Y’
s murder, which of the following will be a hearsay
evidence?
(a) Z, in his evidence, states that "I saw X stabbing Y with a kn ife ".
(b) Evidence of A that “Z told me that he had seen X stabbing Y \
signed by an officer in charge o f the operation or management o f the related

activities, shall be the evidence o f any matter stated in the certificate; it shall be
sufficient for a matter to be stated to the best o f 'the knowledge and belief o f the
person stating it.
SEC. 66: Rules as to N otice to Produce
Sec. 66 lays down that a notice (to produce a document) must be given before
secondary evidence can be received under Sec. 65 (a). The notice is to be given to
the party who has possession o f the original document, or to his attorney or
pleader. Notice should be given in a manner as is prescribed by law, and if there
is no law on die point, such notice should be given as the court considers reasonable
under the circumstances o f the case.
Provided that such notice shall not be required in the following cases, or in any
other case in which the court thinks fit to dispense with it:
(1) When the document to be proved is itself a notice.
(2) When, from die nature o f the case, the adverse party (Le. party in possession
o f document) must know that he will be required to produce it.
(3) When it appears or is proved that the adverse party has obtained
possession o f the original by fraud or force.
(4) When the adverse party or his agent already has the original in court.
(5) When the adverse party or his agent has admitted that the original has
been lost.
(6) When the person in possession o f the document is out o f reach of, or
not subject to, the process o f the court (viz. a foreign ambassador).
A question arises: when the opposite party fails to produce the original when
demanded and the court has accordingly admitted secondary evidence, can the party
in possession subsequendy produce the original o f his own choice, 'fhe answer is
“N o ”. Sec. 164 clearly lays down that where a party has required to another to
produce a document and he has refused to do so, he can’t afterwards use the document
as evidence unless he obtains the other party’
s consent or the court’ s order.
The requirement o f notice under Sec. 66 is to be strictly complied with. The
other party cannot be restrained from producing the original where the notice to
produce has not been given, nor can secondary evidence be given in such case.
161. Hearsay evidence is generally Inadmissible. However, in certain cases

It Is admissible. Which of the following Is such a case?
(a) Res gestae.
(b) Admissions and confessions.
(c) Dying declaration.
162. The contents of documents may be proved by:
(a) Primary evidence only.
(b) Secondary evidence only.
(c) Primary or secondary evidence.
(d) Oral evidence.
Law of Evidence 99
SEC. 67: Proof of Signature aod Handwriting of Perron aileged to ha.e Signed
or Written Document Produced
“I f a docum ent is alleged to be signed or written by any person, the signature or

the handwriting o f so much o f the document as is alleged to be in that person’
s
handwriting must be proved to be in his handwriting.”
SEC. 67A: Proof as to Digital Signature
“
E x c e p t in the case o f a secure digital signature, if the digital signature o f any
subscriber is alleged to have been affixed to an electronic record the fact that such
signature is the digital signature o f the subscriber must be proved.”
Sec. 67 does not prescribe any particular mode o f proof o f signature or
handwriting o f a person. However, the following modes o f proving a signature or
writing are recognized by the Act, viz.
(1) by calling the person who signed or wrote the document;
(2) by calling a person in whose presence the document was signed or
written;
(3) by calling a handwriting expert (Sec. 45);
(4) by calling a person acquainted with the handwriting o f the person
executing the document (Sec. 47);
(5) by comparing in court the disputed signature/writing with some admitted
signature/writing (Sec. 73);
(6) by p r o o f o f admission by the person who is alleged to have signed or
written the document, that he signed or wrote it; or
(7) by statement o f a deceased professional scribe, made in the ordinary
course o f business, that the signature on the document is that o f a
particular person.
(8) Any other circumstantial evidence.
Objective Questions
(Multiple Choice).
163. Which is considered as the source of superior evidence?
(a) Dead proof.
(b) Living proofs.
(c) Oral proof.
164. Primary evidence Includes:
(a) Original document itself produced for the'inspection of the court..
(b) Duplicate, triplicate of a document, when executed in several parts.
(c) Each counterpart of a document, when executed in counterparts.
SEC. 68: Proof of Execution of Document Required by Law to be Attested
T o attest is ‘
to bear witness to a fact’
. A document the execution o f which is
required by law to be “attested” means a document the signature upon which
should be put in the presence o f two witnesses who themselves add their signatures
and addresses in p ro o f o f the fact that the document was signed or executed in
their presence. They are called ‘ attesting witnesses’
. Attestation does not imply that
the attesting witnesses have admitted to the contents o f a document.
Sec. 68 lays down that if a document required by law to be attested is produced
as evidence, at least one attesting witness shall be called to prove the execution o f
the document. This principle will apply only if at least one o f the attesting witnesses
is alive, capable o f giving evidence and subject to the process o f the court.
Sec. 68 further provides that no attesting witness need be called in the case
o f document (not being a will), which has been registered under the Indian Registration 1
Act, 1908, and the person executing it does not specifically deny its execution. If
there is a denial, then, an attesting witness have to be called.
SEC. 69: Proof where No Attesting Witness Found
“I f no such attesting witness can be found, or if the document is executed in the

United Kingdom, it must be proved that the attestation o f one attesting witness at
least is in his handwriting, and that the signature o f the person executing the
document is in the handwriting o f that person.”
SEC. 70: Admission of Execution by Party to Attested Document
Sec. 70 lays down that ‘

where the party to an attested document has admitted that
he executed the document that is sufficient proof o f the execution even if the
document is required by law to be attested’ . This ‘ admission’relates only to the
execution and to be made in the course o f the trial o f a suit or proceeding. It must
be distinguished from the admission mentioned in Secs. 22 and 65 (b), which relate
to die contents o f a document.
The admission must be unqualified. Thus, if a person admits his signature on
a mortgage-bond, but denies that the attesting witnesses were present at that time,
the bond will have to be proved under Sec. 68, by calling the attesting witnesses.
165. Secondary evidence Includes:

(a) Certified copies of the original document.
(b) Negatives of a photograph.
(c) Oral account of the contents of a document.
166. If on the carbon copies of a letter written on a typewriter, signature
have been put on the first letter then other copies:
(a) Will also be primary evidence.
(b) Will be secondary evidence.
(c) Will be no evidence.
Law o f Evidence 101
SEC. 71: Proof when Attesting Witness Denies the Execution
Sei. 71 lays down that ‘

if the attesting witness denies or does not remember the
execution o f the document, its execution should be proved by other evidence’ .
Thus, the fate o f an attested document does not lie at the mere)’o f an attesting
witness; if he turns hostile, other evidence may be given; such a document may then
be proved in the same manner as documents not required to be attested.
If one attesting witness is produced, the part)' has done his duty (under Sec. 63)
even if that witness denies or does not remember the execution o f the document, and
then other evidence can be offered under Sec. 71 [Chaitan Cbaran v Mahesbmr Panda
AIR 1991 Ori. 125]. The court distinguished the case from a decision o f the Bombay
High Court to the effect that on the failure o f one attesting witness to prove execution,
the other attesting witness, if available, should be produced and on his failure also, Sec.
71 can be used to bring in any other evidence.
Where the attester was an illiterate person and he attested by putting his
thumb impression, he was not bound by the document unless it could be shown that
the document was read out to him and he understood it [Badri Narayanan v
Kajabajyathammal (1996) 7 SCC 101].
SEC. 72: Proof of Document Not required by Law to be Attested
“
A n attested document, not required by law to be attested, may be proved as if it
was unattested.”T o prove an attested document, one must prove (i) attestation, and
(ii) signature. To prove an unattested document, one has to prove execution only.
SEC. 73: Comparison of Signature, Handwriting, etc. by the Court
A ccordin g to Sec. 73, when the Court has to satisfy itself whether the signature,
writing or seal on a document is genuinely that o f a person whose signature, etc
it purports to be, the Court may compare the same with another signature, etc
which is admitted or proved to be that o f the person concerned although that
signature, etc. has not been produced or proved for any other purpose. This section
applies also, with necessary modifications, to finger impressions.
Objective Questions
(Multiple Choice)
(a) Documents should be proved by primary evidence.
(b) Oral account of the contents of a document is admissible only
when given by a person who has seen and read the document.
(c) A witness who has given oral evidence is not entitled to give
documentary evidence.
(d) Copy of a copy if has not been compared with the original is neither
a primary nor a secondary evidence.
Sec. 73 also enables the court to require any person present in the Court to write
any w ords o r figures to enable the court to compare them with the words or figures
alleged to have been written by such person (Tower to ask for specimen handwriting*).
W hether the Court should d o the com parison itself or appoint an expert is
a matter o f discretion. In Mttrttrilal v State o f M.P. (AIR 1980 SC 531), it observed
that the argument that the Court should not venture to com pare writings itself, as
it w ould thereby assume to itself the role o f an expert is entirely without force. It
is the plain duty o f die court to com pare die writings and com e to its ow n conclusions.
W here there are expert opinions, they will aid the court. Where there is none, the
cou rt will have to seek guidance from authoritative textbooks and the court’ s own
experience and knowledge.503
However, the court should be slow in making self-comparison (particularly
w here the signature with which com parison is to be made is in itself not an
admitted signature). T h e court can attempt a comparison, but in the case o f slightest
doubt, should rely upon the w isdom o f experts {Ajit Savant v State A IR 1997 SC
3255). T h e court cannot substitute its opinion for that o f an expert. Weak expert
opin ion may be corroborated by the cou rt’ s opinion under the section.
Sec. 73 d oes not make any difference between civil and criminal proceedings.
It is not limited to parties to the litigation. By virtue o f the expression “any person”
used in Sec. 73, die court can direct even a stranger to give a specim en o f his
handwriting. It may be noted that where the case is still under investigation and no
proceedin gs are pending before the court, a person present in the court cannot be
com pelled to give his specim en handwriting.
SEC. 73A: Proof as to Verification of Digital Signature
“I n order to ascertain whether a digital signature is that o f the person by w hom it

purports to have been affixed, the court may direct (a) that person or the Controller
or the Certifying Authority to produce the Digital Signature Certificate; (b) any other
person to apply the public key fisted in such Certificate and verify the digital signature.”
50a. Genuinenes o f a signature on a docum ent was in dispute. Parties produced

evidence on the point but did not examine handwriting expert. The trial judge
him self com pared the disputed signature with admitted signature o f the alleged
executant. H e held that the disputed signature was forgery. In appeal this
finding was assailed. Decide. [D elhi J.S. 1990[
168. A witness who Is unable to speak, gives his evidence by writing In open
court, evidence so given shall be deem ed to be:
(a) Oral evidence.
(b) Documentary evidence.
(c) Primary evidence.
(d) Secondary evidence. [M.P. C.J. {Prelim.) 20 0 0 ]
169. Secondary evidence can be given:
(a) When there Is some legal excuse for non-production of the original.
(b) As a substitute for primary evidence.
(c) Both (a) and (b) are correct.
P U B L IC D O C U M E N T S
T h e Act recogn izes tw o kinds o f documents, viz. public and private; it lays dow n
special rule relating to p r o o f o f public documents.
SEC. 74: P ublic D o c u m e n t s 51
T h e follow ing docu m en ts are public documents:
(1) D ocu m en ts form in g the acts, or records o f the acts:

(i) o f the sovereign authority (namely, the Parliament and Legislative
Assemblies);
(ii) o f official bodies and tribunals; and
(iii) o f public officers, legislative, judicial and executive, o f any part o f
India o r o f the Commonwealth, or o f a foreign country.
(2) Public records kept in any State o f private documents.
Private documents, which are registered in public offices, also become public
documents. For example, the memorandum and articles o f a company registered with the
Registrar o f Companies; a private Waqf deed; etc. The following have been held not to
be public documents: An application for a licence, a post-mortem report, an insurance
policy, a private sale-deed registered under the Indian Registration Act, a pumbanamu
prepared by a police officer., A charge-sheet, arrest-warrant, judgment o f court, affidavit,
administrative report, etc. are public documents.
A ‘public record* is one required by law to be kept, or necessary to be kept in
the discharge o f a duty im posed by law, or directed by law to serve as a memorial and
permanent evidence o f something written, said or done. Thus, an original receipt
executed by any individual and registered under the Registration Act is not a public
record as the original has to be returned to the party. Entries made by a police officer
in the site inspection map and site map have been held to be public documents
(Rajasthan S.RT.C. v Nand Kishore AIR 2001 Raj 334).
51. What are public documents? [Ruj.J.S. 1989\
O b je c tiv e Q u estio n e
(Multiple Choice)
170. In which of the following cases, can secondary evidence of the contents
of a document not be given?
(a) When the original is a public document.
(b) When the original has been destroyed.
(c) When the original has been found to be inadmissible.
(d) When the original is not easily movable.
[M.P. CJ. (Prelim.) 1996]
171. The provisions relating to admissibility of Electronic Records In evidence
are contained In:
(a) Sec. 65A.
(b) Sec. 65A and Sec. 65B.
(c) Sec. 66.
(d) Sec. 67.
SEC. 75: Private Documents
“An other docum ents are private”.
SEC. 76: Certified Copies of Public Documents
A c c o r d in g to Sec. 76, every public officer having the custody o f a public docum ent
(which any person has a right to inspect) must, on demand and payment o f legal
fees therefor, give a copy o f it with a certificate (dated, signed and sealed) at the
fo o d diat it is a true copy. A copy so certified is called a 4certified copy’
.
SEC. 77: Proof of Documents by Production of Certified Copies
A c c o r d in g to Sec. 77, ‘
the contents o f public docum ents may be proved by the
production o f their certified copies\
The w ord ‘ may* in this section denotes another m ode o f p r o o f (optional to
the party), viz. production o f the original. An electoral role has been held to be a
public docum ent and, therefore, certified copy is admissible under Sec. 77. The
deposition o f a witness is a part o f the record o f the acts o f an official tribunal,
and a statement made in it can be proved by a certified copy.
SEC. 78: Proof of Other Official Documents
T h e follow ing public docum ents may be proved as follows:
(1) Acts, orders and notifications o f the Central/State Government or their departments
may be proved by the records o f the department as certified by the head
or by any docum ent purporting to be printed by the department’ s order.
(2) The proceedings of the Legislatures may be proved by the journal o f the legislature
concerned or by published Acts or abstracts, or by copies purporting to be
printed by the G overnm ent’ s order.
(3) Proclamations, orders or regulations issued by H er Majesty/Privy Council can
be proved by copies or extracts contained in the London Gazette, etc.
(4) Acts o f the executive or the proceedings o f the Legislature o f foreign country can
be proved by journals/certified copies, or by recognition o f die same in Central A ct
172. Mark the Incorrect statement In relation to Sec. 66:

(a) When the original document is in the possession o f adversary party,
then secondary evidence can be given only when a notice has been
given to that party or to his attorney or pleader.
(b) Such notice shall not be required when the document to be proved
is itself a notice.
(c) Such notice shall not be required when the adverse party or his
agent already has the original in court.
(5) Proceedings o f a municipal body in a State may be proved by a certified co p y

o f such proceedin gs or an authoritative printed book.
(6) Public docu m en ts o f any other class in a foreign country may be proved by
the original o r by a certified copy issued by the legal keeper o f the docum ent
with a certificate under the seal o f a notary public/Indian consul or
diplom atic agent.
P R E S U M P T IO N S AS T O D O C U M E N T S
Secs. 79-90 are fou nded on the maxim omnio prosumuntur rite esse acta which means
that ‘
all acts are presum ed to be righdy done’ . But, these presumptions are not
conclusive but only prima facie presumptions and if the documents are incorrect,
evidence can be led to disprove them.
Presumptions under Secs. 79-85 and Sec. 89 are “ compulsory”one in the sense
that the judge is bound to raise the presumption in question. The presumptions under
Secs. 86-88 and Sec. 90 are in the “discretion”o f the court in the sense that the court
may or may not draw presumptions.
SEC. 79: Presumption as to Genuineness of Certified Copies

A cco r d in g to Sec. 79, when a certified copy o f a document is produced before the
court as evidence o f the original the law presumes that the copy is a genuine
reproduction o f the original. However, it is necessary that the copy should have been
certified by an officer o f the Central/State Government (including an officer in State
o f J&K authorized by Central G ovt) and the document should be substantially in the
form prescribed by law and should also purport to be executed in that manner.
T he court also presumes that the officer who signed or certified the docum ent
held the official character which he claims in such paper. It is not necessary to call
such an officer in evidence.52
52. Whether it is necessary to prove the signatures o f a gazetted officer by calling
him in evidence? [Raj.J.S. 1991\
H ow will you prove a certificate o f registration? [Delhi J.S. 1984\
\Ans. N o formal proof is required to prove such a certificate.]
O b je c t i v e Q u e s t io n *
(Multiple CHoice)
173. How d o es the signature and handwriting of a document could be proved?
(a) By calling the person who signed or wrote the document.
(b) By calling a person in whose presence the document was signed or
written.
(c) By calling a handwriting expert.
174. Mark the correct statement In relation to a certificate given by a doctor:
(a) It Is a hearsay evidence.
(b) It must be proved by the doctor himself.
(c) The doctor is required to give evidence that certificate has been
written by him.
(d) It can be proved only after the giving of evidence.
SEC. 80: Presumption as to Documents Produced as Records of Evidence
A c c o r d in g to See. 80, when a person has appeared before a Court o f law and has
recorded his testimony or confession (taken in accordance with law and purporting
to be signed by a judge, etc.) and his statement being relevant in a subsequent case,
the court shall presume the genuineness o f such certified copy and that such
evidence, statement, etc. was duty recorded.
SEC. 81: Presumption as to Gazettes, Newspapers, Private Acts of Parliament
U n d e r Sec. 81, Official Gazettes, newspapers or journals, copies o f the private Act
o f Parliament o f U.K., and other docum ents kept in accordance with the law are
presum ed to be genuine.
In spite o f this presumption, it has been held that newspaper reports d o not
constitute admissible evidence o f their truth. The presumption o f genuineness
attached under Sec. 81 to a newspaper report cannot be treated as a p r o o f o f the
facts reported therein (Laxm i Raj Shefty v State of T.N. AIR 1988 SC 1274). The
statement o f a fact contained in a newspaper is merely a ‘
hearsay’and is, therefore,
inadmissible in evidence (Ramswaroop v State of Raijasthan AIR 2002 Raj 27).
SEC. 81A: Presumption as to Gazettes in Electronic Forms
T h e Court shall presum e the genuineness o f every electronic record purporting to

be the O fficial Gazette, or purporting to be electronic record directed by any law
to be kept by any person in the form required by law and is produced from proper
custody.
SEC. 82: Presumption as to Docum ent Admissible in England without Proof

of Seal or Signatures
U n d e r Sec. 82, when a docum ent is produced before a court which according to
die laws o f England or Ireland would be admissible without p r o o f o f seal, signature,
etc, die court shall presume that such seal, etc. is genuine and also that the person
signing the docum ent held at the time o f signing it, the judicial/official character
which he claims.
175. How many w itnesses are required to attest a document?

(a) One.
(b) Two.
(c) Three.
(d) Four.
(a) A document required by law to be attested can be proved under Sec.
68 only by calling at least one of the attesting witnesses if alive.
(b) Attesting witnesses add their signatures and addresses In proof of
the fact that the document was signed or executed In their presence.
(c) No attesting witness need be called in the case of document (not being
a will), which has been registered under the Indian Registration Act,
1908, and the person executing it does not specifically deny its execution.
t
SEC. 83: Presum ption as to Maps or Plans
A c c o r d in g to Sec. 83, maps or plans purporting to be made with the authority o f

the Central/State G overnm ent are presumed to be accurate. But, maps o r plans
made for the p u rp ose o f any cause must be proved to be accurate.
SEC. 84: Presum ption as to Collection of Laws and Reports of Decisions
A c c o r d in g to Sec. 84, the Court presumes the genuineness o f every’book, printed

or published under the authority o f the Government o f an£ country, which contains
laws o f that country. Similar is the case with a book published by the State which
contains report o f decided cases.
It may be noted that Sec. 57 authorizes the Courts to take judicial notice o f
the existence o f all laws and statutes in the territory o f India and U.K. Sec. 74
recognizes statutory records to be ‘
public records*. Sec. 78 lays down the m ethod o f
proving the Statutes/Acts passed by the legislature.
SEC. 85: Presumption as to Power of Attorney
A ‘
pow er o f attorney’is a docum ent by which an agent is given the power to act
for his principal. A ccording to Sec. 85, a power o f attorney duly executed before
and authenticated by a notary public or any judge/court/Indian Consul/Vice-
Counsel/ representative o f Central Government are presumed to be genuine. The
presum ption also applies to documents authenticated by notaries functioning in
other countries.
SEC. 85A/85B/85C: Presumption as to Electronic Agreements, Records, etc.
Sec. 85A raises a presumption as to ‘

Electronic Agreements’
: The Court shall
presume that every electronic record purporting to be an agreement containing the
digital signatures o f the parties was so concluded by affixing the digital signature o f
the parties.
O b jective QuestioiMM
(Multiple Choice)
177. For proving execution of a registered Will It shall
(a) be necessary to call at least two attesting witnesses.
(b) be necessary to call at least one attesting witness.
(c) not be necessary to call any attesting witness.
(d) be necessary to call the Registrar.
[M.P. CJ. (Prelim.) 1 9 9 6 ]
178. If no attesting witness can be found It must be proved that:
(a) Attestation of one attesting witness at least Is in his handwriting.
(b) Signature of the person executing the document is in the handwriting
of th a t person.
Sec. 85B raises a presumption as to a ‘ secure electronic record* (that it has not
been altered since the specific point o f time to which the secure status relates), and
a ‘secure digital signature* (that it is affixed by subscriber with the intention o f
signing o r approving the electronic record). Except in these cases, there is no
presum ption relating to authenticity, etc. o f the electronic record or any digital
signature. Sec. 85C raises a presumption as to ‘ Digital Signature Certificates’ .
SEC. 86: Presumption as to Certified Copies of Foreign Judicial Record
T Jn der Sec. 86, the court is given the judicial discretion to presume that the
certified copies o f foreign judicial records are genuine.
SEC. 87: Presumption as to Books, Maps and Charts
A c c o r d in g to Sec. 87, when books, maps, charts, etc. are produced before the
Court in p r o o f o f a fact in issue or a relevant fact, the Court may presume that any
such book, map, etc. was written or published by the person w hose name is shown
as that o f the author o r publisher and was published at the place where it was
published.
SEC. 88: Presumption as to Telegraphic Messages
A c c o r d in g to Sec. 88, in reference to telegraphic messages, the Court may presume

that the m essage delivered to the addressee corresponds with the m essage handed
over to the p o st office and that the m essage was meant for the person w hom it is
purported to be delivered. But, the court shall not make any presumption as to the
sender o f the m essage since telegraphic m essages can be sent by unauthorized
persons. T he court may treat telegraphic m essages received, as if they were the
‘originals* sent. A telegram is a primary evidence o f the fact that the same was
delivered to the addressee on the date indicated therein.
SEC. 88A: Presumption as to Electronic Messages
T h e court may presume that an electronic m essage forwarded by the originator

through an electronic mail server to the addressee to w hom the m essage purports

(a) Where the party to an attested document has admitted th a t he
executed the document that is sufficient proof of the execution
even if the document is required by law to be attested.
(b) If the attesting witness denies or does not remember the execution
of the document, its execution could not be proved by other evidence.
(c) If one attesting witness is produced, the party has done his duty
(under Sec. 68) even if that witness denies or does not remember
the execution of the document, and then other evidence can be
offered.
(d) An attested document, not required by law to be attested, may be
proved as if It was unattested.
to be addressed corresp on d s with the message as fed into his com puter for
transmission; but the court shall not make any presumption as to the person by
w hom such m essage was sent.
SEC. 89: Presumption in Relation to Documents Not Produced
T h e court shall presum e that every document, called for and not produced after
notice to produce, was attested, stamped and executed in the manner required by law.
SEC. 90: P resu m p tion as to D ocum ents Thirty Years O ld (Ancient

Docum ents)53
Sec. 90 lays d ow n that where a document is purported or proved to be 30-year old

and is p rod u ced from any custody which the court in particular case considers
proper, the cou rt may presume that signature and every part o f docum ent is in that
person’ s handwriting, and in case o f document attested or executed that it was duly
attested o r executed by the person by whom it purports to be attested or executed.
T he basis o f the section is that as time passes, the executants, vendors, witnesses
may not be available to prove tide, etc. The documents which are thirty years old, prove
themselves. It may be noted that the presumption relates to the execution o f the
docum ent (signature, attestation, etc.), in other words, its genuineness, but not to the
truth o f its contents (Ramakrishna v Gangadhar A IR 1958 Ori 26). Also, there is no
presum ption that the executants had the authority to d o or not what the docum ent
purports to do. Further, the presumption can be raised only with reference to
original docum ents and not to copies thereof.
Explanation to Sec. 90: According to the explanation, “proper custody”means: (a) the
place where the docum ent would normally be; (b) was under the care o f a person with
whom it would naturally be; (c) any custody which is proved to have had legitimate
origin; and (d) under the circumstances o f the case the custody from which the
instrument is produced is probable.
53. What d o you know about ‘

Documents thirty years old*? [Ra/.J.S. 1994\
O b je c t i v e QucatioMMM
(Multiple Choice)
180. Under which section of the Evidence Act, the court Itself can compare
the handwriting of a person?
(a) Sec. 72.
(b) Sec. 73.
(c) Sec. 75.
(d) Sec. 76.
181. Which docum ents are public documents as per Sec. 74:
(a) Documents forming the acts, or records of the acts of the sovereign
authority.
(b) Documents forming the acts, or records of the acts of official bodies
and tribunals.
(c) Public records kept in any State of private documents.
110 Law G uide for Judicial Sen/tce Examination
Illustrations
(a) A has been in p o ssessio n o f landed property for a lon g time. H e produces
from his custody deeds relating to the land, show ing his title to it. The
custody is proper.
(b) A p rod u ces deeds relating to landed property o f which he is the mortgagee,
the m o rtga go r is in possession. T h e custody is proper.
(c) A, a conn ection o f B, produces deeds relating to land in B ’
s possession which
were deposited with him by B for safe custody. T he custody is proper.
Because a docum ent purports to be an ancient document and to com e from
proper custody, it d oes not follow that its genuineness is to be assumed. If there are
reasonable grounds for suspecting its genuineness, and the party relying upon it fails*
to satisfy the court o f its due execution, its genuineness will not be presumed. The
presum ption under Sec. 90 is o f discretionary nature; the court may refuse to draw it
and require the docum ent to be proved in the ordinary manner. A party who has
attempted to prove the docum ent by direct evidence cannot afterwards rely on the
presum ption [Cbandabai v AnwarkJjan A IR 1997 M.P. 238].
SEC. 90A: Presumption as to Electronic Records Five Years Old
W here any electronic record, purporting o r proved to b e(5-year old, is produced

from a p rop er custody, the court may presum e that the digital signature which
purports to be the digital signature o f any particular person was so affixed by him
o r any person authorized by him in this behalf.
CHAPTER VI
OF TH E EXCLUSION OF ORAL
BY DOCUMENTARY EVIDENCE
[SECS. 91-100]
VC^here both oral as well as docum entary evidence are admissible, the court may
g o by the evidence which seem s to be m ore reliable. There is nothing in the Act
requiring that the docum entary evidence should prevail over the oral evidence. The
provisions as to exclusion o f oral by docum entary evidence are based on the rule
of ‘ best evidence’. W here the fact to be proved is em bodied in a document, the
182. Which of the following Is not a public document:

» (a) Affidavit.
(b) Judgment of Court.
(c) Arrest-warrant.
(d) Will.
183. Which of the following Is a public document:
(a) A post-mortem report.
(b) An insurance policy.
(c) A panchanama prepared by a police officer.
(d) A private Waqf deed.
docum ent (primary or secondary evidence o f it) is the best evidence o f the fact.
The maxim o f law is whatever is in writing must be proved by the writing. Secs. 91
and 92 o f the Evidence Act incorporate this principle.54
Best Evidence Rule
T h e main o b ject o f the la,w o f evidence is to restrict the investigation made by

courts within the bounds prescribed by general convenience. Thus, the evidence
must be con fin ed to the matter in issue, hearsay evidence must not be admitted,
and, the best evidence must be given in all cases.
The ‘ best evidence’rule means that the best evidence o f which the case in its nature
is susceptible must always be produced. The rule does not require the production o f
the greatest possible quantity o f evidence, but it is framed to prevent the introduction
o f any evidence which raises the supposition that there is better evidence behind it,
in possession or under control o f the party by which he might prove the same fact,
and which is withheld by the party.
It is on e o f the cardinal rules o f the law o f evidence that the best evidence in
possession o f the party must always be given Le. if a fact is to be proved by oral
evidence, the evidence must be that o f a person who had directly perceived the fact
to which he testifies. Otherwise, it would be impossible to test, by cross-examination,
the truth o f the testimony; and the law rejects the evidence which cannot adequately
be tested.
Similarly, where a writing primarily evidences the transaction sought to be
proved, the writing itself must be produced or accounted for. It is only in the
absence o f best or primary evidence (original document) that the court will accept
what is known as secondary evidence (copy o f the original document). Secondary
evidence will never be received until the party tendering it proves that it is out o f
his pow er to obtain the best evidence.
54. Explain and illustrate: *What is in writing shall only be proved by the writing*.
[UP. PCS (J) 198J\
O bjective Q u estio n s
(Multiple Choice)
184. Documents uncovered by Sec. 74 are:
(a) Private documents.
(b) Quasi-public documents.
185. A certified copy of a public document must be:
(a) Dated.
(b) Signed.
(c) Sealed.
SEC. 91: Evidence of Terms of Contracts, Grants, etc. Reduced to Document
A ccordin g to Sec. 91, “

when the terms o f a contract, grant or some other disposition
o f property is reduced to the form o f a document or is required by law to be
reduced to a document, no evidence shall be given for the proof o f the terms o f
such contract, etc. except the primary or secondary evidence o f the writing itself”.
The section extends to both types o f transactions, namely, which have
voluntarily been made by writing and for which writing is compulsory; it does not
apply to oral contracts. The matters required by law to be in writing are public and
judicial records such as judgments, examination o f witnesses, deeds o f conveyance
o f lands such as sale-deeds or mortgage-deeds o f Rs. 100 or more, a partition-deed,
etc. Where registration o f a document is compulsory under the Registration Act, the
document if unregistered will be inadmissible in evidence and no other evidence o f
the contents o f it can be received.
For example, A leases his house to B via a written lease. Later, A files a suit
for arrears o f rent and for ejectment. A jalleges that the tenancy was from month
to month, while B contends that it ran from year to year. In this case, the terms
o f the contract between the parties having been reduced to document, none o f
them will be allowed to adduce oral evidence in the court. The document will have
to be produced in the court.
A sues B for the possession o f a certain house alleging that it belongs to him
and B is a trespasser. B contends that the house belongs to him and alleges that
there was previous civil litigation between the same parties for the same house and
it was decided that the house belongs to him. The contents o f that previous
judgment must be proved by the copy o f the judgment. Oral evidence is shut out.
It may be noted that an oral account o f the contents o f document is not an
oral evidence. Further, the rule contained in Sec. 91 applies to the terms and not
to the factum (or existence) o f a contract, and evidence in proof o f a factum o f
a contract is not excluded.
Exception 1, Sec. 91 - Where the appointment o f a public officer is required by law
to be made by writing and the question is whether an appointment was made, if
it is shown that a particular person has acted as such officer, that will be sufficient
proof and the writing need not be proved. When the question is whether A is a
High Court Judge, the warrant o f appointment need not be proved, the only fact
186. The public documents could be proved by:

(a) Certified copies.
(b) Oral evidence.
(c) Evidence of person who has written the certified copy.
187. The proceedings of the Legislatures may be proved by:
(a) Journal of the legislature concerned.
(b) Published Acts or abstracts.
(c) Copies purporting to be printed by the Government's order.
Law of Evidence 113
that he is working as a High Court Judge will be proved. Similar is the case when
\ appears before the court as a witness and says that he is a civil surgeon.
Exception 2, Sec. 91 - Wills admitted to probate in India may be proved by the
probate. The document containing the will need not be produced. The word ‘ probate’
means the copy o f a will certified under the seal o f the court o f competent
jurisdiction with a grant o f administration to the estate o f the testator.
Explanation 1, Sec 91 —This section applies equally to cases in which the contracts,
etc. are contained in one document or more than one. If a contract is contained in
several letters, all the letters must be proved [Illnst. (a)].
2, Sec 91 —Where there are more originals than one, one original only
E x p la n a tion
need be proved.
Illustrations: (b) If a contract is contained in a bill o f exchange, the bill o f exchange
must be proved, (c) If a bill o f exchange is drawn in a set o f three, one only need
be proved.
Explanation 3, Sec 91 - Where in addition to the terms o f the contract, etc. a document
refers to any other fact also, as to that fact oral evidence is always allowed. For
example, a contract for sale o f goods mentions that the goods supplied on earlier
occasions have been paid for. Since this is not a term o f the contract, it is an extraneous
fact and, therefore, oral evidence can be offered to show that no such payment was
ever made [IHust. (d)]. A gives B a receipt for money paid by B. Oral evidence is offered
o f the payment. The evidence is admissible [lllust. (e)].5S
SEC. 92: Exclusion of Evidence of Oral Agreement
T h e provision in Sec. 91 is further supplemented by Sec. 92 by providing that once

any such contract, grant or disposition has been proved by the writing, then no
evidence can be given o f any oral agreement to contradict or change the terms o f
the contract. In other words, no oral evidence can be given to qualify the terms o f
the document.56 '
55. A question based on this illustration. _ - [U.P. PCS (J) 1992[

