INDIAN EVIDENCE ACT

HISTORY: In order to trace the history of the law of evidence in our country we have to known three
different periods:

1) The ancient Hindu period: according to Hindu law, proof was of two kinds, i.e. divine and
human. The former consisted of ordeals, and the latter of witnesses, documents, possession,
and inference from circumstances.
2) The ancient Muslim period: According to the Muslim law, the slave dynasty established by
Kutubuddin came to an end, when the Muslim rulers had well established themselves in India
the Islamic idea of justice was also established in country. Non Muslim, especially Hindus, were
not subjected to Islamic rules. Their affairs were regulated according to the principles of their
own religion especially in matters of inheritance, marriage etc. the Hindu law was applied to
Hindus with aid of the Pandits and shastris who were attached to the court, but the Islamic
criminal law applied to all equally.
3) The British period: During 1835-1855 at least 11 enactments in this area of law were dealt with.
In 1868, a draft was prepared by Sir Henry Sumner Maine which was found unsuitable for the
country.
Sir James Stephen in 1872 prepared the Bill for the act who was entrusted with same
work in 1871.

OBJECT: The Objective of the Code (Evidence act) was to facilitate the judge to form a rational
conclusion as to the existence or non-existence of the disputed fact.

DEFINITION: Taylor: “evidence includes all the legal means, exclusive of mere argument, which trends to
prove or disprove any matter of fact, the truth of which is submitted to judicial investigation”.

Bentham: “any matter of fact, the effects or tendency of which is to produce in mind a persuasion,
affirmative or disaffirmative to the existence of some other matter of fact.”

Judicial proceeding was defined under sec 2(i) of CrPC, 1973 as: judicial proceeding includes all the
proceeding in which the evidence is or may be legally taken on oath.

Non-judicial proceedings are: 1 proceeding by district magistrate conducting enquiry in a crime. 2

proceedings by tribunal or arbitration. 3 departmental proceedings for disciplinary action. 4 inquiry by
magistrate into cause of death ( u/s 176 of CrPC)
 SECTIONS
Section 1: Applicability- extends to whole of India except Jammu and Kashmir. Applies to all judicial
proceedings in or before any court, including Courts-martial. Not applicable to courts martial convened
under the army act, naval discipline act, the navy act 1934, the air force act. Evidence act was also not
applicable to the affidavits presented to any court or any officer and proceeding before arbitrator or
tribunal.

Fact means and includes:

1. Anything, state of thing or relation of thing, capable of being perceived by the sense
2. Any mental condition of which any person is conscious
3. Ex:
a. there was certain object arranged in a certain order in a certain place, is a fact
b. That a man heard or saw something is a fact
c.

Q1. Explain evidence and its types?

Answer: Introduction – The evidence in lieu of the offence is the eye and ear of the court. Evidence can
be understood as utmost importance with regard to practice of law. For the proper and accurate
decision the court has to be known the fact alleged with the dispute. Through the evidence the facts
alleged by one party and denied by the other party require the court to ascertain which contention are
true and for that purpose the judge has to weigh the evidence available in support of and contradiction
of those contention.

Thus, without proof there is no case in the court and without evidence there is no proof. Therefore,
evidence is sine qua non of the practice of law.

MEANING: Evidence, as used in judicial proceeding, have several meanings. The two main sense of the
word are: first, the means, apart from argument and inference, whereby the court is informed as to the
issue of fact as ascertained by the pleading; secondly the subject matter of such means. The word is also
used to denote that some fact may be admitted as proof and in some case it denotes some fact have
relevance to issue of fact. In real sense evidence is that which is may be placed before the court in order
that it may decide the issue of fact. In first sense the evidence means testimony, whether oral,
documentary or real, which may be legally received in order to prove or disprove the issue in dispute. In
second sense it means the content of the testimony.

As per Indian evidence act 1872(herein after referred to as the act) evidence means and includes:
  All statement which the court permits or requires to be made before it by witnesses, in relation
to matter of fact under inquiry, such statements are called as oral evidence.
 All document including electronic record produced for the inspection of the court, such
documents are called as documentary evidence.

The word Evidence is derived from Latin word evidere or evident, which means ‘to prove’, ‘to discover
clearly’. It is not exhaustive in nature. Indian evidence act is Lex Fori i.e. Rule of the place of law (law of
the land). It is an adjective law. Law of evidence is basically a procedural law but some of it provisions
do come under the substantive law.

Other definition given by different authors:

Taylor: evidence includes all legal means exclusive of mere arguments, which trends to prove or
disprove any matter of fact, the truth of which is submitted to judicial proceedings.

Bentham: any matter of fact effects or tendency of which is to produce in mind any persuasion,
affirmative or disaffirmative to existence of some other fact.

ROLE OF EVIDENCE: The main object of evidence is to help the court to ascertain the truth and
avoid of the confusion arises in the mind if the judge arises due to the excess of the evidence.
Thus, the Indian Evidence Act 1872 was passed with the object of preventing indiscipline in
admission of the evidence by enacting a uniform and a correct law of practice. Therefore,
evidence act is Lex Fori for the court whether a witness is competent or not, whether the fact
was required to be proved or not, whether a certain evidence prove the fact or not, whether
the fact have relevance with the fact in issue or not.

Whenever, a judge was called upon to pronounce a dispute or upon any right and liabilities
arising out of any fact, certain information is to be submitted to the court in order to create a
belief in mind of the judge that such fact in issue was true or not. The means by which the facts
are proved governed by the evidence act. The function performed by Indian Evidence act is
laying down the rules according to which a fact can be proved before the court. Thus, it can be
said that the means which can be used to prove or disprove any fact before the court are
controlled by the rules and principles laid down by the law of evidence .i.e. Indian Evidence act,
1872.

The basis on which rules of evidence are framed are:(i) No facts other than those having some
connection with the matter in controversy should be looked into by the court however
interesting it may be; and (ii) All facts having rational probative value i.e., which helps the Court
to come to a conclusion upon the existence or non-existence of the matter in controversy, are
admissible in evidence, unless excluded by some rule of paramount importance. Further, it is
one of the basic principles of law that if evidence is to be admitted in a court of law it must be
relevant, material, and competent. Once admitted as relevant evidence, the judge is to
determine the appropriate weightage to be given to a particular piece of evidence. A given
piece of evidence is considered material if it is offered to prove a fact that is in dispute in a
case. Since the quality and reliability and the substance of the evidence shapes the actual
decision, it is important to consider the means used to obtain the evidence presented before
the Court. It was made clear by the Supreme Court, the court need not concern itself with the
method by which the evidence in question was obtained. This proposition was also upheld in
Barindra Kumar Ghose v. Emperor. However, the Supreme Court noted an exception to this
wherein after the alleged offence improper methods have been used to obtain evidence for it
and the judge is of the view that the prejudicial effect of such evidence would be out of
proportion to its evidentiary value, the judge may exclude it. The Act applies to both civil and
criminal cases alike and hence the rules of evidence to be considered are (largely) the same as
well. Thus, even in civil cases it is only relevant evidence that must be taken into account.

