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UNIT 1
1. What is evidence? State different kinds of
evidence.
Introduction
Evidence includes everything that is used to determine or demonstrate the truth of an assertion.
Evidence is the currency by which one fulfils the burden of proof.
Admissible evidence is that which a court receives and considers for the purposes of deciding a
particular case.
The amount of evidence required for criminal and civil cases are different, the former requiring
evidence beyond reasonable, the latter considering only which side has the preponderance of
evidence, or whether the proposition is more likely true or false.
Definitions
Latin
The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show distinctly,
to make clear to view or sight, to discover clearly, to make plainly certain, to prove.
Blackstone
According to Sir Blackstone, ‘Evidence’ signifies that which demonstrates, makes clear or ascertain
the truth of the facts or points in issue either on one side or the other.
Taylor
According to Sir Taylor, Law of Evidence means through argument to prove or disprove any matter of
fact. The truth of which is submitted to judicial investigation.
Supreme Court
In a recent decision, the Supreme Court in Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr., has
examined and explained the law relating to the appreciation of 'hearsay' evidence. Justice J.M.
Panchal, speaking for the bench has observed as under;
The word `evidence' is used in common parlance in three different senses:

(a) as equivalent to relevant
(b) as equivalent to proof and
(c) as equivalent to the material, on the basis of which courts come to a conclusion about the
existence or non-existence of disputed facts.
The Indian Evidence Act

Section 3 of The Indian Evidence Act, defines evidence in the following words-
Evidence means and includes-
Oral Evidence
(1) All the statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under enquiry; such statements are called Oral evidence;
Documentary Evidence
Downloaded by S.N.S UNIVERSITY OF LAW (feciwe5210@bongcs.com)

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(2) All the documents including electronic records produced for the inspection of the court; such
documents are called documentary evidence;
The definition of Evidence given in this Act is very narrow because in this evidence comes before the
court by two means only-
(1) The statement of witnesses.

(2) Documents including electronic records.
Supreme Court
The Hon’ble Supreme Court of India in Sivrajbhan v. Harchandgir held “The word evidence includes
all valid meanings, all except agreements.
Where parties don’t get the opportunity to cross-examine statements to ascertain the truth, such a
statement is not Evidence.”
Different Forms of Evidence

(a) Oral Evidence – Section 60
All those statements which the court permits or expects the witnesses to make in his presence
regarding the truth of the facts are called Oral Evidence.
Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must
always be direct or positive. Evidence is direct when it goes straight to establish the main fact in
issue.
(b) Documentary Evidence– Section 3

All documents which are presented in the court for inspection are called documentary evidences.
Documentary evidence is more important than oral evidence.
(c) Primary Evidence-Section 62

Primary Evidence is the Top-Most class of evidences.
It is that proof which gives the vital hint in a disputed fact and establishes it through documentary
evidence.
In Lucas v. Williams, Privy Council held “Primary Evidence is evidence which the law requires to be
given first and secondary evidence is the evidence which may be given in the absence of that
evidence after a proper explanation of its absence has been given.”
(d) Secondary Evidence– Section 63

Secondary Evidence is inferior to Primary evidence. It is such evidence that on the presentation of
which it is felt that superior evidence yet remains to be produced.
It is the evidence which is produced in the absence of the primary evidence therefore it is known as
secondary evidence.
If in place of primary evidence secondary evidence is admitted without any objection at the proper
time, then the parties are precluded from raising the question that the document has not been
proved by primary evidence but by secondary evidence.
(e) Real Evidence

Real Evidence means material evidence.

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Real evidence of a fact is brought to the knowledge of the court by inspection of a physical object
and not by information derived from a witness or a document.
(f) Personal Evidence

Personal evidence is that which is afforded by human agents, either in way of disclosure or by
voluntary sign. For example, Contempt of Court, Conduct of the witness, behaviour of the parties,
the local inspection by the court.
(g) Hearsay Evidence

Hearsay Evidence is very weak evidence.
It is the reported evidence of a witness which, he has neither seen nor heard.
Sometimes, it implies the saying of something which a person has heard others say.
In Lim Yam Yong v. Lam Choon & Co., The Hon’ble Bombay High Court adjudged “Hearsay Evidence
which ought to have been rejected as irrelevant does not become admissible as against a party
merely because his council fails to take objection when the evidence is tendered.”
There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility.
When a piece of evidence is such that there is no prima facie assurance of its credibility, it would be
most dangerous to act upon it.
Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case
in which its use comes in for question is governed by the Evidence Act.
(h) Judicial Evidence

Evidence received by court of justice in proof or disproof of facts before them is called judicial
evidence.
The confession made by the accused in the court is also included in judicial evidence.
Statements of witnesses and documentary evidence and facts for the examination by the court are
also Judicial Evidence.
(i) Non-Judicial Evidence

Any confession made by the accused outside the court and not in front of the magistrate but in the
presence of some other person are termed as Non- Judicial evidences.
(j) Direct Evidence

Evidence is either direct or indirect.
Direct Evidence is that evidence which is very important for the decision of the matter in issue.
Direct evidences are those evidences which establishes a fact. The best example of a direct evidence
would be statement or confessions made by the witnesses.
Evidence of a person who had actually seen the crime being committed and has described the
offence is Direct Evidence.
(k) Prima Facie Evidence and Conclusive Evidence

1. Prima facie evidence is accepted as reliable as it establishes or proves a fact in the absence of
any contradictory evidence.

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2. Conclusive evidence is the use of facts involving the application of the rule of law. (S. 41)
Decree of a competent court is conclusive evidence.
(l) Circumstantial Evidence or Indirect Evidence

There is no difference between circumstantial evidence and indirect evidence.
Circumstantial or indirect evidence are the ones which attempts to prove the facts in dispute by
providing other facts. Circumstantial evidences are not definite proof. they only provide a general
idea as to what occurred at the crime scene.
Case Law 1
In the case of Ashok Kumar v. State of Madhya Pradesh, the Hon’ble Supreme Court held-
Firm Establishment
(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and
firmly established.
Pointer
(2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of
accused.
Chain
(3) The circumstances, taken cumulatively should from a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused and
none else.
Complete
(4) The Circumstantial Evidence in order to sustain conviction must be complete and incapable of
explanation on any other hypothesis than that of the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
Case Law 2
In the case of Kallu v. State of Uttar Pradesh, the accused was tried for the murder of the deceased
by shooting him with a country made pistol.
A cartridge was found near the bed of the deceased.
The accused was arrested at a distance of 14 miles from the village which was the place of
occurrence.
He produced a pistol from his house which indicated that he could have alone have known of its
existence there.
The fire-arms expert proved that it was the same pistol from which the shot was fired, and the
deceased was killed.
The Hon’ble Supreme Court while convicting the accused held “Circumstantial Evidence has
established that the death of the deceased was caused by the accused and no one else.”
Direct Evidence V. Circumstantial Evidence

The question that which evidence is superior is going from a long time, on this subjects jurists differ
in their views.

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Some jurists hold that direct evidence is superior evidence.
When a witness says that he had seen a particular event happening then undoubtedly his evidence is
superior, but even relying on direct evidence at once is also hazardous because a witness can make a
completely false statement.
In the same manner in the case of circumstantial evidence circumstances are also proved by
witnesses.
Particularly the manner in which the court draws inferences from circumstances they can be wrong
and also and thus circumstances also become false.

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2. Define admission and point out the differences

between admission and confession.
1. Introduction
In general, Admission is a voluntary acknowledgment of a fact.
Importance is given to those admissions that goes against the interests of the person making the
admission.
For example, when A says to B that he stole money from C, A makes an admission of the fact that A
stole money from C.
This fact is detrimental to the interests of A.
The concept behind this is that nobody would accept or acknowledge a fact that goes against their
interest unless it is indeed true.
Therefore, an admission becomes an important piece of evidence against a person.
On the other hand, anybody can make assertions in favour of themselves. They can be true or false.
For example, A can keep on saying that a certain house belongs to himself, but that does not mean it
is necessarily true. Therefore, such assertions do not have much evidentiary value.
2. Reference: Ss. 17 to 31 deal with admissions and confessions.

