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LAW EVIDENCE NOTES

Q. "Evidence may be given of facts in issue and relevant facts." Explain.


To ensure that a judicial process does not linger on for too long, courts cannot waste their time on
things that are not important for the case. While there can be many things for which evidence can
be given but evidence that does not bear on the case at hand, has no use for the court. This is
the concept behind ection ! of "ndian Evidence #ct, $%&', which says that in any suit or
proceeding, evidence may be given of the existence or non(existence of every fact in issue and of
such other facts as are hereinafter declared to be relevant, and of no others. # person is not
allowed to bring forward any evidence to prove or disprove a fact that is neither a fact in issue or
a fact that is relevant to the facts in issue. This statement refers to two )inds of facts ( facts in
issue and relevant facts. *et us see what they both mean (
+acts in "ssue
ection , defines facts in issue. #ccording to this section, a fact in issue is a fact that directly or
indirectly in connection with other facts, determines the existence, non(existence, nature, or
extent of any right or liability that is asserted or denied in any suit or proceeding. "n other words,
facts in contention in a case are facts in issue. +or example, # is accused of murder or -. "n this
case, the following are facts in issue (
$. # caused -.s death.
'. # had intention to )ill -.
,. # was insane.
/. # received grave and sudden provocation from -.
#ll the above are facts in issue because they are in contention and they determine the liability of
#. Their truth increases or decreases the probability that # murdered -. 0rosecution will have to
establish the facts that prove that # murdered - before # can be convicted. #t the same time, the
prosecution also has to disprove that any of the exceptions do not apply to #. # fact in issue is
also )nown by its latin term ( factum probandum, which means fact to be proved.
# fact will be considered as fact in issue only if the fact is such that by itself or in connection to
other facts it is crucial to the 1uestion of a right or liability. To be a fact in issue, a fact must satisfy
two re1uirements ( the fact must be in dispute between the parties and the fact must touch the
1uestion of right or liability. The extent of rights and liabilities of parties depend on the ingredients
of an offence. "n criminal matters, the allegations in the charge sheet constitute the facts in issue,
while in a civil case, it depends on the provisions of the substantive law.
2elevant +acts
3Q. What do you understand by relevancy of facts45
The word relevancy as such is not defined in "ndian Evidence #ct, $%&', however, the meaning of
the word is 1uite clear. The word "relevancy" means the property of a thing that ma)es it
connected to the matter at hand. # thing is relevant to other when it has a relation to the other
thing that tells something appropriate about the other thing. 2elevancy of a +act means that the
fact has a significant relation to another fact that is under consideration. When two facts have a
direct relation, they are relevant to each other. +or relevancy it is necessary that if we ta)e one
fact, the other will be relevant only if there is a certain type of relation between them, which is
pertinent in the given circumstances.
# relevant fact is also )nown by its latin term ( factum probans, which means a fact that proves.
Thus, if facts(in(issue are the facts to be proved or disproved in a trial, relevant facts are the facts
that help prove or disprove facts(in(issue. # fact is relevant if belief in that fact helps the
conclusion of the existence or non(existence of another.
ection , specifies that a 2elevant fact is a fact is relevant to another when it is connected to the
other in any of the ways referred to in the provisions contained in the act. ections 6 to !!
contains provisions that define the relationships that ma)e a fact legally relevant or not relevant to
another. The relationship ma)es one fact more probable or improbable because of the other. +or
example, +act # is that a person was given certain medication and he died. +act - is that the
person was suffering from T-. 7ere, fact - is relevant to fact # because it throws light on the
possible causes of his death. +act - ma)es is probable that he might have died because of T-
instead of the given medication.
"n 800 vs 9ilbourne, $:&,, *ord imon of ;laisdale has said, "Evidence is relevant if it is logically
probative or disprobative of some matter which re1uires proof. # relevant evidence is evidence
that ma)es the matter which re1uires proof more or less probable."
#s is evident from ection ! stated above, only those facts that are related to the facts in issue
through relationships defined in ection 6 to !! are legally relevant and evidence can be given
only for those facts in a trial. "t must be noted, however, that a relevant fact may not necessarily
be admissible.
ection $$ would be important to mention here. #s per ection $$, in certain situations facts not
otherwise relevant become relevant. This happens if they are inconsistent with any fact in issue
or relevant fact or if by themselves or in connection with other facts they ma)e the existence or
non(existence of any fact in issue or relevant fact highly probable or improbable. +or example, 3a5
The 1uestion is whether # committed a crime at <alcutta on a certain day ( The fact that, on that
day, # was at *ahore is relevant. 3b5 The 1uestion is, whether # committed a crime. The
circumstances are such that the crime must have been committed either by #, -, < or 8. Every
fact which shows that the crime could have been committed by no one else and that it was not
committed by either -, < or 8 is relevant. #s is shown by these illustrations, an alibi is a very
common example of an irrelevant fact becoming relevant.
Q. Explain the doctrine of 2es ;estae. 8o you agree with the view that this doctrine is not only
useless but is also harmful4 = When does relevancy of facts form part of the same transaction4
8octrine of 2es ;estae
"n a nutshell, 2es ;estae means facts forming part of a transaction. This includes things done
and things said in the course of a transaction. #cts and declarations accompanying a transaction
are treated as 2es ;estae and are admissible in evidence. #s discussed above, a <ourt is
interested only in such evidence that is bearing on a fact in issue or a relevant fact. This is
important in limiting the scope of the trial to facts that are indeed important for the case so that
justice can be done swiftly.
7owever, in narrowing the scope of things that can be brought before the court, injustice should
not be done. The things that are reasonably connected to the facts in issue are usually very
important for a case and such facts must be allowed to be brought before the court whether they
fall into any of the sections that categori>e the facts as relevant or not. This concept is espoused
by ection 6. "t says?
ection 6. 2elevancy of facts forming part of same transaction ( +acts which, though not in issue
are so connected with a fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different times and places.
What it means is that a fact in issue does not happen in isolation. "t always has a factual story
behind it. # fact in issue lies in a pool of other facts that gives birth to it. This section ma)es all
such facts relevant. The important thing to understand here is the meaning of the term
"transaction". To be eligible under this section the fact must have occurred in the same
transaction in which the fact in issue occurred. "@ccurring in the same transaction" is a wide term
that includes several )inds of things such as things that happened at the vicinity of the facts in
issue, things that were done by the accused right after or before the facts in issue, things that
lead to facts in issue, and so on. The following illustrations explain the )ind of facts that are
contemplated under this section?
"llustrations
3a5 # is accused of the murder of - by beating him. Whatever was said or done by # or - or the
by(standers at the beating, or so shortly before or after is as to from part of the transaction, is a
relevant fact.
3b5 # is accused of waging war against the ;overnment of "ndia by ta)ing part in an armed
insurrection in which property is destroyed, troops are attac)ed and goals are bro)en open. The
occurrence of these facts is relevant, as forming part of the general transaction, though # may not
have been present at all of them.
3c5 # sues - for a libel contained in a letter forming part of a correspondence. *etters between the
parties relating to the subject out of which the libel arose, and forming part of the correspondence
in which it is contained, are relevant facts, though they do not contain the libel itself.
3d5 The 1uestion is whether certain goods ordered from - were delivered to #. the goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.
The principle that is highlighted by the above illustrations is that whenever "transaction" such as a
contract or a crime, is a fact in issue, then evidence can be given of every fact which forms part of
the same transaction. #ccording to tephen, a transaction is a group of facts so connected
together as to be referred to by a single name, as a crime, a contract, a wrong, or any other
subject of in1uiry which may be in issue. #lthough ection 6 does not use the words 2es ;estae,
the concept behind this section is often referred to by this term. This pool of facts in which facts in
issue happened is the "2es ;estae" of the facts in issue. 2es ;estae is the surrounding
circumstances of the event to be proved.
2es ;estae and 7earsay Evidence
2es ;estae also refers to secondhand statements considered trustworthy for the purpose of
admission as evidence in a lawsuit when repeated by a witness because they were made
spontaneously and concurrently with an event. Ander the hearsay rule 3ection 6B ( @ral
evidence must be direct5, a court normally refuses to admit as evidence statements that a witness
says he or she heard another person say. Traditionally, two reasons have made hearsay
inadmissible? unfairness and possible inaccuracy. #llowing a witness to repeat hearsay does not
provide the accused with an opportunity to 1uestion the spea)er of the original statement, and the
witness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel can
object to a witness.s testimony as hearsay. The doctrine of 2es ;estae is one of the many
exceptions to this rule. ince certain statements are made naturally, spontaneously, and without
deliberation during the course of an event, they carry a high degree of credibility and leave little
room for misunderstanding or misinterpretation. The doctrine held that such statements are more
trustworthy than other secondhand statements and therefore should be admissible as evidence.
To be admissible, the statements must relate, explain, or characteri>e an event or transaction.
They must be natural statements growing out of the event, as opposed to a narrative of a past,
completed affair. #dditionally, the statements must be spontaneous, evo)ed by the event itself,
and not the result of premeditation. +inally, the original spea)er must have participated in the
transaction or witnessed the event in 1uestion. Thus, for example, a witness might testify that
during a ban) robbery, she or he heard another person shout, "That person is robbing the ban)C"
and the statement could be admitted as an exception to the ban on hearsay. "llustration 3a5 above
is an example of such statement.
Asefulness of 2es ;estae
#s per 0hillip.s Treatise on Evidence, the reason why the term 2es ;estae has been avoided
from ection 6 is because this doctrine has been productive of confusion. There can be
numerous facts that surround the facts in issue. They can all be somehow lin)ed with the same
transaction. There is no clearcut rule that can demarcate a transaction. o it is entirely left to the
experience and intuition of the Dudges to determine whether a particular fact can be included in
2es ;estae or not. This is evident from the following two cases. "n the case of 2 vs +oster $%/,,
accused was charged with manslaughter in )illing a person by driving over him. # witness saw
the vehicle driven fast but did not see the accident. "mmediately after, on hearing the victim
groan, he went up to him and as)ed him what happened. The deceased then made a statement
as to the cause of the injury. The court held that what the deceased said at the instant, as to the
cause of the accident is clearly admissible.
#s a contrast, in the case of 2 vs -eddingfield $%&:, a woman, with her throat cut, came
suddenly out of a room, in which she had been injured. hortly before she died, she said, "@h
dear #unt, see what -eddingfield has done to me." This statement was not accepted as 2es
;estae. #ccording to <D <oc)burn, anything uttered while the crime was being done would be
admissible but here, what she said was said after the crime was all over.
Thus, it can be seen that the doctrine of 2es ;estae does not produce same results in very
similar situations. This certainly causes confusion in the minds of novice lawyers and judges. Ey
belief is that this principle should be applied when common sense dictates so. *i)e any other
principle, this principle is also not a precise instrument to measure relevancy. "t is only a guide
that can help decide whether a fact is sufficiently relevant to a fact in issue. The final decision
rests with the Dudge, who should decide depending on the peculiarities of the case.
" do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigid
rule of law. "t should be applied only when suitable.
Q. What facts are relevant under "ndian Evidence #ct4
ections 6 to !! of "ndian Evidence #ct describe the facts that are deemed relevant. These are
as follows ( FTr@cE" <on@8< #-#8@D@<G
ection 6 ( 2elevancy of facts forming part of same transaction ( +acts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different times and places. +or example (
3a5 # is accused of the murder of - by beating him. Whatever was said or done by # or - or the
by(standers at the beating, or so shortly before or after it as to form part of the transaction, is a
relevant fact.

ection & ( +acts which are the occasion, cause or effect of facts in issue ( +acts which are the
occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, which afforded an opportunity for their
occurrence or transaction, are relevant.
+or example ( a5 The 1uestion is, whether # robbed -. The facts that, shortly before the robbery,
- went to a fair with money in his possession, and that he showed it or mentioned the fact that he
had it, to third persons, are relevant.

ection % ( Eotive, preparation and previous or subse1uent conduct ( #ny fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or relevant fact (
+or example ( 3a5 # is tried for the murder of - ( The facts that # murdered <, that - )new that #
had murdered <, and that - had tried to extort money from # by threatening to ma)e his
)nowledge public, are relevant (

ection : ( +acts necessary to explain or introduce relevant facts ( +acts necessary to explain or
introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a
fact in issue or relevant fact, or which establish the identity of any thing or person whose identity
is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which
show the relation of parties by whom any such fact was transacted, are relevant in so far as they
are necessary for that purpose (
+or example, 3a5 The 1uestion is, whether a given document is the will of # ( The state of #.s
property and of his family at the date of the alleged will may be relevant facts (

ection $B ( Things said or done by conspirator in reference to common design ( Where there is
reasonable round to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention was first entertained by
any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it (

ection $$ ( When facts not otherwise relevant become relevant ( +acts not otherwise relevant
are relevant ( 3$5 if they are inconsistent with any fact in issue or relevant factH 3'5 if by
themselves or in connection with other facts they ma)e the existence or non(existence of any fact
in issue or relevant fact highly probable or improbable (
+or example, 3a5 The 1uestion is whether # committed a crime at <alcutta on a certain day (
The fact that, on that day, # was at *ahore is relevant (

ection $' ( "n suits for damages, facts tending to enable <ourt to determine amount are relevant
( "n suits in which damages are claimed, any fact which will enable the <ourt to determine the
amount of damages which ought to be awarded, is relevant (

ection $, ( +acts relevant when right or custom is in 1uestion ( Where the 1uestion is as to the
existence of any right or custom, the following facts are relevant?(
3a5 any transaction by which the right or custom in 1uestion was created, claimed, modified,
recogni>ed, asserted or denied, or which was inconsistent with its existence?
3b5 particular instances in which the right or custom was claimed, recogni>ed or exercised, or in
which its exercise was disputed, asserted or departed from (
+or example ( The 1uestion is whether # has a right to a fishery ( # deed conferring the fishery
on #.s ancestors, a mortgage of the fishery by #.s father, a subse1uent grant of the fishery by #.s
father, irreconcilable with the mortgage, particular instances in which #.s father exercised the
right, or in which the exercise of the right was stopped by #.s neighbors, are relevant facts (

ection $/ ( +acts showing existence of state of mind, or of body, of bodily feeling ( +acts
showing the existence of any state of mind, such as intention, )nowledge, good faith, negligence,
rashness, ill(will or good(will towards any particular person, 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 (
+or example, 3a5 # is accused of receiving stolen goods )nowing them to be stolen ( "t is proved
that he was in possession of a particular stolen article ( The fact that, at the same time, he was in
possession of many
other stolen articles is relevant, as tending to show that he )new each and all of the articles of
which he was in possession to be stolen (

ection $! ( +acts bearing on 1uestion whether act was accidental or intentional ( When there is
a 1uestion whether an act was accidental or intentional, or done with a particular )nowledge or
intention, the fact that such act formed part of a series of similar occurrences, in each of which
the person doing the act was concerned, is relevant (
+or example, 3a5 # is accused of burning down his house in order to obtain money for which it is
insured ( The facts that # lived in several houses successively each of which he insured, in each
of which a fire occurred, and after each of
which fires # received payment from a different insurance office, are relevant, as tending to show
that the fires were not accidental (

ection $6 ( Existence of course of business when relevant ( When there is a 1uestion whether a
particular act was done, the existence of any course of business, according to which it naturally
would have been done, is a relevant fact (
+or example, 3a5 The 1uestion is, whether a particular letter was dispatched ( The facts that it was
the ordinary course of business for all letters put in a certain place to be carried to the post, and
that particular letter was put in that place are relevant (

ections $& to ,$ ( #dmission of facts by particular persons is relevant.

