JudiSure Law of Evidence

Briefs
Notes For Judicial Services
Examination

1|Page
CONTENTS

NATURE OF LAW OF EVIDENCE ..................................................................................................................... 06

THREE PRINCIPLES OF EVIDENCE LAW… ..................................................................................................... 06
RULES OF A CRIMINAL TRIAL… ....................................................................................................................... 06
APPLICATION OF THE ACT .............................................................................................................................. 06
SECTION 3: DEFINITIONS…............................................................................................................................... 06
SECTION 4: “PRESUME” ...................................................................................................................................... 09
SECTION 5: RELEVANCY OF FACTS… ................................................................................................................10
RELEVANCY & ADMISSIBILITY………………………………………………………………………………………………………..…………10
SECTION 6: RES GESTAE ...................................................................................................................................... 11
SECTION 7: FACTS WHICH ARE THE OCCASION, CAUSE, OR EFFECTS OF FACTS IN ISSUE…………….12
SECTION 8: MOTIVE – PREPARATION- CONDUCT…………………………………………………………12
SECTION 9: FACTS NECESSARY TO EXPLAIN OR INTRODUCE RELEVANT FACTS…..............................13
TEST IDENTIFICATION PARADE ....................................................................................................................... 13
SECTION 10: PROVING CONSPIRACY ................................................................................................................ 14
SECTION 11: INCONSISTENT FACTS… ............................................................................................................... 14
SECTION 12: DAMAGES IN A CIVIL SUIT ......................................................................................................... 15
SECTION 13: RIGHT OR CUSTOM… ................................................................................................................... 15
SECTION 14: STATE OF MIND OR BODY ......................................................................................................... 15
SECTION 15: SERIES OF SIMILAR OCCURRENCES ......................................................................................... 16
SECTION 16: COURSES OF BUSINESS… ............................................................................................................ 17
SECTION 17 TO 31: ADMISSIONS & CONFESSIONS… ...................................................................................... 17
SECTION 18, 19, & 20: ADMISSIBLE ADMISSIONS ............................................................................................18
SECTION 18: ADMISSION BY PARTY TO PROCEEDING OR HIS AGENT ....................................................18
SECTION 19: ADMISSIONS BY PERSONS WHOSE POSITION MUST BE PROVED AS AGAINST PARTY
TO SUIT .................................................................................................................................................................. 18
SECTION 20: ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO BY PARTY TO SUIT[REFREES]..19
SECTION 21: PROOF OF ADMISSIONS AGAINST PERSONS MAKING THEM, AND BY OR THEIR
BEHALF....................................................................................................................................................................19
SECTION 22: WHEN ORAL ADMISSIONS AS TO CONTENTS OF DOCUMENTS ARE RELEVANT……….19
SECTION 23: ADMISSION IN CIVIL CASES, WHEN RELEVANT ....................................................................19
SECTION 31: ADMISSIONS NOT CONCLUSIVE PROOF, BUT MAY ESTOP ......................................... ……20
SECTION 24 TO 30: CONFESSIONS… ................................................................................................................ 20
IRRELEVANT CONFESSIONS… ......................................................................................................................... 21
2|Page
SECTION 24: CONFESSION CAUSED BY INDUCEMENT, THREAT, OR PROMISE, WHEN IRRELEVANT
IN CRIMINAL PROCEEDINGS….......................................................................................................................... 21
CONFESSIONAL FIR ................................................................................................................................... 22
SECTION 26: CONFESSIONS BY ACCUSED WHILE IN CUSTODY OF POLICE NOT TO BE PROVED
AGAINST HIM ....................................................................................................................................................... 22
SECTION 27: HOW MUCH OF INFORMATION RECEIVED FROM THE ACCUSED MAY BE PROVED...22
SECTION 28: CONFESSIONS MADE AFTER REMOVAL OF IMPRESSION CAUSED BY INDUCEMENT,
THREAT OR PROMISE RELEVANT ................................................................................................................. 23
SECTION 29: CONFESSION OTHERWISE RELEVANT NOT TO BECOME IRRELEVANT BECAUSE OF
PROMISE OF SECRECY, ETC… ............................................................................................................................ 23
SECTION 30: CONFESSION BY CO-ACCUSED… .............................................................................................. 24
RETRACTED CONFESSIONS ....................................................................................................................... 24
EVIDENTIARY VALUE OF CONFESSIONS… .................................................................................................... 24
JUDICIAL CONFESSION… ................................................................................................................................24
EXTRA-JUDICIAL CONFESSIONS ................................................................................................................ 25

SECTION 32: DYING DECLARATION………………………………………………………………………………………………………..25

DYING DECLARATION-ESSENTIALS… ............................................................................................................ 26

SECTION 33: RELEVANCY OF EVIDENCE GIVEN BY WITNESS FOR PROVING, IN SUBSEQUENT
PROCEEDING, THE TRUTH OF FACTS STATED….................................................................................... …..27
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES ........................................................................ 27
RELEVANCY OF JUDGEMENT ............................................................................................................................ 28
EXPERT OPINION…............................................................................................................................................. 29
SECTION 45: WHEN THE COURT HAS TO FORM AN OPINION UPON A POINT OF ............................ 29
FOREIGN LAW .................................................................................................................................................... 29
MATTERS OF SCIENCE & ART .................................................................................................................... 29
IDENTITY OF HANDWRITING OR FINGER IMPRESSIONS… ...................................................................... 30
WHO IS AN EXPERT ..................................................................................................................................... 30
SECTION45A: OPINION OF EXAMINER OR ELECTRONIC EVIDENCE… .................................................... 31
SECTION 46: FACTS BEARING UPON OPINIONS OF EXPERT......................................................................31
SECTION 47: OPINION AS TO HANDWRITING, WHEN RELEVANT ........................................................... 31
SECTION 73: COMPARISON OF SIGNATURE, WRITING, OR SEAL WITH OTHERS ADMITTED
APPROVED .............................................................................................................................................................31
SECTION 47A: OPINION AS TO ELECTRONIC SIGNATURE WHEN RELEVANT ....................................... 31
SECTION 48: OPINION AS TO THE EXISTENCE OF RIGHT OR CUSTOM, WHEN RELEVANT ............ 32
3|Page
SECTION 49: OPINION AS TO USAGES, TENETS, ETC., WHEN RELEVANT ............................................. 32
SECTION 50: OPINION ON RELATIONSHIP, WHEN RELEVANT................................................................ 32
SECTION 51: GROUNDS OF OPINION, WHEN RELEVANT .......................................................................... 32
SECTIONS 52 TO 55: CHARACTER WHEN RELEVANT .................................................................................. 32
FACTS REQUIRING NO PROOF ........................................................................................................................ 34
SECTION 56, 57: JUDICIAL NOTICE ..................................................................................................................34
SECTION 58: FACTS ADMITTED NEED NOT BE PROVED-FACTS ADMITTED BY A PARTY ................ .35
MODES OF PROOF............................................................................................................................................... 35
SECTION 61 TO 90: DOCUMENTARY EVIDENCE ........................................................................................... 36
SECTION 65: SECONDARY EVIDENCE TO PROVE DOCUMENTS MAY BE PRODUCED WHEN… ....... 36
SECTION 65A & 65: CONTENTS OF ELECTRONIC RECORDS… .................................................................. 38
SECTION 67: PROOF OF SIGNATURE AND HANDWRITING OF PERSON ALLEGED TO HAVE SIGNED
OR WRITTEN DOCUMENT PRODUCED… ....................................................................................................... 39
SECTION 73: COMPARISON OF SIGNATURE, WRITING, ETC… .................................................................. 39
ATTESTATION OF DOCUMENTS… ................................................................................................................... 40
PUBLIC DOCUMENTS…....................................................................................................................................... 41
SECTION 76, 77& 79: CERTIFIED COPY OF PUBLIC DOCUMENTS… .......................................................... 41
COMPULSORY PRESUMPTIONS: (REBUTTABLE) ...................................................................................... 41
SECTION 81: OFFICIAL GAZETTES, NEWSPAPER AND JOURNALS… .................................................. ….42
SECTION 83: MAPS OR PLANS MADE BY THE GOVERNMENT .................................................................. 42
SECTION 84: BOOKS PRINTED UNDER THE AUTHORITY OF THE GOVERNMENT ........................... 42
SECTION 85: POWER OF ATTORNEY ....................................................................................................... 42
SECTION 86 TO 88 & 90: PRESUMPTIONS AT THE DISCRETION OF THE COURT............................... 42
DOCUMENTARY EVIDENCE… ......................................................................................................................... 42
EXCEPTION OF SECTION92 ........................................................................................................................... 42
SECTION 93 TO 100: AMBIGUOUS DOCUMENTS ........................................................................................ 44
AMBIGUITY ......................................................................................................................................................... 45
BURDEN OF PROOF............................................................................................................................................ 45
SECTION 107: PRESUMPTION OF CONTINUANCE OF LIFE ...................................................................... 48
SECTION 108: PRESUMPTION OF DEATH… ................................................................................................. 48
SECTION 109: BURDEN OF PROOF AS TO RELATIONSHIP ...................................................................... 49
SECTION 110: BURDEN OF PROOF AS TO OWNERSHIP ............................................................................ 49

4|Page
PRESUMPTIONS: (Ss.111A-114A) ..................................................................................................................... 49
SECTION 113: PROOF OF CESSION OF TERRITORY ...................................................................................... 50
SECTION 113A: PRESUMPTION AS TO ABETMENT OF SUICIDE BY A MARRIED WOMAN ................ 50
SECTION 113B: PRESUMPTIONS AS TO DOWRY DEATH .......................................................................... 51
SECTION 114A: PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR
RAPE ................................................................................................................................................................. 51
RULE OF ESTOPPEL .......................................................................................................................................52
SECTION 115… ..................................................................................................................................................... 52
EXCEPTION TO ESTOPPEL… ............................................................................................................................ 52
WITNESSES ..................................................................................................................................................... 54
PERSON OF UNSOUND MIND ........................................................................................................................54
CHANCE WITNESS ............................................................................................................................................. 54
PRIVILEGED COMMUNICATIONS .............................................................................................................. 55
ACCOMPLICE EVIDENCE .............................................................................................................................57
EXAMINATION OF WITNESS ....................................................................................................................... 58
SECTION 137: DEFINES ..................................................................................................................................58
SECTION 138: ORDER OF EXAMINATION ............................................................................................. ….58
SECTION 140: WITNESSES TO CHARACTER MAY BE CROSSED AND RE-EXAMINED………………….58
POINTERS ON EXAMINATION…………………………………………………………………………………………………………………58
CROSS-EXAMINATION…………………………………………………………………………………………………………………………….59
HOSTILE WITNESS…………………………………………………………………………………………………………………………………..60
SECTION 155: CREDIT OF A WITNESS MAY BE IMPEACHED BY THE ADVERSE PARTY OR EVEN
THE PARTY CALLED HIM BY………………………………………………………………………………………..............................60
CORROBORATION……………………………………………………………………………………………...61
REFRESHING MEMORY………………………………………………………………………………………………………......................61
PRODUCTION OF DOCUMENT…………………………………………………..…………………………………………………………61

5|Page
 THE INDIAN EVIDENCE ACT, 1872

w.e.f 1st September 1872

Drafted by:
Sir James Fitz Stephen

NATURE OF LAW OF EVIDENCE

• Generally procedural, with substantive overtones. Ex: Law of Estoppel.
• The Indian Evidence Act is a special law that prevails over a general law.
• Not exhaustive. Common law can be relied on by the courts.
• Evidence that is excluded by the Act is not admissible even if logically relevant.
Hence, not based on rules of logic.
Ex: Communication between husband and wife may be logically relevant but
inadmissible.
• Evidence relevant under the Act cannot be excluded by the court. It should be
applied mechanically.
• Parties cannot contract to waive themselves out of the application of the Act.

THREE PRINCIPLES OF EVIDENCE LAW

• Evidence must be confined to matters in issue.
• Hearsay evidence should not be admitted.
• Best evidence should be produced.

RULES OF A CRIMINAL TRIAL

• The accused is always presumed to be innocent.
• Evidence of the prosecution should exclude every reasonable doubt of the guilt of
the accused
• The benefit of the doubt should be given to the accused.
• Clear proof of ‘corpus delicti’ (fact of commission of the crime) must be present.
The hypothesis of guilt should be consistent with all the facts proved. The chain of
evidence must be complete.

APPLICATION OF THE ACT

Section 1 states that the Act applies to ‘Judicial Proceedings’ before:

It also does not apply to:

• Affidavits
(Order XIX CPC & section 295 CrPC deals with Affidavit)
6|Page
 • Arbitration Proceedings
• Proceedings under the Income Tax Act

Roop Singh Negi v. Punjab National Bank

The Act does not apply to departmental proceedings, but rather the Principles of Natural
Justice will be applied.