Confession is a kind of admission.
3. Grouping:
Admissions are grouped under 2 heads:
(1) Civil Cases [ss. 17- 23 & S. 31]; and
(2) Criminal Cases (recorded as confessions) [ss. 24- 30]
Thus, in civil and criminal matters where admissions are recorded, they are in the form of judicial and
extra-judicial admissions.
In judicial admissions, the formal admission is addressed to the court and is a part of the proceeding.
It is made on record in file of the court.
4. Evidentiary Value of Admissions:

i. The SC observed in the case of Banarai Das v. Kashi Ram, that admissions are a very weak
kind of evidence and the court may reject them if they are untrue.
ii. Further in the case Rakesh Wadhwar v. J.I. corporation, the SC held that admissions are not
conclusive proof of the matter admitted unless they operate as estoppels.
iii. The value of evidence depends on the circumstances under which they are made and also by
whom it is made.
5. Sections
A. Section 17: Definition
“An admission is a statement which:
i. Suggests an inference to a fact in issue or relevant fact
ii. Is oral or documentary or contained in electronic form
iii. Is made by any person under certain circumstances.”

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B. Classes of People
Sections 18, 19 and 20 list the classes of people who may be allowed to make admissions in
the course of the proceedings. Proceedings under these sections can be both civil and
criminal in nature.
i. Parties to the proceedings (s. 18)

ii. Agents authorised by the parties (s. 18)
iii. Persons occupying representative character (s. 18)
iv. Persons having pecuniary interests (s. 18 (1)
v. Persons from whom parties derived interests (s. 18 (2))
vi. Persons whose position is in issue or relevant to the issue (s. 19)
vii. Persons expressly referred to by the parties in a particular suit (s.20)
C. Section 18:
According to this section, statements made by persons who are directly or indirectly a party
to a suit are admissions.
For example, A bought a piece of land from B. Statements made by B at the time when B was
the owner of the land are admissions against A.
D. Section 19:
For example, A undertakes to collect rents for B. B sues A for not collecting rent from C.
Under these circumstances, a statement by C stating that he owed B rent is an admission
and may be relevant fact that can be used against A.
E. Section 20:
For example, to find out whether a horse sold by A to B is sound A says to B "Go and ask C. C
knows all about it" C's statement is an admission.
F. Section 21: Proof of admissions against persons making them, and by or on their behalf
Section 21 states that admissions are relevant and may be proved as against the person or
his representatives, but they cannot be proved on behalf of the person making it or his
representative interest except in the following cases:
Exception 1 - When the statement would have been relevant as a dying declaration or as
that of a deceased person.
For example, in a case between a shipowner and the insurance company, the contents of the
log book maintained by the captain would have been relevant evidence if the captain were
dead under Section 32. Therefore, the captain is allowed to prove the contents of the log
book even in the case involving him and the shipowners.
Exception 2 - Statements as to bodily feeling or mind

For example, A is accused of receiving stolen goods knowing them to be stolen.

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He offers to prove that he refused to sell them below their value.

A may prove these statements, though they are admissions, because they are explanatory of
conduct influenced by facts in issue.
Exception 3 – If it is relevant otherwise than as an admission.

There are many cases in which a statement is relevant not because it is an admission but
because it establishes the existence or non-existence of a relevant fact or a fact in issue. In
all such cases a party can prove his own statements.
For example, where A says to B, "You have not paid my money back", and B walks away in silence, A
may prove his own statement because it has influenced the conduct of a person whose conduct is
relevant.
G. Section 22: When oral admissions as to contents of documents are relevant
Oral admissions as to the contents of a document are not relevant.

Exceptions:
i. the party proposing to prove them shows that he is entitled to give secondary evidence
of the contents of such document under the rules, or
ii. unless the genuineness of a document produced is in question.
H. Section 23. Admissions in civil cases when relevant.
In civil cases no admission is relevant:
a) if it is made either upon an express condition that evidence of it is not to be given, or
b) under circumstances from which the Court can infer that the parties agreed together that
evidence of it should not be given.
Explanation. –– Nothing in this section shall be taken to exempt any barrister, pleader, attorney or
vakil from giving evidence of any matter of which he may be compelled to give evidence under
section 126.
I. Section 31. Admissions not conclusive proof, but may estop.
Admissions are not conclusive proof of the matters admitted but they may operate as estoppels
under the provisions hereinafter contained.
6. Differences Between Admission and Confession

1) An admission is a statement oral or written which suggest the liability or right of the person
making the statement whereas a confession is a statement oral or written of a person accused of an
offence in which either he has admitted having committed the offence or he has substantially
admitted all the facts which constitute the offence.
2) All admissions are not confessions whereas all confessions are admissions.
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3) An admission may be used in favour of the person making admission under certain circumstances
whereas a confession always goes against the person making it and no circumstances it can be used
in favour of the person making it.
4) An admission is made in civil cases whereas a confession is made in criminal cases.
5) An admission cannot be used as confession whereas a confession which falls short of admission of
an offence can be used as admission.
6) An admission is not conclusive proof of the matters admitted but it may operate as an estoppel
whereas a confession if made voluntarily may be accepted as conclusive proof of the matters
confessed.
7) A retracted admission is of no value whereas a retracted confession may form the basis of
conviction if it is supported by independent corroborative/ supportive evidence.
8) An admission by one of the several defendants is no evidence against rest of the defendants
whereas a confession of two or more accused persons jointly tried for the same offence can be taken
into consideration against the other co-accused under Section 30 of the Indian Evidence Act, 1872.
9) A Judicial Magistrate takes a confession, but an admission is taken by the Judge of civil
court.
10) An admission may be made by different classes of people, but a confession must be
made by the accused.
11) Admission is taken according to the procedure stated in Code of Civil Procedure 1908,
whereas Confession is taken according to the procedure stated in section 164 of Code of
Criminal Procedure 1898.
12) Section 17-23 and 31 of this Act describe about admission whereas section 24-30
describe about confession.
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3. Explain the relevancy of facts forming the same

transaction, with suitable illustrations.
Section 6 - Relevancy of facts forming part of same transaction.

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times and
places.
Essentials
From the analysis of Section 6 it is clear that facts, which though not in issue, are relevant, if—
They are so connected with a fact in issue as to form the part of the same transaction;
Such facts would be relevant whether they occurred at the same time and place or at different times
and places.
Explanation
Every fact which is part of the same transaction as the fact in issue is deemed to be relevant to the
fact in issue although it may not be actually in issue.
Suppose A is tried for the murder of B by beating him with a club.
Here the transaction is the crime of murder.
That A beat B with a club, that A caused B’s death, that A had an intention of causing B’s death are all
in issue and form parts of the same transaction, and evidence can always be given of such facts in
issue under Section 5.
But the words uttered by A at or about the time of beating, or words uttered by B or by persons
standing by, at or about the time of beating, are not in issue.
But they also form parts of the same transaction. No one beats another silently, nor would the
person beaten be silent while he was being beaten, nor would persons standing by watch silently.
The transaction includes all these utterances and, though not in issue, form part of the transaction of
murder, which is the subject of enquiry, and therefore are relevant under this section.
References
The rules formulated in Section 6 is expounded and illustrated in Sections 7, 8, 9 and 14.
Principle - res gestae.

The principal of law embodied in S.6 is usually known as the doctrine of res gestae – “Things done”.
It is an exception to the general rule that hearsay evidence is not admissible.

Though hearsay evidence is not admissible, but when it is res gestae, it can be admissible in a court
of law and may be reliable evidence.
Definitions
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Transaction
A transaction is a group of facts so connected together as to be referred to by a single legal name.
Examples:
a crime,
a contract,
a wrong or
any other subject of inquiry which may be in issue.
A good working test of deciding what transaction is;

proximity of time,
proximity of place,
continuity of actions, and
purpose.
Roughly, a transaction may be described as any physical act, or a series of connected physical acts,
together with the words accompanying such act or acts.
Facts that fall under Res Gestae

Res gestae include elements that fall outside the modern hearsay definition altogether, such as
circumstantial evidence of state of mind,
so-called “verbal acts,”
verbal parts of acts, and
certain non-verbal conduct.
Not a Fact
A fact in issue cannot be proved by showing that facts similar to it, but not part of the same
transaction, have occurred at the other times.
Thus, when the question is, whether a person has committed a crime, the fact that he had
committed a similar crime before, is irrelevant.
Tests on Hearsay Statement

The test to be applied in deciding whether a hearsay statement made by a bystander or victim
indicating the identity of the attacker is admissible can be put succinctly;
Was the identification relevant?

