Law of Evidence

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
(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

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(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. 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, behavior 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 is termed as Non- Judicial evidences.
(j) Direct Evidence
Evidence is either direct or indirect. Direct Evidence is that evidence which is very

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important for the decision of the matter in issue. Direct evidences are those evidences
which establish 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.
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 attempt 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. 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 go 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 favor 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.”
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 authorized 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

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the owner of the land is 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 ship owner 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 ship-owners.
Exception 2 - Statements as to bodily feeling or mind
For example, A is accused of receiving stolen goods knowing them to be stolen. 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.
1) Differences Between Admission and Confession: 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

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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.
3)An admission may be used in favor 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 favor 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
estoppels 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 & 31 of this Act describe about admission whereas section 24-30 describe
about confession.

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
is relevant under this section.
References

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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
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. 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

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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.
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

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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-fulfillment 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.
4. Define and discuss fact, facts in issue and relevant fact.

PART I RELEVANCY OF FACTS CHAPTER I. –– PRELIMINARY

Section 3 - Interpretation-clause

Fact:
Fact means and includes:
(1) anything, state of things, or relation of things, capable of being perceived by the
senses;

(2) Any mental condition of which any person is conscious.

Illustrations Clause (I)
(a) That there are certain objects arranged in a certain order in a certain place, is a
fact.

(b) That a man heard or saw something is a fact.

(c) That a man said certain words is a fact.
Clause (2)
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified time
conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation is a fact.

Comments
Facts are either physical or psychological. A misrepresentation as to the intention of a
person is a misrepresentation of a 'fact'. See ill. (d). the state of a man's mind is as much a
fact as the state of his digestion. Facts and events which have neither occurred in the past,
nor are occurring in present but are likely to occur in future do not fall within the
definition of a fact. A fact need not be a tangible or visible object; it may be statements,
feelings, opinions or a state of mind. EX: A man heard or saw something; a man said certain
words, a man having a certain reputation, having a certain intention, etc. are all facts.
Facts may be divided into the following kinds:
(1) External and Internal Facts; and
(2) Positive and Negative Facts.

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External Facts
It is considered to have its seat in some animate or inanimate being. EX: horse, man etc. It
is a perception of the five senses
Internal Fact
It is considered to have its seat in an animate being. EX: a certain opinion, an intention.
It is a subject of consciousness, good faith etc.
Positive Fact
The existence of certain things is a positive fact
Negative Fact
The non-existence of certain things is a negative fact.
'Matter of fact'
Is anything which is the subject of testimony which can be proved by way of evidence?

'Matter of law'
Is the general law of the land, of which the Courts will take judicial cognizance? It does not
have to be proved by evidence.
Facts in issue Definition
Section 3 defines facts in issue. According to this section, a fact in issue is a fact that
directly or indirectly in connection with other facts, determines the existence, non-existence,
nature, or extent of any right or liability that is asserted or denied in any suit or
proceeding.
In other words, facts in contention in a case are facts in issue.
Explanation.
Matters which are affirmed by one party to a suit and denied by the other may be
denominated facts in issue;
Illustrations
A is accused of the murder of B. At his trial the following facts may be in issue: –– That A
caused B’s death; That A intended to cause B’s death; That A had received grave
and sudden provocation from B; That A, at the time of doing the act which caused B’s
death, was insane. Prosecution will have to establish the facts that prove that A Murdered B
before A can be convicted. At the same time, the prosecution also has to disprove that any of
the exceptions do not apply to A. A fact in issue is also known by its latin term - factum
probandum, which means fact to be proved.
Essentials
To be a fact in issue, a fact must satisfy two requirements - the fact must be in dispute
between the parties and The fact must touch the question of right or liability. The extent of
rights and liabilities of parties depend on the ingredients of an offence.

In criminal matters
Facts in issue are those facts which are alleged by the prosecution and denied by the
accused. The allegations in the charge sheet constitute the facts in issue.

In civil matters
Facts in issue are those facts which are alleged by one party and denied by another in the
pleading. 'Facts in issue' are determined by the process of framing issues.
Relevant Facts
One fact is said to be relevant to another when the one is connected with the other in
any of the ways referred to in sections 6-55 of the Evidence Act 1872, relating to the
relevancy of facts.
Comment.
'Relevant', strictly speaking, means admissible in evidence. Erroneous admission of any evidence
does not make it relevant. The word 'relevant' is used in the Act with two distinct
meanings:

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(a) as admissible,
(b) As connected.
Evidence adduced should be directed and confined to the matters which are in
dispute. Evidence may be rejected as irrelevant if the connection between the principal and
evidentiary facts is too remote and conjectural. If facts-in-issue are the facts to be proved or
disproved in a trial, relevant facts are the facts that help prove or disprove facts-in-issue. A
fact is relevant if belief in that fact helps the conclusion of the existence or non-existence of
another. A relevant fact is also known by its Latin term – fact um probans, which
means a fact that proves.
Examples
Drawing of inference of "particeps criminis"
In a case of bride burning, the mother-in-law and the husband were accused of
murdering the deceased-wife in the matrimonial home and the possibility of presence of the
accused-husband at the time of occurrence was not ruled out as no one else was present in
the house. On the facts and circumstances, it was impossible for the mother-in-law of the
deceased alone to commit the crime. The conduct of the husband was also unnatural and
inculpatory. It was inferred that the accused- husband was "particeps criminis and was
convicted.
Factors relevant-
For example, Fact A is that a person was given certain medication and he died. Fact B is
that the person was suffering from TB. Here, fact B is relevant to fact A because it throws
light on the possible causes of his death. Fact B makes is probable that he might have died
because of TB instead of the given medication.
Proof of drunkenness-
Blood or urine test is not a must for proving the charge of drunkenness. Drunkenness is a
question of fact and smelling of alcohol, unsteady gait, dilation of pupils, incoherent
speech would all be relevant considerations.
Section 11
In certain situations, facts otherwise irrelevant become relevant.
For example,
An alibi is a very common example of an irrelevant fact becoming relevant.

5. Explain the relevancy of introductory or explanatory facts.

Section 9: Facts necessary to explain or introduce relevant facts:

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity
of anything or person whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by whom any such fact
was transacted, are relevant in so far as they are necessary for that purpose.
The following facts are relevant:
a. Facts which are very necessary to explain or introduce a fact in issue or relevant
fact.

b. Facts which support or rebut an inference suggested by a fact in issue or relevant

fact.
c. Facts which fix the time and place at which the fact in issue or relevant fact
happened
d. Facts which show the relation of parties by whom any such fact in issue or relevant
fact was transacted
e. Facts which establish identity of anything or a person whose identity is relevant

11
Illustrations
(a) The question is, whether a given document is the will of A.
The state of A’s property and of his family at the date of the alleged will, may be
relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged
to be libellous is true. The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue. The particulars of a
dispute between A and B about a matter unconnected with the alleged libel are irrelevant,
though the fact that there was a dispute may be relevant if it affected the relations
between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his house, is
relevant, under section 8, as conduct subsequent to and affected by facts in issue. The
fact that, at the time when he left home, he had sudden and urgent business at the place to
which he went is relevant, as tending to explain the fact that he left home suddenly. The
details of the business on which he left are not relevant, except in so far as they are
necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A, C, on
leaving A’s service, says to A –– ―I am leaving you because B has made me a better offer.
This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact
in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it
to A’s wife. B says as he delivers it––―A says your are to hide this. B’s statement is relevant
as explanatory of a fact which is part of the transaction.
(f)A is tried for a riot and is proved to have marched at the head of a mob. The cries of
the mob are relevant as explanatory of the nature of the transaction.
1. Explanatory facts: Illustrations (d), (e) & (f).
There are many pieces of evidence which have no meaning at all if considered
separately, but become relevant when consider in connection with some other facts. Such
facts explain the fact in issue.
2. Introductory facts: Illustrations (a) & (b)
Facts which are introductory of a relevant fact are of great importance in understanding the
real nature of the transaction. In a suit of libel, evidence of person’s relation at the time of
alleged libel may be necessary to introduce the circumstances that led to libel.
3. Facts supporting inference:
There are facts which are neither relevant as facts in issue nor as relevant facts but they
support the inference suggested by the facts in issue or relevant fact.
Example:
A, after murder was seen running away from the village. Running away supports the inference
that the murder might have been caused by him. It is relevant.
4. Facts rebutting inference:
When some facts contradict the fact in issue or relevant fact they become relevant. For
example, A is alleged of murdering B. A is seen to be driving away from the scene of the
crime. However, at the time of commission of the crime he was in a business meeting
with some clients (alibi). Thus, the alibi’s statement will be a relevant fact.
5. Facts which fix Time and Place:
Facts which fix the time and place of the occurrence are relevant. This becomes very
important when the accused pleads alibi. For example, A is alleged of murdering B. A is seen
to be driving away from the scene of the crime. However, at the time of commission of the
crime he was in a business meeting with some clients (alibi). Thus, the time and place

12
becomes a relevant fact.
6. Relation Facts:
Facts showing the relationship of the parties become relevant.
7. Identity of Things:
When an identity of a thing is in question, every fact which is helpful in identifying the same
shall be relevant. For example, in a case where the was a murder and robbery, the house lady
was called to identify the articles of the deceased and other belongings; Identification of the
deceased was done by way of the clothes and shoes he was wearing (Har Dayal v. UP)
8. Identity of Persons:
A. Test Identification Parade: Principle
a.Identification of a person in certain cases becomes very necessary to prove fact in issue or
relevant fact. Thus, the test identification parade (TIP) is important.
b.The Supreme Court in Ramanathan v. TN, stated that one of the methods of establishing
the identity of the accused is TIP. Further, the test enables the investigating officer to
ascertain whether the witness has really seen the accused at the time of commission of the
crime and also the capacity of the witness in identifying the accused. Thus, TIP enables a
witness to identify the culprit before the Magistrate.
c.Prior to 2005, there was no provision for TIP in law. It was by way of amendment that the
same was included under Section 54A of the CrPC.
d.Jarapala Deepala v. State of AP, the TIP does not constitute substantive evidence but only
corroborate any statements in court.
e.If there is considerable delay in conducting the TIP and furthermore, the test was not
conducted properly, the accused shall be given the benefit of doubt. (Govinda v. State of
Maharashtra)
B. Identity of Persons: Test Identification Parade under Section 9: Procedure
a.The investigating authority should send a requisition to the concerned Magistrate for
conducting TIP of the accused person who is in jail or has been granted bail.
b.TIP is conducted by Executive Magistrates or Sub Divisional Magistrates.
c.The magistrate then informs the jail authorities to make necessary arrangements regarding
the date, time and day.
d.The Magistrate selects 2 persons who have no relation with the accused or the witness
called “Punch Witnesses”
e.Magistrate then selects dummy persons having similar appearances to that of the accused.
For every accused there should be 5 dummy persons.
f. The Magistrate then ensures that the accused and the witnesses sit in separate rooms and
also makes sure that the witnesses cannot meet the accused before conducting the test.
g.The magistrate must also see to that the no third person or police officer is in the
room.
h.The magistrate also takes the precaution to ask the accused questions to give him an
opportunity.

i. If there is a distinguishing mark on any one of the persons, a bandage or some other means
should be used to cover it and the same should be done for all.
j. As soon as the witness identifies the accused, he must be asked as to why he identified the
said accused.
k.The entire process should be recorded by the Magistrate in the IP memorandum along with
time spent etc.

13
l. Objections, if any, by the accused are to be recorded.

m. After completion of the process, the Magistrate has to obtain the signature of the Punch
Witnesses on the memorandum along with his own signature, the day, date and time.
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.
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 favor. 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 show 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.

14
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.
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.

15
Conduct
The conduct that this section speaks is different from character. Conduct means the
external behavior 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. 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 an 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.
7. Explain the relevancy of facts showing the existence of state of
mind or state of body

Reference: Section 14 - Facts showing existence of state of mind, or of body of bodily

feeling. ––

a)Facts showing the existence of any state of mind such as intention,

Knowledge, good faith, negligence, rashness,
Ill-will or good-will
Towards any particular person, or
b)Facts showing the existence of any state of body or bodily feeling are relevant, when the
existence of any such state of mind or body or bodily feeling, is in issue or relevant.
Explanation 1. –– A fact relevant as showing the existence of a relevant state of mind must
show that the state of mind exists, not generally, but in reference to the particular matter
in question.
Explanation 2. –– But where, upon the trial of a person accused of an offence, the

16
 previous commission by the accused of an offence is relevant within the meaning of this
section, the previous conviction of such person shall also be a relevant fact.
Illustrations Intention:
(i) In order to show A’s intent, the fact of A’s having previously shot at В may be proved.
(j) Threatening letters previously sent by A to В may be proved, as showing the intention of
the letters.
Knowledge:
(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the
time when he delivered it, he knew to be counterfeit. The fact that, at the time of its
delivery, A was possessed of a number of other pieces of counterfeit coin is relevant. The
fact that A had been previously convicted of delivering to another person as genuine a
counterfeit coin knowing it to be counterfeit is relevant.
Good faith:
(f) A issued by B for fraudulently representing to B that C was solvent, whereby B, being
induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A
Represented C to be solvent, C was supposed to be solvent by his neighbors and by persons
dealing with him, is relevant, as showing that A made the representation in good faith.
Negligence:
(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use,
whereby A was injured. The fact that B’s attention was drawn on other occasions to the
defect of that particular carriage is relevant. The fact that B was habitually negligent
about the carriages which he let to hire is irrelevant.
Ill-Will or Good-Will
(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of
B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards
B, is relevant, as proving A’s intention to harm B’s reputation by the particular publication in
question.
State of Mind or Body or Bodily Feeling
(k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions
of their feeling towards each other shortly before or after the alleged cruelty are relevant
facts.

(l)The question is whether A’s death was caused by poison. Statements made by A during
his illness as to his symptoms are relevant facts.
Explanation 1 – Specific State of Mind, not general.
(o) A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his intention to shoot
B. The fact that A was in the habit of shooting at people with intent to murder them is
irrelevant.
(p) A is tried for a crime.
The fact that he said something indicating an intention to commit that particular crime is
relevant. The fact that he said something indicating a general disposition to commit crimes of
that class is irrelevant.
Explanation 2 – Previous Convictions Illustrations from section 43
(e) A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue.
(f)A is tried for the murder of B. The fact that B prosecuted A for libel and that A was
convicted and sentenced is relevant under section 8 as showing the motive for the
fact in issue.
Case Laws Explanation 1
Anything having a distinct and immediate reference to the particular act in question is
relevant. (Emperor v. Debendra Prasad, 1909) However, evidence of the general reputation of
a person cannot be given under this Section. It was held on appeal in a case where a man
was convicted on eight counts of indecently assaulting his grandsons that evidence of
pornographic magazines found in his possession had no probative value except with regard to
his propensity to commit the crime and as such, should not have been admitted. (R v.
Burrage, 1997)

17
Explanation 2
In R v. Z, 2000, a man accused of rape said that he had obtained consent. The testimony of
four women who had earlier accused him of having raped them was used to rebut his defense
even though he had been acquitted of having raped three of them. It was held that
previous acquittals may be relevant in a subsequent case where the defendant is charged
with rape. The House of Lords held that the principle of double jeopardy did not make
relevant evidence inadmissible merely because it pointed towards the fact that the accused
had previously been acquitted of a crime he was guilty of. The accused was in fact not
placed in double jeopardy at all because the facts giving rise to the later prosecution
differed from those in the earlier ones.

8. Explain “may presume”, “shall presume” and “conclusive proof”.

Reference
Section 4.
May presume ––
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 proof of it.
Shall presume ––
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such
fact as proved, unless and until it is disproved.
Conclusive proof ––
When one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for
the purpose of disproving it.
May presume
Whenever it is provided by the Evidence Act that a Court may presume a fact, it may
either
(i)regard such fact as proved, unless and until it is disproved, or
(ii) May call for proof of it.