DEFINITIONS: SECTION 3
1. Court
Includes all judges, magistrates, and all persons legally authorized to take evidence, but
not arbitrators.
2. Fact
Fact means and includes-
1. Anything, a state of things, a relation of things, capable of being perceived by the
senses
2. Any mental condition of which any person is conscious

• That there are certain objects arranged in a certain order in a certain place, is a fact.
• 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 isor was at a specified
time conscious of a particular sensation, is a fact.

Factum Probandum
Ultimate facts to be proved
(Fact in issue)

Fact
Factum probans
Evidentiary facts by which factum
probandum will be proved
Relevant Fact)

7|Page
 3. Relevant Fact
• One fact is said to be relevant to another when the other is connected with
the other in any of the ways referred to in the provisions of this Act relating
to the relevancy of facts.
• Relevant facts are a set of interconnected facts to the extent that they rely
on each other to establish an event.
4. Fact in Issue
Fact in Issue means and includes- Any facts from which
• Either by itself or in connection with other facts
• The existence, non-existence, nature, or extent
• of any right, liability, or disability
• asserted or denied in any suit or proceeding, necessarily follows.
In criminal matters, allegations in chargesheet constitute facts in issue, while in
civil matters framing of issues is the process of ascertaining facts in issue.

Fact in Issue

5. Evidence
Evidence means and includes- (Not an exhaustive definition)
• All statements that the court permits or requires to be made before it by witnesses.
Such facts are called oral evidence.
• All documents including electronic records produced for the inspection of the court.
Such documents are called documentary evidence.
Aayub Noor Khan v. State of Maharashtra (SC)
Filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as
sufficient evidence for any court/ tribunal.

8|Page
 6. Document
Document means-
• Any matter expressed or described
• Upon any substance
• By means of letters, figures, or marks, or by more than any one of those
• Intended to be used, or which may be used,
• For the purpose of recording that matter

Ziayauddin v. Brijmohan (SC)

Tape records of speeches are also document and are admissible.

7. Proved, Disproved, and Not Proved

A fact is said to be proved when, after considering the matters before it, the Court
either
• Believes it to exist, or
• Considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists.
State of Maharashtra v. Md. Yakub (1980 – SC)
‘Matters’ is wider than ‘evidence’. Court has discretion to go beyond evidence and discuss
matters.
Example: A chart of the scene of offense drawn by the magistrate by his hand is not
‘evidence’ but ‘matter’ and hence can be relied upon.

SECTION 4 – “PRESUME”
• “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.
➢ Factual presumption/ discretionary presumption

• Rebuttal with evidence

9|Page
 • Eg: Section 90 – Any document which is 30 years old court may presume that it is
duly executed.
• “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.
➢ Legal presumption/ Compulsory presumption
➢ Rebuttable with evidence. The court does not have the discretion to callfor
its proof.
➢ Eg: Section 79- Court shall presume the genuineness of certified copies.
• “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.
➢ Cannot be rebutted
➢ Eg: section 112- Conclusive proof of legitimacy.

Nandlal Badwaik v. Lata Badwaik (2014) SC

.
Section 112 was enacted when modern scientific advanced and DNA tests were not in
contemplation of legislature. In case of conflict between conclusive proof and proof based
on scientific advancement accepted by world community, the latter should prevail.

RELEVANCY OF FACTS: SECTION 5

Evidence may be given in any suit or proceedings of the existence or non-existence of
every fact in issue and such other facts as are hereinafter declared to be relevant, and
of no others.
Ram Bihari Yadav v. State of Bihar (1998 – SC)
The words ‘admissible’ and ‘relevant’ do not mean the same. Hence, what is relevant is not
always admissible.

Relation between relevant and admissible evidence

10 | P a g e
 Relevancy & Admissibility
• If relevant facts are a genus, admissible facts are specie. All relevant facts may not
be admissible.
• Relevancy is based on logic, but admissibility relies on lawful pertinence.
• Once the relevancy of evidence is established, admissibility is generallypresumed.
Eg: Communication between husband and wife/client-attorney could be relevant
but not admissible.

Pushpadevi v. M L Wadhawan (1987 – SC):

Relevant evidence remains relevant even when obtained by unlawful or improper means.
Ex: Phone tapping. However, if it has prejudicial effect, then it should be ignored.

In Re Christou:
Police operated jewelry shop to trace stolen property. They announced to buy it without asking
for bills and found the thief by tracing the stolen jewels. Court held that though it wasimproper,
but the evidence is relevant.

SECTION 6 – RES GESTAE

• Facts which, though not in the 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.
Sukhar v. State of UP
The Supreme Court held that- Section 6 is an exception to hearsay evidence.
Statements should be uttered spontaneously or simultaneously.
They should be contemporaneous, without any scope of reflection or fabrication.
Illustration: A is a known celebrity who is accused of rash driving and killing people with his
car. The statement of X –“Look! A is driving his Ferrari at 100 Km/h” is relevant.Or is B going
to file a complaint against A rashly driving is relevant as res gestae.

Rattan Singh v. State of HP

Assailant gate-crashed into deceased’s courtyard when she was sleeping. Her mother in law
sensed somebody’s presence in the house and then heard few words including about the
accused’s identity uttered by deceased before she was shot. Court held that the act of assailant
intruding, identification of him by victim, and her pronouncement to mother in law, all are
intertwined and constitute part of the same transaction.

11 | P a g e
SECTION 7: FACTS WHICH ARE THE OCCASION, CAUSE, OR EFFECTS OF
FACTS IN ISSUE
Facts-
1. Being the occasion of fact
2.Cause of a fact
3. As being its effect
4. As giving opportunity for its occurrence
5. As constituting the state of things under which it happened
1. Occasion-
Evidence can be given of circumstances constituting the occasion for the happening of the
principal fact.
R v. Richardson
The fact that deceased was alone at home at the time of murder was relevant as it
constitutes the occasion for murder.
Illustration- A told his friends that he was going to a fair with money. This will be
relevant to his claim of being robbed at the fair.
2. Cause-
Set of circumstances constituting a cause of happening of the principal fact.
Illustration- the person running short of money may cause him to take loan or may cause
him to commit a crime.
3. Effect-
Effects, immediate or otherwise, of facts in issue or relevant facts, are relevant.
Illustration-suicide and murder have different effects on th e body, footprints, fingerprint
impressions, marks on the ground, or of struggle.
R v. Richardson
Prints of footsteps of murderer were held to be relevant. The person wore newly mended shoes
which had iron knob on them. The footprints by such shoes matched with the shoes of
accused.
4. Opportunity-
R v. Richardson
Accused left his co-worker at the time of murder under the pretence of going to shop. This
was relevant as it afforded him opportunity for occurrence of principal fact.
5. State of things-
Illustration- state of relation between the parties, state of health of deceased, and his
habits.
Ratten v. Reginam
Accused shot his wife and took the defense of accident. The fact that accused was
unhappy with his wife and he had an affair with another woman, was held to be relevant.
11 | P a g e
RM Malkani v. State of Maharashtra
On the admissibility of tape recorded conversations, the Supreme Court held :
1. The voice should be properly identified. Possibility of fabrication or erasure of
parts should be ruled out.
2. It should be genuine and be free from tampering.
3. Such record is relevant under Section 6 if it was contemporaneous. It is
relevant under Section 7 as ‘occasions’.

SECTION 8: MOTIVE – PREPARATION – CONDUCT

• Facts showing motive or preparation for fact in issue or relevant fact
• Facts showing the conduct of any party/ agent/ person, an offence against whom is
subject of any proceeding (victim), are relevant
• If, such conduct, is about fact in issue or relevant fact
• Is influenced by a fact in an issue or relevant fact
• Explanation 1.— The word “conduct” in this section does not include statements
unless those statements accompany and explain acts other than statements;
• Explanation 2.— When the conduct of any person is relevant, any statement
➢ made to him, or
➢ in his presence and hearing;
➢ which affects such conduct, is relevant.
Motive:
• Evidence of motive becomes important when the case depends upon
circumstantial evidence only.
• If direct evidence is available, there will be less role of motive
• The mere existence of motive however strong cannot take place of proof.
• Similarly, the absence of motive is not sufficient to disregard circumstantial
evidence.
R v. Richardson
Deceased was pregnant with accused’s child. His motive was relevant to save his
character.

Tarseem Kumar v. Delhi Administration (1994 – SC):

When the whole case is built on circumstantial evidence, motive becomes important.
However, mere motive is not conclusive. It is only a significant factor.

Preparation:
• Arranging means and measures for the commission of crime/ prevent its
discovery/aid escape/ avert suspicion.
• Illustration: Where the validity of a will is in question, the fact that the accused
had many rough drafts and had consulted lawyers, etc, will be relevant.

12 | P a g e
Conduct:
• Illustration: A girl told her friend about the incident after 2 days of rape- not
relevant under conduct.
But if she goes to a police station, everyone present there can be asked if shewas there
and there is something more to a mere statement. (Subsequent conduct)

Queen Empress v. Abdullah:

Sign-language used to respond to question was not considered ‘conduct’. However, it
was held to be a dying declaration as the person died immediately after.
This case later became subject of criticism.

SECTION 9: FACTS NECESSARY TO EXPLAIN OR INTRODUCE RELEVANT

FACTS
• Facts that are necessary to Explain or Introduce a fact.
• Facts that support or rebut an inference suggested by a fact.
• Facts that establish the identity of anything or a person.
• Facts that fix time or place.
• Facts that show the relation of parties.

Test Identification Parade:

Abdul Waheed Khan v. State of AP:
The Test Identification parade should be conducted as soon as possible to ensure that
the witnesses have fresh memory.

Siddharth Vashist @ Manu Sharma v. State (NCT Delhi)

TIP is only an aid to investigation. The practice is not born out of procedure, but out of
prudence.

• Section 9 should be read with section 54A CrPC which empowers the Court to direct
the person arrested to be subjected to Test Identification.
• TIP is generally conducted in criminal cases to identify the accused, to test the
credibility of the evidence of witnesses, and also to test his capacity to identify the
accused among several persons.

Ramanathan v. State of TN
The purpose of TIP is to find out whether the accused is the perpetrator of the crime
or not. If name of the offender is not mentioned by the eye-witness/ victim then such
evidence becomes more important.

13 | P a g e
 • It corroborates the victim's testimony.
• TIP is not necessary where the witness knows the accused and already identifies
them/incidents widely covered by media.
• Evidence of TIP is not substantial but only has corroborative value.
• To be conducted by Magistrate who shall ensure that the identification is conducted
properly. The magistrate becomes a witness in that case.
• No police officer should be present at the time TIP is conducted.
SECTION 10: PROVING CONSPIRACY
• Where there is reasonable ground to believe that two or more persons haveconspired
together
• to commit an offence or an actionable wrong,
• anything said, done, or written by any one of such persons
• about their common intention,
• after the time when the such intention was first entertained by any one of them,
• is a relevant fact as against each of the persons believed to so conspiring,
• as well as for the purpose of proving the existence of the conspiracy and for the
purpose of showing that any such person was a party to it.
Mohd Khalid v. State of West Bengal
The Supreme Court held that:
1. There must be existence of reasonable ground to believe that the conspirators have
conspired.
2. Statements should be in reference to common intention.
3. Section 10 is based on the concept of agency. Every conspirator is an agent of another.

CBI v. VC Shukla (Hawala Case of Jain Brothers - 1998):

The entry in the diary of one of the brothers was admissible against the other. But not
against the people whose names were mentioned unless it can be proved by independent
evidence that they were involved in the conspiracy.

Mirza Akbar v. Emperor

Section 10 is a necessary evil. It has the potential to rope in the innocent along with the
guilty, but it helps discover facts.

SECTION 11: INCONSISTENT FACTS

Facts not otherwise relevant are relevant—
(1) if they are inconsistent with any fact in the issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.

14 | P a g e
Alibi: A plea by the defendant that he was not present at the scene of the offence, but
was elsewhere. Hence, he cannot have physically been present to have committed the crime.

Jayantibhai Bhenkarbhai v. State of Gujarat:

The Supreme Court held:
1. Alibi is not an exception under IPC, but is a rule of evidence under Section 11.
2. The plea of Alibi should be considered only after the prosecution discharges its burden
satisfactorily.
3. Failure to prove Alibi does not automatically make the accused guilty. Guilt should be
proved by the prosecution on independent evidence.
4. Plea of alibi does not discharge co-conspirators.

Munshi Prasad v. State of Bihar:

Distance between the scene of offence and the accused is a material factor. It should
be enough to prove that it was physically impossible for the accused to be present at
the scene of offence. Mere 400-500 yards is not sufficient.

SECTION 12: DAMAGES IN A CIVIL SUIT

In suits for damages, facts tending to enable Court to determine the amount are relevant.
Illustration: A beats B. B’s medical bill will be relevant.
SECTION 13: RIGHT OR CUSTOM
Where the question is as to the existence of any right or custom, the following facts are
relevant:—
(a) any transaction by which the right or custom in question was created, claimed,modified,
recognized, asserted, or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized, or exercised
or in which its exercise was disputed, asserted or departed from
TTD v. Krishnaiah:
Previous judgement of a court can be a ‘transaction’ if it relates to the right or custom in
issue, even when such matter was not between the same parties.

