Law of Evidence PDF

LAW OF EVIDENCE
5. Rangarajan*
Revised by Versha Vabini**
Despite such rules of evidence as were prevalent in Hindu 1 and Muslim

India,2 in the absence of any codified enactment on the subject, the courts
established by royal charter in the presidency towns of Bombay, Calcutta
and Madras began to follow English rules of evidence; those rules were
contained in the common law and statute law as prevailed in England prior
to 1726.3 But outside the presidency there were no fixed rules of evidence;
the position was really anomalous because neither the English rules nor the
indigenous (Hindu or Muslim) rules applied.4
Act X of 1835 of the Governor General in Council applied to all courts
in British India5 and dealt with evidence strictly so called. A series of Acts
were passed by the Indian legislature introducing some reforms in the law of
evidence. Even Act Π of 1855 was not a complete was not a complete body
of rules though it had made many valuable provisions and had made those
rules applicable to the entire British India. English rules of evidence were
still not the law in the mofitssil; but judges and magistrates in the mofussil were
not debarred from following them when they were seen to be the most
equitable. There were scattered rules of evidence, however, based upon the
practice of the Muslim courts which continued to govern the administration
of justice even after the beginning or British Rule in India. Section 58 of Act
II of 1855 expressly laid down that nothing in that Act should be so
construed as to render admissible in any court any evidence which, but for
the passing of that Act, would have been admissible in such courts. But in
practice, judges quoted English rules of evidence.6
* Formerly Chairman, Monopolies & Restrictive Trade Practices Commission, New

Delhi; Formerly Judge, Delhi High Court.
** Asst. Research Professor, Indian Law Institute, New Delhi.
1. For a full discussion see Sir S Varadachariar, Hindu Judicial System, 1946.
2. Sir Abdul Rahim, Muslim Jurisprudence; Waned Hussain, Administration of Justice during
the Muslim Rule in India and M. B. Ahmed, Administration of Justice in Medieval India.
3. For a discussion of the difficulties in applying English rules of evidence see Unide v.
Pemmasamy 7 M.I. A. 128 at 137.
4. R. v. Khatrulla 6 W. R. (Cr.) 21 and R. v. Ramaswami 6 Bombay H. C. R. 47.
5. Whitely Strokes, Anglo-Indian Code, 2 vols.
6. For an illustration of this aspect see R. v. Gopal 3 I.L.R. Madras 271 per Turner, C. J.,
at page 282. "Now if we examine the Indian Act 11 of 1855 it will be seen to have
had for its object the improvement of the Law of Evidence, and there is not to be
LAW OF EVIDENCE 259
The reforms which had been advocated in England by Lords Denman

and Brougham were carried out in 1855; the Denman Act of 1843 had
removed the disability in the matter of witnesses being able to give evidence
on account of 'crime interest'; the Brougham Act of 1835 had made the
husbands and wives of parties to the record competent and compellable
witnesses.
There was piece-meal legislation subsequent to Act Π of 1855; Act X of
1855 provided for attendance of witness (the Code of Civil Procedure of
1859 contained provisions regarding witnesses; the Code of Criminal
Procedure of 1861 contained provisions in addition to those regarding
witnesses, about confessions, police dairies, examination of accused and civil
surgeons, report of chemical examiners, dying declarations, etc.); Act XV of
1869 provided for the manner of obtaining the evidence of prisoners.
In spite of these provisions judges of this country commented 7 on the
unsatisfactory state of the law of evidence here.
The Indian Law Commissioners prepared a draft bill in 1868, which was
circulated to the provincial governments for their opinion. It was felt even
then that certain parts of the English law of evidence were unsuitable to this
country. Laxity, which led to rejection, was considered a greater evil, than
even when it led to admission, by Maine (later Sir Henry Sumner Maine)
when he introduced the draft bill; in other words, he regarded capricious
administration of the law of evidence as an evil. This bill failed, even after
the first reading, because of opposition that it was unsuitable to the needs of
the country; Sir James Fitzjames Stephen, to whose lot it fell, two years later,
to introduce a new bill, thought the bill was not sufficiently elementary; and
that being incomplete it did not dispense with reliance on English rules.
Despite opposition from officers of the caliber and experience of Sir George
Campbell that systematic rules of evidence would tend to be merely
theoretical, the second bill was finally passed into law as Act I of 1872 and
came into effect on 15.3.1872.
There were subsequent amendments. 8 Certain parts of the Act were
repealed and amended by Act X of 1914.9 One of these amendments (Act 1
found throughout it the smallest exclusion of evidence which had, under English
law, been upto that time receivable. Improvement was in the direction, which had
set in England, of admitting not excluding".
7. Gujju Lull v. Fatteh Lull 6 I.L.R. Calcutta 171. See the dissenting view of the only
Indian judge on the bench which decided this case: "That decisions like the one
under our consideration have been frequently admitted in out Courts as evidence, is,
I believe, a proposition beyond all dispute, and I do not see any reason why we
should depart from this practice merely because it is opposed to the English law of
evidence" (at page 179).
8. Acts XVIII of 1872, ΙΠ of 1887, III of 1899, XVIII of 1919, XXXI of 1926, XXXV
of 1934,1 of 1938, XL of 1949 and ΠΙ of 1951.
9. For a chronological list of these Acts from 1841 to 1961 see appendix to Volume IV
of Woodroffe and Ameer Ah, The Law ofEvidence, 12th ed., 1968.
260 INDIAN LEGAL SYSTEM
of 1938) deleted section 2 of the Evidence Act 10 but it is considered 11 that