56. Can evidence of the intention of the parties to a document be given to contradict
the express terms of the document? [U.P PCS (J) I986\
Objective ffueatiojn*
(Multiple Choice)
188. Sections 79-90 are founded on the maxim omnfo prosumuntur rite esse
acta which means:
(a) All acts are presumed to be rightly done.
(b) All acts are presumed to be conclusively done.
189. Mark the Incorrect matching:
(a) Presumption as to Genuineness of Certified Copies: Sec. 79.
(b) Presumption as to Documents Produced as Records of Evidence:
Sec. 80.
(c) Presumption as to Gazettes, Newspapers. Private Acts of Parliament:
Sec. 81.
(d) Presumption as to Maps or Plans: Sec. 82.
Sec. 92 precludes only the parties to the document and their representatives-
in-intcrest from giving oral evidence; other parties (or strangers) are left free to give
such evidence. Further, evidence can be given o f any oral agreement which does not
contradict, vary, add or subtract from the terms o f the document. It may be noted
that Sec. 91 lays down a universal rule and is not confined to the executant or
executants o f the document. It is after the document has been produced to prove
its terms under Sec. 91 that the provisions o f Sec. 92 com e into operation. Both
the sections would be ineffective without each other. Sec. 91 applies to both unilateral
and bilateral documents, while Sec. 92 applies only to bilateral one.
Suppose A borrows Rs. 200 from B and executes a pronote in which the
interest rate is given 1 per cent. B fdes suit for recovery o f the principal and interest
at the rate o f 1 per cent. The pronote is filed and proved in the court. A wants to
lead evidence to the effeef that the interest setded between the parties was Vi
percent. Now, this evidence cannot be allowed as it contradicts the terms o f the
pronote.
The rationale behind Sec. 92 is that the parties having made a complete memorial
o f their agreement, it must be presumed that they have put into writing all that they
considered necessary to give full expression to their meaning and intendon; further,
the reception o f oral testimony would create mischief and open the door to fraud
(Rajkumar Rajendra Singh v State o f H.P. AIR 1990 SC 1833).
If, for example, a policy o f insurance applies to ships leaving Calcutta. One
o f die ships is lost. It is sought to be proved that by an oral agreement that the
particular ship was excepted from the policy. Such evidence is inadmissible [Illnsl.
(a)\. Similarly, a written agreement to pay a sum o f money on a certain day cannot
be contradicted by proving diat the day in question was changed by an oral agreement.
A agrees absolutely in writing to pay B Rs.1000 on 1st March 1873. The fact that,
at the same time, an oral agreement was made that the money should not be paid
till the 31st March cannot be proved [I/hist. (b)].57
An estate called “Rampur Tea Estate”is sold by a deed which contains a map
o f the property sold. The fact that land not included in the map had always been
regarded as part o f the estate and was meant to pass by the deed cannot be proved
[lllnst. (c)].
57. A question based on this illustration. [U P PCS 0) 1992[
190. Mark the Incorrect statement;

(a) Sec. 57 authorizes the Courts to take judicial notice of the existence
of all laws and statutes in the territory of India and U.K.
(b) Sec. 64 recognizes statutory records to be 'public records’.
(c) Sec. 78 lays down the method of proving the Statutes/Acts passed
by the legislature.
(d) According to Sec. 84, the Court presumes the genuineness of every
book, printed or published under the authority of the Government
of any country, which contains laws of that country.
Law of Evidence 115
Exceptions “When Oral Evidence Can be Given Regarding a Document

Xherc arc various exceptions to the general rule o f exclusion o f evidence o f oral
agreement:
(1) Validity of document (Proviso 1, Sec. 92) - The evidence can be given o f any
fact which would invalidate the document in question or which would
entitle a party to any decree or order relating to the document. The validity
o f a document may be questioned on the grounds o f fraud, intimidations,
illegality, failure o f consideration, mistake in fact or law
For example, A enters into a wntten contract with B to work certain mines
o f B, upon certain terms. A was induced to do so by a misrepresentation o f B’ s
as to their value. This fact may be proved [I/lust. (d)].58 A institutes a suit against
B for the specific performance o f a contract, and also prays that the contract may
be reformed as to one o f its provisions - inserted by mistake. A may prove that
such a mistake was made as would by law entide to have the contract reformed
[lllust. (e)].
The owner o f a house borrowed a sum o f money and executed a nominal
sale-deed and rent note. She was allowed afterwards to prove that the documents
were not intended to be acted upon and that the rent paid by her represented
interest on the loan (Gangabai v Chabbubai AIR 1982 SC 20).
(2) Matters on which document is silent (Proviso 2, Sec. 92) - Evidence can be given
o f an oral agreement on a matter on which the document is silent. But the
oral agreement should not be inconsistent with the terms stated in the
document. The separate oral agreement should be on a distinct collateral
matter, although it may form a part o f the transaction. Further, the formality
o f the document is important; the more formal the document, the greater will
be the court’s reluctance to admit oral evidence.
A written agreement, for example, is silent as to the time o f payment o f the
price. If there is any oral agreement regarding this, it may be proved [lllust. (f)]. A
sells B a horse and verbally warrants him sound. A gives B a paper in these words:
“Bought o f A a horse for Rs. 500”. B may prove the verbal warranty [lllust. (g)].59
58. A question based on this illustration. [UP. PCS Q)1992[

59. A question based on this illustration. [UP. PCS Q)1984\
Objective Questions
(Multiple Choice)
(a) According to Sec. 83, maps or plans purporting to be made with th£
authority of the Central/State Government are presumed to be
accurate. 1
(b) According to Sec. 83, maps or plans made by private persons are
presumed to be accurate.
(c) Presumption as to books, maps and charts under Sec. 87 could be
raised in respect of a private publisher.
W here a room is hired in a lodging on a fixed rent per month by a written agreement,
but the agreement d oes not make it clear whether the amount reserved was for
lodgin g only or included boarding also. If there was any oral agreement on the point
the same may be proved [Must. (h)].
In Bnj & shore v LakJjnn Tiwari (AIR 1978 A ll 374), the docum ent in question
was o n e by which the existence o f a deed was acknowledged and it was on a stamp
paper. T h e docum ent was silent about the interest payable and, therefore, oral
evidence was offered on the point. T he question was whether the docum ent was so
form al as to shut out oral evidence. T he court allowed the evidence. It observed:
W hen the docum ent is such that one may reasonably believe that the entire terms
and condition s agreed were sought to be put into the document, then oral evidence 1
should n ot be allowed. Generally speaking, mere acknowledgment o f debt, even
though stamped, cannot be deem ed to be such a formal docum ent as to incorporate
all the terms and conditions o f the borrowing.
(3) Condition precedent (Proviso 3, Sec. 92) — This exception means that where
there is a separate oral agreement that the terms o f a written contract are
not to take effect until a condition precedent has been fulfilled or a certain
event has happened, oral evidence is admissible to show that as the event
did n ot take place, there is no written agreement at all. This rule would
never apply to a case where the written contract has been perform ed or
acted upon for som e time.
I f a receipt for payment has been sent on an oral understanding that the
receipt was to apply only when payment was made, this fact may be proved [li/ust.
(i)]. Similarly, where the parties to a prom issory note payable on demand, orally
agreed that payment w ould not be demanded for five years, the court allowed the
oral agreement to be proved (.Naraindas v Papammal AIR 1967 SC 333). A and B
make a contract in writing to take effect upon the happening o f a certain contingency.
T h e writing is left with B, w ho sues A upon it. A may show the circumstances under
which it was delivered [Ii/nst. (j)].
(4) Redssion or modification (Proviso 4, Sec. 92) —Where after executing a document,
the parties orally agree to treat it as cancelled or to m odify som e o f its
terms, such distinct and subsequent oral agreement may be proved. However,
where the contract is one which is required by law to be in writing, or
where it has been registered lawfully, then p r o o f cannot be given o f any
oral agreement by which it was agreed either to rescind the contract o r to
m odify its terms.
192. Presumption a s to the genuineness of Electronic Agreements, Records,

etc. Is contained In:
(a) Sec. 85A.
(b) Sec. 85B.
(c) Sec. 85C.
193. Sec. 88 provides for:
(a) Presumption as to the telegraphic messages delivered to the addressee
corresponds with the message handed over to the post office.
(b) Presumption that the message was meant for the person whom it
is purported to be delivered.
(c) Presumption as to the sender of the message.
(d) Both (a) and (b).
Law of Evidence 117
(5) Usages or customs (Promo 5> S e c 92) - Under this exception, oral evidence is
adm issible to explain or supply terms in commercial transactions on the
presum ption that the parties did not intend to put into writing the whole
o f their agreement, but tacidy (impliedly) agreed that their contract was to
be interpreted o r regulated by established usages and customs, provided
they are n ot inconsistent with the terms o f such contract. Thus, oral evidence
may be offered that by the custom o f the trade the seller had to arrange
for w agon s (Bejoy Krishna v N.B. Sugar Mills Co. AIR 1949 Cal 490).
(6) Relation o f language to facts (Proviso 6t S ec 92) - Any fact may be proved
which show s in what manner the language o f a document is related to
existing facts. T his exception com es into play when there is latent ambiguity
in a docu m en t i.e. when there is a conflict between the plain meaning o f
the language used and the existing facts. In such cases, evidence o f the
“surrounding circumstances”may be admitted to ascertain the real intention
o f die parties. Thus, the conduct o f the parties can also be taken into
account s o as to find out what they might have meant by their words.
Where, for example, a person transfers the whole o f his property, but does
not describe o r state what his property is. In such cases the property to which the
docum ent relates can be proved by oral evidence. A makes a will o f his property
to his children. H e d oes not name them. Evidence may be given to prove as to who
are his children. Oral evidence is also receivable to throw light upon the nature o f
a document.
(7) Appointment o f a public officer (Exception 1, Sec. 91) - See above.
(8) W ills (Exception 2, Sec. 91) - See above.
(9) Extraneous facts (Explanation 3, Sec. 91) - See above.
AMBIGUOUS DOCUMENTS
W h e n a docum ent is ambiguous i.e. either its language does not show the clear sense
o f the docum ent or its application to facts creates doubts, how far oral evidence can
be allowed to clarify the language or to remove the defect? Sections 93-98 by down
the rules as to interpretation o f documents with the aid o f such ‘ extrinsic evidence’
(evidence from the outside).
O b jective Q u estio n s
(Multiple Choice)
194. Sec. 88A provides for:
(a) Presumption as to the electronic messages forwarded corresponds
with the message as fed in the computer.
(b) Presumption as to the sender of the message.
195. A document is said to be in the handwriting of ‘ A’ . That docum ent Is
produced from proper custody. If the document Is purporting or proved
to b e __years old, the court may presume that It Is In ‘A’
s handwriting.
(a) Thirty.
(b) Fifteen.
(c) Twenty.
(d) Twelve. [M.P. CJ. (Prelim.) 2000}
Ambiguities are o f two kinds: a/nbiguitas patens i.e. patent ambiguity (Secs. 93-94)
and a/nbiguitas latens i.e. latent ambiguity (Secs. 95-97). A patent ambiguity means a
defect which is apparent on the face o f the document. In such cases the principle is
that oral evidence is not allowed to remove the defect. A latent defect implies a defect
which is not apparent on the face o f the record, but is in the application o f the
language (used in the document) to the facts stated in it. The general principle is that
evidence can be given to remove such defects.60
SEC. 93: Exclusion of Evidence to Explain or Amend Ambiguous Document
“V vhcn the language used in a document is, on its face, ambiguous or defective,
evidence may not be given o f facts which would show its meaning or supply its defects.”
Illustrations-, (a) A agrees, in writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500.
Evidence cannot be given to show which price was to be given.
(b) A deed contains blanks. Evidence cannot be given o f facts which wo
show h ow they were meant to be filled.
T he reason for the exclusion o f evidence in such cases is that the document
being clearly or apparently defective, this fact must be or couldVe been known to
the parties and if they did not care to remove it then it is too late to remove it when
a dispute has arisen.
If the docum ent had mentioned no price at all, oral evidence o f the price could
be allowed under Sec. 92 (2nd proviso). While no extrinsic evidence can be given to
remove patent defect, the court may, if it is possible, fill up the gaps or blanks in a
docum ent with the help o f the other contents o f the document (e.g. where a lease
deed left blanks at the place o f date, but in another part it said that the first installment
o f rent would be paid on a certain date).
SEC. 94: Exclusion of Evidence against Application of Document to Existing Fact
“
VC^hen language used in a document is plain in itself^ and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to such facts”
60. Distinguish between patent and latent ambiguities. Give examples o f such
ambiguities. Can evidence be led to explain them?
[U.P. PCS (J) J986\ [R*)JS. 1994\
196. Mark the Incorrect statement In relation to Sec. 90:

(a) The presumption can be raised only with reference to original
documents and not to copies thereof.
(b) Sec. 90 applies to both testam entary and non-testam entary
documents.
(c) Presumption relates to the execution of the document and not to
the truth of its contents.
(d) A party who has attempted to prove the document by direct evidence
can afterwards rely on the presumption.
** n
Illustration. A sells to B, by deed “my estate at Rampur containing 100 bighas.”A has
an estate at Rampur containing 100 bighas. Evidence may not be given o f the fact
that the estate meant to be sold was one situated at a different place and o f a
different size.
SEC. 95: Evidence as to Document Unmeaning in Reference to Existing Facts
A c c o r d in g to S e c 95, when the language o f a document is plain but in its application

to existing facts it is meaningless, evidence can be given to show how it was
intended to apply to those facts.
Illustration. A sells to B, by deed, “ my house in Calcutta”. A had n o house in
Calcutta, but it appears that he had a house at Howrah, o f which B had been in
p ossession since the execution o f the deed. These facts may be proved to show that
the deed related to the house at Howrah.
SEC. 96: Evidence as to Application of Language which can Apply to One only
of Several Persons
A c c o r d in g to Sec. 96, when the language o f a document is clear and is intended

to apply to only on e thing or person, but in its application to the existing facts it
is difficult to say to which particular thing or person it was intended to apply,
evidence can be offered to clarify this matter.
Illustrations-, (a) A agrees to sell to B, for Rs. 1,000 “
my white horse”. A has two
white horses. Evidence may be given o f the facts which show which o f them was
meant.61
(b) A agrees to accompany B to Hyderabad. Evidence may be given o f facts
show ing whether Hyderabad in the Deccan or in the Sind was meant.
Where a pronote mentioned a date according to the local calendar and also
according to the international calendar, the evidence could be offered to show
which date was meant. In one case, a I 'akalatnama did not contain the name o f the
61. A question based on this illustration. [U.P. PCS (J) I98S/2000\
O bjective Quemtionm
(Multiple Choice)
197. The presumption under Sec. 90
(a) is a presumption of fact.
(b) is of discretionary nature; the court may refuse to draw it and
require the document to be proved in the ordinary manner.
(c) both (a) and (b) are correct.
(d) both (a) and (b) are incorrect.
198. The period of thirty years under Sec. 90 Is to be reckoned from
(a) the date on which the document is relied upon.
(b) the date on which the document is filed in the court.
(c) the date on which the document is tendered In evidence, when its
genuineness is in issue.
(d) none of the above.
pleader after the word “Mr.”in the printed fortn but bore the signature o f the party
as well as the pleader. Held that the ambiguity in the docum ent was not patent but
latent which could be cleared up by extrinsic evidence under Sec. 96.
SEC. 97: Evidence as to Application of Language to One of Two Sets of Facts
A c c o r d in g to Sec. 97, when the language o f a document applies partly to one set
o f facts and partly to another, but does not apply accurately to either, evidence can
be given to show to which facts the document was meant to apply.
Illustration. A agrees to sell to B “my land at X in the occupation o f Y.”A has land
at X, but not in the occupation o f Y, and he has land in the occupation o f Y, but
it is not at X. Evidence may be given o f facts showing which he meant to sell.
SEC. 98: Evidence as to Meaning of Illegible Characters, etc.
A c co r d in g to Sec. 98, evidence may be given to show the meaning o f illegible or

not com m only intelligible characters o f foreign, obsolete, technical, local and
provincial expression, o f abbreviations and o f words used in a peculiar sense.
Illustration. A, a sculptor, agrees to sell to B, “all my models”, A has both models and
modelling tools. Evidence may be given to show which he meant to selL Thus, oral evidence
is permissible for the purpose o f explaining artistic words and symbols used in a document
SEC. 99: Evidence by Non-Parties
“P e rso n s who are not parties to document, or their representative-in-interest, may

give evidence o f any fact tending to show a contemporaneous agreement varying the
terms o f the document”. It may be noted that the parties to a document or their
representative-in-interest cannot give evidence o f a contemporary agreement varying
the terms o f the document (Sec. ^2). But, Sec. 99 provides that a third party can give
evidence o f such an oral agreement if he is affected by it.
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 3
months* credit shall be given to A. This could not be shown as between A and B,
but it might be shown by C, if it affected his interests.
199. According to the Explanation to Sec. 90, “

proper custody”means
(a) the place where the document would normally be.
(b) was under the care of a person with whom it would naturally be.
(c) any custody which is proved to have had legitimate origin.
(d) all of the above.
200. Under Sec. 90A, the presumption as to Electronic Records Is for the
records:
(a) 2-year old.
(b) 3-year old.
(c) 5-year old.
(d) 10-year old.
L aw o f Evidence 121
SEC. 100: Saving o f Provisions of Indian Succession Act relating to Wills
“N otiling in this Chapter contained shall be taken to affect any o f the provisions
o f the Indian S u ccession Act (X o f 1865) as to the construction o f w ills'1
It may be n oted that Indian Succession Act, 1865 has been replaced by the
Act o f 1925.
PART III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII
OF THE BURDEN OF PROOF
[SECS. 101-114A]
E v e r y judicial proceedin g has for its purpose, to ascertain som e right or liability.
These rights and liabilities arise out o f facts which must be proved to the satisfaction
o f the court. Sections 101 to 111 lays down provisions regarding w ho is to lead
evidence and prove the case. These rules are called rules relating to ‘ Burden o f
Proof*.
SEC. 101: Burden of Proof
“W h oever desires any court to give judgment as to any legal right or liability
dependent o n the existence o f facts which he asserts, must prove that those facts
exist. W hen a person is bound to prove the existence o f any fact, it is said that the
burden o f p r o o f 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 com m itted the
crime. \
(b) A desires a court to give judgment that he is entitled to certain land in the
possession o f B, by reason o f facts which he asserts, and which B denies, to be true.
A must prove the existence o f those facts.
O b je c tiv e Q u e s tio n s
(Multiple Choice)
201. Where both oral as well as documentary evidence are admissible:
(a) The court may go by the evidence which seems to be more reliable.
(b) The documentary evidence should prevail over the oral evidence.
(d) Both (a) and (b) are incorrect.
202. The provisions a9 to exclusion of oral by documentary evidence under
Secs. 91 and 92 are based on the rule of.
' (a) Best evidence.
(b) Hearsay evidence.
122 Law Guide for Judicial S erv ice Examination
Similarly, where a landlord seeks eviction on the ground of bona fide personal
need, burden lies upon him to establish that he is genuinely in need of accommodation
(SJE B ernier v Velayudhan AIR 1998 SC 746).
SEC. 102: On Whom Burden of Proof Lies42
“1 he burden o f proof in a suit or proceeding lies on that person who would fail
if no evidence at all were given on either side.”
(a) A sues B for land of which B is in possession, and which, as A
Illustrations-,
asserts, was left to A by the will o f C, B’
s father. If no evidence were given on either
side, B would be entitled to retain his possession. Therefore, the burden o f proof
is on A.
(b) A sues B for money due on a bond. The execution o f the bond is
admitted, but B says that it was obtained by fraud, which A denies. If no evidence
were given on either side, A would succeed as the bond is not disputed and the
fraud is not proved. Therefore, the burden of proof is on B.
Similarly, in cases o f insanity, burden o f proving that fact lies on the person
who wants to rely on it. Where the issue was whether the document in question was
genuine or sham or bogus, the part)' who alleged that fact had to prove nothing till
the part)- relying upon the document established its genuineness in the first place
(Subhra M nkberjee v Bharat Coking C oa l Ltd. AIR 2000 SC 1203).
In an action for damages for negligence, if the defendant alleges contributory
negligence on the part o f the plaintiff, he must prove this fact, for his case would
fail if no evidence were given on either side. This principle also verifies the fact that
the burden o f proof lies upon the party who affirms a fact rather than upon one
who denies it. A person claiming the benefit of adoption must prove valid adoption.
Where the Government totally prohibits certain kinds o f trade, it would be for
it to show that the prohibition is in the nature o f reasonable restriction on trade
liberty. Ordinarily, however, burden of proof is on the party who challenges the
constitutional validity of an Act or Rule (Amrit Banaspati Co. v U O I AIR 1995 SC
1340).
62. On whom does the burden of proof lie in civil and criminal cases?
[UP. PCS (]) 1987\
203. Sec. 91:

(a) Applies to transactions which under the law must be in writing or
are reduced Into writing voluntarily.
(b) Prohibits admission of oral evidence to prove the contents of a
document, where the writing Is a fact In Issue.
(c) Applies to the terms 8nd not to the factum (or existence) of a
contract, and evidence In proof of a factum of a contract Is not
excluded.
SEC. 103: Burden o f Proof as to Particular Fact
■
‘
T h e burden o f p roof 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.”
Illustrations', (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) B wishes the court to believe that, at the time in question, he was elsewhere.
He must prove it.
Similarly, a person who signed a loan document admitted the loan and if he
says that he signed a blank paper, the burden would lie upon him to prove that fact
Meaning o f Burden o f P ro o f3
The burden o f p roof means the obligation to prove a fact. Every party has to
establish facts which go in his favour or against his opponent. The strict meaning
of the term ‘ burden o f proof’(onus probandt) is that if no evidence is given by the
party on whom the burden is passed the issue must be found against him. The
phrase “ hurden o f proof”has two distinct meanings:
(1) Barden o f p r o o f as a matter o f law and pleading - i.e. the burden o f proving
all the facts or establishing one’ s case. This burden rests upon the same
party, whether plaintiff or defendant, who substantially asserts the affirmative
o f the issue. It is fixed, at the beginning of the trial, by the statements of
pleadings, and it is settled as a question of law, remaining unchanged under
any circumstances whatever (Sec. 101).
(2) Barden o f p ro o f as a matter o f adducing evidence - either at the beginning or at
any particular stage o f the case. It is always unstable and may shift constantly
throughout the trial (Secs. 102-103). It lies at first on the party who would
be unsuccessful if no evidence at all was given on either side. The burden
must shift as soon as he produces evidence which prim a fade gives rise to
a presumption in his favour. It may again shift back on him, if the rebutting
evidence produced by his opponent preponderates. This being the position,
63. What do you mean by butden of proof? \U.P. PCS (J) 1987\
Objective Queation*
(Multiple Choice)
204. In which of the following cases, oral evidence cannot be given?
(a) A leases his house to B via a written lease. Later, A files a suit for
arrears of rent and for ejectment. A alleges that the tenancy was
from month to month, while B contends that It ran from year to
year.
(b) A sues B for the possession of a certain house alleging that it
belongs to him and B is a trespasser. B contends that the house
belongs to him and alleges that there was previous civil litigation
between the same parties for the same house and It was decided
that the house belongs to him.
(d) Only (a).
124 Law Guide for Judicial Sen/ice Examination
the question as to the onus o f proof is only a rule for deciding on w h om the
obligation rests o f goin g further if he wishes to win.
There is an essential distinction between “burden o f p r o o f ” and “onus o f
p r o o f ”. Burden o f p r o o f lies on the person w ho has to prove a fact and it never
shifts, but the onus o f p r o o f shifts. Such a shifting o f onus is a continuous process
in the evaluation o f evidence. Thus, in a criminal case, on ce the prosecution has
satisfied the court o f the fact that the accused comm itted the crime o f which he
is charged, the onus is shifted to the accused to show as to why he should not be
punished for it.
Onus probandi - T he term merely means that if a fact has to be proved, the person
in w h ose interest it is to prove it, should adduce som e evidence, however slight,
upon which a court could find the facts which he desires the court to find. T he onus
is always on a person w ho asserts a proposition or a fact which is not self-evident.
T he question o f onus probandi is certainly important in the early stage o f his case.
Thus, the onus o f proving negligence o f the Railway Com pany lies on the plaintiff
when he asserts that the injuries caused to him arc by reason o f the negligence o f
the Railway Company.
Im portance o f Burden o f Proof64

T he question o f onus o r burden o f p r o o f at the end o f the case, when both the
parties have adduced evidence is not o f very great importance and the court has
to co m e to a decision on a consideration o f all materials. When the entire evidence,
which is possible on a subject, has already com e before the court, from whatever
source it may be, it is well setded that the question o f burden o f p r o o f becom es
immaterial. Burden o f p r o o f as determining factor o f the whole case can only arise
if the court finds the evidence fo r and against so evenly balanced that it can com e
to n o conclusion. T hen the onus will determine the matter and the person on w hom
the burden o f p r o o f lies will lose.
It may be noted that a person cannot be relieved o f his burden o f proving
a fact even if the fact is such that it is very difficult o r rather im possible to prove.
Where a wife in a divorce pedtion alleged adultery on the part o f her husband, it
64. ‘Where the pardes have led evidence and relevant facts are before the court
and all that remains for decision is what inference is to be drawn from them,
the question o f burden o f p ro o f is not material’
. Comment.
[UP. P C S (J) 1983/1987\
205. The question Is whether A Is a High Court Judge. If he Is working as a

High Court Judge, his warrant of appointment:
(a) Need not be proved.
(b) Need to be proved.
(c) Oral evidence has to be given.
206. The fact of adoption of a child has to be proved by:
(a) By adoption-deed only.
(b) By oral evidence.
(c) By other relevant facts.
(d) Any of the above.
was held that burden was upon her to prove that fact and it was no excuse to say
that it was virtually im possible to procure evidence o f that fact (Pushpa Datta Mishra
v Archana M ishra AIR 1992 M.P. 260).
T h e part}' o n which the onus o f p ro o f lies must, in order to succeed, establish
a prim a facie case. H e cannot, on failure to do so, take advantage o f the weakness
o f his adversary’ s case. H e must succeed by the strength o f his own right and the
dearness o f his ow n proof. The general rule that a party' who desires to move the
court m ust prov e all facts necessary for that purpose is subject to two exceptions, (a)
he will n ot b e required to prove such facts as are specially within the knowledge o f
the other party (Sec 106); (b) he will not be required to prove so much o f his
allegations in respect o f which there is any presumption o f law (Secs. 107-113), or
in som e cases, o f fact (Sec. 114) in his favour.
SEC. 104: Burden of Proving Fact to be Proved to Make Evidence Admissible
“
T h e burden o f proving any fact necessary' to be proved in order to enable any
person to give evidence o f any other fact is on the person who wishes to give such
evidence.”
Illustrations (a) A wishes to prove a dying declaration by B. A must prove B ’
s death.
(b) A w ishes to prove, by secondary evidence, the contents o f a lost document.
A m ust prove that the docum ent has been lost.
SEC. 105: Burden of Proving Exception in Criminal Cases65
A c c o r d in g to Sec. 105, ‘
the burden o f p ro o f is upon the accused o f showing
existence, if any, o f circumstances which bring the offence charged within any o f
the special as well as any o f the general exceptions or proviso contained in I.P.C
or any law defining the offence. Further, the court shall presume the absence o f
such circumstances*.
65. Explain and examine the nature of burden an accused is expected to discharge
in a criminal case with illustrations. [D elhiJ.S.198C\
O b je c tiv e Qnemtioskm
(Multiple Choice)
207. If a contract Is contained In a bill of exchange, then to prove the
contract:
(a) The bill of exchange has to be proved.
(b) Oral evidence can be given.
208. In which of the following cases, oral evidence can be given?
(a) A contract for sale of goods mentions that the goods supplied on
earlier occasions have been paid for. Oral evidence offered to show
that no such payment was ever made.
(b) A gives B a receipt for money paid by B. Oral evidence is offered of
the payment.
(d) Only (a).
Illustrations
(a) A, accused o f murder, alleges that, by reason o f unsoundness o f mind, he
did not know the nature o f the act. The burden o f p r o o f is on A.
(b) A, accused o f murder, alleges that, by grave and sudden provocation, he
was deprived o f the pow er o f self-control. The burden o f p r o o f is on A.
(c) Sec. 325, IPC provides that whoever, except in the case provided for by Sec.
335, voluntarily causes grievous hurt, shall be punished. A is charged under
Sec. 325. The burden o f proving the circumstances bringing the case under
Sec. 335 lies on A.
The fundamental principle o f criminal jurisprudence is that an accused is
presumed to be innocent, and the burden lies on the prosecution to prove the guilt
o f the accused beyond reasonable doubt. This general burden never shifts, and it
always rests on the prosecution. Sec. 105 is an important qualification o f this general
rule.65a This section is an application, perhaps an extension o f the principle laid
dow n in Sec. 103.
In Dayabhai v State o f Gujarat (AIR 1964 SC 1563), the Court observed that
there is no conflict between the general burden, which is always on the prosecution
and which never shifts, and the special burden that rests on the accused under Sec.
105. In Rabindra Kumar Dey v State o f Orissa (1976) 4 SCC 233, it observed: “Sec.
105 does not at all indicate the nature and standard o f p r o o f required. The Evidence
Act does not contemplate that the accused should prove his case with the same
strictness and vigour as the prosecution; it is sufficient if he proves his case by the
standard o f ‘ preponderance o f probabilities’envisaged by Sec. 5 as a result o f
which he succeeds not because he proves his case to the guilt but because probability
o f the version given by him throws doubt on the prosecution case and, thus, the
prosecution cannot be said to have established the charge beyond reasonable doubt.”
The onus o f an accused person may well be com pared with the onus o f a
party in a civil case. Further, if the prosecution proves beyond reasonable doubt that
the accused has com m itted offence, the accused can rebut this presumption either
by leading evidence or by relying on the prosecution evidence itself. If upon evidence
adduced in the case either by prosecution or by defence a reasonable doubt is created
in the mind o f the court, the benefit o f it should g o to the accused.
65a. In a criminal trial the burden o f proof is always on the prosecution. H as this
rule any exceptions? [Raj.J.S. 1991\
209. Sec. 92:

