1) Features of Indian Evidence Act

Ans - (a) Preamble interpretation - Clause and presumptions - The first part consists of 1 chapter and after
giving the preamble etc , it contains the definations of the term used in the Act . This part is called Preliaminary

(b) Relevancy of fact - As per Sec.2 of Indian Evidence Act, One fact is said to be relevant to another when one
is connected with the other in any of the ways referred to in the provisions of I.E.Act relating to relevancy of facts

I.E.Act does not give any specific definition of ‘relevancy’ or ‘relevant fact’. It simply describes when one fact
becomes relevant to another fact.

Sec.5 to Sec.55 of Indian Evidence Act provides several ways in which one fact may be connected with the other
fact and therefrom the concept of relevant fact can be meted out. One fact is relevant to another fact if they are
connected with each other in any of the ways as described in Sec.5 to Sec.55. If a fact is not so connected, it is not
a relevant fact.

All facts are relevant which are capable of affording any reasonable presumption as to fact in issue or the principal
matter in dispute

Ø Sir Stephen opines that the ‘relevancy’ means connection of events as cause and effect.
Ø Generally the facts relevant to an issue are those facts which are necessary for proof or disproof of a fact in issue.
Such facts may be given in evidence directly or inferentially.
Ø What is really meant by ‘relevant fact’ is a fact that has a certain degree of probative force. They themselves are
not facts in issue but may affect the probability of fact in issue.
Ø Relevant facts are subsidiary or collateral in nature, but pertinent or probable in giving rise to an inference of right
or liability by a process of reasoning.

A fact may be relevant as it has connection with the fact in issue, but still it may not be admissible. For example,
communication made by spouses during marriage or professional communication, communication made in official
capacity relating to affairs of state etc. are not admissible though they may be relevant.

On the basis of logic and not of law it can be ascertained whether a particular fact is reasonably connected with the
main issue or not. So logical relevancy signifies reasonable connection between facts. But logical relevancy is not
the sole test of admitting such fact on the record of a court. Admissibility is founded on law not on logic. Many facts
which are relied as probable and relevant, are rejected by law as irrelevant on the ground of public policy,
precedent, remote relation or slight probative value. For examples,

a) Communication made between advocate and client under certain circumstances

b) Communication made by one spouse leally wedded to another
c) Confession made to a police officer
d) Insufficiently stamped document

The above facts are not legally relevant though they are reasonably connected with or logically relevant to the main
issue.

On the other hand, there are certain facts which are logically irrelevant, but are admissible in record by the court
under I.E.Act. For example,

a) The facts or questions permitted to be asked in cross examination to test the veracity or impeach the credit of a
witness,
b) The facts which corroborate the evidence of a witness.
The above facts may not be relevant but admissible.

(c) Proof of relevant facts - The second chapter of the first part having decided as to what factor event,  the
actors in the second part how relevant fact is to be proved

(d) Facts that need not be proved –

Facts judicially noticeable need not be proved - No fact of which the Court will take judicial notice need
beproved. This means that if the court is bound to take notice of a particular fact, the parties do not have the burden
of provingthat fact. It is part of the judicial function to know that fact. For example, the court is bound to know the
various laws andcustoms of the country. A party does not need to provide any proof when stating any law

Facts judicially noticeable need not be proved - No fact of which the Court will take judicial notice need
beproved. This means that if the court is bound to take notice of a particular fact, the parties do not have the burden
of provingthat fact. It is part of the judicial function to know that fact. For example, the court is bound to know the
various laws andcustoms of the country. A party does not need to provide any proof when stating any law

(e) Different types of evidences -

1. (e) Different types of evidences - Oral Evidence - Section 60 of the Indian Evidence Act, 1872 prescribed
the provision of recording oral evidence. All those statements which the court permits or expects the
witnesses to make in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is
that evidence which the witness has personally seen or heard. Oral evidence must always be direct or
positive. Evidence is direct when it goes straight to establish the main fact in issue.

2. Documentary Evidence - Section 3 of The Indian Evidence Act says that all those documents which are
presented in the court for inspection such documents are called documentary evidences.In a case like this it
is the documentary evidence that would show the actual attitude of the parties and their consciousness
regarding the custom is more important than any oral evidence.

3. Primary Evidence - Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of
evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and
establishes through documentary evidence on the production of an original document for inspection by the
court. It means the document itself produced for the inspection of the court. In Lucas v. Williams Privy
Council held “Primary Evidence is evidence which the law requires to be given first and secondary evidence
is the evidence which may be given in the absence of that better evidence when a proper explanation of its
absence has been given.”

4. Secondary Evidence - Section 63 says Secondary Evidence is the inferior evidence. It is evidence that
occupies a secondary position. It is such evidence that on the presentation of which it is felt that superior
evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary
evidence therefore it is known as secondary evidence. If in place of primary evidence secondary evidence is
admitted without any objection at the proper time then the parties are precluded from raising the question
that the document has not been proved by primary evidence but by secondary evidence. But where there is
no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be
said to have been proved either by primary evidence or by secondary evidence."

5. Real Evidence - Real Evidence means real or material evidence. Real evidence of a fact is brought to the
knowledge of the court by inspection of a physical object and not by information derived from a witness or a
document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by
voluntary sign. For example, Contempt Of Court, Conduct of the witness, behavior of the parties, the local
inspection by the court. It can also be called as the most satisfactory witness.
 6. Hearsay Evidence - Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness
which he has not seen either heard. Sometime it implies the saying of something which a person has heard
others say. In Lim Yam Yong v. Lam Choon & Co. The Hon’ble Bombay High Court adjudged “Hearsay
Evidence which ought to have been rejected as irrelevant does not become admissible as against a party
merely because his council fails to take objection when the evidence is tendered.” So finally we can assert
that Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he
perceived through his senses and has come to know about it through some third person. There is no bar to
receive hearsay evidence provided it has reasonable nexus and credibility.When a piece of evidence is such
that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay
evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use
comes in for question is governed by the Evidence Act.

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

8. Non-Judicial Evidence - Any confession made by the accused outside the court in the presence of any
person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of
Judicial Evidence.

9. Direct Evidence - Evidence is either direct or indirect. Direct Evidence is that evidence which is very
important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and
witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of
person who had actually seen the crime being committed and has described the offence. We need hardly
point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as
opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial
evidence of, complicity and not direct evidence in the strict sense.