The rules of law of evidence for civil and criminal Cases are the same, for example: the method
of proving that a particular person is dead in respect of Civil Case (person executing the Will,
died or not on a particular date) or of Criminal Case (a person charged with murder). But there
are certain sections of the Act, which apply only to Civil Cases (sections 115-117 dealing with
estoppel) and some only to the Criminal Case (sections 24-30 dealing with confessions).
Furthermore, the burden of proof is on the prosecution in criminal cases and on the plaintiff in
civil matters. In civil cases a matter is taken to be proved when the balance of probability
suggests it, but in criminal cases the court requires a burden of proof beyond reasonable
doubt. There is a marked difference as to the effect of evidence in civil & criminal matters. In
criminal proceedings, law presumes the accused as innocent unless and until he is proved
guilty. In civil cases, principle of res ipsa loquiture is followed.

Kinds of evidence: There are many ways and methods in which evidence can be grouped
together to classify the types of evidence. Even through the meaning given under the act itself
only includes two types of evidence, oral and documentary, but it also proved for other types
of evidence, which are:

1. Primary evidence: Sec 62 of Indian Evidence act deals with primary evidence. Primary
evidence was those facts or information which has a greater capability of proving or
disproving any fact in issue. Section 62 says that primary evidence is the document
itself produced for inspection before the court.
For example: ownership paper produced before court of a vehicle is a primary
evidence for proving ownership of vehicle.
For example, when two parties enter into a contract, each copy of the contract is
primary evidence against the party executing it.
 For example, in a continuing contract, that is periodically renewed, each renewal
contract is evidence of the contract itself.
2. Secondary evidence: Section 63 deals with the secondary evidence. These evidences
are given when the original or primary evidence was lost or destroyed and the party
made diligent search of it and exhausted all the sources. Section 63 says that:
Secondary evidence means and includes:
i. Certified copies given under provision hereinafter provided
ii. Copies made from the original by mechanical processes which in themselves
insure the accuracy of the copy, and copies compared with such copy.
iii. Copies made from and compared from the copy
iv. Counterparts of the document against the person who did not execute them
v. Oral account of the contents of document by the person who actually seen it.

For example: a photograph of an original document is secondary proof of the document.

An oral account of a document by a person who has herself seen it is secondary proof of the
document.

3. DOCUMENTARY EVIDENCE: section 3 talks about the documentary evidence, where those facts
or information in form of document can be witnessed by the court of law for establishing the
fact in issue. Indian evidence does not basically describes documentary evidence but it define
document as “ any matter expressed or described in any substance, by means of letters, marks
or figures, or by more than one of the means intended to be used or can be used for, the
purpose of recording the fact”.

4. Oral evidence: sec 60 prescribed the provision of recording oral evidence. Oral evidence are
the statements which the court permits or expects the witnesses to make in his presence
regarding truth of facts. Further, oral evidence is confined to the words spoken, signs and
gestures. Oral evidence is the evidence which the witness has personally seen or heard. The
only condition which was imposed that such evidence must be direct and positive for
establishing fact in issue. Evidence is direct when it goes straight to establish the main fact in
issue.

5. Real evidence: real evidence the evidence of the fact brought to the knowledge of the
court by the inspection of the physical object and not by the information derived from
 the witnesses and documents. Therefore, to say real evidence is the material evidence
in which the court can directly inspect and need no further knowledge.

6. Personal evidence: personal evidence is that which is afforded by the human agents,
either in way of disclosure or by voluntary sign. For ex: contempt of court, conduct of
the witnesses, behaviors of the parties.

7. Original evidence

8. Hearsay evidence

9. Direct evidence: it is the most powerful types of the evidence as the court need not
make any inference because these evidence shows the direct impact and has great
value to establish or prove a fact. Direct evidence is the evidence directly about the real
point in issue. It is the testimony of the witnesses as to principal fact to be proved. For
ex- the statement of the person who says he saw the commission of the act.

10. Circumstances evidence or indirect evidence:

Q2. Under what circumstances the facts which are not otherwise relevant
become relevant? Explain.

Answer: the circumstances are given under section 11 of Indian evidence act

Section 11 say that: facts not otherwise relevant become relevant:

1. If it is inconsistence with the fact in issue or relevant fact.

2. If it by themselves or in connection with other fact they make the existence or non existence of
the fact in issue or relevant fact, highly probable or highly improbable.

Illustrations:
 The question is, whether A committed a crime at Calcutta on a certain day. The f act
that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A 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.

(b) The question is, whether A committed a crime.

The circumstance are such that the crime must have been committed either by А, В, С
or D, every fact which shows that the crime could have been committed by either В, С or
D, is relevant.

Scope: section 11 of Indian evidence act is very wide in its application and does not impose any
restriction on facts that can be admitted even if it was highly in consistence and improbable to
the fact in issue or relevant fact. The fact which ordinarily trends to render the existence of the
fact in issue or relevant fact probable or improbable is relevant. But this under this section
there are collateral facts by way of contraction, inconsistence with the fact in issue or relevant
fact become relevant. It is only a rule of evidence recognized in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant. The section is described as
“residuary section” dealing with relevancy of facts which are logically admissible.

Example:

A has written a defamatory statement against B. This is a fact.

A is illiterate, this is another fact. Both the facts are inconsistent but both facts are relevant and
admissible.

NATURE: Section 11 consists of two clauses:

(a) Fact inconsistence with the fact in issue or relevant fact

(b) Fact make the fact in issue or relevant fact highly probable or highly improbable

Fact Inconsistence with the fact in issue or relevant fact: One fact is inconsistent with the other
when it cannot co-exist with the other. Under this clause facts are relevant only because they cannot co-
exist with fact in issue or relevant fact. Above example shows that A is illiterate. A cannot write a
defamatory letter to B. These two facts cannot co-exist. “The usual theory of essential inconsistency is
that a certain fact cannot co-exist with the doing of the act in question, and, therefore, that if that fact is
true of a person of whom the fact is alleged, it is impossible that he should have done the act.”
Under the clause there are at least six classes of cases which show inconsistency, viz.;

a. Alibi: Alibi is a Latin word, which means elsewhere. It is used when the accused
takes the plea that when the occurrence took place he was elsewhere. In such a
situation the prosecution has to discharge the burden satisfactorily. Once the
prosecution is successful in discharging the burden it is incumbent on the
accused who takes the place of alibi to prove it with absolute certainly. An alibi is
not an exception envisaged in the IPC or any other law. It is a rule of evidence
recognized by Section 11 of the Evidence Act that facts inconsistent with fact in
issue are relevant [Illustration (a)]. However it cannot be the sole link or sole
circumstance to bare conviction. When one fact is necessary to the hypothesis of
the guilt of the accused, but strikingly absent in the chain of circumstantial
evidence, the prosecution case certainly will fail. Because, an alibi the relevancy
of which is totally inconsistence with hypothesis that the accused had committed
an offence.

When the accused took the plea of alibi the burden of proof lies on him under
section 103 of this Act. If a person is charged with murder he is to prove that he
was elsewhere. The plea of alibi has to be taken at the earliest opportunity and it
has to be proved to the satisfaction of the court. When an accused was
discharged from hospital situated 180 km. away from the place of occurrence.