(a) Prohibits admission of oral evidence, in respect of a proved written
document, for the purpose of contradicting, varying, adding or
subtracting from the terms of the document.
(b) Precludes only the parties to the document and their representatives-
in-interest from giving oral evidence; other parties (or strangers) are
left free to give such evidence.
(c) Evidence can be given of any oral agreement which does not
contradict, vary, add or subtract from the terms of the document.
It may b e n oted that in certain “socio-econom ic” and “environm ental”

legislations, the burden lies upon the accused. For example, under the Prevention
o f C orruption Act, 1988, the burden is on the accused to account for his possessions.
Where the presu m ption o f innocence is reversed by a statutory provision so that
the burden is o n the accused to show (e.g. that he was in innocent possession o f
an assault rifle), held that such burden should not be as heavy as that o f the
prosecution but even s o should be o f greater probability [Sanjery D ull v Stale (1994)
5 S C C 410].
SEC. 106: B u rd en o f P rov in g Fact Especially within K now ledge
“Vf^hen any fact is specially within the knowledge o f any person, the burden o f
proving that fact is u pon him.”
Illustrations-, (a) W hen a person does an act with some intention other than that which
the character and circumstances o f the act suggest, the burden o f proving that intention
is upon him.
(b) A is charged with travelling on a railway without a ticket. T h e burden o f
proving that he had a ticket is on him.
Sec. 106 applies only to the parties to a suit or proceeding. Sec. 106 is an
exception to Sec. 101. It is designed to meet certain exceptional cases in which it
would be im possible or very difficult for the prosecution to establish facts which
are especially in the knowledge o f the accused.
I f a person is found in possession o f a stolen property immediately after the
theft and he claims that there was no intention to receive stolen property, he must
prove that fact, for that fact is especially within his knowledge. Similarly, in the case
o f plea o f alibi, since only the person raising the plea knows that where he was at
the time, burden lies o n him to prove that fact. This section also co m e into play
in the cases o f custodial or dowry death, and, negligence o f carriers o f goods. T h e
principle stated in the section is an application o f the principle o f res ipsa loquitur.
SEC. 107: B urden o f Proving Death
“W h e n the question is whether a person is alive or dead, and it is show n that he
Objective Question*
(Multiple Choice)
210. A borrows Rs. 200 from B and executes a pronote In which the Interest
rate Is given 1 per cent. B flies suit for recovery of the principal and
Interest a t the rate of 1 per cent. The pronote Is filed and proved In the
court. A w ants to lead evidence to the effect that the Interest settled
between th e parties was Va percent.
(a) T h is evidence cannot be allowed.
(b) T his evidence can be allowed.
(c) T his evidence may be allowed.
12 8 Law Guide for Judicial Service Examination
was alive within thirty years, the burden o f proving that he is dead is on the person
w h o affirms it.”66
SEC. 108: Burden of Proving that Person is Alive who is Unheard of for 7Years
S ec. 108, on the other hand, provides that when it is proved that a person has not
* *i
been heard o f for 7 years by those w ho would naturally have heard o f him if he
had been alive, the burden o f proving that he is living is shifted to the person who
affirms it.
There is a general presumption o f continuity o f things. Sec. 107 provides that
when a person is shown to have existed within the last 30 years, the presumption
is that he is still alive and if anybody alleges that he is dead, he must prove that fact.
This presum ption is, however, not a very strong one. A ccording to Sec. 108, if a
person is not heard o f for 7 years, the presumption is that he has died, and, if
anybody alleges that he is still alive, he must prove that fact. Thus, seven years’
absence creates rebuttable presumption o f death.
There is a simple presumption o f death and not o f the time o f death, for
which an independent evidence is needed. The onus o f proving that death took
place at a particular time within the period o f 7 years lies on the person w ho claims
a right for the establishment o f which that fact is essential. In Darshan Singh v Gujjar
Singh (2002) 1 Supreme 36, the plaintiff claimed succession to the estate o f a person
w ho had not been heard o f for 7 years. The High Court held that the date o f the
suit should be taken to be the date o f death. The Supreme Court did not approve
o f this view.
In Muhammad Sharif v Bande AH (ILR (1911) 34 All 36), one M mortgaged
certain property to the defendant in 1890. Thereafter he disappeared and\nothing was i
heard o f him again. His heirs filed a suit for the redemption o f mortgage 18 years after
M’ s absence. They contended that as M disappeared some 18 years ago, he must be
presumed to have been dead for the last 11 years. It was held that presumption in Sec.
108 does not g o further than the mere fact o f death. There is no presumption that
he died in the first 7 years or in the last 7 years.
66. When the question is whether a person is alive or dead, and it is shown that
he was alive within thirty years, on whom the burden lies o f proving that the
man is dead? [Raj.J.S. 1991\
211. In which of the following cases, oral evidence can be given regarding
a document:
(a) Of any fact which would invalidate the document in question.
(b) Matters on which document is silent.
(c) Usages or customs.
SEC. 109: Burden of Proof as to Relationship of Certain Kind
R e c o r d in g to Sec. 109, where certain persons are shown to have acted as partners,
or as landlord and tenant, or as principal and agent, the law presumes them to be
so related and the burden o f proving that they were never so related or have ceased
to be so shall lie upon the party who says so. Thus, there is a presumption against
change o f status quo, namely that any existing state o f things will continue as it is.
SEC. 110: Burden of Proof as to Ownership
\ ^ h e n a person is in possession o f any thing as owner, the burden o f proving that

he is not ow ner is on the person w ho affirms that he is not the owner. This section
gives effect to the principle that possession is the prima jade evidence o f a com plete
title. T he p o ssessio n contemplated is the actual physical possession. Further, S e c
110 is not limited to immoveable property and applies to moveable property as well.
SEC. I l l : Proof of Good Faith
Vf^hen a person stands towards another in a position o f active confidence, the

burden o f proving the g o o d faith o f any transaction between them lies on the
person in active confidence.
Illustrations-, (a) T he g o o d faith o f a sale by a client to attorney is in a suit brought
by the client. T h e burden o f proving the good faith o f the transaction is on the
attorney.
(b) The g o o d faith o f a sale by a son just come o f age to a father is in question
in a suit brought by the son. The burden o f proving the good faith o f the transaction
is on the father.
Relations o f trust and confidence (i.e. fiduciary relation) include those o f parent
and child, lawyer and client, spiritual guru and his follower, principal and agent, partner
and firm, d octor and patient, persons in authority and those over whom he exercises
authority. In all such cases, the law imposes the duty o f g ood faith upon the person
occupying the position o f trust and confidence, and he will have to prove that he
O b je c tiv e Q acw tio n *
(Multiple Choice)
212. In which o f the following cases, oral evidence can be given:

(a) A enters into a written contract with B to work certain mines o f B,
upon certain terms. A was induced to do so by a misrepresentation^
of B's as to their value.
(b) A se lls B a horse and verbally warrants him sound. A gives B a
pa p e r in these words: "Bought of A a horse for Rs. 500".
(c) 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 i t
acted in g o o d faith before he can enforce the transaction against the other party. A
contract with a purdunasbin woman attracts Sec. 111.
PRESUMPTIONS67
A court can take into consideration certain facts even without calling for p r o o f o f
them. W hen the court presumes the existence o f a fact that is known as a ‘
presumption*
(‘
a thing taken for granted*). A presumption is an inference o f fact drawn from other
known or proved facts. It means a rule o f law that courts and judges shall draw a
particular inference from a particular fact, or from a particular evidence, unless and
until the truth o f such inference is disproved.
T he effect o f a presum ption is that a party in w hose favour a fact is presumed
is relieved o f the initial burden o f p r o o f (as a presumption furnishes prim a jade
evidence o f the matter to which it relates) until the opposite party introduces
evidence to rebut the presumption. ‘ Presumptions hold the field in the absence o f
evidence but when facts appear, presum ptions g o back.*
Presum ptions arc the result o f human experience and reason as applied to the
course o f nature and the ordinary flow o f life. I f a man and wom an are found
alone in suspicious circumstances the law presumes that they were not there to say
their prayers and the divorce laws would take this as evidence o f adultery. Similarly,
from the fact that a letter has been posted, the natural inference (presumption)
w ould be that it reached the addressee.
Presumptions are aids to the reasoning and argumentation, which assume the
truth o f certain matters for the purpose o f som e given inquiry. They may be grounded
o n general experience, or merely o n policy and convenience. For example, the
67. “Presumptions may be looked on as the bats o f the law, flitting in twilight but
disappearing in the sunshine o f actual facts.” Explain while discussin g in
brief the different kinds o f presumptions by the Indian Evidence Act.
[D elhi J.S. 1990[
Distinguish between rebuttable and irrebuttable presumptions. Illustrate.
[UP. P C S (J) 1986\
What do you understand by conclusive and rebuttable presumption? Explain.
[U P P C S (J) *999l
213. Under Sec. 92, oral evidence Is permissible:

(a) Where the document does not record all the term s o f the contract.
(b) Where the contract has been written voluntarily and not required by
laws to be so written.
(d) Only (a).
214. A hires lodgings of B and gives a card on which Is written “Rooms, Rs.
200 a month". A tenders oral evidence to prove a verbal agreem ent
that these terms were to Include partial board. The evidence Is:
(a) Inadmissible under Sec. 91.
(b) Inadmissible under Sec. 92.
(c) Admissible.
id) Irrelevant. [M.P. C.J. (Prelim.) 1996)
resum ption in Sec. 112 o f the legitimacy o f a child bom to married parents is a
{natter o f policy and expediency and also o f convenience. O n whatever basis they
rest, they operate in advance o f argument o f evidence.
\
Kinds o f Presumptions
P r e s u m p tio n s are o f three kinds: (a) Presumption o f fact (rebuttable) (b)

presumption o f law (rebuttable and irrebuttable), and (c) Mixed presumptions or
presumption o f law and fact. Mixed presumptions are chiefly confined to the
English law.
(a) Presum ption o f Fact
Way Presume*69
Whenever it is provided by this Act that “the court may presume a fact”, it may
either regard such fact as proved, unless and until it is disproved, or may call for
p r o o f o f it (Sec. 4).
Presum ptions o f fact, or natural presumptions, are inferences which the mind
naturally and logically draws from given facts, irrespective o f their legal effect. The
sources being the co m m o n course o f natural events, the com m on course o f human
conduct and the co m m o n course o f public and private business. For example,
where a d o cto r gave an injection for determination o f pregnancy which resulted in
miscarriage and death o f the woman, it was held that the doctor could be presumed
to know the side effects o f the medicine.
A presum ption o f this kind is wholly in the discretion o f the court. T he court
may or may not presume the existence o f the fact in question. For example, where
a person is show n to be in possession o f stolen goods soon after the theft, the
court may presum e that he was the thief himself or had knowledge o f the fact that
the property in question was stolen. All the presumptions stated in Secs. 86-88, 90
and Sec. 114 are o f this kind.
68. Explain the phrase ‘

the Court may presume* and illustrate. [Raj.J.S. 1999[
O b je c tiv e QummlMamm
(Multiple Choice)
(a) Sec. 91 applies to both unilateral and bilateral documents.
(b) Sec. 92 applies onlv to bilateral documents.
(c) Both (a) and (b) are incorrect.
(d) Both (a) and (b) are correct.
216. Extrinsic or oral eviden ce can be given In c a s e s of a m b igu ou s
documents. But such evidence Is allowed only when the defect In the
document Is:
(a) Latent.
(b) Patent.
(d) Negligible.
Presum ptions o f fact are also rebuttable, as their evidentiary effect can be
negatived by a contrary proof. W hen the court refuses to exercise its discretion,
then it may call upon the parties to prove the fact by leading evidence T he court
may even require further p r o o f o f the fact presumed.
(b) Presumption of Law

'Shall Presume'69
Wherever it is laid dow n that “the court j ball presume a fact”, it means that the
court must regard such fact as proved, unless and until it is disproved {Sec. 4). There
are two kinds o f presum ptions o f law: rebuttable (‘
shall presum e’ ) and irrebuttable
(‘
conclusive proof).
Presum ptions o f law are arbitrary inferences which the law expressly directs
the judge to draw from the particular facts. T hese presumptions are expressed in
the form o f artificial rules. T hese are always obligatory i.e. the court has n o option
in the matter, and is bound to take the fact as proved, unless the party interested
in disproving it produces sufficient evidence for that purpose. Thus, if the opposite
party is successful in disproving it, the court shall not presume the fact.
Examples o f such presum ptions include Secs. 79-85, 89, Sec. 111A. Thus, the
court shall presum e the accuracy o f maps/plans made by a Governm ent authority.
All the presum ptions stated in Sec. 118 o f the Negotiable Instruments A ct are
presum ptions o f law.
‘
Conclusive P r o o f 70
“When one fact is declared by this Act to be conclusive p ro o f o f another, the court
shall, on p r o o f o f the one fact, regard the other as proved, and shall not allow evidence
to be given for the purpose o f disproving it”{Sec. 4). The court has no discretion at all.
It cannot call upon a party to prove that fact nor can it allow the opposite party to
adduce evidence to disprove the fact.
By declaring certain facts to be conclusive p r o o f o f another, an artificial
probative effect is given by the law to certain facts and n o evidence is allowed to
69. Explain the phrase ‘

the Court shall presum e’and illustrate. [Raj.J.S. 1999[
70. What d o you mean by ‘
Conclusive P roof’
? [Raj.J.S. 1994\
217. In which of the following cases, oral evidence can be given to cure the
defect In the document?
(a) A deed contains blanks. Evidence given of facts to show how they
were meant to be filled.
(b) A agrees to sell to B, for Rs. 1,000 "my white horse". A has two white
horses. Evidence given of the facts to show which of them was meant.
(d) Only (b).
218. A agrees, In writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500. To
show which price was to be given
(a) oral evidence can be given.
(b) antecedents of the parties are to be seen.
(c) oral evidence cannot be given.
(d) none of the above. [M.P. C.J. (Prelim ) 1999]
be prod u ced with a view to combating that effect These cases generally occu r when
it is against the policy o f Governm ent or the interest o f society that a matter may
be further o p e n to dispute. The differences between rebuttable and irrebuttable
(conclusive) presum ption are:
(i) A rebuttable presumption can be overthrown by a contrary evidence, while
irrebuttable cannot. A conclusive proof is Juris et de jure Le. incapable o f
rebuttal.
(ii) In case o f rebuttable presumption, the court regards such fact as proved
unless and until it is disproved. The court, here, dispenses with the
necessity o f formal proof. In conclusive proof, the court shall on p r o o f o f
on e fact regard the other as proved (when one fact is declared to be
conclusive p r o o f o f another) and shall not allow evidence to disprove it
(iii) Exam ples o f rebuttable presumption - A person not heard o f for 7 years
is dead, o r that a bill o f exchange has been given for value. S e c 105
(burden o f proving that case o f accused comes within exceptions). Secs.
107-108 (presumption o f survivorship) and Sec. 114-A (presumption as
to absence o f consent in certain prosecutions for rape).
Examples o f conclusive presumption - A child under a certain age is incapable o f
comm itting any crim e (Sec. 82, IPQ . Sec 41 (final judgment in probate, matrimonial,
admiralty o r insolvency jurisdictions are conclusive in certain respects). S e c 112
(conclusive p r o o f o f legitimacy). Sec. 113 (valid cession o f territory) and S ecs 115-
117 (Estoppel) o f the Evidence A ct
Conclusive Proof v Conclusive Evidence

The ob ject o f adducing evidence is to prove a fact. Since an evidence means and
includes all statements which the court permits, when the law says that a particular
kind o f evidence w ould be conclusive as to existence o f a particular fact, it implies
that fact can be proved either by that or some other evidence which the court
permits. W here such other evidence is adduced, the court could consider whether
upon that evidence, the fact exists or not.
O n the oth er hand, when evidence that is made ‘ conclusive’is adduced, the
court has n o o p tio n but to hold that fact exists. Otherwise, it would be meaningless
to call a particular evidence as ‘ conclusive’ .A ‘ conclusive evidence' shuts out any other
Objectivee gnertfom
(Multiple Choice)
219. According to Sec. 98, evidence may be given to show the m eaning of:
(a) Not commonly intelligible characters.
(b) Foreign, obsolete or technical words.
(c) Words used in a peculiar sense.
220. S ection s 101 to t n lays down provisions regarding who Is to lead
evidence and prove the case. These rules are called rules relating to;
(a) Presumptions.
(b) Burden of proof.
(c) Estoppel.
evidence which would detract from the conclusiveness o f that evidence. In substance,
there is no difference between ‘ conclusive evidence’and ‘ conclusive p r o o f’
. In each,
the effect is same i.e. making a fact non-justiciable (irrebuttable). The aim o f both
being to give finality to the establishment o f existence o f a fact from the p r o o f o f
another \Som aan ti v State o f Punjab AIR 1963 SC 151).
Under Sec. 6 o f the Land Acquisition Act, 1894, the State’s declaration o f land
being required for a public purpose, is a ‘ conclusive presumption’ . A party cannot
successfully argue that certain fact recognized by the statute as conclusive evidence
are different from conclusive proof.
'Presumption' and 'Proof
“P ro o f”is that which leads to the conclusion as to the truth or falsity o f alleged facts
which are the subject o f inquiry. Proof may be effected by evidence, presumption,
admissions or judicial notice. Thus, presumptions are the means and proof is the end
o f judicial inquiry. Presumption is one o f the means o f effecting proof.
A presumption is not in itself evidence but only makes a prim a facie case for party
in whose favour it exists. It indicates the person on whom the burden o f proof lies.
When presumption is conclusive, it obviates the production o f any other evidence. A
party in whose favour a fact is presumed is relieved o f the initial burden o f proof.
‘Presumption and onus o f p roof are two sides o f the same ;oin ’ . Because the burden
o f disproving a fact lies on the one party, the court must presume the fact in favour
o f the other. A rule o f burden o f p roof is nothing but a rule o f presumption.
Presumptions Relating to Documents (Secs. 79-90)

See above.
Presumption of Innocence and Sec. 105

See above.
Presumption of Survivorship (Secs. 107-108)

See above.
SEC. 111-A: Presumption as to Offences in Disturbed Areas

U n d e r this section (introduced in 1984), if a person is accused o f having committed
any offence under Secs. 121, 121-A, 122 or 123 o f the Indian Penal Code, or o f
221. The burden of proof means:

(a) The burden of proving all the facts or establishing one's case.
(b) The burden as to introduction of evidence.
(c) That if no evidence is given by the party on whom the burden is
passed the issue must be found against him.
222. Burden of proof has been defined In:
(a) Sec. 100.
(b) Sec. 101.
(c) Sec. 105.
(d) Sec. 104.
r
Law of Evidence 135
a criminal conspiracy or attempt to commit, or abetment under Secs.122-123, in any

declared ‘disturbed area’, etc. and it is shown that such person had been in that area
when firearms or explosives were used to attack or resist armed forces, etc, it shall
be presumed, unless the contrary is shown, that such a person had committed the
offence.
SEC. I 12: Presum ption of Legitimacy (Birth during Marriage Conclusive Proof
of Legitimacy)
A cco rd in g to Sec. 112, the fact that any person was born:
(1) during the continuance o f a valid marriage between his mother and any
man, or
(2) within 280 days after its dissolution (the mother remaining unmarried), is
conclusive p r o o f that he is the legitimate son o f that man, unless it can be
shown that the parties to the marriage had no access to each other at any
time when he could have been begotten.71
Maternity is a fact and paternity is a matter o f inferences or surmises. Sec.
112, which applies only to a m arried couple, lays down the rule for the p r o o f o f the
paternity o f an individual. “Sem per praesu m iterpro kgitim atione puerorw rt' (it is always
to be presumed that children are legitimate —legal maxim). S ec 112 is an instance
o f law furthering social objectives by leaning against the tendency to bastardize the
child. The basis o f the rule seems to be a notice that it is undesirable to enquire into
the paternity o f a child whose parents have access to each other.
The presumption o f legitimacy is a presumption o f law, not a mere inference
to be drawn by a process o f logical reasoning from the fact o f marriage and birth
or conception during wedlock. This presumption can only be displaced by a strong
preponderance o f evidence and not by a mere balance o f probabilities.
71. A and B are married on 1-1-1990. B gives birth to C on 1-5-1990. Whether C will
be presumed to be legitimate son of A and B in these circumstances?
[Raj.J.S. 199I\
[Ans. Yes.)
Objective Q uestion*
(Multiple Choice)
223. A prosecutes B for theft, and wishes the court to believe that B admitted
the theft to C. The burden of proving the admission Is on:
(a) A.
(b) B.
(c) C.
(d) A or B or C.
224. X sues Y for money due on a bond. The execution of the bond Is admitted,
but Y says that It was obtained by fraud, which X denies. The burden
of proof Is on:
(a) Y.
(b) X.
(c) The State.
(d) X and Y both. [M.R C.J. (Prelim.) 1996]
T h e follow ing important points, regarding Sec. 112, may be noted:

(i) This section refers to the point o f time o f the birth o f the child as the
deciding factor and not to the time o f conception o f that child; the latter
point o f time has to be considered only to see whether the husband had
n o access to the mother.
(ii) There is a presumption when a child is conceived and born during
marriage that sexual intercourse took place at a time when according to
the laws o f nature, the husband could be the father o f child.
(iii) T he presum ption applies with equal force even where the child is born
within a few days or even hours after the marriage. Further, it is
immaterial that the m other was married or not at the time o f the
conception.
Sethu v Palani fLLR (1925) 49 Mad 523] - A Hindu woman was married to S in Oct.
1903. She was divorced by him in June 1904. She married another man, T, in July
1904 and gave birth to a son in Sept., the same year. Thus, the conception was
form ed when she was the wife o f on e and birth took place when she was the wife
o f another man.
T he child was held to be the legitimate child o f second husband, the court relying
upon the fact that n o p r o o f was available o f the fact that T could not have had access
to her even when she was the wife o f S. If a man marries a woman not knowing that
she is pregnant, he could, by showing that he could not have had access to the woman
when the pregnancy comm enced, make out that the child is not his. But if a person
knowing that a woman is pregnant marries her, the child o f woman though born
immediately after the marriage becom es in law his child unless the man proves that
he had n o access to the woman when he could have been begotten.
(iv) Sec. 112 appears to provide a simple presump don o f legitimacy which
applies to children born during a marriage whether conceived before or
after the marriage took place, and to children conceived during the
marriage, whether born before the marriage is dissolved by the husband’
s
death or otherwise.
(v) Under Sec. 112, the only way to rebut the presum ption is the p r o o f o f
“non-access”between the parties to marriage. T he phrase “non-access”
implies non-existence o f opportunity for physical intercourse. As the
presumption o f legitimacy is highly favoured by law it is necessary that
p r o o f o f non-access must be clear and satisfactory.
225. A Is charged with traveling on a railway without a ticket. The burden

of proving that A had a ticket Is on:
(a) Ticket-checker.
(b) Railway.
(c) A.
(d) Prosecution. [M.P.: C.J. (Prelim.) 1999)
(a) Burden of proof under Sec. 101 never shifts.
(b) Burden of introducing evidence under Sec. 102 constantly shifts.
(c) The burden of proof and the onus o f proof have the same meaning.
(d) Burden of proof never shifts, but the onus o f proof shifts.
T h e p resu m p tion o f legitimacy will not be allowed to be rebutted by the

o r o o f that w ife had adulterous relationship. P roof per se that the woman was living
vlith the param our is n o evidence o f non-access by the husband. It may be noted
that i f sexual in tercou rse is proved the law will not permit an enquiry whether the
husband o r so m e o th e r man was m ore likely to be the father o f the child, the
p resu m p tion o f legitim acy then becom es irrebuttable one.
In Chilttkuri Vetikateswarlu v Chilukuri Venkatanarayana (AIR 1954 SC 176), the
husband tried to sh o w that he had provided separate residence to his secon d wife
and thereafter never visited her. The wife alleged visits by the husband and the
husband bein g n o t able to prove his allegation, a child b o m by the second wife was
presumed to be a legitimate child.
E ven the illness o f the husband may not be sufficient to displace the
presum ption o f access, unless the illness is totally disabling; the physical incapacity
to procreate a m ou n ts to non-access within the meaning o f this section. In
Chandramathi v Fa^hetti Balan (AIR 1982 Ker 68), a married woman became pregnant
even after her husband had undergone vasectomy operation. Held that vasectomy
was not sufficient by itself to over throw the presumption o f legitimacy. N o p r o o f
was offered to sh ow whether the operation was successful. N or there was any
evidence regarding the fact that parties had no access before the conception.
(vi) Biom edical tests - In som e recent cases it has been held that only way to
rebut presumption under Sec. 112 is by proving non-access, and biomedical
evidences like blood test, D N A test, etc. cannot be allowed \Gautam Kundu
v State o f W.B. A IR 1993 SC 2295; Tushar Roy v Sukla Roy, 1993 Cr LJ
1659 (Cal)]. Where, however, such evidences are available, it can be used
as a circumstantial evidence.
(vii) It may be noted that an admission by the wife that the child is illegitimate
is admissible in evidence.
SEC. 113: Proof of Cession of Territory
A G overnm ent N otification that any portion o f British Territory has before the
com m encem ent o f the Governm ent o f India Act, 1935 been ceded to any Native
State, Prince or Ruler, shall be conclusive proof that a valid cession o f such territory
took place at the date m entioned in such notification.
O b je c tiv e Q u e s tia n a
(Multiple Choice)
227. A wishes to prove a dying declaration by B. The burden of proving B’
s
death is on:
(a) A.
(b) Prosecution.
(c) B's death will be presumed.
228. A w ishes t o prove, by secondary evidence, the contents of a lo st
document. W ho will have to prove that the document has been lost?
(a) A.
(b) T h a t person who had in his possession the original document.
(c) The opposite party.
(d) Depends on the court’s discretion.
SEC. I 13-A: Presumption as to Abetment of Suicide by a Married W oman72
S ec. 113-A deals with the question o f abetment o f woman’

s suicide by her husband
or any o f his relatives. In such cases, a presumption arises (the court may presume)
that such a suicide has been abetted by the husband or his relatives, if the following
two conditions are satisfied:
(i) T he suicide was com m itted within a period o f 7 years from the date
o f her marriage.
(ii) H er husband, or his relatives, has subjected her to ‘
cruelty’(as the term
is defined in Sec. 498-A, IPC).
Such a presumption must, however, be drawn by the court after having regard
to all the other circumstances o f the case. O n ce these things are proved, abetment
o f suicide is presumed to exist. It will then be for the husband or his relatives to
prove that the suicide in question was the woman’ s personal choice. I f it is not a
case o f suicide, but o f accidental death, the presumption o f abetment does not
arise (Surest) v State o f Maharashtra, 1992 CrLJ 2455).
Sec. 113-A (inserted by 1983 Criminal Law Second Amendment Act) does not
create any new offence, or any substantive right, but merely a matter o f procedure
and as such is retrospective in operation. In a dowry death case, presumption that
suicide was attracted by the accused-husband o f the deceased could be drawn only
when prosecution has discharged the initial onus o f proving cruelty. In State o f W.B.
v O rilal Jaiswal (AIR 1994 SC 1418), held that the requirement o f p r o o f beyond
reasonable dou bt in dow ry death cases does not stand altered even after the
introduction o f Sec. 498, IP C and Sec. 113-A o f the Evidence Act.
Where the wife’ s suicide took place m ore titan a month-and-a-half after the
demand for dowry was met, and matters were settled, it was held that it would be
unsafe, as well as unjust, to invoke the presumption o f guilt under Sec. 113-A (Samir
v State o f IVest Bengal, 1993 CrLJ 134). However, in A rjun Kttshwaha v State o f M.P.,
1999 CrLJ 2538, where the relations with the husband were strained because o f dowry
demands; the wife poured kerosene on herself and the husband went on with his
provocative language, it was held that this amounted to instigation o f suicide.
72. What is the law o f presumptions applicable in prosecution for the offences of
‘abetment to comm it suicide by a married woman’ ,‘dowry death’and ‘ rape’?
To what extent have these presumptions affected the traditional law o f burden
o f proof? [Raj.J.S. 1999[
229. Burden of proof Is lightened by:

(a) Presumptions.
(b) Admissions.
(c) Estoppels.
230. In an Insurance claim, the burden of proving the fact of Insurance
amount Is on:
(a) Claimant.
(b) Insurance company.
(d) The court will decide.
SBC. •13'B: PresumPt,on “ to Dowry Death73
U n d e r Sec. 113-B, when the question is whether a person has com m itted the
‘dowry death’(as the term is defined in S ec 304-B, IP Q o f a woman, and it is
shown that, so o n before her death, she had been subjected by that person to cruelty
or harassment in connection with any demand for dowry, the court shall presum e
that such a person had caused the dowry death. The burden is on the accused to
rebut this presum ption ’.
In a dow ry death case, it is a condition precedent to the raising o f presum ption
that the deceased married woman was subjected to cruelty or harassment for and
in connection with the demand for dowry soon before her death. The prosecution
is required to give evidence o f these circumstances so that the court draws a
presumption o f dow ry death.
Where the death was by strangulation and evidence was available to show that
dowry was being demanded and the accused husband was also subjecting his deceased
wife to cruelty, it was held that the presumption under the section applied with full
force making the accused liable to be convicted under Sec. 304-B, IPC (Hem Cband
v State o f Haryana A IR 1995 SC 120). In a case, presumption under the section was
drawn from the drinking, late-coming and beating habits o f the husband IP. Bikshapathi
v State o f A.P., 1989 CrLJ ( N O Q 52 (A.P.)].
Where the prosecution was able to prove that the deceased woman was last
seen alive in the com pany o f the accused, she being at the m oment in his special
care and custody, that there was a strong motive for the crime and that the death
in question was unnatural and homicidal, it was held that by virtue o f Sec. 106 o f
the Evidence A ct the burden o f showing the circumstances o f the death was on
the accused as th ose circumstances must be specially known to him only [Amarjit
Singh v State o f Punjab, 1989 CrLJ (N O Q 13 P&H],
73. A is tried for the offence o f “Dowry death”under Sec. 304-B, IPC. Advise the
prosecution as to what evidence is required to be produced so as to raise the
presum ption under Sec. 113-B of the Evidence Act. [U.P. PCS (J) 1997\
(Multiple Choice)
231. The burden of proving a crime Is on:
(a) The prosecution.
(b) The accused.
(c) Both the parties.
232. According to Sec. 105, In criminal trials, the onus Is on the accused to
prove that his case falls In:
(a) Any of the general exceptions in IPC.
(b) Any of the special exceptions in IPC.
(c) Any of the proviso to the provision under which the accused is
charged.
SEC. I 14: Presumption of Existence of Certain Facts
“T h e court may presume the existence o f any fact which it thinks likely to have
happened, regard being had to the com m on course o f (a) natural events, (b) human
conduct, and (c) public and private business, in their relation to the facts o f the
particular case”.
Sec. 114 is based on the maxim that ‘ all acts/ things are presum ed to have
been don e correcdy and regularly’ . Sec. 114 authorizes the court to make certain
presum ptions o f facts, without the help o f any artificial rules o f law. Such
presum ptions o f facts are always rebuttable (i.e. can be disproved by a contrary
fact). L ookin g at so many factors if the court diinks diat a particular fact should
exist, it presum es the existence o f the fact. There is the presum ption that every
person is presum ed to intend the natural consequences o f his act that every person
charged with a crime is innocent, etc.
Illustrations-. T he court may presum e -
(a) That a man in possession o f stolen g o o d s after the theft is either the thief
o r has received the g o o d s knowing them to be stolen, unless he can account
for his possession (if he cannot account for possession specifically but is
continually receiving such g o o d s in the course o f his business, the court
shall have regard to such fact).
(b) That an accom plice is unworthy o f credit, unless he is corroborated in
material particulars (if A, a person o f the highest character, is tried for a
murder, and, B, a person o f equally g o o d character, admits and explains the
co m m o n carelessness o f A and himself, the court shall have regard to such
fact). Further, if a crime is com m itted by several persons; A, B and C three
o f the criminals, kept apart from each other, each gives an account o f the
crim e implicating D and the account corroborate each other in such a
manner as to render previous concert highly improbable, the court shall
have regard to such fact).
(c) That a bill o f exchange, accepted or endorsed, was accepted or endorsed for
g o o d consideration (if the drawer o f a bill is a man o f business and the
acceptor is a young man completely under the drawer’ s influence, the court
shall have regard to such fact).
(d) That a thing or state o f things which has been shown to be in existence within
a period shorter than that within which such thing or state o f things usually

(a) An accused is presumed to be innocent, and the burden lies on the
prosecution to prove the guilt of the accused beyond reasonable doubt
(b) It is sufficient if the accused proves his case by the standard of
preponderance of probabilities or prlma facie.
(c) The onus of an accused person may well be compared with the
onus of a party in a civil case.
cease to exist, is still in existence (if it is proved that a river ran in certain course
5 years ago but it is known that there have been floods since that time which
might change its course, the court shall have regard to such fact).
That judicial and official acts have been regularly perform ed (if the judicial
(e)
act was perform ed under exceptional circumstances, the court shall have
regard to such fact).
That the c o m m o n course o f business has been follow ed in particular
(0
cases (if the usual course was interrupted by disturbances, the court shall
have regard to such fact).
That evidence which could be and is not produced would, if produced, be
(g)
unfavourable to the person withholding it (if a man refuses to produce a
docum ent which would bear on a contract o f small importance on which he
is sued, but which might also injure the feelings and reputations o f his family,
the court shall have regard to such fact).
That, if a man refuses to answer a question which he is not com pelled to
00 answer by law, the answer, if given, would be unfavourable to him (if the
answer m ight cause loss to him in matters unconnected with the matter in
relation to which it is asked, the court shall have regard to such fact).
(i) That, when a docum ent creating an obligation is in the hands o f the
obligor, the obligation has been discharged (if it appears that obligor may
have stolen it, the court shall have regard to such fact). Thus, where the
instrument o f debt and the security for it are in the hands o f the debtor,
the presum ption would be that the debt must have been discharged; where
a p ro m issory note is in the hands o f the person w h o made it, the
presum ption is that he must have paid it off.
T he presum ption permitted by lllust. (a) does not arise until the prosecution
has established the follow ing facts: (i) the ownership o f the articles in question, (ii)
their theft, (iii) their conscious, exclusive and recent possession by the accused. A
long period may be taken to be recent; in a case, two bales o f woolen cloth were
stolen from M. T w o m onths after the theft, they were found in possession o f P,
the presum ption is that P stole it or received it knowing it to be stolen.74
74. Stolen or looted g o o d s are recovered from the possession o f the accused just
after a few days o f the theft/ dacoity. What presumptions, if any, can be made
against him? [UP. PCS (J) 1985\
Objective Questions
(Multiple Choice)
(a) Presumption of continuance of life: Sec. 107.
(b) Presumption of death: Sec. 108.
(c) Presumption under Sec. 107: 30 years.
(d) Presumption under Sec. 108: 8 years.
235. Under Sec. 108, when It Is proved that a person has not been heard of
for 7 years by those who would naturally have heard of him If he had
been alive, the burden of proving that he Is living Is on:
(a) The person who affirms it.
(b) The person who does not affirms i t
In reference to lllust. (e)t the Supreme Court has observed: A presum ption has
to be drawn under Sec. 114 (e) that die com petent authority must have before it the
necessary materials which prim a fade establish the com m ission o f the offence charged
and that the authority had applied its mind before tendering the consent {State of
Bihar v P.P. Sharma A IR 1991 SC 1260). Death in custody d oes not by itself create
a presum ption o f murder by police. In Shahna% v Dr. V ijay (AIR 1995 B om 30),
after a judicial divorce, the wife was not permitted to say that her signature on the
divorce petition was taken by force.
Further, the presumption under Sec. 114 (e) is limited to the regularity o f the act
done and d oes not extend to the doing o f act itself. For example, if a notification is
issued under the powers given by law, there is a presumption diat it was regularly
published and promulgated, but there is no presumption that it was issued according
to that terms o f section which em powered it. The correctness o f procedure, but not
the factum o f act, is presumed under the illustration.
A s far as presumption under lllust. (J) is concerned, the maximum use o f it is
to be seen in connection with the delivery o f letters. Where a letter is shown to have
been posted and it is not returned through the dead letter office, the presumption
is that it has been delivered. Similarly, there is presumption o f service o f a letter
sent under registered cover, if the same is returned back with a postal endorsement
that the addressee refused to accept the same. O f course, the presumption is
rebuttable.
The Supreme Court has observed, com m enting on lllust. (g), that an adverse
inference against a party for his failure to appear in court can be drawn only in
absence o f any evidence on record. Where the admission o f the parties and other
materials on record amply prove the point in issue, no presumption can be raised
against the person w ho has failed to appear in the court [Pandurang Jivaji A pte v
Kamchandra, (1981) 4 SC C 569]. I f evidence on record being already sufficient to
establish the prosecution case, the failure to examine another witness did not affect
the credibility o f the case [Rajendra Kumar v State o f U.P. (1998) 9 S C C 343]. The
court should not mechanically draw an adverse inference merely on the ground o f
non-examination o f a witness, even if the witness is a material one.
Non-production o f “daily police diary”or “inquest report”o r “post-m ortem
report” was not taken to be supporting a presumption against the prosecution.
Similarly, no adverse inference can be drawn against the prosecution if it merely fails
to obtain certain evidence e.g. opinion o f expert not taken. An adverse presumption
cannot be drawn where the party supposed to be in possession o f the best evidence