ections ,' and ,, ( tatements by persons who cannot be called witness in specified
circumstances are with definite conditions are relevant.
ections ,/ to ,% ( tatements made in an extra ordinary circumstance, any statement made on
any law which is inserted in some boo)s, is relevant.

ections /B(// ( Dudgments of courts are relevant in certain situations.
ections /!(!$ ( @pinion of third person is relevant in certain situations.
ections !'(!! ( <haracter of a person is relevant in certain situations.
Q. #re those facts also relevant which are the occasion, cause, or effect of facts in issue4
Ies, facts because of which facts in issue ta)e birth, or facts which ta)e birth because of facts is
issue are also considered relevant fact. Evidence can be given for the set of circumstances under
which the principle facts occurred. #s per ection & ( +acts which are the occasion, cause or
effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of
things under which they happened, which afforded an opportunity for their occurrence or
transaction, are relevant.
"llustrations (
3a5 The 1uestion is, whether # robbed -. The facts that, shortly before the robbery, - went to a
fair with money in his possession, and that he showed it or mentioned the fact that he had it, to
third persons, are relevant.
3b5 The 1uestion is, whether # murdered -. Ear)s on the ground, produced by a struggle at
or near the place where the murder was committed, are relevant facts.
3c5 The 1uestion is, whether # poisoned -. The state of -.s health before the symptoms
ascribed to poison, and habits of -, )nown to #, which afforded an opportunity for the
administration of poison, are relevant facts.
This section include following types of facts (
$. @ccasion ( @ccasion means the circumstances in which an event occurred. Evidence of such
circumstance is eligible to given. +or example, in the case of 2 vs 2ichardson, where a person
was charged with the rape and murder of a girl, the fact that the girl was alone in her cottage at
the time of her murder is relevant because it provided the occasion in which the crime happened.
'. <ause ( +acts that form the cause of facts in issue are relevant. +or example, # is charged of
criminal misappropriation of funds from a ban). The fact that # was hugely in debt at the time of
committing the crime is a relevant fact because it indicates a possible cause of the commission of
the crime. This is similar to motive as given in ection %. 7owever this may not always be the
case. +or example, in the case of "ndian #irlines vs Eadhuri <haudhury #"2 $:6!, the report of
an "n1uiry <ommission relating to an air crash was held relevant under ection & as establishing
the cause of the accident.
,. Effects ( Every act causes some effect that leads to some other happening. These effects not
only record the happening of the main act but also throws light upon the nature of the act. +or
example, where a person is poisoned, the symptoms produced are effects of the fact in issue and
so are relevant.
/. @pportunity ( <ircumstances which provide an opportunity for the happening of a fact in issue
are relevant. +or example, a brea) from the daily routine of a person may be the opportunity that
is used the person to commit the crime. +or example, in 2 vs 2ichardson, the fact that
2ichardson left his fellow wor)ers at about the time of murder under the pretense of going to a
smith.s shop is relevant because it provided an opportunity for the fact in issue, namely her rape
and murder, to happen.
!. tate of Things ( +acts which constitute the state of things under which or in the bac)ground of
which the principle facts happened are relevant. +or example, in the fact ore 2attan vs 2eginum,
#"2 $:&$, a person shot his wife and his plea was that it was an accident. The fact that he was
unhappy with his wife and was having an affair with another woman, was held to be a relevant
fact.
Q. "#ny fact is relevant which shows or constitutes a motive or preparation and conduct of any
fact in issue or relevant fact". Explain.
This statement is ta)en from ection % of "ndian Evidence #ct, which is as follows (
ection % ( Eotive, preparation and previous or subse1uent conduct ( #ny fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of
any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any
person an offence against whom is the subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and whether it was previous or
subse1uent thereto.
Explanation $ ( The word "conduct" in this section does not include statements, unless those
statements accompany and explain acts other than statementsH but this explanation is not to
affect the relevancy of statements under any other section of this #ct.
Explanation ' ( 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.
"llustrations
3a5 # is tried for the murder of -. The facts that # murdered <, that - )new that # had murdered
<, and that - had tried to extort money from # by threatening to ma)e his )nowledge public, are
relevant.
3b5 # sues - upon a bond for the payment of money. - denies the ma)ing of the bond. The fact
that, at the time when the bond was alleged to be made, - re1uired money for a particular
purpose, is relevant.
3c5 # is tried for the murder of - by poison. The fact that, before the death of -, # procured poison
similar to that which was administered to -, is relevant.
3d5 The 1uestion is, whether a certain document is the will of #. The facts that, not long before the
date of the alleged will, # made in1uiry into matters to which the provisions of the alleged will
relate, that he consulted va)ils in reference to ma)ing the will, and that he caused drafts of other
wills to be prepared of which he did not approve, are relevant.
3e5 # is accused of a crime. The facts that, either before or at the time of, or after the alleged
crime, # provided evidence which would tend to give to the facts of the case an appearance
favorable to himself, or that he destroyed or concealed evidence, or prevented the presence or
procured the absence of persons who might have been witnesses, or suborned persons to give
false evidence respecting it, are relevant.
3f5 The 1uestion is, whether # robbed -. The facts that, after - was robbed, < said in #.s
presence( "the police are coming to loo) for the man who robbed -," and that immediately
afterwards # ran away, are relevant.
3g5 The 1uestion is, whether # owes - rupees $B,BBB. The facts that # as)ed < to lend him
money, and that 8 said to < in #.s presence and hearing( "" advise you not to trust #, for he owes
- $B,BBB rupees," and that # went away without ma)ing any answer, are relevant facts.
3h5 The 1uestion is, whether # committed a crime. The fact that # absconded after receiving a
letter warning him that in1uiry was being made for the criminal, and the contents of the letter, are
relevant.
3i5 # is accused of a crime. The facts that, after the commission of the alleged crime, he
absconded, or was in possession of property or the proceeds of property ac1uired by the crime,
or attempted to conceal things which were or might have been used in committing it, are relevant.
3j5 The 1uestion is, whether # was ravished. The facts that, shortly after the alleged rape, she
made a complaint relating to the crime, the circumstances under which, and the terms in which,
the complaint was made, are relevant. The fact that, without ma)ing a complaint, she said that
she had been ravished is not relevant as conduct under this section, though it may be relevant as
a dying declaration under section ,', clause 3$5, or as corroborative evidence under section $!&.
3)5 The 1uestion is, whether # was robbed. The fact that, soon after the alleged robbery, he made
a complaint relating to the offence, the circumstances under which, and the terms in which, the
complaint was made, are relevant. The fact that he said he had been robbed without ma)ing any
complaint, is not relevant, as conduct under this section, though it may be relevant as a dying
declaration under section ,', clause 3$5, or as corroborative evidence under section $!&.
This section provides for the relevancy of three principal facts which are very important in
connection with any case, namely, Eotive, 0reparation, and <onduct.
Eotive ( Eotive is the power that impels one to do an act. "t is a )ind of inducement for doing the
act. Eotive by itself is not a crime but is helpful in establishing guilt. Evidence of motive helps the
court connect the accused with the deed and is so very relevant. +or example, on the murder of
an old widow, the fact that the accused was to inherit her wealth was held as relevant as it
showed that the accused had the motive to )ill her. "n another case, a woman who a good
swimmer had drown and the fact that the accused, her husband, was having an affair with
another woman was held relevant as it explained the motive behind the murder.
0reparation ( The acts of preparation for a crime are relevant. 0reparation by itself is not a crime
3except in certain offenses such as waging a war against ;ovt. of "ndia5 but the facts that show
the preparation tie the preparer to the actual crime and so are relevant. +or example, act of
purchasing a poison shows the preparation of the murder by administering poison.
<onduct ( The state of mind of a person is often reflected in his conduct and so conduct of a
person is a relevant fact. This section ma)es the conduct of any party to a civil suite or their
agents relevant. "n a criminal case, the conduct of the accused before, while, or after doing the
act is deemed relevant. 7owever, two conditions must be fulfilled for the conduct to be relevant (
$. The conduct must be in reference to the facts in issue or the facts related to them.
'. The conduct is such as influences or is influenced by the facts in issue or relevant facts.