Was it spontaneous?
Was there an opportunity for concoction?
Was there any real possibility of error?
Discretion of Court
The question whether they do form part or are too remote to be considered part of the transaction is
at the discretion of the Court.
Illustrations
Physical Acts and Words
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant
fact.
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A transaction consists both of the physical acts and the words accompanying such physical acts,
whether spoken by the person doing such acts, the person to whom they were done or any other
person or persons.
The expression 'bystanders' means the persons who are present at the time of the occurrence and
not those who gather on the spot after the occurrence.
The statement is relevant only if it is that of a person who has seen the actual occurrence and who
uttered it spontaneously with the incident or so soon thereafter as to make it reasonably certain that
the speaker is still under the stress of the excitement caused by his having seen the incident.
Different Places and Times

(b) A is accused of waging war against the [Government of India] by taking part in an armed
insurrection in which property is destroyed, troops are attacked and gaols are broken open. The
occurrence of these facts is relevant, as forming part of the general transaction, though A may not
have been present at all of them.
Continuity of Actions
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the
parties relating to the subject out of which the libel arose, and forming part of the correspondence in
which it is contained, are relevant facts, though they do not contain the libel itself.
Purpose
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.
Applicable Cases:
Adoption
In the majority of cases, execution of a deed of adoption forms a part of the transaction of adoption
itself and is relevant under S.6.
Rape
In rape, indecent assault and cries or complaint to any one made during or immediately after
occurrence, is admissible as part of the transaction. Such evidence is also admissible as conduct.
The statement is admissible not as evidence of the truth of the charge, but as evidence of the
credibility of the complainant.
Where the raped girl made a statement to her mother after the rape when the culprit had gone away
and the girl came home from the scene of occurrence, it is not admissible under S.6 as part of the
transaction.
Unlawful assembly
Statements made by members of unlawful assembly of their determination to force their way
through a police cordon are evidence of res gestae.
Newspaper report.
A newspaper report can be relied on by the Election Commission while deciding a petition in
connection with repolling. In similar circumstances the High Court can also rely on newspaper
reports.
Other cases
Statements made by a testator at the registration of the will are admissible.
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Case Laws
Facts forming part of same transaction.
Proximity of Time
Where the witness deposed that immediately after the occurrence, his niece told him that his wife
was shot by the accused, it was held that his statement was admissible under s. 6, Illustration (a) and
so also his statement that the accused was threatening persons on the spot that he would kill them
too.
Proximity of Time and Place

This aspect of the doctrine was applied by the Supreme Court in Rattan Singh v. Slate of H.p. The
accused intruded into the courtyard of the victim's house at night and inflicted gun-shot injury on
her. She was able to identify him. She stated before her death that the accused was standing with a
gun before her. She explained the time and space proximity between her and the assailant. The
statement was held to be a part of the transaction and relevant as such under s. 6.
Proximity of Time and Continuity of action.

The prosecution witnesses did not see the accused committing the offence of rape and murder but
their evidence showed that they reached the place of occurrence and saw him fleeing from there
and chased him and eventually caught him in a situation where he was found with a bloodstained
shirt, pant and belt and shoes and was trying to wash in the 'kehli' (water pond for cattle) and
brought him back to the place of incident. These facts form the part of the same transaction and
such evidence would be by virtue of doctrine of res gestae admissible, because of the proximity of
time and continuity of action.
Different Places and Time

The conduct of a man in arranging for the burning of his wife and his conduct afterwards was held to
be parts of transaction under which his wife came to be consumed by fire.
Facts not so connected as to form part of same transaction.

Prior to Event
Evidence of witnesses who deposed that the deceased had made certain statements to them either
nine months or even ten days prior to his murder was held inadmissible under this section or s. 8.
After Event
The statement of an injured person who subsequently died made to a person who sometime after
the incident reached the spot was held to be not a part of the transaction.
Uncertain Time
In a case involving murder by a man of his wife and daughter, evidence was offered to show that the
wife's father received a phone call from the father of the accused that his son had caused the deaths
in question. This was held to be not relevant under s. 6 because there was nothing to show that the
communication had taken place so soon after the crime as the form a part of the same transaction.
No connection
The prosecution of the husband was for torture of his wife for non-fulfilment of his demand. The
witnesses testified to what the deceased told them about torture and harassment. The Court said
such deposition had no connection with any of the circumstances of the transaction which resulted
in her death. Their evidence was also not admissible under s. 32.
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n. The magistrate hands over the memorandum to the investigating authority to carry on further
investigation.
6. Explain the relevancy of facts showing, motive,

preparation and conduct
Reference
Section 8 of the Evidence Act 1872 provides circumstances in which a fact is relevant.
Under this section, the following facts are relevant:
a) Facts which shows motive
b) Facts which shows preparation
c) Facts which show previous or subsequent conduct of any person on condition that it is
influenced by any fact in issue or relevant fact.
d) Statement accompanying and explaining acts – Explanation 1
e) Statements made in the presence and hearing of a person whose conduct is relevant provided
the statement affects such conduct. – Explanation 2
The main principle

This section talks about the significance of motive, preparation, previous or subsequent conduct as
relevant evidence in various cases.
As we know that before deliberate commission of a crime the offender must have some motive
behind that.
To achieve the motive the offender must have taken some preparations.
The conduct of the accused before or after the crime is also very relevant as circumstantial evidence.
From the circumstantial evidences available before it, the Court can draw inferences and arrive at its
conclusion. Therefore, this section is very important in those cases where evidence is not clear and
direct.
Motive and Intention

A person's intention is his decision to do or not to do a particular act, but his motive is the reason for
forming that decision.
For example, when a poor woman with a child steals a loaf of bread, her intention is to steal but her
motive may be to feed her child.
Motive
Motive is that which induces a person to do a particular act. Every voluntary act has motive.
The Supreme Court of India has said motive is something which prompts a man to form an intention.
Relevance of Motive under the Act:

When there is direct evidence pointing directly to the accused's guilt of committing the crime,
motive is no longer necessary to sustain the conviction.
In the version of Supreme Court if the eye witnesses are trustworthy, the motive attributed for the
commission of crime may not be of much relevance.
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When a case depends entirely on CIRCUMSTANTIAL EVIDENCE motive is very important.

Evidence of motive then becomes important.
If, in such cases, the accused can show absence of motive then it becomes positive evidence in his
favour.
But, if there is a clear proof of motive for the commission of crime, it goes against him.
Motive is an important aspect of evidence, but it is very difficult to prove it is a mental state of affairs
of the accused and cannot be seen from the outside.
Illustration (a)
Motive cannot always shown directly. It has to be inferred from the facts and circumstantial in
evidence.
E.g.: A is tried for murder of B.