SECTION 14 : STATE OF MIND OR BODY

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 (Mens Rea), or
• showing the existence of any state of body or bodily feeling, are relevant,
• when the existence of any such state of mind or body or bodily feeling, is in issue or
relevant.

15 | P a g e
 Explanation 1— A fact relevant as showing the existence of a relevant state of mindmust show
that the state of mind exists, not generally, but in reference to the particular matter in
question.
Illustration- A sues B for negligence in providing him with a carriage not fit for use. A gets
injured. The fact that B was habitually negligent about carriages is not relevant. But the fact
that B’s attention was drawn on other occasions to the defect of that particular carriage is
relevant.
Explanation 2— But where, upon the trial of a person accused of an offence, the 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.
Illustration- A is accused of delivering a counterfeit coin which, at the time of delivery, he
knew to be counterfeit. The fact that A was previously convicted of delivering counterfeit
coins is relevant.
Aveson v. Kinnaird (Lord)
Issue- Whether state of A’s good health given at the time of effecting life insurance were
false. The fact that at about the time in question, she had received a visitor, to whom she
mentioned her bad state of health, was held relevant. Court allowed the visitor to give
evidence. This was a part of res gestae too as statement was contemporaneous with the act
it described.

Statements about one’s state of bodily feeling are often of self-serving nature. Hence,
should be contemporaneous.
SECTION 15: SERIES OF SIMILAR OCCURRENCES
• When there is a question of whether an act was accidental or intentional or done
with a particular knowledge or intention
• The fact that such an act formed part of a series of similar occurrences where the
person doing the act was concerned is relevant.
This section is used to overthrow the defense of accident or misfortune (section 80 IPC)

Makin v. Attorney General for New South Wales

Accused and wife were prosecuted for murder of their adopted child. The child’s body was
found buried in their yard. They took the defense that he died of a natural cause. The fact
that on earlier occasions, they adopted other babies and each time bodies were found buried
in their yards, was held relevant.
R v. Smith
If an accident benefits the person and if he has been sufficiently fortunate that each time the
accident had benefitted him, a strong inference can be drawn that such occurrences cannot
have happened coincidentally unless designed.

16 | P a g e
SECTION 16: COURSE OF BUSINESS
When there is a question of whether a particular act was done. The existence of any course
of business where it naturally would have been done is a relevant fact.

ADMISSIONS & CONFESSIONS (SECTIONS 17 TO 31)

SECTION 17:
• An admission is a statement, oral or documentary, or contained in electronic form,
• which suggests any inference as to any fact in issue or relevant fact, and
• which is made by any of the persons, and under the circumstances, hereinafter
mentioned.
Illustration- A sues B for recovery of the loan. Entry in B’s accounts recording the fact of
debt is an admission of B’s liability.

Statement against one's

Higher Veracity
own interest

Value of
Admissions

Waiver of Proof Contradictory to party's

(Section 58) case

Ram Bharose Sharma v. Mahant Ram Swaroop (2001 – SC):

An admission suggests only an inference. Hence, the court must examine the statement
entirely along with the circumstances and context before holding it against the person
who made it.

Ammini v. State of Kerala

Person accused of murder had injuries on his body. He visited a doctor and explained
the cause of his injuries. This was held to be an admission.

• Truncated Admission: When an admission does not meet the standard of proof
17 | P a g e
 required.
• Retracted Admission: When admission is taken back later. This can still be used
by the court, depending on the facts of the case.
• Judicial Admissions: Admissions made by a person before the court as a part
of the proceedings. These are dealt with by the procedure under CPC and
CrPC.
• Extra-Judicial Admissions: Admissions that are made to any person. Theseare
also called ‘evidential admissions’ and are dealt with under the EvidenceAct.

S Venugopal v. A Karrupuswami (2006-SC):

An assertion made in one’s own interest may not be an admission, but a statement made
against one’s own interests will be admission. Admissions can be inferred from both active
and passive conduct. Ex: Silence when an answer is expected.

ADMISSIBLE ADMISSIONS: SECTIONS 18, 19, & 20

SECTION 18: ADMISSION BY PARTY TO PROCEEDING OR HIS AGENT
• By a party to the suit or proceedings;
• By an agent authorized by such party.
• By a party suing or sued in a Representative Character while holding such character.
[O1 – R8] [Trustees, executors, assignees, receivers, administrators, etc.]
• By a person who has a proprietary or pecuniary interest in the subject matter.
[includes co-plaintiffs, but not co-defendants]
Ex: Joint owners
• By a person from who the parties have derived their interest.[Predecessor in title] Ex:
Former owner

Great Western Railway Co. v. Wills

A night inspector made statement to the party about missing goods. Court held that it is not
an admission against the railway company because he has no authority to makeadmission
or to represent the railway company. However, if the station master would have
made such statement then it would be an admission against the railway company owing to
his authority.

SECTION 19: ADMISSIONS BY PERSONS WHOSE POSITION MUST

BE PROVED AS AGAINST PARTY TO SUIT
By a person whose position or liability it is necessary to prove against any party.
• Not parties, but their statement affects the position/ liability of the parties
• Illustration: liability of an agent to account to his principal depends upon the
liability of a third party that contracted with the agent on the principal’s behalf. His
statement will be relevant against parties.

18 | P a g e
 SECTION 20: ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO
BY PARTY TO SUIT [REFEREES]
By a person to whom a party to a suit has expressly referred for information.
• Reference for arbitration is not included
• Illustration: Issue- whether the horse sold by A to B is sound. A says-“Go andask
C, he knows all about it.”
C’s statement will be an admission.

Williams v. Inn
In an action against executors if an estate who had told the plaintiff “For more
information, apply to Mrs. Rose”, statement of Mrs. Rose was held to be an admission.

SECTION 21: PROOF OF ADMISSIONS AGAINST PERSONS

MAKING THEM, AND BY OR ON THEIR BEHALF
Admissions are relevant and may be proved as against the person who makes them, but
they cannot be proved by or on behalf of the make, except:—
• If the nature of the statement is such, that if the person making it were dead, it
would be relevant as between third persons under Section 32 – Dying Declaration.
• When the admission is a statement of the existence of any state of mind or body
made at or about the time when such a state of mind or body existed and
accompanied by conduct that renders its falsehood improbable.
• If the statement is relevant otherwise than an admission. Ex: Res Gestae, section 8,
14, or any other clauses of section 32.

R v. Petcherini
The general rule is that the statements of a person cannot be received unless they are
against his interest. Hence, self-serving statements are not admissions.

SECTION 22: WHEN ORAL ADMISSIONS AS TO THE CONTENTS OF

DOCUMENTS ARE RELEVANT
Oral admissions as to the contents of the documents are relevant if such person shows
that:
• He is entitled to give secondary evidence under Section 65.
• Genuineness of the document in question.
SECTION 23: ADMISSION IN CIVIL CASES, WHEN RELEVANT
Communications made ‘without prejudice’ are protected. Hence, in civil cases, an
admission is not relevant if:
1. It is made either upon an express condition that evidence of it is not to

19 | P a g e
 be given; or
2. Under circumstances from which the court can infer that the parties agreed
together that evidence of it should not be given.
• This protection privilege against disclosure is intended to encourage the parties to
settle their differences amicably and to avoid litigation between parties wherever
possible.
• Statements by parties in course of negotiations to settle litigation cannot be proved.
• Generally, section 23 comes into operation only when parties have a dispute or
negotiation. Thus, letters written without reference to any dispute are not
privileged even if marked “without prejudice”.
• A judge is not entitled to look at the letters written without prejudice unless he has
the consent of both parties [Walker v. Wisher]
SECTION 31: ADMISSIONS NOT CONCLUSIVE PROOF, BUT MAY
ESTOPPELS
Admissions are not conclusive proof but are only prima facie proof. They operate as
estoppels. Hence, they are weak evidence and should be corroborated.

Sahoo v. State of UP:

The Supreme Court laid down a two-fold test to determine the validity of an admission:
1. Whether such confession is perfectly voluntary.
2. If so, whether it is true and trustworthy.

CONFESSIONS (SECTIONS 24 TO 30)

• Definition of admissions applies to confessions too.
• Confession- A statement made by a person charged with a crime
suggesting an inference as to fact in issue or relevant fact. Such
inference should suggest his guilt.
• Confession should be free and voluntary. Admissible if made with a
desire to make reparation.

State (NCT of Delhi) v. Navjot Sandhu (SC – 2005):

Confessions are considered to be highly reliable because no rational person would
make it unless prompted by his conscience to tell the truth.

Palvinder Kaur v. State of Punjab (1952 – SC):

A statement which has both incriminating and exculpatory elements is not a valid
confession. The court cannot pick incriminating part and exclude exculpatory part.

20 | P a g e
Rahim Beg v. State of UP (1973 – SC):
An extra-judicial confession must stand the test of reproduction of exact words,
reason, and motive. The identity of the person to whom it is made should be clear.

IRRELEVANT CONFESSIONS
SECTION 24: CONFESSION CAUSED BY INDUCEMENT, THREAT,
OR PROMISE, WHEN IRRELEVANT IN CRIMINAL PROCEEDING
Confession is not relevant when:
• It is made to a person in authority;
• Caused or obtained by reason of any inducement, threat, or promise proceeding
from such person;
• Such inducement, threat, or promise must have reference to the charge against
the accused;
• The accused believed or supposed that he would gain any advantage or avoid any evil
of temporal nature in reference to the proceedings against him;

Pyare Lal v. State of Rajasthan (1963 – SC):

Strict proof of inducement, threat, or promise is not needed. As long as it appears to the
court that any of these elements may be present, the court should refuse to accept the
admission. Courts should err on the side of caution.

• Even a private person can, in circumstances like an employer, etc, be a person in

authority over the employee but a purely private person, generally, cannot be
regarded as a person in authority.
• The mind of the accused is the key consideration
• Illustration- Tell me & I will be favorable to you or it will be worse for you/ why
can’t you be a man and admit it?- inducement

SECTION 25: CONFESSION TO POLICE OFFICER NOT TO BE PROVED

No confession made to a police officer shall be proved as against a person accused of any
offence.
Section 25 is applicable even when the person is a secret agent of the police deputed for the
very purpose of receiving a confession. Such confession will be inadmissible.
Queen Empress v. Babu Lal (1884):
The ambit of the section is wide enough to cover both statements made during the
investigation or even before.

Sita Ram v. State (1966 – SC):

A letter found by the police next to the dead body placed when no police is present is valid
confession.

21 | P a g e
 Confessional FIR:
• Only that part of a confessional FIR is admissible which does not amount to
confession or which comes under section 27.
• Non-confessional part can be taken under section 8 as conduct.

Aghnoo Nagesia v. State of Bihar:

Confessional FIR will be hit by Section 25. However, statements other than confession will
be relevant as ‘conduct’ under Section 8.

SECTION 26: CONFESSION BY THE ACCUSED WHILE IN

CUSTODY OF POLICE NOT TO BE PROVED AGAINST HIM
• It states that a confession made in the custody of a police officer (except in the
immediate presence of a Magistrate) cannot be proved against an accused.
• The magistrate does not include the head of the village discharging magisterial
functions. (Explanation)
‘Custody’ is not strictly legal. Even surveillance of the police in custody. It does not
differentiate between lawful and unlawful custody.
Section 26 applies when a person in police custody is in conversation with any person other
than a police officer and confesses his guilt. Ex: accused in police custody conversing with
media persons.

State (NCT of Delhi) v. Navjot Sandhu (2005 – SC):

Statements made to the press in the presence of police are not admissible.

SECTION 27: HOW MUCH OF INFORMATION RECEIVED FROM THE

ACCUSED MAY BE PROVED
• When any fact is deposed as to be discovered
• As a consequence of information received from an accused
• In the custody of a police officer
• So much of such information as it relates distinctly to the facts discovered may be
proved.
Pakala Narayana Swami v. Emperor:
Section 27 is an exception to Section 26. It can be invoked only when statements result in a
discovery of a fact.

Pulukuri Kottaya v. Emperor:

The accused said to the police, “I beat the deceased to death and hid the spear in the rick of
my village.” If the spear is found, only the second part of the statement is relevant.

22 | P a g e
Mohd. Inayatullah v. State of Maharashtra:
The Supreme Court held:
There must be a discovery of a fact. Such discovery must be deposed to. Hence, the object
should be found. Accused must be in the police custody at the time of receipt of the fact. Only
so much information as relates to the discovery is admissible.

State of Maharashtra v. Suresh:

When the object is discovered and the accused does not show how he had such information,
the court may presume that he placed it there himself

Mukesh v. State (NCT Delhi)

Section 27 is an exception to section 24, 25 and 26. It serves in the investigation process
once recovery is proved by the prosecution. Burden of proof to rebut the same is
very strict on defence.