11/2 hrs. earlier from time of occurrence the plea of alibi was established. Strict
proof is required for establishing the plea of alibi. The plea of alibi must be
proved with absolute certainty as said in Rajesh Kumar v Dharamin. Plea of alibi
was rejected when no material showing that accused was present in jail for
purpose of identification at point of time when occurrence took place.
The plea of alibi taken by the party on the basis of certificate issued by a hospital
not filed at the stage of filing objections but during course of agreements in
execution proceedings being an afterthought was found not tenable and rejected’
while weighing the prosecution case and defence case, if the prosecution case
fails the accused would be entitled to benefit of the reasonable doubt which
would emerge in the mind of the Court.

b. Non access of the husband to show illegitimacy of child: Since legitimacy of the child implies
cohabitation between husband and wife. For disproving the legitimacy the husband has
to prove that he had no cohabitation with his wife during the probable time of begetting
as he was in abroad.
 c. Survival of alleged deceased: A is accused of murdering В on 10th August
1996 at Delhi. But A tried to prove and led evidence to show that В was alive on
25th December 2004. Both the facts are relevant under section 11 only because
these are not consisting with each other.

d. Commission of the offence by third person: A is charged with the murder

of B. A leads evidence that В was murdered by C. This is admissible being
inconsistent with fact in issue.

e. Self infliction of harm: A is charged with the murder of B. A proves that В had
committed suicide. The evidence is admissible

f. Non execution of document: A files a suit for recovery of possession against

В alleging that he has purchased the land. В leads evidence that the deed of sale
was not executed as yet. The fact is relevant.

2. Facts highly probable and improbable:

Under the second clause the fact which by itself or in combination with other
facts make the existence and nonexistence of the fact in issue or relevant fact
highly probable or improbable. The words “highly probable” indicate that the court
has to go by the prohibits of the circumstances as regards the existence or non-
existence of fact in issue or relevant fact. It also indicates that the connection
between the facts in issue and the collateral facts sought to be proved must be
immediate as to render the co-existence of the two highly probable. The
collateral facts can be admitted in evidence if they make the existence of the fact
in issue highly probable or improbable.

It is well settled that it is not a mere reasonable probability but carries great
weight in bringing the court to conclusion whether facts exist or non-exist. In
order to make a collateral fact admissible, the collateral facts must be established
by conclusive evidence and when established these must afford a reasonable
presumption as to matter in dispute. When a person is charged with forging a
particular document, evidence is afforded to prove that a number of documents
apparently forged or held in readiness for the purpose of forgery were found in
possession of the accused. It can be said as per Reg. v Prabhudas that in a
charge of forgery, the evidence offered to prove that a number of documents
 apparently forged or held in readiness for the purpose of forgery found in
possession of the accused is not admissible. This section renders inadmissible
the evidence of one crime to prove the existence of another unconnected crime,
even though it is cogent.

Q2. What do you mean by admission and confession? Whose admissions

are relevant?

Answer: introduction: admission as defined under section 17 of Indian evidence act, 1872 as-
any statement, oral or documentary or contained in electronic form, which suggest an
inference as to any fact in issue or relevant fact, and made by any of the persons, and under the
circumstances hereinafter mentioned.

The definition states that evidence can either be oral, documentary or be contained in
electronic form (inserted by Information Technology Act, 2000). Its relevancy is depended on
whether if, it satisfies the conditions mentioned in sections 18 to 23 of The Indian Evidence Act,
1872. Surprisingly, in common parlance, ‘confession’ is used to refer to adverse statements
made by a competent party but it comes under the purview of admission. Admission is a
broader term and includes confessional statements. Confession is nowhere defined in the act
but the conditions for its relevancy are given in sections 24 to 30.

ADMISSIONS
As already defined above, admissions are statements that attach a liability, as inferred from the facts in
issue or relevant facts, to the party who made such statements; the statement, denouncing any right,
should be conclusive and clear, there should not be any doubt or ambiguity.

Admissions can be either formal or informal. The former also called judicial admission is made during
the proceedings, while the latter is made during the normal course of life. Judicial admissions are
admissible under Section 58 of the act and are substantive. They are a waiver of proof, that is, no further
proof is needed to prove them unless the court asks the same. The Supreme Court in Nagindas Ramdas v
Dalpatram Ichharam (1974 1 SCC 242) explained the effect of it, stating that if admissions are true and
clear, they are the best proof of the facts admitted. Through informal or casual admission, the act brings
in every written or oral statement regarding the facts of the case (by the party), under admission.

A person’s conduct may also be taken as an admission. In an Australian case, Mayo v Mayo (1949 P
172), a woman registered the birth of her child but did not enter the name of the father or his
profession. The court said that either she did not know who the father was or she was admitting that
the child is illegitimate. In either case, there is an admission of adultery and an admissible evidence of
adultery.

Before any admission becomes relevant, it should meet certain conditions, which are explained further
down below.

Section 18, 19 & 20

These sections lay down the list of persons whose admission will be relevant. Section 18 lays down the
rules for parties to the suit and sections19 & 20 lay down rules regarding relevancy for third parties.
They are:

1. PARTIES TO THE SUIT: All statements made by parties to the suit that makes an inference as to a
relevant fact or fact in issue is relevant. In case of defendants, a defendant’s admission does not
bind his co-defendants as, then, the plaintiff would defeat the case of all defendants through
the mouth of one. In case of the plaintiff, since they all share some common interest, the
admission of one plaintiff is bound on co-plaintiffs (Kashmira Singh v State of MP AIR 1952 SC
159).
2. AGENTS OF PARTIES: As the law of agency dictates, anything done by an agent, in the normal
course of business, is deemed to have been done by the principal himself (qui facit per alium,
facit per se). Hence, if an agent is impliedly or expressly been asked to make an adverse
statement, the same shall be relevant. A lawyer does not come under this section.
3. STATEMENTS IN REPRESENTATIVE CHARACTER: A person who sues or is sued in a representative
character. These refer to people such as trustees, administrators, executors, etc. Nothing said in
their personal capacity is taken as admission but if said in the representative capacity, it counts
as an admission.
4. STATEMENT OF THIRD PARTIES: These include:
 Persons having proprietary or pecuniary interest in subject matter, provided, their
statements are in the character of their interest.
 A predecessor-in-title, that is, from whom the parties have derived their interest in the
subject-matter of the suit. This is applicable only if the parties to the suit continue
holding their title. The previous owner of the title to the property can make admissions
regarding the property and not the parties or the new owner

Section 21
This section is regarding the proof of admissions. It states that, since an admission is an evidence against
the party who has made it; it cannot be proved by the party but has to be proved against the party. It is
better explained by Crompton J in R v Petcherini (1855 7 Cox CC 70): If a man makes a declaration
accompanying an act it is evidence, but declarations made two or three days, or a week, previous to the
transaction in question cannot be evidence, otherwise it would be easy for a man to lay grounds for
escaping the consequences of this wrongful acts by making such declarations.
It can, though, be proved in favour of the party, if, the party who made the statement, originally, died.
This comes under Section-32 of the Indian Evidence Act and the statement is proved by the
representatives of the original party. When the statement relates to a bodily feeling or state of mind,
the person making the admission can prove it, too. The state of mind in question should be proved with
an appropriate conduct, since a person in pain would act differently than a person faking it. Certain
other relevant statements can also be proved by the party making it, such as, when the statement is
itself a fact in issue or if it is a part of res gestae

Section 22 & 22A

Section 22, along with section 65 and section 22A (inserted by the Information Technology Act, 2000)
provides that oral admissions as to the content of documents or electronic records are irrelevant unless
the question is about the document or record being forged or genuine.