B was present at the scene of the offence, while A was murdering C.
This fact and the fact that B tried extorting money from A for not revealing the act are relevant facts
as to motive for the murder of B.
Case Laws:
1. In State of M.P. Vs. Dhiredra Kumar AIR 1997 SC 318, Munnibai was killed.
Respondent was tenant in the house of father-in-law of deceased (Munnibai).
Respondent Dhiredra Kumar had an evil eye on her.
Munnibai reported the matter to her mother in law who in turn told it to her husband;
The Husband asked the Respondent to vacate the house.
This may be taken as motive of murder.
2. Rajendra Kumar Vs State of Punjab:

In this case the Court held that
where the prosecution fails completely to prove motive and
evidence regarding commission of the offence is not definite
then accused cannot be convicted.
Preparation:
Preparation is a step before any commencement or attempt of a crime.
Preparation consists in arranging or devising the means necessary for the commission of a crime.
Every crime is necessarily preceded by preparation.
The Supreme Court of India interpreted the word preparation as denoting not only to
action or process of preparing the components to produce the compound, but
also that which is prepared.
Relevance of Preparation under the Act:

There are four stages in Commission of Crime
1) Intention
2) Preparation
3) Attempt
4) Accomplishment / complete act.
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However, the mere forming of an intention to commit a crime and making preparations for its
commissions are not criminal acts and not punishable under the law.
So, when is the preparation for a commission of a criminal offence become important? The
preparation becomes prominent and essentially important to be considered once an offence had
been committed.
Preparation will be a relevant fact to be considered as admissible provided that is relates with the
fact in issue or relevant fact.
The preparation on the part of the accused may be reflected in various stages namely to accomplish
the crime, to prevent the discovery of crime or it may be to aid escape of the criminal and avoid
suspicion.
Illustrations
Illustration (c) reads A is tried for the murder of B by poison. The fact that, before the death of B, A
procured poison similar to that which was administered to B, is relevant. The given illustration is self
explanatory and clearly reveals the importance of preparation as relevant evidence.
Case Laws:
1. Mohan Lal Vs Emperor: The accused was charged with cheating for importing goods in Karachi port
without paying the proper custom duty. Evidence was adduced of previous visit of the accused to the
port of Okha, where it was said he tried to make some arrangements with the customs whereby he
could import other goods without payment of proper duty. The evidence was held to be admissible
as they were the preparation being made out by the accused in order to do the wrongful act.
2. Appu Vs State: There was a burglary. The four accused conducted a meeting to make arrangements
of the crime. A bar of iron and pair of pincers were necessary and these were brought by the
accused. These facts were admitted as they showed preparation on the part of the accused. The
preparation manifested clearly that an intention to commit the offence of burglary was framed and
that intention prevailed in the minds of the accused until they were grabbing any opportunity to put
the preparation into the execution.
Conduct
The conduct that this section speaks is different from character.
Conduct means the external behaviour of a person, whereas character can be said to be an
impression about a person in the minds of others.
Conduct can be divided to previous conduct and subsequent conduct. As for previous conduct, it is
closely connected with preparation and motive. When these three elements are present, it could
establish guilt on the accused.
Paragraph 2 of Section 8 deals with the relevancy of the conduct of the following persons
1) Parties to the suit and of their agents.
2) Person, an offense against whom is the subject of a proceeding.
Relevance of Conduct under the Act:
Evidence can be given of such facts to show the unusual / peculiar conduct of a person who is
accused of an offence, and said conduct may be previous or subsequent to the alleged commission
of the offence;
The conduct of a person concerned in a crime would become relevant if his conduct is related with
the incident.
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To regard a conduct to be relevant it must be closely connected with the incident concerned.
A conduct to become relevant under section 8 of need not become simultaneous or spontaneous,
that is to say with that very incident.
It may become subsequent and previous to the main fact in issue.
If the Court considers some conduct to be relevant, then the conduct must help the Court in arriving
to a conclusion in the controversy.
The conduct must have a bearing over the decision.
If it so happens, it shall be thoroughly scrutinized by the Court.
Illustrations
Previous Conduct
Illustration (d) The question is, whether a certain document is the will of A.
The facts that, not long before, the date of the alleged will, A made inquiry into matters to which the
provisions of the alleged will relate; that he consulted vakils in reference to making the will, and that
he caused drafts of other wills to be prepared, of which he did not approve, are relevant.
Subsequent Conduct
Illustration (h: The question is whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was being made for the
criminal and the contents of the letter are relevant.
Case Laws:
1. Bhamara Vs State of M.P: In this case a person X was cultivating his land. Another person Y was
passing by the land. He called X to chat with him. During the interaction some hot words were
exchanged and altercation ensued. X battered in the head to Y. Two bystanders namely A & B rushed
to that place. Seeing other people coming to that spot X tried to escape but was caught by C. The
conduct of escaping of the accused was held a very relevant subsequent conduct.
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2. Explain the circumstance in which judgements of

court become relevant
Reference: Sections 40 to 44
1) Introduction
Sections 40 to 44 are based on Doctrine of Res Judicata and Doctrine of autre fois convict, means
same person cannot be convicted for the same offense twice.
It is also known as doctrine of double jeopardy as contemplated under article 22(ii) of the Indian
Constitution.
Section 41 deals with doctrine of judgement in rem, which not only binds the parties and their
representatives to it, but also are binding against the whole world.
Section 42 provides that judgements, orders or decrees other than those mentioned in Section 40
and Section 41 are admissible if they relate to matters of public nature relevant to inquiry.
Section 43 provides that judgements orders or decrees other than those mentioned in Section 40, 41
and 42 are irrelevant and cannot be proved unless the existence of such judgement, order or decree
is a fact in issue or is relevant under some provision of this act.
Section 44 provides the procedure for the purpose of getting a judgement annulled on the ground of
want of jurisdiction, fraud and collusion.
2) Objective
The object of the provision of this chapter is to avoid multiplicity of suits and to save precious time of
the Court.
There should be end of litigation in the interest of justice.
S.11 of C.P.C deals with Doctrine of res Judicata which signifies that when a matter of fact has been
finally and conclusively resolved by a competent court, the same matter cannot be re-litigated once
again.
3) Kinds of Judgements
Judgements are classified into two types -
i) Judgements in Rem; and
ii) Judgements in Personam.
i) Judgement in Rem:
Judgements affecting the legal status of some subject matters, persons or things are called
'Judgments in rem'.
e.g. Divorce Court Judgement, grant of probate or administration etc.
Such judgements are conclusive evidence against all the persons whether parties to it or not.
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ii) Judgement in Personam:

Judgements in personam are all the ordinary judgements not affecting the status of any subject
matter, any person or anything.
In such judgements, the rights of the parties to the suit or proceedings are determined.
4) Relevancy of Judgment
A) Previous Judgements relevant to bar a second suit or trail (Section 40)
The object of the provision is to avoid multiplicity of suits and to save the precious time of the Court.
In Civil Procedure Code, Section 11 provides the rule of Res Judicata and in Cr.P.C and the constitution
it is provided that no one shall be punished for the same offense twice, based on the rule of double
jeopardy.
If there is a question whether a court can take cognizance of a suit or hold a trial, what has to be
looked for or what is relevant is the existence of any judgment, order or decree which by law
prevents any court from taking cognizance of a suit or holding such a trial.
Section 40 permits such evidence to bar a second suit or trial.
B) Relevancy of certain judgements in probate, etc., jurisdiction (Section.41) - Judgements in rem

A final judgment, order or decree of a Competent Court,
in exercise of
probate,
matrimonial,
admiralty or
insolvency jurisdiction,
which confers upon or to takes away from any person any legal character, or
which declares any person to be entitled to any such character, or
to be entitled to any specific thing not as against any specified person but absolutely,
is relevant.
Such judgment, order or decree is conclusive proof -

i) That any legal character which it confers accrued at the time when such judgment, order or decree
came into operation;
ii) That any legal character to which it declares and such person to be entitled, accrued to that person
at the time when such judgment, order or decree declares it to have accrued to that person;
iii) That any legal character to which it takes away from any such person ceased at the time from
which such judgment, order or decree declared that it had cased or should cease.
iv) And that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment, order or decree declares that it had been or should be
his property.
Section 41 deals with what is known as judgement in rem, which not only bind the parties and the
representatives to it, but also are binding as against the whole world.
For a judgement to be binding and conclusive proof under section 41 the following conditions have
to be satisfied -
1) The judgement must be a final judgement.
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2) The court delivering the judgement must be competent.
3) The judgement must have been delivered by the court in the exercise of Probate, size of
Matrimonial, Admiralty or Insolvency jurisdiction.
4) The judgement must confer on or take away from any person any legal character or declare that
any person is entitled to such legal character or declared that any person is entitled to any specific
thing absolutely.
C) Relevancy and effect of judgements, orders or decrees, other than those mentioned in Section
41- (Section 42)
According to Section 42, Judgments, orders or decrees other than those mentioned in Section 41, are
relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments,
orders or decrees are not conclusive proof of that which they state.
Illustration
A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which
A denies.
The existence of a decree in favor of the defendant, in a suit by A against C or a trespass on the same
land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive
proof that the right of ways exists.
D) Judgements etc other than those mentioned in Sections 40 to 42, when relevant (Section 43)
Section 43 Provides, that Judgments, orders or decrees other than those mentioned in Sections 40,
41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or
is relevant, under some other provision of this Act.
Illustrations
c) A prosecuted B for stealing a cow, from him, B is convicted.
A, afterwards, sues C for cow. Which B had sold to him before his conviction. As between A and C,
the judgment against B is irrelevant.
d) A has obtained a decree for the possession of land against B. C, B’s son murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
E) Fraud or collusion in obtaining judgement, or incompetency of court, may be proved (Section