State of Bombay v. Kathi Kalu

Section 27 was constitutionally challenged. It was contended that it violates Article 20(3).
Court upheld its constitutional validity and held that the discovery is not
self- incriminatory if it is not given under any threat. Also, drafters of constitution were
aware that section 27 IEA exists and even after enactment of the constitution they chose
not to repeal it.

SECTION 28: CONFESSION MADE AFTER REMOVAL OF IMPRESSION

CAUSED BY INDUCEMENT, THREAT, OR PROMISE RELEVANT
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.

SECTION 29: CONFESSION OTHERWISE RELEVANT NOT TO BECOME

IRRELEVANT BECAUSE OF PROMISE OF SECRECY, ETC
Any confession which is otherwise relevant does not become irrelevant merely because it
was made:
• Under a promise of secrecy
• In consequence of a deception practiced on an accused.
• When the accused was drunk.
• In answer to the question, he need not have answered.
• When the accused was not warned that he was not bound to make a such
confession.

23 | P a g e
SECTION 30: CONFESSION BY CO-ACCUSED
• When more than 1 person is being jointly tried for the same offence
• A confession is made by any of them affecting himself and other co-accused and is
proved.
• Such confession may be relevant against t h e maker as well as other co-accused.
Section 30 says nothing about the evidentiary value of the confession of a co-accused,
leaving it to the court’s discretion.
Confession of a co-accused cannot be sole basis of conviction. It is a weak evidence.
Even weaker than evidence of approver.

EVIDENTIARY VALUE OF A CONFESSION:

Kashmira Singh v. State of MP
The appellant was convicted solely on the basis of confession of his co-accused. Supreme
Court held that a man cannot be deprived of his life and personal liberty only on the basis
of an uncorroborated confession of his co-accused. In case of acquittal of confessing co-
accused, the confession does not cease to be admissible against others.

Retracted Confession:
Person having recorded a confession which is relevant goes back upon it, saying either he
never confessed or he wrongly did.

Pyare Lal v. State of Rajasthan:

A conviction can be based on retracted evidence only after general corroboration
from independent evidence.
Judicial Confession:
• Recorded by a Magistrate under section 164 CrPC.
• Section 80 IEA- a confession recorded by a Magistrate according to law shall
be presumed to be genuine.
• A conviction can be based if proven to be voluntary and true.

Extra Judicial Confession:

• Weak evidence
• Can be relied upon only if clear, consistent, and convincing
• Evidence is required to corroborate. It should be voluntary and truthful.

24 | P a g e
 ADMISSION CONFESSION

Used in both civil and criminal Relevant only in criminal proceedings.

proceedings.

More comprehensive. Every confession is More specific. Not every admission is a

an admission. confession.

Generally, a statement against one’s Involve admission of guilt. Hence,

interests. However, exceptions to Sec. 21 always against the maker.
allow some statements in favor of the
maker.

Relevant irrespective of to whom it is Not relevant when made to police or

made including police, or under under inducement, threat, or promise.
inducement or threat. Hence, it should be free and voluntary.

May proceed from a non-party to the Always proceeds from the accused.
matter.

Admissions by co-defendants are not Confessions by co-accused are relevant

admissible against each other against other co-accused.

Not conclusive proof but may estop Substantial evidence is voluntary

(section 31) and truthful

DYING DECLARATION (SECTION 32)

Section 32(1): Statements made by a person who is dead is relevant when it relates to:
• The cause of his death; or
• Any of the circumstances of the transaction which resulted in death; In cases
where:
• The cause of the death of such a person comes into question;
• Whether or not such a person was under the expectation of death;
Maxim: Nemo moriturus praesumitur mentire
“A man will not meet his maker with a lie in his mouth.”

25 | P a g e
 DYING DECLARATION – ESSENTIALS
• Statement can be in any form – oral, written, or even gestures. [Queen Empress
v. Abdullah]
• Person making the statements must have died. The cause of his death should be in
question.
• Statement must relate to the cause of his death or the circumstances which caused
death.
• Circumstances should be proximate to the cause of the death. The death should be
proven to be caused as a result of the incident in question.
• Statement can be recorded by any person, including a friend, relative, or even a police
officer. However, the probative value is higher when it is recorded by a Magistrate or
a Doctor.
• Statement should be complete and consistent.
• The declarant should be a competent witness.
• FIR can also amount to a dying declaration if the complaint was made on a statement
of the deceased person.

Khushal Rao v. State of Bombay (1958 – SC):

(Essentials elaborated/ evidentiary value)
The Supreme Court held:
Dying declaration is a substantive evidence, and not weak evidence. There is no rule that a
dying declaration cannot be the sole basis of conviction. Hence, if it inspires confidence, the
court can convict only on the basis of a dying declaration.
Corroboration can be sought whenever the court feels it to be necessary. But such
corroboration is not needed in every case. Each case should be decided on its own facts.
Court should look at any delay in the recording of the dying declaration. It should also look at
the possibility of tutoring the person, any infirmities of such person, or the scope of reflection
and fabrication.
If there is any suspicion that the statements may be influenced by external factors, the court
should discard them. This is because there is no oath or possibility of cross-examination of the
maker.

Sudhakar v. State of Maharashtra (2000 – SC):

A woman registered a complaint of rape and committed suicide five months later. Held that
the delay was substantive. Hence, the complaint cannot be considered to be a dying
declaration.

26 | P a g e
Patel Hiralal Joitaram v. State of Gujarat (2001 – SC): Section 32 (1) also talks about the
‘circumstances of the transaction’ which resulted in death. This creates a wide dimension.
Hence, anything which has a nexus with the death, direct or indirect, falls under the purview
of this phrase.

Kusa v. State of Orissa (1980 – SC): An incomplete dying declaration is not admissible.
However, not answering a formal question does not matter. In this case, the declarant did not
answer, “What more do you want to say?” and the court held the declaration to be complete.

Dying Declaration meaningless when:

• Seems to be tutored
• Declarant unconscious/ not in complete senses
• The discrepancy between witnesses and declarant (does not inspire confident)
• When the declarant contradicts itself
• When the identity of the accused could not be established.
Statement of relevant fact in other cases by persons who cannot be called as
witnesses when relevant:
• Section 32(2)- when a statement was made in the ordinary course of business
• Section 32(3)- against the interest of the maker (pecuniary or proprietary interest)
• Section 32(4)- gives an opinion as to the existence of any public right or custom
• Section 32(5)- relates to the existence of a relationship
• Section 32(6)- is made in will or deed relating to family affairs about the existence
of any relationship between the person deceased.

SECTION 33: RELEVANCY OF EVIDENCE GIVEN BY WITNESS FOR

PROVING, IN SUBSEQUENT PROCEEDING, THE TRUTH OF FACTS
STATED.
• When the witness is dead/ cannot be found/ incapable of giving evidence/ kept out of
way by an adverse party/ presence cannot be obtained without delay or expense.
• Subsequent proceedings in which evidence is sought to be given must be between the
same parties
• The adverse party had the right and opportunity to cross-examination
• The questions in the issue should be substantially the same in both proceedings.
This section is attracted when a witness testifies but is not available at a later stage.
Ex: In cases where a de novo trial is ordered.
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
• Section 34: Entries in the books of account kept in the course of business. But
shall not be substantial evidence.

27 | P a g e
 • Section 35: Entries made in any public or official record by a public servant in the
discharge of his official duty, or any other person in the discharge of duty enjoined
upon him.
• Section 36: Statements in maps, plans, or charts meant for public sale or prepared
under the authority of the Central or State Government.
• Section 37: Statements of public nature made in any Act of Parliament or State
Legislature or government notification.
• Section 38: Statements of the law of another country published under the authority
of the Government of such country and report of any court ruling in law books.
• Section 39: When there is a long document, only the part necessary for the full
understanding is sufficient.
RELEVANCY OF JUDGEMENTS
Generally, judgments are not relevant as each case has to be decided on its facts, but Sections
40 to 44 have exceptions.
• Section 40: Previous judgments relevant to bar a second suit or trial. When the
judgment has the effect of preventing any court from taking cognizance of a suit or
holding a trial. [Res Judicata or Double Jeopardy]
Illustration- judgment by which a person was acquitted or convicted will be relevant
to every proceeding in which he is charged with the same offence.

• Section 41: Judgement which exercises probate (will), matrimonial, admiralty (war
claims), or insolvency proceedings which confers upon or takes away a legal character
of a person.
Such judgments/decrees/orders are conclusive proof.
Section 41 deals with judgment in rem i.e., adjudication pronounced upon the status
of a person and is binding against the whole world. Ex: judgment declaring the
insolvency of A.

• Section 42: Judgements that relate to matters of public nature. It shall not be
conclusive.
Ex: the right to way, right to use a part of the river, etc.

• Section 43: Judgement is irrelevant unless:

➢ It is relevant under Sections 40 to 42;
➢ It is relevant under any other provision of the Act
Ex: A murdered B as a consequence of a judgment. This fact will be
relevant under sections 7 or 8.

• Section 44: A party may show that a judgment is not relevant because it is:
➢ Delivered by a court not competent to deliver it; or
➢ Was obtained by fraud or collision;
Such judgment does not have the effect of res judicata.

28 | P a g e
Jai Narayan v. Pushpadevi (SC)
Decree obtained by creating jurisdiction artificially by including a property in respect of
which there was no dispute. It was held to be fraud on court. (Concealment of material fact
and fraudulent exercise).

EXPERT OPINION
• An opinion is more than a fact. It is a judgment or belief of an expert over a fact.
• General rule- Every witness is a witness of fact. Opinions are not relevant. Sections 45-
47 are exceptions because in matters of technical nature, the opinion of experts helps
the court to arrive at a satisfactory conclusion. Also, in many cases facts and opinions
are indistinguishable.

SECTION 45: WHEN THE COURT HAS TO FORM AN OPINION UPON A

POINT OF
• foreign law, or
• of science, or
• art, or
• identity of handwriting, or
• finger impressions,
The opinions upon such points of persons especially skilled are relevant facts.
• Eg: where the court has to determine the cause of a shipwreck/ air crash. A court might
need the assistance of technicians. Or where a court has to determine the cause of
death/ insanity, effects of poison, genuineness of artwork, genuineness of
handwriting, etc.

Foreign Law:
• Any law not in force in India.
• A law in force in India is not foreign law even if it is of foreign origin.

Matters of Science & Art:

• Includes anything which require special knowledge, skill, study, or experience or is
otherwise beyond the comprehension of a layman.
• Science and art do not mean the subjects but special study or experience. The
expressions have to be broadly interpreted. Section 45 appears to be exhaustive.
However, the expression ‘science or art’ is very broad.
• The matter in question must be of technical nature.
Illustration: Person prosecuted for stabbing his wife to death claimed that he did it in sleep.
The medical evidence of a psychiatrist on the question of automatism (unconscious
behavior) can be allowed. (R v. Smith)

29 | P a g e
 Identity of handwriting or finger impressions:

Alamgir v. State (NCT of Delhi) (2003) SC

Woman found dead in guest house. 2 slips of paper were found beside her. Evidence of
handwriting expert suggested that the handwriting was of her husband. Supreme court
held that opinion was supported by evidence which corroborated the circumstantial
evidence.

Who is an expert?
• Should be ‘specially skilled’ on the matter on which he testifies.
• No formal qualification is needed. An expert may be qualified by skill or experience.
However, he is not a witness of fact. Further, his opinion will be recorded into evidence
only when he is examined and is subjected to cross-examination.
• Section 45 only provides for relevancy of expert opinion and not about its value. The
probative value may differ.

State of HP v. Jai Lal (1991) SC

Expert evidence is persuasive & not binding. It is advisory in nature. Court has the discretion
to depart. The credibility depends on reasons stated in support of conclusion. Expert report
does not go in evidence automatically.

Murari Lal v. State of MP (1980 – SC):

The Supreme Court held that:
There is no rule of law to say that the opinion of an expert must require substantial
corroboration.
However, courts should approach with caution as there is a possibility of deliberate
falsehood, fallibility or human judgement, or potential of bias towards the side that produces
them.
Generally, corroboration must be sought when the opinion does not inspire confidence. It
should also be based on the nature of such opinion. Ex: Handwriting analysis is not a perfect
science, but fingerprint analysis is perfect.
A judge should form his own opinion on the authenticity and reliability of the expert’s
opinion

Wilayat Khan v. State (1962 – SC): When expert opinion is in direct conflict with direct
evidence,such expert opinion cannot be decisive. Hence, the court must go with the one which
inspires more confidence.

Ram Narain v. State of UP (1973 – SC): An expert opinion is not conclusive. It is up to

the court, in its own independent judgement, whether to rely upon such opinion or not.