Q. When do facts not otherwise relevant become relevant4
# fact, which does not have any such relation as defined in ection 6 to !! to the fact in issue is
not a relevant fact and ordinarily evidence cannot be given for such a fact. 7owever, when an
irrelevant fact is such that it ma)es the existence or non(existence of a fact in issue highly
probable or improbable, it becomes very important for the case because it helps the court to
determine the truth. uch a fact ought to be brought before the court. This is the concept
embodied in ection $$. "t says the following ? ection $$ ( +acts not otherwise relevant, are
relevant. 3$5 if they are inconsistent with any fact in issue or relevant factH 3'5 if, by themselves
or in connection with other facts they ma)e the existence or non(existence of any fact in issue or
relevant fact highly probable or improbable.
"llustrations 3a5 The 1uestion is, whether # committed a crime at <alcutta on a certain day.
The fact that, on that day, # was at *ahore, is relevant.
The fact that, near the time when the crime was committed, # was at a distance from the place
where it was committed, which would render it highly improbable, though not impossible, that he
committed it, is relevant.
3b5 The 1uestion is, whether # committed a crime.
The circumstances are such that the crime must have been committed either by #, -, < or 8.
Every fact which shows that the crime could have been committed by no one else and that it was
not committed by either -, < or 8 is relevant.
#s given in illustrations above, an alibi is a very common example of an irrelevant fact becoming
relevant. "ndeed, if a person is proved to be not at the location of the crime at the time of the
crime, he cannot have committed the crime. 7owever, the burden of proof is on the accused and
strict evidence is re1uired to establish such pleas +or example, in case of Eithilesh Apadhyaya
vs tate of -ihar, $::&, the accused stated that he was in the hospital at the time of crime but did
not give any supporting documents. 7is plea was not accepted.
"t must be noted that this section is 1uite wide in its scope. "t does not place any restriction upon
the range of facts that can be admitted as showing inconsistencies or probabilities. #ny fact that
ma)es the existence of a fact in issue highly probable or improbable is covered. D#EE
+"TJ#EE TE07EK, the author on "ndian Evidence #ct in his boo) "ntroduction To The "ndian
Evidence #ct, observed that the facts relevant under . $$ would, in most cases, be relevant
under other sections. The object of drawing the act in this manner was that the general ground on
which facts are relevant might be stated in so many and popular forms as possible, so that if a
fact is relevant its relevancy may be easily ascertained.
7owever, many facts can be connected to facts in issue or relevant facts through a long chain of
ratiocination but that will unnecessarily complicate the trial and will be detrimental to speedy
justice. Thus, to limit the the facts which are covered in this section, we need to understand which
facts are not relevant. "rrelevant facts are the facts that come under the rules of exclusion, namely
( facts that come under hearsay and facts that come under the principle ( a transaction between
two parties ought not be operate to the disadvantage of the third. Example of facts under hearsay
is, "Er. L said that Er. I is corrupt" or "Everybody says a certain officer is corrupt." This fact is
hearsay and is legally irrelevant. Examples of second type of facts include ( statements made
behind the bac) of a person against whom they are sought to be used as evidence, similar
unconnected transactions, and opinion of third parties. 2ule in section $$ ma)es such facts
relevant if they are inconsistent with the facts in issue or ma)e their existence or non existence
highly probable. Thus, the only criteria for giving evidence of fact under section $$ is that it should
ma)e the existence of a fact in issue highly probable or improbable. "n 2am 9umar 0anday vs
tate of E0, $:&!, it was held that important omissions would be relevant under this rule.
Q. 7ow far is character relevant and admissible in evidence in civil and criminal cases4
# character of a person is a very vague and subjective aspect. "t is at best imprecise and at worst
dangerous to draw an inference about the liability of a person from his character. Therefore, the
general rule is that character of a person is not relevant for establishing guilt. 7owever, there are
certain exceptional situations where character of a person is important for the case. 0rovisions
regarding the relevancy of character are specified in ections !', !,, !/, and !!. There are
different rules about relevancy of character in civil and criminal cases.
2elevancy in <ivil <ases
ection !' lays down a general principle for civil suits that the evidence of a party.s character
cannot be given to show that the conduct attributed to the party is probable or improbable. This
means that a defendant cannot show his good character as evidence to prove that his would not
have said defamatory things about the plaintiff and similarly the plaintiff cannot show previous
bad character of the defendant as evidence to prove that the defendant must have said
defamatory things about the plaintiff. This principle was laid down in a very old case of #ttorney
;eneral vs -owman, $&&$. "n this case a man was tried for a penal action, and not for a criminal
prosecution, for carrying false weights and offering to corrupt an officer. 7e called a witness to
testify that he was a man of good character and conduct. This was not admitted by the court.
+urther, as held in 7ollington vs 7ewthorn M <o ltd, $:/,, which is also )nown as rule in
7ollington vs 7ewthron, previous criminal conviction cannot be given to show the bad character
of a person in a civil suit. "n this case, an action was brought against the defendant for damages
caused by the defendant.s negligent driving of a motor car. The defendant had also been
prosecuted for the same accident and convicted. The plaintiff sought to give evidence of this
conviction in proof of the fact that he was guilty of careless driving. 7owever, the evidence was
not accepted as admission on the ground that conviction by a criminal court is at best an opinion
of that court that the defendant was guilty and such opinion is not admissible.
Exceptions (
$. When character appears from other relevant evidence ( econd part of ection !' provides
that if a fact is otherwise relevant to the case then the conclusion about a party.s character may
be drawn from such fact. #n otherwise relevant fact cannot be excluded from evidence merely
because it incidentally throws light upon a party.s character. +or example, a journalist is described
as an exploiter and he sues for damages for defamation and the defendant ta)es the defense that
whatever the defendant has said is true. Kow, the defendant will have to give evidence to prove
the exploitation which the plaintiff has been practicing. uch evidence will also bring to light the
real character of the plaintiff and the court can ta)e note of this.
'. When character itself is in issue ( ection !/ says that previous bad character is not relevant,
except in reply. 7owever, Explanation $ to this section specifies that this rule does not apply
when character itself is a fact in issue. +or example, in a divorce case on the ground of cruelty,
the cruel character of the defendant is a fact in issue and evidence can be given in support of that
previous bad character.
,. 8etermination of damages ( ection !! allows the character of the plaintiff to be considered
as relevant for determining the amount of damages that he ought to receive. #n early English
case on this aspect is of cott vs ampson, $%%'. "n this case a journalist was suing the
defendant for libel. The defendant tried to show the character of the plaintiff but the trial judge
refused to admit it. Apon appeal for retrial, D <ave, held that the evidence should have been
allowed to be admitted. 7e remar)ed that if the plaintiff claims an injury to his reputation, the jury
should )now whether he is a man of reputation or not before awarding any damages. "f evidence
about the character of the plaintiff is not allowed then there will be no difference between an
honorable person and a cheat. # virtuous woman will be )ept at the same level with a prostitute.
To enable a jury to estimate the 1uantum of injury sustained, the )nowledge of party.s character
is relevant.
2elevancy in <riminal <ases
ection !, lays down the general principle that in criminal proceedings the fact that the person
accused is of a good character is relevant and ection !/ lays down that the fact that the
accused is of a bad character is irrelevant in criminal proceedings. Thus, every accused is at a
liberty to show that he is a person of good character. #s D <oc)burn has observed, the fact that a
man has unblemished reputation leads to a presumption that he is incapable of committing the
crime for which he is being tried. @n the other hand, the prosecution cannot submit evidence to
show bad character of the accused. 7owever, as per ection !/, if a person gives evidence of his
good character then the opposite party is allowed to give evidence of his bad character as a
reply. @pposite party cannot give evidence of bad character in its original case. "t can do so only
as a reply.
Exceptions (
$. Evidence for bad character can be given by the prosecution but only as a reply to the evidence
of good character.
'. When character itself is in issue, evidence of bad character may be given.
,. When a fact is otherwise relevant, it can be submitted even if incidentally reveals the character
of the accused.
/. The prosecution is allowed to cite a previous conviction as evidence of bad character of the
accused. 2egarding this provision, *ord 8enning has observed in the case of ;oody vs @ldham
0ress *td, $:6&, that previous convictions are a class in itself. They are the raw material upon
which bad reputation is built up. They have ta)en place in an open court and are of public
)nowledge. They are very different from previous misconducts that are not tried in a court and
which therefore might lead to dispute. -ut previous convictions offer not possibility of such
disputes and so are relevant and admissible.
Q. What facts need not be proved4
;enerally, if a fact is alleged by any party to a suit or criminal case, that party has to provide proof
of the truthfulness of that fact to the court. 7owever, "ndian Evidence #ct allows the court to
accept certain )inds of facts without any necessity to be proven by any party. These )inds of facts
are specified in ection !6, !&, !%, and $$/. The provisions in these sections are as follows (
ection !6 ( +acts judicially noticeable need not be proved ( Ko fact of which the <ourt will ta)e
judicial notice need be proved. This means that if the court is bound to ta)e notice of a particular
fact, the parties do not have the burden of proving that fact. "t is part of the judicial function to
)now that fact. +or example, the court is bound to )now the various laws and customs of the
country. # party does not need to provide any proof when stating any law. +acts for which a court
will ta)e judicial notice are specified in ection !&. These include *aws in force in "ndia, 0ublic
#cts of 0arliament, *ocal, and person acts declared by it to be judicially noticed, #rticles of War
for "ndian armed forces, the rule of the road, land, or sea, that vehicles in "ndia must )eep to the
left of a road etc, the territories under the dominion of ;ovt. of "ndia. "n all these case, the court
may resort appropriate boo)s or documents of reference for its aid. #lso, the matters enumerated
in this section are not exhaustive. The section merely provides that the court must ta)e judicial
notices of the facts enumerated in this section. "t does not prohibit the court from ta)ings judicial
notice of any other facts. To understand this point, we need to loo) at the meaning of judicial
notice (
Eeaning of "Ta)ing Dudicial Kotice" ( "t means recognition of something as existing or as being
true without having any proof. Dudicial notice is based upon reasons of convenience and
expediency. <ertain things are so commonly )nown that any ordinary person is aware of it and it
is a waste of time to see) any proof for such things. +or example, it is a commonly )nown fact
that certain parts of E0, -ihar, and #0 are naxalite affected or that DM9 is a terror stri)en area. #
court does not need to spend time in loo)ing for its proof. Thus, judicial notice is the cogni>ance
ta)en by the court itself of certain matter which are so notorious or clearly established that the
evidence of their existence is unnecessary. +or example, in the case of Eanaging <ommittee of
2aja idheshwar 7igh chool vs tate of -ihar, #"2 $::,, the court too) judicial notice of the fact
that education in the state was virtually crumbled. "n another case, court too) judicial notice of the
fact that several blind persons have ac1uired great academic distinction. "f the court is called
upon by a person to ta)e judicial notice of a fact, it may refuse to do so unless and until such
person produces any such boo) or document as it may consider necessary to enable it to do so.
The basic re1uirement for ta)ing judicial notice is that the fact has to be of a class that is so
generally as to give rise to the presumption that all persons are aware of it. 7owever, a judge
cannot bring his personal )nowledge into judicial notice if that )nowledge is not public )nowledge.
Dust because a judge )nows something does not ma)e it a thing of common )nowledge.
D <handrachud observed that a court does not operate in ivory tower. "t can ta)e cogni>ance of
facts that are happening all around it. hutting judicial eye to the existence of such facts and
matters is in a sense an insult to common sense and would reduce the judicial process to a
meaningless and wasteful trial. Ko court therefore need to insist upon a formal proof of notorious
facts such as date of polls, passing away of an eminent person, or events that have roc)ed the
nation.
ection !% ( +acts admitted need not be proved ( Ko fact need be proved in any proceeding
which the parties thereto or their agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their hands, or
which by any rule of pleading in force at the time they are deemed to have admitted by their
pleadings. 0rovided that the <ourt may, in its discretion, re1uire the facts admitted to be proved
otherwise than by such admissions.
This basically means that if a fact has been admitted by a party, the other party need not provide
proof of that fact. +or example, admissions made in written statements, or things said before and
accepted to be said in the trial need not be proved. in averments made in a petition that have
not been controverted by the respondent carry the weight of a fact admitted.
7owever, an admission may not necessarily constitute conclusive evidence of the fact admitted.
Therefore, this section allows the court to as) for some other proof of the admitted fact. This is a
discretionary power of the court.
ection $$/ ( <ourt may presume existence of certain facts ( The <ourt may presume the
existence of any fact which it thin)s li)ely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their relation to the
facts of the particular case. +or example, a person may be presumed to be dead if his
whereabouts are not )nown for seven years. uch facts need not be proven.
Q. 8iscuss the law regarding competency of a witness4 3ections $$%($'$5 <an a wife be a
competent witness against her husband4 3ection $'B5