10. Circumstantial Evidence or Indirect Evidence - There is no difference between circumstantial evidence and
indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and
affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue
but by experience have been found so associated with the fact in issue in relation of cause and effect that it
leads to a satisfactory conclusion

(f) Manner of proof -  Burden of proof - Presumption without calling for proof -  The question of the proof
of fact has been dealt with under part II. In part III, The act passes to the question of the manner in which the
proof is to be produced.  This path contains of five chapters, chapter VII to XI. In chapter VII, sections 101 to
114-A deal with the question of burden of proof. They lay down that in particular circumstances burden of
providing fact lies on some special person . Section 112 and 113 deal with cases of conclusive proof.  Section
141 Lays down that the court may presume without calling for proof the existence of certain fact which ought
to happen in the common course of the natural events, human conduct and public and private business.
  Section 111-A profiles for  presumption of certain offences.  Section 113-A make the provision for
presumption as to abatement of suicide if a a married woman  commit suicide within 7 years of her marriage
and that she had been subjected to cruelty by her husband for his relatives.  Section 113-B makes provisions
for presumption as to dowry death. section 114-A make the provisions for presumption as to to absence of
consent in in certain prosecution of rape

(g) Estoppel - Under chapter VIII,  section 115 to 117 deal with the question of  estoppel, another rule of
leading evidence. under these section,  certain persons are estopped from leading evidence contrary to what
they have said and represented previously
(h) Competency,  compellability, examination  and cross examination and impeachment  of credit of
witness etc - Chapter XI deal with competency,  compellability, examination and cross examination of
witness,  impeachment of the credit of testimony of the witness, and the use of previous writing of witness for
refreshing their memory also using their previous statement  or for corroboration of their II statement in the
court

       A witness is said to be competant when there is nothing in law to prevent him from appearing in court and
in giving evidence.  whether a witness is completed, depends upon his capacity to understand the questions
put to him and capacity to give rational answers thereto

       Section 118, 119,  120 and we deal with the competency of persons who can appear as witness.  a
witness may be competent and yet not compellable, i.e., To say that the court cannot compel him to attend the
court. foreign ambassadors and sovereigns cannot be compelled by a court  to appear before it to give
evidence. in general, witness who is competent may also be compellable. a witness maybe competent and
may also be compellable yet the law may not force him to answer certain questions. this is called restricted
compellability or privilege .  section 112 to 132 to deal with this privilege. section 134 deals with the quantum
of evidence. section 135 to 139 deal with the examination in chief, cross examination, re examination in chief
of witness. sections 140 to 153 deal with the questions which may and the questions which may not be put to
witness during cross examination. section 153 excludes evidence to  contradict a witness on his answer given
in the cross examination .section 154 makes provisions for a party to put his is on witness that question which
can be asked in cross examination. section 155 deals with impeaching the credit it off a witness. section 156
deals with the leading of evidence to impeach the evidence led under Section 32 and 33 of the act. section
159 to  161 makes provisions for a witness to refresh his memory looking into record previously prepared.
section 162 163 and 164 mmakes provisions for production of a document and the proof of contents thereof.
section 165 and 166 give the extent to the powers of the judge and jury to put questions to witness

(i) Admissibility of evidence – Chapter XI which contains only one section .i.e., Section 167 makes provisions for
no new trial in the cases where evidence has been illegally admitted or disallowed

2) Nature and purpose of Law of Evidence in Civil and Criminal cases

Ans - In both criminal and civil proceedings, the law of evidence has a number of
purposes. However, due to the different nature of civil and criminal cases, the
rules applicable on them may be different. The civil case is one instituted by
individual for the purpose of securing redress for a wrong, which has been
committed against him, and if he is successful he will be awarded money or other
personal relief. While, a penal prosecution is instituted by the government for the
purpose of securing obedience to its laws by the punishment or correction of the
lawbreaker. Therefore, since the relief sought as well as the purpose of
instituting civil and criminal cases is different, the existence of difference
regarding the strict nesses of the evidentiary rules applicable on those two cases
seems proper.
Generally, the purpose of evidentiary rules is to assist the court in establishing
the truth between the party's conflicting versions of the fact in the case.
However, in criminal cases the law of evidence has further important purpose,
that is, the protection given to the accused in respect to his right to a fair trial.
The protection of the accused against the case being proven against him by
evidence which is prejudicial to his right to afar trade is one of the main reasons
why the law of criminal evidence contains so many rules which excludes
potentially relevant evidences from being produced before the court
including, for example, the general rule that evidence of the defendant's bad
character or his previous convictions will not be admitted at trial, (see art 138 of
cr.p.c) different privileges given to witnesses.. etc . The court may also exercise
its discretionary power to support the defendant's right to a fair trial by excluding
potentially relevant evidences.
While in civil proceedings, evidence that is relevant and probative of a fact, which
needs to be proved to the court, will generally be admissible. There are no
mandatory rules requiring the exclusion of evidence in civil cases. This state of 
affairs reflects the key difference between civil and criminal proceeding.
Therefore, we can say that the fair trial provision is not as important in civil case
as there is a greater equality in resources between the parties in contrast with
criminal proceedings in which the power full government in one side and the
weaker accused on the other side are there. Also, whilst losing civil case may
result in the claimant or the defendant suffering serious damage to his financial
resources or property, he will not loss his liberty life or suffer the same social
stigma as a person who has been convicted of criminal offence. This is reasons
why, there is huge difference regarding the standard of persuasion required in
civil and criminal cases.
The main difference regarding evidentiary rules in civil and criminal cases lies on
the required standard of proof. The rules relating to the standard of proof
determines how much proof is required for a party to persuade the court. The
appropriate standard of proof that will have to be satisfied in a criminal case is
heavier than in a civil case. In criminal proceeding, the public processor in order
to win the case, he is required to proof, beyond reasonable doubt. While in civil
case the standard is preponderance of evidence or probabilities.
The “beyond reasonable doubt” standard is constitutionally mandated in criminal
cases. However, “beyond reasonable doubt” means that you must be virtually
certain. The law does not demand that, for you to find the defendant guilt, you be
absolutely certain of his guilt, because there are few, if any, things in life we can
be absolutely certain about. Here, one may raise question that applying such
strong standard in criminal   cases may prevent the truth from being discovered
in the wide public interest. However, we all know that guilty people may escape
criminal punishment. A criminal might not be apprehended, if apprehended, he
might not be tried, if tried, he might be acquitted. We are not happy about this
situation, but it is an every day matter that we tolerate. But consider how
troubling- and how noteworthy- we find it on those rare occasions where we
punish somebody for a crime that it turns out later, he did not commit.
The standard of persuasion in civil case may be highly variable, depending on the
nature of precise issue at stake. For instance, among 4 witnesses, if 3 of them
testify in favor of the party on a given issue, we can say that the standard
required in civil case has fulfilled. Because the testimony of those 3 witnesses
over weighted the testimony of one witness who testified against the party.  
 Who has a burden of proof in criminal and civil proceedings?
The general rule in criminal cases is that the prosecution bears the burden of
proving the defendant's guilt and the substantive law defines what the
prosecution must prove in order to convict the defendant. This will usually
comprise elements of the mens rea and actus reas, for example, when pursuing
conviction for theft, the prosecution must prove all the elements of the offense as
laid down by the Criminal code (namely a dishonest appropriation of property
belonging to another with the intention to permanently deprive).
The allocation of the legal burden of proof on the prosecution is regarded as fundamental expression of the
presumption of innocence. Because every one charged with criminal offence shall be presumed innocent
until proved guilty according to law. It also reflects an aspect of procedural fairness in that the prosecution
has considerably more resources at its disposal than the defendants and therefore it should bear the burden
of proving the accused guilt. A Practical consequence of the prosecution bearing the legal burden of proof is
that the prosecutor always opens the case at trial and presents its evidence first. In discharging its burden
the prosecution must disprove any defense or explanation raised by the accused.(see Art 136 of cr.p.c)