30 | P a g e
 SECTION 45A: OPINION OF EXAMINER OF ELECTRONIC EVIDENCE
When a court has to form an opinion on any matter relating to information transmitted or
stored in electronic or digital form, the opinion of the Examiner of Electronic Evidence is a
relevant fact.
SECTION 46: FACTS BEARING UPON OPINIONS OF EXPERTS.
Facts in support or inconsistent with the opinion of experts are relevant.
SECTION 47: OPINION AS TO HANDWRITING, WHEN RELEVANT
The handwriting or signature of a person may be proved by the evidence of a person who:
• Has seen that person write; or
• Has received documents written by that person in answer to the documents written
by himself and addressed to that person; or
• Has received documents written by that person in the ordinary course of business.

Fakhruddin v. State of MP (1967) SC

Handwriting may be proved in evidence of witness in whose presence the writing was done
and this would be direct evidence with high probative value.

SECTION 73: COMPARISON OF SIGNATURE, WRITING, OR SEAL WITH

OTHERS ADMITTED OR PROVED
The court may compare handwriting, signature, or seal. It may also direct a person to write
any words or figures to enable it to compare.
Modes Of Proving Handwriting (Combining Section 45, Section 47 & Section73)
1. By the evidence of the writer himself
2. By opinion of an expert
3. By the evidence of a person who is acquainted with the handwritingof the person in
question.
4. Under section 73, the court may itself compare the handwriting in question with the
proven handwriting.
The court can also direct any person to write words or figures for the court to compare.
SECTION 47A: OPINION AS TO ELECTRONIC SIGNATURE WHEN
RELEVANT
• To provide relevancy of expert opinion on t h e genuineness of an electronic
signature.
• The opinion of Certifying Authority which has issued the signature is relevant.
• Certifying authority is a person who has a license to issue an electronic signature
under section 24 of the IT Act, 2000.

31 | P a g e
SECTION 48: OPINION AS TO THE EXISTENCE OF RIGHT OR
CUSTOM,WHEN RELEVANT
Opinion to prove the existence of any general custom or right is relevant.
SECTION 49: OPINIONS AS TO USAGES, TENETS, ETC., WHEN
RELEVANT
The opinion of those having special knowledge regarding the usage and tenets of a body of
men or family or constitution of religious or charitable foundations is relevant.

SECTION 50: OPINION ON RELATIONSHIP, WHEN RELEVANT

The opinion of a member of the family or someone who has special means of knowledge as
to the relationships between persons is relevant.

SECTION 51: GROUNDS OF OPINION, WHEN RELEVANT

When an opinion is relevant, the grounds on which such opinion is based shall also be
relevant.
CHARACTER WHEN RELEVANT (SECTIONS 52 TO 55)
Section 52 lays down a general principle that a party cannot give evidence of his good
character to show that it is improbable that he would be guilty of conduct imputed to him.
Likewise, the opposite party cannot give evidence of his bad character.

Rationale: Court has to try each case based on its facts. Character evidence prolongs the
proceedings and unnecessarily prejudices the mind of the judge.

In civil cases, the previous conviction of the defendant is irrelevant. This is the rule laid down
in Hollington v. Hewthorn & Co. Ltd (1943) KB. This was an action against the defendant
for damages caused by the defendant’s negligence in driving a car. The claim was based on
the contention that the defendant has been previously convicted for such accidents. Court
did not admit this evidence and held that such an opinion is not admissible in civil cases.
Evidence of a party’s character cannot be given to show that it renders his conduct probable
or improbable.

Section 52 states that in civil cases, a party’s character cannot be given to show that it renders
his conduct probable or improbable.
Exceptions:
• When character itself is a fact-in-issue;
➢ When a party’s character is a fact in issue, evidence of it can be given.
➢ Section 54, Expln 1: when the bad character of a person is a fact in the issue
➢ Section 5- evidence can be given of the existence or non-existence of the fact
in the issue or relevant fact
➢ Ex: In an action for cruelty, the cruel character of the defendant is itself a fact
32 | P a g e
 in issue. Plaintiff can lead evidence of it.
• In criminal cases, the previous good character of a person is relevant (Sec. 53);
➢ If good conduct is proven, it leads to the presumption against the commission
of a crime.
• Previous conviction is relevant as a bad character (Sec. 54, Expln 2)
• To rebut prior evidence of good character (In reply) (Sec. 54)
• In civil cases, when damages are to be determined. (Sec.55)
➢ When the character of the plaintiff affects the amounts of compensation.
➢ The evidence of good/bad character of the defendant is irrelevant to damages. His
good character cannot reduce damage and his bad character cannot aggravate
them.
➢ It is only the character of the plaintiff which is relevant and only when his
character affects the amount of compensation he claims for. Ex. Defamation.
• When a character appears from other relevant evidence(Sec 52)
➢ Section 52 says “except in so far as such character appears from facts otherwise
relevant”
➢ A fact otherwise relevant cannot be excluded from evidence only because it
incidentally exposes or throws light upon a party’s character.

Character includes both reputation (estimation of a person in the eyes of others) and
disposition (Inherent qualities of a person). Evidence may be given only of general
reputation and general disposition and not of particular acts showing them. (Except under
section 54- in reply)

Character evidence is very weak evidence. It cannot overweigh the positive evidence in
regard to the guilt of a person. It may be used in doubtful cases to tilt the balance in favor
of the accused.

33 | P a g e
FACTS REQUIRING NO PROOF
Generally, all facts in the issue and relevant facts must be proved by evidence. However, there
are two exceptions to this rule:
Section 56: Facts judicially noticeable
Judicial notice- section 56, 57:
Judicial notice is based upon obvious reasons of convenience and expediency. It includes
matters within the common knowledge to everyone.
Section 57 contains a list of facts of which th e court is bound to take judicial notice, and
also on all matters of public history, literature, science, or art.
Judicial notice of a fact means the court is supposed to have knowledge of the fact and the
judge may rely upon his personal knowledge or any source (like proceedings of the
legislature).

Atluri Brahmanandam v. Anne Sai Bapuji (2010) SC

When a custom is repeatedly recognized by courts and blended into law of the land, proof
becomes unnecessary under section 57. Court held that the custom among “Kamma”
community of Andhra Pradesh of taking in adoption of a person above 15 years of age
need not be proved.

Onkar Nath v. Delhi Administration (1977) SC

List of facts in section 57 of which court can take judicial notice is not exhaustive. The
purpose of the section is to provide that the court can take notice of certain facts rather
than exhaust the category of facts.

Masoom Alam v. UOI (1973) SC

Judicial notice could be taken of the fact that a war between India and Pakistanbegan
on December 03, 1971 lasting about a fortnight.
• Court can take judicial notice of law of the land but not of foreign law.
• Court can take judicial notice of matters of common knowledge

34 | P a g e
SECTION 58: FACTS ADMITTED NEED NOT BE PROVED-
Facts admitted by a party:

➢ At the hearing; or
➢ By writing; or
➢ Had deemed to admit by any rule;
Need not be proved, provided that the court may require the facts admitted to be proved
otherwise than by such admission.

Illustration- Averments in the plaint not specifically denied by the defendant are deemed
admissions requiring no proof.

MODES OF PROOF
A fact may be proved by either oral evidence or by documentary evidence.
Section 59: All facts, except the contents of documents, may be proved by oral evidence.
Section 60: Oral evidence must be direct.
A witness can tell the court only a fact of which he has first-hand personal knowledge i.e., he
perceived the fact by his senses. Hence, hearsay evidence is not allowed unless allowed by
the Act.
Such exceptions are:
• Res Gestae under Section 6;
• Admissions and Confessions outside the court (Extra-judicial Confessions);
• Statements relevant under Section 32 – Dying Declaration;
• Slanderous statements heard by the witness as to the fact of a such statement made;
• Evidence in former proceedings (Sec. 33)
• Statement of experts in treatises (Section 60 proviso)

35 | P a g e
 Sakatar Singh v. State of Haryana (2004) SC
Section 60 excludes hearsay evidence. Hearsay evidence means the statement of a witness not
based on his personal knowledge but on what he heard from others. Thus, evidence has to be
of a person who is eye witness or witness of a fact and the principle is known as that of direct
oral evidence or of exclusion of hearsay evidence.

DOCUMENTARY EVIDENCE (SECTIONS 61 TO 90)

• ‘Document’ & ‘Documentary evidence’- defined under section 3
Documents are called ‘dead proofs’ as against ‘living proofs’, that is, the witnesses.
Documents are considered superior due to their permanence and trustworthiness.
Section 61: Contents of a document may be proved either by primary or by secondary
evidence.
• Primary evidence is defined under Section 62 and Secondary evidence under Section
63.
Section 62 states that ‘primary evidence’ includes:
• The original document itself. (the document itself produced for the inspection of
the Court)
• When a document is executed in several parts, each part.
• When a document is executed in counterparts, each counterpart.
Ex.: Cheque signed by drawer- primary evidence against him; counterfoil of that cheque
signed by payee- primary evidence against the payee.

• When a number of documents are made by one uniform process (such as printing,
lithography, or photography), each is primary evidence. But, copies of a common
original are not primary evidence
Bhagwanji v. Punjabbhai Rathod (2007)
Document was executed in 2 parts. Plaintiff had a carbon copy signed and executed in the
same process- a counterpart of the original. It was held that carbon copy is a primary evidence
for purposes of production in evidence. Party against whom it was produced could challenge
its genuineness.

Section 63 states that ‘secondary evidence’ means & includes: Not Exhaustive; Inclusive
definition
• Certified copies of the original document.
• Copies made from the original by a mechanical process and compared with such
copies. [Ashok v. Madho Lal (SC – 1975)]
• A copy made word-to-word from the original and compared with the original.

36 | P a g e
 • A counterpart of a document against the party which did not sign it.
Ex: A cheque is a secondary evidence against the payee as he only received it
and not signed it. But the counterpart which he signed is primary evidence
against him.
• Oral account of the contents of a document by a person who has seen the document.
• A photo of the original document is a secondary document.
• Oral evidence of the contents of a document is secondary evidence, if-
➢ Party offering oral evidence must be entitled to give secondary evidence of
the document
➢ The oral account of the contents of a document must be that of a person
who has seen it.

Niranjan Dawar v. Ranjana Baghel (2017)

Court held that a newspaper report is hearsay evidence. Examination of reporter,
editor or publisher as regards to manner in which the material was collected is
necessary to prove contents of report.

Section 64 says that a document must be proved by its primary evidence, except in the cases
mentioned in Section 65.
Section 65: Secondary evidence to prove documentsmay be produced when
The original is in the possession of the adversary, or a person out of reach, or not subject
to the process of court, or is not produced despite a notice under Section 66.
a. The party against whom the document is to be proved admits in writing the existence,
condition, or contents.
b. The original has been destroyed or lost, or the party cannot produce it within a
reasonable time, not due to its own default.
c. The original is not easily moveable (bulky documents).
d. The original is a public document under Section 74.
e. When certified copies are allowed as evidence under law.
f. When the fact to be provided is a general result of the whole collection of
documents.

NCT of Delhi v. Navjot Sandhu (2005 – SC):

Secondary evidence of call records are allowed as the huge servers cannot be produced in the
court.

37 | P a g e
Yashoda v. Shobha Rani (2007) SC
Documents in question are admittedly photocopies and there was no question comparing
them with originals. SC said that 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
under sec. 65(a).

CONTENTS OF ELECTRONIC RECORDS: SEC. 65A & 65B Ins. By 2000 Amendment
Section 65A- Contents of electronic records may be proved as per section 65B
Section 65B- Any information contained in an electronic record that is printed on
paper, stored, recorded, or copied in optical or magnetic media produced by a
computer shall be deemed as a document if the conditions provided further are
fulfilled.

Arjun Panditrao v. Kailash Kushanrao (2020) SC

Certificate under section 65B is not required when the original document is produced by
proving as a witness that the device, on which information was first stored, is owned/
recorded by such person.

The objective is to sanctify proof by secondary evidence. It applies to any computer output,
such output is deemed as a document for the purposes of proof.
Illustration- Court can admit the CCTV footage revealing the identity mark of assailant.
Conditions of relevancy of computer output under Section 65B(2)-
a. The computer output should be produced by the computer regularly used to store/process
information by a person having lawful control over it.
b. The information is of such kind which was regularly fed into the computer in ordinary
course of activities.
c. During that time period, the computer was operating properly.
d. Information was reproduced or derived from the information feeded into the computer in
the ordinary course of its activities.

Anvar v. Basheer (2014) SC

All safeguards must be taken to ensure the source and authenticity of the electronic
evidence. These are the two hallmarks pertaining to electronic records sought to be used as
evidence.