(a) The presumption under Sec. 109 as to certain human relationship
(viz. partners, landlord and tenant) is oblig a to ry and arises
irrespective of the lapse of time.
(b) The principle that possession is prima facie proof of ownership is
contained in Sec. 110.
(c) Under Sec. I l l , when a person stands towards another in a position
of active confidence, the burden of proving the good faith of any
transaction between them lies on the person in active confidence.
(d) A contract with a pardanashln woman does not attract Sec. 111.
has neither been called u p on to produce by the opposite party nor directed by the
court to d o s o (Oriental Fire & Gen. Ins. Co. v Bondili, AIR 1995 AP 268). If a person
had no know ledge about the importance o f the document and he fails to produce
it no adverse presu m ption should be made against such person.
Human Conduct: Presumption o f Marriage

A strong presu m ption arises in favour o f wedlock where the partners (a man and
woman) have lived together for a long spell (continuous cohabitation) as husband
and wife, and treated as such by the relatives and friends. Although the presumption
is rebuttable, a heavy burden lies on him who seeks to deprive the relationship o f
legal origin; law leans in favour o f legitimacy and frowns upon bastardies.
T h e presu m ption was held to be not applicable where a married woman lived
with another man for a long period and gave birth to children even during the life
time o f her husband [Lolo v Durgbatiya AIR 2001 M.P. 188].
SEC. I 14-A: Presumption in Rape Cases
A c c o r d in g to Sec. 114-A, \vhere the question before the court (in a prosecution
for rape under Sec. 376 (2), IP C and where sexual intercourse by the accused is
proved) is whether an intercourse between a man and a woman was with or without
consent and the w om an states in the court that it was against her consent, the court
shall presum e that there was no consent*. The burden o f proving becom es shifted
to the accused. I f he is not able to prove that there was consent, he becom es guilty.
The presumption under Sec. 114-A arises when the accused who comm its rape
is a police officer, a public servant, an officer o f Jail, Hospital, or he comm its rape
on a woman knowing that she is pregnant or when rape is a gang rape. This section
has been added for drawing a conclusive presumption as to the absence o f consent
in certain prosecutions for rape.
Sec. 114-A was introduced because o f the increasing number o f acquittals o f
accused when the victim o f rape is an adult woman. If she was really raped, it was
very difficult for her to prove absence o f consent, 'llic new provision (inserted in
1983) has brought about a radical change in the Indian law relating to rape cases. This
presumption would apply not only to rape cases, but also to cases o f “attempted
rape'\Fagnu Bhai v State o f Orissa, 1992 CrLJ 1808).
O b je c t i v e ffueMtioMMM
(Multiple Choice)
237. The good faith of a sale by a client to attorney Is In a suit brought by the
client. The burden of proving the good faith of the transaction Is on the:
(a) Attorney.
(b) Client.
(c) Both.
238. A presumption
(a) is an inference of fact drawn from other known or proved facts.
(b) furnishes prima facie evidence of the matter to which it relates.
(c) holds the field in the absence of evidence but when facts appear,
it goes back.
(d) all are correct.
144 Law G uide for Judicial S ervice Examination
In a case o f alleged ‘
gang rape' o f a girl above 16, the F.I.R. was lodged 7 days
after the occurrence. T h e girl admitted that she was desirous o f marrying on e o f
the accused, and the chemical examiner’ s report ran counter to any sexual intercourse,
in the circumstances, it was held that the presum ption under Sec. 114-A could not
be invoked (Sharrighan v State o f M.P., 1993 Cr. LJ 120).
C H A P T E R V III
E S T O P P E L 75
[SECS. 115-117]
A c c o r d in g to the doctrine o f estoppel there are certain facts which the parties are
proh ibited from proving. E stop p el is a principle o f law by which a person is held
b ou n d by the representation m ade by him or arising out o f his conduct. E stoppel
is dealt with in Secs. 115 to 117 o f the Evidence Act. While, Sec. 115 contains the
general principle o f estoppel by conduct. Secs. 116 and 117 are instances o f estoppel
by contract. However, there are other recognized instances o f estoppel, viz., The
Indian Contract A ct (Sec. 234), T h e Specific Relief Act (Sec. 18), T he Transfer o f
P roperty A ct (Secs. 41 and 43). E stoppels which are not proved by the Evidence
A ct may b e term ed ‘ equitable estopp els’.
E stop p el is often described as a rule o f evidence but the w hole con cep t is
m o re correcd y viewed as a substantive rule o f law. It is based on the maxim Allegans
contraria non est andindus (person alleging contrary facts will not be heard). D octrine
o f estopp el is founded o n the fam ous English case Pickard v Sears (1837) 6 A & E
475, stating the principle that it is inequitable and unjust to allow a person to deny
the truth o f a statement which he has m ade to another and the other person has
acted o n it believing it to be true (it d oes not matter that in reality it is true o r not).
T h e o b ject is to prevent fraud and secure justice between parties by p rom otion o f
honesty and g o o d faith.
E stop p el o r “con clu sion ” is a disability whereby a party is precluded from
alleging o r proving in a legal proceedin g that a fact is otherwise than it has been
made to appear by the matter giving rise to that disability. T he principle says that
a man cannot approbate and reprobate o r that a man cannot blow hot and co ld at
the same time or that a man shall not be allowed to say on e thing at a time and
75. What is an estoppel? State different kinds o f estoppel. [Raj.J.S. 1992/1999[

(a) Presumption of fact: Rebuttable.
(b) Presumption o f law: Rebuttable (shall presume) and irrebuttable
(conclusive proof).
(c) Presumption o f fact: May presume.
(d) Presumptions stated in Sec. 118 o f the Negotiable Instrum ents Act:
presumptions o f fact.
different thing at other time. It must be noted that estoppel is only a rule o f civil
action and has n o o r limited application in criminal proceedings.
In criminal law, “Issue-estoppel”is recognized. According to this rule, evidence
cannot be led to prove a fact in issue as regards which evidence has already been
led and a specifis finding recorded at a criminal trial before a court o f com petent
jurisdiction. Thus, it d o e s not constitute a direct ban to the subsequent trial o f a
person for an o ffen ce other than the one arising out o f the same transaction, for
which such person was o n trial previously resulting in acquittal or conviction in such
trial. T h e rule only relates to the admissibility o f evidence which is designed to
upset a finding o f fact recorded by a court at a previous trial.75*
E stop p el is o f three kinds: (a) estoppel by matter o f record, (b) estoppel by
deed, and (c) estopp el in pais i.e. estoppel by conduct. ^Estoppel o f record* or res
judicata has been dealt with in the C.P.C ‘ Estoppel by deed* is based on the principle
that when a person has entered into a solemn engagement by deed under his hand,
he shall n ot be perm itted to deny any matter which he has so asserted. ‘ E stoppel
by pais* o r estopp el by representation or conduct is discussed below.
SEC. I 15: Estoppel76
“
\ ^ h e n on e person has, by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief
neither he n or his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth o f that thing.**
75a. Write a short note on: Issue-Estoppel. [D elhi J.S. 1990[

76. ‘Estoppel is a com plex legal notion, involving a combination o f several essential
elements, the statement to be acted upon, acted on the faith o f it, resulting
detriment to the actor*? Critically examine the statement and point out whether
estoppel can be pleaded by both plaintiff and defendant? Illustrate your answer.
[UP. PCS 0) 1982/1991\
[Ans. Estoppel can be pleaded only by the plaintiff.)
O b je c tiv e Q u estio n s
(Multiple Choice)
240. Mark the incorrect statement:
(a) A rebuttable presumption cannot be overthrown by a contrary
evidence, while irrebuttable can.
(b) A conclusive proof is Juris et de jure i.e. incapable of rebuttal.
(c) In substance, there is no difference between ‘conclusive evidence’ -
and ‘conclusive proof.
(d) Presumption and onus of proof are two sides of the same coin.
241. A presumption:
(a) An evidence.
(b) A proof.
(c) Indicates the person on whom the burden of proof lies.
Illustration'. A, intentionally and falsely leads B to believe that certain land belongs
to A, and thereby induces B to buy and pay for it. The land afterwards becom es
the property o f A, and A seeks to set aside the sale on the ground that, at the time
o f the sale, he had n o title. H e must not be allowed to prove his want o f title.77
Three essential ingredients o f Sec. 115 are:
(i) a representation is made by a person to another,
(ii) other person believes it and acts upon such belief thereby altering his
position,
(iii) then in a suit between the parties, the person w ho represented shall not
be allowed to deny the truth o f his representation.
Representation
Representation o f the existence o f a fact may arise in any way — a declaration, act
o r om ission. T he focus o f law o f estoppel is the position in law o f party w ho is
induced to act. Thus, a person w h o is estopped or prevented from denying his
representation may not have intention to deceive and may him self be acting under
mistake or apprehension. The estoppel will nonetheless operate in such cases also
[Sbarat Chander Dey v G opal Chander Laha (1892) 19 LA 203].
R epresentation o f a m ere intention cannot am ount to an estoppel. A
representation as to the legal effect o f an instrument (if not ultra vires) will create an
estoppel. A representation may also arise from an “om ission”to d o an act which one’ s
duty requires one to do. An estoppel will arise when the failure to perform one's duty
has misled another and also the duty should be a kind o f legal obligation (Estoppel
by negligence). In Mercantile Rank o f India L td v Central Rank o f India L td (1938) AC 287,
an om ission to stamp the receipts was held sufficient to create an estoppel.
Estoppel by conduct may be active or passive. Estoppel by silence or acquiescence
arises only when there is a duty to speak or disclose.
Illustrative cases - In Secy, o f State v Tatya Ho/kar; the governm ent acquired land o f
the respondent and paid com pensation thereof. Later on, governm ent discovered
that the land actually belonged to it. T he governm ent sought to recover the amount
paid. It was held that governm ent is estopped by its conduct.
In a case, a judge, w ho had showed high age in his certificates right from the
beginning o f his career, sought to deny it by show ing actual municipal birth-records,
77. A question based on this illustration. [U.P. P C S (J) 1985\

(a) Presumption of Innocence: Sec. 105.
(b) Presumption of Survivorship: Secs. 107-108.
(c) Presumptions Relating to Documents: Secs. 79-90.
243. Presumption of legitimacy, under Sec. 112, will apply when a person Is
born within how many days after dissolution of a valid marriage?
(a) 180 days. '
(b) 280 days.
(c) 270 days.
(d) 160 days.
so as to retire at a later age. H eld that the judge is estopped. In another case, the
wife was o f Buddhist faith and the husband a Muslim. She sought a divorce under
' g u(jdhist law. H eld that she was estopped from denying her earlier committal to
Islamic law.
Reliance and Detriment

The secon d condition necessary to create an estoppel is that the plaintiff altered his
position on the basis o f the representation and he would suffer a loss if the
representer is allowed to resile from his statement. Detriment is a prerequisite o f
actionable prom issory estoppel. Thus, a mere statement o f a person that he w ould
not assert his rights d o es n ot create an estoppel unless it is intended to be acted
upon and is in fact acted upon (Stda Nitinkumar v Gujarat University A IR 1991
Guj.43). However, detriment is not necessary to create an estoppel against the State.
Certain candidates w ere admitted to recognized course in Physical Education
for the pu rpose o f appointm ent as physical training instructors in G overnm ent
schools. T h e G overnm en t was not permitted to de-recognize the course in reference
to such candidates but had a right to d o for the future (Surest) Pal v State o f Haryana
AIR 1987 S C 2027).
Promissory E stoppel
Doctrine o f estoppel has gained a new dimension in recent years with the recognition
o f an equitable doctrine o f ‘
promissory estoppel’both by English and Indian courts.
According to it, if a prom ise is made in the expectation that it should be acted upon
in the future, and it was in fact acted upon, the party making the promise will not be
allowed to back out o f it. The development o f such a principle was easy in Britain and
USA, where estoppel is a rule o f equity (common law), but in India, it is a rule o f law,
and terms o f Sec. 115 must be strictly complied with.
The concept o f prom issory estoppel differs from that under S ec 115 in that
representation in the latter is to an existing fact, while the former relates to a representation
o f future intention. But, it has been accepted by the Supreme Court as “advancing the
cause o f justice”. T hough such promise (future) is not supported in point o f law by any
‘consideration’(the basis o f a contract), but only by party’ s conduct; however, if promise
is made in circumstances involving legal rights and obligations, it is only proper that the
parties should be enforced to d o what they promised. In cases, where government is
Objective* QucmHo
m s
m
(Multiple Choice)
(a) The presumption under Sec. 112 is a conclusive proof.
(b) The presumption under Sec. 112 arises irrespective of whether the
fath e r is alive or dead on the day the child is born.
(c) Sec. 112, which applies only to a married couple, lays down the
rule for the proof of the maternity of an individual.
(d) The presumption of legitimacy will not be allowed to be rebutted by
th e proof that wife had adulterous relationship.
14Q Law Guide for Judicial Service Examination
one o f the parties, the court will balance the harm to public interest by compelling
government to its promise and harm to citizen to allow government to back out o f it....
to see diat the government does not act arbitrarily.
T he doctrine has been variously described as “equitable estopp el”, “quasi
estopp el”and “new estoppel”; it need not be confined to the limitations o f estoppel
in the strict sense o f the w ord (ALP. Sugar M ills v State o f U.P. A IR 1979 SC 61).
W here a G overnm ent licence was granted to a person to establish saw mill and he
spent huge sums o f m oney acting on the grant and the Governm ent subsequently
changed policy refusing to grant any further licences, the G overnm ent was held
bound to grant that particular licence, though the policy may be revised for the
future (Joyjit D as v State o f Assam A IR 1990 Gau. 24).
A m ere prom ise to make a gift will not create an estoppel. It w ould require a
clear and unequivocal prom ise to im port the doctrine into a matter. A leading
institution intimated the sanction o f a loan with a remark that it did not constitute
a com m itm ent on the part o f the institution. Held that there was no prom ise to
found the doctrine o f prom issory estoppel (Rabisankar v Orissa State Fin. Corpn. AIR
1992 Ori. 93).
T he prom ise o f State G overnm ent to absorb its village officers w hose posts
had been abolished into other services on certain basis, was not afterwards permitted
to be amended by inserting the requirement o f age which was not there in the
original com m itm ent (KiC Rama Rao v State o f A.P. A IR 1987 SC 1467).
Exceptions to the D octrine o f Estoppel

There arc various exceptions to the doctrine o f estoppel:
(1) N o estoppelagainst a m inor—Where a minor represents fraudulendy or otherwise
that he is o f age and thereby induces another to enter into a contract with
him, then in an action founded o n contract, the infant is not estopped from
setting up infancy as a plea. However, equity demands that he should not
retain a benefit which he had obtained by his fraudulent conduct.
(2) When truefacts are known to both the parties - Sec. 115 does not apply to a case
where the statement relied upon is made to a person w ho knows the real
facts and is n ot misled by the untrue statement (Madnappa v Chandramma
AIR 1965 SC 1812).
(3) Fraud or negligence on the part o f other party — I f the other party d oes not
believe the representation but acts independendy o f such belief, or in cases
245. The deciding factor under Sec. 112 is:

(a) The date of birth o f the child.
(b) The date of conception o f the child.
(c) Either (a) or (b).
(d) Court’s discretion.
246. Unless non-access is proved, the presumption a s to legitimacy of any
child born during the continuance of a valid marriage betw een his
mother and any man is:
(a) Rebuttable presumption o f law.
(b) Presumption of fact.
(c) Mixed presumption o f law and fact.
(d) Irrebuttable presumption of law. [M.P. C.J. {Prelim.) 1996]
where the person to w hom representation is made is under a duty to make

a further inquiry, the estoppel will not operate. Likewise, if there is a fraud
on the part o f the other party, which could not be detected by prom isor
with ordinary care, the estoppel will not operate.
(4) When both the parties plead estoppel — If both the parties establish a case for
application o f estoppel, then it is as if the two estoppels cancel out and the
court will have to proceed as if there is no plea o f estoppel on either side.
Further, if both sides had laboured under a mistake however bona fide or
genuine, the plea o f estoppel may not be available.
(5) N o estoppel on a point o f law - Estoppel refers only to a belief in a fact. If a
person gives his opinion that law is such and such and another acts upon such
belief, then there can be no estoppel against the former subsequendy asserting
that law is different. One cannot be estopped from challenging the effectiveness
o f som ethin g (e.g. partition deed) for want o f law (e.g. registration).
Representations under S e c 115 should be o f facts, not o f law or opinion
(Union of India v ICS. Subrarnaniam AIR 1989 SC 662).
(6) N o estoppel against statute/ sovereign acts - A rule o f law cannot be nullified by
resorting to the doctrine o f estoppel. A person who makes a statement as to
the existence o f the provisions o f a statute is not estopped, subsequendy, from
contending that the statutory provision is different from what he has previously
stated. For example, where a minor has contracted by misrepresenting his age,
he still can afterwards disclose his real age. It is a rule o f law o f contract that
a m inor is not competent to contract and that rule would be defeated if a
minor not permitted to disclose his real age. Hence there can be no estoppel
against the provisions o f a statute.
Thus, if a person is given rights under a statute, and he gives them up at one
stage voluntarily and later on tries to enforce those rights, no estoppel can be
invoked against him. For example, under the Rent Control Act, the landlord can
demand from his tenant only a fair/standard rent. If a tenant agreed to pay a high
rent and thereafter files a petition for fixing the fair rent, he won’t be estopped.
Similarly, the statute provided that a tenant could not sublet and on subletting he
was liable to ejectment. By a bilateral agreement the landlord allowed the tenant, to
sublet as he did so. The landlord brought a suit for the ejectment o f the tenant. It was
Objective Questionm
( M u ltip le C h o i c e )
(a) Sec. 113-A: Presumption as to Abetment of Suicide by a Mamed
Woman.
(b) Sec. 113-B: Presumption as to Dowry Death.
(c) Sec. 114-A: Presumption in Rape Cases
(d) None o f the above.
248. Presumption a s to abetment of suicide by a married woman under S ec.
113-A:
(a) A conclusive proof.
(b) The c o u rt shall presume.
(c) The c o u rt may presume.
(d) The prosecution has to prove.
pleaded that the landlord was estopped from suing for ejectment. Held that the right
founded upon or growing out o f an illegal transaction cannot be sustained; the ejectment
was ordered. In Ba/ Krishna v Retva University (AIR 1978 M.P.86), held that if a
candidate has appeared at an examination by misrepresenting facts (vi2 ., a non-graduate
appearing at law examination), the university will not be estopped from cancelling the
examination if his candidature is against a rule o f law.
I f the statute is solely for the benefit o f a person he may waive his right or
benefit, if he thinks fit o r give up the rights o f a personal nature created under an
agreement, but he cannot waive a benefit conferred by a statute which has public
policy for its object. It may be noted that a statement made under misapprehension
o f legal right is not estoppel.
It is well setded that there cannot be any estoppel against the G overnm ent in
the exercise o f its sovereign, legislative and executive functions. Where a local
development authority announced a housing scheme and accepted applications under
it, subsequendy finding that the scheme was in violadon o f the Master Plan cancelled
it It was held that to be free to d o so without any shackles o f prom issory estoppel77*
(Housing Board Cooperative Society v State A IR 1987 M.P. 193).
Estoppel Against Universities

The doctrine o f estoppel has been allowed to be invoked against a University. In
Univ. o f Madras v Sundara Shetti (1956) MLJ 25, the university was estopped from
claiming that a student had not actually passed, but that his mark sheet contained
a mistake. In S ri Krishna v Kurushetra Univ. (AIR 1976 SC 376), held that on ce a
candidate has been admitted to an examination his candidature cannot afterwards
be cancelled even if his form carried certain infirmities. T he candidate is not guilty
o f fraud if he mis-state facts the truth o f which the university could have discovered
with ordinary care.
The Rajasthan High Court acted upon this principle in refusing perm ission to
a University after 3-4 years to cancel the admission to a medical college on the basis
that the candidate’ s declaration that he belonged to a scheduled caste was a false one
(.HarphooI Singh v State A IR 1981 Raj. 8). But, M.P. High Court did not raise any
estoppel against a polytechnic which had admitted a candidate on the basis o f a
false declaration that he was a SC. The institution was allowed to cancel the admission
because there was fraud in him (Israr Ahm ad v State A IR 1982 M.P. 205).
77a. A question based on the similar facts. [D elhi J.S. 1999[
249. Sec. 113-A Inserted by 1983 Criminal Law Second Amendment Act:
(a) Creates a new offence.
(b) Creates a substantive right.
(c) Is a matter of procedure.
(d) Is not retrospective in operation.
250. Presumption as to Dowry death under Sec. U3-B:
(b) The court shall presume.
(c) The court may presume.
W here the mistake in making the marks-sheet was apparent in that the marks
entered show ed that the candidate failed, but the result colum n show ed that he
passed, there was n o estoppel, and the Board could rectify the mistake. Similarly, n o
estoppel arose where a marks-sheet issued to several candidates with “pa ssed ”
remark carried the im pression o f error on the face (Keetanjali Pati v Board o f Sec.
Education A IR 1990 Ori. 90).
Summary o f the Essential Conditions o f Estoppel

The follow in g eight conditions must be satisfied to bring a case within the sc o p e o f
estoppel as defined in Sec. 115 [Chhaganlal Mehta v Haribhai Patel (1982) 1 S C C 223]:
(i) T here m ust have been a representation by a person to another person,
which may be in any form — a declaration o r an act o r an om ission.
(ii) Such representation must have been o f the existence o f a fact\ and n ot
o f future prom ises or intention.
H T h e representation must have been meant to have been relied upon.
(iv) T here m ust have been belief on the part o f the other party in its truth.
(v) T here m ust have been som e action on the faith o f that declaration, act
o r om ission. In other words, such declaration, etc., must have actually
caused the other person to act on the faith o f it and to alter his
p osition to his prejudice or detriment.
(vi) T h e misrepresentation o r conduct or om ission must have been the
proxim ate cause o f leading the other party to act to his prejudice.
(vii) T h e person claiming the benefit o f an estoppel must show that he was
not aware o f the true state o f things. There can be no estoppel if such
a person was aware o f the true state o f affairs o r if he had means o f
such knowledge.
(viii) O n ly the person to w hom the representation was made o r for w h om
it was designed can avail o f the doctrine. The burden o f proving estoppel
lies o n such person.
(ix) W here the plea o f estoppel is not set up in the pleading, it cannot be
availed o f later.
(x) N o action arises on the estoppel itself. It is not a cause o f action. It
may assist in enforcing a cause o f action.
(Multiple Choice)
251. Under Sec. 114, the court may presume the existence of any fact which
It thinks likely to have happened, regard being had to the com m on
course of
(a) natural events.
(b) human conduct.
(c) public and private business.
SEC. 116: Estoppel of Tenant and of Licensee of Person in Possession
Section s 116 and 117 are illnslralivt o f the principle o f estoppel laid down in Sec.
115. These two sections deal with estoppels in specific cases.
Sec. 116 provides that a person who comes into an immovable property taking
possession from a person who he accepts as the landlord, is not permitted during
the continuance o f tenancy to say as against his landlord that he had no title to the
property at the commencement o f the tenancy. Similarly, a person who comes upon
any immovable property with the licence o f the person in possession is not permitted
to say afterwards that his licensor had no right to the possession o f the property.
In short, a tenant/ licensee is not permitted to deny the title o f his landlord/
licensor. Where a landlord files a suit for ejectment and for arrears o f rent the
tenant who has been put into possession o f the property in suit by the landlord
cannot be allowed to say that the landlord had no interest in the property o f suit
(Molt L ai v Yar Md. AIR 1925 All 275).78
The estoppel is confined to the state o f things at the commencement o f
tenancy/ licence. The tenant/ licensee is always free to talk o f the subsequent
78. ‘B’had taken the house on rent from ‘ A’and since then he is regularly paying
rent to ‘
A’ .‘A’applies for the eviction of ‘ B’on the ground of his personal
need. ‘B’contends that since the house is joint property of ‘
A’and his brothers,
and his brothers did not join the proceedings, ‘ A’s application is liable to be
dismissed. It is argued on behalf of ‘
A’that ‘ B’ was estopped from challenging
the right of ‘A’to sue. Decide. [UP. PCS (]) 1991]
X purchased a house in court auction. ‘ A’was tenant in it from before and
attorned the tenancy in favour of X and came to pay rent to X accordingly. X
sold the house to Y. Both X and Y issued notices to anom the tenancy in favour
of Y. But ‘A’declined to do so and assailed not only the derivative title of Y to
the property but also the validity of sale in favour of X himself. ‘
A’alleged that
one of the decree-holder whose rights were purchased by X in auction was in
a subsequent civil proceeding held to be not having full saleable right in the
property. The question is whether ‘ A’can deny the title of X and Y?
[D elhi J.S. 1991]
[Ans. ‘
A’cannot deny the title of X and Y.]
252. In which of the following cases, the court may presume under Sec. 114:
(a) That a man in possession of stolen goods after the theft is either
the thief or has received the goods knowing them to be stolen.
(b) That judicial and official acts have been regularly performed.
(c) That evidence which could be and is not produced would, if
produced, be unfavourable to the person withholding it (e.g. the
police withholding a piece of evidence).
Law of Evidence 153
developments i.e. the landlord/ licensor has lost his title. After the tenancy had
ceased, the tenant is free to deny the title o f the landlord. It may be noted that
where tenancy is itself in question (Le. created by fraud, coercion, etc) the tenants
are not estopped from disputing the landlord’ s title
SEC. I 17: Estoppel of Acceptor of Bill of Exchange, Bailee/ Licensee
Sec. 117 provides that no acceptor o f a bill o f exchange can deny that the drawer
had authority to draw such bill or to endorse it; but he may deny that the bill was
really drawn by the person by whom it purports to have been drawn (it can always
be shown that the drawer’ s signature was forged). Likewise, no bailee/ licensee can
denv that his bailor/ licensor had, at the time when the bailment/ licence commenced,
authority to make such bailment or grant such licence. But, if a bailee o f the goods
bailed to a person other than the bailor, he may prove that such person has a right
to them as against the bailor.
[Ne/f: Estoppel by attestation - An attester ordinarily knows nothing o f the contents
of document, and so he is not estopped from denying the truth in document But,
if he knows about contents, then estoppel operates.]
Comparison of Estoppel with Other Concepts

(a) Estoppel and Presumption - An estoppel is a personal disqualification laid upon
a person peculiarly circumstanced from proving particular facts, whereas a
presumption is a rule that a particular inference is to be drawn from particular
facts, whoever proves them. In presumption, evidence to rebut it can be
given, while in estoppel, the part)- is estopped from denying the truth.
(b) Estoppel and Conclusive Proof - When a fact is conclusively proved, it is so
against the entire world. Estoppel operates only as a personal disability. In
both, however, the very same fact cannot be denied (irrebuttable).
(c) Estoppel and Admission - Admissions being declarations against an interest
are go o d evidence but they are not conclusive and a party is always at
liberty to withdraw admissions by proving that they are either mistaken or
untrue. But an estoppel creates an absolute bar. Further, estoppel being a
rule o f evidence, an action cannot be founded on it, whereas an action may
Objective Quemtionm
(Multiple Choice)
(a) Death in custody does not by itself create a presumption of murder
by police.
(b) After a judicial divorce, the wife could be permitted to say that her
signature on the divorce petition was taken by force.
(c) No adverse inference can be drawn against the prosecution if it
merely fails to obtain certain evidence e.g. opinion of expert not
taken.
(d) If a person had no knowledge about the importance of the document
and he fails to produce it, no adverse presumption should be made
against such person.
be founded on an admission. It may be noted that admissions, if they have

been acted upon by a third person, and if substantive rights have been
created, operate as estoppel.
(d) Estoppel and Waiver — Waiver is the abandonment o f a right which normally
everybody is at liberty to waive. A waiver requires a positive relinquishment
o f something which one had before, but estoppel does not require any such
thing as that; and a party waiving his rights may in circumstances reinforce
them, while in estoppel it cannot be so. In waiver, there is full knowledge o f
facts, while in estoppel even a mistake or om ission has no effect.
(e) Estoppel and Res Judicata - Res judicata precludes a man averring the same
thing twice over in successive litigation, while estoppel prevents him saying
one thing at on e time and the opposite at another. Thus, resjudicata prohibits
a court from inquiring into a matter already adjudicated, while estoppel
prohibits a party. Further, res judicata is not a rule o f evidence, but a rule
o f procedure.
(f) Estoppel and Fraud—An action cannot be founded on estoppel, while a fraud
gives rise to a cause o f action. Similar is the case o f estoppel and breach
o f contract.
CHAPTER IX
OF WITNESSES
[SECS. 118-134]
S e ctio n s 118-121 and Sec. 133 (Accomplice) deal with the com petency o f the
persons w ho can appear as witnesses. A witness may be com petent and yet not
compellable i.e. the court cannot com p el him to attend and depose before it (viz.
Foreign ambassadors and sovereigns). Again, a witness is com petent and also may
be compellable yet the law may n ot force him to answer certain questions. This is
called ‘restricted compellability* or ‘
privilege*, conferred on Magistrates, lawyers,
spouses, etc. (Privileged witnesses) under the sections 124-132. Sec. 134 lays down
rule as to the number o f witnesses required to give evidence in a case.
254. Presumption in rape c a se s under Sec. U4-A:

(b) The court shall presume.
(c) The court may presume.
255. Sec. U4-A will apply only when the person committing rape Is:
(a) A police officer, a public servant, or an officer of Ja il/ Hospital.
(b) Any person.
(c) Gang rape.
SBC. I 18: W h o May Testify79
See. 1^8 lays dow n that all persons are competent to testify, unless the court
considers that, by reason o f tender age, extreme old age, disease (of body o r mind),
or infirmity, they are incapable o f understanding the questions put to them, and o f
giving rational answers. Even a lunatic is competent to testify, provided he is n ot
prevented by his lunacy from understanding the questions put to him and giving
rational answers to them (Explanation).
Thus, n o person is particularly declared to be incompetent It is wholly left to the
discretion o f the court to see whether the person who appears as a witness is capable
o f understanding the questions put to him and o f giving rational answers Although an
accused person is incompetent to testify in proceedings in which he is an accused, an
accomplice is a com petent witness against an accused person (Ser. 133).
Child rntnesP911 — A child (even o f 6 or 7 years) is a competent witness, unless he
is unable to understand the questions or is unable to give rational answers There
is no provision in India by which corroboration to the evidence o f a child is
required. It is a sound rule in practice not to act on the uncorroborated evidence
o f a child, but this is a rule o f prudence, and not o f law (Nirmal Kitmar v Stati o f
UP. A IR 1952 S C 1131).
T h e statement o f the child may be recorded without administering oath to
him. T h e cou rts should, however, always record their opinion that the child
understands the duty o f speaking the truth.
Chance witness — I f by coincidence or chance a person happened to be at the place
o f occurrence w hen the incident is taking place, he is called a chance witness
Merely because there is n o compelling reason for him to be present at the time o f
the occurrence, that by itself need not necessarily mean that his evidence has to be
rejected.
Victim o f rape — She (prosecutrix) is a competent witness under Sec. 118 and her
evidence m ust receive the same weight as is attached to an injured in cases o f
79. W ho is com petent witness to testify? [D elhiJ,S. 1982[[U.P. PCS Q) 1988\