The words “may presume” give the court a discretionary power to presume the existence of a
fact. Which means that the court may regard the fact as proved unless and until it is
disproved.
For example, in the case of Dr T T Thomas vs Elisa AIR 1987, where a doctor failed to perform
an emergency operation due to lack of consent, the court presumed that the consent was
there since the patient was brought to the hospital. It was up to the doctor to prove
that the consent was not there. The court may also ask for further proof before making
the presumption. All the presumptions given in Section 114 are of this kind, which says that
the court may presume the existence of any fact which it thinks likely to have happened
regard being had to the common course of natural events, human conduct, and public and
private business, in their relation to the facts of the particular case. For example, the court
may presume that a man who is in possession of stolen goods soon after theft, is either
the thief of has received the goods knowing them to be stolen, unless he can account for his
possession. Thus, the Court may presume that a message forwarded from a telegraph office
corresponds with the message delivered for transmission at the office (S. 88), or the Court
may presume that a certified copy of foreign judicial records is genuine and accurate (S. 86);
but in either case, the Court can also call for further evidence. The word “may presume” deals
with rebuttable presumption.
Shall presume
In this, no option is left to the court, but it is bound to take the fact as proved
until evidence is given To disprove it, and the party interested in disproving it must
produce such evidence if he can. The phrase ‘shall presume’ is found in Sections 79,
80, 81, 83, 85, 89 and 105, 113B etc. Whenever there is a provision to the effect “that the

18
court shall presume a fact” the court cannot exercise its discretion. It is compelled to
take the fact as proved, i.e., it shall have to presume the fact. But in this case the
court will be at liberty to allow the opposite party to adduce evidence to disprove the fact
so presumed and if the opposite party is successful in disproving it, the court shall not
presume the fact. Presumption about abetment of suicide of a married woman (S. 113A)
and Presumption about dowry death of a woman (S. 113B) are of this kind. Thus, the
Court has to presume the genuineness of every document purporting to be the London
Gazette or the Official Gazette (S. 81). Similarly, the Court shall presume the accuracy of
maps and plans made by a Government authority (S. 83). Likewise, the Court shall presume
that a power-of-attorney purporting to be executed before a proper authority was so
executed (S. 85), and so on. This is also one kind of rebuttable presumption. The basic
difference between words “may presume” and “shall presume” is that, whenever the word
may presume is used in the statute, then, it has to be taken as a directory/discretionary
and not mandatory. But, whenever the word “shall presume” is used it has to be taken
as a mandatory

Conclusive proof
As per section 4 of the Indian Evidence Act, whenever word “conclusive proof” is used then it
can be interpreted that, when one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it. For example, birth during
marriage (S. 112) is a conclusive proof of legitimacy. First of all there must be proof of
one fact and then on the basis of proved fact the fact can be held as a conclusive proof.
Therefore, for application of section 112 of Indian Evidence Act it must be proved first that the
child was born during continuance of a valid marriage or within 280 days after its dissolution,
that too, the mother remains unmarried, then and then only legitimacy can be said
conclusive. First of all, access between parties must be proved to attract the presumption
under Section 112 of the Evidence Act. It can be disproved by showing non-access. The
phrase ‘Conclusive proof is found in Sections 41, 112 and 113 of the Act.

UNIT 2

1. State the provisions of Indian Evidence Act relating to facts

which need not be proved

Reference: Sections 56 to 58
1) Introduction
It is a general rule that, the party to the suit must prove his case by producing oral or
documentary evidence. The party, who wishes the Court to believe in the existence of a fact,
must prove it. However, exceptions to this general rule are provided under Chapter III of the
Indian Evidence Act. Chapter III containing Sections 56 to 58 of the Indian Evidence Act, lays
down the provisions relating to facts which need not be proved.
2) Fact Judicially Noticeable Need not be Proved (Section - 56)
No fact, of which, a Court will take judicial notice need be proved. "Judicial notice"
means recognition of the truth of facts without requiring proof by any evidence. Judicial
notice is the cognizance taken by the Court itself of certain matters which are so notorious or
clearly established that evidence of their existence is deemed unnecessary. For example,
it is a commonly known fact that certain parts of MP, Bihar, and AP are naxalite affected or
that J&K is a terror striken area. Lord Stephen observes in his introduction, “that certain
facts are so notorious in themselves or are stated in so authentic a manner in well-known and
accessible publications that they require no proof. The court, if it does not know them, can
inform itself upon them without formally taking evidence. These facts are said to be
judicially noticed." In order to understand the correct meaning of Section 56 and 57 they
should be taken together. Section 56 Lays down that when a fact, which is relevant in a case,
is of such a nature that the court must take judicial notice of it, no evidence in proof of it
should be given. Section 57 gives a list of facts of which the Courts must take judicial
notice.

19
3) Facts of which must take Judicial Notice (Section - 57)
The Court shall take judicial notice of the following facts;

Laws in Force
1.All laws in force in the territory of India;
The Court should take judicial notice of all Indian laws. "Indian law" is defined by the
General Clauses Act S.3 (29), and includes any law, ordinance, order, bye-law, or regulation
passed or made any time by any competent legislature, authority, or person in India. The
expression "All laws" includes statutory law as well as unwritten law whether of personal or of
a local nature. Multi storeyed Building Regulations were held to be judicially noticeable, they
being statutory instruments made in public interest. A Government Order on conversion
of agricultural land was held to be judicially noticeable. The Courts also take judicial
notice of general customs. Courts are bound to take Judicial Notice of statutory
regulations even if they are not pleaded.
Public Acts
2.All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all
local and personal Acts directed by Parliament of the United Kingdom to be judicially
noticed; A public or general Act is a universal rule applied to the whole community, which the
Courts must notice judicially and ex officio, although not formally set forth by a party claiming
an advantage under it.
Articles of war
3.Articles of War for the Indian Army, Navy of Air force;
Parliamentary Proceedings
4.The course of proceedings of parliament of the United Kingdom, of the Constituent
Assembly of India, of Parliament and of the Legislature established under any law for the time
being in force in Province or in the States; The Court is bound to take judicial notice of the
prorogation of a State Legislative Assembly, so also of the budget speech of the Finance
Minister. Refusal to take judicial notice of statutory notification has been held to be an
error which is of patent nature justifying review.
Sign Manual
5.The accession and the sign manual of the Sovereign for the time being of the United
Kingdom of Great Britain and Ireland;
All seals
6.All seals of which English Courts take judicial notice; the seals of all the Courts in India and
of all Courts out of India established by the authority of the Central Government or the
Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of
Notaries Public and all seals which any person is authorized to use by the Constitution or
an Act of Parliament of the United Kingdom or an Act or Regulation having the force of
law in India;
Accession to Office, etc
7.The accession to office, names, titles, functions and signatures of the persons filling for the
time being any public office in any state, if the fact of their appointment to such office is
notified in any Accession to office, etc. Judicial notice of the signatures of the Secretaries to
the Government on any instrument can be taken under this clause. A true copy of a
Gazette notification can be received in evidence if the other party does not object to its
admissibility as secondary evidence.
Flags
8.The existence, title and national flag of every State or Sovereign recognized by the
Government of India;
Divisions of Time
9.The divisions of time, the geographical divisions of the world, and public festivals, facts and
holidays notified in the Official Gazette; The phrase 'divisions of time' includes also Indian eras.

20
 Thus, Samvat, Shaka, Hindi, Bengali, Hizari and Jalus eras will be judicially noticed. The Court
is bound to take Judicial notice of the holidays notified in the Official Gazette of any Local
Government. Where an incident took place at 7 a.m. in the month of April, it was held that
the Court could take judicial notice of the fact that it was not dark at that time. A
Magistrate ordering demolition of a dilapidated house taking judicial notice of incessant rains
in the area was held to be justified.
Territories
10. The territories under the dominion of the Government of India;
Hostilities
11. The commencement, continuance and termination of hostilities between the
Government of India and any other State or body of persons;
Names
12. The names of the members and officers of the Court, and of their deputies and
subordinate officers and assistants and also of all officers acting in execution of its process,
and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law
to appear or act before it;
Rules
13. The rule of the road, on land or at sea. This means the rule that horses and vehicles
of all description should keep to the left side of the road. At sea, the rule is that ships and
steamboats, on meeting, should port their helms, so as to pass on the port or left side of
each other; steamboats should keep out of the way of sailing ships; and every vessel
overtaking another should keep out of its way.
Matters of Common Knowledge
In all these cases, and also on all matters of public history, literature, science or art, the Court
may report for its aid to appropriate books or documents of reference. Thus, ancient
facts of public nature and published works of history can be relied upon for finding the
meaning of a "math". If the Court is called upon by any person to take judicial notice
of any fact it may refuse to do so unless and until such person produces any such book or
document as it may consider necessary to enable it to do so.
4) Effect of Judicial Notice
Judicial notice is not conclusive proof of facts judicially noticed. Matters may be disproved
even after they are taken judicial notice of.
5) Facts Admitted need not be proved (Section - 58)
This Section lays down a principle that, what is admitted need not be proved. The Court
has to try the questions on which the parties are at issue, not those on which they have
agreed. These Admissions are said to be formal admissions or judicial admissions given during
trial, either at or before the hearing.
Section runs as follows
No fact need be proved in any proceeding, which the parties thereto or their agents
agree to admit at the hearing, or Which, before the hearing, they agree to admit by
any writing under their hands or Which by any rule of pleading in force at the time they are
deemed to have admitted by their pleadings; Provided that the Court may, in its discretion,
require the facts admitted to be proved otherwise than by such admission.
Section 114 - Court may presume existence of certain facts –
The Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case. For example, a
person may be presumed to be dead if his whereabouts are not known for seven
years. Such facts need not be proven.

7) Conclusion

21
It is a general rule that, the party to the suit must prove his case by producing oral or
documentary evidence. However, this general rule is subject to following three exceptions
1)Facts of which is the court takes judicial notice (Section 57).

2)Facts admitted (Section 58)

3)Facts which the law presumes in favor of a party and need not be proved (Section
114).

2. Explain the circumstance in which judgments 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 judgment 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 judgments, 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 judgments orders or decrees other than those mentioned in Section 40, 41 and
42 are irrelevant and cannot be proved unless the existence of such judgment, 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 judgment 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 Judgments
Judgments are classified into two types -
i)Judgments I n Rem; and
ii)Judgments in Personam.

i) Judgment in Rem:
Judgments affecting the legal status of some subject matters, persons or things are called
'Judgments in rem'. E.g. Divorce Court Judgment, grant of probate or administration etc.
Such judgments are conclusive evidence against all the persons whether parties t o it or not.
ii) Judgment in Personam:
Judgments in personam are all the ordinary judgments not affecting the status of any subject
matter, any person or anything. In such judgments, the rights of the parties to the suit or
proceedings are determined.

4) Relevancy of Judgment
A) Previous Judgments 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.

22
B) Relevancy of certain judgments in probate, etc., jurisdiction (Section.41) - Judgments 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 judgment in rem, which not only bind the parties and
the representatives to it, but also are binding as against the whole world. For a judgment
to be binding and conclusive proof under section 41 the following conditions have to be
satisfied -
1)The judgment must be a final judgment.
2)The court delivering the judgment must be competent.
3)The judgment must have been delivered by the court in the exercise of Probate, size of
Matrimonial, Admiralty or Insolvency jurisdiction.
4)The judgment 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 judgments, 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) Judgments 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 and in

23
consequence.
The existence of the judgment is relevant, as showing motive for a crime.
E) Fraud or collusion in obtaining judgment, or incompetency of court, may be
proved (Section
44) -
The general rule is, a judgment 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 judgment 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.

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.
Extra-Judicial Confession

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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.
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.

25
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. 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

26
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
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.
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;

27
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.
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.

28
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.
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 opinions 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. The following matters are included in the ‘science’ and art and the
expert opinion of these matters are relevant:

29
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.
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.

30
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, are 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.
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, is 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

31
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
[Usages include 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 questio
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. 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

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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 are 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 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 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

34
state of affairs. A dying declaration may be in the following forms:
1. Written form;

2. Verbal form;
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 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

35
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.

6. Discuss the cases in which statements of relevant fact by person

who is dead or cannot be found are relevant under the Indian
Evidence Act
Introduction
Section 60 of the Evidence Act insists that oral evidence must, in all cases, be direct. In other
words, hearsay evidence is no evidence. But under section 32 hearsay evidence is
admissible so it is an exception to section 60. Sections 32 and 33 deals with the relevancy
of statements made by persons who cannot be called as witnesses.
References: Sections 32 and 33
Section 32:
Following are the classes of persons who cannot be called as witnesses under section 32 and
their statements are allowed to be proved in their absence. Persons who are dead
Persons who cannot be found Persons who have become incapable of giving evidence
Persons whose attendance cannot be procured without an amount of delay or
expense.

Section 32 clause 1. when it relates to the cause of death Dying declaration.

“Dying Declaration” means a statement written or verbal of relevant facts made by a person,
who is dead.
Relevant Facts
When a 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, it is known as a dying
declaration. 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.
Principle:
This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his
maker with a lie on his mouth. Our Indian law recognizes this fact that ‘a dying man seldom
lies.’ Or ‘truth sits upon the lips of a dying man.’
Essential Elements based on Case Laws:
A statement by a person who is conscious and knows that death is imminent concerning what
he or she believes to be the cause or circumstances of death that can be introduced into
evidence during a trial in certain cases.
Dying Declaration
1.In Pakala Narayana Swami vs Emperor (1939) on 19/1/1939, In this case, the statement of
Pakala Narayana Swamy's wife '' he is going to Berhampur to get back his amount'' was
considered as ''DYING DECLARATION''. In this case, the wife of the accused had borrowed a
sum of Rs. 3000 at the interest of 18 percent from the deceased. Related to this debt a
number of letters had signed by the wife of the accused which was discovered from the house
of deceased after his death. One letter which was not signed by anyone had been received by
the deceased on 20th March,1937. It was reasonably clear that it would had come from the
wife of accused, who invited him to come to Berhampur on that day or next day. The
Widow of the deceased had told the court that her husband had told her that the Accused’s
wife had invited him to come to Berhampur to receive his payment. Next day the deceased
left his house to go to Berhampur & on 23rd March, his body, which was cut in to seven

36
pieces, found in a trunk in the compartment of a train at Puri. The accused was
convicted of murder & sentenced to death because there were many evidences
against him.
2. Substantive Evidence
In Nallapati Sivaiah vs Sub-Divisional Officer, Guntur, It is also a settled principle of law
that dying declaration is a substantive evidence and an order of conviction can be safely
recorded on the basis of dying declaration provided the court is fully satisfied that the
dying declaration made by the deceased was voluntary and reliable and the maker was in a
fit condition (mentally and physically) to make such statement.
3. Multiple Dying Declarations
In case of multiple dying declarations each dying declaration will have to be
considered independently on its own merit as to its evidentiary value and one cannot be
rejected because of the contents of the other.
4. Narrations
Where the dying declaration was not recorded in question answer form, it was held that it
could not be discarded for that reason alone. A statement recorded in the narrative may
be more natural because it may give the version of the incident as perceived by the
victim.
5. Signs and Gestures
In the case of Queen-Empress v. Abdullah Accused had cut the throat of the deceased girl &
because of that, she was not able to speak so, she indicated the name of the accused by
the signs of her hand, it was held by the full bench of the Allahabad High Court “If the
injured person is unable to speak, he can make dying declaration by signs & gestures in
response to the question.”
6. Reliability
A dying declaration authenticated by thumb impression was considered to be doubtful in view
of the fact that the victim had sustained 100 percent burns.
7. Fitness
Where the dying declaration of a dowry victim was challenged on the ground that
doctor’s certificate of mental fitness for statement was not there, the Supreme Court
attached no importance to that omission, because the case was not wholly dependent upon
the declaration. The facts were on record showing that the injured woman had gone to the
hospital all alone changing vehicles on the way. This was sufficient evidence in itself to
show her fitness.