The modern judicial system is based on evidence. The )nowledge of how an event happened is
arrived at by the court through witnesses. #s -EKT7#E said, "Witnesses are the eyes and ears
of justice." The court gives its finding based on the evidence given by witnesses. "t is important,
therefore, to understand who can and cannot be a competent witness. ection $$% of "ndian
Evidence #ct, $%&', contains the provisions for determining a competent witness.
ection $$%. Who may testify4 ( #ll persons shall be competent to testify unless the <ourt
considers that they are prevented from understanding the 1uestion put to them, or from giving
rational answer to those 1uestions, by tender years, extreme old age, disease, whether of body
and mind, or any other cause of the same )ind.
Explanation ( # lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the 1uestion put to him and giving rational answers to him.
#s is evident from ection $$%, in general, nobody is barred from being a witness as long as he is
able to understand the 1uestions that are put to him as well as is able to give rational replies to
those 1uestions. There may be several reasons because of which a person may not be able to
comprehend the 1uestions and=or is unable to reply coherently. This section does not attempt to
define all such reasons but gives examples of such reasons such as young age 3in case of a
child5, mental illness, or extreme old age. "t is up to the court to determine whether a person is
able to understand the 1uestions or give rational answers. Thus, competency is a rule, while
incompetency is an exception. Even a lunatic is considered a competent witness if his lunacy
does not prevent him from understanding the 1uestions and giving rational answers.
<hild Witness
# young child, if he is able to understand the 1uestions and is able to reply rationally, is a
competent witness even if he is of a tender age. +or example, in the case of Dai ingh vs tate,
$:&,, <r *D, a seven year old girl who was the victim of attempted rape was produced as a
witness and her testimony was held valid.
"t has been held in several early cases that a child under the age of seven years can be a
competent witness if, upon the strict examination of the court, the child is found to understand the
nature and conse1uences of an oath. +or example, in Queen vs eva -hogta, $%&/, a ten year
old girl, who was the only eye witness of a murder was made a witness. he appeared to be
intelligent and was able to answer 1uestions fran)ly and without any hesitation. 7owever, she
was not able to understand the meaning of oath. "t was held that her unsworn evidence was
admissible in the given circumstances. The same was observed in 2ameshwar 9alyan ingh vs
tate of 2ajasthan #"2 $:!', where the accused was charged with the offence of rape of a girl of
% years of age. "t was held that ommission of oath only affects the credibility of the witness and
not competency of the witness. The 1uestion of competency is determined by section $$%, and
the only ground that is given for incompetency is the inability to comprehend the 1uestions or
inability to give rational answers.
The supreme court however has emphasised the need for carefully evaulating the testimony of a
child. #de1uate corroboration of his testimony must be loo)ed from other evidence.
8umb Witness
ection $$: ( # witness who is unable to spea) may give his evidence in any other manner in
which he can ma)e it intelligible, as by writing or by signsH but such writing must be written and
the signs made in open <ourt. Evidence so given shall be deemed to be oral evidence.
<ompetency of a wife as a witness against her husband
#s per ection $'B, in all civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. +urther, in criminal proceedings against any
person, the husband or wife of such person, respectively, shall be a competent witness.
Thus it is pretty clear that the spouse of a person can be a competent witness against that
person. +or example, in the case of hyam ingh vs haiwalini ;hosh, #"2 $:/&, <alcutta 7<
held that 7usband and wife are both competent witness against each other in civil and criminal
cases. They are competenet witness to prove that there has been no conjugation between them
during marriage.
#lthough not mentioned in the act, it has been held in several cases that provisions of this section
are subject to ection $'', which ma)es the communication between a husband and wife
privileged.
<ompetency of #ccused
#s per ection ,$! of <r 0 <, an accused is a competent witness. 7e can given evidence on his
behalf, but if he does not, no comment can be made against the accused or adverse inference be
drawn against him.
<ompetency of an #ccomplice
#ccomplice ( #n accomplice is a person who has ta)en part, whether big or small, in the
commission of an offence. #ccomplice includes principles as well as abettors.
Kot an #ccomplice ( person under threat commits the crime, person who merely witnesses the
crime, detectives, paid informers, and trap witnesses
;enerally, a small offender is pardoned so as to produce him as a witness against the bigger
offender. 7owever, evidence by an accomplice is not really very reliable because ( $5 he is li)ely
to swear falsely in order to shift blame, '5 as a participator in a crime, he is a criminal and is li)ely
immoral, and so may disregard the sanctity of oath, and ,5 since he gives evidence in promise of
a pardon, he will obviously be favorable to prosecution.
Even so, an accomplice is allowed to give evidence. #s per ection $,,, he is a competent
witness against the accused and a conviction based on his evidence is not illegal merely because
his evidence has not been corroborated. #t the same time, ection $$/ 3b5 contains a provision
that allows the <ourt to presume that an accomplice is unworthy of credit, unless he is
corroborated in material particular. The idea is that since such a witness is not very reliable, his
statements should be or verified by some independent witness. This is interpreted as a rule of
caution to avoid mindless usage of evidence of accomplice for producing a conviction.
ince every case is different, it is not possible to precisely specify a formula for determining
whether corroborative evidence is re1uired or not. o some guiding principles were propounded
in the case of 2 vs -as)erville, $:$6. #ccording to this procedure (
$. "t is not necessary that there should be an independent confirmation of every detail of the crime
related by the accomplice. "t is sufficient if there is a confirmation as to a material circumstance of
the crime.
'. There must at least be confirmation of some particulars which show that the accused
committed the crime.
,. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate
other.
/. The corroboration need not be by direct evidence. "t may be through circumstantial evidence.
This rule has been confirmed by the upreme <ourt in 2ameshwar vs tate of 2ajasthan, $:!'.
#ccomplice and <o(accused
The confession of a co(accused 3. ,B5 is not treated in the same way as the testimony of an
accomplice because (
$. The testimony of an accomplice is ta)en on oath and is subjected to cross examination and so
is of a higher probative value.
'. The confession of a co(accused can hardly be called substantive evidence as it is not evidence
within the definition of . ,. "t must be ta)en into consideration along with other evidence in the
case and it cannot alone form the basis of a conviction. While the testimony of an accomplice
alone may be sufficient for conviction.
Q. What do you understand by #dmission4
;eneral <oncept of #dmission (
"n general, #dmission is a voluntary ac)nowledgment of a fact. "mportance is given to those
admissions that goes against the interests of the person ma)ing the admission. +or example,
when # says to - that he stole money from <, # ma)es an admission of the fact that # stole
money from <.This fact is detrimental to the interests of #. The concept behind this is that nobody
would accept or ac)nowledge a fact that goes against their interest unless it is indeed true.
Anless # indeed stole money from <, it is not normal for # to say that he stole money from <.
Therefore, an admission becomes an important piece of evidence against a person. @n the other
hand, anybody can ma)e assertions in favor of themselves. They can be true or false. +or
example, # can )eep on saying that a certain house belongs to himself, but that does not mean it
is necessarily true. Therefore, such assertions do not have much evidentiary value.
#dmission as per "ndian Evidence #ct (
ection $& of "ndian Evidence #ct defines #dmission as thus ( #n 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.
#s per this definition, any statement, which suggests any inference about any fact in issue or
relevant fact, and which is made by persons under certain circumstances, is an admission. These
circumstances are mentioned in ection $% to 'B as follows (
ection $% ( #dmission by party to proceeding or his agentH by suitor in representative characterH
by party interested in subject(matterH by person from whom interest derived ( tatements made
by a party to the proceeding, or by an agent to any such party, whom the <ourt regards, under
the circumstances of the case, as expressly or impliedly authori>ed by him to made them, are
admissions.
-y suitor in representative character ( tatements made by parties to suits suing or sued in a
representative character, are not admissions, unless they were made while the party ma)ing
them held that character.
tatements made by (
3$5 by party interested in subject matterH persons who have any proprietary or pecuniary interest
in the subject(matter of the proceeding and who ma)e the statement in their character of persons
so interestedH or
3'5 by person from whom interest derivedH persons from whom the parties to the suit have derived
their interest in the subject(matter of the suit, are admissions, if they are made during the
continuance of the interest of the persons ma)ing the statements.
#ccording to this section, statements made a persons who are directly or indirectly a party to a
suit are admissions. Thus, statements of an agent of a party to the suits are also admissions.
tatements made by persons who are suing or being sued in a representative character are
admissions, only if those statements were made by the party while being in that representative
character. imilarly, statements made by persons who have a pecuniary interest in the subject
matter of the proceeding and statements made by persons from whom such interest is derived by
the parties in suit, are also admissions if they are made while the ma)er had such an interest. +or
example, # bought a piece of land from -. tatements made by - at the time when - was the
owner of the land are admissions against #.
ection $: ( #dmissions by persons whose position must be proved as against party to suit(
tatements made by persons whose position or liability it is necessary to prove as against any
party to the suit, are admissions, if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against the made if they are made whilst
the person ma)ing them occupies such position or is subject of such liability.
"llustration (
# underta)es to collect rent for -.
- sues # for not collecting rent due from < to -.
# denies that rent was due from < to -.
# statement by < that he owned - rent is an admission, and is a relevant fact as against #, if #
denies that < did owe rent to -.
ection 'B ( #dmission by persons expressly referred to by party to suit ( tatements made by
persons to whom a party to the suit has expressly referred for information in reference to a matter
in dispute are admissions.
"llustration (
The 1uestion is, whether a horse sold by # to - is sound # says to - ";o and as) <. < )nows all
about it" <.s statement is an admission.
To be considered an admission, it is not necessary for a statement to give a direct
ac)nowledgment of liability. "t is sufficient even if the statement suggests an inference about the
liability. +or example, # is charged with murder of - by giving poison. The statement by # that he
purchased a bottle of poison is admission because it suggests the inference that he might have
murdered - using that poison, even though it does not clearly ac)nowledge the fact that #
murdered -. "n the case of <he)ham 9oteshwara 2ao vs < ubbarao, #"2 $:%$, < held that
before the right of a party can be ta)en to be defeated on the basis of an alleged admission by
him, the implication of the statement must be clear and conclusive. There should not be any
doubt or ambiguity.+urther, it held that it is necessary to read all of his statements together. Thus,
stray elements elicited in cross examination cannot be ta)en as admission.
Q. 8iscuss the law regarding proof of admissions against persons ma)ing them and by or on
behalf of them. "#dmission cannot be proved by or on behalf of any person who ma)es it". #re
there any exceptions4 8iscuss.
"t is important to note that "ndian Evidence #ct does not re1uire that an admission be of
statements that are against the interests of the ma)er. #ll that is necessary is that the statement
should suggest some inference as to a fact in issue or relevant to the issue, even if the inference
is in the interest of the ma)er of the statement. elf serving prior statements are also admissions.
+or example, # person can say to - that he did not steal money from <. This is a self serving
statement and is a valid admission. 8oes this mean that a person can ma)e self serving
statements and escape from his liability4 The answer is no because such self serving admissions
are governed by the provisions of ection '$, which says the following (
ection '$ ( 0roof of admissions against persons ma)ing them, and by or on their behalf (
#dmissions are relevant and may be proved as against the person who ma)es them, or his
representative in interestH but they cannot be proved by or on behalf of the person who ma)es
them or by his representative in interest, except in the following cases (
3$5 #n admission may be proved by or on behalf of the person ma)ing it, when it is of such a
nature that, if the person ma)ing it were dead, it would be relevant as between third persons
under section ,'.
3'5 #n admission may be proved by or on behalf of the person ma)ing it, when it consists of a
statement of the existence of any state of mind or body, relevant or in issue, made at or about
the time when such state of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.
3,5 #n admission may be proved by or on behalf of the person ma)ing it, if it is relevant
otherwise than as an admission.
"llustrations
3a5 The 1uestion between # and - is, whether a certain deed is or is not forged. # affirms that it is
genuine, - that it is forged. # may prove a statement by - that the deed is genuine, and - may
prove a statement by # that deed is forgedH but # cannot prove a statement by himself that
the deed is genuine, nor can - prove a statement by himself that the deed is forged.
3b5 #, the captain of a ship, is tried for casting her away. Evidence is given to show that the
ship was ta)en out of her proper course. # produces a boo) )ept by him in the ordinary
course of his business showing observations alleged to have been ta)en by him from day to
day, and indicating that the ship was not ta)en out of her proper course. # may prove these
statements, because they would be admissible between third parties, if he were dead, under
section ,', clause 3'5.
3c5 # is accused of a crime committed by him at <alcutta. 7e produces a letter written by
himself and dated at *ahore on that day, and bearing the *ahore post(mar) of that day. The
statement in the date of the letter is admissible, because,
if # were dead, it would be admissible under section ,', clause 3'5.
3d5 # is accused of receiving stolen goods )nowing them to be stolen. 7e offers to prove that
he refused to sell them below their value. # may prove these statements, though they are
admissions, because they are explanatory of conduct influenced by facts in issue.
3e5 # is accused of fraudulently having in his possession counterfeit coin which he )new to be
counterfeit. 7e offers to prove that he as)ed a s)illful person to examine the coin as he doubted
whether it was counterfeit or not, and that that
person did examine it and told him it was genuine. # may prove these facts for the reasons
stated in the last preceding illustration.
+rom the above illustrations it is clear that the general rule is that a person is not allowed to prove
his own admissions. @therwise, as observed in 2 vs 7ardy, $&:/, every man, if he were in
difficulty, or in view of one, might ma)e declarations to suit his own case and then lodge them in
proof of his case. This principle, however, is subject to some important exceptions, which allow a
person to prove his own statements. These are as follows (
Exception $ ( When the statement should have been relevant as dying declaration or as that of a
deceased person under ection ,'. ection ,' deals with the statement of persons who have
died or who otherwise cannot come before the court. The statement of any such person can be
proved in any case or proceeding to which it is relevant whether it operates in favor of or against
the person ma)ing the statement. "n circumstances stated in ection ,' such a statement can be
proved by the ma)er himself if he is still alive. "n the situation described in "llustration 3b5, in a
case between the shipowner and the insurance company, the contents of the log boo)
maintained by the captain would have been relevant evidence if the captain were dead under
ection ,'. Therefore, the captain is allowed to prove the contents of the log boo) even in the
case involving him and the shipowners.
Exception ' ( tatements as to bodily feeling or mind ( "t enables a person to prove his
statements about his state of mind or body if such state of mind or body is a fact in issue or is
relevant fact and if the statement was made at the time when such state of mind or body existed
and further if the statement is accompanied with his conduct that ma)es the falsehood of the
statements improbable. "n "llustration 3d5, the statements of # that show that he refused to sell
them below their value, are self serving admissions. 7owever, it is acceptable because they
reflect #.s state of mind and were associated with a conduct of refusing to sell that ma)es their
falsehood improbably.
Exception , ( The last exception allows a person to prove his own statement when it is otherwise
relevant under any of the provisions relating to relevancy. There are many cases in which a
statement is relevant not because it is an admission but because it establishes the existence or
non(existence of a relevant fact or a fact in issue. "n all such cases a party can prove his own
statements. These cases are covered by the following sections (
ection 6 ( When a statement is made relevant by the doctrine of res gestae i.e. due to part of
the same transaction. +or example, immediately after a road accident, if the victim has made a
statement to the rescuer about the cause of the accident, he can prove that statement because it
is part of the same transaction.
ection % ( # statement may be proved by or on behalf of the person ma)e it under ection % if it
accompanies or explains acts other than statements or if it influences the conduct of a person
whose conduct is relevant. +or example, where # says to -, "Iou have not paid my money bac)",
and - wal)s away in silence, # may prove his own statement because it has influenced the
conduct of a person whose conduct is relevant.
ection $/ ( When the statement explains his state of mid or body or bodily feeling when any
such thing is relevant or is in issue, it can be proved by himself. +or example, where the 1uestion
is whether a person has been guilty of cruelty towards his wife, he may prove his statements
made shortly before or after the alleged cruelty which explain his love and affection for and his
feeling towards his wife.
Q. What do you understand by <onfession4 7ow does confession differ from admission4 tate
the law relating to confessions. What is Dudicial and Extra(Dudicial confession4 Ander what
circumstances is it relevant and when can it not be proved4 tate the extent, relevancy, and
admissibility of a confession as evidence. 7ow far can the statements of the accused made
before the police be used against him4
;eneral <oncept of <onfession (
The term confession is not defined anywhere in "ndian Evidence #ct. -ut it is thought that an
#dmission in case of a criminal matter is <onfession. The same was stated by TE07EK in his
digest that that a confession is an admission made at anytime by a person charged with a crime,
stating or suggesting the inference that he committed the crime. 7owever, 0rivy <ouncil, in case
of 0a)ala Karayan wami vs Emperor #"2 $:,:, did not accept this definition. "n this case *ord
#T9"K observed that no statement that contains self exculpatory matter can amount to a
confession. +urther, a confession must either admit in terms of the offence or at any rate
substantially all the facts which constitute the offence. #n offence of a gravely incriminating fact,
is not in itself a confession. +or example, an admission that the accused is the over of and was in
recent possession of the )nife or revolver which caused death with no explanation of any other
man.s possession, is not a confession even though it strongly suggests that the accused has
committed the murder.
The decision by 0rivy <ouncil in 0a)ala Karayan wami case was approved by < in the case of
0alvinder 9aur vs tate of 0unjab, #"2 $:!'. "n this case, 0alvinder was on trial for murder of her
husband along with another, who all the time remained absconding. "n her statement to the court,
her husband was hobbyist photographer and used to )eep handy photo developing material
which is 1uic) poison. @n this occasion, he was ill and she brought him some medicine and the
medicine was )ept near the li1uid developer and by mista)e swallowed the li1uid and died. he
got afraid and with the help of the absconder, she dumped the body in the well. The statement,
thus, partially admitted guilt and partially showed innocence. 7ere, the lower courts sorted out the
exculpatory part and convicted her on the inculpatory part. 7owever, < rejected this approach
and held that the rule regarding confession and admission is that they must either be accepted or
rejected as whole.
8ifference between <onfession and #dmission
This brings us to the main difference between admission and confession. #n admission is a
statement that may or may not be a conclusive evidence of a fact in issue or relevant fact but to
be a confession, the admission must conclusively prove the guilt of the ma)er of the admission.
+or example, in the case of Neera "brahim vs tate of Eaharashtra, #"2 $:&6, a person being
prosecuted under <ustoms #ct told the customs officer that he did not )now that the goods
loaded in his truc) were contraband nor were they loaded with his permission. < held that the
statement was not a confession but it did amount to admission of an incriminating fact that the
truc) was loaded with contraband material.
Thus, a statement which may not amount to confession may still be relevant as admission. @nly
a voluntary and direct ac)nowledgment of guilt is confession, but when a confession fall short of
actual admission of guilt, it may nevertheless be used as evidence under ection '$.
2egarding admission that contains multiple sentences, Dustice Thomas, of < stated the law in
the case of *o)eman hah vs tate of W-, #"2 'BB$ as follows (
The test of discerning whether a statement recorded by a judicial magistrate under ection $6/ of
<r0<, is confessional or not is not to determine it by dissecting the statement into different
sentences and then to pic) out some as not inculpative.The statement must be read as a whole
and then only the court should decide whether it contains admissions of his inculpatory
involvement in the offence. "f the result of that test is positive the the statement is confessional
otherwise not.
<lassification of <onfessions
# confession may occur in any form. "t may be made to the court itself, or to anybody outside the
court. "n this manner, a confession may be divided into two categories ( Dudicial <onfession and
Extra(judicial <onfession.
Dudicial <onfession ( # judicial confession is a confession that is made in front of a magistrate or
in a court. "t may be made in the course of a judicial proceeding.
Extra ( Dudicial <onfession ( #n extra(judicial confession is a confession that is made by the
party elsewhere than before a magistrate or in a court. "t is admissible in evidence under ection
'$ and it is proved by the witnesses who had heard the spea)er.s words constituting the
confession.
# confession ma even consist of conversation with oneself. +or example, in case of ahoo vs
tate of A0, #"2 $:66, an accused who was charged with murder of his daughter in law with
whom he was always 1uarreling was seen on the day of the murder going out of the home saying
words to the effect, "" have finished her and with her the daily 1uarrels.". The statement was held
to be a valid confession because it is not necessary for the relevance of a confession that it
should communicate to some other person.
2elevancy of <onfessions (
<onfessions when Kot 2elevant
# confession becomes irrelevant and thus, inadmissible, in situations described in the ections
'/, '!, and '6.
$. ection '/ ( <onfession caused by inducement, threat, or promise from a person in authority (
<onfession made by an accused is irrelevant in a criminal proceeding if the ma)ing of the
confession appears to the court to have been caused by inducement, threat, or promise, made by
any person in authority and that in the view of the court such inducement, threat, or promise gives
reasonable ground to the person that by ma)ing the confession he would gain any advantage or
avoid any evil of a temporary nature in reference to the proceedings against him.
The following conditions are necessary to attract the provisions of this section (
$. The confession must have been made because of inducement, threat, or promise ( #
confession should be free and voluntary. "f it flows from fear or hope, it is inadmissible. "n
deciding whether a particular confession is because of threat, inducement, or promise, the
1uestion has to be considered from the point of view of the accused as to how the inducement,
threat or promise would operate in his mind. +or example, where the accused was told by the
magistrate, "tell me where the things are and " will be favorable to you", it was held to be
inadmissible.
'. The inducement, threat, or promise, must be made by a person in authority ( # person in
authority is not merely a police officer or a magistrate but every such person who can reasonably
hold a sway over the investigation or trial. Thus, government officials such as a senior military
officer, police constable, warden, cler) of the court, all have been held to be a person in authority.
Even private persons such as the wife of the employer was also held to be a person in authority.
,. "t should relate to the charge in 1uestion ( This re1uirement is specifically stated in the
section, which says that the inducement must have "reference to the charge against the accused
person". Thus, in the case of Empress vs Eohan *al, $%%$, the confession by a person who was
threatened to be removed from his caste for life, was held to be relevant because the threat did
not have anything to do with the charge. The position in English law is not same. "n fact, D
#T9"K@K has said that this rule is illogical and unreasonable. +or example, a daughter is
accused of shoplifting and later on her mother is also accused of the same offence. Kow, if the
mother is induced to confess by saying that if she confesses to the charge, proceedings against
her daughter will be dropped, this will most li)e lead to an untrue confession. Iet, it would be
valid under this section.
/. "t should hold out some material, worldly, or temporal benefit or advantage ( The inducement
should be about some tangible benefit. +or example, a reference to spiritual benefit such as,
ta)ing an accused to a temple to confess does not fall in this category but a promise to reduce
the sentence would fall under it.
"t is necessary that all the conditions must exist cumulatively. +urther, this section merely re1uires
that if it "appears to the court" that the confession was improperly obtained, it becomes
inadmissible i.e. if the circumstances create a probability in the mind of the court that the
confession is improperly obtained, it may hold it inadmissible.
'. <onfessions to 0olice ( "t is presumed that police holds a position of great influence over the
actions of the the accused and so there is a high probability that confessions obtained by the
police are tainted with threat, or inducement. +urther, it is important to prevent the practice of
oppression or torture by the police to extract the confession. This principle is espoused by
ections '! and '6, which are as follows (
ection '! ( <onfession to police(officer not to be proved ( Ko confession made to a police(
officer shall be proved as against a person accused of any offence. This section is very
broadly word. "t strictly disallows any confession made to the police officer as inadmissible no
matter what the circumstances. "n the case of 2aja 2am vs tate of -ihar, #"2 $:6/, < held
that the term police(officer is not be be interpreted strictly but must be given a more
comprehensive and popular meaning. 7owever, these words are also not to be construed in so
wide sense as to include a person on whom only some powers exercised by the police are
conferred. The test for determining whether such a person is a police officer, is whether the
powers are such as would tend to facilitate the obtaining of confession by him from a suspect.
Thus, a chow)idar, police patel, a village headman, an excise officer, are all considered to be
police officer.
ection '6 ( <onfession by accused while in custody of police not to be proved against him ( Ko
confession made by any person whilst he is in the custody of a police(officer, unless it be made
in the immediate presence of a Eagistrate, shall be proved as against such person. This section
further tries to ensure that the confession is not extracted due to the influence of the police. #ny
confession made while the ma)er is in custody of the police is invalid unless it is made in the
immediate presence of a magistrate. The presence of a magistrate is, by a legal fiction, regarded
as e1uivalent to removal of police influence and the statement is therefore considered to be free
from police influence.
Eere absence of the police officer from a room where confession is ta)en does not terminate his
custody of the accused. The word custody does not just mean formal custody but includes such
state of affairs in which the accused can be said to have come into the hands of a police officer or
can be said to have been under some sort of surveillance or restriction.
ection '& provides another exception when a confession made to the police is admissible. This
is when a confession leads to the discovery of a fact connected with the crime. The discovery
assures that the confession is true and reliable even if it was extorted. "n order to ensure the
genuineness of recoveries, it has become a practice to effect the recoveries in the presence of
witnesses.
<onstitutionality of ection '& ( "ndian Evidence #ct was written before the <onstitution of "ndia
and #rticle 'B3,5 of the constitution says that no person shall be compelled to be a witness
against himself. This article seemingly made ection '& unconstitutional. < considered this
issue in the case of Kisa ree vs tate of @rissa #"2 $:!/, and held that it is not violative of
#rticle 'B3,5. # confession may or may not lead to the discovery of an increminating fact. "f the
discovered fact is non incriminatory, there is no issue and if it is self(incriminatory, it is admissible
if the information is given by the accused without any threat.
<onfessions when 2elevant (
The following three types of confession are relevant and admissible (
$. ection '& ( <onfession leading to a discovery ( Explained above.
'. ection '% ( <onfessions made after removal of threat ( "f the confession is obtained after the
impression caused by threat, inducement, or promise is removed in the opinion of the court, then
the confession is admissible.
,. ection ': ( <onfession made under promise, deception,etc. ( "f a confession is otherwise
relevant, it does not become irrelevant merely because it was made (
3a5 under a promise of secrecy or
3b5 in conse1uences of a deception practiced on the accused person for the purpose of obtaining
it or
3c5 while the accused was drun) or
3d5 while answering the 1uestions he need not have answered or
3e5 when the accused was not warned that he was not bound to ma)e such confession and that
evidence of it might be given against him.
The basis of this section is that any breach of confidence or of good faith or practice of any
artifice does not invalidate a confession. 7owever, a confession obtained by mere tric)ery does
not carry much weight. +or example, in one case, an accused was told that somebody saw him
doing the crime and because of this the accused made a confession. The court held the
confession as inadmissible. "n 2ex vs haw, # was accused of a murder and -, a fellow prisoner,
as)ed him about how he did he do the murder. # said, "Will you be upon your oath not to mention
what " tell you4", to which - promised on his oath that he will not tell anybody. # then made a
statement. "t was held that it was not such an inducement that would render the confession
inadmissible.
The five circumstances mentioned in the section are not exhaustive.
Q. 8iscuss the law regarding competency of a witness4 3ections $$%($'$5 <an a wife be a
competent witness against her husband4 3ection $'B5