Section 23
In civil cases, when a statement or an admission is made ‘without prejudice,’ it is not relevant. It means
that both the parties have agreed to that admission and no evidence is to be provided regarding the
same. This section is meant to reach a compromise between parties and avoid litigation. It protects
every admission made where ‘without prejudice’ is expressly or impliedly stated and they cannot be
disclosed in the court, except by the consent of both the parties to the suit. In Paddock v Forrester (1842
3 Scott NR 715: 133 ER 1404) a letter was written by one party ‘without prejudice.’ The reply to the
letter was not so marked but it was held to be inadmissible by the court. Only those admissions which
come under the purview of Section 126 are to be compulsorily disclosed by the lawyer.

CONFESSIONS
A confession is nowhere defined under the act and it occurs under the heading ‘admission.’ The
definition of ‘admission’ under Section 17, hence, becomes applicable for Confessions. In terms of the
act, a relevant statement made in a civil case is an admission and an admission made in a criminal case is
a confession.

In Palvinder Kaur v State of Punjab (1953 SCR 94) the Supreme Court upheld the decision of the Privy
council in Pakala Narayan Swami v Emperor (AIR 1939 PC 47) and cited two points: confession must
either admit the guilt in terms or admit substantially all the facts and secondly, a mixed up statement,
containing confessional statements which will lead to acquittal is no confession. The court cannot
remove the exculpatory part out of a statement and deliver a decision on the basis of the inculpatory
part of the statement.

A confession, like admission, can be judicial or extra-judicial. In Sahoo v State of UP (AIR 1966 SC 40), the
accused was talking to himself and made the confession of killing his own daughter which was
overheard by the witness. This was held to be confession relevant in evidence.
Section 24
This section makes those confessions irrelevant which are:

 A result of inducement, threat or promise;

 Inducement, etc be made from a person in authority;
 It should relate to a charge in question; and
 It should hold out some worldly benefit or advantage.

The law considers confessions, which are not made freely, as false. A government official is considered
to be a person in authority as they are deemed to be capable of influencing the course of prosecution (R
v Middleton, 1974 QB 191 CA). The benefit promised should be reasonable and make the accused
believe that he would gain an advantage from it and an evil which the accused is threatened with should
be of a temporal nature.

Confession to Police
Section 25 to 30 talks about confessions to police.

1. SECTION 25: It provides that no confession made to a police officer shall be provable or
relevant. This is to protect the accused who might be tortured to extract out a false confession.
If a person is confessing in front of someone else, it will not be irrelevant just because of the
presence of a policeman around. This section only applies to confessional statements, orally or
in FIR; other admissions can be taken as evidence to prove facts or facts in issue.
2. SECTION 26: This section is similar to the preceding one and states that no confession of a
person, in police custody, is provable. It applies the same context that a false confession could
be extracted out through fear or torture. It not only applies to confessions to a policeman but to
any other person. Police custody does not only mean within the four walls of a police station,
but it could also mean police control in a home, a car or a public place. The only exception to
this rule is that if the confession is made by the person in presence of a Magistrate, it will be
admissible.
3. SECTION 27: If a statement leads to a discovery of a fact related to the crime, it becomes
admissible, even if it was extorted out of the accused. This acts as an exception to Section 26. To
certify the genuineness of the recoveries, they should be made in presence of witnesses.
In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), the accused, on arrest, indicated where he had
kept the stolen goods and the same were found within six days. The court held that his liability
can be inferred from the statement and was held liable for murder and robbery. A statement
made cannot be used against other co-accused, as was held in Satish Chandra Seal v Emperor
(AIR 1943 Cal 137).
4. SECTION 28: If the inducement, threat or promise, as defined in section 24 is removed, a
confession afterwards, becomes relevant. Here, the confession is free and voluntary.
 5. SECTION 29: Unlike admissions, where a ‘without prejudice’ statement is inadmissible, a
confession that is made by a promise of secrecy is admissible. The law is only concerned with
the confession being free and voluntary, hence, even if deception or fraud is being employed or
the person is inebriated or if he is made to answer questions, he was not supposed to, the
confession made through all these methods is admissible. In R v Maqsud Ali (1966 1 QB
688), two accused were left alone in a room where they thought they were all alone but secret
tape recorders had been implanted in the room. The confessions thus, recorded were held to be
relevant.
6. SECTION 30: This section comes into play when more than one person is jointly accused of
the same offence. Here, if one of the co-accused makes a confession regarding himself and
some other such persons, the court will take that confession into account against the accused
and his co-accused. In Kashmira Singh v State of MP (AIR 1952 SC159), a person named
Gurbachan, along with 3 others was accused of the murder of a child. Through his confession,
the prosecution was able to give shape to the story and he, with Kashmira Singh was held liable
and sentenced to death. Kashmira was acquitted by the Supreme Court on an appeal as
uncorroborated confession was not deemed enough to deprive a person of the right to life.

DIFFERENCE BETWEEN ADMISSION & CONFESSION

In the end, it shall be important to discuss some differences between admission and confession as they
are not essentially the same. As the definition of admission is also applicable to that of confession and
confession comes under the topic of ‘admission,’ it can be inferred that admission is a broader term and
it covers confessions. Hence, all confessions are admissions but not all admissions are confessions.

Confessions, usually, refer to admissions made in a criminal case whereas an admission is a relevant
statement made in a civil case. As was held in cases Pakala Narayan Swami v Emperor and Palvinder
Kaur v State of Punjab (cited above), that a confession must go further and admit the guilt in terms or
substantially the facts from which guilt follows, and not merely acknowledge a fact suggesting an
inference as to a fact in issue or a relevant fact.

An admission can either be in favour or against the interest of the party making it (Section 21 & 32),
whereas a confession is always against the interest of the party making it.

An admission can be made anywhere, even in police custody, or in front of a person in authority or
whether it was a result of inducement, whereas the conditions for relevancy of confessions are different
and would not be applicable in such cases.

A confession is binding on the co-accused, whereas this is not the case in admissions. An admission can
be made by a third party, too but confession proceeds from a person who has committed the crime.
Lastly, admission is not a conclusive proof but a confession is taken to be a satisfactory proof of guilt of
the accused.
Q4. Explain the justification for relevance on dying declaration?

ANSWER: Introduction

Dying declaration is the statement made by a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement that is given just before the death is dying
declaration. Also, the statement that is given before and which explains the cause of death is also dying
declaration. A person who is conscious and knows that death is about to happen can make a statement
about the reason of his/her death will be admissible in the court. The word dying declaration explains
the word itself. It means a written or verbal statement of relevant facts made by the person who is
about to die or is dead. It is the statement of a person who knew the cause of his death or the
circumstances of his death. It is said that a man will not meet his maker with lying on his mouth (nemo
mariturus presumuntur mentri). In our Indian Law it is a fact that is believed that a ‘dying man can never
lie’ or ‘truth sits upon the lips of a dying man’.