79a. Write a short note on: Child witness. [D elhi J.S.1982\
O b je c tiv e QuemHoxMM
(Multiple Choice)
256. Estoppel is:
(a) A principle of law by which a person is held bound by the
representation made by him or arising out of his conduct.
(b) A principle of law by which a person is held not bound by the
representation made by him or arising out of his conduct.
(c) A kind of presumption.
(d) A kind of evidence.
257. The doctrine of estoppel Is a:
(a) Rule of evidence.
(b) Substantive rule of law.
(c) Rule of pleading.
violence. T he Evidence Act nowhere says that her evidence cannot be accepted
unless it is corroborated in material particulars (State o f Maharashtra v C.K. Jain AIR
1990 S C 658).
Partisanl Relation Witnesses (Interested Persons as Witnesses )80

If a witness is a relative o f the person w ho produces him, his statement cannot be
discarded only for that reason, unless it is shown that the statement is a tainted one
and was given only to benefit the person producing him (Union o f Ituiia v Savita
Sharma A IR 1979 J & K 6). It may, however, be that the evidence o f such witness
should be scrutinized carefully. Where such scrutiny establishes reliability, evidence
ought n ot to be rejected (Krishna P itta v State o f Kerala AIR 1981 SC 1237).
An ‘interested witness’means a person w ho wants to see the accused convicted
because o f his ow n animus o r otherwise (evidence o f police officers falls in this
category). A relative may not be s o interested. A person cannot be said to have such
animus merely on the ground that he d eposed against the accused on an earlier
occasion (Suk Bahadur Subha v State o f Sikkim , 1988 CrLJ 1453).
The credibility o f the witness does not get affected merely because he is related
to the deceased or does not state the incident in the same language or manner which
in the opinion o f the court is natural. Where the testimony o f the injured eye-witness
was convincing and o f sterling worth and was also corroborated by medical evidence,
his testimony could not be disregarded only because he was related to the deceased
(Aidan v State o f Rajasthan, 1993 CrLJ 2413).
Similarly, evidence o f a police officer cannot be rejected for that reason alone.
Where the testimony o f a police officer that he seized the driving licence and other
docum ents from the possession o f the accused w ho was charged with rash and
negligent driving, this was held sufficient to prove that the accused was driving the
vehicle, though n o other independent witness was produced (State o f M.P. v Jagdish,
1992 CrLJ 718 P&H).
80. In a trial for the offence o f murder, father o f the deceased is produced as an
eyewitness for the prosecution. The accused objects the admissibility o f his
statement on the ground that he is an interested witness, being father o f the
deceased and hence an incompetent witness. Decide. [UP. P C S (J) 1997\
Write a short note on: Interested witness. [D elhi J.S.1982[
Writz a short note on: Relation witness. [D elhi J.S.1984\
258. The principle of estoppel says that:

(a) A man cannot approbate and reprobate.
(b) A man cannot blow hot and cold at the same time.
(c) A man shall not be allowed to say one thing at a tim e and different
thing at other time.
(a) Estoppel is only a rule of civil action and has no or limited application
in criminal proceedings.
(b) Estoppel Is binding upon litigating parties and their privies.
(c) Estoppel deals with the question of facts.
(d) Estoppel deals with the question of rights.
Official witnesF**'. H e is a public servant who is joined in or associated with the

investigation o f an offence. While conducting raids or searches, or while laying traps,
certain officials o f the concerned departments are joined in the raiding party i.e. the
officials o f the police department, income-tax or sales-tax department, e tc At the
trial, such public servants are examined as prosecution witnesses against the accused.
T h e evidence o f such witnesses is not to be discarded merely because they are
in the success o f the prosecution case. Their testimony is to be approached
in t e r e s t e d i n
like the evidence o f any other ordinary witness. If the evidence o f such a witness
is found to be trustworthy, there is no need to seek corroboration [H ajari L a iv State
(D elhi Adm n.) A IR 1980 SC 873].
SEC. I 19: Dumb Witness
A person w h o by reasons o f dumbness or otherwise is unable to speak, may give

evidence by any m eans by which he can make himself intelligible, such as, by writing
or by signs. Evidence so recorded shall be regarded as oral evidence.
SEC. 120: Parties to Suit or Proceeding/ Husband or Wife
I n all civil proceedin gs the parties to the suit, and the husband or wife o f any party
to the suit shall be com petent witness. In criminal proceedings against any person
the husband o r wife o f such person, respectively, shall be a competent witness.
In all civil proceedings, the parties to the suit are competent witnesses. Therefore,
a party to a suit can call as his witness any o f the defendants to the suit. The
plaintiff and the defendant can give evidence against each other. Husband and wives
are, in all civil and criminal cases, competent witnesses against each other (In olden
days, the husband and wife were one person in law).
80a. Write a short note on: Official witness. [D elh iJ.S. 1984\
O b je c tiv e Q u estio n s
(Multiple Choice)
260. Estoppel can be:
(a) by matter of record.
(b) by deed.
(c) by pais or representation or conduct.
261. Which of the following Is an essential ingredient of estoppel by conduct
under Sec. 115:
(a) A representation made by defendant to the plaintiff.
(b) P laintiff altering his position on the basis of the representation.
(c) Detrim ent to the plaintiff.
SEC. 121: Judges and Magistrates
Sec. 121 lays down that a Judge or Magistrate cannot be compelled except upon the
special order o f a higher court, to give evidence about his conduct in relation to a case
tried by him, nor can he be made to depose anything which he came to know as a court
in course o f trial; but he may be examined as to odier matters which occurred in his
presence whilst he was so acting.
Illustrations
(a) A, on his trial before the Court o f Session, says that a deposition was
improperly taken by B, a Magistrate. B cannot be com pelled to answer as
to this, except upon the special order o f a superior court.
(b) A is accused before the Court o f Session o f having given false evidence
before B, a Magistrate. B cannot be asked what A said, except upon the
special order o f a superior court.
(c) A is accused before the Court o f Session o f attempting to murder a police
officer whilst on his trial before B, a Session Judge. B may be examined as
to what occurred.
A judge or magistrate is a com petent witness. A judge can be witness to
relevant facts as an ordinary man. I f a judge is personally acquainted with any
material or particular fact he may be shown as a witness in the case. I f he saw
something happen, he can testify to it even if it happened before him when he was
presiding as a judge o r magistrate. If, for example, the accused attempted to shoot
down a witness while he was testifying before a judge, the judge may be questioned
as to what he saw.
But, subject to this, no judge or magistrate can be questioned as to his judicial
conduct or as to any matter that came to his knowledge while acting as such judge
or magistrate. However, a judge can be questioned even as to judicial matters with
the court's order. Moreover, a judge can waive his privilege and voluntarily offer to
explain his conduct as such judge or magistrate. The privilege under Sec. 121 is also
available to an arbitrator.

(a) Estoppel can be by silence or negligence (omission) or election.
(b) Detriment is not necessary to create an estoppel against the State.
(c) Estoppel is a rule of equity under the common law, but in India, it
is a rule of law.
(d) Promissory estoppel is not recognized in India.
263. Under promissory estoppel:
(a) The representation is to an existing fact.
(b) The representation is of future intention or promise.
PRIVILEGED COMMUNICATIONS81
T h e r e are certain matters which a witness cannot either be com pelled to disclose
or even if the w itness is willing to disclose, he will not be permitted to d o so. Such
matters are know n as ‘ privileged communications*. The production o f certain
comm unications and docum ents is either privileged from disclosure or prohibited from
being disclosed, as a matter o f public policy or on the ground that the interest o f
State is suprem e and overrides that o f an individual (Secs. 122-129).
SEC. 122: Com m unications during Marriage
A person cannot be com pelled to disclose any communication made to him or her
during marriage by any person to w hom he or she is o r has been married; nor will
such com m unication be permitted to be disclosed except in the follow ing three
cases, viz.,
(i) if the person w h o m ade it, or his or her representative-in-interest, consents,
or
(ii) in suits betw een married persons, or
(iii) in proceedin gs in which one married person is prosecuted for any crime
com m itted against the other.
Thus, Sec. 122 prevents communications between a man and his wife from
being disclosed. This section rests on the obvious ground that the adm ission o f
such testimony w ould have a powerful tendency to disturb the peace o f families, to
promote dom estic broils, and to weaken, if not to destroy, that feeling o f mutual
confidence which is the m ost endearing solace o f married life. Thus, the prohibition
is founded on a principle o f high im port which no court can relax.
The protection is n ot confined to cases where the comm unication sought to
be given in the evidence is o f a strictly confidential character, but the seal o f law
is placed upon a ll com m unications o f whatever nature which pass between husband
81. What is meant by privileged communication? Explain the law.

[D elhiJ.S. 1996\[Bihar J. S. 1984/ 1986]
O b je c tiv e Qxioutions
(Multiple Choice)
264. Which of the following Is an exception to the doctrine of estoppel?
(a) Where a minor represents fraudulently or otherwise th a t he is o f
age and thereby induces another to enter into a contract with him.
(b) When true facts are known to both the parties.
(c) When both the parties plead estoppel.
265. There can be no estoppel
(a) on a point o f law.
(b) against a statute.
(c) against a rule of law.
160 Law Guide for Judicial S ervice Examination
and wife. It extends also to cases in which the interests o f strangers are solely
involved, as well as to those in which the husband or wife is a party on the record.
T h e protection is limited to such matters as have been com m unicated ‘during
the marriage*. Such com m unication remains protected even after the dissolution o f
marriage o r when on e spouse dies. But those made either before marriage o r after its
dissolution arc not protected (M.C. Verghese v T.J. Potman). Further, the privilege is
for the com m unication and not to be the witness. The section says that a spouse
shall n ot be com pelled to disclose such comm unication and that they shall not be
even perm itted to disclose even if he or she volunteers to d o so.
Protection When Not Available: Exceptions to Sec. 122

(1) A cts apart from communications — T he acts or conduct o f spou ses apart
from com m unications are not protected under Sec. 122. A wife can
testify as to what her husband did on a certain occasion, though not
as to what he said to her.
In Ram Bbarose v State o f U.P. (AIR 1954 SC 704), the accused was on his trial
for m urdering a neighbour for the purpose o f robbing som e ornaments and then
to present them to his wife. While presenting them to his wife he said that he had
gon e to the m iddle house (where the deceased lived), to get them. His wife then told
the court that she saw on e early m orning her husband com in g dow n the roof. He
then went inside the fodder store and had a bath. H e put back the same clothes and
came to her to present the things. H eld that what the husband said to his wife was
not admissible, but she could testify as to his conduct.82
(2) Waiver o f privilege - Evidence o f a privileged com m unication can be
given by a sp o u se with the consent o f the party w h o m a d e the
communication. This is known as waiver o f the privilege.
(3) Suit or criminalproceeding between the two spouses - As the basis o f Sec. 122
is to preserve mutual confidence, it is obviou s that the section d o cs not
apply when the spou ses are ranged on opp osite side.
(4) Communication made before marriage or after its dissolution.
(5) P roof o f communication by thirdperson —Com m unications o r conversations
between husband and wife taking place in the presence o f a third
person, o r when overheard by a third person, can be testified to by the
82. A question based on the facts o f this case. [U.P. PCS (J) 19831
266. Which of the following statem ents Is correct?

(a) Estoppel is a rule o f evidence.
(b) Estoppel from record constitutes bar of res judicata.
(c) There can be estoppel on a point o f law.
(d) There can be estoppel when the truth o f the m atter is known to
both parties.
267. Which of the following Is a leading ca se on estoppel?
(a) Sharat Chandra Dey v Gopal Chandra Laha.
(b) Gangabai v Chabbubai.
(c) Amar Singh v State o f Punjab.
third p erson (without putting any o f the spouses in the witness-box).

This is s o because privilege under Sec. 122 is that o f the parties to
marriage, and not o f others.
Thus, if a correspon d en ce (e.g. letter) containing communication from a
husband to wife (or vice versa) falls into the hands o f a third person, it is admissible
in evidence (it is the letter that discloses and not a spouse).
In M.C. Verghese v T.J. Potman (AIR 1970 SC 1876), the husband wrote certain
letters to his w ife which contained defamatory imputation about his wife's father.
His father-in-law brou gh t a suit on the evidence o f these letters. The wife passed
on the letters to her father. T he Supreme Court held that the letters are admissible
in evidence. It also held that except where the spouse to w hom communication is
made is a w itness and claim privilege (under Sec. 122), the evidence as to
comm unication betw een husband and wife is admissible, under any other provisions
o f the Act o r o n the grounds o f public policy.
In Queen Em press v Danogbue, ILR (1899) 22 Mad.l, a letter containing a
communication by the accused to his wife was seized during search o f house in the
presence o f wife. T he letter was held admissible for she had not put letter into the
hands o f authorities. In A ppu v State (AIR 1971 Mad. 194), a confession was made by
a man to his wife in the presence o f other persons. The court allowed the confession
to be proved through those other persons.
In Pumping v Dir. o f Public Prosecutions (1862) 3 All ER 256, the letter by the
appellant to his wife (containing a confession about the murder committed by him) was
given by the appellant to a colleague for posting it. After his arrest, the colleague
handed over the letter to captain o f the ship, who gave it to the police. The letter was
held admissible in evidence; the crew members and captain gave evidence, but the wife
was not called as witness.
While a third person overhearing a confidential communication may testify to
it, yet, as to documents, letters, etc. com ing into the possession o f a third person,
a distinction should obtain. Thus, if they were obtained from the addressee spou se
by voluntary delivery, they should still be privileged (for otherwise the privilege
could by collusion be practically nullified for written communications); but if they
were obtained surreptitiously (secretly) or otherwise without the addressee's consent,
the privilege should cease.
O b je c t i v e QuoMtioMMM
(Multiple Choice)
268. A, Intentionally and falsely leads B to believe that certain land belon gs
to A, and thereby Induces B to buy and pay for it. The land afterwards
becom es the property of A, and A seeks to set aside the sale on the
ground that, at the time of the sale, he had no title.
(a) A must not be allowed to prove his want of title.
(b) A must be allowed to prove his want of title.
(c) The court will decide.
SEC. 123. Evidence as to Affairs of State
“N o one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs o f State, except with the perm ission o f the officer as
the head o f the department concerned, w ho shall give or withhold such permission
as he thinks fit”.
Sec. 123 protects unpublished State records from being disclosed. It is based
on the maxim “Salus poputi est suprema le^ \ i.e. regard for public welfare is the
highest law. T he general rule is that the witness is bound to tell the w hole truth and
to produce any docum ent in his possession or power, relevant to the matter in issue.
However, in certain cases, the production o f official docum ent may be injurious to
larger public interest, as for instance it may harm State’ s security, g o o d diplomatic
relations, etc. In such cases the State has been given the privilege not to produce
certain docum ents which relate to “affairs o f the State”.
T he privilege under Sec. 123 should be claimed either by the Minister, or his
Secretary, or by Head o f the Departm ent by filing an affidavit. T he affidavit has to
state that the docum ent in question has been carefully read and examined and the
Departm ent is satisfied that the disclosure would not be in public interest. In State
o f Punjab v Sukhdev Singh Sodhi (AIR 1961 SC 493), held that it is a matter for the
authority to decide whether disclosure would cause injury to the public interest.
However, the court would enquire into the question whether the evidence sought
to be excluded from production relates to State affairs.
In State o f U.P. v R aj Narain (AIR 1975 SC 865), the defendant quoted certain
parts o f the ‘Blue B ook ’- an official docum ent (relating to security arrangements
o f the Prime Minister), and its production as an evidence, as it was not an unpublished
document. T he court held that the disclosure o f certain portions d oes not render
it published, for such portions may have n o concern with ‘ affairs o f State’
. It laid
down som e authoritative propositions:
0 Foundation o f law behind Sec. 123 is injury to public interest.
(n) Public interest which demands evidence to be withheld must be weighed
against public interest in the administration o f justice that the courts
should have the fullest possible access to all relevant materials. When
public interest outweighs the latter, evidence cannot be admitted.
(iii) The ‘
confidentiality* o f the matter has to be decided by the Head o f
the Department. However, the court can sum m on any docum ent
269. A Government licence was granted to a person to establish saw mill

and he spent huge sum s of m oney a ctin g on the grant and the
Government subsequently changed policy refusing to grant any further
licences.
(a) Government would be bound to grant that particular licence.
(b) Government would not be bound to grant that particular licence as
it is a matter of Government policy.
(c) Government would be bound to grant that particular licence-though
the policy may be revised for the future.
notwithstanding any objection under S e c 162 and can discuss the

admissibility (as an evidence), and can get the help o f translators to
decide whether the docum ent relates to the ‘ affairs o f State*.
(iv) I f the court is satisfied with the reasons cited in affidavit, matter ends
there. I f not, the court may inspect the document and if it finds that any part
o f the docum ent is innocuous (not related to affairs o f State) it could
order disclosure o f such part. While ordering o f the disclosure o f
in n ocu ou s part, the court must seal the other parts w hose disclosure
is undesirable.
In K K Jain v Union o f India (AIR 1993 SC 1769), the Supreme Court reaffirmed
the above views by observing that the court can ‘ see in camera* and that n o ‘
privilege*
is available against the court (in other words, court can examine the docum ents)?3
In this case, the appointm ent was in accordance with the amended Rules. T he
merits o f the appointee and the reasons behind the amendment were not permitted
to be exam ined in a public interest litigation.
SEC. 124: Official Communications
- N o public officer shall be com pelled to disclose communications, m ade to him

in official confidence, when he considers that the public interest would suffer by the
disclosure**.
This section is confined to public officers whereas S e c 123 embraces everyone.
The court can co m p el the disclosure o f document, if the court disagrees with the
officer. Further, peop le have a ‘ right to know* how their State is functioning; the
State cannot withhold information on matters which have nothing to d o with
sovereignty o r State secrets.
SEC. 125: Information as to Commission of Offences
“N o Magistrate o r Public O fficer shall be compelled to say whence he g o t any
83. A Magistrate saw a docum ent during trial and confiscated it as a docum ent of
State. Is his action proper? \U.P. P C S Q) 1983[
O b je c tiv e g n t f g a a f
(Multiple Choice)
270. A loca l developm ent authority announced a housing sch e m e and
a ccepted applications under It, subsequently finding that the sch em e
w as In violation of the Master Plan cancelled it.
(a) It is free to do so without any shackles of promissory estoppel.
(b) It is not free to do so due to promissory estoppel.
(c) It is free to do so without any shackles of promissory estoppel as
there cannot be any estoppel against the Government in the exercise
of its sovereign, legislative and executive functions.
information as to the com m ission o f any offence, and no Revenue O fficer shall be
com pelled to say whence he go t any information as to the com m ission o f any
offence against the public revenue”.
The section is intended to encourage people to give information about offences
by protecting the source o f information, for otherwise, no one would like to give
such information. It is well established that the police may suppress the identity o f
the informants in the interest o f combating crime.
SEC. 126: Professional Communications
N o barrister, attorney, pleader or vakil shall at any time be permitted, unless with
his client’
s express consent, to —
(i) disclose any communication made to him by or on behalf o f his client84,
or any advise given by him to his client in the course and for the purpose
o f his employment;
(ii) state the contents or conditions o f any document with which he has becom e
acquainted in the course and for the purpose o f his professional employment;
(iii) disclose any advice given by him to his client in the course and for the
purpose o f such employment.
Provided that nothing in this section shall protect from disclosure -
(1) any such communication made in furtherance o f any illegal purpose,
(2) any fact observed by barrister, etc. in the course o f employment showing
that any crime or fraud has been committed since the com m encem ent
o f his employment.
It is immaterial whether the attention o f such barrister, etc. was or was not
directed to such fact by or on behalf o f his client.
Explanation - The obligation stated in this section continues after the employment
has ceased.
Illystrotjons
(a) A, a client, says to B, an attorney - “I have comm itted forgery and I wish \

(a) No action arises on the estoppel itself.
(b) Estoppel should be specifically pleaded.
272. Under Sec. 116:
(a) Estoppel operates in case of a tenant during the continuance of
tenancy or when the tenant remains in possession a fte r the
termination of tenancy by notice to quit.
(b) The tenant is estopped from denying the title o f landlord to the
property at the commencement of the tenancy.
(c) The tenant is estopped from denying the title of actual owner to the
property at the commencement of the tenancy.
(d) Both (a) and (b) are correct.
you to defend m e”. As the defence o f man known to be guilty is not a

criminal purpose, this communication is protected from disclosure.85
(b) A, a client, says to B, an attorney - “I wish to obtain possession o f
property by u se o f forged deed on which I request you to sue”. This
com m unication, being made in furtherance o f a criminal purpose, is not
protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him.
In the cou rse o f the proceeding, A observes that an entry has been made
in A’s account-book, charging A with the sum said to have been em bezzled,
which entry was n ot in the book at the comm encem ent o f his employment.
T his being a fact observed by B in the course o f his employment, show ing
that a fraud h as been com m itted sinc< the com m en cem en t o f the
proceedings, it is not protected from disclosure.
A “professional com m unication”means a confidential communication between
a professional (e.g. lawyer) and his client made to the former in the course, and for
the purpose, o f his em ploym ent as such adviser. The privilege attaching to confidential
professional disclosures is confined to the case o f legal advisers, and d oes not
protect those m ade to clergymen, doctors, etc. Further, no privilege attaches to
communication to an attorney or pleader consulted as a friend and n ot as an
attorney or pleader.
T he principle underlying Sec. 126 is that if communications to a legal adviser
were n ot privileged, a man w ould be deterred from fully disclosing his case, so as
to obtain prop er professional aid. Every person, however guilty, is entided to a fair
trial - which involves the service o f a counsel and counsel cannot defend his client
unless he knows the w hole truth.
85. A person approaches a lawyer, “I have forged the documents, kindly defend
m e”. Is it a privileged communication? [DelhiJ.S. 1996[ [U.P. P C S (J) 198S\
‘
A* went to a lawyer ‘B* and stated that he (A) had committed murder o f
and that he wanted to en gage him as his defence lawyer. ‘
B’replied that he did
not defend actual murderers and he would instead give evidence against him
(A) that he (A) had confessed his crime before him. Can *B’be allowed to
d epose against ‘
A*? [UP. P CS (J) 1986\
[Ans. No, B cannot be allowed to depose against A.)
Objective Question*
(Multiple Choice)
273. Who am ongst the following Is a competent witness as per Sec. 118?
(a) A child unable to understand the questions put to him.
(b) A person of extreme old age unable to understand the questions
put to him.
(c) A lu n a tic able to understand the questions put to him.
(d) A d e a f person.
274. A person Is com petent to testify:
(a) If he understands the questions put to him.
(b) If he can give rational answers.
(c) Depends on the court's discretion.
T he privilege extends only to communications made to a lawyer confidentially

and with a view to obtaining professional advise [Franji Bhicaji v Mohan Singh Dhan
Singh (1893) 18 B om 263]. The prohibition extends to all com m unications (oral or
documentary) made in confidence pertaining to any pending or contem plated case
or for the purpose o f soliciting professional advice.
T he counsel has right to claim privilege and refuse to show the statement o f
witnesses recorded by the court in extenso and supplied to him in order to prepare
him self for an effective cross-examination, if he has recorded instructions o f his
client on these statements (Suptd\ <& Remembrancer Legal Affairs, W.B. v S. Bhowmick
A IR 1981 SC 917).
Exceptions to Sec. 126

‘Explanation' to Sec. 126 em bodies the rule ‘ on ce privileged always privileged'.
Thus, if the com m unication is made during the existence o f the relationship the
privilege d oes n ot get terminated by the termination o f the litigation or the death
o f the parties. T h e privilege under Sec. 126 is, however, subject to few exceptions'.
(1) Communication made in furtherance o f illegal purpose (proviso 1) — Such
communications are not protected viz. where a client consulted a lawyer for
the purpose o f drawing up a bill o f sale which was alleged to be fraudulent
(2) Crime orfraud since employment began (proviso 2) —I f a lawyer finds in the course
o f his employment that any crime or fraud has been committed since the
employment began, he can disclose such information. It is based on the
rule that no private obligation can dispense with that universal one which
lies on every member o f society to disclose every design, which may be
formed contrary to laws o f society, to destroy the public welfare.
(3) Disclosure with express consent o f client —waiver o f privilege. This section has
been enacted for the protection o f the client and not o f the lawyer. The
lawyer is therefore bound to claim privilege unless his client waives it.
(4) Information falling into hands o f third person — I f the com m unication is
overhead by a third person, he may be com pelled to d isclose it. The
prohibition works against the lawyer, but not against any other person.
(5) Lawyer's suit against client — I f the lawyer him self sues the client for his
professional services, he may disclose so m uch o f die inform ation as
is relevant to the issue.
275. Who amongst the following Is not a com petent witness?

(a) A police officer.
(b) A victim of rape.
(c) A dumb person.
(d) An accused person in proceedings in which he is an accused.
276. Husband and wife:
(a) Are competent witnesses against each other in m atrim onial cases.
(b) Are not competent witnesses against each other as they are one
person in law.
(c) Are competent witnesses against each other in civil cases only.
(d) Are competent witnesses against each other in civil as well as
criminal cases.
(6) Joint interest - N o privilege attaches to communication between solicitor

and client as against persons having a joint interest with the client in
the subject matter o f communication e.g. as between partners, a company
and its shareholders.
(7) Documents already put on record - N o privilege is available in respect o f
such documents.
SEC. 127: Sec. 126 to Apply to Interpreters, etc.
T h e provisions o f Sec. 126 apply to interpreters, and the clerks or servants o f

barristers, pleaders, attorneys and vakils.
They are also likely to com e to know o f the confidential information relating
to litigation. A paid or salaried employee ’ > advises his employer on all questions
o f law and relating to litigation must get th same protection o f law.
SEC. 128: Privilege N ot Waived by Volunteering Evidence
Sec. 128 lays down that if the party making the communication under Sec. 126
gives evidence (at his own instance or otherwise) o f the matter covered by the
communication, that does not amount to a waiver o f privilege. Even if such party
calls the lawyer as a witness, it will not amount to a consent to disclosure. But if
he questions the lawyer on the very matter o f the communication mat will amount
to consent and by reason o f it the lawyer can disclose the communication.
SEC. 129: Confidential Communication with Legal Advisers
T h e bar o f Sec. 126 is partially lifted by Sec. 129 —N o one shall be compelled to
disclose to the court any confidential communication which has taken place between
him and his legal adviser; but when a client offers himself as a witness, he may be
compelled to disclose such communication as may appear to the court necessary to
be known in order to explain any evidence which he has given, but no others.
Objective Question*
(Multiple Choice)
277. A judge or magistrate Is a competent witness. In which of the following
cases, he can be a witness only upon the special order of a higher
court:
(a) A, on his trial before the Court of Session, says th a t a deposition
was improperly taken by B, a Magistrate. B can be compelled to
answer as to this.
(b) A is accused before the Court of Session of attem pting to m urder
a police officer whilst on his trial before B, a Session Judge. B may
be examined as to what occurred.
It may be noted that Sec. 126 prohibits a lawyer from disclosing matters which
have c o m e to his knowledge from his client for the professional purpose. Sec. 129,
o n the other hand, places the client beyond the range o f com pulsion as to matters
w hich have passed between him and his professional legal adviser.
SEC. 130: Production of Title deeds of Witness, Not a Party
A c c o r d in g to this section, an ordinary witness i.e. a witness w ho is n ot a party,

cannot be com pelled to produce — (i) his title-deeds to any property, (ii) any docum ent
by which he becam e the pledgee or m ortgagee o f any property, and (iii) any docum ent
which m ight tend to criminate him. But he can be so com pelled if he has agreed
to produ ce any such docum ent with the person seeking its production.
SEC. 131: Production of Docum ents or Electronic Records
T h i s section, an extension o f Sec. 130, lays dow n that if any person is entided to
refuse the production o f a docum ent, the privilege or protection o f the docum ent/
electronic record should n ot suffer simply because it is in the possession o f another
person. Thus, a person in p o ssessio n o f other person ’ s docum ents (e.g. attorney,
vakil) is n ot com pellable to produ ce them, unless that person (owner o f documents)
consents to their production.
SEC. 132: Witness N ot Excused from Answering Incriminating Questions86
S ec. 132 lays dow n that where a question put to a witness is relevant to the matter
in issue in any suit or in any civil or criminal proceeding, the witness can be
com pelled to answer it and he cannot be excused from answering it simply because
the answer would tend to criminate him to civil o r criminal liability or to a penalty
86. Can a witness be excused from answering any question upon the grou nd that
the answer to such question will criminate such w itness? [Raj.J.S. 199J\
What safeguards are provided to a witness w ho is com p elled to answer a
question and makes in his answer an inculpatory statement? [Raj.J.S. 1999[
278. Privileged communications relate to:

(a) Matters which a witness cannot be compelled to disclose.
(b) Matters which a witness is willing to disclose but not permitted to do so.
(d) Only (b).
(a) Communication between a man and his wife made during or after
the dissolution o f marriage are prevented from being disclosed.
(b) Confidential com m unication between a man and his w ife are
prevented from being disclosed.
(c) Confidential communication between a man and his wife made
during the marriage are prevented from being disclosed.
(d) Any communication between a man and his wife m ade during the
marriage are prevented from being disclosed.
or forfeiture. Thus, it is tiot in the pow er o f the judge to excuse a witness from
answering if the question is relevant to the issue.
T h e proviso to this section, however, protects the witness in an important way.
It provides that if a witness has been com pelled to give an answer, his answer
should n ot b e u sed to subject him to any arrest or prosecution; nor the answer can
be proved against him in any criminal proceeding.
Thus, the answers, which die witness is compelled to give, should not constitute
any eviden ce against him. But, if the answer is false, the witness may be prosecuted
for giving false eviden ce (i.e. perjury).
“T h e o b je c t o f the law is to afford a party, called upon to give evidence,
protection against bein g brought by means o f his own evidence within the penalties
o f the law.”Sec. 132, however, is essentially designed not to deprive the court o f the
inform ation (solely within the knowledge o f a witness) essential to its arriving a
right decision.
T h e protection is not available when a witness voluntarily answers without any
com pulsion. W h en a witness objects to a question being put to him or when he asks
the cou rt to b e excu sed from giving answer but he is com pelled to give answers, he
is said to be “co m p elled ” to give evidence. They suppose an objection from the
witness, which has been over-ruled by the judge, and a constraint put u pon the
witness to answer particular question.
T h e c o m p u lsio n referred to in proviso does not include the com pulsion by the
general law o f the land (viz. fear o f punishment under Sec. 179, IPC). This is a
com pulsion w hich acts against every witness and is inherent in the very idea o f a
person, bein g a witness. T h e giving o f evidence is a matter o f duty and n ot o f
compulsion.
Further, Sec. 132, Evidence A ct does not apply to a statement m ade by a
person during an investigation under Sec. 161, Cr.P.C. A person w h o is interrogated
under Sec. 161 by a p o lice officer making an investigation is not a witness.
(Multiple Choice)
(a) Admissibility of the evidence under Sec. 122 has to be adjudged in
the light of the status on the date when the com m unication was
made.
(b) Admissibility o f the evidence under Sec. 122 has to be adjudged in
the light o f the status on the date when the evidence is to be given
in th e court.
(c) Under Sec. 122, a spouse shall not be compelled to d isclo se
comm unication made during the marriage and th a t they shall not
be even permitted to disclose even if he or she volunteers to do so.
(d) Such communication remains protected even after the d is so lu tio n
of m arriage or when one spouse dies.
A C C O M P L I C E E V I D E N C E 87
A n accomplice is a person w ho has taken part in the com m ission o f a crime - a guilty
associate or partner in crime. When m ore than one person in concert com m its an
offence, every on e participating in its com m ission is an accomplice. H e is called an
approver if he is granted pardon under Sec. 306 o f the C od e o f Criminal Procedure
1973. An accom plice by becom ing an approver becom es prosecution witness. When
he appears as a witness for the prosecution against the accused person with w hom
he acted together in the com m ission o f the crime, the question arises as to what
is the value o f the evidence o f a form er criminal turned witness. T w o provisions
in the Act touch this problem.
SEC. 133: A ccom plice
“
An accom plice shall be a com petent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony
o f an accomplice.”
Sec. 114: Illustration (b)

“T he court may presum e that an accom plice is unworthy o f credit, unless he is
corroborated in material particulars.” However, Sec. 114 also gives two instances
when this d oes not apply - A person o f the highest character, is tried for causing
a m an’s death by an act o f negligence in arranging certain machinery. B, a person
o f equally g o o d character, w h o also took part in the arrangement, describes precisely
what was done, and admits and explains the com m on carelessness o f A and himself.
87. Who are accom plices under the Evidence Act? Under what circum stances a
conviction can be based on the testimony o f an accom plice? Illustrate your
answer and discuss whether you agree with the following statement: “The
testimony o f the man o f the very lowest character who has thrown to the
wolves the erstwhile associates and friends in order to save his own skin and
who is a criminal and has purchased his liberty by betrayal, must be received
with very great caution.”
[U.P. P C S (J) 1982/1987\[DelhiJ.S. 198(J[[BiharJ.S. 1987/1991\
Who is an approver? [Raj.J.S. 1994[
281. In which of the following cases, the protection under Sec. 122 Is not available?
(a) Acts or conduct o f spouses apart from communications.
(b) Waiver of privilege i.e. evidence given by a spouse with the consent
of the party who made the communication.
(c) Suit or criminal proceeding between the two spouses.
T he other instance is - A crime is committed by several persons. A, B, and