The modern judicial system is based on evidence. The )nowledge of how an event happened is
arrived at by the court through witnesses. #s -EKT7#E said, "Witnesses are the eyes and ears
of justice." The court gives its finding based on the evidence given by witnesses. "t is important,
therefore, to understand who can and cannot be a competent witness. ection $$% of "ndian
Evidence #ct, $%&', contains the provisions for determining a competent witness.
ection $$%. Who may testify4 ( #ll persons shall be competent to testify unless the <ourt
considers that they are prevented from understanding the 1uestion put to them, or from giving
rational answer to those 1uestions, by tender years, extreme old age, disease, whether of body
and mind, or any other cause of the same )ind.
Explanation ( # lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the 1uestion put to him and giving rational answers to him.
#s is evident from ection $$%, in general, nobody is barred from being a witness as long as he is
able to understand the 1uestions that are put to him as well as is able to give rational replies to
those 1uestions. There may be several reasons because of which a person may not be able to
comprehend the 1uestions and=or is unable to reply coherently. This section does not attempt to
define all such reasons but gives examples of such reasons such as young age 3in case of a
child5, mental illness, or extreme old age. "t is up to the court to determine whether a person is
able to understand the 1uestions or give rational answers. Thus, competency is a rule, while
incompetency is an exception. Even a lunatic is considered a competent witness if his lunacy
does not prevent him from understanding the 1uestions and giving rational answers.
<hild Witness
# young child, if he is able to understand the 1uestions and is able to reply rationally, is a
competent witness even if he is of a tender age. +or example, in the case of Dai ingh vs tate,
$:&,, <r *D, a seven year old girl who was the victim of attempted rape was produced as a
witness and her testimony was held valid.
"t has been held in several early cases that a child under the age of seven years can be a
competent witness if, upon the strict examination of the court, the child is found to understand the
nature and conse1uences of an oath. +or example, in Queen vs eva -hogta, $%&/, a ten year
old girl, who was the only eye witness of a murder was made a witness. he appeared to be
intelligent and was able to answer 1uestions fran)ly and without any hesitation. 7owever, she
was not able to understand the meaning of oath. "t was held that her unsworn evidence was
admissible in the given circumstances. The same was observed in 2ameshwar 9alyan ingh vs
tate of 2ajasthan #"2 $:!', where the accused was charged with the offence of rape of a girl of
% years of age. "t was held that ommission of oath only affects the credibility of the witness and
not competency of the witness. The 1uestion of competency is determined by section $$%, and
the only ground that is given for incompetency is the inability to comprehend the 1uestions or
inability to give rational answers.
The supreme court however has emphasised the need for carefully evaulating the testimony of a
child. #de1uate corroboration of his testimony must be loo)ed from other evidence.
8umb Witness
ection $$: ( # witness who is unable to spea) may give his evidence in any other manner in
which he can ma)e it intelligible, as by writing or by signsH but such writing must be written and
the signs made in open <ourt. Evidence so given shall be deemed to be oral evidence.
<ompetency of a wife as a witness against her husband
#s per ection $'B, in all civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. +urther, in criminal proceedings against any
person, the husband or wife of such person, respectively, shall be a competent witness.
Thus it is pretty clear that the spouse of a person can be a competent witness against that
person. +or example, in the case of hyam ingh vs haiwalini ;hosh, #"2 $:/&, <alcutta 7<
held that 7usband and wife are both competent witness against each other in civil and criminal
cases. They are competenet witness to prove that there has been no conjugation between them
during marriage.
#lthough not mentioned in the act, it has been held in several cases that provisions of this section
are subject to ection $'', which ma)es the communication between a husband and wife
privileged.
<ompetency of #ccused
#s per ection ,$! of <r 0 <, an accused is a competent witness. 7e can given evidence on his
behalf, but if he does not, no comment can be made against the accused or adverse inference be
drawn against him.
<ompetency of an #ccomplice
#ccomplice ( #n accomplice is a person who has ta)en part, whether big or small, in the
commission of an offence. #ccomplice includes principles as well as abettors.
Kot an #ccomplice ( person under threat commits the crime, person who merely witnesses the
crime, detectives, paid informers, and trap witnesses
;enerally, a small offender is pardoned so as to produce him as a witness against the bigger
offender. 7owever, evidence by an accomplice is not really very reliable because ( $5 he is li)ely
to swear falsely in order to shift blame, '5 as a participator in a crime, he is a criminal and is li)ely
immoral, and so may disregard the sanctity of oath, and ,5 since he gives evidence in promise of
a pardon, he will obviously be favorable to prosecution.
Even so, an accomplice is allowed to give evidence. #s per ection $,,, he is a competent
witness against the accused and a conviction based on his evidence is not illegal merely because
his evidence has not been corroborated. #t the same time, ection $$/ 3b5 contains a provision
that allows the <ourt to presume that an accomplice is unworthy of credit, unless he is
corroborated in material particular. The idea is that since such a witness is not very reliable, his
statements should be or verified by some independent witness. This is interpreted as a rule of
caution to avoid mindless usage of evidence of accomplice for producing a conviction.
ince every case is different, it is not possible to precisely specify a formula for determining
whether corroborative evidence is re1uired or not. o some guiding principles were propounded
in the case of 2 vs -as)erville, $:$6. #ccording to this procedure (
$. "t is not necessary that there should be an independent confirmation of every detail of the crime
related by the accomplice. "t is sufficient if there is a confirmation as to a material circumstance of
the crime.
'. There must at least be confirmation of some particulars which show that the accused
committed the crime.
,. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate
other.
/. The corroboration need not be by direct evidence. "t may be through circumstantial evidence.
This rule has been confirmed by the upreme <ourt in 2ameshwar vs tate of 2ajasthan, $:!'.
#ccomplice and <o(accused
The confession of a co(accused 3. ,B5 is not treated in the same way as the testimony of an
accomplice because (
$. The testimony of an accomplice is ta)en on oath and is subjected to cross examination and so
is of a higher probative value.
'. The confession of a co(accused can hardly be called substantive evidence as it is not evidence
within the definition of . ,. "t must be ta)en into consideration along with other evidence in the
case and it cannot alone form the basis of a conviction. While the testimony of an accomplice
alone may be sufficient for conviction.
Q. 8escribe different stages in testimony of a witness. 3ections $,&, $,%5