• When electronic evidence containing a statement is sought to be produced, a

certificate under section 65B has to be accompanied which should identify such
electronic record.
• Ex. Giving particulars and details of the device with which such evidence was

38 | P a g e
recorded, compliance with conditions under section 65B(2) must be shown.
Section 66 stipulates that before secondary evidence is received under Section 65, notice is
to be given to the party who has possession of the original document or his attorney.
However, such notice is not required when:
• The document to be proved is itself a notice.
• From the nature of the case, the party in possession must know that he is required
to produce it.
• The adverse party obtained possession by fraud or force.
• The adverse party or his agent has the original in court.
• The adverse party admits that the original is lost.
• The person in possession of the document is out of reach or not subject to the process
of the court.
• When a party is required to produce a document and fails, he cannot do so later unless
he obtains the other’s party's consent or court leave.
Effect of refusal/ failure of the opposite party to produce the original despite notice:
If the original document is in the possession of the opposite party and he does not produce
it despite several notices, secondary evidence can be given. However, the opposite party
cannot subsequently, as part of his case, produce the original in evidence. (Doed Thomson
v. Hodgson)
Proof of Signature and handwriting (Ss. 67 & 73)
SECTION 67: PROOF OF SIGNATURE AND HANDWRITING OF PERSON
ALLEGED TO HAVE SIGNED OR WRITTEN DOCUMENT PRODUCED
• If a document is alleged to be signed or written by any person
• such signature or writing must be proved to be in his handwriting
Section 67A: If the electronic signature of any subscriber is allegedly affixed to an electronic
record
• It must be proved that the electronic signature is of such a subscriber
• Except in the case of a secure electronic signature
SECTION 73: COMPARISON OF SIGNATURE, WRITING, ETC.
• To ascertain whether a signature, writing, or seal is that of a person by whom it
purports to be made
• Any signature, writing or seal admitted or proved to have been written/ made by that
person
• May be compared with the one which is to be proved.
• The court may direct any person present in the court to write any words/ figures and
compare them.
• This section also applies to finger impressions.

39 | P a g e
 ATTESTATION OF DOCUMENTS:
Section 68: When documents are required by law to be attested, attestation by two witnesses
adding signatures to the document is required. At least one such attesting witness should be
called to prove its execution.
However, when the document is registered under the Indian Registration Act, 1908 and the
person executing the document does not deny it, an attesting witness need not be called.
(The document not being a will)
Section 69: When no attesting witness is found, it must be proved that the attestation of at
least one attesting witness is in his handwriting, and the signature of the person executing
the document is in the handwriting of that person.
Section 70: When a party to the attested document admits that he executed the document,
it shall be sufficient proof of its execution against him. Such admission must be unqualified.
Section 71: If the attesting witness denies or does not remember the execution of the
document, its execution may be proved by other evidence.
• This section is a safeguard to section 68. It is there to rescue the party who had
resorted to all means, had done its best, and is left without any other means of proving
the execution.

Janki Narayan Bhoir v. Narayan Nandeo Kadam (2003 – SC):

Section 71 cannot be applied when only one attesting witness is examined and he fails to prove
the execution of the will. Hence, all available attesting witnesses should be called before invoking
Section 71.

Hare Krishna Panigrahi v. Jogneswar Panda (1939) Cal HC

If witness produced before the Court denies execution or his memory fails or he refuses to
prove or turns hostile, other evidence can be admitted to prove execution.

Section 72: Attested document not required by law to be attested may be proved as if it was
unattested. Hence, only execution has to be proved.
(Document will be proved as it was unattested, section 68 will not apply)
Section 73: The court may compare a signature, writing, or seal on a document with any
other signature, writing, or seal admitted or proved to be of that person. This section enables
the court to require any person present in the court to write any words or figures to enable
them to compare.
Murali Lal v. State of MP (1980 – SC): Courts should not use Section 73 to assume the role
of an expert. It should seek guidance from expert where available. Court can compare the
disputed and admitted signatures but the rule of prudence and caution requires opinion of
expert for assistance. If not available, judge can compare it himself but only after disclosing
this fact in the judgment.

40 | P a g e
PUBLIC DOCUMENTS
Section 74: The Following Documents Are ‘Public Documents:
1. Documents forming the acts or records of the acts of:
• Sovereign authority,
• Official bodies and tribunals,
• Public officers – legislative, judicial, and executive of India, commonwealth or any
country;
2. Public records are kept in any state of private documents.
Section 75: All Other Documents Are Private Documents.

Smt Rekha Rani v.Smt. Ratnashree Jain (2006)MPHC

Issue- Is sale deed a public document? (Conflict between sec. 75 & sec. 74(2)) Court held that
a deed of sale is a conveyance. It is neither an act of tribunal or sovereign authority nor
public record kept in state of any private documents. So, any registered documents including
sale deed is not public document as per section 74 but a private document.

Section 76: Every public officer with custody of a public document must, on demand and
payment of legal fee, should give a copy with a certificate. This is called ‘certified copy’.
As per Section 77, contents of a public document may be proved by the production of their
certified copy.
CERTIFIED COPIES OF PUBLIC DOCUMENTS : SECTION 76, 77, 79
Sec. 77: Proof Of Documents By Production Of Certified Copies-
Certified copies may be produced in proof of contents of public documents of which
they purport to be copied.
Sec. 79: Presumption As To Genuineness Of Certified Copies Presumption Of
Documents
• Section 79 to 85 & 89 – Compulsory Presumptions
• Section 86 to 88 & 90 – Presumptions at the discretion of the court

COMPULSORY PRESUMPTIONS: (REBUTTABLE)

Section 79: Genuineness Of Certified Copies.
Illustration- a birth certificate issued by a municipality (date of birth proof) carries a
presumption as to its genuineness.
Section 80: Testimony Or Confession Recorded By A Court In An Earlier Case.

41 | P a g e
SECTION 81: OFFICIAL GAZETTES NEWSPAPER AND JOURNALS
Section 81A: Presumption As To Genuineness Of Official Gazettes In Electronic Forms.
Section 82: Document Admissible According To The Law Of England And Ireland.

SECTION 83: MAPS OR PLANS MADE BY THE GOVERNMENT

Court shall presume that maps or plans made by the government are accurate.

SECTION 84: BOOKS PRINTED UNDER THE AUTHORITY OF THE

GOVERNMENT
Court shall presume the genuineness of every book printed under the authority of government
of any country, and to contain laws, reports, and decisions of courts of that country.

SECTION 85: POWER OF ATTORNEY

Section 85A: Presumption as to electronic agreements containing electronic
signatures of the parties.
Section 85B: Presumption as to secure electronic records and electronic signature affixed
by subscriber only.
Section 85C: Presumption as to correctness of information in electronic signature
certificates.
Section 89: Documents not produced after being called for can be presumed to have been
attested, stamped, and executed as required by law.

SECTION 86 TO 88 & 90: PRESUMPTIONS AT THE DISCRETION OF THE

COURT
Section 86: Certified copies of foreign judicial records.
Section 87: Books, maps, or charts may be presumed to be written or published by the
author and at the place stated.
Section 88: Telegraphic message – that the message delivered is the one sent.
Section 90: Documents older than 30 years. However, this is only regarding the truth of
the execution of the document, not regarding the truth of its content.
DOCUMENTARY EVIDENCE
• Rule of Best Evidence: Documentary Evidence over Oral Evidence.
• “Whatever is in writing must be proved by the writing”
Section 91 states that where the terms of a contract, grant, or disposition of property are:
• Reduced to a document; or
• Is required by law to be reduced to a document;
No evidence of the ‘terms’ of such document can be given except primary or secondary
evidence of the writing itself. However, evidence of factum of a contract is admissible.
42 | P a g e
It declares a doctrine of substantive law as well as embodies the best evidence rule.
This does not apply to an oral contract. Further, when Registration Act requires compulsory
registration, then an unregistered document will be inadmissible and no other evidence of
the contents can be given.
Exception 1: With regard to public officers, a person acting in such a position is sufficient
evidence of his appointment.
• Exception 2: Wills admitted to probate may be proved by probate.
➢ Explanation 1: If a contract is several documents, all documents should be proved.
➢ Explanation 2: Where there are several originals, only one needs to be proven.
➢ Explanation 3: In addition to the terms, if the document has any other fact, then oral
evidence can be given of such extraneous fact.

Taburi Sahai v. Jhunjhunwala (1967) SC

A deed of adoption of a child is not a contract within the meaning of section 91. So, it
can be proved by any evidence apart from the deed.
Section 92 says that once a contract, grant, or disposition of property has been proved
under Section 91, no oral evidence can be given to contradict or change the terms of the
contract.

Rajkumar Rajendra Singh v. State of HP(1900 – SC)

The rationale behind Section 92 is that the parties are presumed to have put in
writing all that is necessary for the contract.

Vishwa Nathan v. Abdul Wajid (1986)

Section 92 precludes only the parties to the document and their representatives in
interest from giving oral evidence about contents of the documents. Other parties are
free to give any such evidence.

Exceptions Of Sec. 92:

➢ Proviso 1: Validity of a document on grounds of fraud, illegality,

misrepresentation, etc.
Illustration- A institutes a suit against B for the specific performance of a contract, and
also prays that the contract may be reformed as to one of its provisions, as that
provision was inserted in it by mistake. A may prove that such a mistake was made as
would by law entitle him to have the contract reformed.
➢ Proviso 2: Matters on which the document is silent when such matters are not
consistent with the document.
Illustration- Terms of the contract agreed upon by parties orally on which the
document was silent, may be proved.

43 | P a g e
 ➢ Proviso 3: Proving condition precedent of a contract. This does not apply to a contract
being performed or already performed.
This does not apply to a contract being performed or already performed.
Illustration- A orally agreed to sell 10g of gold to B at Rs. 5,000/g. However, the
condition precedent that it will be enforced when the market price of gold will reach
Rs. 5,000/g may be proved.
• Proviso 4: Rescission or modification of a contract made orally. This does not apply
to a contract required to be registered by law. Further, an agreement registered
cannot be altered or rescinded orally.
• Proviso 5: Usages or customs not inconsistent with the contract can be explained by
oral evidence.

Bejoy Krishna v. NB Sugar Mills Co. (1949)

Oral evidence may be offered that by the custom of the trade, the seller was
supposed to arrange for wagons for effecting delivery of goods in a particular fact
situation.

• Proviso 6: Oral evidence to show in what manner the language of a document is

related to existing fact. This is used when there is a latent ambiguity.

AMBIGUOUS DOCUMENTS (SECTIONS 93 TO 100)

e is

These provisions allow removal of ambiguity using extrinsic evidence.

44 | P a g e
AMBIGUITY
Section 93: When the language used is on its face, ambiguous, or defective, no evidence can
be given to show its meaning.
Ex. Uncertain agreements under Section 29 of the Contract Act.
Section 94: When the language used in a document is plain in itself and applies accurately
to an existing fact, then no evidence can be given to show that it was not meant to apply to
such facts.
Section 95: When the language is plain, but its facts are meaningless, evidence can be given
to show how it was intended to apply.
Section 96: When the language is clear, but it is intended to apply to only one thing or
person, evidence can be given to show which particular person or thing.
Ex: Hyderabad – Deccan or Sindh?
Section 97: When there are two or more sets of facts to which the language applies,
evidence can be given to show which facts it was meant to apply.
Ex: My house at X in occupation of Y.
Section 98: Evidence can be given to show the meaning of illegible or foreign, obsolete,
technical, or local characters.
Section 99: Allows evidence by non-parties to show that there is a
contemporaneous agreement varying the terms of the document.
Section 100: Above provisions do not apply to wills governed by the Indian Succession
Act, 1925.

BURDEN OF PROOF
• The burden of proof is the obligation to prove a fact set on a party.

• When no evidence is given by the party who has the burden, the issue will be found
against him. Thus, the burden of proving a fact lies on the one who asserts it.

• Rationale: It is easier to prove the affirmative than the negative.

• The burden of Proof has 2 aspects: (1) The burden of establishing a case, and (2)
introducing evidence.
The burden of establishing a case remains throughout the trial where it was originally
placed, and it never shifts. However, the burden of evidence may shift constantly as
evidence is introduced by both sides.

45 | P a g e
 As a matter of
As a matter of law.
Burden adducing evidence.

Fixed at the start of Unstable and shifts

the trial (Section 101) of Proof back and forth.
(Section 102 & 103)

Section 101: A person who desires a judgment as to any legal right or liability dependent on
the existence of facts must prove such facts. Hence, the burden of proof lies on him.

Subhra Mukherjee v. Bharat Coking Coal Ltd. (2000 – SC): When a party alleges that a
transaction is a sham, such party shall prove it. However, when a party relies on a contested
transaction, it must prove that it was genuine.

Section 102: The burden of proof lies on the person who would fail if no evidence is given
on either side. Ex: A sues B for money on a bond. B pleads that the bond was obtained by
fraud. Here, B has to prove fraud.
Section 103: The burden of proof as to any particular fact lies on the person who wishes
the court to believe in its existence.
Ex: A person who signed a loan document alleges that he had signed only a blank paper. The
burden of proof is on him to prove this fact.
• When the evidence produced by both parties is equally balanced, the person with the
burden of proof loses the matter.
• A party must establish the case on his own. He cannot rely on the weakness of the other
party. This is subject to two exceptions:
➢ Facts that are especially within the knowledge of the other party (Section 106).
➢ When there is any presumption of law (Section 107 to 113) or fact(Section 114).
Section 104: The burden of proving fact to be proved to make evidence admissible is on the
person giving such evidence.
Ex: A wants to prove B’s dying declaration. He must first prove that B has died.
A wishes to prove the contents of a document that has been lost, by secondary evidence.
A must prove the document has been lost.

46 | P a g e
 Section 105: The burden of proving special or general exception or a proviso under
criminal law shall rest on the accused.
Onus of establishing an exception shifts to the accused when he pleads for such an exception.
This onus can be discharged either by affirmatively establishing the plea or by establishing
such circumstances which would create doubt in the court’s mind about the possibility of
the accused reasonably acting within the exception. (The criminal standard of proof i.e.,
beyond a reasonable doubt is not required)

Dayabhai v. State of Gujarat (1964 – SC):

There is no conflict between the general burden on the prosecution and special burden on the
accused under Section 105. Further, the burden on the accused is not as strict as the prosecution
and is comparable to civil laws.

Rabindra Kumar Das v. State of Orissa (SC) 1976

Court laid down 3 principles in reference to burden on accused to prove his defence Onus
(Burden of proof) lies on the prosecution to prove his case beyond reasonable doubt and it
cannot derive any benefit from the weakness/ falsity of evidence of defence while provingits case.
That in a criminal trial, accused is innocent until proven guilty. The burden of proof of
prosecution never shifts.

Section 106: When any fact is e specially within the knowledge of any person,the burden
of proving a such fact is upon him.

• It does not apply where fact is capable of being known also by a person other than the
defendant.
• Section 106 is an application of the principle of ‘Res Ipsa Loquitor’
Ex: Proving an alibi or ‘Res Ipsa Loquitor’ or refuting the charge of travelling without a
ticket.
Section 106 applies only to parties.

Sucha Singh v. State of Punjab (2001 – SC):

Section 106 is not intended to reduce. burden on the prosecution. But it is applied when a
Reasonable inference can be drawn unless the accused proves a fact which is within his special
Knowledge.

State of Rajasthan v. Kashi Ram (2007) SC

It was established that the deceased was last seen alive in the company of respondent
(husband). The respondent did not give any explanation in defence. Court held that the
presumption under section 106 may be drawn against respondent since where he was
during the relevant period and when he parted company with deceased are the matters
within his ‘special knowledge.’ Section 106 does not shift the burden of proof which is
always upon the prosecution. It rather lays down the rule that when accused does not
throw any light upon facts specially within his knowledge, the court can consider his
failure to adduce any explanation as an additional link which completes the chain.
47 | P a g e
 • It does not apply where fact is capable of being known also by a person other
than the defendant.
• Section 106 is an application of the principle of ‘Res Ipsa Loquitor’

SECTION 107: PRESUMPTION OF CONTINUANCE OF LIFE

When the question is whether a person is dead or alive, and it is shown that he was alive
within the last 30 years, the burden of proof that he is dead is on the person who claims such
person to be dead.
• There is a general presumption of continuity of things. If a person is shown to have existed
within last 30 years, a presumption is raised that he is still alive, and if anyone alleges that
he is dead, such person must prove that fact.
• This presumption is not very strong and may be rebutted by slight evidence to the
contrary claims such a person to be dead.
• There is a general presumption of continuity of things. If a person is shown to have existed
within the last 30 years, a presumption is raised that he is still alive, and if anyone alleges
that he is dead, such a person must prove that fact.
• This presumption is not very strong and may be rebutted by slight evidence to the
contrary.
SECTION 108: PRESUMPTION OF DEATH
When a person has not been heard of for 7 years by those who would naturally have
heard of him had he been alive, the burden of proof that he is living is shifted to the person
who claims that he is alive.
• When the question is whether a person is dead or alive, and
• It has been proved that he has not been heard of for 7 years (Continuous) by those
who would naturally have heard of him
• The burden of proof that he is alive lies on the person who says so (Onus)
It does not apply to a person absconding from justice or who evades trial or is charged for
the commission of a grave offence.
Section 108 is an exception to Section 107. However, both must be read together as when
combined they form a single rule.
LIC of India v. Anuradha (2004 – SC):
The presumption under Section 108 is limited to factum of death. It does not extend to
the date and time of death. Hence, if a person is not heard of for 18 years, there is no
presumption that he died in the first 7 or last 7 of those years.

Darshan singh v. Gujjar singh (2002) SC:

Plaintiff claimed succession to estate of x. He established that x has not been heard
of for 7 years. High court held that the date of the suit shall be deemed to be the date
of the death. However, Supreme Court held that no proof of time/ date of death is
required. There is no presumption of the exact time of the death.

48 | P a g e
 SECTION 109: BURDEN OF PROOF AS TO THE RELATIONSHIP
When it is shown that certain persons have acted under a relationship such as
partners, landlords, tenants, principals, agents, etc., the law presumes them to be so related.
Hence, the party who argues that such a relationship does not exist shall have the burden of
proof.

Kishore Singh v. State of Rajasthan (1981) SC

The burden of proof that the relationship as landlord and tenant do not exist lies heavily
on the person who affirmed that he is not a tenant.

SECTION 110: BURDEN OF PROOF AS TO OWNERSHIP

There is a presumption that a person, who has possession of a thing, whether moveable or
immovable, is the owner. Hence, the burden to prove that he is not the owner rests on the
party which claims so.
• Based on the principle that possession is prima facie proof of ownership
• No application in case of an actionable claim (bonds) as it is not a thing capable of
being possessed.

VK Thimmaiah v. VK Parvathi (2003)

Any property acquired by Karta of the joint family is presumed to be the Hindu Joint Family
property. Any coparcener claiming that property is self acquired has the burden on him to
prove it.

Section 111: When a person stands towards another in a position of active confidence, then
the burden to prove good faith between them lies on the person in active confidence.
Ex: Section 16 of Contract Act.

PRESUMPTIONS: (Ss.11A-114A)
• The effect of a presumption is that a party in whose favor the fact is presumed is
relieved of the initial burden of proof until the other party rebuts the presumption.
There are rebuttable presumptions (Section 108 of the Evidence Act) and irrebuttable
presumptions (Section 82 – IPC).
Section 112: The fact that a person was born:
• During the continuance of a valid marriage between his mother and any man; or
• Within 280 days after its dissolution and mother remains unmarried.
is conclusive proof that the person is a legitimate child of that man unless it is
proven that the couple had no access to each other at any time when he could
have begotten.

49 | P a g e
• ‘Access or non-access means the existence or non-existence of opportunity for marital
intercourse. Non-access can be established by direct or circumstantial evidence. Ex-
Incapability of access of account of impotency, physical incompetency, etc.
• Maternity is a fact and paternity is a matter of inference according to Section 112. It is
a presumption of law that a child is a legitimate child.
Section 112 deals only with the ‘presumption of legitimacy’ and not paternity. Both
do not have to overlap in all cases as the child’s interest, maintenance, upkeep, and
inheritance can be protected by such a presumption. Not necessary to include these
within the presumption of paternity in all cases. (Rajesh Francis v. Preethi Roslin
(2012) SC)
• In the interest of the welfare of the child, it is perfectly permissible to burden a non-
biological father with an obligation arising from the legitimacy of the child born
during his matrimony.
• Based on the principle that when a particular relationship, such as marriage, is shown
to exist its continuance is prima facie presumed.
• The deciding factor is the point of time of birth (should be during wedlock) and
not the time of conception.
• The presumptions apply even when the child is born immediately after marriage. It is
not relevant whether the mother was married or not at the time of conception.
• The only way to rebut the presumption is the proof of non-access between the parties
to the marriage. Such rebuttal should make a clear case for the preponderance of
evidence, not just a mere balance of probabilities.

Sethu v. Palani (1925 – Madras):

A child was conceived during the first marriage, but delivered after the divorce and the
second marriage. The court held that the husband from the second marriage is the
legitimate father.

Goutam Kundu v. State of WB (1993 – SC):

The courts cannot order blood test to prove that a man is not the father. The
presumption under Section 112 cannot be rebutted.
However, an admission by the mother than the child is illegitimate is admissible.

Nandlal Badwaik v. Lata Badwaik (2014) SC

Section 112 was enacted when modern scientific advanced and DNA tests were not in
contemplation of legislature. In case of conflict between conclusive proof and proof
based on scientific advancement accepted by world community, the latter should prevail.

50 | P a g e
 Section 113: proof of cession of territory
A notification in the Official Gazette that any portion of British territory has been
ceded to any native state, prince, or ruler before the commencement of part III of the
Government of India Act, 1935, is conclusive proof that a valid cession took place on the date
mentioned in the notification.
Section 113A: presumption as to abetment of suicide by a married woman.
(Presumption of fact)
1. When the question is whether the commission of suicide by a woman was abetted by her
husband or his relatives, and
2. It is shown that she had committed suicide within 7 years of her marriage and her husband
or his relatives had subjected her to cruelty
3. Court may presume that such suicide was abetted by her husband or his relatives, having
regard to all the other circumstances of the case.

Pinakin Rawal v. State of Gujarat (2013) SC

Wife committed suicide because her husband had an extra marital affair. Court held that an
extra marital relationship is not cruelty per se. It must be of such a nature as is likely to drive
the spouse to commit suicide to fall within the explanation of Section 498A IPC.

Section 113B: Presumptions as to Dowry Death

(Presumptions of Law)

1. When the question is whether a person has committed dowry death of a woman, and
2. It is shown that soon before her death she was subjected to cruelty or harassment by such
a person for dowry demand.
3. Court shall presume that such person had caused dowry death. (Section 304B IPC)

Section 114: The court may presume the existence of any fact likely to have happened
having regard to the common cause of:
•Natural events.
•Human conduct, and
•Public and private businesses.

Limbaji v. State of Maharashtra (2002 – SC):

The fact of possession of stolen jewelry immediately after the robbery and murder of the deceased
was used to presume guilt of robbery. The Supreme Court affirmed it. Further, it was held that if
both the robbery and murder form part of the same transaction, even murder can be presumed.

51 | P a g e
Section 114A: Presumption as to absence of consent in certain prosecution for rape
• In prosecution for rape under section 376(2)(a)-(n) IPC
• Question is whether the woman consented to such sexual intercourse, and
• Such woman states in her evidence that she did not consent
• Court shall presume absence of her consent.
• The sexual history of the victim is totally irrelevant in proving consent

Rajoo v. State of MP (2008) SC

There is no requirement of law to insist upon corroboration of victim’s statement to base
conviction. Court may look for corroboration for assurance and to inspire confidence. But
corroborative evidence is not an imperative component of judicial credence in every case of
rape.

RULE OF ESTOPPEL
Section 115: When A Person Has--
•By his declaration, act, or omission;
•Intentionally caused or permitted another to believe;
•A thing to be true and to act upon such belief;
•He shall not be permitted to deny the truth of that thing in any suit or proceeding;
Estoppel is a principle of law by which a person is held bound by the representation made
by him or arising out of his conduct.
It is based on the principle that ‘A person cannot approbate and reprobate at the same time.’
Maxim- Allegans Contraria non est andiendus
“A person alleging contradictory facts should not be heard.”

Illustration- A man while booking his consignment with a railway company declared its value
to be one hundred rupees. When the packet was lost, he was not permitted to claim more
value than that.

Pickard v. Sears (1837):

Estoppel is based on the principle that it is inequitable and unjust to allow a person to
deny the truth of a statement he made. Estoppel applies in civil action and has no
application in criminal proceedings.

• There is no estoppel against law or statute. A rule of law cannot be nullified by resorting
to the doctrine of estoppel. Ex- minor misrepresented his age and entered into a
52 | P a g e
 contract. He cannot be later compelled to enforce it.
• There cannot be any estoppel against the government in exercise of its sovereign,
legislative and executive functions.

State of Kerala v. Kerala Rare Earth & Minerals Ltd. (2016) SC

State declared by order settlement of an area for 2 years in favour of a person and then
before final order was passed, the same area was declared by order to some other
person. Court held that there is no estoppel against governmental function

Chhaganlal Mehta v. Haribhai Patel (SC)

1. There must be a representation
2. Of the existence of a fact & not of any future promise
3. Such representation must be relied upon
4. The other party must have believed it
5. Without knowledge of the true facts
6. The burden of proving estoppel is on the party claiming it
7. Estoppel can be used to enforce action, but it is not a cause of action by itself
8. Estoppel may also arise from omission or silence when there is a duty to speak.

Promissory Estoppel under Law of

Estoppel under sec. 115
Contracts

Arises out of a fact Arises out of a promise

Rule of statutory law Rule of equity

53 | P a g e
Exceptions to estoppel-
1. No estoppel against a minor, even when he fraudulently misrepresents his age.
2. When true facts are known to both parties.
3. Fraud or negligence of the other party.
4. When both parties plead estoppel, it cancels out.
5. No estoppel on a point of foreign law or sovereign acts.
6. Estoppel ends when a person waives his rights under the law.