44) -
The general rule is, a judgement of a competent court shall be binding on the parties operating as
Res Judicata in subsequent proceedings between the same parties.
Section 44 contains exception to this rule. According to Section 44, a judgement is liable to be
annulled /impeached on the ground of
a) of want of Jurisdiction;
b) fraud; and
c) collusion. It runs as follows...
Any party to a suit or other proceeding may show that any judgment, order or decree which is
relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered
by a Court not competent to deliver it, or was obtained by fraud or collusion.
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3. What is Confession? State the conditions of their

relevancy.
Reference: Sections 24 - 30
Introduction
A confession is a kind of admission.
A confession is received in evidence on the presumption that no person will voluntarily make a
statement which is against his interest, unless it be true.
Definition
The term “confession” is nowhere defined in Indian Evidence Act, 1872.
The word “confession” appears for the first time in Section 24 of the Indian Evidence Act, 1872. This
section comes under the heading of “admission” so it is clear that the confessions are a mere species
of admission.
The definition of “admission” as given in Section 17 of the Indian Evidence Act, 1872 becomes
applicable to confession also.
Section 17 of the Act defines “admission” as “a statement oral or documentary, which suggests any
inference as to any fact in issue or relevant fact.”
If such a statement is made by a party to civil proceedings it will be called an “admission” and if it is
made by a party charged with a crime or to criminal proceedings it will be called a “confession”.
Thus, in terms of the Act, a confession is a statement made by a person charged with crime
suggesting the inference that he committed the crime.
Conditions for Relevancy of a Confession

(1) It must not be caused by inducement, threat or promise (Section 24).
(2) It must not be made to a police officer (Section 25), subject to the provisions of section 27.
(3) It must be made in the immediate presence of a Magistrate when the accused is in the custody of
police officer (Section 26).
(4) It must be made after the impression, caused by any inducement, etc., has been fully removed
(Section 28).
(5) The confession of an accused is relevant only against himself, subject to section 30.
Forms of Confession
Judicial Confession
Judicial confessions are those confessions which are made before a Magistrate or in Court in the due
course of legal proceedings.
A Judicial confession is a good piece of evidence and the accused can be convicted or punished on
the basis of this judicial confession.
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Extra-Judicial Confession
Extra-judicial confessions are those confessions which are made by the accused anywhere else other
than before a Magistrate or in Court.
The evidence of extra-judicial confession is a weak piece of evidence.
It can be relied on only when it is clear, consistent and convincing.
An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a

chain of cogent circumstances and is further corroborated by other prosecution evidence.
Retracted Confession and Its Value

A retracted confession is a confession voluntarily made by a person and subsequently retracted.
Retracted confession can be used against the person making it if it is supported by independent and
corroborative evidence.
The retracted confession may also form the basis of conviction and punishment if it is believed to be
true and voluntary.
Irrelevant and Relevant Confessions

Irrelevant Confessions
Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act, 1872 deals with irrelevant
confessions.
Section 24 - Confession caused by inducement, threat or promise, when irrelevant in criminal

proceeding.
The conditions of irrelevancy under the section are:
 The confession must be the result of inducement, threat or promise;
 Inducement, etc. should proceed from a person in authority;
 It should relate to the charge in question; and
 It should hold out some worldly benefit or disadvantage.
When these conditions are present the confession is irrelevant.
1) Inducement, threat or promise

Inducement, threat or promise need not be express, but may be implied.
It is not necessary to prove strictly that a confession was brought about by proper inducement.
It is quite sufficient to exclude the confession, if circumstances are placed before the Court, which
would make it appear that the confession was so induced.
An inducement to confess may be upon a promise of pardon.
2) Person in authority
The expression “person in authority” refers to government officials.
Every government official will be a person in authority who the accused thinks is capable of
influencing the course of prosecution.
3) Inducement, threat or promise should be in reference to charge

The inducement, threat or promise should be in reference to the charge in question.
Thus, where a person charged with murder, was made to confess to a Panchayat which threatened
his removal from the caste for life, the confession was held to be relevant, for the threat had nothing
to do with the charge.
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4) Benefit of temporal nature

The inducement, threat or promise must be such that the accused person would suppose that by
making the confession he would gain any advantage or avoid any evil of a temporal (worldly) nature
in reference to the proceedings against him.
Section 25 Confessions made to a police officer are Irrelevant

No confession made to a police-officer, shall be proved as against a person accused of any offence.
The broad ground for not admitting confessions made to a police officer is to avoid the danger of
admitting a false confession by Torture of the accused persons.
The following points should be noted:
1) Confession
A confession must either admit in terms the offence or at any rate substantially all the facts which
constitute the offence.
It is confession to a police officer made at any time which is not admissible.
2) Police Officers
The important quality of a Police Officer is that he must not only have power to make investigation of
crime but to file a report against criminal and have the power to prosecute the criminal.
Section 26: Confession by accused while in custody of police not to be proved against him.
It provides that no confession made by any person whilst he is in the custody of a police officer,
unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation to Section 26 of the Act provides that a “Magistrate” is one exercising the powers of a
Magistrate under the Code of Criminal Procedure, 1973.
Objective
The object of Section 26 is to prevent the abuse of their powers by the police.
The principle or reason behind this Section is that an accused might confess to any person under the
fear of police torture.
Custody
The custody of a police officer is not mere physical custody.
Police custody means effective police control is not confined to the walls of a prison only.
It may be anywhere in the course of journey, hospital or even in your own house.
The crucial test is whether at the time when a person makes a confession he is a free man, or his
movements are controlled by the police by themselves or through some other agency employed by
them for the purpose of securing such confession.
Thus, statements made before television or press reporters by the accused person in police custody
are inadmissible.
Exception:
If the accused confesses while in police custody but in the immediate presence of a Magistrate, the
confession will be valid.
The presence of a Magistrate rules out the possibility of torture thereby making the confession free,
voluntary and reliable.
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It has been held that “immediate presence of the Magistrate” means his presence in the same room
where the confession is being recorded.
His presence in the adjoining room cannot afford the same degree of protection against torture.
Section 27: How much of information received from accused may be proved
Section 27 is an exception to the rules laid down in Section 25 & 26 because this section makes a
confession relevant even if it is made to a police officer in police custody.
But the condition is that the confession made has led to the discovery of some facts and limited to
the facts discovered.
The essentials of the Section 27 are:

1) When any fact is deposed to as discovered in consequence of the information,
2) Information must be received from a person accused of any offence,
3) The accused must be in police custody, and
4) Only such information as distinctly relates to the fact discovered will be relevant and can be
proved.
1) When any fact is deposed to as discovered in consequence of the information

The ‘fact’ must be a ‘relevant fact’ (Section 5).
The fact must be the consequence, and the information the cause of its discovery.
If any portion of the information does not satisfy this test, it should be excluded.
In case of burglary a statement made by the accused in police custody that he would show the place
where he had hidden the ornaments when the statement lead to the discovery of the ornaments is
admissible.
In order that a "discovery" may come under the provision of section, the place from which the
incriminating article was recovered must be a place of concealment which would be difficult or
impossible for the police to discover without some assistance from the accused.
The discovery of the pistol, the murder weapons at the instance of the accused from a place which
was a public thoroughfare was held to be not relevant.
2) Information must be received from a person accused of any offence

The Bombay High Court has held that the word "information received from a person accused of any
offence" cannot be read to mean that he must be an accused when he gives the information but
would include a person if he became subsequently an accused person, at the time when the
statement is ought to be received in evidence against him.
Where a person goes to a police officer and makes a statement which shows that an offence has
been committed by him, he has accused himself though he is not formally arrested.
3) The accused must be in police custody

Even indirect control over the movements of the suspect by the police wound amount to 'police
custody'.
'Custody' does not necessarily mean detention or confinement.
4) Only such information as distinctly relates to the fact discovered will be relevant and can be
proved
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The word "distinctly" means "directly", "indubitably”, “strictly" and "unmistakably".