Witnesses are examined by the parties or their advocates by the way of as)ing 1uestions with a
view to elicit responses that build up a factual story. To be able to derive meaningful conclusions
from the statements of the witnesses, it is necessary to follow a standard pattern in presenting
them and 1uestioning them before the court. "t will also be impractical and time consuming to call
witnesses multiple times at random. -esides causing severe inconveniences to the witnesses, it
will also not be helpful in arriving at a decision. Thus, standard procedure for examining a witness
must followed so that a trial can proceed swiftly. This procedure is described in ections $,& and
$,%.
tages of Examination
ection $,& defines three stages of examination of a witness as follows (
Examination(in(chief ( The examination of a witness, by the party who calls him, shall be called
his examination(in(chief.
<ross(examination ( The examination of a witness by the adverse party shall be called his
cross(examination.
2e(examination ( The examination of a witness, subse1uent to the cross(examination by the
party who called him, shall be called his re(examination.
ection $,% specifies the order of examinations ( Witnesses shall be first examined(in(chief then
3if the adverse party so desires5 cross(examined, then 3if the party calling him so desires5 re(
examined. The examination and cross(examination must relate to relevant facts but the cross(
examination need not to be confined to the facts which the witness testified on his examination(in(
chief. 8irection of re(examination ( The re(examination shall be directed to the explanation of
matters referred to in cross(examination, and if new matter by permission of the <ourt, introduced
in re(examination, the adverse party may further cross(examine upon that matter.
*et us discuss these stages one by one (
$. Examination in <hief ( The first stage is where a witness is examined by the party who has
called it. "n this stage, the goal of the party is to ma)e the witness ma)e statements that prove the
facts alleged by the party. The party as)s 1uestions, the responses to which are expected to
support the factual story submitted by the party.
'. <ross Examination ( The second stage is where the witness is cross examined by the opposite
party. "n this stage the goal of the party which is examining the witness is to po)e holes in the
story of the witness with a view to discredit the evidence that the witness has given. 7owever,
when it is intended to suggest to the court that the witness is not spea)ing the truth on a particular
point, it is necessary to direct his attention to it by 1uestions in this stage. The witness must then
be given an opportunity to explain the apparant contradictions while he is in the witness box. +or
example, in the case of 2avinder 9umar arma vs tate of #ssam, $:::, the appallant sued two
police officers for damages for malicious prosecution. The appallant put 1uestions in that regard
to one of them who denied the allegation that he demanded a bribe. 7e did not put the allegation
on the other police officer. "t was held that the appallant had not properly substantiated the
allegation.
cope of <ross Examination ( #s mentioned in ection $,% the cross(examination must relate to
relevant facts. 7owever, the cross(examination need not be confined to the facts which the
witness testified on his examination(in(chief. Thus, the scope of cross examination is 1uite wide.
#s per ection $/6, the objective of the 1uestions as)ed in cross examination is ( a5 to test the
veracity of the witness, b5 to discover who the person is and what is his condition in life and c5 to
sha)e his credit by injuring his character.
,. 2e(examination ( The final stage, is where the witness is re examined by the party who called
the witness if, in the cross examination stage, inconvenient answers are given by the witness.
The goal in this stage is to nullify the effect of such answers and to reestablish the credibility of
the evidence given by the witness.
The 2e Examination is not confined to the matters discussed in Examination in <hief. Kew matter
may be elicited with the permission of the court and in such a case, the opposite party can again
<ross examin the witness on new matters.
"n Tej 0ra)ash vs tate of 7aryana, $::6, it was held that tendering a witness for cross
examination without examination in chief is not warranted by law and it would amount to failure to
examine the witness at the trial.