Clause (2): Statements in course of ordinary business;

When a statement is made by a person in the ordinary course of business, and
in particular when it consists of any entry or memorandum made by him in books kept in the
ordinary course of business, or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt of money, goods, securities or
property of any kind; or
of a document used in commerce written or signed by him; or of the date of a letter
or other document usually dated, written or signed by him.
Illustration
(b) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating
that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
Case Laws
In State of Rajasthan vs Mathura Lal Tara Chand on 20 January 1971 court held that in the
instant case it could not be disputed that the attendance of the Medical Officer, who is dead
could not have been procured. Compounder Moti Lai, P.W. has stated before the trial Court
that the injury report had been prepared by Doctor Naveen Chand and that it bears his
signature. This statement of the compounder proves the injury report on the record and the
injury report having been proved, is admissible and relevant

37
 Clause (3); Statements against the interest of maker:
When the statement is against the pecuniary or proprietary interest of the person
making it, or when, if true, it would expose him or would have exposed him to a criminal
prosecution or to a suit for damages.
Illustration
(e) The question is, whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account
and held it at A’s orders is a relevant fact.
Case Law
In Sm. Savitri Devi v. Ram Ran Bijoy (AIR 1950 PC 1) it has been held that the principle upon
which hearsay evidence is admitted under Section 32(3) of the Evidence Act is that a man is
not likely to make a statement against his own interest unless true, but this section does not
arise unless the party knows the statement to be against his interest.
Clause (4); Opinion as to … public right or custom:
When the statement gives the opinion of any such person, as to the existence of any public
right or
Custom or Matter of public or general interest, Of the existence of which, if it
existed, he would have been likely to be aware, and When such statement was made
before any controversy as to such right, custom or matter had arisen.
Illustration
(i)The question is, whether a given road is a public way. A statement by A, a deceased
head man of the village, that the road was public, is a relevant fact.
Clause (5): and Clause (6): Declarations about pedigree.
The declaration under (5) may relate to existence of relationship between persons, who are
alive or dead, and from persons having special knowledge and written or verbal declarations
but clause (6) applies to relationships of deceased, and statement should be as follows:
It is made in any will or deed relating to the affairs of the family to which any such deceased
person belonged, or In any family pedigree, or upon any tombstone, family portrait or
Other thing on which such statements are usually made, and When such statement was
made before the question in dispute was raised

Principle
"The declaration must have been made 'ante litem motam'. Declarations made before any
dispute has arisen, although with the express view of precluding controversy, are
admissible. Declarations made after a dispute has arisen would naturally create a bias in the
mind and all subsequent declarations become inadmissible.

Clause (7): Declarations relating to a transaction by which a right is created, asserted

etc.:
A statement in any relevant document, however recent and though not more than 30 years
old, is admissible. Statements of facts contained in a will of a deceased person tending to
show that the properties are his self-acquisitions are admissible. This clause is to be read with
section 13 (a) of I.E. Act.

Clause (8): Statements made by a number of persons expressing their feelings or expressions:
When a number of persons assemble together to give vent to one common statement
which expresses their feelings produced in their mind at the time of making of statement
may be given in evidence.
Section 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of
facts therein stated.
Evidence given by a witness in a judicial proceeding, or before any person authorized by law
to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding, the truth of the facts which it states, when
the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party, or if his presence cannot be obtained without an amount of
delay or expense which, under the circumstances of the case, the Court considers
unreasonable:

38
Provided ––
that the proceeding was between the same parties or their representatives in interest; that
the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second
proceeding. Explanation. –– A criminal trial or inquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.

UNIT 3

1. What do you mean by Secondary Evidence? State the

circumstances in which secondary evidence may be given

Introduction
Secondary evidence is evidence that has been reproduced from an original document or
substituted for an original item. For example, a photocopy of a document or photograph
would be considered secondary evidence. Another example would be an exact replica of an
engine part that was contained in a motor vehicle. If the engine part is not the very same
engine part that was inside the motor vehicle involved in the case, it is considered
secondary evidence.

When Secondary Evidence may be allowed

Secondary evidence, as a general rule is admissible only in the absence of primary evidence.
This approach is called the best evidence rule. Nevertheless, a court may allow a party to
introduce secondary evidence in a number of situations.
1. In order to enable a party to produce secondary evidence it is necessary for the party to
prove existence and execution of the original document.
When Secondary Evidence may not be allowed
1.If the original itself is found to be inadmissible through failure of the party, who files it to
prove it to be valid, the same party is not entitled to introduce secondary evidence of its
contents.
2.Secondary evidence of the contents of a document cannot be admitted without non-
production of the original being first accounted for in such a manner as to bring it within
one or other of the cases listed in section 65.
Section 63. Secondary evidence. –– Secondary evidence means and includes
Section 63 gives a list of secondary evidence in five clauses. It includes the following:
1.Certified copies of the original document;
2.Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy and copies compared with such copies;
3.Copies made or compared with the original;
4.Counterparts of documents as against the parties who did not execute it;
5.Oral accounts of the contents of a document given by some person who has himself
seen it.

Clauses 1 to 3 deals with copies of document

Secondary evidence cannot be made admissible mechanically. Sufficient reason for
non-production of the original document must be shown. For e.g. a tenant files a Xerox
copy of money receipt in his plea without giving proper reason and even though the Xerox is
authentic then it will be not admissible.
Conditions
The list given above is not exhaustive. But when primary evidence is not available the
secondary evidence is permission subject to two conditions:
(i)Either the copy is made from original, or

39
(ii) It is a copy made and compared with the original.

When the original has been lost or destroyed the secondary evidence of the contents of the
document is admissible.
Illustrations
The original dying deceleration was lost. A head constable who maintained a copy testified to
its accuracy. This was allowed as corroborative evidence. When a document was
admitted without objection, it was held that omission to object to its omission implied that
it was a true copy and it was not opened to the appellate court to consider whether the
copy was properly compared with the original or not.
Secondary evidence:
1. Certified copies:
When the original document cannot be produced the certified copy may be
admissible. Certified copies of the money lender’s licenses are admissible in evidence. But
uncertified ordinary copy is not admissible. The word ‘copy’ has not been defined in the
Act. It obviously means a document prepared from the original which is an accurate or true
copy of the original. Certified copy of registered sale-deed is not admissible except after
explanation as to the non- availability of the original in an appropriate manner.
2. Copies made from original by mechanical process:
Copies made from the original by mechanical process ensuring accuracy when compared with
the original are admissible. For example, printing, lithography or photographic prints are
secondary evidence. In absence of the original, Section 65(a) enabled court to receive
secondary evidence. Xerox copies of newspapers and tapes of edited versions of speech,
telecast on T.V. were found inadmissible as the evidence of the news reports, persons who
had heard the speeches and original tapes were not brought on record.
3. Copies made from and compared with the original:
Copies made from and compared with the original but without any mechanical process are
admissible as secondary evidence. Illustration (c). Certified copy of will would be admissible;
but copy of document not compared with original, is not admissible.
4. Counterparts of documents as against the parties:
When a document is executed in counterparts it is secondary evidence against the party who
did not sign it. For example, a counterfoil of the cheque is a secondary evidence as against
the drawer. Each counterfoil is the best evidence against the party signing it and his
privies.
5. Oral accounts of the contents of a document:
Sometimes it may so happen that neither the original nor the certified copy is available. Oral
evidence to prove the contents of the document is permissible. In such cases the oral
evidence of the contents of a document must be given by some person who himself has
seen it.
6. Tape recording:
Tape-recording statements are admissible as secondary evidence.
7. Call records:
The call records relating to cellular phones are admissible and reliable.

8. Loss of document:
Application moved for permission to lead secondary evidence based on ground of loss of
document. Presence of document proved from the facts pleaded. Secondary evidence is
not illegal.
9. Photostat copy:
Photo-stat copy of family settlement was allowed to be produced before the court as
secondary evidence.
10. Secondary evidence before commissioner:

40
Where evidence is led before the Commissioner, objection to secondary evidence can only be
recorded and not to be decided by the Commissioner. It is to be decided by the judge hearing
the suit.
11. Secondary evidence permissible:
In a money suit when original Bill of Lading which was under the custody of a Bank and was
lost and not traceable the plaintiff was entitled to lead secondary evidence. Application of
the beneficiary son for grant of probate was dismissed as not proper. In this case the testator
while was in hospital, the beneficiary son meticulously drafted a will by giving details of
assets and liabilities of the testator including cash etc. lying on their Bank, though the testator
had no document with him at time. Beneficiary son who was himself a doctor took active part
in execution of will and made an application for grant of probate.
Section 65: Cases in which secondary evidence relating to documents may be given Principle:
Section 65 mentions seven cases in which secondary evidence is admissible. This section
relates to exceptions to the rule laid down in Section 64. The principle underlying the
section is that when original document is not available or is destroyed or Is in the custody
of opposite party or
Under the control of third person who does not produce after notice secondary evidence is
admissible. Application for production of secondary evidence must give full details and must
be supported by a proper affidavit.
Cases in which secondary evidence is admissible:
1. When Secondary Evidence of the contents of the document is admissible Clause 1:
When the original document is in possession of:
(a) A person against whom it is to be proved, or
(b) Any person out of the reach of, or not subject to the process of the court, or
(c) Any person who is legally bound to produce it, does not produce it even due notice has
been given.

Illustrations
Where the original manuscript of a leaflet was not shown to be in possession of the
successful candidate in an election, when the Photostat copy was prepared, secondary
evidence of Photostat copy is not permissible. The document relating to a payment by
cheque was in possession of the defendant and he did not produce it saying that it was filed
with the Income Tax Office, the court granted permission for production of secondary
evidence.
Clause 3:
When the original has been destroyed or lost.
When the original document is destroyed or lost and evidence to that effect was given that it
was not arising from person’s neglect or default then secondary evidence of its contents
of the document may be given. Where the original document was lost, bare statement of
person required to file document on affidavit that document was lost would be
sufficient.
Illustration
Where the original postmortem report is lost in transit, the evidence of doctor who conducted
the postmortem and who deposes the same before the court is admissible as secondary
evidence.
Clause 4:
When the original is of such a nature as not to be easily movable.
In such type of cases the secondary evidence of its contents is admissible.
Illustrations
Legislative Proceedings, Bank Ledger, Public Record, inscription on wall, etc. These may be
treated as secondary evidence.
2. When Written Admission is admissible Clause 2:

41
When the existence or contents of the original document have been proved to be admitted
in writing by the person or his representative-in-interest, the production of secondary
evidence is admissible.

3. When a certified copy of the document is admissible. Clause 5:

When the original is a public document within the meaning of section 74; In case of
public documents, except for certified copies by the Registering Office, no other secondary
evidence can be given.
Clause 6:
When the original is a document of which a certified copy is permitted by this Act, or by any
other law in force in India to be given in evidence;
Illustrations
Certified copies of registered mortgage deeds cannot be held to be public
document. Certified copies of a sale deed can be filed to prove ownership and to session
over the disputed land or property.
4. When evidence may be given as to the general result of documents examined by a
person skilled in the examination of such documents
Clause 7: When the original consists of numerous accounts or voluminous
documents:
When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court and the fact to be proved is the general result of the
whole collection.

Note:
Newspapers:
Newspaper is admissible without proof, but paper itself is not proof of its contents. The
Supreme Court said that without further proof it is at best second hand secondary evidence. A
fact has first to be alleged and proved and then newspaper reports can be taken in
support of it but not independently.
65A. Special provisions as to evidence relating to electronic record:
The contents of electronic records may be proved in accordance with the provisions of Section
65B.
65B. Admissibility of electronic records:
Computer generated electronic records in evidence is admissible at a trial if proved in the
manner specified by Section 65B. When unlawful acts of illegal mining operation
encroaching into forest area take place the satellite sketches based on support of
allegations are admissible. But the same has to be substantiated by respondents in a trial
before the competent court and the petitioner is also entitled to rebut the same so that
the rule of law would prevail.

2. Define presumptions and explain presumptions as to ancient

documents.

Introduction
The Indian Evidence Act does not make an attempt to define what a presumption is.
Stephen defines it as a rule of law that courts and Judges shall draw a particular inference
from a particular fact, or from particular evidence, unless and until the truth of such
interference is disproved. This definition speaks about mandatory presumption but not
of permissive presumption. In a presumption, an inference is drawn by the court from
certain facts by supersession of any mode of proof.
Reference:
When a document is produced in evidence, certain presumptions may arise in regard to them.
These presumptions are discussed in section 79 to 90. Some of the presumption as can
be seen in Section 79 to 85 and section 89 are obligatory in the sense that the court is

42
bound to draw them, and other presumptions in Section 86 to 88 and Section 90, are merely
permissive, in the sense that the court may or may not draw them.
Principle
As a general rule if a document is produced before a court, its execution must be proved
by a witness and if the document is required by law to be attested, its attestation must also
be proved by some witness. For Example, A executes a mortgage deed for sum of
Rs.1000/- in favor of B.
The deed is signed by A, in the presence of the witness C and D who affix their signature on
the deed as attesting witnesses in the presence of A. After wards in a dispute before the
court, A denies having executed the mortgage deed. B seeking to prove the execution of
mortgage deed is required by section 68 to call at least one attesting witness for the
purpose of proving the execution of the mortgage deed. Circumstances may arise
when the documents are produced in the court long after they have been executed and the
time elapsed between the execution and the production of the document in the court may be
so long that all the persons in whose presence the document was executed might have died.
If the method of proof according to the above general rule is strictly followed documents will
remain unproved, section 90 of the Evidence Act is a provision for this kind of
emergency.
Presumption as to documents thirty years old:
Section 90 provides that when any document:
(1) Purporting and proved to be thirty years old,
(2) Is produced in the court,
(3) From custody which is the opinion of the court is proper. Then the court may
presume:
(i)that the signature and every other part of the document which purports to be in the hand
writing of any particular person is in that person’s hand writing;
(ii) that it was dually executed and attested by the person by whom it purports to be
executed and attested.
The power under section 90 is only discretionary and not compulsory. It depends upon
the court.

When a presumption may be raised:

The following conditions have to be satisfied so as to enable the court to raise a presumption
in favor of the documents under this section:
(1) Ancient Documents:
This section applies only to the documents purporting or proved to be thirty years
old. By the word ‘purport’ is meant “stating itself to be”. Therefore, by the term “a document
purporting to be thirty years old” means a document stating itself to be thirty years
old. No presumption of genuineness can be raised under this section, if the document is
undated. The court may, but is not bound to presume that a thirty-year old document is
genuine. For example, A executes a will in favor of B in the year 1949. The will is written
by A’s lawyer C, and signed by A in the presence of D and E as attesting witnesses. Later, in
the year 1980, disputes having arisen between B and F over the ownership of the property. B
produces the will executed by A. B is exempted of proving the execution of the will as
the document is 30 years old when it is tendered in evidence and the court may presume
that they will in question was duly executed and attested by A, D and E respectively by
whom it purports to have been executed and attested. The period of 30 years must be
reckoned from the date, the document purports to bear. If no date is given in a
document, it can be proved by extraneous evidence that it was executed thirty years ago.
Thus, if a document is bearing the date by which it is 30 years old, or a document
bearing no date but proved to be thirty years old, is produced from a proper custody its
execution may be presumed by the court. The court should be cautious about the age of a
document. A document may be written yesterday and a date of 30 years ago may be
given.The period of 30 years is to be reckoned not form the date upon which the document is
filed in court, but from the date on which, it, having been tendered in evidence, its

43
genuineness or otherwise became the subject of proof. he period of 30 years is to be
commuted from the date of its exaction to the date on which it was sought to be put
into evidence.
(2) Produced from proper custody:
“The proper custody of a document” means its deposit with a person and in a place, where, if
authentic, it might naturally and reasonably be expected to be found. “Proper custody”
means the custody of any person so connected with the deed that his possession of it does
not excite any suspicion or fraud. Proper Custody is custody proved to have had a
legitimate origin or an origin the legitimately of which the circumstances of the case render
probable. Section 90 insists only on a satisfactory account of the origin of the custody and
not on the history of the continuance. The mere production of an ancient document by a
party to a proceeding affords no ground for its presumption of its genuineness. The party
producing it must prove that it was in the proper custody. The origin of custody has to
be explained by the person producing the document if he happened to be a person who is
not normally supposed to have custody of the document. It is enough if the person is
so connected with it that he may reasonably be supposed to be in possession of it.
Illustration
(a) A has been in possession of landed property for a long time. He produces from his custody
deeds relating to the land showing his titles to it. The custody is proper.
Case Law
In Darshan Singh v. Prabhu Singh, a deed relating to the affairs of a family of three
brothers was produced from the custody of their mother. It was held that the custody is
proper, as there could be no better custodian than the mother to whom all the three sons
are alike.
(3) Document must be free of suspicion:
For the purpose of raising a presumption under this section the document must be free from
suspicion. Whenever the court entertains any doubt, the court may refuse to draw the
presumption and directs the party seeking to offer the document in evidence to prove it
complying with the normal rules of proof.
(4) Document must not have been anonymous:
No presumption can be raised where the document is an anonymous one. Section 90
therefore does not apply to unsigned documents even though they are proved to be 30
years old and produced from proper custody.
Extent of presumption:
When a document purporting or proved to be 30 years old and produced from proper custody,
the following presumption may be raised:
(i)That the signature and every other part of the document which purports to be in the hand
writing of any particular person is in that person’s hand writing.
(ii) That the document was executed by the person by whom it purports to have been
executed.