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a word. The Apex
court stated that the evidentiary value of the gestures and signs will depend on certain factors like who
recorded the statement, what are the gestures, what were the questions asked, were the questions
asked were simple or not etc. Gestures can be difficult to interpret but this does not mean that the
accused can roam freely after hurting someone. If the victim is not able to speak, gestures or signs can
be taken as evidence.

In Nirbhaya case 2013, a bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a dying
declaration should not necessarily be made by words or in writing and it could be through gestures. Not
just words but even gestures can be made admissible in the court now.

Question answer form

Dying declaration should be in question and answer form. If the dying declaration is not in question
answer form it was held that it cannot be discarded for this reason alone. The Statement can be
recorded in a narrative way also. It is not mandatory to record it in question answer form. But it is
always best to record it in question answer form as that will make the evidentiary value of the dying
declaration more.
Fitness Of the victim should be examined
While recording the statement of the victim, it is very important to examine the health of the victim. It
can be possible that he is making stories in the presence of drugs given. Judicial Magistrate should
satisfy himself that the victim is in a fit condition to give a statement. A certificate should be obtained by
the judicial magistrate from the doctors examining the victim.

This certificate can prove in court that the statement given was in fit condition and it is true. If the
circumstances do not permit attendance of the medical officer, then judicial magistrate can record
statement without the medical certificate but judicial magistrate should provide the reason why he
considered it indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value than any
other dying declaration. Doctors and police officer are also authorized to record the dying declaration if
the magistrate is not present. But sometimes the situation arises where dying declaration recorded by
the magistrate can be questioned. For example, If the magistrate records it even when the doctor does
not approve the victim medically fit. In this situation, the evidentiary value of the dying declaration can
be questioned.

The court always looks into the certain things to decide the value of the statements. The court always
seeks if the victim was mentally fit while giving the statement. If the victim is not fit at the time of giving
a statement then that statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its evidentiary value. It
should be taken with precaution and keeping in minds the following points:

The victim should be mentally fit to given statement. A medical certificate should be given by the doctor
about her health.

Doctors and the Police officer can record the statement but it is best if a magistrate records it.

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.[2] The first was recorded
by the doctor when she was admitted to the hospital, the second was by SDM during which she gave
exact details of the crime and the third one was recorded by a metropolitan magistrate and was mostly
by gestures.
In this case, all three dying declarations were recorded. But the one recorded by the magistrate was
important. And the court did accept the dying declaration recorded by magistrate even when it was in
gestures and nods.

In Kushal Rao v State of Bombay[3], The Supreme Court Of India accordingly states that the court must
be satisfied that the deceased was mentally fit to make the statement. And victim had the opportunity
to observe and identify the accused. The victim should not be making the statement under any
influence. Also, Supreme Court Of India held that once the court is satisfied that the dying declaration is
true, the conviction can be upheld and there is no need for further corroboration.

If the dying declaration is recorded by the medical officer or police officer, it should be attested by one
or more person that is present there.

Language of Statement
As far as possible the statement should be recorded in the language of the declarant or the court
language. The court cannot discard the dying declaration on the basis of the language. It can be
recorded in any language. Even if the deceased made the statement in Urdu, Hindi, Punjabi languages, it
was held that statement could not be discarded on the ground of language alone or on the ground that
it was recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in English but
the precaution was taken in explaining every statement to the deceased by another person, it was held
that the statement was the valid dying declaration.

F.I.R as dying declaration

When an injured person lodges a FIR and then dies, it was held that the FIR will be relevant as a dying
declaration.

In Munnu Raja and another v. State of M.P.[8], the Supreme Court Of India held that statement by
injured person recorded as FIR can be treated as dying declaration and such statement is admissible
under Section 32 of Indian Evidence Act. It was also held that dying declaration must not cover the
whole incident or narrate the case history. Corroboration is not necessary for this situation, Dying
declaration can be the sole purpose for conviction.

Principles governing dying declaration:

There is no format prescribed for recording a dying declaration. Indeed, no such format can be
prescribed. The courts have laid down in several judgments the principles governing dying declaration,
which can be summed up as under:
There is neither rule of law nor of prudence that dying declaration cannot be acted upon without
corroboration. [Mannu Raja v. State of M.P. (1976) 2 SCR 764]

If the Court is satisfied that the dying declaration is true and voluntary, it can base the conviction on it,
without corroboration. [State of UP v. Ram Sagar Yadav, AIR 1985 SC 416]

The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The deceased had the opportunity to observe and
identify the assailants and was in a fit state to make the declaration.[Rama Chandran Reddy v. Public
Prosecutor, AIR 1976 SC 1994]

Where dying declaration is suspicious it should not be acted upon without corroborative
evidence. [Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264]

Dying declaration can be the sole basis of the conviction if it inspires the full confidence of the
court. [Atbir v. Govt. (NCT of Delhi) , (2010) 9 SCC 1]

According to Patel Hira Lal Joita Ram v. State of Gujarat (AIR 2000 SC 2944), by Section 32 (1) two
categories of a statement are made admissible in evidence. They are:

 Cause of his death.

 Statement as to any circumstances of the transaction which resulted in his death.

1. CAUSE OF DEATH

This clause lays down that when the statement is made by a person as to the cause of his death, or as to
any of the circumstances of the transaction which resulted in his death, his statement would be relevant
in a case in which the cause of his death is the point at issue. EXAMPLE- A is assaulted and dies. Before
his death, he makes a statement that “B assaulted him with a spear.” This statement of A is admissible
as it relates to the cause of his death.

The Interval between the statement and death is immaterial. If the statement relates to the cause of
deponent’s death it is admissible. But if there is nothing to show that the injuries to which the statement
of the deceased related was the cause of his death the statement are not admissible as dying
declaration.

DECLARANT DIED OF INJURY TO BE PROVED: Before the statement of a person as to

cause of his death may be used as dying declaration it must be proved that his death was caused
by the injury he received in the incident for which the accused is being prosecuted.

In Chandra Bhan Singh v. State (1971 CrLJ 94), Chandra Bhan Singh was tried of the murder of
Shaitan Singh. The deceased Shaitan Singh himself lodged a report in which he narrated the story of
the incident. After the medical examination the deceased developed tetanus and died of it, it was
held that the statement of the deceased could not be used as a dying declaration.
2. CIRCUMSTANCES OF THE TRANSACTION WHICH RESULTED IN HIS DEATH:

The words “resulted in his death” do not mean ‘caused his death.’ The expression “any of the
circumstances of the transaction which resulted in his death” is wider in scope than the expression
“cause of death”. A statement not relating to the cause of death of its maker may be admissible if it
relates to the circumstances of the transaction which resulted in his death. In a case of robbery, a
statement made by a person before her death regarding the circumstance of the robbery is admissible.
Although remotely, her death was caused by wounds received at the robbery.