ection $,% provides a valuable right to cross examin a witness and ection $/6 further gives the
right to as) additional 1uestions to sha)e the credibility of the witness. "n case of 2ajendra vs
8arshana 8evi, 'BB$, it was held that if a party has not ta)en advantage of these provisions, he
cannot be allowed to complain about the credibility of the witness.
Q. What is a leading 1uestion4 3ection $/$5 When such 1uestions cannot and when such
1uestions can be as)ed4 3ections $/', $/,5
#ccording to -EKT7#E, a *eading Question is a 1uestion that indicates to the witness the real or
supposed fact which the examiner expects or desires to have confirmed with the witness. +or
example, "did you not wor) with Er L for five years4", "is your name so and so", "did you not see
the accused leave the premise at % 0E4", are all leading 1uestions. ection $/$ defines a
*eading 1uestion thus ( #ny 1uestion suggesting the answer which the person putting it wishes or
expects to receive is called a leading 1uestion. "n the previous examples, it is clear that the
1uestion itself contains the answer and the examiner is merely trying to confirm those answers
with the witness and are thus leading 1uestions.
When leading 1uestions may and may not be as)ed (
#s per ection $/' ( *eading 1uestions must not, if objected to by the adverse party, be as)ed in
an examination(in(chief, or in re(examination, except with the permission of the <ourt. The <ourt
shall permit leading 1uestions as to matters which are introductory or undisputed or which have,
in its opinion, been already sufficiently proved. +urther, ection $/, provides that *eading
1uestions may be as)ed in cross(examination.
The purpose of Examination in <hief of a witness is to enable the witness to tell the court the
relevant facts of the case. # 1uestion should be put to him about a relevant fact and he should be
given ample scope to answer the 1uestion from the )nowledge that he posses about the case.
The witness should be left to tell the story in his own words. 7owever, as seen in the previous
example, instead of eliciting information from a witness, information is being given to the witness.
This does not help the court arrive at the truth. "f this type of 1uestioning is allowed in
Examination in <hief, the examiner would be able to construct a story through the mouth of the
witness that suits his client. This affects the rights of the accused to a fiair trial as enshrined in
#rticle '$ of the constitution and is therefore not allowed. # 1uestion, "do you not live at such and
such address4", amply gives hint to the witness and he will immediately say yes. "nstead, the
1uestion should be, "where do you live4" and he then should be allowed to answer in his own
words.
Kormally, the opposite party raises an objection when a leading 1uestion in as)ed in Examination
in <hief or 2e Examination. "f the examining party then desires, it can re1uest the court for its
permission to as) the 1uestion and the court permits the 1uestion if it pertains to matters which
are introductory, matters on which there is no dispute, or matters which are already proven.
@verall, a leading 1uestion can be as)ed in the following situations (
$. "n Examination in <hief and 2e ( examination if (
a5 the opposite party does not object or
b5 the 1uestion is about the matter which is introductory, undisputed, or is already proven or
b5 the court permits the 1uestion overruling the objection of the opposite party
'. "n <ross examination.
Q. <an a witness refuse to answer a 1uestion4 3ection $'$($':5 = When can a witness be
compelled answer a 1uestion4 3ection $/&($/%5 4 What communications are privileged4
"n general, if the 1uestion is relevant to the case, the witness is bound to answer it. This is
provided by ection $/&, which says that if any 1uestion relates to a matter relevant to the suit or
proceeding, the provisions of ection $,' shall apply. ection $,' provides that a witness is not
excused from answering a 1uestion even if the 1uestion incriminates the witness. To ensure that
the witness spea)s the truth, proviso to ection $,' provides that if the answer of the witness
incriminates the witness, such answer shall not be used to arrest or prosecute him, except if he
gives false evidence.
#lthough it is the goal of the court to find out the truth from a witness, there are certain situations
in which a witness is permitted to refuse to answer a 1uestion. There are also situations where a
witness is prohibited from answering certain )ind of 1uestions. These are situations that are
critical to the foundation of a moral society. These situations are provided in the form in
previledges to a witness in ections $'$ to $':.
30rivileged <ommunications ( DE@<0"N*5
$'$. Dudges and Eagistrate ( Ko Dudge or Eagistrate shall, except upon the special order of
some <ourt of which he is subordinate, be compelled to answer any 1uestions as to his own
conduct in <ourt as such Dudge or Eagistrate, or as to any thing which came to his )nowledge in
<ourt as such Dudge or Eagistrate but he may be examined as to other matters which occurred in
his presence whilst he was so acting.
"llustrations
3a5 #, on his trail before the <ourt of ession, says that a deposition was improperly ta)en by -,
the Eagistrate. - cannot be compelled to answer 1uestion as to this, except upon thee special
order of a superior <ourt.
3b5 # is accused before the <ourt of ession of having given false evidence before -, a
Eagistrate. -, cannot be as)ed what # said, except upon the special order of the superior <ourt.
3c5 # is accused before the <ourt of ession of attempting to murder a police(officer whilst on his
trail before -, a ession Dudge. - may be examined as to what occurred.
$''. <ommunications during marriage ( Ko person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to whom
he is or has been marriedH nor shall he be permitted to disclose any such communication, unless
the person who made it, or his representative in interest, consents, except in suits between
married persons, or proceedings in which one married person is prosecuted for any crime
committed against the other.
#s held in E < Nerghese vs T D 0onnan, #"2 $:&6, < held that it is not material whether the
relationship between husband and wife subsists at the time of giving the evidence. o, where a
woman was divorced from first husband and married another person, and was called to provide
evidence of a communication between her and her first husband that happened while they were
married, she was deemed incompetent to do so.
$',. Evidence as to affairs of tate ( Ko one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of tate, except wit the permission of the officer
at the head of the department concerned, who shall give or withhold such permission as he thin)s
fit.
$'/. @fficial communications ( Ko public officer shall be compelled to disclose communications
made to him in official confidence, when he considers that the public interests would suffer by the
disclosure.
$'!. "nformation as to commission of offences ( Ko Eagistrate or 0olice(officer shall be
compelled to say whence he got any information as to the commission of any offence, and no
2evenue(@fficer shall be compelled to say whence he The @rient Tavern any information as to
the commission of any offence against the public revenue.
Explanation ( "2evenue(@fficer" in this section means any officer employed in or about the
business of any branch of the public revenue.
$'6. 0rofessional communications ( Ko barrister, attorney, pleader or va)il, shall at any time be
permitted, unless with his client.s express consent to disclose any communication made to him in
the course and for thee purpose of his employment as such barrister, pleader, attorney or va)il,
by or on behalf of his client, or to state the contents or condition of any document with which he
has become ac1uainted in the course and for the purpose of his professional employment or to
disclose any advice given by him to his client in the course and for the purpose of such
employment.
0rovided that nothing in this section shall protect from disclosure (
$. #ny communication made in furtherance of any illegal purpose,
'. #ny fact observed by any barrister, pleader, attorney or va)il, in the course of his employment
as such showing that any crime or fraud has been committed since the commencement of his
employment. "t is immaterial whether the attention of such barrister, pleader, attorney or va)il was
or was not directed to such fact by or on behalf of his client.
Explanation ( The obligation stated in this section continues after the employment has ceased.
"llustrations
3a5 #, a client, says to -, an attorney ( "" have committed forgery and " wish you to defend me."
#s the defense of a man )nown to be guilty is not a criminal purpose, this communication is
protected from disclosure.
3b5 #, a client, says to -, and attorney ( "" wish to obtain possession of property by the use of
forged deed on which " re1uest you to sue."
The communication being made in furtherance of criminal purpose, is not protected from
disclosure.
3c5 #, being charged with embe>>lement retains -, an attorney to defend him, "n the course of the
proceedings - observes that an entry has been made in #.s account boo), charging # with the
sum said to have been embe>>led, which entry was not in the boo) at the commencement of his
employment.
This being a fact observed by - in the course of his employment showing that a fraud has been
committed since the commencement of the proceedings, it is not protected from disclosure.
$'&. ection $'6 to apply to interpreters etc. ( The provisions of ection $'6 apply to interpreters,
and the cler)s or servants of barristers, pleaders, attorneys and va)ils.
$'%. 0rivilege not waived by volunteering evidence ( "f any party to a suit gives evidence therein
at his own instance or otherwise, he shall not be deemed to have consented thereby to such
disclosure as is mentioned in ection $'6, and if any party to a suit or proceeding calls any such
barrister, pleader, attorney or va)il as a witness, he shall be deemed to have consented to such
disclosure only if he 1uestions such barrister, attorney or va)il on matters which, but for such
1uestion, he would not be at liberty to disclose.
$':. <onfidential communication with *egal #dvisers ( Ko one shall be compelled to disclose to
the <ourt any confidential communication which has ta)en place between him and his legal
professional adviser, unless he offers himself as a witness in which case he may be compelled to
disclose any such communication as may appear to the <ourt necessary to be )nown in order to
explain any evidence which he has give, but not others.
+urther, ection $/% gives discretion to the court to allow the witness to refuse to answer a
1uestion when the 1uestion affects the credit of the witness by injuring his character and is
otherwise irrelevant. ;enerally, court allows the witness to refuse to answer the 1uestion when
the 1uestion relates to a matter so remote in time or of such a character that that the truth of the
imputation would not affect the opinion of the court as to the credibility of the witness.
Q. Who is hostile witness4 Ander what circumstances a person is allowed to cross examin his
own witness4 What are the limits of such rights of cross examination4 3ection $!/5
"n general, a witness is considered to be a hostile witness when he has feelings which are against
the party which has invited him for his testimony or when he adopts an adverse stance towards
the party which has invited him. # similar but categorically different )ind of witness also exists
which is called as Anfavorable Witness. #n unfavorable witness is not hostile towards the calling
party but his testimony fails to give evidence in support of the calling party or gives evidence that
proves the opposite of what the calling party intends to prove. "n such a case, it becomes
important for the calling party to put such 1uestions to the witness that would discredit his
testimony. uch 1uestions are normally as)ed by the adverse party in cross examination but
when a witness turns hostile or unfavorable, the witness can be cross examined by the party who
had called the witness.
7owever, it must be noted that "ndian Evidence #ct, $%&', mentions neither 7ostile Witness nor
Anfavorable witness. #s per ection $!/ ? Question by party of his own witness ( 3$5 The <ourt
may, in its discretion, permit the person who calls a witness to put any 1uestions to him which
might be put in cross(examination by the adverse party. 3'5 Kothing in this section shall disentitle
the person so permitted under sub(section 3$5, to rely on any part of the evidence of such
witness.".
Anli)e the law in England, "n "ndia, the grant of permission to cross examine one.s witness by a
party is not conditional on the witness being declared hostile or unfavorable. ;ranting such
permission is entirely upon the discretion of the court. The discretion is un1ualified and is used
whenever the court gets a feeling from the temper, attitude, demeaner, or past statements of the
witness, that he is being untruthful or has become uncreditable.
"t was thought that once a witness is declared hostile, his entire testimony should be excluded
because the only purpose of cross examination is to discredit the witness. 7owever, this view is
not correct. "t is important to understand that the purpose of cross examination is not merely to
discredit the witness but is also to elicit true facts about the case that would build the case of the
cross examiner. When a party confronts his own witness, with the permission of court, he does so
with the hope that the witness might revert bac) to his story that supports the calling party.
+urther, ection $!/ does not technically tentamount to cross examining the witness. trictly
spea)ing, cross examination can only be done by the adverse party.Therefore, any party ( the
calling party or the adverse party may rely on any part of the statement of such a witness. This is
exactly what is conveyed by subclause 3'5 of ection $!/.
Thus, in the case of at 0al vs 8elhi #dministration, $:&6, it was held that in a criminal
prosecution, when a witness is cross examined and contradicted with the leave of the court by the
party calling him, his evidence cannot, as a matter of law, be treated as completely wiped off the
record altogether. "f is for the court to consider in each case whether as a result of such cross
examination and contradiction, the witness stands thoroughly discredited or still can be believed
in regard to a part of his testimony.
The court will exercise its discretion only when it is satisfied that the witness has turned hostile to
the party who calls him as a witness. "n criminal cases, the court may be so satisfied by
examining the statement given by the witness and recorded by the police during investigation
under ection $6' of <r0< and comparing with the evidence given. "n civil cases, if an advocate
has prepared a proof of the evidence of the witness in his chambers, this could be produced in
court and compared with the testimony of the witness.
The extent of the 1uestions is same as that of the extent of the 1uestions that can be put in cross
examination by an adverse party. Thus, rules given above in ection $/6 apply. 7owever, a mere
inconvenient answer given by the witness is not sufficient to declare him hostile. The court must
be satisfied that he has really turned hostile to the party calling him as a witness.
Q. When and how may the credit of a witness be impeached by a party4 3ections $/6, $!,, $!!5
"mpeaching the credit of a witness means to show the real character of the witness so that the
court may not trust him. <redibility of a witness is very important for the court in deciding the truth
of the testimony. "ndeed, it would be unfair to convict anybody solely on the testimony of a
habitual liar. Thus, it is imperative upon the adverse party to ma)e sure that the witness is
credible and so it can as) 1uestions that may impeach the credit of the witness.
The When
#s per ection $/6, which describes the 1uestions that are lawful in cross examination, it is lawful
to as) 1uestions during cross examination to test his veracity, to discover who he is and what his
position is in live, and to sha)e his credit by injuring his character. Thus, it is clear that the credit
of a witness can be impeached by the adverse party in his cross examination. 7owever, when it
is suggested that the witness is not spea)ing the truth, it is necessary to draw his attention to it by
1uestions in cross examination. "t cannot be argued that a witness is unworthy of credit without
giving his an opportunity to explain while he is in the witness box. "t was held by < in tate of
A0 vs Kahar ingh, #"2 $::%, that if you indent to impeach a witness, you are bound, while he is
in witness box, to give him an opportunity to explain, even as a rule of profession ethics and fair
play. # similar provision is given by ection $/! as well, which says that when a witness is cross
examined about his previous writing, without such writing is shown to him or is proved, and if it is
intended to contradict his writing, his attention must be drawn to those parts which are to be used
for the purpose of contradicting him, before such writing is proved.
When a witness turns hostile or unfavorable, the same right becomes available to the party who
has called the witness. This is provided for by ection $!/, which says that the <ourt may, in its
discretion, permit the person who calls a witness to put any 1uestions to him which might be put
in cross(examination by the adverse party.
The 7ow
"f a witness denies the suggestions put in cross examination, evidence to contradict him can be
called. This flows from the general rule given in ection !, which allows evidence of relevant facts
to be given. 7owever, when such evidence is not relevant otherwise and is only useful in sha)ing
the credit of the witness, the provisions of ection $!, and $!! are applicable.
ection $!! provides the ways through which the credit of a witness may be impeached.
ection $!! ( "mpeaching credit of witness
The credit of a witness may be impeached in the following ways by the adverse party, or, with the
consent of the <ourt, by the party who calls him (
3$5 by the evidence of persons who testify that they, from their )nowledge of the witness believe
him to be unworthy of creditH
3'5 by proof that the witness has been bribed, or has accepted the offer of a bride, or has
received any other corrupt inducement to give his evidenceH
3,5 by proof of former statements inconsistent with any part of his evidence which is liable to be
contradictedH
Explanation O # witness declaring another witness to be unworthy of credit may not, upon his
examination(in(chief, give reasons for his belief, but he may be as)ed his reasons in cross(
examination, and the answers which he gives cannot be contradicted, though, if they are false, he
may afterwards be charged with giving false evidence.
"llustrations
3a5 # sues - for the price of goods sold and delivered to -. < says that he delivered the goods to
-.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods
to -.
The evidence is admissible.
3b5 # is indicated for the murder of -.
< says that -, when dying, declared that # had given - the wound of which he died.
Evidence is offered to show that, on a previous occasion, < said that the wound was not given by
# or in his presence.
The evidence admissible.
ection $!, ( Exclusion of evidence to contradict answers to 1uestions testing veracity
When a witness has been as)ed and has answered any 1uestion which is relevant to the in1uiry
only in so far as it tends to sha)e his credit by injuring his character, no evidence shall be given to
contradict himH but, if he answers falsely, he may afterwardas be charged with giving false
evidence.
Exception $ ( "f a witness is as)ed whether he has been previously convicted of any crime and
denies it, evidence may be given of his previous conviction.
Exception ' ( "f a witness is as)ed any 1uestion tending to impeach his impartiality, and answers
it by denying the facts suggested, he may be contradicted.
"llustrations
3a5 # claim against an underwriter is resisted on the ground of fraud.
The claimant is as)ed whether, in a former transaction, he had not made a fraudulent claim. 7e
denies it, Evidence is offered to show that he did ma)e such a claim.
The evidence is inadmissible.
3b5 # witness is as)ed whether he was not dismissed from a situation for dishonesty. 7e denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
3c5 # affirm that on a certain day he saw - at *ahore.
# is as)ed whether he himself was not on that day at <alcutta. 7e denies it.
Evidence is offered to show that # was on that day at <alcutta.
The evidence is admissible, not as contradicting # on a fact which affects his credit, but as
contradicting the alleged fact that - was seen on the day in 1uestion in *ahore.
"n each of these cases the witness might, if his denial was false, be charged with giving false
evidence.
3d5 # is as)ed whether his family has not had a blood feud with the family of - against whom he
gives evidence.
7e denies it. 7e may be contradicted on the ground that the 1uestion tends to impeach his
impartiality.
This section provides an important protection to the witness against character assasination. "f a
witness has answered a 1uestion whose purpose is only to discredit him, whatever may be his
answer, no evidence can be shown to disprove or contradict him. This applies only to the
answers that are not relevant to the facts of the case and not to answers to the 1uestions that are
relevant to the case. The two exceptions contained in the section are meant to prevent misuse of
this provision. Thus, a person is not allowed to lie about his prior conviction and he is not allowed
to be partial. Thus, as explained in illustration 3c5, if a witness denies a suggestion that he is
biased, evidence may be given that proves otherwise.
Q. What do you understand by -urden of 0roof4 @n whom the does the burden of proof lie4
tate the rules of determining -urden of 0roof in a suit or proceeding. When does the burden of
proof shift to the other parties4 #re there any exceptions4
;eneral <oncept of -urden of 0roof
The responsibility to prove a thing is called burden of proof. When a person is re1uired to prove
the existence or truthfulness of a fact, he is said to have the burden of proving that fact. "n a case,
many facts are alleged and they need to be proved before the court can base its judgment on
such facts. The burden of proof is the obligation on a party to establish such facts in issue or
relevant facts in a case to the re1uired degree of certainty in order to prove its case. +or example,
in a case of murder, prosecution may allege that all the conditions constituting a murder are
fulfilled. #ll such conditions are facts in issue and there is an obligation to prove their existence.
This obligation is a burden of proof. "n general, every party has to prove a fact that goes in his
favor or against his opponent, this obligation is nothing but burden of proof. ection $B$ defines
burden of proof as follows ( When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
The important 1uestion is who is supposed to prove the various facts alleged in a case. "n other
words, on whom should the burden of proving a fact lie4 The rules for allocation of burden of
proof are governed primarily by the provisions in ection $B$ to $B!. The rules propounded by
these sections can be categori>ed as ;eneral rules and pecific rules.
;eneral rules
2ule $ ( #s per ection $B$, specifies the basic rule about who is supposed to prove a fact. "t
says that whoever desires any <ourt to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist. +or example, #
desires a <ourt to give judgment that - shall be punished for a crime which # says - has
committed. # must prove that - has committed the crime. #nother example ( # desires a <ourt
to give judgment that he is entitled to certain land in the possession of -, by reason of facts
which he asserts, and which - denies, to be true. # must prove the existence of those facts.
+acts can be put in two categories ( those that positively affirm something and those that deny
something. +or example, the statement, "# is the owner of this land" is an affirmative statement,
while "- is not the owner of this land" is a denial. The rule given in ection $B$ means that the
person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus,
the person who ma)es the statement that "# is the owner of the land", has the burden to prove it.
This rule is useful for determining the ownership of the initial burden. Whoever wishes the court to
ta)e certain action against the opposite party based on certain facts, he ought to first prove those
facts.
7owever, it is not very simple to categori>e a fact as asserting the affirmative. +or example, in the
case of oward vs *egatt, $%,6, a landlord suing the tenant asserted that the tenant did not
repair the house. 7ere, he was asserting the negative. -ut the same statement can also be said
affirmatively as the tenant let the house dilapidate. "n this case, *ord #-"K;E2 observed that "n
ascertaining which party is asserting the affirmative the court loo)s to the substance and not the