(iii) That the document was attested by the person by whom it purports to have been
attested.

Nature of Presumption:
The expression ‘may presume’ used in this section clearly suggests that the court has
discretionary power either to presume or not to presume.
The judicial discretion should not be exercised arbitrarily and not being informed by
reason. The court while raising a presumption under this section must exercise considerable
care and caution and take into consideration all surrounding circumstances. If the
document produced is found to contain any erasures, over writing or other defects, the court
must refuse to draw the presumption of genuineness.

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 No Presumption to the truth of the contents of the document:
Although a presumption may be raised as to the genuineness of the execution of documents
in view of their age and custody, there cannot be a presumption as to the truth of the
contents of the documents. The presumption is confined to the execution and
attestation.

Presumption as to the Certified copies

In Harihar Prasad v. Deonarain the Supreme Court observed that the presumption enacted in
Section 90 can be raised with reference to original document and not to copies
thereof.
3. Explain the rule of exclusion of Hearsay evidence and state
exceptions.

Meaning of Hearsay Evidence:

Hearsay Evidence means whatever a person is heard to say. It includes:
i) A statement made by a person, not called as witness;
ii)A statement contained or recorded in any book, document or record which is not
admissible. Hearsay refers to testimony given in court by a person other than the one
who perceived it. The hearsay witness may not be able to say correctly and completely
the truth of his statement. Hearsay evidence “denotes that kind of evidence which does not
derive its value solely from the credit given to the witness himself, but which rests also, in
part, on the veracity and competence of some other person.” The evidence is such that the
witness has no personal knowledge about the fact in question, rather it is derivative based
on the second-hand knowledge. “Sometimes it means whatever a person is heard to say;
sometimes it means whatever a person declares on information given by someone else;
sometimes it is treated as nearly synonymous with ‘irrelevant’’’—STEPHEN. In every case
the credit goes to someone else. It is that kind of evidence which comes indirectly. A
hearsay statement is defined as an assertion other than one made by a person while giving
oral evidence in the proceedings tendered as evidence of the facts asserted. This means
that oral evidence when tendered must be directly connected to the fact in issue. Any other
statement which is not directly connected to the fact in issue would be a hearsay statement.
Rule Against Hearsay General Rule
As a general rule hearsay is inadmissible. The rule against hearsay is stated as follows: “A
statement made by a person not called as a witness which is offered in evidence to prove the
truth of the fact contained in the statement is hearsay and it is not admissible. If, however
the statement is offered in evidence, only to prove that the statement was in fact made it is
not hearsay and it is admissible”- Justice De Silva So essentially then what determines
whether evidence is hearsay or not is going to be pegged around the purpose for which the
statement is given.
Evidence
Evidence given by a witness may be oral or documentary. Section 60 of the Indian
Evidence Act says that, oral Evidence to be admissible must be direct. If it is
documentary evidence, the Evidence Act requires that ordinarily the original should be
produced, because a copy may contain omissions or mistakes of a deliberate or accidental
nature. In other words, Hearsay Evidence is no evidence. A statement oral or written, by a
person not called as witness comes under the general rule of hearsay.
Section 60
Section 60 of Indian Evidence Act reads as follows:
Oral evidence must, in all cases, whatever, be direct; that is to say -
If it refers to a fact which could be seen, it must be the evidence of a witness who
says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness

who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it

45
must be the evidence of a witness who says he perceived it by that sense or in that
manner; If it refers to an opinion, or to the grounds on which that opinion is held, it must
be the evidence of the person who holds that opinion on those grounds –
Exceptions
If it refers to an expert opinion available in treatises available for sale and the expert is dead
or unavailable to depose. If it refers to the existence or condition of any material thing other
than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.
Exclusion of hearsay evidence:
As stated above, the fundamental principle of law of evidence is:

Hearsay Evidence must not be admitted. Hearsay Evidence is also known as derivative or
second hand or unoriginal evidence. It is the evidence of facts, which the witness has not
learnt through his own bodily senses, but learnt through the medium of others. It is
regarded as ambiguous and misleading.
Hearsay evidence is excluded on the ground that it is always desirable, in the interest of
justice, to get the person, whose statement is relied upon, into court for his examination in
the regular way, in order that many possible sources of inaccuracy and untrustworthiness can
be brought to light and exposed, if they exist, by the test of cross- examination.
Examples
An informant is alleged to have given information to the D.S.P. that the accused will be
following the truck which carried the prohibited liquor. When this informant is not
examined the evidence of
D.S.P. received by him is not admissible. Where it is alleged that the boy was adopted on
the date of his birth, the oral evidence of the boy in proof of adoption is hearsay. In a
murder case the evidence of witness who came to the scene of occurrence immediately after
the occurrence though he did not see the accused persons attacking the deceased, but he
learnt about the same from eye-witnesses. He sent information to the police. It was held
that his evidence about such information though was hearsay but corroborated by substantive
evidence of eye-witness and therefore was admissible. Thus, it comes not from the
knowledge of person who deposes it, but through some other person.
Reasons for Exclusion of Hearsay Evidence:
The reasons for exclusion of hearsay Evidence are as follows:
1)Hearsay Evidence is intrinsically weak.
2)It encourages substitution of weaker evidence for stronger evidence.
3) The evidence is not given on oath or under personal responsibility by the original
declarant.

4)Hearsay Evidence cannot be tested by Cross-Examination.

5)As truth depreciates in the process of repetition, it is not reliable.
6)Its reception will increase opportunities for fabrication

7)Its tendency to protract legal investigations to an embarrassing and dangerous length

8)its incompetency to satisfy the mind of a Judge about the existence of a fact
9)the person giving such evidence does not feel any responsibility.

The law requires all evidence to be given under personal responsibility, i.e., every witness
must give his testimony, under such circumstance, as to expose him to all the penalties
of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by
saying "I do not know, but so and so told me",
Exceptions:

46
Exceptions to hearsay Evidence are as follows:

1) Exceptions stated above in section 60.

2) Res gestae under Section 6:
The statement of a person may be proved through another person who appears as a witness
if the statement is a part of the same transaction in issue.
3) Admission and Confessions (Under Section 17 - Section 23 and Section 24 - Section
30):

An admission of liability or confession of guilt which takes place outside the court, is proved
through the testimony of the witnesses to whom the admission or confession was
made. Such witness is not a witness of fact as he has not seen or observed the main
occurrence through any of his senses but had only heard about it from the mouth of the party
who admitted his liability or confessed to the guilt.
Statements of persons who cannot be called as Witnesses:
4) Dying Declarations (Section 32)
Statements by a person who cannot be called as a witness (Dying Declaration. Section 32(1).
Statements, which are mostly the statements of the deceased persons who are not available
as witnesses. The evidence of such a statement is therefore, the evidence of hearsay and it
specially declared to be relevant.
5) Evidence given in former proceedings (Section 33)
It is provided that evidence given by a witness in a proceeding can be used as evidence of the
truth of the facts stated in any subsequent proceeding between the same parties,
provided that the witness has died or is, for some other reasons, not available.
Statements made under Special Circumstances
8) Entries in books of Accounts (Section 34)
6) Entries in public Records (Section 35)
The statement in a public document such as, the Acts of the Parliament, official books and
registers can be proved by the production of the documents and it is not necessary to
produce before the court the draftsman of the documents.
7) Statements in maps, charts and plans (Section 36)
8) Statements in Acts and Notifications (Section 37)
9) Statements contained in Law Books (Section 38)
10) Judgments of Courts (Sections 40-43)
11) Opinions of Experts (Section 45- Section 51):
It is provided that the opinion of experts expressed in any treatise commonly offered for sale
and the ground on which such opinions are held may be proved by the production of such
treatise if the author is dead or cannot found or become incapable of giving evidence, or
cannot be called as witness without an amount of delay or expense which the court
regards reasonable. Thus, the opinion of experts can be cited in his absence only.
12) Proof of Official Documents by Certified Copies……. (Sections 77, 78)
13) Misc
Affidavit statements especially where they are based on information are also an exception to
the hearsay rule. Statements taken from sick persons who are about to die are also an
exception to the hearsay rule.
4. Explain the relevancy of Character evidence in Civil and Criminal
Cases

Introduction
The character of persons has been used in order to determine guilt for centuries.
Over the years the law has evolved and the applicability of character evidence to civil and
criminal cases has become limited. The character, sought to be proved, may be of the
parties to the proceedings, the witnesses or even third parties. As per explanation in

47
Section 55, Character consists of Reputation and Disposition.

Reputation:
Reputation is the community opinion as to what a person is supposed to be.
Disposition:
Disposition has been defined as what a person actually is. i.e. all the acquired and
inherited traits which sums up a person’s individuality. Disposition is a natural tendency, an
inclination; a person’s temperament.
Character
As character includes both reputation as well as disposition, character means the general
credit of the person in the estimation of others plus the nature and inherent qualities of a
person. Disposition of a person can be known only to those persons who are close to him. A
person may have very high reputation, but his disposition may be very bad. Character is
different from conduct. Conduct is a stray act. it is single act, done on one occasion while
character is continuous act and there is repetition of the same act. The character of a
person is a summary of his past actions whether good or bad. "Is a man honest, is he good
—natured, is he of violent temper, is he modest and retiring or imprudent forward — These
all constitute traits of character." It should be noted that in law, reputation was the chief
means of proving a person’s character. In recent years however, the focus has shifted
towards the accused’s disposition to behave in certain ways, previous convictions etc. as
more reliable evidence of character.
References
Section 52 - In civil cases, character to prove conduct imputed, irrelevant.
In civil cases, the fact that the character of any person concerned is such as to render
probable or improbable any conduct imputed to him is irrelevant except in so far as such
character appears from facts otherwise relevant.
Section 53 - In criminal cases, previous good character relevant
In criminal proceedings, the fact that the person accused, is of good character, is
relevant.

Section 54 - Previous bad character not relevant except in reply

In criminal proceedings, the fact that the accused person had a bad character is irrelevant,
unless evidence has been given that he has a good character in which case it becomes
relevant.
Section 55 - Character as affecting damages
In civil cases, the fact that the character of any person is such as to affect the amount of
damages which he ought to receive is relevant.
Explanation - In Section 52, 53, 54 and 55, the word "character" includes both reputation and
disposition;
Evidence may be given only of general reputation and general disposition and not of
particular acts by which reputation or disposition was shown. Exception is Section 54.
Character as Evidence
When the character of a person is the fact in issue, it may be used in both civil and criminal
cases. However, when the character is used as circumstantial evidence, then it is allowed in
only criminal cases and some special circumstances in civil cases.
General Rule on Admissibility of Character Evidence in Civil Suits: Section 52

In civil proceedings good or bad character is not relevant. e.g. if a person is charged with
negligent driving, he cannot give evidence of fact of his character and conduct has been
such that he could not have been guilty of negligence. Similarly, his opposite party cannot
give evidence of the fact that his character and conduct had been so bad that he must have
been negligent.

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 Circumstances Under Which Character Evidence May Be Adduced-
The evidence of a person’s character may be offered under two circumstances, Firstly, to
prove its existence as one of the facts in the case, that is character as a fact in issue and
Secondly to prove its existence as circumstantial evidence in order to prove another fact
therein.
Character as Fact in Issue
Whether or not character is a fact in issue depends on the facts of the case. In
defamation cases for instance, the character of the plaintiff becomes a fact in issue. When the
plaintiff alleges that the defendant has defamed him and damaged his character, the
plaintiff’s character becomes a fact in issue as the plaintiff has to prove what his character
was before the defamation, and how this act of libel or slander has affected his
reputation.
Case Laws
In the case of Raghu Nath Pandey v. Bobby Bedi, the producer of a movie ‘Mangal Pandey’
based on the life of a freedom fighter by the same name, was sued by the family members of
Mangal Pandey, on the grounds that the depiction of his character as a drunkard having
illicit relationships with prostitutes effected his reputation and that of his family
members. The makers of the movie asserted that what they depicted was true and that they
had reached the conclusion based on research. Thus, the court had to look into historical
texts and determine his reputation.
Similarly, in B. Vasanthi v. Bakthavatchalu a case dealing with the custody of the minor
children of the divorced parents, the wife asserted that the husband was of bad character as
he had illicit affairs with several women whom he brought home. She alleged that he was a
habitual drinker and that he beat the children while he was intoxicated, and it was also
stated that he had discontinued their daughter’s education. The husband on the other
hand while denying these allegations, claimed that the wife was a bad influence on the
children as she often threatened to commit suicide before them, she was also said to be
indifferent towards the children, he also claimed that she used to have illicit relations
with another man, who visited her at home frequently. He alleged that she prevented the
daughter from going to school in order to make her deliver letters to her paramour.
Thus, in this case, the characters of both the plaintiff and the defendant are facts in
issue as it is important to determine the character of the parents in order to decide who had
the best interests of the children in mind.
The Supreme Court while interpreting Section 6(a) of the Hindu Guardianship and Minority
Act, 1956 in Geeta Hariharan vs. Reserve Bank of India stated that if it could be showed that
the father of the child was indifferent to the child then the mother would become the natural
guardian. Thus, again the character of the father will become a fact in issue as the
guardianship of the child will depend on the indifference of the father.
Any Person
Under Section 52 the expression 'the character of any person concerned' is used. Therefore,
includes third Parties and persons who are called as witnesses. In the English case of
Hurst v. Evans an insurance company was sued in order to collect money from an insurance
policy. The insurance company contended that the loss was a result of the plaintiff’s servant’s
dishonesty. Thus, the court held that the honesty of the servant was a fact in issue and as
such evidence was allowed in order to show that he was a person of questionable character
as he was always found in the company burglars and that he had entered the house with
the help of a false reference letter. This is also an example of how the character of a
third party to the suit becomes a fact in issue.
When Character Becomes Relevant – Section 55
Section 55 permits a person’s character to be considered important to determine the amount
of compensation claimed. This is primarily used in defamation cases when a person causes
injury to another’s reputation and damages are calculated on the basis of the person’s
character. Therefore, in suits for damages against defamation, breach of promise to marry,
seduction, adultery etc. evidence of character is admissible. Similarly, in cases of
guardianship, the character of the proposed guardian becomes relevant. Section 10(1) of

49
the Guardians and Wards Act, states that the qualifications of the proposed guardian
should be stated in the application itself and that no guardian can be appointed without an
enquiry into his fitness for the job. This has been interpreted to mean that where a court
appoints a man as guardian without inquiring into his character and fitness such a procedure
will be declared irregular.
Admissibility of Character Evidence in Criminal Suits in Indian Law - Section 53
In criminal cases previous good character is relevant. The innocence or criminality of an
accused can easily be judged by basing on his character. Every accused person is at liberty to
give evidence of the fact that he is man of good character. In criminal cases, the accused is
allowed to prove his good character, either by himself or by cross- examination. Good
character in criminal cases is weak evidence. Phipson states that "Good character is not a
defence, for no one would then be convicted, as everyone starts with a good character.
However, in certain cases, good character may become favorable evidence in favor of an
accused in doubtful cases and where the prosecution fails to prove the guilt of the
accused beyond reasonable doubt. When the accused in a bribery case pleads and
produces evidences of good character, which the Court regards as satisfactory, it must be
taken in consideration to decide whether the guilt is proved beyond reasonable doubt. The
defendant is, however, entitled to rely on the fact that he is of previous good character as
making it less likely that he would have committed the offence. If there is any room of doubt,
his good character may be thrown in the scales in his favor."
Case Laws
In Habeeb Mohammad v. State of Hyderabad, [AIR l954 SC 51] it has been held that in
criminal proceedings a man's character is often a matter of importance in explaining his
conduct and in judging his innocence or criminality. Many acts of an accused person would
be suspicious or free from all suspicions when the character of the person by whom they
are done is known. Even on the question of punishment, an accused is allowed to prove
general good character.

Bar on the proof of previous bad character in criminal proceedings: Section 54

Section 54 lays down that the previous bad character of a person is irrelevant except when it
is used in a reply. The reason is that the prosecution must prove the guilt of accused with the
necessary evidence in support of the charge. But the prosecution cannot take the help of
bad character of the accused in order to establish its case. lf the prosecution is allowed to
prove bad character of the accused, then that would prejudice the mind of the Court. It
makes the Court biased against the accused. If evidence of bad character of the accused
is permitted to be proved, the Court may come to the conclusion that he has committed the
offence in question. Therefore, this would prejudice the fair trial to which the accused is
entitled. However, there are three exceptions to the rule of the irrelevance of bad
character in criminal cases.

The first exception:

1)When the accused has adduced evidence that he has been of good character, the
prosecution can lead evidence to the effect that he has been a bad character. In Indian
system of Law, an accused starts with a presumption of innocence; his bad character is not
relevant, unless he gives evidence of good character in which case, by way of rebuttal,
evidence of bad character may be adduced. The prosecution gets the right to prove
the bad character of the accused.

In cases of defamation, malicious prosecution etc., the question of reputation is to be

considered. In such cases, the bad character of the party may be adduced as evidence.

The second exception:

2)Where the bad character of accused itself is a fact in issue, the evidence of bad character
of the accused may be given. e.g. under section 110 of Cr.P.C., a habitual offender includes
an offender who is by habit a robber, house-breaker, or is so desperate and dangerous to
the society then the very character of the accused is in question and evidence to that

50
effect is admissible; In proceedings for the offence of dacoity under Sections 400, 401,
Indian Penal Code, the bad character of the person involved would be a fact in issue. The
evidence that the accused had committed similar criminal acts previously is admissible upon
the issue to decide whether the act was intentional or accidental. If the evidence of bad
character is introduced in order to establish a relevant fact which cannot be proved
separately the evidence of bad character is admissible.
Case Laws
In Public Prosecutor; APHC v. Bandana Ramayya, [2004 Cr.L.J. 3510 (AP)] it has been held that
in a rape case, where the medical evidence clearly points out that there was a forcible
intercourse, the bad character of the prosecutrix becomes irrelevant. If the bad character is
itself a fact in issue, only then evidence can be placed.
The third exception:
3)where the previous conviction is relevant as evidence of bad character, evidence of bad
character is relevant. A previous conviction is not admissible in evidence against the
accused, except where he is liable to enhanced punishment under Section 75 of the Indian
Penal Code, on account of previous conviction, or unless evidence of good character be given,
in which case the fact that the accused had been previously convicted of an offence is
admissible as evidence of bad character. Under Section 75 of the IPC, a person who has
been previously convicted by a Court of an offence punishable under Chapter XII or
Chapter XVII of the IPC with an imprisonment of three years or more, is liable for
enhanced punishment if he had, again committed an offence under those chapters
subsequently.
Case Laws
In re: Kamya, it has been held that only after conviction of the accused, the charge for the
previous conviction has to be framed for giving enhanced punishment. In such a case, the
prosecution has to prove the previous conviction of the accused. The trial judge may, at
his discretion, proceed or refrain from proceeding, with the trial on the charge of
previous conviction.
Character Evidence and Veracity of Witnesses
Character evidence can also be used in order to shake the veracity of the witnesses. A
witness is supposed to be truthful and possess the disposition to tell the truth.
Normally, the honesty of a witness is presumed, and the witness is not allowed to adduce
evidence of his good behavior until his character is attacked. Law allows for the
questioning of a witnesses’ character during cross examination. As per section 142 of the
Indian Evidence Act, the witness may be cross examined in a manner as to impeach his credit
by injuring his character. This may be done even in cases where character evidence is not
relevant to decide the outcome of a case. While attacking the witnesses character,
evidence adduced must be pertinent to his veracity to tell the truth, as the object is to
ascertain the witnesses character as an honest person.

5. The Distinction Between Character Evidence in Civil and Criminal

Cases

When the character of a person is the fact in issue, proof of general character may be
received in both civil and criminal cases, however when the character is not a fact in issue,
but is instead used as circumstantial evidence to prove other material issues, then it is
allowed only in criminal cases, and under certain circumstances in civil law. Section 52 of
the Indian Evidence Act makes it clear that evidence of character to prove conduct imputed is
irrelevant unless it appears from the facts to be otherwise relevant. Thus, the test for
admissibility is relevance. Most civil cases deal with contracts, or promissory notes etc.
which are not matters that involve reckless wrongdoing, or morally reprehensive conduct, in
a majority of cases, the subject matter is irrelevant to the character of persons, so it is never
accepted as evidence. Character evidence is thus accepted only in situations where the
facts show that it is relevant. Though the test appears to be relevancy, there are several
civil cases where the character of a person becomes relevant and, yet character evidence
is excluded. For example, in tortuous claim against assault or negligence, the good character

51
of the defendant would be relevant, yet character evidence is not accepted in tortuous claims
while it is accepted in criminal actions for the same offences of assault or negligence.
Similarly, in quasi criminal cases, where features belonging to classes of action can be found,
civil courts do not entertain character evidence even if it could be accepted in a criminal court
for the same offence. Likewise, it is seen that when criminal charges are involved in a civil
suit character evidence is not admissible. One of the reasons for this is stated to be a policy
decision in order to restrain civil proceedings within manageable limits and prevent
protracted legal proceedings. It is said that such a move has been made in order to prevent
unfairness to civil litigants as they cannot be expected, to protect themselves against
allegations of bad character which may range over their whole life. However, this reasoning
should hold good for criminal cases as well, as character evidence in criminal cases may also
involve imputations which may range throughout one’s life. The reason for allowing for
character evidence, here may be because of the fact that the repercussions of a criminal
trial are different from that of a civil case.
Criminal cases involve the possibility of imprisonment. For example, the Indian Penal Code
provides imprisonment of three months for assault without grave and sudden
provocation. While a tortuous claim against assault will only result in damages. This might be
one of the reasons behind admitting character evidence in criminal cases.

6. What are Public Documents? State how public documents are

proved?

1) Introduction:
Witnesses and Documents are the Chief sources of evidence. A witness is a person
who gives testimony or evidence before any Court. Evidence given by a witness is called
oral evidence while the evidence produced through documents is called documentary
evidence. According to Section 3 of the Indian Evidence, 1872 documentary evidence means
and includes all documents produced before the Court for its inspection.
2) Definition of Document:
The document can be defined as," a piece of written, printed or electronic matter that
provides information or evidence or that serves as an official record. Section 3 of
Indian Evidence Act, 1872 defines Document as, “Document” means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used, for the purpose of recording that
matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents; A map or plan is a document;
An inscription on a metal plate or stone is a document; A caricature is a document.

3) Types of Documents
Documents are divided into two categories Public Documents and Private Documents. The
classification is essential in determining the method of proving such documents.Whereas
the public documents are those which include the interest of the public at large, private
documents are confined to the interests of the concerned persons only.
4) References
S. 74 of Indian evidence Act deals with definition of Public documents.
S. 75 talks about Private documents.
S.76 to S.78 deals with the modes of proof of public documents.

5) Evidentiary Value
Public documents are admitted in evidence as an exception to the hearsay rule as the facts
contained in them are of public interest and they are the statements made by authorized and
competent agents of public in the course of their official duties.
6) Definition of Public Documents.

52
 S.74 Public documents
The following documents are public documents:
(1) They are documents forming the acts, or records of the acts.
(i)of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;

Comments
The mere fact that a document is kept in a public office does not make it a public document.
It must have been prepared by any public servant in the discharge of his official duty.
Examples of Public Records
1.Electoral roll
2.Census report
3.Town planning reports
4.Village records
5.Public records which keep the private documents I original are also public records.
6.Records of the National banks.
7.Birth and death register.

The following are not public records.

The panchanama prepared by the police officer could not be said to be prepared in the course
of public duty and hence not public record (hardayal Aram sing (AIR. MP2003)
(2) Public records kept in any State of private documents.
S.74 (2) refers to private documents through made by private individuals but kept as records
in public offices in order to facilitate the public to have access to it.
Such private documents are kept in Public offices are regarded as public documents.
Illustration
For example, S.51 of the Indian registration Act, 1908 provides for the maintenance of certain
records of the documents registered and S.57 of the same Act, enables the registration officer
to give certified copies of all such documents.
7) S.75 Private documents All other documents are private.

This section simply provides that any document not coming under of the two clauses of S.74
is a private document. A deed of contract, memorandum, letter, a sale deed, etc. are
private documents.
Comments
Sometimes, what is in nature a private record turns out to be public record when the public
interest is evolved and that is prepared by the public servant. For example, the allotment
of share certificates to members of the housing society of Adarsh housing society, Mumbai
was a private document between the society and the members. But when the entire society
was involved in fraudulent act of taking the government defence land such record becomes
record of public interest and they are accessible by public.

Private Vs Public document

Between private document and public documents, the latter is to be relied on. A
question arose between the public document and the private document which should be
relied more. In the case of State Of Maharashtra v. Md.sajid Hussein AIR 2008( SC 155) the
SC had held when a public document in the form of birth certificate is produced by the
prosecution showing the age of the victim below 16yrs, it should prevail over the date given
in the FIR and also supplemented by the affidavit. In this case the accused forced the victim
to flesh trade. In the FIR and supplementary affidavit, the age was given as 18 yrs. On the
basis of radiological test, the age was determined to be 14 to 16. However, the prosecution
produced the produced the birth certificate from municipality which showed the date of birth

53
as 16.
8) Method of proof of public documents.
Public documents are proved by the following methods.
S. 77 Proof of documents by production of certified copies:
They are proved by obtaining certified copy as provided in section 76 and this is regarded as
original. In the case of Rammapa vs. Bajjappa (AIR 1963 SC the court held that a certified
copy of a public document can be received in evidence and without proof. Any person
who has a right to inspect a public document may obtain a certified copy of it from the public
officer whose custody it is and may produce before the court for purpose of proving the
contents of such public documents. Certified copies are treated as equivalent to
originals.
S.78 Proof of other official documents:
Section 78 enumerates the manner in which different public documents could be proved.
They are as under.
Nature of public document and how it is proved
1. Acts orders or notification of the central government or state government - By the
certified records certified by the heads of the department
2. The proceeding of the legislature - By proceedings published by government
3. Proclamation of government, queen, crown - By gazette notification

4. Acts of executives or the proceedings of the legislature of a foreign country - By official

journals published by authority
5. Proceedings of municipal body in a state - By the certified copy of the legal keeper
thereof or by the printed published book of the authority.
6. Public documents of any other class in a foreign country – By original,
By certified copy of the legal keeper of record,
With a duly certified copy under the seal of a notary public or of an Indian council or
diplomatic agent having legal custody as per the law of that country.
9) Case laws
A)Manjula V. Mani 1998 Cr. L. J 1476 (mad).
In this case Madras High Court Held that Hindu Marriage register is a public document.
Therefore, the certificate copies of such register may be obtained from the office of marriage
registrar and the same are admissible in evidence in a criminal charge of bigamy punishable
u/s494 Indian penal code.
B) Shyam lal vs State 1998 Cr. l.J. 2879 (All)
The first Information report is a public document and said accused is entitled to have its
certified copy from the police authorities or from the court on Payment of requisite fee.
10) Conclusion
Public documents are those which are made by the public servant during the course of
performing his duty and these documents are also documents published by the sovereign
authority and the legislature. They are public in the sense there are kept in the custody of
pubic offices and a certified copy obtained and signed by the respective legal regal keeper or
authority themselves is a proof and they are regarded as primary evidence. They are
presumed to be genuine unless otherwise their legal veracity is questioned.

7. Oral Evidence must in all cases whatsoever be direct. Explain

with exceptions.

Introduction
This note is related to:

54
o Section 59 and 60 of Evidence Act 1872
o Definition of Oral Evidence
o Hearsay evidence
o Evidential value of oral evidence
o Rules regarding oral evidence
o Illustration: “oral evidence must in all cases be direct”
o Exceptions of provision 59 & 60.

Oral evidence is a much less satisfactory medium of proof than documentary proof. Oral
evidence in all cases must be direct and not hearsay. In Criminal cases oral evidence can
prevail as it is direct evidence at the site of the Crime.

Section 59:
“All facts, except the contents of documents, may be proved by oral evidence.” The
meaning of the expression “oral evidence” is given in section 3 along with the definition of
the term ‘Evidence’. “Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry,
such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.
The word ‘Oral’ means by word of mouth;
but a witness who is unable to speak may give evidence in any manner in which he can
make communicate, e.g., by writing or by signs in either case it will be regarded as oral
evidence (section- 119).
Maxim & Evidentiary value of oral evidence:
Oral evidence should be approached with caution.
The court must shift the evidence, separate the grain from the chaff and accept what it finds
to be true and reject the rest. The credibility of a witness should be decided on the following
important points:
a. Whether the witness had the means of gaining correct information,
b. Whether they have any interest in concealing the truth,
c. Whether they agree in their testimony.
If a witness is found lying once, should he be trusted again?
In ordinary terms, one would not be inclined to take other statements from such a witness as
being above-board. On this count, under common law a doctrine prevails, known as Falsus in
Uno, Falsus in Omnibus where, if a portion of the statement given by witness is found to be
false, the entire statement of witness is rejected. However, the law of evidence does not
follow this doctrine and instead requires the judge to ascertain the portion of the evidence
which is correct and based thereon decide the matter.
Case Law
In Balaka Singh v. State of Punjab, AIR 1975 the Supreme Court observed that “the Court
must make an attempt to separate grain from the chaff, the truth from the falsehood, yet
this could only be possible when the truth is separable from the falsehood. Where the
grain cannot be separated from the chaff because the grain and the chaff are so inextricably
mixed up, then the principle will not apply”. In all civilized systems of jurisprudence there is
a presumption against perjury (lying under oath).The correct rule is to judge the oral evidence
with the reference to the conduct of the parties, and the presumptions and the
probabilities legitimately arising in the case.
Section 60:
“Oral evidence must, in all cases whatever, be direct.” Section 60 aims at rejection of
evidence which is not direct. All facts, except the contents of documents, may be proved

55
by oral evidence

Section 60 lays down two rules;

i. Oral evidence must direct in all cases; and
ii.Hearsay evidence is not relevant and not admissible.
According to section 60 only a direct evidence of a fact which can be perceived by senses can
be given. Evidence of a witness as to what was said to him by another person is not
admissible, unless that person himself deposes to that fact as a witness. To be technical it
may be said that hearsay evidence is not admissible. Hearsay evidence is that evidence
which comes not from the knowledge of the person who deposes it but through some other
person. The word ‘hearsay’ is capable of various meaning and is ambiguous in the extreme.
It has at least 3 distinct meanings:
Firstly: the word ‘hearsay’ may mean whatever a person is heard to say Secondly: it may
mean whatever a person declares on information given by someone else. Thirdly: it may be
synonymous with irrelevant.
Oral Evidence must be direct:
How oral evidence may be direct has been outlined in section 60 of the Evidence Act. It lays
down that the oral evidence would be direct in the following manner:
1. If a question arises about a fact which can be seen, the witness produced must say that-
he himself saw it.
Illustration:
If the question is whether A shot B dead, the evidence should be of someone who saw A
shooting at B with his own eyes.
2. If a question arises about a fact which can be heard, the witness produced must say that
he himself heard it.
Illustration:
If some body’s statement or dying declaration or admission is to be proved, it must be proved
by the evidence of a person who himself heard it.
3. If the evidence is to be given about a fact which can be perceived by any other sense or
in any other manner, the witness produced must say that he perceived it himself in that sense
or in that manner.
Illustration:
If the question is whether a man died of fever or by poisoning, his dying declarationsastowhat
symptomsheperceivedgiventoadoctorare relevant.
4. If the evidence is to be given about an opinion or on the grounds on which an opinion is
made, the witness produced must say that he made that opinion and on those grounds.
Illustration:
When a question is whether a custom exists, or a certain relationship between persons exists,
or whether a particular right of way exists or not, the person who has special knowledge
and experience about these should be produced and not the persons who say that they heard
such a man say so.
Exceptions as per section 60
1) Expert Opinion
If it refers to an expert opinion available in treatises available for sale and the expert is dead
or unavailable to depose.

2) Material Things
If it refers to the existence or condition of any material thing other than a document, the
Court may, if it thinks fit, require the production of such material thing for its inspection.
Other Exceptions
3) Res gestae under Section 6:

56
The statement of a person may be proved through another person who appears as a witness
if the statement is a part of the same transaction in issue.
4) Admission and Confessions (Under Section 17 - Section 23 and Section 24 - Section
30):

An admission of liability or confession of guilt which takes place outside the court, is proved
through the testimony of the witnesses to whom the admission or confession was
made. Such witness is not a witness of fact as he has not seen or observed the main
occurrence through any of his senses but had only heard about it from the mouth of the party
who admitted his liability or confessed to the guilt.
Statements of persons who cannot be called as Witnesses:
5) Dying Declarations (Section 32)
Statements by a person who cannot be called as a witness (Dying Declaration. Section 32(1).
Statements, which are mostly the statements of the deceased persons who are not available
as witnesses. The evidence of such a statement is therefore, the evidence of hearsay and it
specially declared to be relevant.

8. Discussthe provisions relating to exclusion of oral evidence by

documentary evidence.

Introduction
Difference between Oral evidence and Documentary evidence
Oral evidence is a statement of witnesses and documentary evidence is a statement of
documents. Documents are denominated as dead proof, as distinguished from witnesses who
are said to be living proofs. Documentary evidence is superior to oral evidence in
permanence, and in many respects, in trustworthiness. There are more ways of trying the
genuineness of documentary evidence than there can be of disproving oral evidence. In
many cases, the existence of documentary evidence excludes the production of oral evidence.
Principle
Sections 91 to 100 are based upon the principle that the best evidence must always be given,
and the acceptance of the fact that no matter how good a person’s memory may be, the best
evidence of the content of a document is the document itself. The principle does not
demand the largest amount of evidence – it simply requires the best evidence and since this
is documentary evidence, oral evidence is excluded.
Reference
The general rule excluding oral evidence in the presence of documentary evidence is laid
down in Sections 91 and 92. The general rule is subject to the ‘exceptions’ contained in
Sections 93 to 100 which speak of how oral evidence may be used to interpret
documents.
Section 91 - Evidence of terms of contracts, grants and other dispositions of property reduced
to form of document
Under this Section, no oral evidence can be given of the terms of a written contract, grant or
other disposition of property. The document itself is the best evidence to prove any fact.
Such fact should be proved either by the primary or secondary evidence of the document.
The section forbids the proof of the contents of a writing otherwise than by the writing itself.
Even a third party, who is seeking to prove a written contract, can prove it only by producing
the writing. The only oral evidence excluded by this Section is oral evidence regarding the
terms written in a document. If there is no document, this Section does not apply. For
example, under Hindu law, a partition may be oral. If it is oral, Section 91 has no application.
But if it is in writing, the Section applies (and if it involves immovable property, the document
must be registered).
Exceptions
Exception 1-Appointment of a Public Officer:
Where the appointment of 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 of the fact of appointment and the
writing by which he was appointed need not be proved.

57
Exception 2-Wills:
Wills admitted to probate in India may be proved by the probate. The document containing
the will need not be produced. “Probate” is copy of the will certified under the seal of the
court and, therefore, is a sufficient proof of the content of the will.
Explanation 1.
Illustration
(a) If a contract be contained in several letters, all the letters in which it is contained must be
proved.
Explanation 2.
Illustration
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
Explanation 3.
The statements, in any document whatever, of a fact other than the facts referred to in this
section, and shall not preclude the admission of oral evidence as to the same fact. It was
held in Javarasetty v. Ningamma, 1992, that oral evidence is not excluded when the writing in
question is not evidence of the matter reduced to writing; there is no reason for the Court to
prefer either documentary or oral evidence to the other.
Section 92 - Exclusion of evidence of oral agreement
Once the terms of terms of a written contract, grant or other disposition of property are
proved, no oral evidence is admissible if it contradicts, varies adds to or subtracts
from its terms. Sections 91 and 92 supplement each other. They are both based on the
“best evidence rule” though they differ in some material particulars also. The Supreme
Court held in Taburi Sahai v. Jhunjhunwala that a deed of the adoption of child is not a
contract within the meaning of section 91 and, therefore, the fact of adoption can be proved
by any evidence apart from the deed.
Exceptions Exception 1
Invalidation of Document due to Fraud, etc.,
Section 92 applies only when there is no infirmity in the document; facts which invalidate a
document can be proved by oral evidence. Proviso 1 deals with agreements whose validity
has been impeached and should be read with Section 31 of the Specific Relief Act.
Illustration
(d) ‘A’ enters into a written contract with B to work certain mines, the property of B, upon
certain terms.
A was induced to do so by a misrepresentation of B’s as to their value. This fact may be
proved.
Exception 2 Silence
Proviso 2 deals with matters on which the agreement is silent.
It is under this proviso that oral evidence is admissible on matters which the document does
not speak of. The evidence given cannot be inconsistent with the written terms of the
agreement.
Formality
Also, the Court considers the formality of the document when deciding whether or not the
proviso applies i.e. a Court may permit the missing links in a document drafted by a layman
to be filled in by oral evidence but may not do so if the document in question has been
drafted by a team of lawyers.
Illustration
(f) ‘A’ orders goods of B by a letter in which nothing is said as to the time of payment,
and accepts the goods on delivery. B sues A for the price. A may show that the goods were
supplied on credit for a term still unexpired.
(h) ‘A’ hires lodgings of B, and gives B a card on which is written ––―Rooms, Rs. 200 a month.
A may prove a verbal agreement that these terms were to include partial board. ‘A’ hires
lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is
made between them. It is silent on the subject of board. A may not prove that board was
included in the term verbally.
Exception 3 Conditions Precedent
Proviso 3 deals with conditions precedent to obligation.
For example, Section 144 of the Contract Act which deals with guarantees says ‘where a

58
person gives a guarantee upon a contract that a creditor shall not act upon it till another
person has joined in it as co-surety, the guarantee is not valid if that other person does
not join. Here, the agreement that the person would be under no obligation until a co-surety
joined in the guarantee may be proved.
Exception 4
Recession or modification–
As per proviso 4, to rescind a document means to set it aside and to modify means to drop
some of it as cancelled or to modify some of its terms; such oral agreement may be
proved. This is, however, subject to one qualification stated in the proviso itself, namely,
where the contract is one is required by law to be in writing, or where it has been
registered according to the law relating to registration of documents, then proof cannot be
given of any oral agreement by which it was agreed either to rescind the document or to
modify its terms.
Exception 5
Usages and customs-
The proviso 5, provides that the existence of any usage or a custom by which incidents are
attached to a particular type of contract can be proved. But this is subject to the condition
that the usage or custom of which proof is offered should not be against the express terms
of the document. The usage should not be repugnant to or inconsistent with the document,
for otherwise it would nullify the document.
Exception 6
Relation of language of facts–
The facts upon which the document is to operate are sometimes set out in the contract itself
and sometimes not. Oral evidence is also receivable to throw light upon the nature
of a document. The section does not fetter the power of the court to arrive at the true
meaning of a document as disclosed by all the relevant surrounding circumstances.
Section 93 deals with the Exclusion of evidence to explain or amend ambiguous
document.
In Keshav Lal v Lal Bhai Tea Mills Ltd it was held that if the document had mentioned no price
at all, oral evidence of the price would have been allowed under section 92 as to a
matter of the fact on which the document is silent but not when the document mentions
price of ambiguous nature.

Section 94 deals with the Exclusion of evidence against application of document of existing
facts. This section applies when the execution of the document has been admitted and no
vitiating fact has been proved against it. In the case of General Court Enterprises P. Ltd v.
John Philipose it was held that oral evidence of explanatory nature was admissible.

Section 95 deals with the Evidence as to document unmeaning in reference to existing

facts.
When the language of a document is plain but in its application to the existing facts it is
meaningless, evidence can be given to show how it was intended to apply to those facts.

Section 96 deals with the Evidence as to application of languages which can apply to one only
of several persons.
As per Schuthon Nayar v. Achuthan Nayar, where a promissory note mentioned a date
according to the local calendar and also according to the international calendar, but the two
dates turned out to be different, it was held that evidence could be offered to show
which date was meant.

Section 97 deals with the Evidence as to application of language to one of two sets of facts to
neither of which the whole correctly applies.
The principle of the section is that where the language of a document applies to one set of
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.

Section 98 deals with the Evidence as to meaning of illegible character, etc.

59
This section permits evidence to be given of the meaning of words or marks of illegible
characters or words which are not commonly of intelligible character, foreign words, obsolete
words, technical, local and provincial expressions, abbreviations words used in a
peculiar sense.
In Canadian-General Electric W. v. Fatda Radio Ltd it was held that Oral evidence is admissible
for the purpose of explaining artistic words and symbols used in a document.

Section 99 deals with who may give evidence of agreement varying terms of document. The
parties to a document or their representative-in-interest cannot give evidence of a
contemporary agreement varying the terms of the document.

9. What is primary evidence? Discuss its scope and importance.

Principle
This section defines Primary evidence as the document itself produced for the inspection of
the Court.
Primary evidence is evidence which the law requires to be given first. The general rule
requiring Primary evidence to be given of the litigated documents is based on the Best
Evidence rule. An original document is the first permanent record of a transaction. It is first-
hand evidence and presumptively the most reliable. Besides, documents are often
interlinked or altered.
Therefore, it is desirable to have the original to see if alterations are part of the document or
are made subsequently. The explanations 1 and 2 to the definition of primary evidence
specify the scope of primary evidence.
Section 62. Primary evidence
Primary evidence means the document itself produced for the inspection of the
Court.
Explanation 1.
Where a document is executed in several parts, each part is primary evidence of the
document. Where a document is executed in counterpart, each counterpart being executed
by one or some of the parties only, each counterpart is primary evidence as against the
parties executing it.

1. 'Document is executed in several parts'

An instrument is said to be executed in several parts when it is written out and executed, i.e.,
signed or sealed, as the case may be, by all the parties to the instrument as many times over
as there are parties, each party retaining one writing thus signed (Woodroffe). Any one
of them may be produced as primary evidence of the contents of the document. The
duplicates of partition deed executed and registered along with it whereby properties are
treated in favor of several persons are to be treated as original itself having the same
operation and effect as that of the other.

2. 'Document is executed in counterpart'

A document is executed in counterparts when there are at least two parties to a
transaction. When each of the instrument is signed by one party only and delivered to the
other the documents are termed counterparts or duplicates. When a document is
executed in counterparts, each part is primary evidence against the executing party and his
privies, but as against the non-executing party and his privies, it is only secondary evidence.
Thus, if the transaction is a contract between A and B the document is copied out twice and A
alone signs one document, whilst B alone signs the other. A then hands to B the document
signed by himself and B hands to A the document signed by himself. Then as against A
document signed by A is primary evidence; whilst as against B the document signed by B is
primary evidence. A document was executed in two parts. The plaintiff was left with the
carbon copy which was executed in the very same process but was in fact a counterpart of
the original. It was held that the carbon copy was to be regarded as a primary evidence
under the section and produced as such. The party against whose interest the document was
sought be produced could challenge its genuineness or disprove the same. When an
instrument is executed by all the parties in duplicate or triplicate, and each party keeps one,

60
each instrument is treated as an original, and each is primary evidence of all others.

Explanation 2.
Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest;
but, where they are all copies of a common original, they are not primary evidence of the
contents of the original.

One uniform process – Illustrations

A police station diary contained duplicate pages. A carbon copy was prepared by the same
process by which the first Copy was prepared. Each was held to be the primary evidence of
the content of the rest. The accused was charged for allegedly giving fake visa after
charging money, it was pleaded on behalf of the accused that he is entitled to discharge as
the document of visa was a photocopy and thus secondary evidence. It was held by Delhi
High Court that in a given case where photocopy is used as the primary offending article, the
same would be a primary evidence for the purpose of trial of the said case.
Newspaper
One specimen of a newspaper is not a copy of another specimen of the same newspaper of
the same date. They are all originals, each being primary evidence of the contents of the
rest. For proving the publication of a libel in a newspaper, any copy of the issue in which
the libel appeared would be primary evidence of the publication, in all the other copies
of that issue. But if it were necessary to prove the original libel from which the article
was set up, the printed paper would not be primary, but only secondary evidence of the
manuscript and admissible only under the conditions which rendered the reception of
secondary evidence admissible. (Norton On Evidence 242).

Carbon Copies
Carbon copies being made by uniform process are originals. They are primary evidence of
each other but merely secondary evidence of the common original.

Application for grant of probate.

Section 276 of the Succession Act, 1925 requires that an application for probate or
letters of administration should be made with the "will" annexed, Since, this does not
necessarily mean the "original will”, a copy certified by the "sub-registrar was allowed
to be annexed.

Video evidence.
lt has been held that the permission of video evidence is a discretionary matter and not
confined to a limited set of circumstances like pressing need, such as when a witness was
too ill to attend. Thus, even a fugitive plaintiff was allowed to give video evidence for
enforcing his civil right to a money claim.

CCTV footage.
The Court has the power to view CCTV footage and video recordings, be it primary or
legally admissible secondary evidence, in the presence of the accused for satisfying itself as
to whether the individual seen in the footage is the accused in the dock.

Live Television Link and video conference.

The general policy of the court should be to discourage litigants from escaping the normal
processes of the law. The relevant considerations in deciding whether to make a video
conference link order includes:
(i)the nature of the offence for which the witness risked arrest and whether he had already
been convicted of it;
(ii) the nature of any civil claim in which the witness ought to give his evidence by video
conference link and any relationship between the claim and the offence;
(iii) the witness's role in the proceedings;
(iv) the importance of the claim to the witness and the possibilities of litigating it

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 elsewhere; and
(v) the likely disadvantage of video conference link evidence compared to live evidence. In
the instant case, it had been wrong to make an order.
UNIT 4

1. Explain the provisions of Indian Evidence Act relating to Burden

of proof
Introduction
In a case, many facts are alleged, and they need to be proved before the court can base its
judgment on such facts. The burden of proof is the obligation on a party to establish such
facts in issue or relevant facts in a case to the required degree of certainty in order to
prove its case. For example, in a case of murder, prosecution may allege that all the
conditions constituting a murder are fulfilled. All such conditions are facts in issue and there
is an obligation to prove their existence. This obligation is a burden of proof.
Reference
Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of "burden of
Proof".
Definition
The word 'burden of proof' has not been defined in the Evidence Act. The burden of proof
means the obligation to prove a fact. Each party has to establish a fact which goes in his
favor or against his opponent and this is the burden of proof.
Extent of Proof
The rule of burden of proof in civil and criminal cases is of different nature.
1.Civil Action – preponderance of evidence [evidence of greater weight or more convincing
than that which is offered to refute it]
2.Criminal Action – proof beyond reasonable doubt [that degree of proof which produces
conviction in an unprejudiced mind]
This means that the judge or jury must be able to answer “no” to the question “Is there any
reasonable possibility that the accused is not guilty?” before they can find the accused guilty.
Why does the standard of proof have to be higher in a criminal court? This is because
it is better to let 10 guilty persons escape rather than that one innocent person suffers.
On whom does the Onus Lie?
The important question is who is supposed to prove the various facts alleged in a case. In
other words, on whom should the burden of proving a fact lie? The general rule in
criminal cases is that the accused is presumed innocent. Section 105 specifies an exception
to this general rule. When an accused claims the benefit of the General Exception clauses of
IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an
accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that
he was insane at the time of committing the crime.
Shifting of Onus
The Supreme Court in Abdulla Mohammed v. State explained the difference between
“Burden” and “onus”, it was held that “Burden of proof lies upon the person who has to
prove a fact and it never shifts, but the Onus of proof shifts”. Such a shifting of Onus is a
continuous process in evaluation of evidence. So basically, the burden lies on the
Prosecution but there are times when the accused is called upon to prove that his case
falls under an exception. Then the onus is on the accused and it is considered as
discharged if the accused person succeeds in proving the preponderance of probability in
his favor and he need not prove his stand beyond reasonable doubt. Thus, the burden of
prosecution never shifts in a criminal case. Whenever a reasonable doubt appears on the
face of record, it goes to accused. ‘Benefit of doubt’ is a right of accused. Rules The rules
for allocation of burden of proof are governed primarily by the provisions in Section 101 to
105 of IEA. The rules propounded by these sections can be categorized as General rules
and Specific rules.

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General rules
Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact. It
says that whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those facts exist.
For example, A desires a Court to give judgment that B shall be punished for a crime which A
says B has committed. A must prove that B has committed the crime. However, it is not
very simple to categorize a fact as asserting the affirmative. For example, in the case of
Soward vs Legatt, 1836, a landlord suing the tenant asserted that the tenant did not repair
the house. Here, he was asserting the negative. But the same statement can also be
said affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER
observed that In ascertaining which party is asserting the affirmative the court looks to the
substance and not the language used. Looking at the substance of this case, the plaintiff
had to prove that the premises were not repaired. Thus, the court should arrive at the
substance of the issue and should require that party to begin who in substance, though may
not be in form, alleges the affirmative of the issue. The next rule determines who has
the onus of proof.
Rule 2 - As per Section 102, the burden of proof in a suit or proceeding lies on that
person who would fail if no evidence at all were given on either side. The following
illustrations explain this point Illustration 1 - A sues B for land of which B is in possession, and
which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on
either side, B would be entitled to retain his possession. Therefore, the burden of proof is
on A.
Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact
is the one who is supposed to prove that fact unless it is provided by any law that the proof
of that fact shall lie on any particular person. For example, A prosecutes B for theft, and
wishes the Court to believe that B admitted the theft to C. A must prove the admission.
Further, as specified in Section 104, if a person wants the court to believe in a fact that
assumes the existence of another fact, it is up to the person to prove the other fact
also. For example, A wishes to prove a dying declaration by B. ‘A’ must prove B's death.
‘A’ wishes to prove, by secondary evidence, the contents of a lost document. A must prove
that the document has been lost.
Specific Rules
These rules specifically put the burden on proving certain facts on particular persons -
Rule 1 - As per Section 106, when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. When a person does an act with some
intention other than that which the character and circumstances of the act suggest, the
burden of proving that intention is upon him. For example, A is charged with traveling on a
railway without a ticket. The burden of proving that he had a ticket is on him.
S.113.Proof of cession of territory
A notification in the Official Gazette that any portion of British territory has before
the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been
ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession
of such territory took place at the date mentioned in such notification.
Rules of Presumption
Court presumes the existence of certain things. For example, as per Section 107/108, court
presumes that a person is dead or alive based on how long he has not been heard of.
Section 109, presumes that when two people have been acting as per the relationship of
landlord - tenant, principal - agent, etc, such relationship still exists and anybody who
contends that such relationship has ceased to exist has to provide proof. Section 110
presumes that the person who has the possession of a property is the owner of that property.
Proof of good faith in transactions where one party is in relation of active confidence.
Where there is a question as to the good faith of a transaction between parties, one of whom
stands to the other in a position of active confidence, the burden of proving the good
faith of the transaction is on the party who is in a position of active confidence.

63
Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the
client. The burden of proving the good faith of the transaction is on the attorney.
S111A (Amendment 1984). Presumption as to certain offenses.
Where a person is accused of having committed any offense like a criminal conspiracy and
the person was present in an area of disturbance, it shall be presumed he has committed the
offence.
Birth during marriage, conclusive proof of legitimacy The fact that any person was born
during the continuance of a valid marriage between his mother and any man, or within two
hundred and eighty days after its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of 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 As per Section 113A, When the question is whether the commission of suicide
by a woman had been abetted by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of seven years from the date of
her marriage and that her husband or such relative of her husband had subjected her to
cruelty, the court may presume, having regard to all the other circumstances of the case,
that such suicide had been abetted by her husband or by such relative of her husband.
As per Section 113B, when the question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such woman had been subjected by
such person to cruelty or harassment for, or in connection with, any demand for dowry, the
court shall presume that such person had caused the dowry death. Thus, when the
presumption of the court is in favor of a party, the burden of disproving it rests on the
opposite party.
S. 114.Court may presume existence of certain facts
The Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.
Illustration
The Court may presume -

(a) That a man who is in possession of stolen goods after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his possession;
But the Court shall also have regard to such facts as the following, in considering whether
such maxims do or do not apply to the particular case before it -
As to illustration (a)—A shop-keeper has in his till a marked rupee soon after it was
stolen, and cannot account for its possession specifically, but is continually receiving rupees
in the course of his business;
S.114A.Presumption as to absence of consent in certain prosecutions for rape.
In a prosecution for rape, 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.
Case law
Nawab Khan vs State 1990 cr l j. 1179, it was held by the court the moment the person with
whom sexual intercourse is committed, disposes before the court that she did not give the
consent to sexual intercourse, then the court shall presume that there was no consent. In
such a case if the accused claimed that there was consent then he has to prove that the
person consented to the sexual intercourse.
Exceptions -
Exception 1 - Section 105 When an accused claims the benefit of the General Exception
clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For
example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused

64
to prove that he was insane at the time of committing the crime.
Case Law
In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In this
case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while Nanavati
claimed innocence on account of grave and sudden provocation. The defence's claim was
that when Nanavati met Prem at the latter's bedroom, Prem had just come out of the bath
dressed only in a towel; an angry Nanavati swore at Prem and proceeded to ask him if he
intends to marry Sylvia and look after his children. Prem replied, "Will I marry every woman I
sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed in a
brown packet, Nanavati too went for it and in the ensuing scuffle, Prem's hand caused the
gun to go off and instantly kill him. Here, SC held that there is a presumption of innocence
in favor of the accused as a general rule and it is the duty of the prosecution to prove the
guilt of the accused beyond any doubt. But when an accused relies upon the general
exception or proviso contained in any other part of the Penal Code, Section 105 of the
Evidence Act raises a presumption against the accused and also throws a burden on him to
rebut the said presumption. Thus, it was upon the defence to prove that there existed a grave
and sudden provocation. In absence of such proof, Nanavati was convicted of murder.
Exception 2 - Admission - A fact which has been admitted by a party and which is against the
interest of that party, is held against the party. If the fact is contested by the party, then the
burden of proof rests upon the party who made the admission.
For example, A was recorded as saying that he committed theft at the said premises. If A
wants to deny this admission, the burden of proof rests on A to prove so.
2. Court may presume existence of certain facts. Discuss.
Introduction
Presumptions are inferences which are drawn by the court with respect to the existence of
certain facts. When certain facts are presumed to be in existence the party in whose favor
they are presumed to exist need not discharge the burden of proof with respect to it.
This is an exception to the general rule that the party which alleges the existence of certain
facts has the initial burden of proof but presumptions do away with this requirement.
A presumption is said to operate where certain fact are taken to be in existence even there is
no complete proof. A presumption is a rule where if one fact which is known as the primary
fact is proved by a party then another fact which is known as the presumed fact is taken as
proved if there is no contrary evidence of the same.
Reference: Section 114, 4 Section 4: "May presume"
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 proof of it.
"Shall presume". Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.

Section 114. Court may presume existence of certain facts.

The Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume ––
(a) that a man who is in possession of stolen goods soon after the theft is either the thief
or has received the goods knowing them to be stolen, unless he can account for his
possession;
(b) that an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good
consideration;
(d) that a thing or state of things which has been shown to be in existence within a period
shorter than that within which such things or states of things usually cease to exist, is still in

65
existence;
(e) that judicial and official acts have been regularly performed;
(f)that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be unfavorable to
the person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law,
the answer, if given, would be unfavorable to him;
(i)that when a document creating an obligation is in the hands of the obligor, the obligation
has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether
such maxims do or do not apply to the particular case before it: ––
as to illustration (a) –– a shop-keeper has in his bill a marked rupee soon after it was
stolen, and cannot account for its possession specifically, but is continually receiving rupees
in the course of his business;

as to illustration (b) ––A, a person of the highest character is tried for causing a man’s death
by an act of negligence in arranging certain machinery. B, a person of equally good character,
who also took part in the arrangement, describes precisely what was done, and admits and
explains the common carelessness of A and himself;

as to illustration (b) –– a crime is committed by several persons. A, B and C, three of the

criminals, are captured on the spot and kept apart from each other. Each gives an
account of the crime implicating D, and the accounts corroborate each other in such a
manner as to render previous concert highly improbable;

as to illustration (c) –– A, the drawer of a bill of exchange, was a man of business. B, the
acceptor, was a young and ignorant person, completely under A’s influence;

as to illustration (d) –– it is proved that a river ran in a certain course five years ago, but it is
known that there have been floods since that time which might change its course;
as to illustration (e) –– a judicial act, the regularity of which is in question, was performed
under exceptional circumstances;

as to illustration (f) –– the question is, whether a letter was received. It is shown to have been
posted, but the usual course of the post was interrupted by disturbances;

as to illustration (g) –– a man refuses to produce a document which would bear on a

contract of small importance on which he is sued, but which might also injure the feelings
and reputation of his family;

as to illustration (h) –– a man refuses to answer a question which he is not compelled by law
to answer, but the answer to it might cause loss to him in matters unconnected with the
matter in relation to which it is asked;

as to illustration (i) –– a bond is in possession of the obligor, but the circumstances of the case
are such that he may have stolen it.
114A. Presumption as to absence of consent in certain prosecution for rape.
In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause
(f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-
section
(2) of section 376 of the Indian Penal Code (45 of 1860), 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.

Case law
Nawab Khan vs State 1990 cr l j. 1179, it was held by the court the moment the person with
whom sexual intercourse is committed, disposes before the court that she did not give the

66
consent to sexual intercourse, then the court shall presume that there was no consent. In
such a case if the accused claimed that there was consent then he has to prove that the
person consented to the sexual intercourse.

3. Define Estoppel and explain its kinds

Reference:
Part III, Chapter VII containing Section 115 to 117 of the Indian Evidence Act 1872, lay down
the provisions relating to the "doctrine of Estoppel"
Meaning and Definition:
The expression 'Estoppel' is derived from the French word 'Estoup' which means, 'shut the
mouth". When a person by declaration (act or omission) makes/ induces another to believe a
thing, cannot deny its truth subsequently. Estoppel is rule of evidence, by which a person is
not allowed to plead the contrary of a fact or state of things, which he formally asserted as
existing.
Principle
Section 115 of the Indian Evidence Act, 1872 embodies the Principle of Estoppel, as
Follows....

When one person has by his declaration, act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belied, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing.
Illustration:
'A' intentionally and falsely leads 'B' to believe that certain land belongs to 'A' and thereby
induces 'B' to buy and pay for it. The land afterwards becomes the property of ’A’ and A
seeks to set aside the sale on the ground that, at the time of the sale, He had no title. He
must not be allowed to prove his want of title. The principle of Estoppel says that a man
cannot approbate and reprobate, or that a man cannot blow hot and cold, or, again that a
man shall not say one thing at one time and later on say a different thing.
Kinds of Estoppel:

Under the Evidence Act, 1872, Estoppels are of eight kinds:

1.Estoppel by record;
2.Estoppel by deed;
3.Estoppel by conduct;
4. Estoppel by Agreement or Contract
5.Equitable estoppel;
6.Estoppel by negligence;
7.Estoppel on benami transactions; and
8.Estoppel on a point of law

i) Estoppel by Record:
It results from the judgment of a competent court. If a judgment has become final, a party to
the dispute has no right to say against the judgment. It is contained in Sections 40 to 44 of
the Indian Evidence Act.
ii) Estoppel by Deed
If a person makes a statement in a deed he cannot say the opposite of it later. It means
when a person enters into an agreement, and his statement is furnished therein, he shall not
be permitted to deny his statement.
iii) Estoppel by Conduct - Section 115
When a person, by acts or words or deeds induces another person to believe the existence of
a things and make him to act upon it he is estopped from denying the existence of such

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facts.
iv) Estoppel by Agreement or Contract
Ss. 116 and 117 deals with estoppel by agreement or contract
Section 116 - Estoppel of tenants and of licensee of person in possession.
No tenant of immovable property shall, during the continuance of the tenancy, be permitted
to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to
such immovable property; and no person who came upon any immovable property by the
licence of the person in possession there of shall be permitted to deny that such person had a
title to such possession at the time when such licence was given. The doctrine is generally
recognized that a tenant is estopped, while the tenancy continues, to deny the title of his
landlord.
Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee.
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to
draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that
his bailor or licensor had, at the time when the bailment or licence commenced, authority
to make such bailment or grant such licence.
Explanation (1).
The acceptor of a bill of exchange may deny that the bill was really drawn by the person by
whom it purports to have been drawn.
Explanation (2).
If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such
person had a right to them as against the bailor.
5. Equitable estoppel
The Evidence Act is not exhaustive of the rules of estoppel. Thus, although S. 116 only deals
with the estoppel that arises against a tenant or licensee, a similar estoppel has been held to
arise against a mortgagee, an executor, a legatee, a trustee, or an assignee of property,
precluding him from denying the title of the mortgagor, the testator, the author of the trust,
or the assignor, as the case may be. Estoppels which are not covered by the Evidence
Act may be termed equitable estoppels.

6. Estoppel by negligence;
To raise an estoppel under this rule there is required the presence of three elements:
(1) a neglect of some duty owed, to the person misled or to the public in general;

(2) the neglect must be in the transaction itself;

(3) the neglect must be the proximate cause of the estoppel-asserter's change of position.
(Mercantile Ваnk. Central Bank, (A.I.R, 1938 Privy Council, 52)
7. Estoppel on benami transactions;
If the owner of property clothes a third person with the apparent ownership and a right
of disposition thereof, not merely by transferring it to him, but also by acknowledging
that the transferee has paid him the consideration for it, he is estopped from asserting his
title as against a person to whom such third party has disposed of the property and who has
taken it in good faith and for value.
(Li Tse Shi v Pong Tse Ching, (A.I.R. 1935 P.C. 208)

8. Estoppel on a point of law

Estoppel refers to a belief in a fact, and not in a proposition of law. A person cannot be
estopped for a misrepresentation on a point of law. An admission on a point of law is not
an admission of a “thing” so as to make the admission matter of estoppel. Where
persons merely represent their conclusions of law as to the validity of an assumed or
admitted adoption, there is no representation of a fact to constitute an estoppel. The
principle of estoppel cannot be invoked to defeat the plain provisions or a statute. There

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is no estoppel against an Act of Legislature. Thus, if a minor represents himself to be of
the age of majority, and thereafter enters into an agreement, the agreement is void, and
the minor is not estopped from pleading that the agreement is void ab initio, as he was, in
truth, a minor at the date of making the contract. Estoppel only applies to a contract inter
partes, and it is not open to parties to a contract to estop themselves or anybody else in the
face of an Act. The rule of estoppel is one of evidence. It cannot prevail against a plain and
mandatory provision of law. The Supreme Court has observed that the doctrine of
estoppel does not operate where the mandatory conditions laid down by law on grounds of
public policy are ignored. Thus, estoppel would not apply against a sanction obtained by fraud
or by collusion between the parties. (S.В. Noronah v. Prem Kumari Khanna, (1980) 1 S.C.C.
52)
Other kinds of estoppel
a) Constructive estoppel:
This phrase is rarely used, and it is submitted that it is wrongly used. The adjective
"constructive" is used in cases where the true state of affairs is different from what is
construed to be.For example, under the Transfer of Property Act, registration of a document
operates as constructive notice of its contents. A man may really know nothing of the
document or its contents, but because it is registered, it is construed as if everyone has
such knowledge - because if one wanted to have such knowledge he could obtain it. The
adjective is inappropriate when used with Estoppel. Either the conditions of Estoppel are
present in which case the principle operates, or they are not present and the principle will
not operate.
b) Estoppel by election
This arises in cases where there is a plurality of gifts or rights which are inconsistent or
alternative and the party who makes the gifts or creates the rights, shows by and express or
implied action that the person taking the gift or claiming the right should enjoy one of
them, but not both of them.
Having made his choice, the person choosing cannot go back upon it and later attempt to
choose the other. It also rises in cases where a person cannot approbate or reprobate
under the same instrument.
c) Estoppel by silence:
Such Estoppel arises only when there is a duty to speak or disclose

If A and B are parties to a litigation and A contends that B is estopped from raising a
particular plea and B, in his turn, contends that A is estopped from raising another plea, and
each establishes a case for the application of the principle of Estoppel, then it is as if the
two estoppels cannot out, and the court will have to proceed as if there is no such
plea on either side.
Relevant Case Laws:
Satnam Gowda vs beherampur University 1990 SC 107 1990 (3) SCC 23. In this case the
Appellant, a student was admitted to law course at Ganjam Law College. There was no
dispute that at the time of admission he had submitted his marksheet. He studied for 2 years
and was admitted to final year course. His result of Pre-law and intermediate examinations
was withheld on the ground that he was ineligible for admission as he secured 39.5% marks in
M.A. examination. Overruling the High Court decision, the Supreme Court held that
Estoppel would apply. The Court also pointed out that there was requirement of
minimum marks 40% of marks for graduates only. There was no requirements of any
percentage of marks for postgraduates. There was no Fraud or misrepresentation on the
part of the candidate
Case Law 2
In a case, a judge, who has showed high age in his certificates right from the beginning of his
career, sought to deny it by showing actual municipal birth records, so as to retire at a later
age. Held that the judge is estopped.
Case Law 3

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In another case, the wife was of Buddhist faith and the husband a Muslim. She sought a
divorce under Buddhist law. Held that she was estopped from denying her earlier committal
to Islamic law.
Resjudicata and Estoppel

Some jurists say that resjudicata is a part of the doctrine of estoppel. But the doctrine of
resjudicata and the doctrine of estoppel essentially differ from each other. Estoppel is the
doctrine of law of evidence and prevents any party from blowing hot and cold at different
occasions according to his sweet will. On the other hand, res judicata prevents a person
from harassing other by successive litigations on the same cause. The points of difference
may be better explained by the following tabular form.
Resjudicata/Estoppel
1.The principle of resjudicata is a part of law of procedure and is founded on the ground of
public policy that there should be an end to the litigation. It is contained in section 11 of
CPC.
On the other hand, the principle of estoppel is a part of law of Evidence and founded on
the principle of equity that one should not be permitted to say different things at different
occasions. It is contained in section 115 of the Indian Evidence Act.
2.The Doctrine of resjudicata is the result of a decision of a Court of law. Whereas doctrine
of estoppel is the result of the act of parties.
3. Resjudicata ousts the jurisdiction of Court and prohibits the Court from trying any matter or
issue already finally decided.
Whereas estoppel is only a rule of evidence and prohibits a party from proving a different
fact, other than what he stated earlier, by adducing evidence.