Whilst the rules of civil evidence do not incorporate the same enshrined
principles as in criminal case (i.e. the accused in a criminal trial is presumes
innocent until proved guilt by the prosecution), the well established general rule
about the incidence of the legal burden of proof in civil proceedings is that ''he
who asserts must prove”. To put simply, the legal burden of proving a fact in
issue in a civil trial is on the party that asserts that fact. Therefore, in civil cases,
the burden of proof first lies in the plaintiff. However, this burden of proof will
shift to the defendant if the defendant admits the allegations and come up with
positive deface like “counterclaim”. In such case, the burden of proof lies on the
defendant (see Art 258 of civ.P.C ).
We have discussed the main differences existed between civil and criminal
proceeding regarding evidence i.e. on burden and degree of proof. However, there
are also another differences. Now we will discus such other differences in line
with our evidence rules shortly.
1. Less importance is attached to the principle of orality in civil proceedings,
resulting in far greater reliance up on the admission of evidence in documentary
form. Because in civil cases, most of the claims are raised from contractual,
monetary or proprietary relation ships which could mostly proved by adducing
documentary evidences. While due to the very nature of ways of committing a
crime, the public prosecutor mostly proves his allegation by providing an expert
and lay witnesses. And the crime, which could be proved by documentary
evidences, is less in numbers since they are being committed in a more
sophisticated way.
2. There is also a difference between civil and criminal proceedings regarding
proof by admissions. Firstly, in civil cases, the defend ant shall deny each and
every fact alleged by the statement of claim specifically. [see Art 83 of civ.p.c].
And every allegations of fact in the statement of claim, if not denied specifically
or by necessary implication, or stated to be not admitted in the statement of
defense, shall be presumed admitted and the court shall give judgment on such
admitted facts. (see Art 242 of civic).While in criminal cases, where the accused
says nothing in answer to the charge, a plea of not guilty shall be entered. This
means the silence of the accused of the accused does not amounts to admission.
(see Art 27, and 134(1) of civ.p.c]. Moreover, failure to cross-examine on a
particular point does not constitute an admission of the truth of the point by the
opposite party. [See Art 140 of cr.p.c]  
Secondly, in civil proceedings, where a party formally admits the truth of a fact in
issue in the case, the fact ceases to be in dispute between the particles, and as
such any evidence to prove the fact will be ruled as inadmissible on the ground
that it is irrelevant. To put in another way, judicial admissions are conclusive in
civil cases. And the courts are under obligation to give judgments based on such
admission without requiring the production of additional evidences. (see Art 242
of civ.p.c).While in criminal cases judicial admissions are not conclusive. Of
course, when the accused admits without reservations every ingredient in the
offence charged, the court shall enter a plea of guilty and may forthwith convict
the accused. However, the court may require the prosecution to call such
evidence for the prosecution, as it considers necessary and may permit the
accused to call evidence. (see art 134 of cr.p.c). There fore, unlike civil cases, in
criminal cases the task of determining the conclusive nesses of judicial
admission is left to the discretion of the court.

3) Facts , distinction between Relevant facts and facts in issue

No.            Fact in Issue                Relevant Fact 

1) “Facts in issue”.—The expression “facts in   Relevant”.—One fact is said to be relevant

issue” means and includes— to another when the one is connected with
any fact from which, either by itself or in the other in any of the ways referred to in the
connection with other facts, the existence, provisions of this Act relating to the relevancy
non-existence, nature, or extent of any right, of facts.
liability, or disability, asserted or denied in
any suit or proceeding, necessarily follows.
Explanation.—Whenever, under the
provisions of the law for the time being in
force relating to Civil Procedure,any Court
records an issue of fact, the fact to be
asserted or denied in the answer to such
issue, is a fact in issue.

2) It is a necessary ingredient of a right or It is not a necessary ingredient of a right or

liability. liability.
 3) It is called principal fact pr ‘factum It is called evidentiary fact or factum probandi
probandium.’

4) Fact in issue are affirmed by one party and Relevant facts are the foundation of
denied by other party. inference.

4) Presumption of Fact and Presumption of Law

Ans -Presumptions of fact are those inferences which are naturally and logically derived on the basis
of experience and observations in the course of nature or the constitution of the human mind or
springs out of human actions. These are also called as material or natural presumptions. These
presumptions are in general rebuttable presumptions. [4] 

Presumptions of law are those inferences which are said to be established by law. It can be subdivided
into rebuttable presumptions of law and irrebuttable presumptions of law. Rebuttable Presumptions
of law are those presumptions of law which hold good until they are disproved by evidence to the
contrary. Irrebuttable Presumptions of Law are those presumptions of law which are held to be
conclusive in nature. They cannot be overturned by any sort of contrary evidence however strong it is.

UNIT - II

5) Doctrine of Res Gestie

Ans - Res Gestae is a Latin word which means "things done." This is the rule of law of
evidence and is an exception to hearsay rule of evidence that hearsay evidence is not
admissible. It is a spontaneous declaration made by a person immediately after an event
and before the mind has an opportunity to conjure a false story. It represents an
exception to the hearsay rule. Res gestae is a concept which as a matter of principle is
employed in the English system of administration of criminal justice under the name of
"res gestae". In our system of administration of justice, Article 19 of Qanun-e-
Shahadat,1984 corresponding to section 6 of the Evidence Act of 1872, is an enacted
provision of law under which statement made immediately after the occurrence under
the influence of occurrence in order to characterize it and connecting therewith would be
admissible under this article as "res gestae" evidence.

In Babulalvs W.I.T Ltd. it was observed that the statement of law in section 6 of the
Evidence Act is usually known as Res Gestae. The literal meaning of the word "res" is
"everything that may form an object of rights and includes an object, subject matter or
status." In America an attempted definition of res gestae is that it consists of the
'circumstances, facts and declarations' which grow out of the main fact, are
contemporaneous with it, and serve to illustrate its character.
6) Relevancy and Admissibility of fact

The concept of relevance is one criterion that governs the admission and use of evidence in a judicial
proceeding. If the evidence does not relate directly or indirectly to the issue at hand, it should not be admitted
as proof for either the prosecution or the defense.  The term relevance in this context simply means that the
evidence in question is closely connected or logically related to the matter at hand. Relevant evidence is the
evidence that is logically connected to the fact that it intends to establish.