language used. *oo)ing at the substance of this case, the plaintiff had to prove that the premises
were not repaired.
Thus, the court should arrive at the substance of the issue and should re1uire that party to begin
who in substance, though may not be in form, alleges the affirmative of the issue.
-urden of 0roof and @nus of 0roof
The term -urden of 0roof is used in two difference senses ( the burden of proof as a matter of
law and pleading, and the burden of proof as a matter of adducing evidence also called as onus.
There is a subtle distinction between burden of proof and onus of proof, which was explained in
the case of 2anchhodbhai vs -abubhai #"2 $:%'. The first one is the burden to prove the main
contention of party re1uesting the action of the court, while the second one is the burden to
produce actual evidence. The first one is constant and is always upon the claimant but the
second one shifts to the other party as and when one party successfully produces evidence
supporting its case. +or example, in a case where # is suing - for payment of his services, the
burden of proof as a matter of law is upon # to prove that he provided services for which - has
not paid. -ut if - claims that the services were not up to the mar), the onus of burden as to
adducing evidence shifts to - to prove the deficiency in service. +urther, if upon providing such
evidence, # claims that the services were provided as negotiated in the contract, the onus again
shifts to # to prove that the services meet the 1uality as specified in the contract.
The next rule determines who has the onus of proof.
2ule ' ( #s per ection $B', the burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side. The following illustrations explain this
point (
"llustration $ ( # sues - for land of which - is in possession, and which, as # asserts, was left to
# by the will of <, -.s father. "f no evidence were given on either side, - would be entitled to
retain his possession. Therefore the burden of proof is on #.
"llustration ' ( # sues - for money due on a bond. The execution of the bond is admitted, but -
says that it was obtained by fraud, which # denies. "f no evidence were given on either side, #
would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of
proof is on -.
2ule , ( #s per ection $B,, the person who wants the court to believe in an alleged fact is the
one who is supposed to prove that fact unless it is provided by any law that the proof of that fact
shall lie on any particular person. +or example, # prosecutes - for theft, and wishes the <ourt to
believe that - admitted the theft to <. # must prove the admission. #nother example ( - wishes
the <ourt to believe that, at the time in 1uestion, he was elsewhere. 7e must prove it. +urther, as
specified in ection $B/, if a person wants the court to believe in a fact that assumes the
existence of another fact, it is up to the person to prove the other fact also. +or example, #
wishes to prove a dying declaration by -. # must prove -.s death. # wishes to prove, by
secondary evidence, the contents of a lost document. # must prove that the document has been
lost.
pecific 2ules
These rules specifically put the burden on proving certain facts on particular persons (
2ule $ ( #s per ection $B6, when any fact is especially within the )nowledge of any person, the
burden of proving that fact is upon him. When a person does an act with some intention other
than that which the character and circumstances of the act suggest, the burden of proving that
intention is upon him. +or example, # is charged with traveling on a railway without a tic)et. The
burden of proving that he had a tic)et is on him.
2ules of 0resumption ( ection $B& and $B% say that if a person was )nown to be alive within ,B
yrs the presumption is that he is alive and if the person has not been heard of for seven years by
those who have naturally heard from him if he had been alive, the presumption is that the person
is death. -ut no presumption can be draw as to the time of death. ections $B: establishes the
burden in case of some relations such as landlord and tenant, principle and agent etc. +urther
sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.
Exceptions (
Exception $ ( The general rule in criminal cases is that the accused is presumed innocent. "t is
the prosecution who is re1uired to establish the guilt of the accused without any doubt. #t the
same time, the accused is not re1uired to prove his innocence without any doubt but only has to
create reasonable doubt that he may not be guilty. ection $B! specifies an exception to this
general rule. When an accused claims the benefit of the ;eneral Exception clauses of "0<, the
burden of proving that he is entitled to such benefit is upon him. +or example, if an accused
claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane
at the time of committing the crime.
"n the case of 9 E Kanavati vs tate of Eaharashtra, #"2 $:6', < explained this point. "n this
case, Kanavati was accused of murdering 0rem #huja, his wife.s paramour, while Kanavati
claimed innocence on account of grave and sudden provocation. The defence.s claim was that
when Kanavati met 0rem at the latter.s bedroom, 0rem had just come out of the bath dressed
only in a towelH an angry Kanavati swore at 0rem and proceeded to as) him if he intends to marry
ylvia and loo) after his children. 0rem replied, "Will " marry every woman " sleep with4", which
further enraged Kanavati. eeing 0rem go for the gun, enclosed in a brown pac)et, Kanavati too
went for it and in the ensuing scuffle, 0rem.s hand caused the gun to go off and instantly )ill him.
7ere, < held that there is a presumption of innocence in favor of the accused as a general rule
and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. -ut when
an accused relies upon the general exception or proviso contained in any other part of the 0enal
<ode, ection $B! of the Evidence #ct raises a presumption against the accused and also throws
a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there
existed a grave and sudden provocation. "n absence of such proof, Kanavati was convicted of
murder.
Exception ' ( #dmission ( # fact which has been admitted by a party and which is against the
interest of that party, is held against the party. "f the fact is contested by the party, then the
burden of proof rests upon the party who made the admission. +or example, # was recorded as
saying that he committed theft at the said premises. "f # wants to deny this admission, the burden
of proof rests on # to prove so.
Exception , ( 0resumptions ( <ourt presumes the existence of certain things. +or example, as per
ection $B&=$B%, court presumes that a person is dead or alive based on how long he has not
been heard of. ection $B:, presumes that when two people have been acting as per the
relationship of landlord ( tenant, principle ( agent, etc, such relationship still exists and anybody
who contends that such relationship has ceased to exist has to provide proof. ection $$B
presumes that the person who has the possession of a property is the owner of that property. #s
per ection $$,#, When the 1uestion is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband. #s per ection $$,-, when the 1uestion is
whether a person has committed the dowry death of a woman and it is shown that soon before
her death such woman had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shall presume that such person had caused the
dowry death.
Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on
the opposite party.
Q. What do you understand by -urden of 0roof4 @n whom the does the burden of proof lie4
tate the rules of determining -urden of 0roof in a suit or proceeding. When does the burden of
proof shift to the other parties4 #re there any exceptions4
;eneral <oncept of -urden of 0roof
The responsibility to prove a thing is called burden of proof. When a person is re1uired to prove
the existence or truthfulness of a fact, he is said to have the burden of proving that fact. "n a case,
many facts are alleged and they need to be proved before the court can base its judgment on
such facts. The burden of proof is the obligation on a party to establish such facts in issue or
relevant facts in a case to the re1uired degree of certainty in order to prove its case. +or example,
in a case of murder, prosecution may allege that all the conditions constituting a murder are
fulfilled. #ll such conditions are facts in issue and there is an obligation to prove their existence.
This obligation is a burden of proof. "n general, every party has to prove a fact that goes in his
favor or against his opponent, this obligation is nothing but burden of proof. ection $B$ defines
burden of proof as follows ( When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
The important 1uestion is who is supposed to prove the various facts alleged in a case. "n other
words, on whom should the burden of proving a fact lie4 The rules for allocation of burden of
proof are governed primarily by the provisions in ection $B$ to $B!. The rules propounded by
these sections can be categori>ed as ;eneral rules and pecific rules.
;eneral rules
2ule $ ( #s per ection $B$, specifies the basic rule about who is supposed to prove a fact. "t
says that whoever desires any <ourt to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist. +or example, #
desires a <ourt to give judgment that - shall be punished for a crime which # says - has
committed. # must prove that - has committed the crime. #nother example ( # desires a <ourt
to give judgment that he is entitled to certain land in the possession of -, by reason of facts
which he asserts, and which - denies, to be true. # must prove the existence of those facts.
+acts can be put in two categories ( those that positively affirm something and those that deny
something. +or example, the statement, "# is the owner of this land" is an affirmative statement,
while "- is not the owner of this land" is a denial. The rule given in ection $B$ means that the
person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus,
the person who ma)es the statement that "# is the owner of the land", has the burden to prove it.
This rule is useful for determining the ownership of the initial burden. Whoever wishes the court to
ta)e certain action against the opposite party based on certain facts, he ought to first prove those
facts.
7owever, it is not very simple to categori>e a fact as asserting the affirmative. +or example, in the
case of oward vs *egatt, $%,6, a landlord suing the tenant asserted that the tenant did not
repair the house. 7ere, he was asserting the negative. -ut the same statement can also be said
affirmatively as the tenant let the house dilapidate. "n this case, *ord #-"K;E2 observed that "n
ascertaining which party is asserting the affirmative the court loo)s to the substance and not the
language used. *oo)ing at the substance of this case, the plaintiff had to prove that the premises
were not repaired.
Thus, the court should arrive at the substance of the issue and should re1uire that party to begin
who in substance, though may not be in form, alleges the affirmative of the issue.
-urden of 0roof and @nus of 0roof
The term -urden of 0roof is used in two difference senses ( the burden of proof as a matter of
law and pleading, and the burden of proof as a matter of adducing evidence also called as onus.
There is a subtle distinction between burden of proof and onus of proof, which was explained in
the case of 2anchhodbhai vs -abubhai #"2 $:%'. The first one is the burden to prove the main
contention of party re1uesting the action of the court, while the second one is the burden to
produce actual evidence. The first one is constant and is always upon the claimant but the
second one shifts to the other party as and when one party successfully produces evidence
supporting its case. +or example, in a case where # is suing - for payment of his services, the
burden of proof as a matter of law is upon # to prove that he provided services for which - has
not paid. -ut if - claims that the services were not up to the mar), the onus of burden as to
adducing evidence shifts to - to prove the deficiency in service. +urther, if upon providing such
evidence, # claims that the services were provided as negotiated in the contract, the onus again
shifts to # to prove that the services meet the 1uality as specified in the contract.
The next rule determines who has the onus of proof.
2ule ' ( #s per ection $B', the burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side. The following illustrations explain this
point (
"llustration $ ( # sues - for land of which - is in possession, and which, as # asserts, was left to
# by the will of <, -.s father. "f no evidence were given on either side, - would be entitled to
retain his possession. Therefore the burden of proof is on #.
"llustration ' ( # sues - for money due on a bond. The execution of the bond is admitted, but -
says that it was obtained by fraud, which # denies. "f no evidence were given on either side, #
would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of
proof is on -.
2ule , ( #s per ection $B,, the person who wants the court to believe in an alleged fact is the
one who is supposed to prove that fact unless it is provided by any law that the proof of that fact
shall lie on any particular person. +or example, # prosecutes - for theft, and wishes the <ourt to
believe that - admitted the theft to <. # must prove the admission. #nother example ( - wishes
the <ourt to believe that, at the time in 1uestion, he was elsewhere. 7e must prove it. +urther, as
specified in ection $B/, if a person wants the court to believe in a fact that assumes the
existence of another fact, it is up to the person to prove the other fact also. +or example, #
wishes to prove a dying declaration by -. # must prove -.s death. # wishes to prove, by
secondary evidence, the contents of a lost document. # must prove that the document has been
lost.
pecific 2ules
These rules specifically put the burden on proving certain facts on particular persons (
2ule $ ( #s per ection $B6, when any fact is especially within the )nowledge of any person, the
burden of proving that fact is upon him. When a person does an act with some intention other
than that which the character and circumstances of the act suggest, the burden of proving that
intention is upon him. +or example, # is charged with traveling on a railway without a tic)et. The
burden of proving that he had a tic)et is on him.
2ules of 0resumption ( ection $B& and $B% say that if a person was )nown to be alive within ,B
yrs the presumption is that he is alive and if the person has not been heard of for seven years by
those who have naturally heard from him if he had been alive, the presumption is that the person
is death. -ut no presumption can be draw as to the time of death. ections $B: establishes the
burden in case of some relations such as landlord and tenant, principle and agent etc. +urther
sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.
Exceptions (
Exception $ ( The general rule in criminal cases is that the accused is presumed innocent. "t is
the prosecution who is re1uired to establish the guilt of the accused without any doubt. #t the
same time, the accused is not re1uired to prove his innocence without any doubt but only has to
create reasonable doubt that he may not be guilty. ection $B! specifies an exception to this
general rule. When an accused claims the benefit of the ;eneral Exception clauses of "0<, the
burden of proving that he is entitled to such benefit is upon him. +or example, if an accused
claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane
at the time of committing the crime.
"n the case of 9 E Kanavati vs tate of Eaharashtra, #"2 $:6', < explained this point. "n this
case, Kanavati was accused of murdering 0rem #huja, his wife.s paramour, while Kanavati
claimed innocence on account of grave and sudden provocation. The defence.s claim was that
when Kanavati met 0rem at the latter.s bedroom, 0rem had just come out of the bath dressed
only in a towelH an angry Kanavati swore at 0rem and proceeded to as) him if he intends to marry
ylvia and loo) after his children. 0rem replied, "Will " marry every woman " sleep with4", which
further enraged Kanavati. eeing 0rem go for the gun, enclosed in a brown pac)et, Kanavati too
went for it and in the ensuing scuffle, 0rem.s hand caused the gun to go off and instantly )ill him.
7ere, < held that there is a presumption of innocence in favor of the accused as a general rule
and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. -ut when
an accused relies upon the general exception or proviso contained in any other part of the 0enal
<ode, ection $B! of the Evidence #ct raises a presumption against the accused and also throws
a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there
existed a grave and sudden provocation. "n absence of such proof, Kanavati was convicted of
murder.
Exception ' ( #dmission ( # fact which has been admitted by a party and which is against the
interest of that party, is held against the party. "f the fact is contested by the party, then the
burden of proof rests upon the party who made the admission. +or example, # was recorded as
saying that he committed theft at the said premises. "f # wants to deny this admission, the burden
of proof rests on # to prove so.
Exception , ( 0resumptions ( <ourt presumes the existence of certain things. +or example, as per
ection $B&=$B%, court presumes that a person is dead or alive based on how long he has not
been heard of. ection $B:, presumes that when two people have been acting as per the
relationship of landlord ( tenant, principle ( agent, etc, such relationship still exists and anybody
who contends that such relationship has ceased to exist has to provide proof. ection $$B
presumes that the person who has the possession of a property is the owner of that property. #s
per ection $$,#, When the 1uestion is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband. #s per ection $$,-, when the 1uestion is
whether a person has committed the dowry death of a woman and it is shown that soon before
her death such woman had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shall presume that such person had caused the
dowry death.
Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on
the opposite party.
Q. What is Dudicial 0resumption4 Explain giving special effects to the law relating to abatement of
suicide by a married woman.
# presumption is an acceptance of a fact as true or existent based upon its strong probability
evident from the circumstances. +or example, if a man has not been heard from for & years by his
closest relatives, the court may believe in that the man is dead. This is a presumption. Thus,
when the court presumes the existence of a fact because of its strong probability but without a
direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in
whose favor the fact is, is relieved of the initial burden of proof. +or example, as per Kegotiable
"nstruments #cts, every holder of an instrument is presumed to be a holder for consideration. o
if a person # holds a che1ue signed by another person -, it is presumed that # has given
consideration for the che1ue and so # does not have to provide any proof of that consideration.
@f course, this presumption only applies at the beginning. The other party is free to provide proof
that disproves the presumption. +or example, the opposite party can show letters by the person
or recent photograph of the person showing that he is still alive.
#ccording to English *aw, a presumption can be of two )inds ( presumption of fact and
presumption of law.
0resumption of +act
0resumption of fact are those presumption about things or events that happen in day to day life,
which we accept as true due to inference drawn logically and naturally by our mind. uch as,
presumption that a man with blood stained clothes and a )nife in his hands is the murderer. uch
presumptions are rebuttable from further evidence.
0resumption of *aw
0resumption of law are arbitrary conse1uences that are annexed by law to particular facts. They
are legal fiction. They may not be same as the inferences that we may ordinarily draw but the law
prescribes that such inference may be drawn. +or example, it is a presumption of law that a child
below seven years of age is not capable of committing a crime. @r that a person who has not
been heard from for seven years is dead. uch presumptions may or may not be rebuttable
depending on the law. +or example, the presumption that a child below seven years of age is not
capable of committing a crime cannot be rebutted. *aw presumes the age of the child as a
conclusive proof of his innocence. -ut the presumption that a person is dead when he is not
heard from for & years is rebuttable by showing evidence.
Eay 0resume and hall 0resume
0rovisions of ection /, in a general sense, correspond to the above classification. The first part
of this section defines "Eay 0resume" as follows (
"Eay presume" ( Whenever it is provided by this #ct that the <ourt 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. "t
gives the court a discretionary power to presume the existence of a fact. Which means that the
court may regard the fact as proved unless and until it is disproved. +or example, in the case of
8r T T Thomas vs Elisa #"2 $:%&, where a doctor failed to perform an emergency operation due
to lac) of consent, the court presumed that the consent was there since the patient was brought
to the hospital. "t was up to the doctor to prove that the consent was not there. The court may
also as) for further proof before ma)ing the presumption.
#ll the presumptions given in ection $$/ are of this )ind, which says that the court may presume
the existence of any fact which it thin)s li)ely to have happened regard being had to the common
course of natural events, human conduct, and public and private business, in their relation to the
facts of the particular case. +or example, the court may presume that a man who is in
possession of stolen goods soon after theft, is either the thief of has received the goods )nowing
them to be stolen, unless he can account for his possession.
The second part of the section for defines "hall 0resume" as follows (
"hall presume" ( Whenever it is directed by this #ct that the <ourt shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved. "t basically forces the court to
presume a fact that is specified by the law unless and until it is disproved. The court cannot as)
for any evidence to prove the existence of that fact but it may allow evidence to disprove it. +or
example, ection :B provides that where any document, purporting or proved to be thirty years
old, is produced
from any custody which the <ourt in the particular case considers proper, the <ourt may presume
that the signature and every other part of such document, which purports to be in the handwriting
of any particular person, is in that person.s handwriting, and, in the case of a document executed
or attested, that it was duly executed and attested by the persons by whom it purports to be
executed and attested. 0resumption about abetment of suicide of a married woman 3. $$,#5
and 0resumption about dowry death of a woman 3. $$,-5 are of this )ind.
Third part of the section defines "<onclusive 0roof" as follows (
"<onclusive proof" ( When one fact is declared by this #ct to be conclusive proof of another, the
<ourt shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to
be given for the purpose of disproving it. +or example, birth during marriage 3. $$'5 is a
conclusive proof of legitimacy.
0resumption and -urden of 0roof
Dustice Nen)ataramiah, of < observed the following, in the case of odhi Transport vs tate of
A0, $:%6 ( # presumption is not evidence in itself but only ma)es a prima facie case for party in
whose favor it exists. "t indicates the person on whom the burden of proof lies. When the
presumption is conclusive, it obviates the production of any evidence, but when it is rebuttable, it
only points out the party on whom lies the duty of going forward with evidence on the fact
presumed and when that party has produced evidence fairly and reasonably tending to show that
the real fact is not as presumed the purpose of presumption is over.
0resumption about abatement of suicide by a married woman
ection $$, # ( When the 1uestion is whether the commission of suicide by a woman had been
abetted by her husband or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the court may presume, having regard to all
the other circumstances of the case, that such suicide had been abetted by her husband or by
such relative of her husband.
Explanation ( +or the purposes of this section, "cruelty" shall have the same meaning as in
section /:%# of the "ndian 0enal <ode 3/! of $%6B5.
ection $$, - ( 0resumption as to dowry death ( 0resumption as to dowry death.(When the
1uestion is whether a person has committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the court shall presume that such person had
caused the dowry death. Explanation ( +or the purposes of this section, "dowry death" shall have
the same meaning as in section ,B/- of the "ndian 0enal <ode.