EXCEPTION:
1. If the deceased made statement before his death which is anything other than the cause of his
death, then such declaration shall not be admissible in evidence.
2. A dying declaration of a child is inadmissible.
3. An inconsistent dying declaration is of no evidentiary value.
4. Dying declaration should not be under influence of anyone.

Conclusion
Dying declaration is one of the most important evidence that is admissible in court as dying declaration
can be a sole purpose for conviction of accuse. Hence, it should be recorded carefully with all the
procedure that the court has mentioned. It should not be tampered at all by anyone. If the dying
declaration is incomplete, then it is very much to be rejected by the court. It is on the court discretion to
check if the dying declaration is recorded carefully or not.

Q5. What are the circumstances in which opinion of the third person is
relevant?
Answer: Most of the times it is the general rule that the opinions of third person or party is
irrelevant. However there are some instances/exceptions when the opinion of third person is taken into
consideration.

OPINIONS OF THIRD PERSONS WHEN RELEVANT

45. Opinions of experts.

When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity
of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are
relevant facts.
Such person called experts.
Illustrations–
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to
have died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness
of mind, in capable of knowing the nature of the act, or that he was doing what was either
wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly
show unsoundness of mind, and whether such unsoundness of mind usually renders persons
incapable of knowing the nature of the acts which they do, or knowing that what they do is
either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A.
The opinion of experts on the question whether the two documents were written by the same
person or by different persons are relevant.

45A. Opinion of Examiner of electronic evidence.

When in a proceeding, the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital form, the opinion of
the examiner of electronic evidence referred to in section 79A of the Information Technology Act, 2000
is relevant fact.

Explanation-
For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

Illustrations-
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have
died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind,
in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to
law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary
to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which
is proved or admitted to have been written by A.
The opinion of experts on the question whether the two documents were written by the same person or
by different persons are relevant.

46. Facts bearing upon opinions of experts.

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts
when such opinions are relevant.

Illustrations-
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons who were poisoned by that poison, exhibited certain symptoms which
experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.
The fact that other harbours similarly situated in other respects, but where there were no such sea-
walls, began to be obstructed at about the same time is relevant.

47. Opinions as to handwriting when relevant.

When the Court has to form an opinion as to the person by whom document was written or signed, the
opinion of any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation-
A person is said to be acquainted with the handwriting of another person when he has seen that person
write, or when he has received document purporting to be written by that person in answer to
documents written by himself to under his authority and addressed to that person, or when in the
ordinary course of business document purporting to be written by that person have been habitually
submitted to him.

Illustrations-
The question is whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be
written by him. G is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker,
to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with
him thereon.
The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant
though neither B, C or D ever saw A write.

47A. Opinion as to electronic signature when relevant.

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the
Certifying Authority which has issued the electronic Signature Certificate is a relevant fact.

48. Opinion as to existence of right or custom when relevant.

When the Court has to form an opinion as to existence of any general custom or right, the opinions as to
the existence of such custom or rights, of persons who would be likely to know of its existence if it
existed, are relevant.

Explanation-
The expression “general custom or right” includes customs or right common to any considerable class of
persons.

Illustrations-
The right of the villagers of a particular village to use the water of a particular well is a general right
within the meaning of this section.

49. Opinion as to usages, tenants etc when relevant.

When the Court has to form an opinion as to –

the usage’s and tenants of any body of men or family,
the constitution and government of any religious or charitable foundation,
or
the meaning of words or terms used in particular districts or by particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts.

50. Opinion on relationship when relevant.

When the Court has to form an opinion as to the relationship of one person to another, the opinion,
expressed by conduct, as to the existence of such relationship, or any person who, as a member of the
family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian
Divorce Act, 1869 (4 of 1869) or in prosecutions under Section 494, 495, 497 or 498 of the Indian Penal
Code.

Illustrations-
(a) The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B.

The fact that A was always treated as such by members of the family, is relevant.

*Contradiction in evidence of relationship of witness of trifle nature not material in a partition suit.
Related Case- Gowhari Das versus Santilata Singh, 1999

51. Grounds of opinion when relevant.

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are
also relevant.
Illustration–
An expert may give an account of experiments performed by him for the purpose of forming his opinion.

EVIDENTIARY VALUE OF EXPERT EVIDENCE

Supreme Court in Mobarik Ali v State of Bombay said that if a witness were permitted to express its
opinion and if it is relied then it may amount to delegation of judicial function and that is why the court
should exclude it generally. Further more statements of opinion are not merely superfluous but they
may also mislead the court. Judge may rely in opinion too much and then there may be miscarriage of
justice. The task if inference is on the court and not on the witness but the above general rule is subject
to certain exceptions and reason behind exception is that in many cases of technical nature the opinion
of expert does help the court to arrive at a satisfactory conclusion.

Furthermore as it is opinion of skilled person so it does have value. In many cases court does not possess
that professional or specialised knowledge.

Though this opinion of expert is necessary but it has certain issues-

1. There is danger of error or deliberate falsehood.

2. After all it is an opinion, and human judgements are fallible. (Fallible- error prone, open to error)

3. The expert witness however impartial may be likely to be unconsciously prejudiced. And these factors
seriously affects its probative force. (Probative- having the quality or function of proving or
demonstrating something; affording proof or evidence: Sentence Example- It places the probative
burden on the defendant.)

So the reliability of such evidence has to be tested in such way in which any other piece of evidence is
tested.

In this context it is the duty of court to call upon expert to explain the reason for its opinion and then to
form opinion as to whether or not expert opinion is satisfactory. The court should not surrender its
opinion to that of expert.

Expert opinion is an opinion on the basis that opinion court has to form its own opinion but at the same
time court has to be cautious as it is only an opinion and not mandatory for court to obey the same.

Q6. What do you mean by estoppels? Discuss the rule, essential elements and
various kinds of estoppels.

ANSWER: The principle of estoppel is an important concept of the law of evidence. It is related
to conduct. It does not allow behaving in one way at a time and in another way at other time.
There is no place of contradicting a thing said in the law of evidence. It is also called Doctrine of
Estoppel.

The principle of doctrine of Estoppel is stated under Section 115 of the Indian Evidence Act,
1892. Section 115 says that: “when one person by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true by his act upon such belief,
then such person or his representative shall not be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing”

It can be said in simple words that- Where any person intentionally causes another person to believe a
thing to be true by his act, omission or declaration and such other person acts upon such belief, then
that person shall not be allowed to deny the truthiness of that thing, later in a suit or proceeding. It
means that a person cannot deny thing after having stated it to be true. In the case of B. Manjunath v.
C.G.Srinivas (AIR 2005 Karnataka 136), it has been stated by the Karnataka High Court that by way of the
principle of estoppel, the plaintiff may be stopped to go back on his representation. This is the doctrine
of Estoppel.

It could be explained by an illustration. A person accepts his liability to make payment under an
arbitration award. Such a person cannot later challenge the award. (Mr. Govingji Javet and Co. v. Sri
Saraswati Mills Ltd., AIR 1982 Bombay 76.) Section 115 gives a good example. ‘A’ intentionally and
falsely leads ‘B’ to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at
the time of the sale, he had no title. He must not be allowed to prove his want of title.