The term relevance refers to the degree of connection between a fact that is given in evidence and the issue to
be proved. A fact is relevant when it is so related to the fact in issue.

The term admissibility refers to the process whereby the court determines whether the law of evidence permits
that relevant evidence, to be received by the court or not. An irrelevant fact is normally not admissible in the
court. However, in certain cases, evidence, which is not relevant, may still be admissible. Basically, the rules of
evidence draw a distinct line between relevant & irrelevant facts, and admissible & inadmissible facts.

In a case, all the facts which provide some sort of evidence to the circumstance (occasion), cause and effect of
the fact in issue can be taken as relevant. Circumstantial evidence is the kind evidence which tends to prove a
fact by proving other events or circumstances from which the fact basically evolved.

If in any fact relating to a fact in issue, a motive or preparation is present, that fact can be taken as relevant.
The fact which is necessary to explain any fact in issue is also relevant in a proceeding. Similarly, anything
said or done as part of a conspiracy in reference to a common design is also a relevant fact.

If any fact that remains inconsistent with a fact in issue is considered to be a relevant fact even if it remains
irrelevant otherwise. An irrelevant fact will become a relevant one if it makes the existence or nonexistence of
any fact in issue a reality. In deciding a compensatory claim for damages, any fact including the irrelevant one
which is helpful in arriving at the damage, is relevant. When a right or custom is being contested in a case, the
related things that created such a right or custom become relevant.

The facts relating to the state of bodily feeling - such as a state of mind - are relevant ones.  Similarly, so as to
know whether something done is quite accidental or intentional, or done with a particular intention or
knowledge, it must be examined whether it forms part of a natural series of closely connected or related
events. If any act forms part of a natural transaction of events, one cannot attribute a particular intention in its
occurrence. Likewise, the course of a business, such as an instance of sale or an act of mortgage, is relevant if
a fact in issue forms part of such a course in a business.

Admission and confession

INTRODUCTION

Admission, as defined under section 17 of The Indian Evidence Act, 1872:

“An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as
to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances
hereinafter mentioned.”

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. This was held by the Supreme Court in Chikham Koteswara
Rao v C Subbarao . They are only prima facie proof and not conclusive proof.

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.

A person’s conduct may also be taken as an admission. In an Australian case, Mayo

v Mayo  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.

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 the Supreme Court upheld the decision of the
Privy council in Pakala Narayan Swami v Emperor 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  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 . 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.
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.
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.

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.

Judicial confession and Extra- Judicial confession

Judicial confession- Are those which are made before a magistrate or in court in the due course of legal
proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if
made freely by a person in a fit state of mind

Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in
court. It is not necessary that the statements should have been addressed to any definite individual. It may have
taken place in the form of a prayer. It may be a confession to a private person. An extra-judicial confession has been
defined to mean “ a free and voluntary confession of guilt by a person accused of a crime in the course of
conversation with persons other than judge or magistrate seized of the charge against himself. A man after the
commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may
amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the
test of credibility. Extra-judicial confession is generally made before private person which includes even judicial
officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164
of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not
apply

Reacted confession (section 27) - Section 27 lays down that during the period of investigation or during
police custody any information is given by the accused of an offence to the police officer that leads to
discover any fact, may be proved whether such information amounts to confession or not, and
obtained under inducement, threat or promise. Section 27 is by way of a proviso to Sections 25 and
26 and a statement even by way of confession made in police custody which distinctly relates to the
fact discovered is admissible in evidence against the accused.

Under sections 24, 25 and 26 a confession which is inadmissible would be admissible under section
27 subject to discoveries of facts on the basis of information given by the accused. Section 27 is by
way of proviso to Sections 25 to 26 and a statement even by way of confession made in police
custody which is distinctly relates to the facto discovered in admissible in evidence agreement the
accused

UNIT – III

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death:

When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of death, and whatever
may be the nature of the proceeding in which the cause of his death comes into question

(1) When it relates to cause of death:

When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of death, and whatever
may be the nature of the proceeding in which the cause of his death comes into question
(2) Or is made in course of business:
When the statement was made by such person in the ordinary course of business, and in particular
when it consists of any entry or memorandum made by him in books kept in the ordinary course of
business, or in the discharge of professional duty; or of an acknowledgment written or signed by him
of the receipt of money, goods, securities or property of any kind; or of a document used in commerce
written or signed by him; or of the date of a letter or other document usually dated, written or signed
by him.

(3) Or against interest of maker:

When the statement is against the pecuniary or proprietary interest of the person making it, or when,
if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for
damages

(4) Or gives opinion as to public right or custom, or matters of general interest:

When the statement gives the opinion of any such person, as to the existence of any public right or
custom or matter of public or general interest, of the existence of which, if it existed he would have
been likely to be aware, and when such statement was made before any controversy as to such right,
custom or matter had arisen.

(5) Or relates to existence of relationship:

When the statement relates to the existence of any relationship [by blood, marriage or adoption]
between persons as to whose relationship [by blood, marriage or adoption] the person making the
statement had special means of knowledge, and when the statement was made before the question
in dispute was raised

(6) Or is made in will or deed relating to family affairs:

When the statement relates to the existence of any relationship [by blood, marriage or adoption]
between persons deceased, and is made in any will or deed relating to the affairs of the family to
which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family
portrait, or other thing on which such statements are usually made, and when such statement was
made before the question in dispute was raised

(7) Or in document relating to transaction mentioned in section 13, clause (a):

When the statement is contained in any deed, will or other document which relates to any such
transaction as is mentioned in section 13, clause (a)

(8) Or is made by several persons, and expresses feelings relevant to matter in question:
When the statement was made by a number of persons, and expressed feelings or impressions on
their part relevant to the matter in question.

Illustrations:
(a) The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is,
whether she was ravished by В; or

The question is, whether A was killed by В under such circumstances that a suit would lie against В
by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the
rape, and the actionable wrong under consideration, are relevant facts.

(6) The question is as to the date of A’s birth,

An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on
a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a
given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring
with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a
deceased member of a merchant’s firm, by which she was chartered, to their correspondents in
London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay
harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it
at A’s orders, is a relevant fact.

(f) The question is, whether A and В were legally married.

The statement of a deceased clergyman that he married them under such circumstances that the
celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The
fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of
the price, made by a deceased banуа in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was his son,
is a relevant fact.

(I) The question is, what was the date of the birth of A.

A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant
fact.

(m) The question is, whether, and when, A and В were married.

An entry in a memorandum-book by C, the deceased father of. B, of his daughter’s marriage with A
on a given date, is a relevant fact.