C three o f the criminals, are captured on the spot and kept apart from each other.
Each gives an account o f the crime implicating D, and the accounts corroborate
each other in such a manner as to render previous concert highly improbable.
There is n o antithesis between Sec. 133 and S e c 114, illustration (b), because
the latter only says that the court ‘ may’presume a certain state o f affairs. It does
not seek to raise a conclusive presumption. Sec. 133 is a clear authorization to the
courts to con vict o n the corroborated testimony o f an accomplice, but since such
a witness, being criminal himself, may not always be trustworthy, the courts are
guided by the Sec. 114, illustration, that, if it is necessary the court should presume
that he is unreliable unless his statements are supported or verified by som e
independent evidence (Dagdu v State o f Maharashtra (1977) 3 SCC 268.
Sec. 133 lays d ow n a rule o f law. But S ec 114, illustration (b) lays dow n a rule
o f prudence. This rule o f prudence has now com e to be accepted as a rule o f law
by judicial legislation both in Indian and English law.?8
Insistence on C orroboration o f Accom plice Evidence by Courts88*

The evidence o f an accom plice should stand the test o f verification at least in main
points. T his is known as corroboration. There are the following dangers in accepting
the “uncorroborated testimony”o f an accomplice:
(1) H e is participes criminis (a participant in the com m ission o f actual crime),
hence evidence com es from a tainted source.
(2) H e has been faithless to his companions and may be faithless to the court
88. A ccording to Sec. 114 (b), ‘ the court may presume that an accom plice is
unworthy o f credit, unless he is corroborated in material particulars’
. According
to Sec. 133, ‘
an accom plice 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 accom plice’ . Reconcile the above opposite
statements and quote cases. [U.P. PCS (J) 1984\ [D elhi J.S. 1982[
88a. “T h e law contained in Sec. 133 o f the Indian Evidence Act is not a g o o d law
and hence the practice o f the court is otherwise.”Examine the statement.
[U.P. PCS 0) 1997[ [Raj.J.S. 1999\
Objective Qmm
csUo
m s
m
(Multiple Choice)
282. If a correspon den ce (e.g. letter) containing communication from a
husband to wife (or vice versa) falls Into the hands of a third person:
(a) It is admissible in evidence.
(b) It is inadmissible in evidence.
(c) It is inadmissible in evidence until consented to by the writer of the
communication.
283. Which of the following is not a case coming under Sec. 122 (Privileged
communications between husband and wife):
(a) Queen Empress v Danoghue.
(b) M.C. Verghese v TJ. Ponnan.
(c) Ram Bharose v State of U.P.
(d) Franji Bhicaji v Mohan Singh Dhan Singh.
because he has m otive to shift the guilt from him self to his form er
companions.
(3) I f he is an approver (i.e. granted pardon), he has been favoured by the State
and is therefore likely to favour the State.
T hese reasons dictate the necessity for corroboration. In fact, an approver’ s
evidence has to satisfy the double test: (i) his evidence must be reliable; (ii) his
evidence should be materially corroborated. ‘ Every person w ho is a competent
witness is n ot a reliable witness and the test o f reliability has to be satisfied by an
approver all the m ore before the question o f corroboration o f his evidence is
considered by criminal courts.’
T he nature and extent o f corroboration o f accom plice evidence must necessarily
vary with the circumstances o f each case. But the guiding rules laid dow n in R. v
Baskervit/e (1916 2 KB 658) are clear beyond controversy. They are:
(1) It is not necessary that diere should be independent confirmation, in
every detail, o f the crime related by the accomplice. It is sufficient if
there is a confirmation as to a material circumstance o f the case.
(2) The confirmation by independent evidence must be o f the identity o f
the accused in relation to the crime. Thus, there must be confirmation
that not only has the crime been com m itted but that the accused
comm itted it.
(3) The corroboration must be by independent testimony i.e. by som e evidence
other than that o f the accomplice, and therefore, one accom plice cannot
corroborate the other.
(4) The corroboration need not be by direct evidence that the accused
committed the crime; it may even be circumstantial.
In Rameshwar v State o f Rajasthan (1952) SCR 370, the Supreme Court has
confirmed the said rules. In Ravinder Singh v State o f Haryana (AIR 1975 SC 856),
the accused was charged with murder o f his wife. His friend turned approver, w ho
disclosed the accused’s intimacy with other girl The accused had hatched a conspiracy
with the help o f approver. Held that the approver was reliable and his statement
was corroborated by independent witnesses (that the accused was accom panying the
deceased in the train). The approver’s test is fulfilled if the story he relates involves
him, and the story appears to be natural and probable catalogue o f events, and the
story must implicate the accused in such a manner so as to give rise to conclusion
o f guilty beyond reasonable doubt.
284. Which section of the Evidence Act protects unpublished State records
from being disclosed?
(a) Sec. 122.
(b) Sec. 123.
(c) Sec. 124.
(d) Sec. 125.
(a) The court can summon any document and decide whether the
document relates to the 'affairs of State’.
(b) The court may inspect the document and if it finds th a t any part of
the document is Innocuous (not related to affairs of State) it could
order disclosure of such part.
(c) The court can examine the documents.
In Bhuboni Sahu v Emperor (AIR 1949 PC 257), the court observed: A com bined
reading o f Sec. 133 and illustration (b) to S ec 114 makes it clear that whilst it is
not illegal to act o n an uncorroborated evidence o f an accomplice, it is a rule o f
prudence s o universally follow ed as to amount almost to a rule o f law that it is
unsafe to act o n the evidence o f an accomplice unless it is corroborated in material
respects s o as to im plicate the accused. The corroboration must be not only with
regard to the occurrence, but also as against each o f the accused. The evidence o f
one a ccom plice cannot be used to corroborate the testimony o f another accomplice.
Further, an accom plice cannot corroborate himself. The previous statement
o f approver (even recorded under Sec. 164, Cr.P.G) cannot be used fo r the
corroboration o f his testimony. A tainted evidence does not lose its taint by repetition.
He may im plicate ten peop le in an offence, and the story may be true in all its details
as to eight o f them, but untrue as to the other two, whose names have been
introduced because they were enemies o f the approver.
This tendency to include the innocent with the guilty is particularly prevalent
in India. T h e only real safeguard against the risk o f condem ning the innocent with
the guilty lies in insisting on independent evidence which in som e measure implicates
each accused. T h e court, where there is no opportunity o f previous concert, can
consider co n fessio n o f co-accused.
In Haroon H a ji v State o f Maharashtra (AIR 1968 SC 832), held that if several
accom plices give evidence (identical version) implicating the accused, the court may
act on it if it is satisfied that there was no opportunity for prior con cert However,
such confession must inspire confidence both in its content and in manner and
circumstances o f its making e.g. all accused were detained separately and they had no
chance o f meeting each other before the trial.
In State ofT.N . v Suresh (AIR 1998 SC 1044), it observed: “ The law is not that
the evidence o f an accom plice deserves outright rejection if there is no corroboration.
What is required is to adopt great circumspection and care when dealing with the
evidence o f an accom plice”. The fact that the testimony o f an accom plice was
found to be n ot acceptable in respect o f one o f the accused persons for want o f
independent corroboration should not be taken to cast a doubt upon her reliability
as a witness in respect o f other accused persons (Ramadhar Basu v State o f 1V.B. AIR
2000 SC 908).
O b je c t iv e Q u e e t io a M
(Multiple Choice)
286. Which section of the Evidence Act lays down that no public officer
shall be com pelled to disclose communications, made to him In official
confidence?
(a) Sec. 1 2 3 .'
(b) Sec. 124.
(c) Sec. 125.
(d) Sec. 126.
287. Under Sec. 125, can a police officer be com pelled to d isclose the
source of Information as to the commission of an offence?
(a) Yes.
(b) No.
(c) The court will decide.
Who is Not on Accomplice

T he follow ing classes o f persons are not accomplices:
(i) When a person, under threat o f death or other form o f pressure, com m its
a crime along with others, he is not a willing participant in it, but victim o f
such circumstances.
(ii) A person who witnesses a crime, and does not give information o f it out o f tenor
(iii) Detectives, paid ‘informers’and ‘ trap or decoy witnesses’
*® * (to trap the accused)
are not accomplices. A court may convict on an uncorroborated testimony
o f trap witnesses if it is satisfied o f their truthfulness (Prakasb Chand v State
AIR 1979 SC 400).
It is always for the judge to decide whether it is safe to rely and act upon a
trap-witness. His partiality for the prosecution is a factor which can hardly be
ignored. The character, position in life, and the social standing o f the witness would
g o a long way in helping the judge to appreciate his evidence.
Confession o f Co-accused v A ccom plice Evidence

Sec. 30 (Confession o f co-accused) lays dow n that when m ore persons than one are
being tried jointly for the same offence, and a confession made by on e o f such
persons affecting him self and som e other o f such persons is proved, the court may
take into consideration such confession as against such other person as well as
against the person w ho makes such confession.
The confession o f a co-accused is not treated in the same way as the testimony
o f an accomplice:
(1) The confession o f co-accused is not “evidence”, as it is not recorded
on oath, nor it is given in the presence o f the accused and nor its truth
can be tested by cross-examination. . '
T he accom plice evidence is taken o n oath and tested by cross-
examination; a higher probative value is thus given to it.
(2) The confession o f co-accused must only be taken into consideration
along with other evidence in the case, and it cannot alone form the
basis o f a conviction.
A conviction is not illegal merely because it p roceed s u p on the
corroborated testimony o f an accomplice.
/
88b. W rite a s h o r t n o t e o n : D e c o y w itn e s s . [D elh iJ.S.1984/1
288. Mark the Incorrect statement In relation to professional communication

between a client and his legal advisor under Sec. 126:
(a) No barrister shall a t any tim e be perm itted to disclose any
communication made to him by or on behalf o f his client, or any
advise given by him to his client in the course and for the purpose
of his employment.
(b) The privilege extends only to communications made to a lawyer
confidentially and with a view to obtaining professional advise.
(c) If the communication is made during the existence of the relationship
the privilege does not get terminated by the term ination o f the
litigation or the death of the parties.
(d) The privilege also attaches to communication to an attorney or
pleader consulted as a friend.
(3) The philosophy o f Sec 30 is that confession o f co-accused affords som e sort
o f sanction in support o f the truth o f his confession against others and himself
An a ccom plice evidence is also not free from criticism. “
An approver is a m o st
unworthy friend, if at all, and he, having bargained for his immunity, must prove
his w orthiness for credibility in cou rt”. However, the Supreme Court has taken care
o f it by insisting on corroboration. In many cases o f prosecution o f m em bers o f
organized crime, an approver and few co-accused may be the only evidence and it
is obvious that such persons would never be convicted if S e c 133 was n ot there
in the statute book.
Retracted evidence and approver’
s evidence —In the case o f the person confessing w h o has
resiled from his statement Le. retracted confession, general corroboration is sufficient,
while an a ccom p lice’ s evidence should be corroborated in material particulars. W hen
com pared to a retracted confession and to an approver’ s evidence, ‘
dying declaration’
stands o n a very high level. Corroboration is needed in the two cases but in the case
o f dying declaration it cannot be laid down as an absolute rule that a dying declaration
cannot form the sole basis o f conviction unless corroborated.
Evidence o f prosecutrix — T h e evidence o f a prosecutrix (victim o f rape) cannot be
treated as the evidence o f an accom plice requiring corroboration. Like the evidence
o f any other injured witness, the evidence o f a girl or woman raped o r m olested
should bear weight. T h e Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars (State o f Maharashtra v C.K.
Jain A IR 1990 S C 658).
SEC. 134: N u m b e r o f W itn esses** (Testim ony o f S o le W itn e ss w h e th e r

Reliable?)
“N o particular number o f witnesses shall in any case be required for the p r o o f o f
any fact.”H o w many witnesses are necessary for the p r o o f o f a fact is wholly left
to the judgm ent o f the co u rt As a general rule, a court can and may act o n the
testimony o f a single witness, though uncorroborated. One credible witness outweighs
the testimony o f a number o f other witnesses o f indifferent character. S e c 134 marks
a departure from the English law on this point
89. Write a short note on: Maxim- ‘

Evidence has to be weighed and not cou n ted’ .
[D elhi J.S. 1996]
Objective Quentiona
(Multiple Choice)
289. The protection under Sec. 126 Is not available for:
I. Communication made In furtherance of Illegal purpose.
II. Any fact observed by barrister In the course of employment showing
that any crime or fraud has been committed since the com m encem ent
o f his employment.
HI. Lawyer’ s suit against client.
IV. Docum ents already put on record.
V. Information falling Into hands of third person.
(a) I, II, III and IV.
(b) II, IV and V.
(c) I. II, III and V.
(d) I, II, III, IV and V.
“The public are generally reluctant to come forward to depose before the
court. It is, therefore, not correct to reject the prosecution version only on the
ground that all witnesses to the occurrence have not been examined. N or is it
proper to reject the case for want o f corroboration by independent witnesses if the
case made out is otherwise true and acceptable”[State o f U.P. v A n il Singh AIR 1988
SC 1998].
The Supreme Court has in a number o f cases sustained convictions on the
basis o f die testimony o f a sole witness. It has opined that it is the quality (veracity)
and not quantity o f evidence that matters. The testimony o f single witness if it is
straightforward, cogent and if believed is sufficient or wholly reliable to prove the
prosecution case, the conviction can be based on it. The sole witness whose testimony
was neither consistent nor corroborated by medical evidence, other circumstances
also showing his unreliability, conviction on such testimony could not be sustained.
The infirmity in the testimony o f the sole eyewitness, if o f minor nature, could be
ignored [Badri v State o f Rajasthan (1976) 1 SCC 447; Jayaram Shiv Tagore v State of
Maharashtra A IR 1991 SC 1735],
The court cannot be asked to insist upon corroboration by other witnesses
particularly where the time and place o f occurrence exclude the possibility o f the
presence o f any other witness. However, sometimes the nature o f the testimony o f
the witness itself requires, as a rule o f prudence, the corroboration, viz. in the case
o f a child witness, or a witness who is accomplice or o f an analogous character.
In cases o f rioting, etc. it would be prudent to insist upon at least two reliable
witnesses to testify to the participation o f a particular accused person. Where an
offence involves a large number o f offenders and victims, a conviction can be
sustained only if it is supported by two or three or even more witnesses [Wakil Singh
v State of Bihar AIR 1981 SC 1392].
290. In which of the following cases, the protection under Sec. 126 will not
be available:
(a) A, a client, says to B, an attorney - "I have committed forgery and
I wish you to defend me".
(b) A, a client, says to B, an attorney - “I wish to obtain possession of
property by use of forged deed on which I request you to sue”.
(d) Only (b).
291. A witness who Is not a party, cannot be compelled to produce
(a) his title-deeds to any property.
(b) any document by which he became the pledgee or mortgagee of
any property.
(c) any document which might tend to criminate him.
Law of Evidence 177
CHAPTER X
OF THE EXAMINATION OF WITNESSES
[SECS. 135-166]
SEC. 135; Order of Production and Examination of Witnesses
R ecordin g to Sec. 135, ‘

the order in which witnesses are to be produced and
examined shall be regulated by the law relating to civil and criminal procedure
respectively and, in the absence o f such law, by the discretion o f the court’
.
Order XVIII o f C.P.C. and the Chapters XVIII, XX, XXI, XXII and XXVIII
o f Cr.P.C. deal with the manner o f the examination o f witnesses. In civil cases, the
party who has die right to begin i.e. on whom the burden o f proof lies examines
his witnesses first. -In criminal cases, the prosecution has to examine its witnesses
first.
Primarily it is lawyer’
s privilege to determine the order in which the witnesses
should be produced and examined. The order is to be decided by the party leading
his evidence. However, Sec. 135 gives the court a power to dictate the order in
which the witnesses may be produced.
Exclusion of Witnesses from Courtroom - The witnesses should be examined one-by-
one and when a witness is being examined, other witnesses to be examined afterwards
must not be allowed to remain in the courtroom. If a witness remains so, his
examination cannot be refused; however, a note is to be made to the extent that he
was present in the courtroom when another witness was being examined.
SEC. 136: Judge to D ecide as to Admissibility of Evidence
"W hen either party' proposes to give evidence o f 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.”
\ Objective Quemtions
(Multiple Choice)
292. Linder Sec. 132, where a question put to a witness Is relevant to the
matter In Issue In any suit or In any civil or criminal proceeding but the
answer woulej tend to criminate him to civil or criminal liability or to a
penalty or forfeiture, then:
(a) The witness can be compelled to answer it.
(b) The witness cannot be compelled to answer it.
(c) The answers, which the witness is compelled to give, should
constitute an evidence against him.
17Q Law Guide for Judicial Service Examination
A Judge has been so em pow ered in order that the p r o o f may be confined to
relevant facts. T he court must, at the time when the evidence is tendered, decide
w hether o r not it is admissible. A Judge may allow the evidence to be placed on the
record provisionally, and subject to objection, in cases where that course would
ultimately save time. But the question o f admissibility is to be decided after the
cou n sel has been given an opportunity to address the court on the point. A party
seeking to put a docum ent in evidence must show the section o r provision under
which the docu m ent is admissible.
Sec. 136 also em pow ers the court to control the sequence o f the production
o f evidence in the case where the p r o o f o f on e fact is dependent on the p r o o f o f
another fact. In such cases, the other fact should be proved before the evidence o f
the first fact is offered. Thus, if a person wants to prove a dying declaration he must
prove that the person w hose declaration it is su pposed to be, is dead [I/l/tst. (a)].
Similarly, if a party wants to give the secondary evidence o f a docum ent on
the ground that he has lost the original, he should first prove the loss o f the original
[Must. (b)]. However, in order to assure the flexibility o f the procedure, the court
may allow the evidence o f the first fact without p r o o f o f the secon d if the party
undertakes to prove the secon d at a subsequent stage.
Sec. 136 further lays dow n that where the relevancy o f one alleged fact depends
upon the p r o o f o f another fact, the court may allow the first fact to be proved
without p r o o f o f the secon d and may require the secon d fact to be proved
subsequently. Where, for example, it is sought to be proved that the stolen property
was recovered from the possession o f the accused, but the accused denies it.
Logically, it should first be proved that the property in fact recovered was on e that
was stolen. But the court may allow the recovery to be proved before the identity
o f the property is established [I/Iust. (c)].
It is p rop osed to prove a fact (A) which is said to haye been the cause o r effect
o f 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 o r effect o f the fact
in issue. T he Court may either perm it A to be proved before B, C and D is proved,
*or may require p r o o f o f B, C and D before perm itting p r o o f o f A [Must. (d)].
293. An accom plice:

(a) Is a guilty associate or partner in crime for which the accused is
charged.
(b) Is called an approver if he is granted pardon under Sec. 3 0 6 of the
Code of Criminal Procedure, 1973.
(c) By becoming an approver becomes prosecution witness.
.(d) All are correct.
SBC. 137: Exam ination-in-Chief, Cross-Exam ination, Re-Exam ination90
T h e testim ony o f a w itness is recorded in the form o f answers to questions put

to him. W itnesses are n o t permitted to deliver a speech to the court. This way, their
testimony can be co n fin ed to the fact relevant to the issue. Such questioning o f the
witnesses is called his examination.
A ccording to Sec. 137, ‘ the examination o f a witness by the party who calls
him shall be called his examination-in-chief\ ‘the examination o f a witness by the
adverse party shall be called his cross-examinatiotf; and, ‘
if the party who has called
a witness seeks to question him again after the cross-examination that is known as
re-examination.9
Examination-in-chief. W hen a witness appears before the court, he is given oath or
affirmation; his nam e and address is taken down. Then the party w ho calls him,
examine him to elicit the truth and to prove the facts which bear upon the issue
in favour o f that party. This is called ‘
examination-in-chief\ It may be noted that
the witness can give evidence o f fact only and no evidence o f law.
Cross-examination-. After the party calling a witness has finished the examination-in-
chief, the op p osite party has a right to cross-examine the witness The purpose o f
‘cross-examination* is to expose the truth about the testimony o f the witness The
object o f the cross-examination is three-fold: First, to elicit from an adverse witness
something in your favour; second, to destroy or weaken the force o f what the witness
has said against you, and third, to show from the present attitude o f the witness or
from his past experience that he is unworthy o f belief in whole or in part.
T he lawyer seeks to discover the flaws, if any, in the testimony o f the witness
and also to unmask perjury by the m ethod o f cross-examination. Opportunity to
90. E xplain the s c o p e o f examination-in-chief, cross-exam ination and re

examination under the Indian Evidence Act. State briefly their objects.
[UP. PCS (J) *M7\ [R»j.J.S. 1999[
[Note-. Also see Secs. 138-140].
What is the difference between examination-in-chief and cross-examination?
[Raj.J.S. 199T\
Objective Questions
(Multiple Choice)
294. What Is provision about an accomplice?
(a) He is not a competent witness.
(b) His evidence is irrelevant.
(c) His evidence should be believed blindly.
(d) His evidence is relevant under Sec. 114 and 113 o f Evidence Act.
[M.P. CJ. {Prelim.) 1 9 9 9 )
295. An accom plice Is a competent witness against the a ccu sed under:
(a) Sec. 118.
(b) Sec. 121. *
(c) Sec. 133.
(d) Sec. 135.
cross-examine a witness must be provided to the party. A tenant w ho wanted to

cross-examine the old landlady allowed to d o so if he could arrange for travel
[.PyarelaI v Devi Sbanker A IR 1994 M.P. 115].
Re-examination. The party w ho called the witness may, if he likes and if it be necessary,
‘
re-examine* him. The purpose o f it is die explanation or clarification o f the expressions
used by the witness in cross-examination.
S E C . 138: O r d e r o f E xam ination

“W itnesses shall be first examined-in-chief, then (if the adverse party s o desires)
cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the
cross-examination need not be confined to the facts to which the witness testified on
his examination-in-chief.
Direction o f re-examination. The re-examination shall be directed to the explanation o f
matters referred to in cross-examination; and if, new matter is, by perm ission o f the
court, introduced in re-examination, the adverse party may further cross-examine
upon that matter.*’
T he follow ing important points may be noted:
(i) Cross-examination can extend to all the relevant facts, whether touched
in the examination-in-chief or not.
(ii) A witness cannot be thrown open to cross-examination unless he is first
examined-in-chief. Where the prosecution did not examine its witness and
offered him to be cross-examined, held that this amounted to abandoning
on e’
s owm witness. Such an approach seriously affected the credibility o f
the prosecution case [Sukfjtvant Singh v State of Punjab AIR 1995 SC 1601].
(iii) Effect o f not cross-examining.90a When a fact is stated in examination-in-
chief and there is no cross-examination on that point, naturally it leads
to the inference that the other party accepts the truth o f the statement.
But there arc several exceptions to this rule: (i) where the witness had notice
before hand, (ii) where the story itself is o f an incredible or romantic character, (iii)
90a. “Where a party fails to question his oppon en t’

s witness, the presum ption is
that his evidence is accepted.” Elaborate this statement and indicate the
exceptions, if any. [D elh iJ.S.1991]

(a) A conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.
(b) An accomplie" is unworthy of credit, unless he is corroborated in
material particulars.
(c) It is not illegal to act on an uncorroborated evidence of an
accomplice, but it is a rule of prudence that it is unsafe to act on
such evidence unless it is corroborated in material respects.
(d) The evidence of one accomplice can be used to corroborate the
testimony of another accomplice.
v^here the n on cross-examination is from the motive o f delicacy, (iv) where counsel
indicates that he is n ot cross-examining to save time, and (v) where several witnesses
^ e examined o n the sam e point, all need not be cross-examined. Further, if the oral
testimony o f a w itness is on the face o f it unacceptable, courts are not bound to
accept it merely because there was no cross-examination \Juwar Singh v State o f M . P .
AIR 1981 S C 373].
(iv) A cross-examination follows upon the examination-in-chief, unless the
court, for so m e reason, postpones it. The court may permit the person
w h o calls a witness to cross-examine him under som e circumstances.
(v) I f a w itness after being examined in chief d oes not appear to subject
him to cross-examination his evidence becom e valueless [Gopal Sarvan
v. Satya Narayan AIR 1989 SC 1141].
(vi) A co-defendant in a case can be cross-examined by another co-defendant
w hen their interests are adverse to each other.
(vii) T h e p rop er limit o f re-examination is to confine it to an explanation
o f the matters dealt with in cross-examination. If the re-examination
introduces new matter, the adverse party will have the right to cross-
examine the witness over that new matter.
(viii) A n order o f re-examination can be made by the court on an application
by a party. It is not restricted to the court's own motion.
SEC. 139: C ross-E x a m in a tion o f P erson called to P rod u ce a D o c u m e n t
“
A person sum m oned to produce a docum ent does not becom e a witness by the
mere fact that he produces it and cannot be cross-examined unless and until he is
called as a witness.”
A person may be sum m oned to produce a docum ent without being sum m oned
to give evidence. Such witnesses will not be cross-examined unless and until they
give som e oral statement. W here the wife o f a partner was called u pon to produ ce
the deed o f dissolution o f the firm, she was not permitted to be examined as a
witness [Parmesbwari Devi v State A IR 1977 SC 403).
Objective Qinemtioas
(Multiple Choice)
297. Who among the following Is not an accom plice?
(a) A raped girl.
(b) An eye-witness to a murder.
(c) Trap or decoy witnesses.
(a) The confession of co-accused is not “evidence**, as it is not recorded
on oath, nor it is given in the presence of the accused and nor its
truth can be tested by cross-examination.
(b) The accomplice evidence is taken on oath and tested by cross-
examination; a higher probative value is thus given to it.
(c) The confession of co-accused can alone form the basis of a conviction.
(d) A conviction is not Illegal merely because it proceeds upon the
corroborated testimony of an accomplice.
S E C . 140: W itn e ss e s t o C h a ra cter
“V i^itnesses to character may be cross-examined and re-examined”. A witness w ho

appears to give evidence o f a party’ s character may be cxamined-in-chief and may
a b o be cross-examined and re-examined. The evidence o f character is meant to
assist die court in estimating the value o f evidence brought before the court through
the mouth o f a witness.
SE C . 141: L eading Q u e stio n s91
“A n y question suggesting the answer which the person putting it wishes or expects
to receive is called a leading question.”
SEC. 142: W h en T h ey Must N o t b e A sked
question must not, if objected to by the adverse party, be asked in an

examination-in-chief o r in a re-examination, except with the perm ission o f the
Court.
T he Court shall perm it leading questions as to matters which are introductory
or undisputed, o r which have in its opinion, been already sufficiently proved.”
SEC. 143: W h e n T h ey May b e A sked
“L ea d in g questions may be asked in cross-examination.”

A ‘ leading question’is on e which suggests to the witness the answer which it
is desired he should give (Le. the question carry an in-built answer in it). A question
is leading on e when it indicates to the witness the real or supposed fact which the
examiner expects and desires to be confirm ed by the answer.
Thus, the follow ing are the instances o f leading questions: Is not your name
so and so? D o you n ot reside in such and such place? Are you not in the service
91. What are leading questions? Who can put them? Illustrate your answer.
[UP. P C S (J) 1984/1987/1988\ [Ra/.J.S. 1992[ [Bihar J.S. 1987\
299. Which of the following Is not a leading ca se on accom plice evidence?

(a) Bhuboni Sahu v Emperor.
(b) Ravinder Singh v State of Haryana.
(c) R. v Baskerville.
(d) R.K. Jain v Union o f India.
300. What number of w itnesses will be required for the proof of any fact?
(a) No particular number.
(b) At least one eye-witness.
(c) Two witnesses with regard to documents.
(d) One party and one witness.
Gf such and such a person? All these questions put the answers in the mouth o f
witness and all that he has to d o is to throw them back. Thus, a question —
“where d o you live” is not a leading question. It may be noted that the leading
questions are by no means limited to those which may be answered in ‘yes’or ‘no*.
Leading questions cannot ordinarily be asked in examination-in-chief or re
examination. T h e p u rp ose o f an examination-in-chief is to enable the witness to tell
to the court by his ow n w ords the relevant facts o f the case. If leading questions
were permitted, the lawyer questioning him would be able to construct through the
mouth o f the witness a story that suits his client The witness is presumed to be
biased in favour o f the party examining him and might thus be prompted. A fair
trial o f the accused is n ot possible (and there would be violation o f Art. 21 o f the
Constitution) if the prosecution can ask leading questions to a witness on a material
part o f his evidence against the accused [Varkey Joseph v State o f Kerala A IR 1993
SC 1892].
I f the o p p o s ite party objects to the leading questions being asked in
examination-in-chief o r re-examination, the court may in its discretion either permit
a leading question o r disallow it. Further, such questions can only be asked when
they refer to matters which are (i) introductory (u) undisputed, or (iii) sufficiently
proved. For, if such questions were not allowed, the examination would be prolonged.
Leading questions can, however, be asked in cross-examination. This is so,
because the very pu rpose o f a cross-examination is to test the accuracy, credibility
and general reliability o f the witness. The court cannot disallow leading questions in
cross-examination.
Thus, leading questions may be asked in the following cases:
(l) where they are not objected to by the opposite party;
(ii) where the opposite party objects but the court overrules the objection;
(iii) where they deal with matter o f introductory or undisputed nature or
the matter has already been satisfactorily proved; and
(iv) they may always be asked in cross-examination.
Objective Question*
(Multiple Choice)
301. Question as to admissibility of evidence must be decided by the Court:
(a) At the tim e when the evidence is tendered.
(b) Evidence could be placed on the record provisionally.
(c) After the counsel has been given an opportunity to address the
court on the point.
302. 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
a s the cause or effect of the fact In Issue.
(a) The court may permit A to be proved before B. C and D is proved.
(b) The court may require proof of B, C and D before permitting proof of A
(c) Either (a) or (b).
SEC. 144: Evidence as to Matters in Writing
S ee. 144 lays dow n that any witness w ho is about to give evidence as to a contract,
grant or other disposition o f property, may be asked whether i* was not in writing,
and if he says that it was, the opposite party may object to such (oral) evidence
being given until the original docum ent is produced or until the party producing the
witness is entitled to give secondary evidence o f it.
An explanation appended to the section says that a witness may give oral
evidence o f statements made by other persons about the contents o f a document,
if such statements are themselves relevant facts. Where, for example, the question
is whether A assaulted B, evidence is offered through the mouth o f C that he heard
A saying to D that B had written him a letter accusing him o f theft and that he wiil
take his revenge. This statement about the letter may be proved though the letter
itself is not produced because the statement is relevant as showing A*s motive for
the assault (IHast.).
It may be noted that Sec. 144 lays dow n a rule for the purpose o f carrying
out the provisions o f Sec. 91 as to the ‘
exclusion o f oral by documentary evidence.*
SEC. 145: Cross-examination as to Previous Written Statements
S ec. 145 lays dow n the procedure by which ‘

a witness may in cross-examination be
contradicted by his previous statement in writing or reduced into writing. A witness
may be asked in cross-examination whether he made a previous statement in writing
relevant to the matters in issue, different from his present statement without such
writing being shown to him or proved. But, if it is intended to contradict him by
the writing, his attention must be drawn to it*.
This section provides for one o f the m ethods in which the credit o f a witness
may be impeached (Also see Sections 138, 140, 146-148, 153-155). The object o f the
provision is either to test the m em ory o f witness or to contradict him by previous
written statement Further, the witness is given a chance o f explaining or reconciling
his statements before the contradiction can be used as evidence (by calling his attention
to those written parts). It is essential to fair play and fair dealing with a witness.
I f a witness is not shown or confronted with the part o f the statement with
which he was sought to be contradicted, the requirements o f Sec. 145 could not be
said to be com plied with [Rajendra Singh v State o f Bibar, 2000 CrLJ 2199 (SC)].
303. Examlnatlon-ln-chlef, Cross-examination and Re-examlnatlon have been

defined In:
(a) Sec. 135.
(b) Sec. 136.
(c) Sec. 137.
(d) Sec. 138.
(a) Examination-in-chief: By the party calling the witness.
(b) Cross-examination: By the adverse party.
(c) Cross-examination: By the prosecution.
(d) Examination-in-chief: Main examination.
L aw o f Evidence 185
A previou s statement used to contradict a witness does not becom e substantive

evidence. T h e on ly purpose to contradict with a previous statement is to prove that
the statement m ade in the court is not reliable. A ‘tape-recorded’evidence may also
be used fo r contradiction under Sec. 145, as like a document, letter, depositions,
police diaries, etc.
T h e statem ent n ot only includes what is expressly stated therein but also what
is necessarily im plied therefrom. In this way, ‘om issions’in a statement may amount
to contradiction. For example, A made a statement previously that he saw B stabbing
C to death; but b efore the court he deposes that he saw B and D stabbing C to
death. T h e cou rt can imply the word ‘ only’after B in the previous statement. This
w ould contradict the present statement that he saw B and D stabbing C
T he previou s statement must be o f the witness w ho is being cross-examined.
A was em ployed by B to write his account-books. B supplied \ with necessary
information. In this case, A cannot be contradicted with the entries in the account-
books as it is n ot his statement but that <>f B. Previous statement o f a party can
be used only to contradict him and not to contradict his witnesses. Sec. 145 is not
attracted when a statement made by one witness is contradicted by another witness
[Mohan L a i v State A IR 1982 SC 839].
Evidence in Criminal Proceedings

Evidence recorded in criminal proceedings can be used to contradict under S e c 145.
The statements in the FIR made by the witness can be used (Nankbu Singh v State
AIR 1973 S C 491). Sec. 162, Cr.P.C. im poses a bar on the use o f any statement
made by any person to a police officer in the course o f investigation, except for the
purpose o f contradicting the witness under Sec. 145.
Sec. 145 whether Applicable to Admissions?

Sec. 145 is not attracted in the case o f admissions. A dmissions duly proved are
admissible evidence irrespective o f whether the party making them appeared in the
witness-box o r n ot and whether that party when appearing as a witness was
confronted with those statements in case he made a statement contrary to those
admissions [Bharat Singh v Bhagirathi AIR 1966 SC 405).
Objective Questions
(Multiple Choice)
305. The examination, after the cross-examination of a witness by the party
who has called him, Is called:
(a) M ain examination.
(b) Additional cross-examination.
(c) Re-examination.
(d) Recross-examination. [M.P. CJ. (Prelim.) 2 0 0 2 ]
(a) Witnesses shall be first examined-rn-chlef, then (if adverse party so
desires) crossexamined, then (if party calling him so desires) reexamined.
(b) A w itness can be thrown open to cross-examination before he is
firs t examlned-in-chief.
(c) W ith o u t cross-examination the statem ent of a witness cannot
become an evidence.
(d) Re-examination of a witness can be done after examination-in-chief
and a fte r cross-examination.
Thus, the court did not allow a party to the case appearing as a witness to
demand that he should be shown his earlier statements in the matter o f family
partition which amounted to an admission [Tapan Das v Sasti Das A IR 1986 Cal
390].
SEC. 146: Questions Lawful in Cross-examination92
I n the course o f a cross-examination, a witness can be asked all questions relating

to relevant facts. But, in addition to such questions, Sec. 146 lays dow n that a
witness can be asked questions which tend:
(1) to test his veracity,
(2) to discover w ho he is and what is his position in life, or
(3) to shake his credit by injuring his character, although the answer to such
questions might tend directly o r indireedy to criminate him o r to expose
him to a penalty o r forfeiture.
The statements o f a witness being testimonial o f their nature, it is right to
subject them to impeachment in the appropriate ways. Testing the veracity o f a witness*
means ascertaining his honesty as to advise the court to what extent the witness is
creditworthy. A witness may always be subjected to a strict cross-examination as a test
o f his veracity or accuracy, his understanding, his integrity, his basis and his means o f
judging. Sec. 146 supplements Sec. 145.
Questions can a b o be asked to find out his ‘ position in life* i.e. w ho he is,
what he does, what is his source o f livelihood or whether he is a genuine or a
professional witness. It is com m on practice to make inquiry into the relationship o f
the witness with the party on w hose behalf he is called — business, social o r family
— also to inquire as to his feeling towards the party against w hom his testimony is
being given.
‘
Shaking the credit o f a witness by injuring his character* means to expose his
respectability Le. whether he is a respectable man and whether his character and
conduct are such that he can be trusted to tell the truth to the court. This kind o f
questioning o f the witness is known as “cross-examination as to credit**. However,
92. W h e n a w it n e s s is c r o s s - e x a m in e d , w h a t o th e r q u e s t i o n s c a n b e a s k e d in
a d d it io n t o th e q u e s t i o n s r e la t in g t o th e in c id e n t ? [U.P. P C S Q) 1988\
307. Cross-examination of a witness:

(a) Must relate to relevant facts.
(b) Need not be confined to the facts to which the witness testified on
his examination-in-chief.
(d) Only (a).
questions should not be directed towards laying bare with private life o f the witness.
The credit o f a witness can be said to have been shaken only if it can be shown
that he is not a man o f veracity, and not that he is o f bad moral character. A black-
marketeer is not necessarily untruthful nor a non-black-marketeer necessarily man
o f veracity [Chari v State AIR 1959 All 149].
The mere fact that the answer may tend to criminate the witness is no
justification to refuse to answer. However, he may object to the question on the
ground that the question is not relevant to the matter in issue.
Rules for Checking Improper Use of Cross-examination [Secs. 147-152]
Sections 147 to 152 lay down rules against aggressive cross-examination. Since the
character o f a witness is allowed to be opened up in the course o f cross-examination
for the purpose o f ascertaining his credit worthiness, it is natural that a person
would not like to appear as a witness unless he were assured o f some protection
against aggressive cross-examination.
SEC. 147: W hen W itnesses to be Compelled to Answer
Sec. 147 supplements the provision in Sec. 146 by providing that if the question
put to the witness (under Sec. 146) relates to a relevant fact, the provisions o f Sec.
132 will apply. Under Sec. 132, a witness will have to answer the question
notwithstanding that the answer may criminate him.
SEC. 148: C ourt to Decide when Question Shall be Asked and When Witness
Com pelled to Answer93
A ccord in g to Sec. 148, S-vhen in the course o f a cross-examination the question

asked to the witness is not relevant to the facts, but is asked only to shake his credit
93. H ow w ould the court decide that a particular question is p r o p e r o r im p r o p e r ?

[UP. P CS (J) 198S\
Objective QuoatioMxn
(Multiple Choice)
308. Mark the Incorrect statement In relation to re-examinatlon:
(a) The re-examination shall be directed to the explanation o f matters
referred to in cross-examination.
(b) After re-examination of a witness, the adverse party has a right to
fu rth e r cross-examine the witness only when a new m atter is
introduced in re-examination.
(c) During re-examination of a witness, a new matter can be introduced
only with the court's permission.
(d) An order of re-examination is restricted to the court's own motion.
by ex posin g his character, the court has to decide whether or not the witness shall
be com pelled to answer it. The court may warn the witness, if it thinks necessary
that he is not bound to answer it’ .
In deciding as to whether a witness should be com pelled o r not to answer a
question the court shall have regard to the follow ing considerations:
(1) Proper questions'. If the court is o f the opinion that the truth o f the imputation
could seriously affect the court’ s opinion as to credibility o f the witness the
court should allow the question. Thus, in cases o f rape, the prosecutrix may
be cross-examined as to her connection not only with the accused but also
with other men. However, the court must also ensure that cross-examination
is not made a means o f harassment o r causing humiliation to her [State of
Punjab v Gurmit Singh (1996) 2 S C C 384].
Where a person appears as an eyewitness to a murder and he is questioned
“whether he is cruel to his w ife”. T his fact, even if true, will not detract from the
value o f his evidence as an eyewitness and, therefore, the question is improper. But,
if the question imputes to him the charge that at on e time he him self was the
m em ber o f the accused’ s gang and subsequently broke apart from it, this fact, if
true, would seriously run dow n the court’ s opinion about him and, thus, the question
is proper.
(2) Improper questions'. Such questions are im proper if the truth o f the imputation
is very rem ote in time o r is o f such a character that it would not affect at
all or w ould affect only very slightly, the credibility o f the witness as to the
matter o n which he gives evidence. A question as to previous conviction 30
years* old put to an intended surety was disallowed on the ground that it
related to matter so rem ote in time that it ought not to influence the court’ s
decision as to fitness o f such sureties.94
T h e testimony o f a witness cannot be rejected only on the ground o f his
conviction in a murder case 43 years ago. T he lon g gap o f time m ight’
ve restored
his credit [Anurag N air v State o f T.N. A IR 1976 SC 2588].
(3) Improper questions-. Such questions are im proper if there is a great disproportion
between the im portance o f the imputation and the im portance o f his
94. A w o m a n p r o s e c u t e s a m a n fo r p i c k i n g h e r p o c k e t . C a n th is q u e s t i o n th a t s h e
h a d g iv e n b ir th t o a n ille g it im a t e c h il d te n y e a r s b e f o r e b e a s k e d ?
[UP. P C S (J) 1988i
309. A person sum m oned to produ ce a docu m en t when p ro d u ce s the

document then:
(a) He becomes a witness.
(b) He is cross-examined by both the parties.
(c) He is cross-examined with the court’s permission.
(d) He does not become witness and cannot be cross-examined unless
and until he is called as a witness. [M.P. CJ. (Prelim.) 2002]
310. Any question su ggestin g the answer which the person putting It wishes
or expects to receive Is called:
(a) Indecent question.
(b) Scandalous question.
(c) Question intended to annoy.
(d) Leading question. (M.P. C.J. (Prelim.) 2002)
evidence. Where, for example, a person appears to testify on a m inor matter

o f a party’
s date o f birth, and it is imputed to him that he belonged to a
gan g o f dacoits.
(4 ) I f the question is proper and the court asks the witness to answer it, but
even s o he refuses to d o so, the court may, if it sees fit, draw the inference
that the answer if given would be unfavottrable to the witness.
SEC. 149: Q uestions Not to be Asked without Reasonable Grounds
Sec. 149 lays dow n another important safeguard against assassination o f the character
o f a witness in that n o question carrying an imputation to the witness shall be asked
unless the person asking the question has reasonable ground to believe that the
imputation contained in the question is well founded.
Illustrations
(a) A barrister is instructed by an attorney or vakil that an important witness
is a dacoit. T his is a reasonable ground for asking the witness whether he
is a dacoit.
(b) A pleader is inform ed by a person in court that an important witness is a
dacoit. T h e informant, on being questioned by the pleader, gives satisfactory
reasons for his statement. This is a reasonable ground for asking the witness
whether he is a dacoit.
(c) A witness, o f w hom nothing whatever is known, is asked at random whether
he is a dacoit. There are here no reasonable grounds for the question.
(d) A witness, o f w hom nothing whatever is known, being questioned as to his
m o d e o f life and means o f living, gives unsatisfactory answers. This may
be a reasonable groujid for asking him if he is a dacoit.
SEC. 150: Procedure of Court in case of Reckless Questions
“I f th e c o u r t is o f o p i n i o n th a t an y s u c h q u e s t i o n w a s a s k e d w it h o u t r e a s o n a b le
g r o u n d s , it m ay, i f it w a s a s k e d b y an y ba rrister, p lea d e r, va k il o r attorn ey , r e p o r t
Objectitre Question*
(Multiple Choice)
311. Leading question

(a) may be asked in cross-examination.
(b) may be asked in examination-m-chief.
(c) may be asked in re-examination.
(d) cannot be asked in any circumstances.
312. Which of the following statements Is not correct?
(a) Leading question may be asked in cross-examination.
(b) Witnesses to character may not be cross-examined.
(c) A person summoned to produce a document does not become a
witness.
(d) A party with the court's permission, cross-examine his own witness.
[M.P. CJ. (Prelim,) 19961
the circum stances o f the case to the High Court/other authority to which such
barrister, etc. is subject in the exercise o f his profession.”
Sec. 150 is the penalty that may ensue against a reckless cross-examination, if
the court is o f opinion that the questions were asked without reasonable grounds.
Any advocate w h o asks such questions without written instructions shall be guilty
of ‘contem pt o f court’and that the court may record any such question, if asked
by a party to the proceedings. T he records o f the question are to be admissible as
evidence o f the publication o f an imputation intended to harm the reputation o f
the person affected.
SEC. 151: Indecent and Scandalous Questions
U n d e r Sec. 151, ‘
the court can prevent indecent and scandalous questions (or
inquiries) from being asked even if the question has som e bearing upon the matter
in hand. Such questions may be allowed only if they relate to the facts in issue or
are necessary for determining whether the facts in issue existed’ . The Supreme
C ourt has held that no such questions should be put unless there are reasonable
grounds to believe them to be true [Prakash v State, 1975 CrLJ 1297].
SEC. 152: Insulting or Annoying Questions
S ec. 152 enables ‘

the court to forbid questions which are asked only to insult or
annoy the witness’ . Even if the question is on a proper point, the court may forbid
it if it is needlessly offensive.
SEC. 153: Exclusion of Evidence to Contradict Answers to Questions Testing

Veracity
A c cording to Sec. 153, ‘

if a witness has answered a question as to his credit (i.e.
affecting his character), whatever be his answer, no evidence is allowed to be given
to contradict his answer. But, if the answer given by him is false, he may afterwards
be prosecuted for giving false evidence’ .
It is obvious that questions, asked merely to discredit a witness by injuring his
character, introduce matters altogether foreign to the enquiry, and that if controversy
about matter so introduced is allowed the court would be occupied with deciding
313. In cross-examination, which of the following statem ents could be asked?

(a) Any relevant fact which is not necessary.
(b) As to character.
(c) Any leading question.
314. Which of the following Is not an example of a leading question:
(a) Where do you live?
(b) Is not your name so and so?
(c) Do you not reside in such and such place?
(d) Are you not in the service of such and such a person?
not the merits o f the case but merits o f the witness and, thus, suit might be
indefinitely prolonged.
Illustrations', (a) A claim against an underwriter is resisted on the ground o f fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent
claim. H e denies it. Evidence is offered to show that he did make such a claim. The
evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for
dishonesty. H e denies it. Evidence is offered to show that he was dismissed for
dishonesty. T h e evidence is inadmissible.
In these illustrations, no evidence can be given to contradict a witness, but, as
the answer is false, he may be prosecuted for giving false evidence (under Sec. 193,
IPC).
Exception 1, Sec. 153: I f a witness is asked whether he has been previously convicted
o f any crim e and he denies it, evidence may be given o f his previous conviction.
Exception 2, Sec. 153: I f a question is asked to impeach the impartiality o f a witness
and he denies the su ggestion contained in the question, his answer may be
contradicted. Thus, a party may call evidence to show that a witness on the other
side has given his evidence out o f an ulterior motive (briber)7, malice or revenge).
A is asked whether his family has not had a blood feud with the family o f B
against w h om he gives evidence. H e denies it. He may be contradicted on the
ground that the question tend to impeach his impartiality [Illust. (d)].
Illustration (c) lays dow n another exception to Sec. 153. Where a fact, which is
relevant as having direct bearing at the issue, is denied by a witness, his answer may
be contradicted by independent evidence.
For example, A affirms that on a certain day he saw B at Lahore. A is asked
whether he him self was not on that day at Calcutta. He denies it. Evidence is
offered to show that A was on that day at Calcutta. The evidence is admissible, not
as contradicting A on a fact which affects his credit, but as contradicting the alleged
fact that B was seen on the day in question in Lahore.
Anything about which the witness has not been questioned so that there is n o
answer which could be contradicted, n o evidence could be allowed to contradict the
witness otherwise [State o f Karnataka v R Yarappa Reddy AIR 2000 SC 185].
O b je c t i v e QuefM tJojaM
(Multiple Choice)
315. B e sid e s cross-exam ination, lead in g q u estion s may b e a sk e d In
examlnatlon-in-chlef or re-examlnatlon with the cou rt’ s permission:
(a) Where they are not objected to by the opposite party.
(b) Where the opposite party objects but the court overrules the
objection.
(c) Where they deal with matter of introductory or undisputed nature
or the matter has already been satisfactorily proved.
SEC. 154: Questions by Party to His Own Witness [Hostile Witness]9s
S o m etim es a witness makes statements against the interest o f the party w ho has
called him. This makes it necessary that he should be cross-examined by that party
so as to dem olish his stand. Sec. 154 lays dow n that “the court may, in its direction,
permit the party w ho has called a witness to put him such questions as could have
been asked in cross-examination by the adverse party.”
Sec. 154 is based on the principle that ‘a witness whether o f on e party or
another should not be given m ore credit than he really deserves.* Cross-examination
under this section means that he can be asked (i) leading questions under Sec. 143,
(ii) questions relating to his previous statement in writing under Sec. 145, and (iii)
questions which tend to test his veracity o r to shake his credit under Sec. 146. (
A ‘ hostile witness* (the term has not been used in Indian law, unlike English
law) is on e w ho from the manner in which he gives the evidence show s that he is
not desirous o f telling the truth to the court. A witness w ho is gained over by the
opp osite party is also termed as a hostile witness. An ‘ adverse* or ‘ unfavourable’
witness is on e called by a party to prove a particular fact, w ho fails to prove such
fact o r proves an opposite fact.
A witness cannot be said to be hostile:
(i) whenever his testimony is such that it d oes not support the case o f the
party calling him or is not in accord with the evidence o f other witnesses
['Tulsi Ram Sahu v K C. Pal A IR 1953 Cal 160].
(ii) when he has not been produced out o f the fear that he might disfavour
the party w h o has to produce him [Ran/ Ratan v Bittan Kanr A IR 1980
All 395].
(iii) only because he gives inconsistent o r contradictory answers (e.g. at a
Sessions trial, a witness tells a different story from that told by him
before the Magistrate). t I
95. W rite a s h o r t n o t e o n : H o s t i l e w it n e s s . ^
[UP. P C S (J) 1987\ [Raj.J.S. 1992\ [D elhi J.S. 1982\

C o m m e n t : “It is n o t o p e n t o th e p r o s e c u t i o n in a c r im in a l tria l t o c r o s s -
e x a m in e th e ir o w n w it n e s s u n le s s th e c o u r t d e c l a r e s h im to b e h o s t il e w it n e s s . ”
[D elhi J.S. 1999\
316. The question Is whether A assaulted B, evidence Is offered through the

mouth of C that he heard A saying to D that B had written him a letter
accusing him of theft and that he will take his revenge. Though the
letter itself is not produced, this statement about the letter:
(a) May be proved.
(b) May not be proved.
(c) May be proved because the statem ent is relevant as showing A’s
motive for the assault.
The inference o f the hostility o f a witness would be drawn from the answer
given by him and to som e extent from his demeanour, attitude, etc A prosecution
witness can be declared hostile when he resiles from his previous statement made
under Secs. 161 or 164, C lP.G Besides this, when a prosecution witness turns hostile
by stating som ething which is destructive o f his prosecution case, the prosecution is
endded to get this witness declared hostile.
Court's permission under Sec. 154 — The permission for cross-examining on e’ s own
witness should not be granted to the party at the mere asking. The granting o f
permission is entirely the discretion o f the court. The discretion conferred by Sec.
154 is apart from any question o f hostility. It is to be liberally exercised whenever
the court from the witness’ s demeanour, attitude, or the tenor and tendency o f his
answers, o r from a perusal o f his previous inconsistent statement, or otherwise,
thinks that the grant o f such perm ission is expedient to extract the truth and to d o
justice [Sat Paul v Delhi Admn. AIR 1976 SC 294).
Q uestions o f cross-examination can be allowed by the court to be asked by
the party calling him even though the witness does not show to be hostile. When
the adverse party has elicited new matter, in cross-examination, from a witness the
court may perm it the party examining the witness to test his veracity.
Value o f the Evidence o f a Hostile Witness

The w hole testimony need not be rejected, nor such witness can be regarded as a
wholly reliable witness. T he court can rely upon that part o f the testimony which
inspires confiden ce and credit [Rabinder Kumar Dey v State o f Orissa AIR 1977 SC
170].
T he testimony o f a hostile witness requires close scrutiny because he is
contradicting himself, and that portion o f his statement, which is consistent with
the prosecution or defence, may be accepted [State o f U.P. v Romesh Pal Mishra
(1996) 10 S C C 360]. The testimony o f a hostile witness can be used to the extent
to which it supports the prosecution case [Koli Laklimanbhai v State o f Gujarat A IR
2000 SC 210]. T he whole o f the evidence so far as it affects both parties favourably
or unfavourably must be considered for what it is worth.
Objective Questions
(Multiple Choice)
317. Sec. 145 (Cross-examination as to previous written statements) provides
for one of the m ethods in which the credit of a w itness may be
impeached. Under it:
(a) A witness may be asked in cross-examination whether he made a
previous statement in writing relevant to the matters in issue,
different from his present statement without such writing being
shown to him or proved.
(b) A witness may be contradicted as to previous statement in writing
without proving the same but only after showing the same to the
witness.
(d) Only (a) is correct.
SEC. 155: Impeaching Credit of Witness
Im p ca ch in g the credit o f a witness means exposing his real character to the court
so that the court may not trust him. Sections 138, 140, 145 and 154 provide for
im peaching the credit o f a witness by cross-examination; Sec. 146 perm its questions
injuring the character o f a witness to be put to him in cross-examination. Sec. 155
lays dow n a different m ethod o f discrediting a witness by allowing independent evidence
to be led.
A s laid dow n by Sec. 155, die credit o f a witness may be im peached by the
adverse party, o r by the party w ho calls him (with the court’ s consent) in the
follow ing ways:
(1) Unwortfry o f credit. ‘
By producing witnesses w ho testify from their personal
knowledge o f the witness that he is unworthy o f credit.’
(2) Corrupt inducement ‘By show ing that the witness has either taken bribe
or has accepted the offer o f a bribe or som e other corrupt inducement
for giving his evidence’(a m ere offer o f bribe to him will n ot impeach
his credit). Such a “pocket witness”is not an independent witness but
is one w ho has been hired.
(3) Former inconsistent statements-. ‘
By showing previous statements o f the
witness which contradict his present statements’ . This is com m only
used to impeach the credit o f a witness.
A sues B for the price o f g o o d s sold and delivered to B. C says that A
delivered the g o o d s to B. Evidence is offered to show that, on a previous occasion,
he said that he had n ot delivered the g o o d s to B. The evidence is admissible [Il/ust.
(a)]. A is indicted for the murder o f B. C says that B, when dying, declared that A
had given B the w ound o f which he died. Evidence is offered to show that, on a
previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible [I/lust, (b)].96
The previous contradictory statements o f a witness can be used to discredit only
his testimony and not that o f other witnesses. Further, S e c 155 is controlled by S e c 145
(the attention o f the witness must be drawn to his former statements before he is
contradicted). A ‘ tape-recorded statement’is admissible under Sec. 155 (3).
96. A q u e s t i o n b a s e d o n th is illu stra tio n . [U.P. P C S (J) 199I\
318. Sec. 145 Is not applicable to:

(a) Criminal proceedings.
(b) Admissions.
319. Under Sec. 146, during cross-examination, a w itness could be asked
questions:
(a) To test his veracity.
(b) To discover who he is and what is his position in life.
(c) To shake his credit by injuring his character.
(4) Immoral character. ‘W hen a man is being prosecuted for rape or an

attempt to ravish, it may be shown that prosecutrix (i.e. the complainant)
is generally a w om an o f immoral character*.
Explanation to Sec. 155

In examination-in-chief a witness cannot be asked the reasons for his belief that
another witness is unworthy o f credit. Such questions can only be asked in cross-
examination. Whatever reasons he may give shall not be contradicted, but if the
answer is false, he may be prosecuted for giving false evidence.
Stock W itness96*
A ‘stock witness* is a person w h o is at the back and call o f the police. H e obliges
police with his tailored testimony. Such a witness is used by the police in raid cases.
Such w itnesses are highly disfavoured by the judges.
O n ce it is proved that a certain witness examined by the prosecution is a stock
witness o f the police, the court would be justified in discarding his testimony. But
that in itself is n o t enough to falsify the entire prosection case. In such a case, it
is the duty o f the court to brush aside the testimony o f the stock witness and to
see if the remaining prosecution evidence is enough to sustain the conviction o f
the accused [Hazara Singh v State o f Punjab (1971) 3 S.C.R. 674].
M aterial W itness966
A witness w h o is essential to the unfolding o f the narrative on which the prosecution
is based is know n as ‘ material witness*. Though the prosecution is n ot bound to
examine all the witnesses named on the charge sheet, it is, however, bou n d to
examine all material witnesses. This is so even when the prosecution apprehends
that his evidence will n ot be favourable to the prosecution. «
■
I f a material witness is n ot examined and the prosecution has n o satisfactory
explanation to offer for his being withheld, the court could examine such a witness
as a ‘Court witness*, o r to draw an adverse inference to the prosecution in respect
o f that portion o f its case to which the witness withheld could have given evidence
96a. W rite a s h o r t n o t e o n : S to c k - w itn e s s . [D elhi J.S. 19S4/1990\

96b. W rite a s h o r t n o t e o n : M a te r ia l w itn e ss . [D elhi J.S. 1984\
Objective Questions
(Multiple Choice)
320. Under Sec. 148, when In the course of a cross-examination the question
asked to the witness Is not relevant to the facts, but Is asked only to
shake his credit by exposing hls character:
(a) The witness shall be compelled to answer it.
(b) The witness shall not be compelled to answer it.
(c) The court has to decide whether or not the w itness shall be
compelled to answer it.
(d) The prosecution has to decide whether or not the witness shall be
compelled to answer it.
(Sarchil Singh v State o f Bombay AIR 1957 SC 747). Such a circumstance casts a
serious reflection on the fairness o f the trial; the accused is entided to ask the court
to draw the inference under Sec. 114, illustration (g), that if produced the evidence
o f that witness would be unfavourable to the prosecution.
Rules Relating to Corroboration [Secs. 156-157]
T h e rules relating to corroboration (i.e. evidence which supports the testimony o f

a witness) are laid dow n in Secs. 156-157.
SEC. 156: Questions tending to C orroborate Evidence of Relevant Facts

Admissible
S ec. 156 la^s dow n that when the evidence o f a witness requires to be corroborated,
he may be questioned (apart from the main event) as to any other circumstances
which he observed at or near to th<^f time or place where the main fact happened,
if the court is o f opinion that such circumstances, if proved, w ould corroborate the
testimony o f the witness as to the relevant fact which he testifies.
Illustration: A, an accom plice, gives an account o f a robbery in which he took part.
H e describes various incidents unconnected with the robbery which occurred on his
way to and from the place where it was committed. Independent evidence o f these
facts may be given in order to corroborate his evidence as to the robbery itself.
Sec. 156 provides for the adm ission o f evidence given for the purpose, not
o f proving a particular fact but o f testing the truthfulness o f the witness.
SEC. 157: Former Statements as Corroboration
S ec. 157 lays dow n that ‘

in order to corroborate the testimony o f 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 com petent to investigate
the fact, may be proved*.
Som e o f the form er statements allowed under this section are: A statement
irrelevant under Sec. 32 because the maker o f the statement ultimately survived can
be used to corroborate the testimony o f that person in the court; T he complainant’
s
321. In which of the following cases, a question will be considered a s proper

under Sec. 148?
(a) In a rape case, the prosecutrix is cross-exam ined as to her
connection not only with the accused but also with other men.
(b) Where a person appears as an eyewitness to a murder and he is
questioned "whether he is cruel to his wife".
(c) A question as to previous conviction 30 years' old put to an intended
surety.
(d) A person appears to testify on a m inor m atter o f a party’s date of
birth, and it is imputed to him that he belonged to a gang o f dacoits.
conduct o f narrating the incident o f extortion to her colleagues after it was over,
when it was corroborated by three witnesses was held to be relevant under S ec
157.97
In a case, B, the accused, was the cashier o f a company. He was suspected to
have em bezzled the com pany’ s fund. Before filing FIR, B was taken to S, a solicitor
o f the company. Certain conversation took place between B and S in that interview.
S prepared n otes o f attendance o f the conversation soon after the interview. At the
trial, S gave evidence as to what happened at the interview with B. These notes were
tendered by the prosecution to corroborate the testimony o f S, when he deposed
to what had taken place between him and the accused. These notes were held to
be admissible under Sec. 157 [Bhogilal Chunilal v State AIR 1959 SC 356].
Statements At or About the Time o f Occurrence

Sec. 157 provides an exception to the general rule o f excluding hearsay evidence
However, the statement must be made as early as can reasonably be expected in the
circumstances o f the case and before there was an opportunity for tutoring or
concoction. A statement made by a girl about her abduction 10 days after the
incident, held to be inadmissible under S ec 157.
In Rameshwar v State o f Rajasthan (1952) SCR 377, the Supreme Court allowed
the statement to the court o f a young girl - a victim o f rape - to be corroborated
with the girl’s ow n statement to her mother four hours after the incident to the
effect that she had been raped by the accused.
T he statement o f the father o f a kidnapped child to the effect that a person
standing at the site o f the crime gave him the identity by name o f the kidnappers
97. I n th e p r e s e n c e o f A, m u r d e r is c o m m it t e d b y B. C im m e d ia t e ly c o m e s o u t o f
h is s h o p n e a r th e p l a c e o f o c c u r r e n c e , a n d A te lls h im th a t B h a d c o m m i t t e d
th e m u r d e r . A t th e trial o f B, A b e a r s te s tim o n y t o th e o c c u r r e n c e , b u t h e is
n o t e x a m i n e d i f h e h a d t o ld C that B h a d c o m m it t e d th e m u rd er. C is p r o d u c e d
b y t h e p r o s e c u t i o n a n d h e s ta te s that A t o ld h im a b o u t th e m u rd e r. I s th e
s t a t e m e n t o f C a d m i s s ib l e in e v id e n c e ? [D elhi J.S.199J\
[Ans. Yes, C ’
s statement is admissible in evidence under Sec. 157, although it is quite
immaterial as to what weight is to be attached to his testimony in the court]
Objective Questions
(Multiple Choice)
322. In which of the following cases, there Is a reasonable ground to ask
question to a witness under Sec. 149?
(a) A witness, of whom nothing whatever is known, is asked at random
whether he is a dacoit.
(b) A witness, o f whom nothing whatever is known, being questioned
as to his mode of life and means of living, gives unsatisfactory
answers. Then he is asked if he is a dacoit
and the m o to r vehicle number in which they whisked away the child, but the father
was n ot able to recall the number o f vehicle, his testimony was held to be hearsay
but usable for supporting the testimony o f the witness o f fact [I 'ijemler v State o f Delhi
(1997) 6 S C C 171].
It may be noted that if the statement is made to an investigating authority, it
would be usable even if it was made after gap o f time viz. few days. Statements before
an investigating officer arc not evidence (c.g. FIR) but can be used for corroboration
or contradiction. The First Information Report (FIR) can be used to corroborate the
testimony o f the maker o f it or to contradict him under Sec. 145. The previous
statements o f an accomplice who becom es an approver witness have been regarded as
insufficient corroboration. However, the previous statements o f an accomplice witness
may be proved as corroborative evidence, if the court so desires.
SEC. 158: Corroboration or Contradiction of the Statements of Persons who