In respect of estoppels, the case of ‘Shammim Beg v. Najmunnissa Begum (AIR 2007 N.O.C. 2085
Mumbai) is quotable. In this case, a document was executed between the husband and wife an
intention that the wife has begotten before the marriage with the husband. The husband had accepted
the fact of knowing the child. The wife gave birth to a child on the day of marriage. The husband could
not challenge the legitimacy of this child. He is bounded by his previous statements.

It becomes clear from this example that the doctrine of estoppels is based on having just in equity and
fairness in action. Also, in the case of Jindal Thermal Power Co. Ltd. v. Karnataka Transmission
Corporation Ltd., (AIR 2005 N.O.C. 55 Karnataka) it has been said that doctrine of estoppels appertains
to equity and fairness in action.

In this context, the case of ‘Pickard v. Spears’ (1837 A and E. 469) is a good example. In this case, the
principle of doctrine of estoppels is propounded as- where any person intentionally causes another
person to believe by his words or conduct that a particular thing as the existence and thereby
encourages that person to act upon that belief in such a way that his original situation is changed, then
the first person shall be stopped from stating that the existence of the actual situation was of different
type.
Principles of Estoppel: The principle of doctrine of Estoppel is stated under Section 115 of
the Indian Evidence Act, 1892. Estoppel is based on the principle that it would unjust, if a person
intentionally by conduct or in any other manner has induced other person to believe and act upon
such a representation, neither he or those representing can in a subsequent Court proceedings
deny the truth. Estoppel depends on the existence of some duty. For a plea of estoppels to succeed
it is imperative to prove that there existed neglect owing to some duty. Estoppel is a rule of civil
actions, only limited application can take place in criminal matters. Estoppel differs from
presumption, as estoppels is a personal disqualification laid upon a person peculiarly circumstanced
from proving peculiar facts, while presumption rule is that particular inference will be drawn from
particular facts. It also differs from res judicata as estoppel is based on principle of equity, while res
judicata is based on the principle that litigation must come to an end. Estoppel must be clear and
unambiguous. Estoppels cannot circumvent the law. The inaccurate representation made by a
person must have been meant to be relied upon. There should be a proximate cause between the
misrepresentation and conduct of the claimant. The person claiming benefits from estoppels must
be able to establish that he was unaware of the true state of the matter. The law of Estoppel is not
concerned with the motive or state of knowledge of the party upon whose representation actions
took place. If the document is void ab initio, estoppel cannot be imposed upon the same. Any future
promises will not create estoppels. Estoppel cannot be imposed if true facts are known to both the
parties.

Essential Elements:
From the above definition of estoppels, the following essential elements of it reflect-

1. A person is misrepresent by the person

2. The misrepresentation must be regarding the existence of fact
3. The person misrepresent the fact intentionally
4. The other person believe such fact to be true
5. The person done some act as believing such misrepresentation
6. Harm was caused to other person by such act
7. Such person is unaware of actual situation

Types of Estoppel:
1. Estoppel, by record- It is created by the decision of any competent court. When any court
decides finally over a subject then it becomes conclusive and the parties, their representative,
executor, administrator, etc. become bound to that decision. They can neither bring another
suit on the same subject nor can make the same subject disputed. They are stopped from doing
so. It is alike res judicata.
 2. Estoppel by deed- When any person becomes bound to another person on the basis of a record
regarding few facts, the neither that person nor any person claiming through him shall be
allowed to deny it.
3. Estoppel by conduct- It is such estoppel which arises due to act, conduct or misrepresentation
by any party. When any person causes another person to believe by his word or conductor
encourages them to believe and the other person acts upon that belief and causes a change in
their situation, then the first person is stopped from denying truthiness of his statements made
earlier. Actually, this is an estoppel of general nature.
4. Equitable Estoppel- Such estoppels which have not been provided by any statute is called
equitable estoppel. The best examples of equitable estoppels are there in Section 41 and 43 of
Transfer of Property Act, 1882.
5. Promissory Estoppel- It has originated as an exception to consideration in the field of contract
law. When ant person promises another to lend him certain relief or profit and the other
changes his position on the basis of such promise, then the person making promise shall be
stopped from stating that his promise was without any consideration.

Exceptions:

1. It does not apply to those matters where both parties have the knowledge of truthiness.
2. It does not apply against statutes. It cannot contradict the provision of statues. It cannot also
remove the condition of statues.
3. It does not apply to regulations.
4. It does not apply to ultra virus orders and decisions.
5. It does not apply to questions of law.
6. It does not apply to sovereign acts of the government.

Conclusion
Extensively talking, estoppels work to set up a state of facts that assume an integral part in modifying
what might be the legal rights of the parties, as the rights of the parties are judged by different set of
facts and laws. The relevant estoppel might be used to set up a cause of action, give a defence to a
cause of action or have some other unequivocal impact on evidence causing a claim to succeed or fail.

Q7 what do you understand by circumstantial evidence? Witness may lie but

circumstances do not. Explain the statement.

Answer: Evidence can be broadly divided into two sub- categories, direct and indirect
circumstantial evidence. Direct evidence is evidence which explicitly establishes a fact or proves
any assertions made by the party. Direct evidence does not require supplementation and does
not require interference to form a connection between various facts.

Illustration: A saw B shoot C in a park, subsequently C died. A is an eye witness of murder being
committed. A being an eye witness to a crime would amount to direct evidence

Circumstantial evidence is evidence which strongly suggests something, but does not exactly prove it.
Circumstantial evidence simply helps people draw inferences about a fact, or the events that took place.
This type of evidence is, on its own, considered to be weak or ineffective, so it is used in conjunction
with direct evidence in both criminal and civil cases. Whether or not the judge or jury makes the
intended inference has a major impact on the outcome of the case.

For example:

Mary testifies in court that she saw Robert standing over a man with a bloody knife in his hand. Mary did
not see Robert stab the victim, so she can only testify and describe what she saw. This circumstantial
evidence is likely not enough by itself to convict Robert, so the prosecution provides other evidence
which, when added to Mary’s testimony, leads the jury to the conclusion that Robert stabbed the victim.

Circumstantial Evidence:
Circumstantial Evidence is the evidence that does not point directly to the fact. A reasoning must be
made or an inference, that links circumstantial evidence to the desired fact the party is trying to prove.

For instance, in the example explained above, the second part of the said example notifies the
circumstantial evidence in its proper sense. In that nobody has seen who did the murder. Now the court
or the judge has to circumvent all the issues and frame and connect it to find the desired fact.
In this way, the jury or the judge uses reasoning and logic to grope to the conclusion, unlike in, direct
evidence where the judge or the jury relies on the words of the witness. In this type, any evidence has to
be evaluated by cross-checking, for the reliability of the source.