When the accused gives information to the police in a form which divides such information into
several parts, the part admissible under this section can be easily separated.
But, where the accused gives his information in the form of a compound statement, the Judge must
divide the sentence into what are really its component parts and only admit that part which has led
to the discovery of the particular fact.
Relevant Confessions
Apart from Section 27, relevant confessions have been dealt with under Sections 28, 29 and 30 of the
Indian Evidence Act, 1872.
Section 28 - confession made after removal of impression caused by inducement, threat or

promise, relevant.
It provides that if such a confession as is referred to in Section 24 is made after the impression
caused by any such inducement, threat or promise has, in the opinion of the Court, been fully
removed, it is relevant.
The Madhya Pradesh HC has held that where once the existence of threat, assault, beating, or
improper inducement has been established, there is a presumption of its continuance and the
prosecution has to prove that the impression caused by the original inducement, beating, assault, or
threat was fully removed, when the prisoner made the confession.
Section 29: confession otherwise relevant not to become irrelevant because of promise of secrecy,
etc.
Under this Section a confession is relevant even if it is obtained under the following circumstances: 1)
By making a promise to the accused that it will be kept secret or that evidence of it shall not be
given against him.
It may be recalled that an admission made in a civil case under promise that evidence of it shall not
be given is not relevant, (Section 23).
2) By practicing a deception on the accused for the purpose of obtaining his confession.
Thus, where the two accused persons were left in a room where they thought they were all alone,
but secret tape recorders were recording their conversation, the confessions thus recorded were
held to be relevant.
3) When the accused was drunk

A confession obtained by intoxicating the accused is equally relevant.
The law is concerned to see that the confession is free and voluntary and if this is so, it does not
matter that the accused confessed under the influence of drink.
4) In answer to questions which he need not have answered

A confession is relevant even if it is in reply to a question which the accused was not bound to
answer. This principle applies in case of extra-judicial confession.
5) Lack of Warning
If such a confession is otherwise relevant, it does not become irrelevant merely because the accused
was not warned that he was not bound to make such confession, and that evidence of it might be
given against him.
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Section 30: Consideration of proved confession affecting person making it and others jointly under
trial for same offence.
Under this section a confession by one person may be taken into consideration against another
1) If both of them are tried jointly;
2) If they are both tried for the same offence;
3) Confession made by one of the persons affecting himself & some other of such persons; and
4) If the confession is legally proved.
1) Tried Jointly
There should be joint trial of the accused.
The joint trial should be legal.
2) For the same offence

When two persons are accused of an offence under same definition, arising out of a single
transaction, the confession of the one may be used as the other.
3) Confession made by one of the persons affecting himself & some other of such persons
The SC has held that a confession must implicate the makers substantially to the same extent as the
other accused person against whom it is sought to be taken into consideration.
Thus, the test is that the confessing accused must tar himself & the person or persons he implicates
with one and the same brush.
Statements made by an accused which implicates his fellows& exculpate him are not regarded as
evidence.
4) Proved
The section provides that the court may take the confession into consideration & thereby make it
evidence on which the court may act, but it does not say that the confession is to proof.
There must be clearly some evidence.
The confession is only one element in the consideration of all facts proved in the case; it can be into
the scale & weighed with other evidence.
The confession of a co-accused can be used only in support of other evidence & cannot be made the
foundation of conviction.
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4. Explain the provisions relating to expert evidence.

Introduction
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third
persons, which is commonly called in our day to day practice as expert’s opinion.
These provisions are exceptional in nature to the general rule that evidence is to be given by
witnesses only.
The exception is based on the principle that the court can’t form opinion on the matters, which are
technically complicated and professionally sophisticated, without assistance of the persons who have
acquired special knowledge and skill on those matters.
Conditions for admitting an expert opinion:

a) That the dispute can’t be resolved without expert opinion and
b) That the witness expressing the opinion is really an expert.
Who is an expert?
An ‘Expert’ means a person who has special knowledge, skill or experience in any of the following
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression
and such knowledge has been gathered by him—

a) by practice,
b) observation or
c) proper studies.
For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint expert
etc.
According to Sec.45, the definition of an expert is confined only to the five subjects or fields as
mentioned above.
But practically there are some more subjects or fields on which court may seek opinion an expert.
Duty of the expert:

a) An expert is not a witness of fact.
b) His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of the
conclusion so as to enable the judge to form his independent judgment by application of the criteria
to the facts proved by the evidence.
Admissibility of expert opinion:

a. Expert evidence can’t take the place of substantive evidence.
b. It must not be the sole basis for conclusive proof.
c. The expert opinion is only corroborative evidence.
d. It must be corroborated either by clear direct evidence or by circumstantial evidence.
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e. The report of an expert is not admissible unless the expert gives reasons for forming the opinion.
f. Expert opinion becomes admissible only when the expert is cross examined as a witness in the
court.
g. When there is a conflict between expert evidence and ocular (eye) evidence, oral evidence of an
eye witness has to get primacy as expert evidence is basically opinionative.
h. Where the opinions of two experts equally competent to form an opinion differ, the court will
accept the opinion of that expert which supports the direct evidence in the case. [Piara Singh v.
State of Punjab AIR 1977 SC 2274]
Exceptions:
But in order to curtail the delay and expenses involved in securing assistance of experts, the law has
dispensed with examination of some scientific experts.
For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:
a) The Chief Controller of explosives
b) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science Laboratory.
Sec.45: Relevancy of opinion of experts

If the court has to form an opinion upon-
a) Foreign law,
b) Science,
c) Art,
d) Identity of handwriting or
e) Finger impression
the opinion of the persons who are especially skilled in the above subject or fields are relevant.
Illustration
1) The question is whether a certain document was written by A.
Another document is produced which is proved or admitted having been written by A. Opinion of
experts on the question whether the two documents were written by the same person or by
different persons, are relevant.
The following kinds of expert opinion may be relevant:

1) Foreign law:
Foreign law can be proved –
a) by the evidence of a person especially skilled in it and
b) by direct reference to the books printed or published under the authority of the foreign
government.
2) Science or art:
Science or art includes all subjects on which a course of special study or experience is necessary to
the formation of an opinion.
“Science” or “art” is not limited to higher science or fine art, but it has its original sense of
handicraft,
trade,
profession and
skill in work which has been carried beyond the sphere of the common pursuits of life into that of
the artistic and scientific action.
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The following matters are included in the ‘science’ and art and the expert opinion of these matters
are relevant:
Medical opinion:
A doctor acquires special knowledge of medicine and surgery and as such he is an expert.
Opinions of a medical officer, physician or surgeon may be admitted in evidence to show--
a) Physical condition of a person,
b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries were caused
f) Time at which the injury or wounds have been caused.
g) Whether the injury or wounds are fatal in nature
h) Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
i) Probable future consequences of an injury etc.
3) Handwriting:
· The expert can compare disputed handwriting with the admitted handwriting and give his opinion
whether one person is the author of both the handwritings.
· The opinion of a handwriting expert is relevant, but it is not conclusive and handwriting of a person
can be proved by other means also.
· The following sections deal with different modes of proving handwriting:

i. Section 45: Expert Opinion
ii. Section 47: Non- Expert Opinion
iii. Section 73: The court can form opinion by comparing disputed handwriting with the admitted
handwriting.
iv. Section 21: The person against whom the document is tendered can admit the handwriting.
4) Fingerprint expert:
The court will not take opinion of fingerprint expert as conclusive proof but must examine his
evidence in the light of surrounding circumstances in order to satisfy itself about the guilt of the
accused in a criminal case.
Can an Expert suo moto examine and furnish his opinion?