by this deletion no new principle of evidence was introduced. The
background to the deletion was as follows; The Judicial Committee of the
Privy Council had12 insisted on the exclusion of evidence not authorized by
the Act. Mahmud, J. tried to introduce a refinement 1 3 that while the
principle of exclusion was the safest guide, "yet it should not be applied to
exclude matters which may be essential for the ascertainment of truth"; but
this approach was disapproved without specifically referring to the dictum of
Mahmud, J.) by the Judicial Committee. 14 The English law of evidence, with
certain modifications, was reproduced by the Act of 1892. The EngUsh law
appeared to be 'totally destitute of arrangement'; it had been formed by
degrees out of various elements, and in particular out of the English system
of pleading and the habitual practice of the common law courts. This feature
of the English law was described in the following manner by the select
committee.
For instance, the rule that evidence must be confined to points
in issue is founded on the system of pleading. The rule that
hearsay is no evidence is part of the practice of the courts; but
the two sets of rules run into each other in such an irregular way
as to produce between them a result which no one can possibly
understand systematically, unless he is both acquainted with the
principles of a system of pleading which is being rapidly
abolished, and with the every day practice of the common law
courts, which can be acquired and understood only by those who
habitually take part in it. This knowledge, moreover must be
qualified by a study of text-books, which are seldom
systematically arranged.
There were two possible approaches: one, on which the Act proceeded
was that it was both possible and advisable positively to determine what is
evidence; the second was, like the historical method of the English law, to
adopt the negative approach of declaring not what is, but what is not,
evidence. The American experiment of defining hearsay (what is not
admissible), and grafting numerous exceptions to it, is a later approach.
Without digressing into this aspect, it may be noticed that the Evidence Act,
as were the rules in England was geared to trials, mainly with the aid of jury.
10. Yet the Supreme Court pointed out in State ofPunjab v. S.S. Singh AIR 1961 SC 461
that in case of ambiguity or doubt the court can with profit look to the common law
for ascertaining the true meaning of the provisions of the Evidence Act.
11. George Rankin, Background to Indian Law, p. 115. Also see King v. King I.L.R. 1945 All
620.
12. See Rani Lakran Kaur v. Baboo Mahpal Singb 1879 L.R. 71. A. 63.
13. R. v. Abdullah 71.L.R. All 385 at 401 (1885).
14. Maharaja Sir Chandi Nandy v. R. Thakur 19411.L.R. I. A. 34.
LAW OF EVIDENCE 261
Maine said that the English law of evidence would probably not have come
into existence but for one aspect of the English judicial administration-the
system of the judge of law being separate from the finding of fault, of the
judge and the jury. 15 In this light what might be very useful, though only
fairly reliable, has been shut out in favour of utter safety, in an endeavour to
exclude what may altogether vitiate the jury's verdict. There are various
other criticisms of the Act into which it is not now possible to enter. 16
The two necessary functions of a court of justice are to ascertain the
existence or non-existence of certain facts and then to apply the substantive
law to the ascertained facts and declared the rights or liabilities of parties in
so far as they are affected by such facts. As the select committee of the bill
observed:
Every judicial proceeding whatever has for its purpose the
ascertaining of some right or liability. If the proceeding is
criminal, the object is to ascertain the liability to punishment of
the person accused; if the proceeding is civil, the object is to
ascertain some right of property or of status or the right of one
party and the liability of other, to some form of relief. All rights
and liabilities are dependant upon and arise out of facts, and
facts fall into two classes, those, which can, and those which
cannot, be perceived by the sense.
The means by which the court informs itself of the existence of these
facts is called evidence, which expression is derived from the Latin word
'evidens' or 'evidere' meaning 'to show clearly', 'to make plainly certain" 'to
ascertain', 'to prove'. According to Taylor 17 it includes all legal means,
exclusive of argument, which tend to prove or disprove any matter of fact,
the truth of which is submitted to judicial investigation. As explained by
Nokes 18 evidence may be considered as facts themselves or as the methods
used to bring them to the notice of the judge.
The law applied by courts to ascertained facts in order to frame a
judgment was regarded by Bentham as substantive law, as distinct from
those rules by which facts are ascertained-by questioning persons, inspecting
things-and those pertaining to the recording and enforcing of judgments.
The latter rules were termed adjective law, which would even take in rules of
procedure and pleading.
It goes without saying that the best rules of evidence will not ensure
correct results being reached, even as it is said that the best shoes in the
15. Proceedings of the Legislative Committee dated 12.12.1868.