Cannot be Found
S ec. 158 lays dow n that ‘

when the statement o f a person w ho cannot be found or
is dead is relevant under Sec. 32 o r 33 and has been proved (e.g. a dying declaration),
all matters which either confirm the statement or contradict it, may be proved.
Evidence can also be given o f any fact which might confirm or impeach the credit
o f the person w ho made the statement to the same extent as if that person had
appeared as a witness and had denied upon cross-examination the truth o f the
matter suggested*.
Thus, this section places a person w hose statement has been used as evidence
under Sec. 32 o r 33 in the same category, as a witness actually produced in the court
for the purpose o f contradicting his statement by a previous statement made by
him. N o sanctity attaches to such statements simply because the person is dead or
cannot be examined as a witness. H is credibility may be impeached o r confirm ed
in the same manner as a living witness.
Rule as to Refreshing Memory [Secs. 159-161]
S ectio n s 159-161 deal with the extent to which and the m ode in which a witness
may refer to a writing in order to refresh his m em ory while giving evidence.
323. A witness is asked whether he w as not dism issed from a post for
dishonesty. He denies It. Evidence Is offered to show that he was
dism issed for dishonesty.
(a) The evidence is admissible if it comes from p la in tiff’s side.
(b) The evidence is admissible if it comes from defendant’s side.
(c) The evidence is admissible.
(d) The evidence is inadmissible. [M.P. C.J. (Prelim.) 1999)
SEC. 159: R efresh in g M em ory 98
Sec. 159 enables a w itness to look at the following writings for the purpose o f
refreshing his m em ory:
(i) a writing made b y him either at the time o f transaction (happening concerning
which he is questioned) or so soon afterwards that the court considers that
the transaction m ust have been still fresh in his mind when he was recording
it;
(ii) any writing m ad e by any other person about the transaction which was read
by the witness within the time aforesaid and he knew it to be correct;
(iii) any p rofession a l treatises (books) where the witness is an expert.
This section also lays down that Svhen a witness wants to refresh his m em ory
by referring to any document he may, with the court’ s permission, refer to a copy o f
it. Provided the court be satisfied that there is sufficient reason for the non-production
o f the original’.
Although a witness should always state what he himself remembers, he may
nevertheless, when giving evidence, refresh his memory as to details. The reason o f
the rule o f refreshing is that the witness should not suffer from a mistake and may
explain an inconsistency.
Any writing can be made use o f for the purpose o f refreshing the m em ory
o f a witness. T his includes: Reports, Diaries, Certificates, A ccount books. Dying
declaration, N otes o f a speech, Panchnamas, Deposition, N otes o f a Police Officer,
Notes o f a brief o f a Barrister, and, even a H oroscope. A witness was allowed to
look at the dying declaration which was noted by him. A police officer may use his
special diary for refreshing his memory. A medical man was allowed to refresh his
m emory by referring to a report prepared by him in his post-mortem examination.
It is not necessary that the docum ent or writing used for refreshing the m em ory
should be relevant or admissible in evidence, but facts tried to be proved must be
admissible under Sec. 159. A docum ent which was not produced within the time
98. I n th e I n d ia n E v id e n c e A ct, w h a t is m e a n t b y ‘
r e f r e s h in g m e m o r y * ?
[Raj.J.S. 199I\
Objective Questions
(Multiple Choice)
324. Mark the correct statement In relation to Sec. 153:
(a) If a question is asked to impeach the impartiality of a witness and
he denies the suggestion contained in the question, his answer
may be contradicted.
(b) Where a fact, which is relevant as having direct bearing at the
issue, is denied by a witness, his answer may be contradicted by
independent evidence.
perm itted for its production and, therefore, rejected by the court, may be used for
refreshing m em ory if it otherwise satisfies the spontaneity requirement o f the
section. Even where Panchanama is not admissible in evidence, it may be used by a
witness to refresh his m em ory where, after having been made by the police, it was
read over to the panel) w ho admitted it to be correct [Emperor v Mahadeo Dewoo
(1945) 47 B om LR 992].
This section gives a perm ission to the witness. It does not com p el him to do
so. N o r can the opposite party prevent him from doin g so. In a case, a witness
testified that the accused was in possession o f a controlled drug. H e could not give
a statement as detailed as he gave to the police when he was first interviewed. The
accused raised an objection which was overruled. The court said that a witness
should be allowed to supplement his testimony with certain essential details which
were eluding him from his ow n statements recorded earlier. This is allowed in all
cases with a view to laying a proper foundation for the testimony o f the witness
[R. v Sutton (1992) C r A pp Rep (CA)].
SEC. 160: Testimony to Facts Stated in Docum ent mentioned in Sec. 159
S e e 159 deals with cases where a reference to the writing revives in the mind o f the
witness a recollection o f the facts. But it may be that even a perusal o f a document does
not refresh his memory Le. it does not revive in his mind a recollection o f facts. Under
S ec 160, ‘it is not necessary that the witness looking at the written instrument should
have an independent or specific recollection o f the matters stated therein. H e may testify
to the facts referred to in it, if he recognizes the writing or signature and feels sure that
the contents o f the document were correctly recorded’ .
Illustration'. A bookkeeper may testify the facts recorded by him in b ook s regularly
kept in the course o f business, if he knows that the b ook s were correctly kept,
although he has forgotten the particular transactions entered.
It may be noted that under Sec. 159, the docum ent is not in itself evidence
nor is it tendered. Under Sec. 160, the docum ent itself is tendered and is evidence.
SEC. 161: Right of Adverse Party as to Writing used to Refresh Memory
Sec. 161 lays down that ‘

any writing (referred to under Secs. 159 and 160) used for
the purpose o f refreshing the m em ory o f witness, must be produced and show n to
325. Under Sec. 154, the court may, In Its direction, permit the party who has
called a witness to put him such questions as could have been asked In
cross-oxamlnatlon by the adverse party. This Is In relation to a:
(a) Hostile witness.
(b) Adverse witness.
(c) Unfavourable witness.
(d) Interested witness.
the adverse party if he requires it; such party may, if he pleases, cross-examine the
witness thereupon’ .
T h e right m ust be exercised at that very m om ent because it may not continue
throughout the period for which the witness remains under examination. The purposes
o f such in spection are: (i) to secure the full benefit o f the recollection o f the
witness as to the w hole o f the facts, (ii) to prevent im proper use o f documents, and
(iii) to com pare the oral testimony with the written version [In Re Jhoubhoa Afahton
(1832) 8 Cal 739].
Rules as to Production of Documents [Secs. 162-164]
Secs. 162-164 lay dow n the rules as to production and translation o f documents.
SEC. 162: Production of Documents99
“A witness su m m oned to produce a document shall, if it is in his possession or

power, bring it to court, notwithstanding any objection which there may be to its
production o r to its admissibility. The validity o f any such objection shall be decided
o f by the court. T h e court, if it sees fit, may inspect the document, unless it refers
to matters o f State, or take other evidence to enable it to determine o n its
admissibility.”
Sec. 162 makes it obligator)' on the witness to produce the docum ent summ oned
by the court and he has no right to decide whether the docum ent shall be produced.
Order XVI, Rule 6 o f the C.P.C also provides that a person may be sum m oned to
produce a docum ent without being summ oned to give evidence. S e c 139 o f the
Evidence A ct similarly provides that a person summ oned to produce a docum ent
does not b eco m e a witness by the mere fact that he produces the docum ent and
he cannot be cross-examined.
99. ‘
State the exceptions to the general rule that a witness is bound to tell the
whole truth and to produce any document in his possession relevant in issu e’.
[UP. P C S (J) 198J\
Objective QucmHoMtm
(Multiple Choice)
326. Which Is the m ost appropriate definition In relation to a hostile witness.
A ‘
hostile w itn ess’
:
(a) Is one who from the manner in which he gives the evidence shows
that he is not desirous of telling the truth to the court.
(b) A witness who is gained over by the opposite party.
(c) Is one called by a party to prove a particular fact, who fails to prove
such fact or proves an opposite fact.
(d) Is one who is not produced out of the fear that he might disfavour
the party who has to produce him.
T h e party producing the docum ent under court order may raise his objections
to its produ ction or admissibility. It is then for the court to decide the validity o f
the objection. T o enable the court to d o so, it may hear the parties and may also
ask them to produ ce evidence touching upon the validity or otherwise o f the
objections.
A jja irs o f State - Under S e c 162, the court may inspect the docum ent to determine
o n its admissibility, unless it refers to matters o f State. Reading Secs. 123 and 162
together, it b ecom es clear that the court cannot hold an enquiry into the possible
injury to the public interest which may result from the disclosure o f the docum ent
in respect o f which privilege is claimed under Sec. 123. That is a matter for the
authority concerned to decide.
But, the court is com petent to hold a preliminary enquiry and determine the
validity o f the objection s to its production, and that necessarily involves an enquiry
into the question as to whether evidence relates to an affair o f State under Sec. 123
o r n ot [State o f Punjab v S.S. Singh A IR 1961 SC 493].
Translation o f Documents
Sec. 162 further lays dow n that if it is necessary for the document to be translated\ the
court may direct the translator to keep the contents secret, unless the docum ent is to
be given in evidence. I f the translator disobeys the instruction he may be held to have
com m itted an offence under Sec. 166, IPC [Public servant disobeying law with intent
to cause injury to any person].
SEC. 163: Giving, as Evidence, of Docum ent Called for and Produced on
Notice
Sec. 163 lays down that Svhere a party has given a notice to another to produce a
document and the document has been produced and has been inspected by that party,
he is bound to use it as evidence if the party producing the document so desires’
.
This section applies not only to civil cases but also to criminal trials. It has no
application where the docum ent has already been produced before the court by any
party to the case. T he section com es into play when the party in possession or
pow er o f the docum ent has not produced the same in the court and runs the risk
o f adverse inference being drawn against him or being debarred from produ cing the
docum ent in the court at a later stage o f the proceedings unless his opponen t
becom es instrumental in seeking production and inspection o f the document.

(a) The permission for cross-examining one’s own witness should not
be granted to the party at the mere asking.
(b) Questions of cross-examination can be allowed by the court to be
asked by the party calling him even though the witness does not
show to be hostile.
(c) The court can rely upon that part of the testimony o f a hostile
witness which inspires confidence and credit.
(d) The testimony of a hostile witness cannot be used to the extent to
which it supports the prosecution case.
T here is n o authority for the proposition that the evidence, which is admitted
under this section, m ust be deemed to be conclusive against the party w ho has
inspected the docum ent. A document so produced becom es ‘ evidence* only when
it is produ ced for the inspection o f the court and only then the court will pronounce
upon its relevancy, admissibility and will call upon the party on w hom the burden
o f p r o o f lies to prove the truth o f its contents and its genuineness. Cross-examination
could be used for that purpose \?hookhand Garg v Gopaldas Agarwal AIR 1990 M.P.
135].
SEC. 164: U se o f D o c u m e n t N o t P roduced on N otice
A c c o r d in g to Sec. 164, Svhere a party’has been called upon by the other party to
produce a d ocu m en t but the request was refused, such refusing party is n o longer
at liberty to prod u ce the docum ent o f his own. It would require consent o f the
other party o r perm ission o f the court to enable him produce the document*.
Illustration-.: A sues B on an agreement and gives B notice to produce it At the trial,
A calls for the docu m ent and B refuses to produce it. A gives secondary evidence
o f its contents. B seeks to produce document itself to contradict the secondary
evidence given by A, or in order to show that the agreement is not stamped. B cannot
d o so.100
Thus, where an opponen t in possession o f a document refuses to produce it
on demand, he is afterwards forbidden to produce the document to contradict other
party’
s secondary evidence. This is in one sense a proper penalty for unfair tactics
or refusal to cooperate with the judicial process.
T h e section d oes not enable a party to seek actual production o f the document.
It contemplates only a disability’the fear o f which may perhaps bring about a
positive response [.Shyamdas Kapur v Emperor {1932) 60 Cal 341]. The section may not
perhaps apply to criminal proceedings.
100. A question based on this illustration. [U.P. P CS 0) 2000[
Objective Question*
(Multiple Choice)
328. Under Sec. 155, the credit of a witness may be Impeached by the
adverse party, or by the party who calls him (with the court's consent)
on the ground of:
(a) Unworthy o f credit.
(b) Corrupt inducement.
.-(c) Former inconsistent statements.
204 L aw G u id e fo r J u d ic ia l S e r v ic e E x a m in a tio n
SEC. 165: Judge's Power to Put Q u estions o r O rd er P rodu ction 101
U n d er Sec. 165, ‘
for the purpose o f obtaining proper proof o f relevant facts, the
Judge has been given the power to ask any question to a witness or to a party. Such
question may be asked at any time and may take any form and the question itself may
relate to a relevant or an irrelevant fact. The court may also order the production o f
any document or thing. N o party or his agent shall be cntided to raise any objection
to any such question or order, nor, without the court's permission, the witness shall
be cross-examined as to any answer that he may give'.
Every criminal trial is a voyage o f discovery in which truth is the quest. A
judge must participate in the trial. He must show intelligent interest and put questions
to witnesses in order to ascertain the truth. It is his duty to question witnesses on
points which the lawyers for the parties have either overlooked or left obscure or
willfully avoided. But, this he must do, without unduly trespassing upon the functions
o f the counsel o f parties. He must not play a part o f a party or a prosecutor, nor
should he frighten or bully the witnesses [Ram Chanderw State o f H aryan a AIR 1982
SC 1036].
“In India, in an enormous mass o f cases, it is absolutely necessary that the judge
should not only hear what is put before him by others, but that he should ascertain
by his own inquiries how the facts actually stand. In order to do this, it will frequently
be necessary for him to g o into matters which are not themselves relevant to the
mattes in issue, but may lead to something that is (relevant), and it is in order to arm
judges with express authority to do this that this section has been enacted [Krishna
A yyar v B alakrishana A yyar (1933) 57 Mad 635].
The object o f allowing the judge to ask irrelevant questions was to obtain
“indicative evidence" which might lead to discovery o f relevant evidence. It may be
noted that Order X, Rules 2 and 4, Order XVI, Rule 14 o f C.RC. and Sec. 311,
Cr.P.C, have conferred similar powers on the court.
Sec. 165 confers vast and unrestricted powers on the court. The court may
question the accused as to what he told to police although Sec 162 o f Cr.P.C.
prevents parties from questioning the accused on that point. A judge may look at
a police diary although not requested by either party and may question a witness on
101. W h a t a re th e p o w e r s o f th e C o u r t t o p u t q u e s t io n s t o a w it n e s s ? I s th e r e an y
l im it a t io n o n th e u s e o f t h e s e a n s w e r s ? [ U P. P C S (J) 198S\
329. A It Indicted for the murder of B. C says that B, when dying, declared
that A had given B the wound of which he died. Evidence It offered to
thow that, on a prevlout occasion, C said that the wound was not given
by A or In hit pretence.
(a) The evidence is admissible under Sec. 155.
(b) The evidence is inadmissible under Sec. 155.
(c) The evidence is Inadmissible under Sec. 156.
(d) The evidence is admissible under Sec. 156.
330. Which section of the Evidence Act lays down provisions regarding former
statements to corroborate the testimony of a witness:
(a) Sec. 156.
(b) Sec. 157.
(c) Sec. 158.
(d) Sec. 159.
L aw o f E v id e n c e 205
that basis. This may enable the judge to expose discrepancies in the statements o f
witnesses in the court and those recorded in the police diary [Em peror v L a/ M iya
(1 9 4 3 ) 1 Cal 543]. The questions intended to remove the confusion o f mind from
which the witness happened to suffer are proper [State o f R ajasthan v A m (1997) 6
SCC 162].
However, there is an inherent danger in a judge adopting a much too stem an
attitude towards witness. Thus, in R am Chandra cases, two o f the prosecution witnesses
did not adhere to their earlier statements. The judge rebuked them and threatened
them with prosecution for perjury if they changed their statements. It was held that
the judge exceeded the power conferred upon him by this section.
The answers given by the witness in reply to questioning by the judge can be
subjected to cross-examination only with the permission o f the judge. The judge
should allow such cross-examination to the party where answers have been adverse
to him. The witness should have the freedom to answer or refuse to answer questions
put by the judge to the same extent to which he is privileged otherwise.
Provisos (E xception s) to Sec. 165
A judge is empowered under Sec. 165 to put irrelevant questions to a witness, but
he cannot base his judgment on irrelevant facts. The fir s t proviso to this section lays
down that the judgment must be based on facts declared relevant by the Act and
duly proved.
The secon d p rov iso lays down that this section shall not authorize any Judge to:
(i) com pel any witness to answer any question or to produce any document,
which such witness would be entided to refuse to answer or produce
under Secs. 121-131 (privileges), if the questions were asked or the
documents were called for by the adverse party;
(ii) a sk any question which it would be improper for any other person to
ask under Secs. 148-149;
(iii) dispense with primary evidence o f any document, except in cases
hereinbefore excepted.
Where the question is asked, with a view to criminal proceeding being taken
against the witness, the witness is not legally bound to answer it and he cannot be
punished under Sec. 179, IPC for refusing to answer [Queen E x p ress v lsb a ri ILR AIL
672].
O b je c t iv e
(Multiple Choice)
331. Which section enables a witness to look at the writings for the purpose
of refreshing his memory?
(a) Sec. 157.
(b) Sec. 158.
(c) Sec. 159.
(d) Sec. 160.
(a) A witness could look at the dying declaration which was noted by
him to refresh his memory.
(b) A medical man could refresh his memory by referring to a report
prepared by him in his post-mortem examination.
(c) Any writing used for the purpose of refreshing the memory of witness,
must be produced and shown to the adverse party if he requires it.
(d) It is necessary that the document or writing used for refreshing the
memory should be relevant or admissible in evidence.
SEC. 166: Power to Jury or Assessors to Put Questions
“I n cases tried by jury or with assessors, the jury or assessors may put any questions
to the witnesses, through or by leave o f the judge, which the judge himself might
put and which he considers proper”
It may be noted that trial by jury o r assessors d oes not now prevail in India.
CHAPTER XI
OF IMPROPER ADMISSION AND
REJECTION OF EVIDENCE
[SEC. 167J
SEC. 167: No New Trial for Improper Admission or Rejection of Evidence102
S ec. 167 lays down that ‘

the im proper adm ission or rejection o f evidence is not a
ground for reversal o f judgment o r for a new trial o f die case, if the court considers
that independendy o f the evidence im properly admitted, there was evidence enough
to justify the decision, or that, if the rejected evidence had been admitted it ought
not have varied the decision*.
The object o f this section is that “technical objections will not be allowed to
prevail where substantial justice has been done.”The section applies to civil as well
as criminal cases. The matter o f w rongful rejection o r admission o f evidence can be
raised either before a court o f review or appellate court. It may be noted that Sec.
99, C.P.C. also provides that n o decision is to be disturbed in appeal unless there
is an error which affects the merits o f the case. Sec. 465 o f Cr.P.C. provides that
a decision can be reopened on the ground o f failure o f justice and not otherwise.
Rejection o f an important docum ent or refusal o f perm ission for examination
o f a material witness may justify reversal o f the decision [Devidas Jagjivan v Pirjada
102. ‘
T h e i m p r o p e r a d m i s s io n o r r e je c t io n o f e v i d e n c e s h a ll n o t b e a g r o u n d for
r e v e r sa l o f j u d g m e n t o r f o r a n e w trial o f th e c a s e , i f th e c o u r t c o n s i d e r s that
in d e p e n d e n t ly o f th e e v i d e n c e im p r o p e r ly a d m itte d , th e r e w a s e v i d e n c e e n o u g h
t o ju stify th e d e c is io n , o r that, i f th e r e je c t e d e v i d e n c e h a d b e e n a d m it t e d it
o u g h t n o t h a v e v a r ie d th e d e c i s i o n ’
. D i s c u s fully. [ U.P. P C S (J) J982\
333. Sec. 162:

(a) Makes it obligatory on the witness to produce th e document
summoned by the court and he has no right to decide whether the
document shall be produced.
(b) The party producing the document under court order may raise his
objections to its production or admissibility.
(c) The court may inspect the document to determine on its admissibility,
unless it refers to matters of State.
fygjrrt (1984) 8 B om 377]. As regards ‘rejected* evidence, the question under Sec.
167 is not so m uch whether the evidence rejected would not have been accepted
against the other testim ony on the record as whether the evidence “ought not to
have varied the decision** (Narayan v State of Punjab AIR 1959 SC 484].
T he reception o f inadmissible evidence is less injurious than the rejection o f
admissible evidence because in the former case in arriving at a decision the evidence
wrongly admitted can well be excluded from consideration whereas in the latter case
the evidence w rongly rejected can only be brought on record by having recourse to
fUrther proceeding.
W here it is clear from the record that the prosecution, though it had cited
certain person as w itness was not very' keen to examine him and when that person
objected to give evidence, the prosecution dropped him; it is not a case in which
evidence can be said to have been rejected within Sec. 167 [Narayan’s case, above].
Objection in Appeal to Documents Admitted by Evidence

Where evidence is admitted by the court with the consent o f the parties and the
evidence is adm issible and relevant, no objection will be allowed to be taken to its
reception at any stage o f the litigation on the ground o f improper proof.
But, if the evidence is irrelevant or inadmissible (e.g. ow ing to want o f
registration), con sen t o r om ission to take objection to its reception does not make
it admissible and the objection may be raised even in appeal for the first time. The
question o f relevancy is a question o f law and can be raised at any stage, but the
question o f m o d e o f p r o o f is a question o f procedure and stands waived if not
raised at the first opportunity [Padnappa v Shivlingappat 47 B om LR 962].105
103. A n s w e r t h e f o l l o w i n g a n d c it e th e c a s e :
(i) C o p i e s o f d o c u m e n t s a re a d m itt e d in a c o u r t o f first in s ta n c e , w it h o u t

o b je c t io n . C a n o b j e c t i o n to th e ir a d m is s ib ilit y a fte rw a rd s b e ta k e n in a c o u r t
o f a p p e a l?
(ii) A d o c u m e n t is p er se in a d m is s ib le . C a n it b e o b j e c t e d in a p p e a l?
[UP. PCS (J) 1982[
O b j e c t i v e Q u c m H oimm
(Multiple Choice)
334. When a party refuses to produce a document which he had notice to
produce:
(a) He cannot use the document as evidence without the consent of
opposite party or the order of the court.
(b) Objection of the opposite party is worthless.
(c) Order of the court is not necessary.
(d) Document will be deemed to be an admitted document.
[M.P. CJ. (Prelim.) 1999)
335. Under Sec. 165, for the purpose of obtaining proper proof of relevant
facts, the Judge has been given the power to ask any question to:
(a) A witness.
(b) A party.

(a) The court question may relate to a relevant or an irrelevant fact.
(b) The court may order the production o f any document or thing.
(c) To an answer to a court question, either of the parties has a right
to cross-examine only with the court’s permission.
(d) A Judge can compel any witness to answer any question or to
produce any document, which such witness would be entitled to
refuse to answer or produce under Secs. 121-131.
337. Under Sec. 167, the improper admission or rejection of evidence Is:
(a) Not a ground for reversal of judgm ent or for a new trial o f the case.
(b) A ground for reversal of judgm ent or for a new trial o f the case if
there is rejection of an important document or refusal of permission
for examination of a material witness.
(d) Only (b) is correct.
(a) Objection as to the admissibility of a document in evidence can be
made at the first opportunity when the document is tendered in
evidence.
(b) If the evidence is irrelevant or inadmissible the objection may be
raised even in appeal for the first time. The question o f relevancy
is a question of law and can be raised at any stage.
(c) If the evidence is relevant or admissible and it has been admitted,
a later objection will not be allowed. The question of mode of proof
is a question of procedure and stands waived if not raised at the
first opportunity.
R ecen t A m endm ents to the
Indian Evidence Act, 1872
INSERTION OF NEW SECTION 53A:

EVIDENCE OF CHARACTER OR PREVIOUS SEXUAL EXPERIENCE
NOT RELEVANT IN CERTAIN CASES
This new section has been inserted by the Criminal Law (Amendment) Act, 2013:
“53A. In a prosecution for an offence under Sec. 354, Sec. 354A, Sec. 354B, Sec.
354C, Sec. 354D, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C, Sec. 376D or Sec.
376E of the Indian Penal Code or for attempt to commit any such offence, where
the question of consent is in issue, evidence of the character of the victim or of
such person’ s previous sexual experience with any person shall not be relevant on
the issue of such consent or the quality of consent.”
SUBSTITUTION OF NEW SECTION FOR SECTION 114A:

PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN
PROSECUTION FOR RAPE
For Sec. 114A of the Evidence Act, the following section shall be substituted, by the
Criminal Law (Amendment) Act, 2013, namely:-
“114A. In a prosecution for rape under clause (</), clause (£), clause (t), clause
clause (<t), clause (J), clause ($), clause (b), clause (/), clause (/), clause (i), clause
W> clause (nr) or clause (*) of sub-sec. (2) of Sec. 376 of the Indian Penal Code,
where sexual intercourse by the accused is proved and the question is whether it
Was without the consent of the woman alleged to have been raped and such
woman states in her evidence before the court that she did not consent, the court
shall presume that she did not consent.
lyydanation. In this section, “
sexual intercourse”shall mean any of the acts mentioned
m Causes (a) to (J) of Sec. 375 of the Indian Penal Code.
#
(209J
SUBSTITUTION OF NEW SECTION FOR SECTION 119:

WITNESS UNABLE TO COMMUNICATE VERBALLY
For Sec. 119 of the Evidence Act, the following section shall be substituted\ by the
Criminal Law (Amendment) Act, 2013, namely:-
“119. A witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs; but such
writing must be written and the signs made in open Court, evidence so given shall
be deemed to be oral evidence:
P rovided that if the witness is unable to com m unicate verbally, the C ou rt shall
take the assistance o f an interpreter o r a special educator in recording the statement,
and, such statem ent shall b e videographed.”
AMENDMENT OF SEC. 146:

QUESTIONS LAWFUL IN CROSS-EXAMINATION
In the principal Act, after Sec. 146(3), the following proviso shall be inserted[Evidence
Act (Amendment) Act, 2002 (4 of 2003) w.e.f. 31-12-2002]:-
“Provided that in a prosecution for rape or attempt to commit rape, it shall not
be permissible to put questions in the cross-examination of the prosecutrix as to
her general immoral character.”
This proviso has been further substituted by the following proviso via 2013
Amendment.
“ Provided that in a prosecution for an offence under Sec. 376, Sec. 376A, Sec.
376B, Sec. 376C, Sec. 376D or Sec. 376E of the Indian Penal Code or for attempt
to commit any such offence, where the question of consent is in issue, it shall not
be permissible to adduce evidence or to put questions in the cross-examination of
the victim as to the general immoral character, or previous sexual experience, of
such victim with any person for proving such consent or the quality of consent.”
AMENDMENT OF SEC. 154:

QUESTION BY PARTY TO HIS OWN WITNESS
In the principal Act, Sec. 154 shall be numbered as sub-section (1) thereof and after
sub-section (1) as so numbered, the following sub-section shall be inserted\ namely:-
“(2) Nothing in this section shall disentitle the person so permitted under sub
section (1), to rely on any part of the evidence of such witness.”
The aforesaid amendment in relation to ‘ hostile witness* has been inserted by
the Criminal I^ jjv (Amendment) Act, 2005 (2 of 2006) (w.e.f. 16-4-2006).
Law o f Evidence
211
AM ENDM ENT O F SEC. 155:

IM PEACH IN G CREDIT OF WITNESS
In the principal Act, Clause (4) of Sec. 155 has been omitted [Evidence Act
Act, 2002 (4 of 2003) w.e.f. 31-12-2002];-
(A m en dm en t)
“(4) When a man is prosecuted for rape or an attempt to ravish, it may be shown
that the prosecutrix was of generally immoral character.”
<*r
ANSWERS
(OBJECTIVE QUESTIONS-MULTIPLE CH O ICE)
(LAW OF EVIDENCE)
1.(4) 26. (b) 51. (d) 76. (d) 101. (b)

2. (a) 27. (d) 52. (a) 77. (c) 102. (b)
3. (b) 28. (c) 53. (d) 78. (a) 103. (d)
4. (a) 29. (b) 54. (b) 79. (d) 104. (b)
5.(b) 30. (d) 55. (c) 80. (d) 105. (d)
6- (d) 31. (d) 56. (b) 81. (d) 106. (c)
7.(c) 32. (a) 57. (d) 82. (b) 107. (d)
8.(4) 33. (c) 58. (b) 83. (c) 108. (d)
9- (d) 34. (a) 59. (d) 84. (c) 109. (b)
10. (d) 35. (d) 60. (a) 85. (a) 110. (a)
«.(4) 36. (d) 61. (b) 86. (d) 111. (d)
12. (d) 37. (b) 62. (d) 87. (a) 112. (a)
13. (b) 38. (d) 63. (c) 88. (b) 113. (d)
14. (d) 39. (b) 64. (c) 89. (c) 114. (a)
15. (a) 40. (d) 65. (d) 90. (d) 115. (b)
16. (a) 41. (a) 66. (c) 91. (b) 116. (d)
17. (d) 42. (a) 67. (a) 92. (d) 117. (b)
18. (a) 43. (d) 68. (b) 93. (b) 118. (c)
19. (d) 44. (a) 69. (b) 94. (d) 119. (c)
20. (c) 45. (a) 70. (d) 95. (d) 120. (a)
21. (c) 46. (c) 71. (c) 96. (a) 121. (d)
22. (b) 47. (a) 72. (c) 97. (b) 122. (a)
23. (a) 73. (d) 98. (a) 123. (d)
48. (d)
24. (b) 74. (c) 99. (c) 124. (c)
49. (c)
25. (b) 75. (c) 100. (b) 125. (c)
50. (a)
[213]
214 Law Guide for Judicial Sen/ice Examination
126. (d) 156. (d) 186. (a) 216. (a) 246. (d)
127. (c) 157. (a) 187. (d) 217. (d) 247. (d)
128. (d) 158. (a) 188. (a) 218. (c) 248. (c)
129. (d) 159. (d) 189. (d) 219. (d) 249. (C)
130. (a) 160. (b) 190. (b) 220. (b) 250. (b)
131. (c) 161. (d) 191. (b) 221. (d) 251. (d)
132. (d) 162. (c) 192. (d) 222. (b) 252. (d)
133. (d) 163. (a) 193. (d) 223. (a) 253. (b)
134. (a) 164. (d) 194. (a) 224. (a) 254. (b)
135. (d) 165. (d) 195. (a) 225. (c) 255. (d)
136. (d) 166. (b) 196. (d) 226. (c) 256. (a)
137. (d) 167. (c) 197. (c) 227. (a) 257. (b)
138. (a) 168. (a) 198. (c) 228. (a) 258. (d)
139. (a) 169. (c) 199. (d) 229. (d) 259. (d)
140. (d) 170. (c) 200. (c) 230. (b) 260. (d)
141. (d) 171. (b) 201. (a) 231. (a) 261. (d)
142. (d) 172. (d) 202. (a) 232. (d) 262. (d)
143. (a) 173. (d) 203. (d) 233. (d) 263. (b)
144. (d) 174. (d) 204. (c) 234. (d) 264. (d)
145. (a) 175. (b) 205. (a) 235. (a) 265. (d)
146. (d) 176. (d) 206. (d) 236. (d) 266. (b)
147. (d) 177. (b) 207. (a) 237. (a) 267. (a)
148. (c) 178. (c) 208. (c) 238. (d) 268. (a)
149. (d) 179. (b) 209. (d) 239. (d) 269. (c)
150. (b) 180. (b) 210. (a) 240. (a) 270. (c)
151. (c) 181. (d) 211. (d) 241. (c) 271. (d)
152. (d) 182. (d) 212. (d) 242. (d) 272. (d)
153. (d) 183. (d) 213. (c) 243. (b) 273. (c)
154. (d) 184. (a) 214. (c) 244. (c) 274. (d)
155. (b) 185. (d) 215. (d) 245. (a) 275. (d)
Law o f Evidence
215
276. (d) 289. (d) 302. (c) 315. (d) 328. (d)
277. (a) 290. (d) 303. (c) 316. (c) 329. (a)
278. (c) 291. (d) 304. (c) 317. (c) 330. (b)
279. (d) 292. (a) 305. (c) 318. (b) 331. (c)
280. (b) 293. (d) 306. (b) 319. (d) 332. (d)
281. (d) 294. (d) 307. (c) 320. (c) 333. (d)
282. (a) 295. (c) 308. (d) 321. (a) 334. (a)
283. (d) 296. (d) 309. (d) 322. (b) 335. (c)
284. (b) 297. (d) 310. (d) 323. (d) 336. (d)
285. (d) 298. (c) 311. (a) 324. (c) 337. (c)
286. (b) 299. (d) 312. (b) 325. (a) 338. (d)
287. (b) 300. (a) 313. (d) 326. (a)
288. (d) 301. (d) 314. (a) 327. (d)

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88 Law Guide for Judicial Service Examination

SEC. 56: Facts Judicially Noticeable Need Not be Proved

SEC. 57: Facts o f which Court Must take Judicial Notice

142. In relation to proof of age:

SEC. 58: Facts Admitted Need Not be Proved

SEC. 59: Proof of Facts by Oral Evidence

145. Under Sec. 47, a disputed handwriting can be proved by:

Oral evidence, if worthy o f credit, is sufficient without documentary evidence

SEC. 60: Oral Evidence Must be Direct45

“O r a l evidence must, in all cases, whatever, be direct, Le. - I f it refers to a fact

Exceptions to the Hearsay Rule

149. When does a person's character becom e relevant?

SEC. 61: Proof o f Contents of Document

SEC. 62: Primary Evidence47

A c c o r d in g to Sec. 62, the expression ‘

SEC. 63: Secondary Evidence48

47. What is primary evidence? [Ruj.J.S.199I\

153. Which of the following facts need not be proved?

SEC. 65: When Secondary Evidence Relating to Documents May be Given50

50. D iscuss the circumstances in which a secondary evidence is admissible.

157. Oral evidence:

SECS. 65A/ 6SB: Admissibility of Electronic Records in Evidence

159. Hearsay evidence Implies:

signed by an officer in charge o f the operation or management o f the related

SEC. 66: Rules as to N otice to Produce

161. Hearsay evidence is generally Inadmissible. However, in certain cases

“I f a docum ent is alleged to be signed or written by any person, the signature or

SEC. 67A: Proof as to Digital Signature

SEC. 68: Proof of Execution of Document Required by Law to be Attested

SEC. 69: Proof where No Attesting Witness Found

“I f no such attesting witness can be found, or if the document is executed in the

SEC. 70: Admission of Execution by Party to Attested Document

Sec. 70 lays down that ‘

165. Secondary evidence Includes:

SEC. 71: Proof when Attesting Witness Denies the Execution

Sei. 71 lays down that ‘

SEC. 72: Proof of Document Not required by Law to be Attested

SEC. 73: Comparison of Signature, Handwriting, etc. by the Court

SEC. 73A: Proof as to Verification of Digital Signature

“I n order to ascertain whether a digital signature is that o f the person by w hom it

50a. Genuinenes o f a signature on a docum ent was in dispute. Parties produced

SEC. 74: P ublic D o c u m e n t s 51

T h e follow ing docu m en ts are public documents:

(1) D ocu m en ts form in g the acts, or records o f the acts:

51. What are public documents? [Ruj.J.S. 1989\

SEC. 75: Private Documents

“An other docum ents are private”.

SEC. 76: Certified Copies of Public Documents

SEC. 77: Proof of Documents by Production of Certified Copies

SEC. 78: Proof of Other Official Documents

T h e follow ing public docum ents may be proved as follows:

172. Mark the Incorrect statement In relation to Sec. 66:

(5) Proceedings o f a municipal body in a State may be proved by a certified co p y

SEC. 79: Presumption as to Genuineness of Certified Copies

SEC. 80: Presumption as to Documents Produced as Records of Evidence

SEC. 81: Presumption as to Gazettes, Newspapers, Private Acts of Parliament

SEC. 81A: Presumption as to Gazettes in Electronic Forms

T h e Court shall presum e the genuineness o f every electronic record purporting to

SEC. 82: Presumption as to Docum ent Admissible in England without Proof

175. How many w itnesses are required to attest a document?

A c c o r d in g to Sec. 83, maps or plans purporting to be made with the authority o f

SEC. 84: Presum ption as to Collection of Laws and Reports of Decisions

A c c o r d in g to Sec. 84, the Court presumes the genuineness o f every’book, printed