4. The truth of the former decision is conclusively presupposed by the plea of

resjudicata.
The rule of estoppel prevents a person from denying what he once induced another to believe
to be true and to act upon it.

5.Resjudicata binds both the parties to a litigation.

Estoppel binds only that party who made the previous statement.

6.The doctrine of resjudicata aims at bringing an end to the litigation.

The doctrine of estoppel aims at keeping a party at only one point what he stated to be true
and induced another to act upon such belief.

7.Resjudicata shuts the door of a person to open it for agitating the same cause in successive
litigations.
On the other hand, estoppel shuts the mouth of a person to speak hot and cold at different
occasions.

4. What are Presumptions? Explain Presumption in Rape and Dowry

Deaths Cases.

Introduction
Most of criminal law is based on what society perceives as common-sense standards of
acceptable or non-acceptable behavior in a given situation. For example, murder is a crime
in all cultures and societies, because no one wants to risk getting deprived of his life at little
or no notice. Same reasoning would apply to lesser crimes like theft — that one cannot
deprive another person of property or money by theft/cunning/deceit etc. Now, is it
possible to declare someone a murderer or thief with no real evidence of him having been
involved in a theft? The answer is No. But there is another class of crimes called crimes
against women, or matrimony related situations, where law allows a presumption to be
made without a prima-facie evidence in favor of that presumption.
The presumption can be rebutted with contradicting evidence.
Presumption

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A legal inference that must be made in light of certain facts. Most presumptions are
rebuttable, meaning that they are rejected if proven to be false or at least thrown into
sufficient doubt by the evidence. Other presumptions are conclusive, meaning that they
must be accepted to be true without any opportunity for rebuttal. Presumption can apply
to both presumption of law and facts. Here, we discuss about presumption of law.
Ignorance of the presumptions in law can be hurtful to those accused or complained against,
and can be used lawfully, by the complainant or petitioner.

Presumption in criminal law for crimes against women Reference:

Presumption in crime of Rape (IPC 376) Section 114A of Indian Evidence Act.

Section 114A: This section deals with ‘presumption as to absence of consent in certain
prosecutions for rape. It reads as follows:

114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e),
clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or
clause (n) of sub- section (2) of section 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. This
section was inserted by the Criminal Law (Amendment) Act 1983 (43 of 1983) w.e.f.
25.12.1983. This section was introduced because of the increasing number of acquittals of
accused in cases of rape. If she had been raped at a place where n one could have
witnessed – as it happens in most cases – the prosecution would find it difficult to prove
the offence beyond reasonable doubt. Sometimes, medical or DNA evidence is available
and more often, it is not available. The presumption is mandatory but is rebuttable.
Supreme Court Case Laws
In Gagan Bihari Savant vs. State of Orissa: 1991(3) SCC 562 the evidence of the prosecutrix
showed that she had protested and struggled while she was subjected to forcible sexual
assault by accused persons. It was held that evidence showed absence of consent on the part
of the victim, even apart from the legal presumption under sec. 114-A. The Supreme Court
confirmed the conviction of all the persons involved in the gang-rape.

But, in a recent case in Dilip vs. State of M.P.: 2001(9) SCC 452, the presumption was raised
but it was held that in view of the infirmities in the evidence, the place of rape was not
proved. It was held that while the sole testimony of the prosecutrix could be acted
upon and made the basis of conviction without being corroborated in material particulars,
in view of the infirmities in the sole testimony of the prosecutrix which contradicted the
medical evidence as well as the evidence of the aunt of the victim to whom she had
narrated the incident soon after the commission of the rape, it was difficult to accept that
consent was not there. On the question of consent, though presumption under sec. 114A was
raised, no finding, it was held, need be recorded because of the finding that the prosecutrix
was a willing party. The appeal was allowed and the appellant was acquitted in the
Supreme Court.

Presumption in Dowry Death (IPC 304B) Section 113-B:

This section deals with ‘Presumption as to dowry death’. It reads as follows:

“113-B. When the question is whether a person has committed the dowry death of a woman
and it is shown that soon before her death such woman had been subjected by such
person to cruelty or harassment for, or in connection with, any demand to dowry, the
court shall presume that such person had caused the dowry death.
Explanation: For the purpose of this section, ‘dowry death’ shall have the same meaning as in
sec. 304-B of Indian Penal Code’. Under the section, it is first necessary to prove that such
woman has been subjected by such person to cruelty or harassment and secondly, such
cruelty should have been or in connection with any demand for dowry and thirdly that this
must have been soon before her death. If these are proved, the court ‘shall presume’ the

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person caused the dowry death. Of course, the words ‘shall presume’ mean that the court is,
in such circumstances, bound to presume that such person had caused the dowry death but
still the presumption is rebuttable. While examining the constituents of dowry death
the court held that:
(a) when the death of a woman is caused by any burns or bodily injury; or
(b) occurs otherwise than under normal circumstances;
(c) and the aforesaid two facts spring within seven years of girl's marriage;
(c) and soon before her death, she was subjected to cruelty or harassment by her husband or
his relative;
The need for insertion of section 113-B as also sec. 304B in the Penal Code has been stated in
the 91st Report of the Law Commission (1983) on ‘Dowry Deaths and Law Reform’.
Case Laws
In Shamlal vs. State of Haryana: AIR 1997 SC 1830, the Supreme Court had occasion to deal
with sec. 113-B. It stated that it is imperative, for invoking the presumption under sec. 113-B,
to prove that ‘soon before her death’ she was subjected to such cruelty or harassment. Where
the prosecution could only prove that there was persisting dispute between the two sides
regarding the dowry paid or to be paid, both in kind and in cash, and on account of the
failure to meet the demand for dowry, the wife was taken by the parents to their house
about one and a half years before her death and further that an attempt was made to
patch up between the two sides for which a panchayat was held in which it was resolved
that she would go back to the nuptial home pursuant to which she was taken aback by the
husband in his house about 10-15 days prior to the occurrence, but there was nothing on
record to show that she was either treated with cruelty or harassed with the demand for
dowry during the period between her having been taken to the parental home and her death,
it is not permissible to take recourse to the legal presumption under sec. 113B.
Irrespective of the fact whether the accused has any direct connection with the death or
not, he shall be presumed to have committed dowry death provided the ingredients of the
section have been proved. Where the death of the wife was concurrently found to be
unnatural viz. by strangulation, and there was demand for dowry and also there was
cruelty on the part of the husband, the presumption under sec. 113B must be held to be
rightly drawn (Hemchand vs. State of Haryana AIR 1995 SC 120).

In Gurbachan Singh vs. Satpal Singh: 1990 Crl LJ 562 (SC), the circumstantial evidence
showed that the wife was compelled to take the extreme step of committing suicide as the
accused person had subjected her to cruelty by constant taunts, maltreatment and also by
alleging that she had been carrying an illegitimate child. The suicide was committed within
seven years after the marriage. The Supreme Court held that presumption under sec. 113-
B could be drawn. In a case where the parents and the brother of the victim girl were not
informed of the death and the accused hurriedly cremated the dead body, the presumption
was held attracted: (Shanti vs. State of Haryana) (1991 Crl LJ 5 1713 (SC).
In this connection, it may be noted that there are a few differences between sec. 113-A and
sec. 113-B. Whereas in sec. 113-A, the legislature used the words ‘may presume’ and the
words ‘having regard to all the circumstances of the case’, sec. 113B uses the words ‘shall
presume’ and does not use the words ‘having regard to all the circumstances of the case’.
On the other hand, sec. 113B uses the words ‘soon before the death’ and these words are
absent in sec. 113A. Section 113B deals with dowry death under sec. 304-B, while sec.
113A deals with ‘abetment of suicide’. We do not think that sec. 113-B should use the
words ‘may presume’ or ‘having regard to all the circumstances of the case’. Having
regard to the fact that in spite of all the new provisions introduced in 1986, dowry deaths
are still a regular feature, the existing provision of ‘shall presume’ must, in our view, be
retained. As stated earlier, even so, the presumption is rebuttable. We, therefore, do not
suggest any amendment to sec. 113-B.

5. Explain the presumption as to Legitimacy of a Child

Introduction
Section 112 of Indian Evidence Act is similar to the generally held presumption in laws of
many countries, which presumes a child born during marriage to be fathered by the husband

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and makes it difficult for a man to raise questions about paternity of his child. It
doesn’t use the word presume or presumption as such, but the words conclusive proof shows
that the intention is in nature of shall presume rather than may presume. But of
course, it can be rebutted if good evidence is provided in support of assertion that the
husband had no access to wife.
112. Birth during marriage, conclusive proof of legitimacy.
The fact that any person was born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its dissolution, the
mother remaining unmarried, shall be conclusive proof that he is the legitimate son of 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. This section lays rules in existence with
the rules of natural justice. The legal presumption of paternity is applicable only to the
offspring of a married couple. It also assumes the existence of legal marriage. Under this
section, there is a conclusive presumption that a child born during the continuance of a valid
marriage is a legitimate issue of parents, no matter, how soon the birth is, after the marriage.
The husband who is strongly disputing the point of legitimacy of the child, can only rebut on
the issue of legitimacy which is deemed. Though it is a strong presumption, it is not a
conclusive presumption. It can be rebutted also by proving that, at the time when the
children or any of them could have been conceived, the husband could not have had
access to his wife.

Where a married woman had admittedly lived for year with a man other than her husband
and they both had admitted that he was the father of her children born during that time, the
presumption of legitimacy was held to have been rebutted. In the Roman law according
to the well-known maxim Pater Est Quem Nuptioe Demonstrant (he is the father whom the
marriage indicates) the presumption of legitimacy is that a child born of a married woman
is deemed to be legitimate, and the person who says it is illegitimate has the burden of
proving it. The section has no application over the dispute of maternity. In a case, the
fact of customary marriage between father and his first wife was difficult to prove because it
was performed 40 years back, which was way long. There was evidence, which revealed the
fact they lived together as wife and husband, and the appellant came to be born from
such wedlock, the presumption of the marriage being a valid marriage and so, the appellant
being born legitimately. Blood test is an important piece of evidence to determine the
paternity of the child. Though by a blood test it cannot positively establish the paternity of the
child, it can certainly exclude a certain individual as the father of the child. Therefore,
while the negative finding in a blood test is definite, the positive finding only indicates a
possibility. Now the DNA fingerprinting test has been much advanced and resorted to by the
courts of law to resolve the dispute of paternity of the child.
A presumption is always in favor of legitimacy.
To brand a child as illegitimate, it must be satisfactorily established that the birth of the child
was clearly the result of an adulterous intercourse. Proof of adulterous attitude must be
clear and satisfactory. The party who alleges it must prove it. The standard of proof required
for proving adultery and illegitimacy is similar to the standard required for proof of guilt
in a criminal case. According to Mohammedan Law, a Mohammedan child, born within six
months of the parents' marriage, would be presumed to be illegitimate under the
Mohammedan law. It would be presumed to be legitimate under this section, if it were born
during the continuance of the parent's marriage. According to Hindu law, to render a
child legitimate, the procreation should take place after marriage. It is enough that the
birth takes place after marriage, though the procreation was before.

This section consists of two parts.

The, first part deals with the birth of a child during the continuance of a valid-marriage
between a man and a woman; and the second part deals with the birth of a child during 280
days after the dissolution of that marriage.
For example, if the pregnancy of a woman was concealed, and a child was born to her within
about four months of her marriage and she had been-driven out by the husband within a few
days after marriage, it was held that no presumption can be raised inside this
section. Where a child is born during the continuance of a marriage, and the husband

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disowning the child fails to establish non-access to his wife beyond all reasonable doubts,
then the presumption of legitimacy is available. In Prem Singh v Dalla Devi Where the
marriage subsisted between the parties and the wife said that she had sexual intercourse
with her husband on 28 December 1979 and, the child was born on 2 August 1980, and
the husband failed to prove non-access, it was held that the evidence by the husband for
disproving legitimacy and that he did not have sexual intercourse with the wife on 28
December 1979 alleged by the wife, is barred. In the case of Sharmila Devi v Shankar Das,
the two spouses had access to each other after marriage for a number of days and the child
was born after six months of the marriage. The Himachal Pradesh High Court held the child
as legitimate child. Where evidence of access is given, it requires the strongest evidence of
non-intercourse or other proof beyond reasonable doubt to justify a judgment of
illegitimacy.
The presumption is rebuttable.

In Ganashyam Chaturvedi v Radha Devi Where the child is born marriage, after 175 days after
first intercourse and access of husband to the wife before marriage is not proved, the
presumption under s 112 of the Evidence Act is not available and the child must be held
an illegitimate child.

The word 'begotten' used in s 112 of the Act means 'conceived' and not 'born'.
The emphasis on birth during wedlock as against conception is there in s 112 for the reason
that as a general rule, it is the birth after marriage, which confers legitimacy on a child until
its contrary is not proved. Under the second part of the section, a child born within 280 days
from the dissolution of a valid marriage will be presumed to be legitimate. So, in the
case of widowhood, though cohabitation is not possible, the law will presume in favor of
chastity of a woman and legitimacy of a child. Where a child born some 365 days after
the last period at which he could have been begotten by the husband of his mother and 357
days after the death of the husband, was set as legitimate, it was held that
although such period of gestation was perhaps not absolutely beyond the bounds of
possibility, yet there being evidence that the mother had been married to her husband for 10
years without having had any children by him, and also evidence which pointed strongly to
the conclusion of immorality on the part of the mother, the only reasonable finding was the
illegitimacy of the child. The presumption of a child born within 280 days of the dissolution of
the marriage, being legitimate is subject to the condition that the woman remains
unmarried. If the woman remarries before the birth of the child, the second part of the
section would have no application. The child would be presumed to be the legitimate child of
the second husband under the first part of the section unless it is shown that the second
husband had no access to the woman at any time when the child could have been
begotten. When a child was born within 5 months after the disillusionment of
marriage presumption of legitimacy of the child arises. The burden shifts on the husband to
prove that it was impossible to have access with the divorced wife and so it is a
illegitimate child. In this rule 'access' and 'non-access' mean the existence or non-existence
of opportunities for sexual intercourse; it does not mean actual cohabitation. The section
has to be applied with reference to the facts and circumstances of each case. So, it differs
from one case to another.
The word 'access' in this section means 'effective access'.

Physical incapacity to procreate, if established, amounts to non-access within the meaning of

this section. The presumption under this section is the conclusive presumption of law. It can
be only displaced by the proof of non-access between the parties to the marriage when
the child could have been begotten. One can prove non-access saying that he had no
intercourse with his wife and he is impotent.

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