16. For a criticism of the Act, see G.C. Whitworth, The Theory ofRelevancyfor the Purpose of
Judicial Evidence, 3 rd ed., 1891 and Woodroffe and Amir Ali, The Law ofEvidence, 12th
ed., 1968, Ch. V, pp. 97-123.
17. P. Taylor, A Treatise on the Law ofEvidence, ll' h ed., 1920.
18. G.D. Nokes, Introduction to Evidence, 2nd ed., pp. 3-4.
world will not make a man walk, nor will the best glasses make him see, if he
be wholly lame or blind. The rules of evidence have therefore to be such as
do not cramp but assist in reaching natural powers (natural sagacity and
experience) in the matter of coming to correct conclusions. Collateral and
irrelevant matters are excluded in order to shorten proceeding but yet
permitting concentration upon points of essential importance. Stephen said
in his speech:
A law of evidence properly constructed would be nothing less
than an application of the practical experience acquired in courts
of law t o the p r o b l e m of inquiring i n t o t h e t r u t h as t o
controverted questions of fact.
The Evidence Act governs the proceedings before courts, which
expression includes all judges and magistrates, and all persons except
arbitrators, legally authorized to take evidence. 19 "Fact" itself means and
includes (1) any thing, state of things, or relation of things capable of being
perceived by the senses; (2) any mental condition of which any person is
conscious. One fact is relevant to the other when it is connected with the
other in any of the ways referred to in the Act (chapter II, sections 5-55).
The expression "facts in issue" means and includes any fact from which
either by itself or in connection with other facts, the existence, non-
existence, nature or extent of any right, liability or disability, asserted or
denied in any suit or proceeding, necessarily follows. "Evidence" means and
includes (i) all statements, which the court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry; and (2) all
documents produced for the inspection of the court. A fact is proved when,
after considering the matters before it, the court either believes it to exist or
considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act on the supposition that it exist; it
is said to be disproved when similar belief is possible that it does not exist
or its non-existence is so probable. The burden of proof for disproving a
fact lies on the person, who claims that an alleged fact is not true. 20 When a
fact is neither proved nor disproved it is not said to be proved. 21
The scheme of the Evidence Act is that no fact other than those having
rational probative value shall be admitted in evidence even as all facts having
rational probative value are admissible in evidence unless excluded by a
positive rule of paramount importance. But evidence may be given only of
the existence or non-existence of every fact in issue and of such other facts
as are declared to be relevant by the Act, but of no others. This imbibes the
19. But it is not to be extended where the extension is not warranted. See Brajanandan
Sinha v. Jyoti Narain AIR 1956 SC 66.
20. Naval Kisbore Somani v. Poonam Somani AIR 1999 A.P. 1 at 7.
21. S. 3.
LAW OF EVIDENCE 263
principle of well-known maxim optima legum interpret est consuetude. This is

subject to the further limitation that a person will not be entitled to give
evidence of a fact, which he is disentitled to prove by any provision of the
law for the time being in force relating to civil procedure. 22 The rules of
evidence pertaining to relevance broadly incorporate what the judges in
England regard as relevant in any enquiry. But there is one important
difference in this respect between England and India. The limits of
relevancy with which the English judge is concerned are those determined
by logic, that is t o say, whether it would help decide the m a t t e r in
controversy; if this is so nothing else would prohibit the English judge from
taking the same into consideration subject to any rule affecting its
admissibility. But the judge in India is concerned with the further question,
even where he thinks the evidence is logically relevant, admissible and
helpful, whether the same is made expressly relevant by any provision of the
Evidence Act. This departure from the English practice was probably
considered necessary, a century ago, when the level of judges and lawyers in
the country was considered to be not of the requisite kind. It is often found
difficult in practice to be able to bring in evidence, intrinsically and logically
relevant and helpful, under any express provision of the Act making such
evidence relevant.
With the above distinctive features in mind an effort will be now made
to set out what has been expressly made relevant by the provisions of the
Act.
Facts, which, though not in issue, are so connected with the facts in
issue as to form part of the same transaction, are relevant, whether they
occurred at the same time and place or at different times and places.23 This
corresponds to the English rule of res gestae, which expression has not even
been employed in the Act. Sir James Stephen defined a transaction as "a
group of facts so connected together as to be referred to by a single legal
name, as a crime, a contract, a wrong, or any other subject of enquiry, which
may be in issue"; t h e n evidence can be given of any o t h e r part of
transaction. This is so on account of the other part of the transaction also
being in issue, evidence of which would be permissible under section 5, or
because such other part becomes relevant under section 6. Various test have
been suggested t o find out w h e t h e r a fact forms part of the same
transaction. Similarly, facts, which are the occasion, cause or effect,
immediate or otherwise of relevant facts or facts in issue, or which
constitute the state of things under which they happened or which afforded
an opportunity for their occurrence are relevant. 24 Also relevant are facts
22. S. 5.
23. S. 6.
24. S. 7.
necessary to explain or introduce a fact in issue or relevant fact, or which

support or rebut an inference suggested by a fact in issue or relevant fact, or
which establish the identity of any thing or person whose identity is
relevant, or fix the time or place at which any fact in issue or relevant fact
happened or which show the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary for that purpose. 25
Facts not otherwise relevant would also become relevant (1) if they are
inconsistent with any fact in issue or relevant fact; and (2) if by themselves
or in connection with other facts they make the existence or non-existence
of any fact in issue or relevant fact highly probable or improbable. 26 This
provision is in consonance with the idea that some facts though logically
relevant are not legally relevant. Instances of such exclusion would be those,
which fall under the hearsay rule and the further rule, which requires that no
transaction between the two parties operate to the disadvantage of a third
party. Under the latter would fall (a) statements made behind the back of a
person against whom they are sought to be used as evidence and (b) similar
unconnected transactions as well as opinions of third parties.
There is a special provision concerning motive, preparation and
conduct, motive being obviously different from intention. Any fact is
relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact. Correspondingly the conduct of any party or of any
agent of any party to any suit or proceeding, in reference to such suit or
proceeding, or in reference to any fact in issue therein or relevant thereto,
and the conduct of any person an offence against whom is the subject of
any proceeding, is relevant if such conduct influences or is influenced by any
fact in issue or relevant fact, and whether it was previous or subsequent
thereto. "Conduct" does not include statements, unless those statements
accompany and explain acts other than statements; but when the conduct of
any person is relevant any statement made to him or in his presence and
hearing, which affects such conduct, is relevant. 27 If the person affected is
not available as a witness, then if his statement amounts to a complaint it
would be relevant by itself. If it is a mere statement it would not be relevant
unless it falls under section 32 (1). Even silence would be relevant if it
operates as consent in a situation where there is a duty to speak. 28 Such
statement could also be in writing and need not necessarily be oral. 29
Any complaint is made relevant in view that no person is likely to
complain unless there is some basis of truth. There is a distinction here
25. S. 9.
26. S. 11.
27. S. 8.
28. Illustration (g) to S. 32.
29. Illustration (h) to S. 32.
LAW OF EVIDENCE 265
between the English and the Indian law for under the former only
complaints with respect to sexual offences would be relevant.
Provision is made for letting in evidence of facts showing the existence
of any state of mind, such as intention, knowledge, good faith, negligence,
rashness, ill-will or good-will towards any particular person, or showing the
existence of any state or body or bodily feeling, when the existence of any
such state of mind or body or bodily feeling is in issue. But such facts are
limited to those, which show the state of mind existing not generally but
with reference to the particular matter in question. For instance, when the
question is whether A fired a gun at B with intention to kill him or merely
accidentally, evidence may be given of any similar transaction, e.g., that he
had shot at B previously. Though the commission of a previous offence by
the accused is not generally relevant the previous conviction becomes
relevant when the previous commission by the accused of an offence is itself
a relevant fact. 30 Similarly in deciding whether an act was intentional or
accidental or done with a particular knowledge or intention, the fact that
such act formed part of a series of a similar occurrences, in each of which
the person doing the act was concerned, is relevant. 31
Statements, written or verbal, of relevant facts made by a person who is
dead, are themselves relevant in the following cases. 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
w h i c h the cause of that person's death comes into question. The
circumstances of the transaction may not necessarily be confined to those
immediately preceding the death of that person. They may, for instance, take
in even letters written over a period of a few months or years showing
strained relationship between him and the deceased person. The statement
of the deceased person made after the commission of the offence would be
relevant in any proceeding, civil or criminal, where the cause of death is to
be decided. 3 2 This rule is different from that in England where such
statement is relevant only in criminal cases. While in England there is a
further qualification, namely, that a dying declaration to be relevant must
have been under expectation of death, there is no such limitation in India. It
is confined to the cause of the death of the person making it and not of any
one else. An interesting illustration of this principle is Ratan Gond v. State of
Eihar'^ where in a case of murder the statement of the victim's sister (who
died subsequently but before the committal proceedings) as a result of
which the victim's dead body was recovered was held not to fall under
30. S. 14.
31. S. 15.
32. S. 32 (1).
33. (1959) SCR 1336.
section 32 (1) of the Evidence Act. If the sister had lived and had deposed
before the court the statement which she had made could be used to
corroborate her statement before the court. 34 Similarly, any statement made
by a deceased person, which is not connected with the cause of his death
will not fall under section 32 (1). Where the dying declaration concerning
the cause of death or circumstances resulting in his death was made by a
person while he was in the hospital after receipt of two gunshot wounds and
he died 20 days after admission into the hospital, and the death was not
connected with the injuries received during the occurrence, the same was
not held to fall under section 32 (l). 35
A dying declaration has to be complete; if it is incomplete it would not
be considered. It need not necessarily be recorded in the language spoken by
the deceased. In Bakshish Singh v. The State of Punjab36 the deceased spoke in
Punjabi but the record was made in Urdu, the language of the subordinate
courts and that employed by the police. The argument that the same should
not be taken into consideration since it was not recorded in the language
spoken by the deceased was repelled by the Supreme Court.
If the dying declaration is reliable there could be conviction for murder
even w i t h o u t any corroboration. 3 7 Observations to the contrary in
Madhoprasad v. State ο/Λί.Ρ.38 that it is not safe to convict on the basis of
dying declaration without further corroboration since it is not made on oath
or subject to cross-examination seem to be obiterP
Not only are such statements falling under section 32 (1) of the Act
admissible by way of exception to the hearsay rule but even statements
made by one conspirator to another are admissible on the basis of the
principle of agency, when two or more persons agree to do or cause to be
done either an illegal act or an act which is not illegal by illegal means and
reasonable grounds exist for believing that the accused had entered into
such a conspiracy; but a statement made by one co-conspirator would be
relevant against another if it was made in furtherance of the conspiracy. 40
The limits of admissibility of such evidence have been pointed out in a
number of decisions. The Judicial Committee of the Privy Council held in
Mirza Akbar v. The King Emperor*1 that evidence of acts of co-conspirators,
outside the period of the conspiracy as mentioned in the charge could not
be received against the conspirators but the conduct in general of each
34. S. 157.
35. Moti Singh v. State ofU.P. AIR 1964 SC 900.
36. (1958) SCR 409.
37. KushalRao v. State ofBombay (1958) SCR 552.
38. AIR 1953 SC 420.
39. See Tapinder Singh v. State ofPunjab AIR 1970 SC 1566.
40. S. 10.
41. (1940) 67 I. A. 336.
LAW OF EVIDENCE 267
individual co-conspirator including his acts, writings and statements would

be evidence against himself. The scope of section 10 was explained by the
Supreme Court in Sardar Sardul Singh Caveeshar v. State o/Maharastra42 in the
following manner:
1. There shall be prima facie evidence affording a reasonable ground for
a court to believe that two or more persons are members of a
conspiracy;
2. When such evidence exists anything said, done or written by any
one of them in reference to the common intention will be evidence
against the others;
3. Anything said, done or written by him should have been said, done
or written by him after the intention was formed by any one of
them;
4. It would also be relevant for the said purpose against another who
entered the conspiracy whether it was said, done or written before
he entered the conspiracy or after he left it; and
5. It can only be used against a conspirator and not in his favour.
As a result of this interpretation, despite the earlier rulings under section
10, the law in India seems to be wider than in England.
The provisions concerning relevancy in two specific situations may also
be adverted to in this context. In suits in which damages are claimed, any
fact, which will enable the court to determine the amount of damages,
which ought to be awarded is relevant. 43 This special provision has been
made despite such evidence being permissible even under section 5. When
the question falls to be considered about the existence of any right or
custom the following facts are relevant:
(a) Any transaction by which the right or custom in question was
created, claimed, modified, recognized, asserted or denied, or which
was inconsistent with its existence;
(b) Particular instances in which the right or custom was claimed,
recognized or exercised, or in which its exercise was disputed,
asserted or departed from. 44
The illustration to section 13 shows that deeds are transactions. The
word "transaction" means that something has been concluded between two
or more persons.
In this context we may also notice the provisions concerning previous
judgments. The existence of any judgment, order or decree, which by law
42. (1964) 2 SCR 378.

43. S. 12.
44. S. 13.
prevents any court from taking cognizance of a suit or holding a trial, is a

relevant fact when the question is whether the suit could be taken
cognizance of or the trial held. 45 A decision of a competent court between
the same parties or their representatives is made res judicata under section 11
of the Code of Civil Procedure. A judgment could operate as res judicata in
certain situations even apart from what has been strictly laid down by
section 11 of the Code of Civil Procedure. A final judgment, order, or
decree of a competent court in exercise of probate, matrimonial, admiralty
or insolvency jurisdiction, which confers upon or takes away from any
person any legal character, or which declares any person to be entitled to
any such character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any such
legal character or the title of any such person to any such thing, is relevant.
These judgments are in rem and the judgment, order or decree would be
conclusive proof of the legal character conferred or taken away. 46 Not all
judgmems-especially those relating to status, adoption and legitimacy-are in
rem; judgments in rem are only those specifically enumerated.47 The operation
of such judgments, as conclusive proof, is confined to the time at which
such legal character was confined or taken away or when a person was
entitled to such legal character or specified thing absolutely. Judgments may
also be relevant if they relate to matters of public nature relevant to the
enquiry, but with this difference that they are not conclusive proof of that
which they state.48 There is a specific provision 49 that judgments other than
those mentioned in sections 40, 41 and 42, are irrelevant; but these
judgments would be relevant if the existence of such judgment is itself a fact
in issue or made relevant by some other provision by the Act. The
conclusion in the judgment or the existence of the judgment would be
relevant if it comes under any section of the Act relating to relevancy, under
section 13, or as motive under section 8.50 If the judgment of a civil court
falls under section 41 or section 42 it would be relevant in a criminal case
also; but if it does not fall under either of those sections, section 40 would
not apply and would not, therefore, be relevant since section 40 is founded
upon section 11 of the Code of Civil Procedure and section 403 of the Code
of Criminal Procedure. The judgment of a civil court is not made relevant,
under either of those sections, in a criminal court, but the conclusion in a
judgment would be relevant under the second part of section 43. So also a
judgment of a criminal court cannot come under section 41 and 42; under
45. S. 40.
46. S. 41.
47. S. 41.
48. S. 42.
49. S. 43.
50. GovindNaram Singh v.Shamlal (1931) 58 LA. 125.
LAW OF EVIDENCE 269
section 40 a judgment of a criminal court can only be relevant in another

court, but not in a civil court, though the existence of a judgment of the
criminal court may become relevant under section 43. There is a general
provision 51 which enables any party to a suit or other proceeding to show
that any judgment which is relevant under sections 40 to 42, and relied upon
by the adverse party was not delivered by a court of competent jurisdiction
or that it was obtained by fraud or collusion.
Opinion of third parties
Opinions of third parties have also been made relevant in certain cases.
When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to identify of handwriting of finder impressions, the
opinions upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting or finger
impressions, are relevant facts. 52 This provision is characterized as one
relating to testimony of persons called experts. The subject matter of an
opinion usually involves skill in a particular trade or profession or special
knowledge of a particular science or art. In some circumstances, even the
'belief of a witness may be accepted when based on facts within his own
knowledge. T h e opinions of witnesses possessing peculiar skill are
admissible whenever subject matter is such that inexperienced persons are
unlikely to prove capable of forming a correct judgment without such
assistance. However, where the expert evidence is obscure and oscillating, it
is not proper to discredit the direct testimony of the eyewitness on such
uncertain evidence. Facts not otherwise relevant are relevant if they support
or are inconsistent with the opinions of experts, when such opinion is
relevant. 53 When the court has to form an opinion as to the persons by
whom any document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is supposed to be
written or signed is relevant fact. A person is said to be acquainted with the
handwriting of another when he has seen that person write, or when he has
received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that
person, or when, in the ordinary course of business, documents purporting
to be written by that person, have been habitually submitted to him. 54 A
court may not safely record a finding about a person's handwriting in a
certain document on the basis of expert testimony alone. It can itself
compare the writing in order to appreciate the evidence produced before it
51. S. 44.
52. S. 45.
53. S. 46.
54. S. 47.
in that record. 55 It is not essential either that the handwriting expert be

examined to prove or disprove the disputed writing. 56
When the court has to form an opinion as to the existence of any
general custom or right, the opinions, as to the existence of such custom or
right, of persons who would be likely to know of its existence if it existed,
are relevant. 57 Section 13, as already noticed, shown what kinds of facts
could be relevant to prove the existence of any right or custom. 5 8 In
addition any statement that 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, could be taken into account.
When the court has to form an opinion as to the usages and tenets of
any body of men or family, the constitution and government of any religious
or charitable foundation, or the meaning of words or terms used in
particular districts or by particular classes of people, the opinions of persons
having special means of knowledge thereof, are relevant facts.59 There is a
special provision making the opinion expressed by conduct, concerning
relationship relevant when the court has to form an opinion as to the
existence of such relationship, of any person who as a member of the family
or otherwise, has special means of knowledge on the subject. But such
opinion shall not be sufficient to prove a marriage in proceedings under the
Indian Divorce Act 1869, or in prosecutions under sections 494 to 498 of
the Indian Penal Code. 60 Certain conditions for proving relationship are
also laid down: 6 1 when the statement relates to the existence of any
relationship the person making the statement had special means of
knowledge, and the statement was made before the question in dispute was
raised; when the statement relates to the existence of any relationship
between person deceased, it must have been made before the question in
dispute was raised, 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
u p o n any t o m b s t o n e , family portrait or other thing on which such
statements are usually made.
The opinion that is contemplated is not mere gossip or hearsay; it
means judgment or belief, that is, a belief or a conviction resulting from
what one thinks on a particular question. In order to admit evidence under
55. S. 73.
56. See Gujarat v. Chotta LalPatni (1967) 1 SCR 429.
57. S. 48.
58. S. 32 (4).
59. S. 49.
60. S. 50.
61. S. 32 (5) and (6).
LAW OF EVIDENCE 271
this section, three conditions must be fulfilled: (i) the person must be
proved to have special means of knowledge; (ii) the opinion alone is relevant
and the opinion as expressed by the conduct only is relevant; (iii) the
opinion which is relevant must be the one as to the existence of the
relationship. The section makes only 'opinion' as relevant and enjoins how
this opinion itself is to be proved. It is only opinion as expressed by
conduct, which is made relevant. The offered item of evidence is the
'conduct' but what is made admissible in evidence is the opinion. 62 In order
to enable the court to infer the opinion the conduct must be such as cannot
be supposed to have been willed without the inner existence of the
opinion. 63
Whenever the opinion of any living person is relevant, the grounds on
which such opinion is based are also relevant.64
Character
The question when the character of a person becomes relevant is one of

some nicety and has been provided by sections 52 to 55; sections 53 and 54
deal with the character of the accused in criminal cases while the other two
sections are concerned with civil cases. The character of witnesses, as
distinct from parties, to a proceeding has been separately dealt with under
sections 146 (3) and 155(4). Character includes b o t h reputation and
disposition; but except as provided in section 54, evidence may be given
only of general reputation or disposition. Reputation is not based upon
personal knowledge of the person but is the estimation in which the public
holds him. Disposition can, however, be spoken to only by those having
personal knowledge.
In civil cases, the character of any person concerned being such as to
render probable or improbable any conduct imputed to him is irrelevant
except in so far as such character appears from facts otherwise relevant. 65
But in civil cases the character of any person such as to affect the amount of
damages, which he ought to receive, is relevant.66 The general exclusion of
character evidence is based on the grounds of public policy and fairness, as
it would prejudice the parties by raking up the whole of their careers. The
business of the court is to try the case and not the man. The section refers
to the character of parties to the suit and not the witnesses, which is
relevant and affects credit and trustworthiness of his evidence.
62. Field's 'Commentary on Law ofEvidence' revised by Gopal S. Chaturvedi, Delhi Law
House, 12th ed., Vol. 3 p. 2659.
63. Dolgobindas Pancha v. Naunal Cbaran (1959) Supp. 2 SCR 814.
64. S. 51.
65. S. 52.
66. S. 55.
In criminal proceedings the fact that the accused is of a good character

is relevant.67 This is based upon the principle that the good character may
afford a presumption against the commission of crime. But bad character of
an accused is irrelevant, unless evidence has been given that he has good
character.68 But the last requirement would not apply to cases in which the
bad character of a person is itself a fact in issue or previous conviction is
itself relevant as evidence of bad character.
Witnesses to character may be cross-examined and re-examined. 69 In
most cases, witnesses to character not only 'may' but 'must' be cross-
examined. 70 The evidence of a previous conviction, as already noticed,
could be relevant.71 Evidence as to previous conviction is made relevant by
section 75 of the Indian Penal Code in cases where the accused is liable to
enhanced punishment. It is only conviction and not acquittal, which is
relevant. However the evidence that show or tend to show that the
defendant was in fact guilty of an offence of which he had earlier been
acquitted, may be relevant.72 In other words, there is no distinction between
evidence that showed that the defendant was guilty of an earlier offence of
which he had been acquitted and evidence which merely tended to show
such guilt or which appeared to relate to one distinct issue rather than to the
issue of guilt of such an offence.73
There is a distinction between the Indian and the English law in this
regard; while character in India would include both general reputation and
general deposition, under the English law character means only general
reputation. This distinction was highlighted by R. v. Rowton7* where the
following answer of a prosecution witness was held inadmissible where the
accused was tried for indecent assault and he had given evidence of his good
character:
I know nothing of the neighborhood's opinion, because I was
only a boy at school when I knew him, but my own opinion, and
the opinion of my brothers, who were also pupils of his, is, that
his character is that of a man capable of the grossest indecency
and the most flagrant immorality.
Admissions
In any trial or proceeding no fact need be proved when the parties thereto
67. S. 53.
68. S. 54.
69. S. 140.
70. Ratanlal & Dhirajlal, Law ofEvidence, Wadhwa and Company, Nagpur, 2003, p. 754.
71. S. 14, Explanation 2.
72. R.vZ (2000) 3 All ER 385.
73. Supra note 70 at 133.
74. (1865) 10 Cox CC 25.
LAW OF EVIDENCE 273
or their agents agree to admit it at the hearing or much before the hearing
they agree to admit it in writing or in their hand, or according to any rule of
pleading in force at the time, but the court may in its discretion require any
fact admitted in an affidavit to be proved otherwise than by such admission.
There are also detailed provisions in the Act concerning what admissions
could be proved as a fact.
An 'admission', is a statement, oral or documentary, which suggests any
inference as to any fact in issue or relevant fact, and which is made by any of
the persons, and under circumstances which are specifically mentioned in
the Act. 75 Any admission in the pleadings of an earlier suit would be an
admission under section 17. In other words, the Act makes no distinction
between admission by a party in a pleading and any other admission.76 The
admissions spoken of in this context are those either oral or written but not
any admission by conduct, which will purely depends upon the terms of
section 8 and its explanations.
The statements made by a party to a proceeding or by an agent to any
such party, whom the court regards, under the circumstances of the case, as
expressly or impliedly authorized by him to make them, are admissions.
Statements made by parties to suits, suing or sued in a representative
character, are not admissions, unless they were made while they party
making them held that character. The statements must be made by those
who have any proprietary or pecuniary interest in the subject-matter of the
proceeding, and who make the statement in their character of persons so
interested, or must be of those from whom the parties to the suit have
derived their interest in the subject-matter of the suit, provided they were
made during the continuance of the interest of the persons making the
statements. 77 Statements made by persons whose position or liability it is
necessary to prove as against any party to the suit are admissions, if such
statements would be relevant as against such persons in relation to such
position or Uabihty in a suit brought by or against them and if they are made
whilst the person making them, occupies such position or is subject to such
liability.78 Even statements made by persons to whom a party to the suit has
expressly referred for information with reference to a matter in dispute are
admissions. 79
An admission is the best evidence against the party making it.
Admissions, however, have to be clear before they can be relied upon. For
instance, in a suit for eviction, vague allegations about the ownership of the
premises by the tenant could not be treated as his admission about the
75. S. 17.
76. Basant Singh v.Janki Singh (1967) 1 SCR 1.
77. S. 18.
78. S. 19.
79. S. 20.
contract of tenancy. 80 It has to be proved to be the statement of the person

who made it. 81 Admissions can also be shown to have been wrongly made;
but in the absence of such explanation would be conclusive. 82 The weight
and effect of admission vary depending upon the facts and circumstances of
each case. Admission, though, is not conclusive proof of the matter
admitted, 83 shifts the onus to the maker on the principle that what a party
himself admits to be true may be reasonably presumed to be true so that
until the presumption is rebutted the fact admitted must be taken to be
true. 84
If the admission is an oral statement, which is denied by the person
making it, it can be proved through some one who heard the statement
being made. When a person gives evidence about something he heard, it is
direct evidence of what that person heard since it is a fact, which is capable
of being heard. But evidence of such an admission is not given to prove the
fact admitted, but only to show that a person concerned made such an
admission.This may have the indirect effect of contradicting that witness
and showing him to be an unreliable person when he denied before the
court the fact of his having made such an admission.
It is immaterial to whom an admission is made.85 As admission made to
a stranger is relevant. Admission may be implied from the acquiescence of a
party. 86 The judicial admissions are fully binding upon the party that makes
them. They by themselves can be the foundation of the rights of the parties.
On the other hand, evidentiary admissions, which are receivable at the trial
as evidence, are by themselves not conclusive.
The following limitations have been imposed upon admissions, which
are relevant. They cannot be proved by or on behalf of the person who
makes them or by his representative-in-interest, except in the following
cases:
An admission may be proved by or on behalf of the person making it
(1) When it is of such a nature that if the person making it were dead, it
would be relevant as between third persons; 87
(2) When it consists of a statement of the existence of any state of
mind or body, relevant or in issue, made at or about the time when
such state of mind or body existed, and is accompanied by conduct
rendering its falsehood improbable;
80. AnuragMisra v. Ravindra Singh AIR 1994 All 174.
81. KG. RamachandraRao v. Master Srikantha AIR 1997 Kant. 347.
82. Chandra Kunwarv.ChaudhriNarpat Singh and othersLLIR. 29 All. 184.
83. Bharat Singh v. Bhagirathi (1966) 1 SCR 604.
84. Thirujohn v. Returning Officer AIR 1977 SC 1724.
85. Rakesh Wadhawan v.Jagdamhha Industrial Corpon. AIR 2002 SC 2004.
86. Kehar Singh v. State (Delhi Admn.) (1998) 3 SCC 609.
87. S. 32 (4).
LAW OF EVIDENCE 275
(3) If it is relevant otherwise than as an admission. 88