Peter Murphy defines it as “evidence from which the desired conclusion may be drawn but which
requires the tribunal of fact not only to accept the evidence presented but also draw an inference from
it.” Circumstantial Evidence is also known as indirect evidence. There’s always a myth lying behind
circumstantial evidence that it’s evident enough to prove someone guilty of his act as the evidence is
based upon the circumstances rather than direct evidence which has the upper hand in this. However,
when there is an absence of direct evidence the case solely depends on the circumstantial evidence.
Now, it’s the work of the jury to critically analyze the validity of circumstantial evidence as it’s a string
connecting the facts to recreate the crime scene in a court room. Circumstantial Evidence is used both in
civil and criminal matters but mostly in criminal matters.
For example, A, B and C are three friends living in the same apartment. One day, A hears some noise
coming from B’s room when he recognizes that B is not alone in the room C is also there, and some
argument is going on between them. After a few minutes, A hears the voice of B shouting for help, as
soon as he runs towards the door of B’s room, C comes out of the room with a knife in his hand covered
with blood and B lying dead on the floor.

Here A has not seen C killing B in front of his eyes but has found C holding the murder weapon and
coming out of the room. Therefore, the testimony of A becomes circumstantial evidence from which it
can be inferred that C murdered B. The panel of judges must determine whether A’s statement is
credible or not.

On the second aspect – If A has seen C killing B right in front of his eyes then his testimony would have
become direct evidence for the jury to penalize the criminal.

Another example would make it crystal clear. Example: B was murdered at 5-pm, in his own house. C
saw A coming from the house of B at 5-15pm, with blood shredded knife in his hand. D gave the
evidence that A and B seriously quarreled on the day before the occurrence of murder. E, a police officer
seized the blood shredded knife from the almirah in the house of A. F, an expert deposed that the blood
of the deceased and blood shredded knife of A was one same. These chain of evidence are
“circumstantial evidence”.

Nowadays, circumstantial evidence is more often given more importance than direct evidence, because
more often in criminal law, direct evidence is misused and justice gets impaired. For instance,
fingerprints are circumstantial evidence.

In India, the term circumstantial evidence was first used by Sir James Stephen, stating circumstantial
evidence to be facts that are relevant to the other fact, whose existence can prove by the existence of
other fact. The concept of circumstantial evidence has evolved through the interplay between statutes
and judicial interpretation. Circumstantial evidence, also known as indirect evidence, is an unrelated
chain of events which when put together formulates circumstances leading to the commission of the
crime and can be used to derive a conclusion. Information pertaining to the said chain of events in civil
or criminal cases establishes the existence of a fact or any assertion a party seeks to prove.
Circumstantial evidence is supported by a significant amount of corroboration. Convictions if based on
circumstantial evidence require an unbreakable link between the criminal and the crime.

An example of circumstantial evidence would be, if police retrieves stolen goods from the house of a
suspect, although it establishes that the suspect has stolen the good but does not necessarily establish
guilty or the fact that he must have stolen the goods. Recovery of goods in the house of a suspect is a
circumstantial evidence as the goods might be placed there by someone else, thus not establishing
complete guilt but forming a chain of events. This would shift the burden of proof on the suspect to
establish his innocence.

Circumstantial evidence in law, evidence not drawn from direct observation of a fact in issue. If a
witness testifies that he saw a defendant fire a bullet into the body of a person who then died, this is
direct testimony of material facts in murder, and the only question is whether the witness is telling the
truth. If, however, the witness is able to testify only that he heard the shot and that he arrived on the
scene seconds later to see the accused standing over the corpse with a smoking pistol in his hand, the
evidence is circumstantial; the accused may have been shooting at the escaping killer or merely have
been a bystander who picked up the weapon after the killer had dropped it.

The notion that one cannot be convicted on circumstantial evidence is, of course, false. Most
criminal convictions are based on circumstantial evidence, although it must be adequate to meet
established standards of proof.

Someone is convicted on just circumstantial evidence:

Circumstantial evidence can be sole basis for a conviction, if circumstances establish the chain of events
leading to the guilt of the accused and commission of the crime without other possibilities. The Court
should be satisfied that the said circumstances were clearly establishes and complete the chain of
events and prove the guilt of the accused beyond reasonable doubt. Moreover, all the
circumstances should indicate towards the guilt of the accused and should be inconsistent with his
innocence. The onus was on the prosecution to prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defense or plea. The chain of events or
circumstances should be complete without gaps to the extent no other conclusion or inference
apart from the guilt of the accused can be drawn.

However circumstances leading to “last seen together”, does not necessarily imply that it was the
accused who has committed the crime. If the circumstances are limited to just “last seen together”
without further corroboration, conviction cannot be based on the said assertion. The doctrine of “last
seen together” shifts the onus onto the accused to establish his innocence. Thus, last seen together is
not a conclusive proof establishing guilt, it is imperative to look at surrounding circumstances such as
victim relationship, history of hostility, weapon recovery, relationship between the victim and the
accused among others. The proximity between the time of death and last seen together is essential to
conclude that the accused and deceased were last seen together without the probability of other
persons coming in between exists.

Essentials of Circumstantial Evidence

Evidence plays a vital role in delivering justice to the innocent. However, one should take care of any
evidence which is going to be produced before the court. As it must fulfill the essential elements of
being admissible in court. A case can be solely adjudged by circumstantial evidence if the following
essentials are fulfilled –

The circumstance from which the guilt is established should be proven;

 That each one the facts should be according to the hypothesis of the guilt of the accused;
  That the circumstances should be conclusive in nature and tendency;
 That the circumstances ought to, to an ethical certainty, truly exclude each hypothesis except
the one projected to be evidenced.
 The evidence should prove the guilt of the culprit beyond a reasonable doubt.

Similarly in the case of Bodh Raj vs. State of Jammu and Kashmir[5] –

 The circumstances from where conclusion of guilt is to be drawn ought to be established. The
circumstances involved ‘must’ or ‘should’ and not ‘may be’ established.
 The facts, therefore, established ought to be as per the hypothesis of the guilt of the accused.
 Circumstances ought to be conclusive in nature and tendency.
 They ought to exclude each attainable hypothesis except the one to be tested.
 There should be a complete sequence of proof so as to not leave any affordable ground for the
conclusion in line with the innocence of the defendant and should show that the act must have
been done by the defendant.

Conclusion:
Circumstantial Evidence also understood as indirect evidence cannot be assumed to be inferior to direct
evidence. If the aforesaid conditions are fulfilled, conviction can be solely based on circumstantial
evidence without direct evidence. Circumstantial requires a certain level of corroboration which can be
established through the conduct of the accused and surrounding circumstance. The onus is upon the
judiciary to critically analyze the evidence. Circumstantial Evidence is applied both in civil and criminal
matters, however primarily in criminal matters.

Q8. What do you understand by burden of proof? When does it shift?

ANSWER:

Q9. What do you understand of by competent witness?

ANSWER:

Q10. EXPLAIN PRIMARY AND SECONDRY EVIDENCE? EXPLAIN WHEN SECONDRY

EVIDENCE BECOMES ADMISSIBLE?

ANSWER:

Q11.WHAT ARE VARIOUS MODES BY WHICH HANDWRITING OF A PERSON MAY

BE PROVED?

ANSWER:
Q12. WHAT ARE THOSE FACTS WHICH NEED NO TO BE PROVED?

ANSWER:

Q13.WHAT ARE THE GENERAL PRINCIPLES OF EXAMINATION OF WITNESSES?

ANSWER:

Q14. WHAT DO YOU MEAN BY PRESUMPTION AND TYPES OF PRESUMPTION?

ANSWER: