LAW OF EVIDENCE

Krishna Bahadur*

T H E NUMBER O F cases on the law of evidence is as usual legion. T h e

courts have, by a n d large, applied only t h e established principles of
law while deciding upon the admissibility of the facts in a particular
case. Every case, however, presents a unique set of facts a n d it is not
surprising t h a t the principles of law in t h e process of their application by
the courts are at times modified and, m a y be, in some cases mutiliated.
T h e discovery of new principles from the plethora of cases is possible only
if a detailed analysis is m a d e of the fact situations in the precedent cases
side by side with the situations in the instant cases. This survey ende­
avours to study the judicial trends in the techniques of fact ascertainment
by analysing the cases arising out of the interpretation of some of t h e im­
portant provisions of the I n d i a n Evidence Act, 1872.

II. RELEVANCY OF FACTS AND ADMISSIBILITY OF EVIDENCE

A. Facts in Issue and Relevant Facts

Evidence may b e given of facts in issue a n d relevant facts only. 1

Only such facts are relevant as are specifically described a n d illustrated
in the I n d i a n Evidence Act. 2 A court, therefore, cannot take a fact as
proved without considering the matters before it within the requisite
degree of probability 3 . W h e r e , for example, wagons were looted a n d
consignments therein were lost as a result of communal disturbances, the
Supreme Court in Shiv Nath v. Union of India* did not take as proved the
fact that the applicant's consignments were also lost through the same
circumstances. T h e facts t h a t have a bearing o n t h e evidence or non­
existence of a fact in issue may vary from case to case. 5

(1) Res Gestae

For the application of the doctrine of res gestae, the fact in issue must
b e proved. I n Kashmira Singh v. State,* neither the F . I . R . w a s proved nor

♦M.A., LL.M; Lecturer, Banaras Hindu University, Varanasi.

1. Section 3, Indian Evidence Act.
2. Section 11, id.
3. Daitari Das v. Kulamani., AJ.R. 1965 Orissa 21; D.K. Jain v. State, AJ.R.
1965 All. 525.
4. AJ.R. 1965 S.C. 1966.
5. Indian Airlines v. Madhuri Chowdhuri, AJ.R. 1965 Cal. 252.
6. AJ.R. 1965 J.& K. 37.

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 192 ANNUAL SURVEY OF INDIAN LAW

the informant was produced before the court. The only witness was a
by-stander who had neither seen with his own eyes nor heard with his
own ears that the accused had used any indecent language against the
complainant or insulted her. Obviously, the fact in issue was not proved
but the Court held the evidence of the by-stander relevant as forming
part of the same transaction. Similarly, in Indian Airlines v. Madhuri
Chowdhuri,7 the report of the Enquiry Commission relating to the causes
of the aircraft crash was held relevant as it spoke of the occasion, cause
or effect of the fact in issue, that is, the aircraft crash. It may, however,
be submitted that even on the assumption that relevancy is always a
question of judicial discretion to be determined according to the issue to
be tried, the evidence of the by-stander and the report of the Enquiry
Commission do not form part of the same transactions. No doubt, it
is largely in the judicial discretion to admit an evidence as res gestae but
it must have a close proximity with the fact in issue which, in these
cases, it was difficult to locate.
The first part of section 8 of the Indian Evidence Act lays down
that fact which constitutes a motive or preparation of a fact in issue is
relevant. The latter part of this section deals with the relevancy of pre­
vious and subsequent conduct. This section, therefore, presupposes the
existence of fact in issue. The Bombay High Court in State v. Hiramans
accordingly held that the statement of a ravished minor girl, aged four,
explaining the incident and naming the accused to her mother after the
commission of the offence under section 376, Indian Penal Code, on her
by the accused, was relevant as amounting to subsequent conduct. Sec­
tion 9 makes relevant only those facts which are necessary to explain or
to introduce relevant facts in issue. Such facts may also be termed as
"link evidence." Since to attract the doctrine of res gestae, the existence
of fact in issue is presupposed, it is necessary that the identity of the
fact "to be linked with" and the identity of the fact "to be linked to" must
both be established. For example, in the absence of the identity of a
recovered gun having been established, it is difficult to see how the fact
of recovery could form a link to it. The application of the doctrine in
State v. Dhanwan,9 where the identity of the recovered article was not
proved, would not be a sound principle of law,

(2) Conspiracy
The agreement necessary for the offence of conspiracy can be proved
either by direct evidence or be inferred from acts and conduct of

7. Supra note 5.
8. AJ.R. 1965 Bom. 154.
9. AJ.R. 1965 All 260. Mathur, J., observed that "We are of the opinion that the
evidence of recovery can be accepted even though the recovered article has not been
sealed soon after the recovery and no link evidence was adduced during trial, provid-
(Continued on next page)

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 LAW OF EVIDENCE 193

parties. 1 0 T h e court has first to be satisfied that reasonable ground exists

to believe that two or more persons have conspired together to commit a n
offence or a n actionable wrong. T h e r e should, therefore, be prima facie
evidence t h a t a person was party to the conspiracy a n d that his a c t was
in reference to the common intention of all 1 1 a n d related to the period
after such intention was entertained by any one of them. It m a y b e
observed that the first p a r t of section 10 is m a n d a t o r y in the sense that
unless the court has reasonable ground to believe of the existence cf
conspiracy, the latter p a r t of the section is inoperative. 1 2 A peculiar
situation in this respect may sometimes arise where u p to a certain stage
of evidence, the court has reasonable ground to believe t h a t a conspiracy
existed but later on, it comes to the conclusion t h a t no grounds exist
further for the same. Dealing with a situation like this, the Calcutta
High Court in Samunder Singh v. State13 said : " A trial judge may a d m i t
evidence under section 10 of the Evidence Act where h e has a reasonable
ground to believe as is postulated, yet he m a y reject it if at a later stage of
the trial that gound of belief is displaced by further evidence. It is not
the true view that in a conspiracy charge, evidence once admitted remains
admissible evidence whatever new aspect the case may assume w h e t h e r
in the original or in the appellate court." 1 4

B. Statements Made Under Special Circumstances

(1) Entries in Books of Accounts

T h e evidentiary value of the entries m a d e in a book of accounts was
determined by the courts in a n u m b e r of cases. T h e Orissa H i g h Court
in Haribux Gauri Shanker Firm v. Subhakaran Tulsirarn^ emphasised that
what is relevant is the entry regularly m a d e in the course cf business.
It is, however, submitted t h a t the words "regularly k e p t " in section 34

ed that the court is satisfied on consideration of the material on record and the circums­
tances of the case that the article produced before the court is the same which had
been recovered from the possession of the accused." Id. at 263.
10. Bhagwan Swarup v. State of Maharashtra, AJ.R. 1965 S.C. 682.
11. Samunder Singh v. State, AJ.R. 1965 Cal. 598.
12. See the following observations of Subba Rao, J., in Bhagwan Swarup v.
State of Maharashtra, supra npte 10, at 687:
Another important limitation implicit in the language is indicated by the expre­
ssed scope of its relevancy. Anything so said, done or written is a relevant fact
only as against each of the persons believed to be so conspiring as well for the
purpose of proving the existence of the conspiracy as for the purpose of show­
ing that any such person was a party to it. It can only be used for the purpose
of proving the existence of the conspiracy or that the other person was a
party to it. It cannot be used in favour of the other party or for the purpose of
showing that such a person was not a party to the conspiracy.
13. Supra note 11.
14. Id at 606.
15. A.LR. 1965 Orissa 211.

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194 ANNUAL SURVEY OF INDIAN LAW

govern a n d qualify " e n t r i e s " as well as "books of accounts." It is not

clear w h e t h e r the Court while determining the relevancy of entries im­
pliedly also included the relevancy of the books containing such entries.
T h e cases under review did not lay down a sound law as regards
the latter p a r t of section w h i c h determines the evidenciary value of
such entries a n d lays down that they, by themselves, would not be suffi­
cient evidence. It would be unnecessary to r e a d in this part of the sec­
tion a m a n d a t o r y requirement towards corroboration of such entries as
general corroborative test to such entries would in any case apply under
the general principles of the law of corroboration. It seems that the
A n d h r a Pradesh High Court in Aswathanarayanaiah v. Sanjeeviah1® a n d
the Assam H i g h Court in H. Motor Works v. Harnath Barua17 did not
consider this aspect while upholding the importance of the latter part.
I n fact, the latter p a r t of section 34 almost abrogates the evidenciary
force of the earlier p a r t of the section by taking away whatever the earlier
p a r t gives. I t seems that in view of the general law of corroboration,
a specific requirement in this regard as contained in the latter part of the
section is unnecessary a n d it is, therefore, suggested that section 34 may
r e a d : "Entries in books of account, regularly kept in the course of
business, a n d relevant whenever they refer to a m a t t e r into which the
court has to e n q u i r e . " Such a n a m e n d m e n t would not make any diffe­
rence in the principles a n d scope of section 34 as evidence of such entries
would, like other evidence, be still open to corroboration, veracity and
satisfaction of the courts.

(2) Public Record

T h e term "public r e c o r d " as used in section 35 has been one of vary­
ing connotations. T h e C a l c u t t a H i g h Court in Indian Airlines v. Madhuri
Chowdhurixs held t h a t the report of the statutory Enquiry Commission
set u p under the Aircrafts Act, 1934,, was not relevant. However, the
Supreme Court in Periaswami v. Sunderesa Ayyar1Q laid down that the
entry in the " I n a m register" m a d e by the I n a m d a r was relevant. These
cases do not point out as to which record amounts to a public record and
what workable tests can be laid down to ascertain whether a record is
a public record. T o resolve such uncertainties, the proper test, it may
be suggested, would be to hold that a public record is one which is kept
or issued under the authority of law. I n this sense, the report of a statutory
enquiry commission would be a public record. 2 0

16. AJ.R. 1965 A.P. 33.

17. AJ.R. 1965 Assam 10.
18. Supra note 5.
19. AJ.R. 1965 S.C. 516.
20. Under section 73, Indian Evidence Act, the following are public documents:—
(1) Documents forming the acts or records of the acts—
(i) of the sovereign authority,
{Continued on next page)

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 LAW OF EVIDENCE 195

In Brij Mohan v. Priya Brat21 the issue was whether an entry of

birth made in the official register, maintained by an illiterate chowkidar,
by another person at the request of the chowkidar is relevant. The
Supreme Court observed that the words "made by a public servant" mean
made by a public servant himself. It may be pointed out here that,
since the latter part of section 35 reads "made by a public servant in the
discharge of his official duties" the words "in the discharge of his official
duties" are inended to qualify *'public servant" and therefore an entry
so made whether by public servant himself or at his request by someone
else would be relevant. In this case, there was no evidence to show that
the entry was made not at the request of the chowkidar in the discharge
of his official duties and not to his satisfaction and belief to its being correc­
tly made. The Supreme Court on the basis of the "doctrine of probabi­
lity" rejected this evidence saying that "when a public servant makes the
entry himself in the discharge of his official duties, the probability of its
being truly and correctly recorded is high. That probability is reduced
to a minimum when the public servant himself is ^illiterate and has to
depend on somebody else to'make the entry." 22 The true import of sec­
tion 35 is that the entries should have been made "in the discharge of
official duties." Hence, once the fact that the entries were made by a
public servant in the discharge of official duties is proved, the entries
should be deemed to be properly and correctly made and should accor­
dingly be relevant. It may, however, also be said that the intention of the
legislature at the time when the Act was passed in 1872 and when village
chowkidars, who used to be mostly illiterate, were entrusted with the duty
of recording births and deaths in official registers could not have been
otherwise.

C. Opinions of Experts

The courts have not readily accepted the expert opinion tendered
before them in various cases. In Mahendra v. Sushila^ the Supreme
Court held that the court must decide a question over which the opi­
nions of two experts differ. Where "best evidence" is available, the
evidence of experts should be excluded. Similarly, the Rajasthan High
Court in State v. Babulal^ observed that the evidence of two doctors in
fixing the age of a girl between 16 and 19 years was based on mere opinion
which speaks of probabilities and therefore should be rejected as against

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive of any part of India
or of the Commonwealth or of a foreign country;
(2) public records kept in any State of private documents.
21. A.LR. 1965 S.C. 282.
22. Id. at 286.
23. A.I.R. 1965 S.C. 364.
24. AJ,R. 1965 Raj. 90.

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196 ANNUAL SURVEY OF INDIAN LAW

the definite assertion of the father of the girl. The Supreme Court in
Ranjit Udeshi v. State of Maharashtra2^ went to the extent of saying that no
question should entirely depend on oral evidence of writers and art critics.
The identity of handwriting can be proved either by an expert or
by a person acquainted with such handwriting. Under section 73,
the court itself can also compare the two handwritings of a person.
But as laid down by the Patna High Court in Bhupendra Narain v. Ek
Narain Lai,26 direct evidence to prove handwriting must be preferred
to expert evidence on the same point. Accordingly, evidence of the per­
son acquainted in the ordinary course of nature with the handwriting of
another person is a direct evidence and, unless it is manifestly in contra­
diction to expert evidence, it must be admitted. 27 The Rajasthan High
Court in Jiwa Ram v. State28 analysed the principles regarding the forming
of opinion about the relationship and said that, firstly, there must be a
case where the court has to form an opinion as to the relationship of one
person to another, and, secondly, the person whose opinion is relevant
must be a person who, as a member of the family or otherwise, has special
means of knowledge on the particular subject of relationship. In other
words, the person must fulfil the conditions laid down in the later part
of the section. The scope of the proviso to section 50 was thus explained
in Phankari v. State29: "the marriage of the husband or the wife or the
admission made by the parties or any presumption...will not be suffi­
cient to prove the existence of marriage contemplated by section 494." 30
These cases reveal that the courts have been careful and reluctant in
admitting the opinions of experts and third persons and were conscious
of the fact that experts often form their opinions impulsively and at times
with unconscious leanings.

D. Confessions to Persons in Authority

The judgment of the Bombay High Court in Laxman Padma v. Statezl
provides an apt summing up of the scope of section 24 of the Evidence
Act. The Court observed that in order to attract the application of the
section, the following essentials must be present: (i) the confession has

25. A.I.R: 1965 S.C. 881.

26. A.I.R. 1965 Pat. 332.
27. Inder Narayan v. Rup Narain, A.I.R. 1965 M.P. 107, 111:
Where the opinion-evidence excludes the happening either as impossible or as
so highly improbable as to be a practical impossibility, then, of course, one
should hesitate to accept even the direct evidence for the simple reason that
miracles do not happen. Certainly, where the direct evidence itself is doubtful
and is rendered improbable by the expert evidence, then also one should hesitate
to accept it.
28. A.LR. 1965 Raj. 32.
29. A.LR. 1965 J. & K. 105.
30. Id. at 110.
31. A.LR. 1966 Bom. 195.

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 LAW OF EVIDENCE 19 7

been made to a person in authority; (ii) it must appear to t h e court

that confession has been procured by a n inducement, threat or promise;
(iii) such inducement, threat or promise must have a reference to the
charge in question a n d that by making such a confession, the accused,
in the opinion of the court, believed that h e would gain any advantage
or avoid any evil of a temporal n a t u r e in reference to the proceedings
against him.
W h o is a person in authority is a very controversial determinative
factor. T h e t e r m has not been defined in the Act a n d hence, to inter­
pret it, English cases have often been relied upon. T h e term is generally
accepted to m e a n a person w h o has the power to arrest, detain, examine
or prosecute the accused a n d w h o has also the power to carry out the
inducement, threat or promise. 3 2 T h e Gujarat H i g h Court in Punja
Mava v. State*3 clarified t h e construction of t h e t e r m *'inducement"
and said that where t h e police p a t e l was one amongst t h e people offering
inducement to the person accused a n d the police patel not protesting
a n d not leaving the party, the inducement could be said to have p r e -
ceeded from him as well and, in the circumstances, the mere presence cf
the police patel was sufficient to give the accused a reasonable ground
to believe t h a t by making the confession, h e would be saved by all
the persons concerned including t h e police p a t e l .
W h a t constitutes a " t h r e a t " is another determinative factor. I n
the Laxman Padma case, the Court was called upon to decide as to w h a t
conduct of the person in authority would constitute "threat. 5 * T h e
facts of the case were t h a t a customs officer acting under section 171-A
of the Sea Customs Act h a d summoned t h e accused in a n enquiry con­
nected with the suspected smuggling of goods by t h e accused, T h e
points raised during the proceedings were, firstly, w h e t h e r a customs
officer is a person in authority; secondly, w h e t h e r the compelling pro­
visions of a statute, for example, section 171-A of Sea Customs A c t ,
amount to " t h r e a t " ; a n d lastly, w h e t h e r the customs officer, in explain­
ing the provisions of section 171-A of the Sea Customs Act to a person
summoned t h a t h e is b o u n d to give his statement a n d to state t h e t r u t h ,
gives a " t h r e a t " to the person so summoned. The^Court a c c e p t e d t h e
view that a customs officer is a person in authority. I n respect of the
second question, T a m b e , J . , h e l d that " i n the language of section 24,
it is n:>t every threat that falls within mischief b u t it must be a threat
proceeding from a person in a u t h o r i t y , " 3 4 T h e j u d g m e n t proceeds to
state:

Now what has happened here is that the ofScers who recorded the state­
ments have only explained the punitive provisions of law contained in section
171-A of the Act. The compulsion therein, even though it may amount to

32. Ibrahim v. R, (1914) A.C. 599.

33. A.I.R. 1965 Guj. 5.
34. Supra note 31, at 209.

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198 ANNUAL SURVEY OF INDIAN LAW

a threat, emanates not from the officer who was recording the statement but
emanates from the provision of law. What is contemplated in section 24
is that the threat must emanate from the person in authority.35

And a t yet another p l a c e , t h e same Court observed: " I t is not in

dispute t h a t the officers w h o have recorded confessions are persons in
authority within the meaning of Section 24. " 3 0 T h u s it is clear that
t h e customs officer has b e e n a c c e p t e d to be a person in authority. T h a t
the compelling provisions of section 171-A of the Sea Customs Act
amount to " t h r e a t " has also been accepted. But the Court rejected
the plea t h a t the threat emanates from the customs officer. O n this
point, it is submitted, that the word " a n y " used before "inducement,
threat or p r o m i s e " is of a very wide connotation. I t includes threats
m a d e through direct communication as well as by way of explanations
provided, of course, that it emanates from a person in authority like
the customs officer. By narrowing down the construction of the term
" t h r e a t " by technicalities, not a very wholesome principle of law was
laid down in this case.
During the period under survey, it is noteworthy that the courts
acted as keen a n d vigilant defenders of the accused against confessional
statements. T h u s t h e Court in the Laxman Padma case 3 7 further ob­
served that the term police officer is not confined only to such officers
w h o are appointed under the I n d i a n Police Act but also includes
officers who exercise the same powers as t h a t of a police officer of a police
station in respect of investigation of certain offences. T h e mere fact
t h a t such officers are also enjoined with duties other t h a n investigating
certain offences would not be a good reason for holding that they
are not police officers provided the powers exercised by t h e m are the
powers of investigation under the Criminal Procedure Code a n d which
are exercisable by a police officer incharge of the police T h a n a .
Similarly, the term " m a d e to police officer" implies that there must
be some direct or indirect nexus or connection between the person
making the statement a n d the police officer. I n Punja Mava v. State38
the Gujarat High Court said that the police custody is deemed to extend
even w h e n the accused submitted himself to the interrogation a n d made
statements about t h e discovery of facts in issue w h e n h e could not,
therefore, be said to be a free m a n . Analysing the scope of section 27 39
in relation to sections 25 a n d 26, the Court further s a i d :

If the statement to any such police officer is hit under sec. 25 or 26 as tain­
ted evidence, the principle underlying sec. 27 viz. that the evidence relating
to confessional or other statements made by a person while a person is in

35. Ibid.
36. Id. at 208.
37. Supra note 31.
38. Supra note 33.
39. Section 27 is, in fact, nothing more than a proviso to sections 25 and 26.

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 LAW OF EVIDENCE 199

the custody of the police is tainted and, therefore, inadmissible, but if the
truth of the information given by him is assured by the discovery of a fact, it
may be presumed to be untainted, must apply to all such statements.40

Not too clear a picture, through the judgments, has been held out
of retracted confessions as the courts stressed on the need of its corrobo­
ration. T h e q u a n t u m of corroboration should depend u p o n a n d be
determined according to the material facts. T h e Gujarat H i g h Court,
it seems, relied too m u c h on the theory of "court conscience" by saying
that the extent of corroboration of confessional statements should be
such as satisfies the conscience of the court depending upon the circums­
tances a n d the facts u n d e r which the confession was m a d e a n d was r e ­
tracted. It may, however, be pointed out here that the Supreme Court
in Pyarelal v. State of Rajasthan*1 h a d clearly laid down t h a t although
corroboration of retracted confession is not a rule of law, the courts
shall not base a conviction on a confession without corroboration. T h u s
each and every circumstance mentioned in the confessional statement
need not be materially corroborated.

E. Exceptions to the Hearsay Evidence

Sections 32 a n d 33 lay down exceptions to the general rule that

hearsay evidence shall not be a d m i t t e d . Clause (i) to section 32
makes relevant the statement of a person since deceased to prove the
cause a n d circumstances of his d e a t h . T h e principles laid down
in this regard by the Privy Council in Narayana Swami v. Emperor*2
have all along been followed by the courts. While agreeing
that no exhaustive or inflexible rules for recording a dying declara­
tion can be laid down, the Rajasthan H i g h Court in Hari Ram v.
State*3 laid down the following rules to be normally followed for the
purpose:

(1) T h e magistrate, the police officer, the doctor or any person

recording such dying declaration must first satisfy himself that
the declarant is in senses; if not so, h e must make a note t h a t
in his opinion, the declarant was not in senses.
(2) T h e person recording the dying declaration must ascertain
whether the declarant is in a position to speak coherently.
(3) After getting himself so satisfied, he must proceed putting general
questions eliciting the reply a n d should, as far as possible,
record the n a t u r e of questions p u t , so t h a t the court m a y j u d g e
them.

40. Supra note 33, at 7.

41. A.LR. 1963 S.C. 1094.
42. A.I.R. 1939 P.C. 47.
43. A.LR, 1965 Raj. 130.

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200 ANNUAL SURVEY OF INDIAN LAW

(4) So far as possible, the dying declaration should be recorded in

the words of the declarant.
(5) If the injured is not in a position to speak by mouth in a cohe­
rent way, he may be put short questions and his answers given
by gestures may be noted. It is imperative in such a case
that the gestures of the injured person signifying the answer
given by him should find an appropriate mention.
(6) Under certain circumstances, putting of leading questions may
be permitted.
(7) The person recording the dying declaration must see that it
is not prompted and must therefore exclude all the relatives
and other persons from that place.
(8) The dying declaration should, if the circumstances are such,
be read over to the maker and his signatures or thumb impres­
sion obtained or appended.

In Pompaih v. State of Mysore,4t the Supreme Court, however, laid

dawn a strict rule as regards the evidentiary value of dying declara­
tion. According to the Supreme Court, a dying declaration is to be
subjected to a close scrutiny considering always the fact that it was made
in the absence of the accused who had no opportunity to test its veracity
by cross-examination. Further, the court must satisfy itself that the
declaration was truthful. These observations of the Supreme Court
clearly imply that even if there is a small lacuna in following the rules
meant for recording a dying declaration, it should be rejected. In the
light of the above, the Hari Ram case, which upheld the dying declara­
tion although the questions put were not recorded, seems to have laid
down a doubtful proposition of law.

III. MEANS OF PROOF

A. Oral Evidence Regarding Terms of a Document

According to section 91 of the Evidence Act, no evidence, except

the document itself or secondary evidence wherever admissible, is ad­
missible to prove the terms of a contract, grant or disposition of property
reduced to writing either under the provisions of law or otherwise. Sec­
tion 92, which is in substance part of section 91, bars oral evidence to
contradict, vary or add to or substract from the terms and conditions of
a transaction similarly reduced to writing. Clarifying the scope of
section 92, the Patna High Court in Ram Marayan v. Kedar JVath*6 ob­
served that both section 92 and section 91 speak of the "terms" of a
contract, but the question as to who are the parties to such a contract
is not a term of the contract. What is excluded is the oral evidence
44. A.LR. 1965 S.C. 939.
45. A.I.R. 1965 Pat. 463.

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 LAW OF EVIDENCE 201

designed to contradict, vary, a d d to or substract the terms of the

contract agreed upon by the parties a n d not who are the parties to the
contract.

B. Examination of Witnesses

T h e trend of judicial opinion seems to be to give m a x i m u m disc­

retion to the court concerned so far as judging the credibility of t h e wit­
ness is concerned. T h e following observations of the Supreme Court
in Ramchandra v. Champabai^ are significant in this c o n t e x t :

In order to judge the credibility of the witnesses, the Court is not confined
only to the way in which the wrtnesses have deposed or to the demeanour of
the witnesses but it is open to it to look into the surrounding circumstances as
well as the probabilities so that it may be able to form a correct idea of the
trustworthiness of the witnesses.47

During the year u n d e r review, the courts only reiterated the estab­
lished principles in respect of examination of witnesses. T h e Supreme
Court in Bombay Corporation v. Pancham*8 observed t h a t just as it is not
open to a court to compel a party to m a k e a particular kind of pleading
or to amend his pleading, so also it is beyond its competence to virtually
oblige a party to examine any p a r t i c u l a r witness. Similarly, the rule
that no evidence shall be used against a person unless it has been sub­
jected to cross-examination by him or t h a t such a n opportunity has been
declined by him has been upheld. 4 9 W h e n it is intended to contradict
a witness by any writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for t h e purpose
of contradicting him. 5 0 T h e court in its discretion may permit t h e
party calling a witness to p u t any question to h i m w h i c h might be p u t to
him by the adverse party in cross-examination. 5 1 But such witnesses
cannot b e cross-examined by the co-complainants w h o did not call h i m
as their witness. T h e court, however, u n d e r section 165, has unlimited
powers to p u t any question to a witness or to order h i m to p r o d u c e docu­
ments either suo moto or o n t h e suggestion of t h e complainants. 5 2

C. Privileged Documents

T h e state has the privilege to refuse to show or produce any un-

46. A.LR. 1965 S.C. 354.

47. Id. at 365.
48. A.I.R. 1965 S.C. 1008.
49. Haridas v. Indian Cable Co., A.I.R. 1965 Cal. 368; Shyam Singh v. D.LG.
of Police, AJ.R. 1965 Raj. 140.
50. Section 145, Indian Evidence Act. See also Pangi Jogi Naik v. State, A.I.R,
1965 Orissa 205; Jitendra Nath v. Sushilendra Nath, A.I.R. 1965 Cal. 328.
51. Section 154, Indian Evidence Act.
52. Giriraj Singh v. State, A.LR. 1965 All. 131.

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202 ANNUAL SURVEY OF INDIAN LAW

published official record relating to t h e affairs of t h e state 5 3 or to dis­

close any official communication if it is against public interest. 5 4 While
determining the state privilege, t h e English courts have mostly them­
selves looked into t h e state papers. 5 5 Similarly, the Supreme Court of
the U n i t e d States has also held that the determination of the privilege
is a judicial function. 5 6 A very interesting point came u p before the
H i g h Court of J a m m u a n d Kashmir in State of J,K. v. Anwar Ahmed
AftaP7 that once it is a c c e p t e d t h a t the previsions of Indian Evidence
Act apply in principle to the proceedings before a Commission consti­
tuted u n d e r the J a m m u a n d Kashmir Commission of Enquiry Act, does
it imply t h a t section 123 of I n d i a n Evidence Act also applies to the pro­
ceedings before the Commission and, if so, w h e t h e r the state can accor­
dingly withhold t h e production of documents before the Commission.
T h e Cburt held t h a t while t h e principles of Evidence Act m a y be appli­
cable to t h e evidence p r o d u c e d before t h e tribunal, it would not be pro­
per or in parity with reason to infer that even the exceptions contained
in t h e Evidence A c t would also be applicable. 5 8 T h e Court further
observed t h a t where the Act has itself impliedly excluded the doctrine
of state privilege to withold documents from t h e ambit of the jurisdic­
tion of the tribunal, no privilege by the state can be claimed under sec­
tion 123. I t is difficult to agree with the views expressed by the High
Court. T h e provisions of Evidence Act, if applied, must be deemed to
b e applicable as a whole a n d not in a pick a n d choose manner. Sec­
tion 123 lays down a general principle of the law of evidence. It is,
therefore, difficult to think how some principles apply to the tribunal
a n d some, viz., the one contained in section 123, does not.

IV. A D D U C T I O N AND ASSESSMENT OF EVIDENCE

I t is a n established principle of law that one w h o asserts a fact must

himself prove it unless t h e b u r d e n is shifted to t h e other party. T h e

53. The Allahabad High Court in Mahabirji Mandir v. Prem Narain, A.I.R. 1965
All. 494, observed:
The term 'affairs of state' is a general one, but it can't include all that is con­
tained in the records. Where an open enquiry is made, statement recorded during
the open enquiry cannot be deemed to be confidential and similarly an applica­
tion or a complaint made by a person cannot be held to relate to the 'affairs of
the state'.
54. V. Dasan v. State of Kerala, A.I.R. 1965 Ker. 63, where it was held that dis­
closing confidential report by the police against the petitioner amounts to an act to
the detriment of public interest.
55. Duncan v. Cammell Laird, (1942) A.C. 624, where the House of Lords
clarified the position in this regard.
56. U.S. v. Raynoldst 345 U.S. 1; Jenks v. U.S., 353 U.S. 657.
57. A.I.R. 1965 J. & K. 75.
58. The Court observed that section 123 of the Evidence Act is an exception to
the general rule of admissibility of evidence.

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 LAW OF EVIDENCE 203

Supreme Court during the year under survey h a d occasions to reiterate

a n d work out the principle in a n u m b e r of cases. I n Mahendra v. Sushila,m
the Court observed : " W h e n the law places the burden of proof upon
a party, it requires that p a r t y to a d d u c e evidence in support of his allega­
tion unless h e is relieved of the necessity to ds> so by reason of admissions
made by him or in the evidence a d d u c e d on behalf of his o p p o n e n t . " 0 0
I n Sheopal Singh v. Ram Pratap,Gl it again observed: " T h e b u r d e n of
proof as a matter of law a n d as a m a t t e r of adducing evidence is on the
respondent who seeks to get the election set aside, a n d to establish corrupt
practice, but if h e adduces sufficient evidence, as in this case we are
satisfied, the b u r d e n of adducing evidence shifts on to the appellant." 0 2
A controversial test to determine the onus of proof was laid down in
Bibhuti Bhusan v. Sadhan Chandra^ where t h e Court observed t h a t the
ordinary rule t h a t one w h o asserts a fact must himself prove it has no
application to cases where the true b o u n d a r y of a particular land is
under dispute. T h e Court observed t h a t it was the duty of either p a r t y
to aid the court in ascertaining t h e true b o u n d a r y to i m p a r t substantial
justice. Gould t h e n one conclude t h a t as substantial justice being all
that is necessary, the provisions of Evidence Act are neither mandatory
nor bind the court to proceed acccrding to t h e m ? T h e point is d e b a ­
table a n d it is submitted that the courts cannot do w h a t the statute does
not permit t h e m to d o a n d as such the well established rules regarding
the onus cannot be ignored howsoever important substantial justice
as a criterion may be.

V. PRESUMPTIONS

Most of the cases under this h e a d related to adverse presumptions. 6 4

I n State of Punjab v. MJs Modern Cultivators^ the Supreme Court laid
down that where a party is in normal a n d natural possession of the docu­
ments and in spite of the orders of the court does not produce them, a n
adverse presumption can be drawn that if produced they would have gone
against that party. I n this case, the Court gave relief to the respon­
dents who suffered loss on account of a b r e a c h in the canal. Since the
State did not produce the documents, negligence on their p a r t in m a i n ­
taining the canal was presumed. I n Tejendra v. Tripura Administration,m
the Court held that where the accused is otherwise entitled to challenge
the prosecution witness, for example, on the basis that h e is not a n in-

59. A.I.R. 1965 S.C. 364.

60. Id. at 405, per Mudholkar, J.
61. A.I.R. 1965 S.C. 677.
62. Id. at 679, per Subba Rao, J.
63. A.I.R. 1965 Cal. 199.
64. See Illustration (g) to section 114, Indian Evidence Act.
65. A.I.R. 1965 S.C. 17.
66. A.I.R. 1965 Tripura 45.

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204 ANNUAL SURVEY OF INDIAN LAW

dependent witness, no adverse presumption can be drawn against the

prosecution which does examine such a witness. Not going into the
merits of any particular case, it m a y b e submitted that section 114 is
quite independent of other provisions of the Evidence Act or any other
law a n d h e n c e the argument that a party, besides under section 114,
could also seek a defence under other provisions of law, does not debar
such a p a r t y from invoking a defence under section 114 as well.
Sections 107 a n d 108 deal with presumption of continuance of life.
W h e n the question is w h e t h e r a person is alive or dead a n d it is shown
that h e was alive within the preceding thirty years, the burden of proving
t h a t h e is d e a d is on the person w h o affirms it. But this rule is subject
to a proviso that if a m a n has not been heard of f>r seven years by those
who would naturally have h e a r d of h i m h a d h e been olive, the burden
of proving that h e is alive is shifted to the person who affirms it. I n
H.J. Bhagat v. LJ. Cotpn.,67 the M a d r a s High Court considered two
very important points, firstly, to w h a t extent English authorities support
the presumption raised by section 108, a n d secondly, whether such
facts that a person did not claim his dividend or that h e did not apply
for his monthly allowance which was the sole means of his subsistence,
establish a presumption of the d e a t h of a person. No doubt, section
108 is founded u p o n the principles of English law but, as the Court
observed, it is doubtful if English authorities on the point can be followed
in India. T h e reason, as it seems, is that in our country, it is not unusual
for impressionable persons, even though they might be well off, to sud­
denly forsake this world a n d to disappear upon some presumed religious
a n d spiritual quest. 6 8 U p o n the second count, the Court observed that
it would be most unsafe a n d u n w a r r a n t e d by facts a n d probabilities to
d r a w a n inference that a m a n must be presumed to be dead on or about
a particular d a t e if he fails to d r a w his allowance for support. Thus,
inspite of t h e fact t h a t the section in principle is based on the English
common law, it has b e e n differently applied in India.

VI. CONCLUDING OBSERVATION

T h e tendency of the courts while interpreting the provisions of

the Evidence Act has been to uphold the established principles. While
in matters like admission a n d confession, it has been desirable to accept
the well-laid rules of law in order to a d d predictability a n d certainty;
in matters of presumptions, evidence of experts a n d corrobora­
tion, it is advisable that the courts lay down clear tests of admissibility.
Different conclusions have, of late, been arrived at by courts in respect
of to take a few examples, sections 108, 114, 133 a n d 134. Law, thus,
has remained u n c e r t a i n on these points. O n e of the methods to import

67. A.I.R. 1965 Mad. 440.

68. Id. at 442.

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 LAW OF EVIDENCE 205

certainty a n d predictability would be to develop a practice that the

courts should seldom deviate, unless on very strong grounds involving
social a n d economic policies, from their earlier constructions of law.
T h e uncertain a n d speculative character of these sections was scmehow
not brought before the Fifth Law Commission w h i c h considered the
admissibility of hearsay evidence a n d secondary evidence of documents. 6 9
T h e courts in their zeal to subscribe to t h e "circumstances of
individual c a s e " have a t times stretched the law beyond any possible
h u m a n imagination.
I n our society where moral norms a n d social tenets are deep a n d
strict, bald provisions like sections 114, 123 a n d 134 bring unbridled
speculation a n d throw open the game of hide a n d seek. T h e I n d i a n
Evidence Act, effective since 1872 with very few amendments, stands in
need of thorough revision 70 specially in view of the facts that the recent
progress in technology, communication a n d transport is tending to
overhaul the Indian society a n d t h a t social attitudes to the environments
are fast changing. T h e Law Commission has not examined the I n d i a n
Evidence Act in its entirety a n d its recommendations relate only to the
examination of a few provisions of the Act. Social conditions, economic
needs a n d political situations prevailing in I n d i a a r o u n d 1872 have
undergone immense change. A sociological study would reveal t h a t
our law of evidence has been an outcome of feudal society which be­
lieved in categorisation a n d re categorisation of h u m a n personality,
mind a n d conscience. Provisions like relevancy of character evidence
do not fit in with the modern notions which are averse to categorisation.
T h e revision of the law of evidence will have to take into account the
modern m a n whose impulses, motivations a n d actions are governed
by the complex a n d diverse conditions of a transitional if not a n indus­
trial society. I t is to be hoped that the Law Commission will soon
undertake a comprehensive revision of the entire Act.

69. 1 Law Commission of India, Fourteenth Report: Reforms of Judicial Adminis-

tration 516-19 (1958).
70. Id. at 516.

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