Section 116: No estoppel by the tenant or licensee against the owner for a title.
Section 117: An acceptor of a bill of exchange is estopped from denying the authority of the
drawer.
WITNESSES
Section 118: All persons are competent to testify unless the court considers that due to:
• Tender age
• Extreme old age
• Disease of body or mind
• Infirmity
they are incapable of understanding the questions and of giving rational answers. Hence,
even a lunatic is competent if it is capable.
The testimony of a witness based on information provided by another person is admissible
if the informant is also examined in court.
Testimony of a child witness must be evaluated more carefully and with greater
circumspection because a child is susceptible to being swayed by what others tell him and is
easy prey to tutoring.

Nirmal Kumar v. State of UP

It is a sound practice not to rely on uncorroborated evidence of a child. This is only a rule
of prudence, and not a rule of law.

Bhagwan Singh v. State of MP (2003)

Court emphasized upon the need for carefully evaluating testimony of a child. Adequate
corroboration must be looked from other evidences. In this case, a 6 year old child saw his
mother being killed at night. He then went back to sleep. Court held that his reaction
reflected unnaturality of conduct. Hence, his testimony could not be relied upon.

A minor is incompetent to swear to an affidavit. The such affidavit is not admissible under
the Oaths Act and General Clauses Act.
Person of Unsound Mind:
• Explanation to section 118 makes it clear that evidence of a lunatic person is not
necessarily inadmissible unless he is prevented by the disease of mind from
rationally understanding the question or answering them.

54 | P a g e
It may be allowed to call medical evidence of mental illness which makes a witness incapable
of giving reliable evidence.
Chance Witness: A witness who was at the scene of the offence by chance. His evidence is
valid even if there is no compelling reason for his presence.
A witness cannot be barred simply because he is related to the producing party unless it is
shown that the statement is tainted.
Section 119: A dumb person can make himself intelligible by writing or signs.
Section 120: In all civil proceedings, the parties and their husband or wife shall be a
competent witnesses. In criminal cases, the accused himself is not a witness, but the husband
and wife can be a witness.
(Protection against self-incrimination. Sec. 315
CrPC allows the accused to be a witness, on his
request.)
Section 121: A judge or magistrate cannot be compelled to give evidence:
•About his conduct in relation to a case he tried; or
•To disclose anything which he came to know as a court in course of a trial
Except on a special order of a higher court. However, he may be examined as to other
matters which occurred in his presence.

PRIVILEGED COMMUNICATIONS
Section 122: Communication during the marriage is privileged unless:
•The person who made it consents (waiver);
•In suits between married persons;
•Crimes by one married person against another;
•Acts apart from communication;
•Communication before or after marriage;
•Statements overheard by a third person;
The privilege extends even when the suit is between two strangers and the married persons
are not a party.
Verghese v. Ponnan (1970 – SC):
A letter by husband to wife was produced by wife’s father and was admitted as evidence,
as the letter was obtained by a third party by himself.

Section 123: Unpublished official records relating to any affairs of the State cannot be
produced in evidence, except with the permission of the officer at the head of the
department.

55 | P a g e
State of UP v. Raj Narain (1975 – SC):
The Supreme Court held:
Section 123 should be read with Section 162. Section 162 says that a person summoned to
produce a document should produce it even when he has an objection. The court decides
upon such objection.
The head of the department also has discretion to decide the confidentiality. However,
the court’s decision prevails.

Section 124: Public officer not to be compelled to disclose communications made

by him in official confidence.
Section 125: A magistrate, police officer, or revenue officer is not to be compelled to
disclose the source of information.
Section 126: No barrister, attorney, pleader, or vakil shall be permitted to:
• Disclose any communication made to him by the client or any advice given by
him to the client in the course of his employment.
• State the contents or conditions of any document with which he became
acquainted.
However, disclosure of the following is not protected:
• Any communication made in furtherance of any illegal purpose;
• Any fact observed by the attorney showing any crime or fraud since the
commencement of his employment.
• When there is a waiver of the client by express consent.
• Communications overheard by third persons can be disclosed by them.
• The suit between the attorney and client.
• As against persons who have a joint interest with the client. Ex: Partners
• Documents already put on record.
Section 127: Extends the protection to interpreters, clerks, etc.
Section 128: When the client gives evidence protected under Section 126, it does not amount
to a waiver of privilege. Hence, the lawyer cannot give the remainder of the documents whose
parts have been produced.
Section 129: When a client offers himself as a witness, he may be compelled to disclose such
communication as is necessary to explain any evidence already given.
Section 130: A witness who is not a party cannot be compelled to produce:
•His title-deeds to any property;
•Any document which made him pledgee or mortgagee;
•Any document which may criminate him;
Section 131: Protection under Section 130 extends even when the document is in possession
of others.
56 | P a g e
ACCOMPLICE EVIDENCE
An accomplice is a person who has taken part in the commission of a crime. If he is granted
a pardon under Section 306 of CrPC, he is called an ‘approver’ and becomes a witness for the
prosecution.
Section 133: An accomplice shall be a competent witness against an accused, and a
conviction is not illegal merely because it is based on the uncorroborated testimony of an
accomplice.
Section 114: The court may presume that an accomplice is unworthy of credit unless he is
corroborated in material particulars;

Dagdu v. State of Maharashtra (1977 – SC):

There is no antithesis between Section 133 and 114. Section 133 is a rule of law, while
Section 114 is a rule of prudence.

The issue with the evidentiary value of an accomplice is:

1. He is Participes criminis – participant in the commission of the crime.
2. He is faithless to his companions. Hence, may be faithless to the court.
3. He is biased towards the prosecution to save himself. Hence, involved self-interest.

R v. Baskerville (1916):
The guidelines of an approver’s evidence:
• Not necessary to match every detail. Only ‘material particulars’ should match.
• Identity of the accused must be proven.
• Corroboration must be by independent testimony even if it is circumstantial.

Ramashwar v. State of Rajasthan (1952 – SC):

The Supreme Court in this case upheld the case R v.Baskerville. Court should look at the
accomplice evidence with great caution.

Section 30: When more than one person is being jointly tried for the same offense, a
confession made by one of such persons can be considered against other persons as well.

Difference between Section 30 and Section 133:

•A confession is not on oath. Hence, Section 133 has a higher probative value.
•A confession is not given in the presence of other accused and is not subject to
cross-examination.
•A confession alone cannot be the basis of conviction. It should be supported by

57 | P a g e
 other evidence.

EXAMINATION OF WITNESS
Section 132: Witness not excused from answering on ground that answer will incriminate.
However, he shall not be subjected to arrest or prosecution based on his answer, except for
prosecution for giving false evidence.
Section 134: No particular number of witnesses shall be required for the proof of any fact.

Chacko v. State of Kerala (2004 – SC):

One credible witness outweighs the testimony of other witnesses. Quality, and not
quantity, of evidence matters. Evidence is weighed, not counted.

Section 135: The order of witness production shall be regulated by civil or criminal
procedure. In the absence of such a law, it will be the discretion of the court.
Generally, when one witness is being examined, other witnesses should not be present. If
present, a note to that effect should be made in the record.
Section 136: When a party proposes to give evidence of any fact, the judge may askin what
manner such fact may be relevant.

SECTION 137: DEFINES

• Examination-in-Chief: Examination of a witness by the party who calls him.
• Cross-Examination: Examination by the adverse party. This is a must.
• Re-Examination: Examination again by the party which calls the witness.

SECTION 138: ORDER OF EXAMINATION

Examination-in-Chief Cross-Examination Re-Examination
Section 139: A person summoned to produce a document need not be a witness merely by
such production. He cannot be cross-examined unless and until he is called as a witness.

SECTION 140: WITNESSES TO CHARACTER MAY BE CROSSED AND RE-

EXAMINED
Pointers on Examination:
• Cross-examination can extend to all relevant facts, whether touched in chief or not.
• A witness can be subject to cross only after the chief. Hence, cross follows chief.
However, if a witness is not available for a cross, his chief may not have value.
• When there is no cross on a point touched in chief, it leads to an inference that the
statement is accepted as truth.
• Co-defendants can be crossed by each other when their interests are adverse.
58 | P a g e
 • If re-examination introduces a new matter, there can be a crossover.
Section 141: ‘Leading questions’ are questions suggesting the answer which the person asking
expects.
Section 142: Leading questions should not be asked in chief or re-examination, except with
the permission of the court. The other party may object to such questions.However, the court
shall permit them if they are:
• Introductory;
• Undisputed;
• Sufficiently proved matters;

Section 143: Leading questions may be asked in cross-examination.

Section 144: When a witness gives evidence as to a matter in writing, theopposite party
may object to it until:
Original document is produced; or
• Party producing is entitled to give secondary evidence;
Section 145: A witness may be contradicted against any statement he madeearlier.
Section 146: A witness can be asked all questions on relevant facts including:
• To test his veracity;
• To discover who he is and his position in life;
• To shake his credit by injuring his character even if it incriminates him;

CROSS-EXAMINATION
Section 147: During cross-examination, a witness should answer even if it may incriminate
him. If he does not, then his testimony will lose value.
Section 148: When a question not relevant to the facts, but only to shake the credit of the
witness by exposing his character, is asked, then the court may or may not require the
witness to answer. The court may also warn the witness that he is not bound to answer.
Section 149: A question carrying an imputation to a witness shall not be asked unless there
are reasonable grounds. The court may even report the Advocate asking such question to the
High Court or any professional body such as BCI. (Section 150)
Section 151: The court can prevent indecent and scandalous questions frombeing asked.
Section 152: Questions to insult or annoy witnesses can be prevented by the court.
Section 153: If a witness has answered a question as to his credit, no evidence can be given
to contradict his answer. However, if his answer is false, he can be prosecuted later under
Section 193 of IPC for perjury. Exceptions to this rule are:

59 | P a g e
 • Previous Conviction- When the witness denies a previous conviction of a crime, such
previous conviction can be proved.
• Impartiality-When witness is asked a question to impeach his impartiality and he
answers by denying the facts suggested, he may be contradicted. (Ulterior motive can
be proved)
If the fact asked has a direct bearing on the issue, it can be contradicted by independent
evidence.

Illustration- A, a witness testifying against B, is asked whether his family has had a prolonged
dispute with the family of B. He denies it. He may be contradicted as such question tends to
impeach his impartiality.

HOSTILE WITNESS:
Section 154: The court may allow a party calling a witness to put him questions that could
be asked in a cross by the adverse party. This means that questions can be asked on:

• Leading questions can be asked under Section 143;

• Questions on previous written statements under Section 145;
• Questions to test veracity or shake credit under Section 146;

A witness gained by the opposite party is called a hostile witness. However, a witness is not
hostile:
• Simply because his testimony does not support the party calling him;
• When he is not produced out of the fear that he might disfavor the party;
• Merely because he gives inconsistent answers;
State of Bihar v. Laloo Prasad (2002 – SC):
The party may seek court’s permission to declare a witness hostile at any stage of the
trial. However, the court has the discretion to grant it or not. Alternatively, the party
may simply not rely on the evidence of such witness and ignore it, although thecourt may
still consider it

SECTION 155: CREDIT OF A WITNESS MAY BE IMPEACHED BY THE

ADVERSE PARTY OR EVEN THE PARTY CALLING HIM BY
• Producing other witnesses to prove he is unworthy of credit;

• Proving corrupt inducement such as taking a bribe;

• Proving contradictory previous statements;

60 | P a g e
CORROBORATION
Section 156: When evidence of a witness needs to be corroborated, he may be questioned as
to any other circumstances observed at the time or place where the main fact happened.
Section 157: To corroborate the testimony of a witness, any former statement made by him
relating to the same fact may be proved. A statement that would have beendying declaration
had the person died can be used for corroboration if the person survives.
Section 158: Statements that confirm or contradict a statement relevantunder Section 32 can
also be proved.

REFRESHING MEMORY
Section 159: A witness may look at the following to refresh his memory:
• The writing was made by him at the time of the transaction or soon afterward when
thetransaction was fresh in his mind.
• Writing by other people about the transaction which was read by the witness within
the aforesaid time.
• Any professional treatises where the witness is an expert.
Section 160: A witness may testify facts in the document if he feels that its contents were
recorded correctly.
Ex: An accountant testifying that the accounts were kept properly.

PRODUCTION OF DOCUMENTS
Section 162: A witness summoned to produce a document shall produce it even when he
has objections. The court shall decide on the objection.
Section 163: When a party produces a document due to a notice of another party, such
party is bound to use it as evidence if the producing party so desires.
Section 164: If a document is not produced as per the notice, such a party cannot produce
it later without the consent of the other party or permission of the court.
Section 165: A judge has the power to ask any question to a witness or a party or require
the production of any documents. The other party shall not object to this, and no cross-
examination will be allowed unless the court permits it.
Section 167: Improper admission or rejection of evidence is not a ground for reversal of
judgment if the evidence would not have varied the decision.

61 | P a g e