(n) A sues В for a libel expressed in a painted caricature exposed in a shop window. The question is
as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators
on these points may be proved

Section 33

Section 33 deals with ‘Relevancy of certain evidence for proving, in subsequent proceeding, the truth
of facts therein stated

It reads as follows:

“Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the
truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any
person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states,
when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the
way by the adverse party, or if his presence cannot be obtained without an amount of delay or
expense which, under the circumstances of the case, the Court considers unreasonable

Provided- that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine.

that the questions in issue were substantially the same in the first as in the second proceeding.

UNIT – IV

Exclusion of oral evidence by documentary evidence

EVIDENCE OF TERMS OF CONTRACTS, GRANTS AND OTHER DISPOSITION OF PROPERTY
REDUCED TO FORM OF DOCUMENTS (SECTION-91):

Where the fact to be proved is embodied in a document, the document is the best
evidence of the fact. Such fact should, therefore, be proved by the document itself, that
is, by the primary or secondary evidence of the document. The maxim of law is that
whatever is in writing must be proved by the writing. Section 91 of the Evidence Act
incorporate this principle.

The section emphasizes that when a contract, grant or some other disposition of
property is reduced to the form of a document or is required by law to be reduced to a
document, no evidence shall be given for the proof of it except the primary or secondary
evidence of the writing itself. The section extends to both types of transactions, namely,
which have voluntarily been made by writing and for which writing is compulsory, for
example, transfers of immovable property of the value of Rs. 100 or upwards is required
by law to be in writing. Thus writing becomes its own evidence and excludes all other
kinds of evidence. The writing excludes oral evidence altogether.

This principle of exclusion applies only to a contract, grant or other disposition of

property. A document or deed which cannot be described as a contract, grant or
disposition of property shall not be affected by this rule

EXCEPTIONS:  

1. Appointment of a public officer: Where the appointment of a public officer is required by

law to be made by writing and the question is whether an appointment was made if it is
shown that a particular person has acted as such officer, that will be sufficient proof of the
fact of appointment and the writing by which he was appointed need not be proved.
2. Wills: Wills admitted to probate in India may be proved by the probate. The document
containing the will need not be produced. “Probate” is a copy of the will certified under the
seal of the court and, therefore, is a sufficient proof of the contents of the will.

EXCLUSION OF EVIDENCE OF ORAL AGREEMENT (SECTION-92):

The principle of the section applies only to such contracts, etc., as are required by law to
be reduced to the form of a document. The principle laid down is that when the terms of
any such document have been proved by the primary or secondary evidence of the
document, no evidence of any oral agreement or statement shall be admitted, as
between the parties to the document or their representatives, for the purpose of
contradicting, varying, adding to, or subtracting from the terms of the document. In
other words, no oral evidence can be given to qualify the terms of the document.
EXCEPTIONS:

1. Validity of document: The first proviso to section 92 says that evidence can be given of
any fact which would invalidate the document in question or which would entitle a party to
any decree or order relating to the document.
2. Matters on which document is silent: Evidence can be given of an oral agreement on
a matter on which the document is silent. Such evidence is allowed subject to two
conditions; Firstly, the oral agreement should not be inconsistent with the terms stated in
the document. The terms which are expressly stated in the document cannot be allowed
to be contradicted by any oral agreement. Such evidence is allowed to be proved only on
matters on which document is silent. Secondly, in permitting the evidence of oral
agreement the court is to have regard of the degree of formality of the document. If the
document is extremely formal, evidence of an oral agreement shall not be allowed even
on matters on which the document is silent.
3. Condition precedent: The third proviso provides that the existence of any separate oral
agreement constituting a condition precedent to the attaching of any obligation under the
document may be proved. If the document was signed and issued subject to a condition,
which though not mentioned in the document, it was agreed between the parties that the
liability under the document would not arise until the condition was fulfilled, such an oral
agreement is allowed to be proved.
4. Rescission or modification: This proviso permits proof of an oral agreement by which
the document in question was either rescinded or modified. To rescind a document means
to set aside and to modify means to drop some of its terms. Where after executing a
document the parties orally agree to treat it as cancelled or to modify some of its terms,
such oral agreement may be proved.
5. Usages or customs: The proviso provides that the existence of any usage or custom by
which incidents are attached to a particular type of contract can be proved. But this is
subject to the condition that the usage or custom of which proof is offered should not be
against the express terms of the document. The usage should not be repugnant to or
inconsistent with the document, for otherwise, it should nullify the document.
6. Relation of language to facts: According to the last proviso any fact may be proved
which shows in what manner the language of a document is related to existing facts.
Every contract is intended to apply certain facts. The facts upon which the document is to
operate are sometimes set out in the contract itself and sometimes not.

PATENT AMBIGUITY (SECTION- 93 & 94):

A patent ambiguity means a defect which is apparent on the face of the document. The
document is apparently defective. Any person reading the document with ordinarily intelligence
would at once observe the defect. In such cases, the principle is that oral evidence is not allowed
to remove the defect. The reason for the rule is that the document being clearly or apparently
defective, this fact must be or could have been known to the parties and if they did not care to
remove it then it is too late to remove it when a dispute has arisen.

LATENT DEFECTS (SECTION- 95 TO 97):

A latent defect means a defect which is not apparent on the face of the record. The
document makes a plain reading. There is nothing apparently wrong with its language.
But when an attempt is made to apply it to the facts stated in it, it comes out that it does
not accurately apply to those facts. Thus the defect is not in the language used in the
document, but in the application of the language to the facts stated in it such a hidden
defect is known as a latent defect.

EVIDENCE AS TO MEANING OF ILLEGIBLE CHARACTERS, etc. (SECTION- 98):

The section permits evidence to be given of the meaning of words or marks of illegible
character or words which are not commonly of intelligible character, foreign words,
obsolete words, technical, local and provincial expressions, abbreviations words used in
a peculiar sense.

WHO MAY GIVE EVIDENCE OF AGREEMENT VARYING TERMS OF DOCUMENT (SECTION- 99):

The parties to a document or their representative-in-interest cannot give evidence of a

contemporary agreement varying the terms of the document. This disability is quite
clearly contained in Section 92. But the provision is modified by section 99 to this extent
that evidence of such an oral agreement can be given by a third party if he is affected by
it.

Burden of proof – In civil and the criminal cases

Section 101

From the point of view of the burden of proof, facts can be placed in two categories:
those which affirm a fact and those which deny it. According to section 101 of the Indian
Evidence Act 1872, the party who asserts the affirmative of an issue, to make the court
give a judgment on the basis of those facts, carries the burden of proof to prove them; it
is easier to prove the affirmative than the negative. The affirmative in issue should not
be in form or grammar but in substance.

Section 102

This section tries to locate the party on which the burden of proof lies. It says that the
burden shall lie on the party which shall fail if no evidence were given from either side.
Hence, this section focuses on the evidential burden or the ‘onus of proof,’ while section
101 deals with the legal burden or the burden of proof relating to law or procedure.
Section 103

This section states that the burden of proof, regarding any particular fact, shall lie on
that person who wants the court to believe in its existence, unless, the law requires
some particular person to prove that fact. This section broadly lays down that whoever
asserts something in a court, has to prove it.

Section 104

This section states that when the admissibility of one fact depends on another fact, the
party who wants to admit such fact must prove the other fact on which admissibility
depends

Section 105

This section only applies to criminal cases. The preceding sections applied to civil, as
well as criminal cases. If an accused has been established to be guilty of an offence and
he takes the defence of any of the general exceptions mentioned in the Indian Penal
Code, 1860 or any other defence provided in any act within which the offence committed
comes under, he has to prove it.

Section 106

It states if any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. For example, when a person is charged with travelling
without a ticket, the burden lies on him to prove it as the fact that he bought a ticket is
only known to him. The principle behind this section is an application of the maxim, res
ipsa loquitur.     

SURVIVORSHIP & DEATH

Section 107

This section lays down a presumption that a man would be considered alive, up to 30
years, after he was last seen or heard of. This shall be presumed if the question in issue
is whether a man is alive or dead and the burden of proving that the man is dead is on
the person affirming it.

Section 108

This section states that if a person who has disappeared and has been unheard of for
seven years by those who would naturally have heard of him, if he were alive, that
person would be presumed to be dead. This presumption arises when a question of him
being alive or dead arises in the court. Hence, if the court adopts the presumption, the
party who claims that the person is alive has to prove it. It is a simple presumption of
death and not the time of death.

Section 109

When a question arises as to whether certain persons are partners, landlord and tenant
or principal and agent and it has been shown that they have been acting as such; the
court presumes them to be so related. If a person denies the relationship or affirms that
the same has been ceased, the burden of proof to prove that they were never related or
have ceased to relate lies on him. Hence, the court presumes the existing status quo or
in the continuity of things.

Section 110

This section simply states that if the question is whether a person is the owner of
anything of which he is shown to be in possession, the burden of proving that he is not
the owner is on the person affirming that he is not the owner.

Section 111

This section states that if a person enjoys the active confidence of the other, he must act
in good faith to the other and the burden lies upon him to prove that he did act in good
faith

Section 111 A

This section makes the court presume that a person is liable for disturbing public order
and peace of an area declared to be a disturbed area if he has been guilty of certain
offences in the past. These offences include the offences themselves or criminal
conspiracy or attempt to commit or their abatement. They include sections 121, 121A,
122 and 123 of the Indian penal code.

 Section 112

This section deals with the legitimacy of a child. The essentials of this section:

 The child should have been born during the continuance of a valid marriage or within 280
days of a dissolved valid marriage, the mother remaining unmarried.
 The parties to the marriage should have had access to each other.
Section 113

It says that a government notification as to cession of territory to any other state is a

conclusive proof of that act. The said cession should have taken place before the
commencement of Government of India Act, 1935.

PRESUMPTION

Presumptions are of compulsory nature as they are of reasonable nature and help in
giving direction to the case and avoiding unnecessary matters. They are of two types, as
per section 4: rebuttable and irrebuttable. Rebuttable presumptions can be overthrown
by evidence while irrebuttable ones are conclusive.

Section 113 A

This section is a presumption as to abetment of suicide by a married woman. To attract

the presumption, the following conditions have to be met:

 The question before the court should be whether the commission of suicide by a married
woman was the result of abetment by her husband or relatives.
 The suicide must have been committed within 7 years from the date of marriage.
 Evidence as to show that her husband or his relatives subjected her to cruelty. Cruelty
shall have the same meaning as under section 498A of the IPC.

If the three conditions are met, the court presumes that the husband or his relatives
abetted her suicide and then the burden to prove that suicide was her own personal
choice lies on the husband or his relatives.

Section 113 B

Section 304B of the IPC defines dowry death and this section deals with the presumption
as to dowry death. If the ingredients of section 304B of the IPC are met, the onus gets
transferred to the accused to rebut the presumption. The term ‘soon before’ used in
section 113B of the evidence law means that there should be a proximate link between
acts of cruelty or harassment and death.

Section 114
This section states that the court may presume the existence of certain facts, regard to
the common course of natural events, human conduct, public and private business as
they stand related to those facts of the case. As inferred from the illustrations, these
may include:

 Unexplained possession of the recently stolen property has been held to create a
presumption of guilt.
 An accomplice is deemed to be unworthy of credit unless he is corroborated in material
particulars. This presumption is not mandatory and it rests on the discretion of the court.
 Every negotiable instrument is presumed to be made or drawn for consideration purposes.
 It shall assume continuity of things unless the contrary is provided Judicial decisions and
official acts (executive and legislature) shall be presumed to be valid and correct until the
contrary is shown. If there are factual errors in a statement as under a judgment, the
same can be rectified by an application. If a person alleges any defects to rebut a
presumption of correctness of an official work, the burden would be on him to prove such
defects.
 A presumption that common course of business has been followed in particular casesWhen
evidence is withheld by a party, it is presumed to be against him.
 If a man refuses to answer a question, which he cannot be compelled to give, the court
presumes that the answer, if given, would be unfavourable to him.
 If the documents creating an obligation are with the obliger, the court may presume that
the obligation has been discharged. For example, if a promissory note is in the hands of
the person who made it, the presumption is that it must have been paid off.

 Section 114 A

This section relates to the consent of the woman (victim) in a prosecution for rape under
section 376 of the IPC. If the sexual intercourse is proved and the woman states in her
evidence, before the court and during questioning that it was done without her consent,
the same shall be presumed by the court.

CONCLUSION

The addition of section 114 A was a necessity, especially after the Mathura rape
case (Tukaram v State of Maharashtra, 1979 2 SCC 143). Presumptions help in
giving direction to the case and also ensure quick justice, while the burden and onus of
proof help in avoiding fake allegations.

Estoppel
Estoppel literally means- ‘to stop’. According to it, when any person says one thing at
one time and another thing at another time, then he is prevented from doing so. This is
an estoppel.

Section 115 of Indian Evidence Act, 1872 defines estoppel. According to it-

“When one person has, 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,
neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing.”

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 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..

Essential Elements:

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

1. A person misrepresents by his act, omission or declaration,

2. Such misrepresentation is regarding the existence of any fact;
3. Such misrepresentation is intentionally caused to make a person believe a thing;
4. The other person believes such misrepresentation to be true;
5. The other person does some act believing such misrepresentation;
6. Such act causes injury to the other person; and
7. Such a person is unaware of the 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.

UNIT – V

Who may tesify

All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease, whether of body or mind, or any other cause of the same
kind.

Dumb witness

According to Section 119 "A witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs; but such writing must be written
and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

           Provided that if the witness is unable to communicate verbally, the Court shall take the
assistance of an interpreter or a special educator in recording the statement, and such statement
shall be video-graphed."
The case of deaf and dumb differs from child witness in following two ways -

                   i) The deaf and dumb must understand the nature of an act. The child need not
understand it.      
                   ii)  The deaf and Dumb can give his evidence by means of signs Under Section 119 of
Indian Evidence Act.