No, an expert can’t initiate examination or analysis and furnish his opinion unless the Investigating
Officer has sought his opinion in compliance with the formal procedure.
Investigating officer and expert opinion:

The investigation officer should seek opinion from experts to form his own opinion whether the
materials collected during the course of investigation actually establishes the link between the crime,
the victim and the criminals.
Procedure of forwarding exhibits to experts:

When forwarding the exhibits to an expert, certain procedure and formalities must be followed by
the I.O. to dispatch packed exhibits or physical evidence to experts.
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It ensures identity and continuity and above all question of integrity of such exhibits.
The I.O. shall follow the following procedure for forwarding the exhibits to the experts:
1) Exhibits are sent to experts through the concerned court.

2) A certificate from the competent authority concerned about the competency of the expert.
3) The exhibit should always be sent to the expert through police messenger.
4) The IO. should make specific questions that may establish the links between crime, victim and
criminals.
The questions should be formulated with some objectivity towards establishing such links between
one another.
Sec.45A:-Opinion of Examiner of Electronic Evidence

In a proceeding when the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion of
the Examiner or Electronic Evidence referred to in Sec.79A of I.T. Act, 2000 is a relevant fact.
The examiner of electronic record is also treated as an expert.

Illustrations
a) Expert opinion in respect of a particular hardware or software in issue are relevant.
Sec.46: Facts bearing upon the opinion of experts

Facts not otherwise relevant, are relevant if they support or are inconsistent with the opinion of
experts, when such opinions are relevant.
Illustrations
The question is, whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects, but where there were no such
sea-walls, began to be obstructed at about the same time, is relevant.
Sec.47: Relevancy of Opinion as to handwriting

Ø This provision recognizes the opinion of a non-handwriting expert.
Ø When the court has to form an opinion as to handwriting of a person, the opinion of a person who
is acquainted with the handwriting of the former person is admissible in evidence.
Ø A person can be acquainted with the handwriting of any person in the following cases:
a) When he has seen the person, whose handwriting is in question, write.

b) When in answer to a document written by himself, or under his authority and addressed to the
said person, he has received any document purporting to be written by the said person.
c) When in ordinary course of business documents purporting to be written by the said person
have been habitually submitted to him.
Illustrations
a) The question is whether a letter is in the handwriting of A, a merchant in London.
B is a merchant at Calcutta. B has written letters to A and in response he received some letters from
A purporting to be written by A.
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C is the clerk of B. His duty is to examine and keep all correspondence in files on behalf of B.
Accordingly all the letters purporting to be written and sent by A to B has been examined by
C and kept by C in the files.
Opinion of B or C on the question whether the letter is in the handwriting of A, are relevant. Here it is
immaterial that B or C has never seen A write.
Difference between Sec.45 & Sec.47:

Sec.45
a) Only opinion of handwriting expert is relevant.
b) The experts are obviously not acquainted with the handwriting of the maker.
c) Expert is not present at the time of writing the document.
Sec.47
a) Opinion of non-handwriting expert is relevant
b) The person who gives his opinion must be acquainted with the handwriting of the person in
question.
c) The witness may be present and may see the person write.
Sec.47A: Relevancy of Opinion as to electronic signature

When the court has to form an opinion as to the electronic signature of any person, the opinion of
the Certifying authority which has issued the Electronic Signature Certificate, is relevant.
Illustration
The question arises whether an electronic signature is of A. The certifying authority which has issued
the electronic signature opines that A is not the person who has applied or approached for getting an
electronic signature. Thus, A is not the owner of the electronic signature in question. It belongs to
someone else.
The opinion of Certifying authority may be accepted by the court.
Sec.48: Relevancy of opinion as to existence of right or custom

When the court has to form an opinion as to the existence of any general custom or right, the
opinion of the persons who are in a position to know about its existence, are relevant.
Explanation:
The expression ‘general custom or right’ includes customs or rights common to any considerable
class of persons.
Private rights are excluded from the operation of this Section. Here the word “general” is equivalent
to the term ‘public’.
Illustration
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.
Sec.49: Relevancy of opinion as to usages, tenets etc.

1)When the court has to form an opinion as to ----
a) Usages of any body of men or family
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[usages includes any practice, tradition or custom of trade, business, agriculture, family etc.]
b) Tenets of any body of men or family
[opinion, principle or doctrine held or maintained by a body of men, it applies to religion, politics
science etc.]
c) Constitution and government of religious or charitable foundations
d) Meaning of words or terms used in a particular district or by a particular class of people
2)Opinion of persons who have special means of knowledge as to the above matters, are relevant.
Illustration
A, the sister of B, claims to inherit the self-acquired property of B under a special custom. General
evidence as to existence of such custom by the members of the family who would naturally be
cognizant of its existence and exercise without controversy is admissible.
Sec.50: Relevancy of opinion as to relationship

When the court has to form an opinion as to relationship between two persons,
The opinion of a person on such relationship is relevant on the following conditions:
a) He may be a member of the family of such persons whose relationship is in dispute or he may
be an outsider.
b) He must have special means of knowledge as to such relationship.
c) His opinion must be based on the conduct of the persons whose relationship which is in
dispute.
Proviso:- The proviso to Sec.50 provides that the opinion on relationship can’t be sufficient to prove a
marriage
1) in the proceedings under Indian Divorce Act or
2) in the prosecutions for -----
a) bigamy (Sec.494 IPC),
b) bigamy with concealment of former marriage from the person with whom subsequent
marriage is contracted (Sec.495 IPC),
c) adultery (Sec.497 IPC) and
d) enticing or taking away or detaining a married woman with criminal intent (Sec.498 IPC).
In these cases, the fact of marriage must be strictly proved in regular way.
Illustrations
i) The question is whether A and B were married. The fact that they were usually received and
treated by their friends as husband and wife, is relevant.
Sec.51: Relevancy of grounds of opinion

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based,
are also relevant.
Illustrations
i) An Excise Inspector is an expert on the question whether a certain liquid is illicit liquor or not.
Before he gives his opinion as an expert he has to examine it and has also to furnish the data on
which his opinion is based. His bald statement that the contents of the bottles are illicit liquor is not
sufficient to prove that fact. [Gobardhan v. State AIR 1959 All 53]
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5. What is meant by dying declaration? Explain its

evidentiary value
Introduction
A Dying Declaration means the statement of a person who has died explaining the circumstances of
his death.
It can be said to be a statement made by a mortally injured person, indicating who has injured them
and/or the circumstances surrounding their injury.
The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible
since it is believed that the dying person does not have any reason to lie.
Reference:
Clause (1) of section 32 of the Evidence Act provides for the ‘dying declaration’:
Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relevant.
Statements, written or verbal, of relevant facts made by a person who is dead, ….. are themselves
relevant facts in the following cases:
(1) When it relates to cause of death-

When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death.
Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death.
Illustration:
(a) The question is, whether A was killed by B under such circumstances that a suit would lie against
B by A’s widow.
Statements made by A as to the cause of his death, referring to the murder are relevant facts.
Principle
“Truth sits on the lips of a person who is about to die”
The grounds of admission of a dying declaration are:
Firstly, necessity, for the victim being generally the only principal eye-witness to the crime, the
exclusion of his statement might defeat the ends of justice; and
Secondly, as per the Pakala Narayana Swami v. The Emperor case, it creates a sanction equal to the
obligation of an oath.
It implies that a man who is on death bed would not tell a lie to falsely implicate an innocent person.
The general principle on which this species of evidence is admitted is that they are declarations made
in extremity, when the party is at the point of death and when every hope of this world has gone,
when every motive to falsehood is silence and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn and so lawful is considered by law as creating
an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
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Exclusion of his statement would tend to defeat the ends of justice. If the truthfulness of a dying
declaration is beyond doubt, the conviction can be held solely upon it.
Essential conditions for the admissibility of dying declaration

1. To whom the statement is to be made:
A statement of dying declaration could be made to any person – a doctor, a Magistrate, a friend or
near relative, a police officer. However, a statement recorded by a Magistrate or doctor is considered
more reliable, and that recorded by a police officer or close relative not (requires more scrutiny).
2. The person making the statement must have died:

The death need not occur immediately after the making of the statement.
However, the death must occur.
The fact that the person is dead must be proved by the person proposing to give evidence of his
statement.
As long as the maker of the statement is alive it would remain only in the realm of a statement
recorded during investigation.
It was held, that if a person making a dying declaration survives his statement cannot be used as
evidence under section 32 of the Act.
3. Statement must relate to the cause of his own death

If the statement made by the deceased does not relate to his death, but to the death of another, it is
not relevant.
For example, where the wife made a statement that her husband is killed by Z and then she
committed suicide. It is not a dying declaration.
4. The cause of death must be in question:

The declaration under section 32(1) must relate to the death of the declarant.
In Dannu Singh v. Emperor, A and five other persons were charged with having committed a dacoity
in a village. A, who was seriously wounded while being arrested, made before his death a dying
declaration as to how the dacoity was committed and who had taken part in it. It was held that
declaration was not admissible in evidence against other persons, as it does not relate to his death,
but relates to participation of his associates in the dacoity.
5. Injuries received by him in the incident is in question.

Similarly, the declarant’s death must be proved beyond doubt to have been caused by the injuries
received by him in the incident in question.
In case it is proved that he died of some other cause, it would not be admissible under clause (1) of
section 32.
For example, the prisoner was convicted on the basis of dying declaration of a person who received
two shot wounds during the occurrence.
Although his dying declaration was recorded, he died 20 days after he had left the hospital.
There was no evidence to show that he died of the injuries received by him at the said incident.
On the question of admissibility of the dying declaration, the Supreme Court held that when the
dead person in the present case was not proved to have died as a result of injuries received in the
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incident, his statement cannot be said to be a statement as to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death.
So, they held his statement to be inadmissible under section 32.
6. Statement must relate to the circumstances of the transaction which resulted in his death:
The circumstances of transaction resulting in death must bear proximate relation to the cause of
death or actual occurrence.
Statements made by the deceased that he was proceeding to the spot where he was in fact killed, or
as to his reasons for so proceeding, or that he was going to meet a particular person, would to each
of them be circumstances of the transaction.
7. The statement must be complete and consistent:

If the deceased fails to complete the main sentence (as for instance, the genesis or the motive for
the crime), a dying declaration would be unreliable. However, if the deceased has narrated the full
story, but fails to answer the last question as to what more he wanted to say, the declaration can be
relied upon.
8. Minor Details
A dying declaration ought not to be rejected because it does not contain details or suffers from
minor inconsistencies. Merely because it is a brief statement, it is not to be discharged. Shortness, in
fact, guaranteed truth.
9. Declarant must be competent as a witness:

It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would
have been a competent witness.
Thus, in a prosecution for the murder of a child, aged four years, it was proposed to put in evidence,
as a dying declaration, what the child said shortly before her death.
The declaration was held to be inadmissible.
10. Other points:

Where for some unexplained reasons the person who noted down (scribe) the statement was not
produced, the declaration was not accepted as an evidence.
Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying
declaration.
Form of dying declaration

There is no format as such of dying declaration neither the declaration need to be of any longish
nature or neatly structured.
As a matter of fact, perfect wording and neatly structured dying declaration bring about an adverse
impression and create a suspicion in the mind of the Court since dying declarations need not be
drawn with mathematical precision.
The declarant should be able to recollect the situation resulting in the available state of affairs.
A dying declaration may be in the following forms:
1. Written form;
2. Verbal form;
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3. Gestures and Signs form.

In the case “Queen vs Abdulla”, it was held that if the injured person is unable to speak, he can make
dying declaration by signs and gestures in response to a question.
If a person is not capable of speaking or writing, he can make a gesture in the form of yes or no by
nodding and even such type of dying declaration is valid.
4. Language
It is preferred that it should be written in the vernacular which the patient understands and speaks.
5. Narrations
A dying declaration may be in the form of narrations.
In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and
everything is coming as such from the mind of the person making it.
To Strengthen the Value of a Dying Declaration

The circumstances which lend strength and assurance to a dying declaration are as follows:
1. That it was recorded by a competent Magistrate after taking all proper precautions.
2. That it was taken down in the exact words in which it was spoken.
3. That it was made shortly after the assault when there was no opportunity of its being coloured by
impressions received from others.
4. That deceased had ample opportunity of observation.
5. That the incident happened in a sufficiently lighted place.
6. That the deceased had made more than one statement and all of them were consistent as to the
circumstances of the occurrence and the identity of the attackers.
Circumstances when a dying declaration is meaningless

Following are the circumstances when a dying declaration is held meaningless:
(i)When the relatives of the declarant arrange with him as to what he has to say.
(ii)When the maker of a dying declaration is proved to have been unconscious or semi-conscious at
the spot and died a few minutes after the making of the declaration.
(iii)Where there is clear discrepancy between the facts mentioned in the dying declaration and those
in the statements of the witness.
(iv)When a dying declaration contradicts itself in its various parts.
(v)Where the identity of accused could not be established through the dying declaration.
Need for corroboration.

Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon for
conviction, even if there was no corroboration.
In Lallubhai Devchand Shah v. State of Gujarat[27], a married woman was burnt to death by her in-
laws, her dying declaration was accepted and conviction was based solely on the basis of the
declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form
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the basis of conviction of the accused. The Court, in the present case, thus convicted the appellants
on the basis of the dying declaration.
Two Dying Declarations

When there are two dying declarations and there was inconsistency between them and there was no
other evidence evidence to prove the prosecution case, it was not safe to act solely on the said
declarations to convict the accused persons.
Where two dying declarations were giving contrary versions, one dying declaration duly recorded by
the doctor in presence of two other doctors stating that she was burnt by her mother-in-law and
husband for failure to bring dowry. Second declaration not proved by competent witness, cannot be
relied upon, and accused convicted on the dying declaration recorded by doctor.
Where the bride recorded two declarations, one to a police officer and other to a Magistrate, they
being similar in material factors, evidence accepted though minor discrepancies were there.
Where there are more than one declaration, the one first in point of time should be preferred;
Mohanlal Gangaram Gehani v. State of Maharashtra.
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The word `evidence' is used in common parlance in three different senses:

The Indian Evidence Act

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(1) The statement of witnesses.

Different Forms of Evidence

(b) Documentary Evidence– Section 3

Documentary evidence is more important than oral evidence.

(c) Primary Evidence-Section 62

(d) Secondary Evidence– Section 63

(e) Real Evidence

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(f) Personal Evidence

(g) Hearsay Evidence

(h) Judicial Evidence

(i) Non-Judicial Evidence

(j) Direct Evidence

(k) Prima Facie Evidence and Conclusive Evidence

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(l) Circumstantial Evidence or Indirect Evidence

A cartridge was found near the bed of the deceased.

Direct Evidence V. Circumstantial Evidence

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Some jurists hold that direct evidence is superior evidence.

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2. Define admission and point out the differences

This fact is detrimental to the interests of A.

Therefore, an admission becomes an important piece of evidence against a person.

2. Reference: Ss. 17 to 31 deal with admissions and confessions.

4. Evidentiary Value of Admissions:

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i. Parties to the proceedings (s. 18)

Exception 2 - Statements as to bodily feeling or mind

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He offers to prove that he refused to sell them below their value.

Exception 3 – If it is relevant otherwise than as an admission.

G. Section 22: When oral admissions as to contents of documents are relevant

Oral admissions as to the contents of a document are not relevant.

H. Section 23. Admissions in civil cases when relevant.

In civil cases no admission is relevant:

a) if it is made either upon an express condition that evidence of it is not to be given, or

I. Section 31. Admissions not conclusive proof, but may estop.

6. Differences Between Admission and Confession

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4) An admission is made in civil cases whereas a confession is made in criminal cases.

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3. Explain the relevancy of facts forming the same

Section 6 - Relevancy of facts forming part of same transaction.

Suppose A is tried for the murder of B by beating him with a club.

Here the transaction is the crime of murder.

Principle - res gestae.

It is an exception to the general rule that hearsay evidence is not admissible.

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A good working test of deciding what transaction is;

Facts that fall under Res Gestae

Tests on Hearsay Statement

Was the identification relevant?

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Different Places and Times

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Proximity of Time and Place

Proximity of Time and Continuity of action.

Different Places and Time

Facts not so connected as to form part of same transaction.