Privileged communication

 The privilege of a witness means the right of a witness to withhold evidence to disclose certain matters. There are certain

circumstances in which certain persons are not compelled to testify (to give evidence). The right is based on the convenience

and public policy.  Section 122 to Section 132 of Indian Evidence Act 1872 provide for privileged Communications.   

Various Privileges of Witnesses under the Indian Evidence Act: 

 i) Judges and Magistrates :

              According to Section 121 of Indian Evidence Act 1872, No Judge or Magistrate shall, except upon the special order

of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such

Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be

examined as to other matters which occurred in his presence whilst he was so acting.

Examples 

       A is accused before the Court of Session of having given false evidence before B, a Magistrate. B, cannot be asked what

A said, except upon the special order of the superior Court.

  

ii) Communications during marriage : 

               According to Section 122 of the said Act, No 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 married; 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.

iii) Evidence as to affairs of State 

            Section 123 of Indian Evidence Act says that "No one shall be permitted to give any evidence derived from

unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the

department concerned, who shall give or withhold such permission as he thinks fit".

 iv) Official Communications 

             According to Section 124 of the said Act., "No 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.

 v) Information as to commission of offences 

             Section 125 of Indian Evidence Act says that "No Magistrate or Police officer shall be compelled to say whence he

got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got

any information as to the commission of any offence against the public revenue. Explanation “Revenue officer” in this section

means an officer employed in or about the business of any branch of the public revenue".

vi) Professional communications

According to Section 126 of Indian Evidence Act 1872, No barrister, attorney, pleader or vakil 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 the purpose of his

employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of

any document with which he has become acquainted 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:

 Provided that nothing in this section shall protect from disclosure —

           (1) Any such communication made in furtherance of any illegal purpose;

           (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing

that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the

attention of such barrister, pleader, attorney or vakil 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.

Examples 

       (a) A, a client, says to B, an attorney — “I have committed forgery, and I wish you to defend me”. As the defence of a

man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

       (b) A, a client, says to B, an attorney — “I wish to obtain possession of property by the use of a forged deed on which I

request you to sue”. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

       (c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B

observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which

entry was not in the book at the commencement of his employment. This being a fact observed by B 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.

Examination of witness

INTRODUCTION

Chapter X of part III of the Indian Evidence Act, 1872 deals with the examination of a
witness. Section 135 lays down the order to be followed in production and examination
of witnesses which is left to be regulated by the code of civil procedure and criminal
procedure. If there is no provision for a particular point in case, then, the court can
exercise its own discretion in deciding the order of production of witnesses.

ADMISSIBILITY OF EVIDENCE

As per Section-5 of the Indian Evidence Act, 1872, only those pieces of evidence,
regarding the facts and facts in issue have to be submitted that are relevant. Section
136 has reiterated this point. It states that a judge may ask the party, who has proposed
to give evidence, as to how will such a fact, for which the evidence has been provided,
be relevant to the case. Hence, the judge can question the relevancy of the fact for
which the evidence is being provided and the evidence shall only be submitted if the
judge thinks the fact will be relevant to the suit.

If the fact (A) proposed to be proved, whose evidence will be admissible on proof of
some other fact (B), the latter (B) should be proven first. The court, may, however,
exercise its discretion and let the party prove the former (A) first, on the condition that
the party will prove the latter fact (B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact, the latter shall
be proven first but again, the judge may exercise his discretion and let the party prove
the first fact. It has been held in Collector of Gorakhpur v Palakdhari Singh (1889
ILR 12 All 1) that any doubt about the admissibility of a piece of evidence shall be in
favour of admissibility.

EXAMINATION ORDER

Testimonies of witnesses are recorded as answers to the questions asked to them. These
questions are relevant to the facts in issue, and such questioning is called an
examination of the witness. The evidence not only includes answers to questions but
may also include statements made or that is required to be made, by the court and is
relevant to the issue.

Section 137

It states that a witness should be first examined by the party who has called him and this
is called examination-in-chief. And when an adverse party examines the witness, it is
called cross-examination. The cross-examination may explore all the relevant facts and
not necessarily, the facts that were asked to the witness during the examination in chief.
There might be no need for a cross-examination if the testimony is prima facie
unacceptable (Ghulam Rasool Khan v Wali Khan, AIR 1978 J&K 54). If the party
who called the witness, questions him, again after cross-examination, it is called re-
examination.

Section 138

It provides for the order of examination; a witness will be first examined in chief, and
then if the adverse party deems fit, cross-examined and if the party calling him so
desires, be re-examined. A witness has to be first examined in chief to be cross-
examined, else, it is not permissible and not possible (Sharadamma v Renchamma,
AIR 2007 Kant. 17). An order of re-examination can be made by the court on an
application by the party as it is not limited to courts’ own motion (SSS Durai Pandian v
SA Samuthira Pandian, AIR 1998 Mad. 323). The matter of re-examination should
be limited to examination in chief and cross-examination and if any new matter is
introduced by permission of the court, the witness can be subjected to cross-
examination, again, upon that matter.
Section 139 says that a person called upon to produce a document does not become a
witness per se. Hence, he cannot be cross-examined, unless, examined in chief by the
party who called him.

Section 140 provides that witness to a party’s character maybe cross-examined if

already examined in chief. The evidence of character is meant to assist the court in
estimating the value of the evidence brought before the court through the mouth of the
witness.

LEADING QUESTIONS

Section 141

“Any question suggesting the answer which the person putting it wishes or expects to
receive is called a leading question.”

A witness should tell the story relating to the relevant facts or facts in issue in his own
words. If there is an inbuilt answer in the question, or if it is suggestive of an answer, a
lawyer could construct a story out of the mouth of the witness which suits his client. If
such a question is asked in the examination in chief or in re-examination, the adverse
party may object to it. This has been provided in Section 142 and it also states an
exception that such leading question may be asked on permission from the court, i.e.,
the objection is overruled.

Section 143 states that leading questions may be asked in cross-examination.

IN WRITING

Section 144

“Any witness may be asked, whilst under examination, whether any contract, grant or
other disposition of property, as to which he is giving evidence, was not contained in a
document, and if he says that it was, or if he is about to make any statement as to the
contents of any document, which, in the opinion of the Court, ought to be produced, the
adverse party may object to such evidence being given until such document is produced,
or until facts have been proved which entitle the party who called the witness to give
secondary evidence of it.” Accompanied by the illustration, the section is self-
explanatory:
The question is whether A assaulted B. C deposes that he heard A say to D, “B wrote a
letter accusing me of theft, and I will be revenged on him.” This statement is relevant, as
showing A’s motive for the assault, and evidence may be given of it, though no other
evidence is given about the letter.

Section 145

It provides that a witness may be cross-examined as to previous statements made by

him in writing and if he is to be cross-examined over oral statements, which were
reduced to writing, his notice shall be brought to such parts of writing before the writing
is to be proved. A witness can only be contradicted over previous statements made by
him, not subsequent (Mishri Lal v State of MP, 2005 10 SCC 701).

 LAWFUL QUESTIONS

Except for the questions already permitted through different sections of the act, the
following questions can also be put up in cross-examination, under Section 146:

 To test a witness’ veracity or truthfulness

 To know who he is and what his position is in life
 To shake his credit by injuring his character

These questions can be asked even if, directly or indirectly, the witness is criminated or
is exposed to penalty or forfeiture. The witness may also be compelled to answer these
questions as per the conditions of the following sections. By section 28 of the Criminal
Law amendment, 2013, if a case relating to sections 376 to 376E or for an attempt to
commit any such offence (under the Indian Penal Code, 1860), the victim’s moral
character or previous sexual experience cannot be questioned in cross examination.

COMPELLED TO ANSWER

Section 132 provides for compelling of a witness to give answers to the question that are
relevant to the matter in issue. This cannot be excused on the ground that such answer
would give rise to witness’ liability, criminal or civil. If the witness is forced to give an
answer, the same shall not be used as evidence against him in any case, provided, the
evidence so provided was not false. Section 147 provides that if any such lawful
question is relevant to the suit or proceeding, the provisions of section 132 will apply.

Section 148 provides protection against aggressive cross-examination. If a person’s

character is in question, to shake his credit, the court may, while exercising its
discretion, warn the witness that he is not obliged to answer. Provided the court
considers the questions that were asked were irrelevant to prove his credibility or far too
remote in time or those which would not affect at all or slightly affect the witness’
credibility as to the matter to which he is giving evidence.

REASONABLE GROUND

Section 149 provides that if there is no reasonable ground to convey an imputation

under section 148, the questions are not to be asked. This section also safeguards a
witness against damaging of character. Illustration (c) to this section makes it clear: A
witness, of whom nothing whatever is known, is asked at random whether he is a dacoit.
There are here no reasonable grounds for the question.

Section 150 lays duty of a counsel in questioning a witness’ character. If a barrister,

pleader, vakil or attorney questions a witness’ character without a reasonable ground,
the same shall be reported to the High Court or any authority to which he is subject.

QUESTIONS FORBIDDEN

Section 151 confers the court with the power to forbid questions that are indecent and
scandalous. These questions might be related to the matter in hand and may only be
allowed if they relate to the fact in issue or are necessary in determining whether some
fact in issue existed.

Section 152 empowers the court to forbid questions that are meant to insult or to
annoy. Even if the question might be proper, the court can reject it if it is needlessly
offensive.

SECTION 153

It provides for protection of a witness’ character. If a witness has answered a question as

to his credit, no evidence shall be admissible to contradict his answer. This section has
two exceptions, first, if he lies about his former conviction and second, to impeach his
impartiality; evidence may be provided to contradict both these claims. Though no
evidence is admissible to contradict a witness’ claim as to his credit, if the witness has
lied, he can be separately charged for producing false evidence.

SECTION 154
It allows for the party, who has called upon a witness, to put up any questions to the
witness as could be asked to him during cross-examination. This section brings under its
purview, the concept of a hostile witness. It has been defined by the Supreme Court
in Sat Paul v Delhi Administration (AIR 1976 SC 303), as one who is not desirous of
telling the truth at the instance of the party calling him. The previous testimony of a
hostile witness is not washed off, the court can use it as evidence and if the prosecution
does not confront the witness, regarding the contradiction, it shall be the duty of the
court to do so for ascertaining truth (State of Rajasthan v Bhera, 1997 Cr LJ 1237).

SECTION 155

The credit of a witness can be impeached in the following ways. It is usually impeached
by the adverse party but if the witness becomes hostile, his credit can be impeached by
the party who called him:

 By producing witnesses who testify from their personal knowledge of the witness that such
person is unworthy of credit. The produced witnesses must have personal knowledge of
the witness they are testifying against.
 By showing that the witness was bribed or has taken an offer to receive a bribe or has
some other corrupt inducement.
 By citing earlier statements of the witness which contradicts him, only to the extent which
section 153 permits.
CORROBORATION OF EVIDENCE

Section 156 provides that a witness may be questioned about circumstances, apart

from the main event, with the intention to corroborate evidence provided by him and the
court shall permit it if it deems that these questions will help corroborate his testimony
in reference to the relevant facts.

Section 157 states that a former statement of a witness can be used to corroborate

testimony of the witness in relation to a common subject matter. In Rameshwar v
State of Rajasthan (1952 SCR 377), the Supreme Court allowed the statement of
a young girl who was raped, to be corroborated with the girl’s own statement to her
mother four hours after the incident.

Section 158 says that statements relevant under section 32 or 33 (like, a dying

declaration), that have been proved, all matters which confirm or contradict the
statement, can be proved. Evidence can also be given to impeach the credit of the
person who made such statement, to the extent as if that person had appeared as a
witness.
REFRESHING MEMORY

A witness is allowed to refer to a writing made by him either at the time of happening of
an event concerning which he is questioned or sometime later, which the court considers
it likely that the event was fresh in his memory. The witness can also refer to someone
else’s writing about the event which was made within a time period which court
considers reasonable on the ground stated above. If the witness is an expert, he may
consult professional books. These provisions have been provided under Section 159.

Section 160 A witness may testify to facts mentioned in such document as is

mentioned under section 159. It does not matter whether the witness has any specific
recollection of the facts recorded, as long as he is sure that he correctly recorded them.

Section 161 gives a right to the adverse party to cross examine the witness and also to
produce to him any such writing, as given under section 159 & 160.

PRODUCTION OF DOCUMENTS

When a witness has been called upon to produce a document, he is bound to produce it.
Any objection to it shall be dealt with by the court and to determine its admissibility, the
court shall inspect it, except when it refers to matters of state (Section 162).

Section 163 requires the party (A), who has given notice to the other party (B) to
provide certain documents, to produce such documents after initial inspection in the
court, as evidence if the party (B) asks so.

Section 164: If, under the previous section, party B denies to provide A with the
required documents, the same cannot be produced in court by B without A’s permission.

SECTION 165

This section provides for the power of court to question. A judge can, in order to obtain
proof of relevant facts, ask any question he pleases, be it relevant or irrelevant to the
case. It may be asked any time and may take any form and be directed at a witness or a
party. The judge can though, not compel the witness to answer and the judgement
should be based upon the facts which have been declared relevant under the IEA.

CONCLUSION
While safeguarding the social life of a witness, the act serves justice to the fullest extent.
By omitting and adding certain provisions, the act is indeed keeping up with the modern
times.