But oral admissions as to the contents of a document are not relevant,
unless and until the party proposing to prove them shows that he is entitled
to give secondary evidence of the contents of such document under the
provisions of the Act, or unless the genuineness of a document, which is
produced, is in question. The English law on this particular aspect is
different because oral admissions are receivable to prove contents of a
document. Taylor has criticized the English rule as unsound. 89 In civil cases
no admissions is relevant, if it is made either upon an express condition that
evidence of it is not to be given, or in circumstances from which the court
can infer that the parties agreed that evidence of it should not be given. 90
But this would not exempt any barrister, pleader, attorney or vakil from
giving evidence on any matter, which he may be compelled to give.91 With
respect to the electronic record, oral evidence as to the contents are not
relevant unless the genuiness of the electronic record produced is in
question. 92
Confessions
Confessions by persons accused of a criminal offence are either those which

may be rejected as irrelevant 9 3 or those which court will take into
account. 94 H o w a confession is different from an admission was explained
by the Judicial Committee of the Privy Council in PakaU Narayanaswami v.
Emperor.95 The confusion in this regard was said to be due to the definition
of confession in article 22 of Stephen's Digest of the Law of Evidence as an
admission made at any time by a person charged with crime stating or
suggesting the inference that he committed that crime. It was pointed out
that this meaning was not contained in the Evidence Act and hence it would
not be consistent with the natural use of language of the Act to construe
confession as a statement by an accused 'suggesting the inference that he
committed' the crime. "No statement that contains self-exculpatory matter
can amount to a confession, if the exculpatory statement is of some fact,
which if t r u e , would negative the offence alleged to be confessed".
Moreover, a confession must either admit, in terms, the offence, or at any
rate substantially all the facts, which constitute the offence. An admission of
a gravely incriminating fact, even a conclusively incriminating fact, is not of
88. S. 21.
89. A Treatise on the Law ofEvidence, articles 411 and 412.
90. S. 22.
91. S. 126.
92. S. 22A, inserted by the Information Technology Act, 2000.
93. S. 24 to 26.
94. S. 27 to 30.
95. (1939) 66 I. A. 66.
itself a confession, e.g., an admission that the accused is the owner and was
m recent possession of the knife or revolver which caused the death with no
explanation of any other man's possession. This decision was followed by
the Supreme Court mPalvinderKaur v. The State of Punjab,96 which observed
as follows:
A confession must either admit in terms the offence, or at any
rate substantially all the facts, which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively
incriminating fact, is not of itself a confession. Ά statement that
contains self-exculpatory matter cannot amount to a confession,
if the exculpatory statement is to some fact, which if true, would
negative the offence alleged to be confessed.
Thus while all confessions are admissions, the converse is not true.
Confessions are received in criminal cases upon the same principle on which
admissions are received in civil cases, namely, the presumption that a person
will not make an untrue statement against his own interest. Words used in
confession must be established by cogent evidence before it can be accepted
in evidence. Confessions, even like admissions, must be taken or rejected as
a whole. 97 While an admission need not be voluntary to be relevant (though
it may affect its weight), a confession must be voluntary in order to be
relevant. Deliberate and voluntary confessions are among the most effective
proofs in law.98 A relevant admission could be made by an agent or even by
a stranger but the person himself must make a confession. Confession,
however, cannot be made the sole ground of conviction. It may be used as
a corroborative piece of evidence.
To exclude a confession it is not necessary to prove that it was the
result of inducement, 9 9 threat or promise; any confession made by an
accused person is irrelevant in criminal proceedings if the making of
confession appears to the court to have been caused by inducement, threat
or promise, having reference to the charge against the accused person,
proceeding from a person in authority and sufficient, in the opinion of the
court, to give the accused person grounds, which would appear to him
reasonable, for supposing that by making it he would gain any advantage or
96. 1953 SCR 94. Also see Suresh Bbudarmal Kakni v. State ofMaharashtra AIR 1998 SC
3258; Valiyavati Asbrafv. State ofKerala 1994 Cr LJ 555 (Ker.) and Shankar v. State of
T.N. 1994 Cri. LJ 3071.
97. State of T.N. v. Kutty AIR 2001 SC 2778.
98. Emperor v. Narayen (1907) 9 Bom LR 787. Also see State ofU.P. v. M. K. Anthony AIR
1985 SC 48; Pyara Singh v. State ofPunjab AIR 1977 SC 2274; Kisbore Chand v. State of
H.P. AIR 1990 SC 2140; Manjit Singh v. State of Punjab 1991 Cr LJ 77 (P&H)and
Balkar Singh v. State ofU.P. 1991 Cr. LJ (All).
99. The confession consequent upon the assurance by police officer of release or pardon
would be vitiated on the ground of inducement.
LAW OF EVIDENCE 277
avoid any evil of a temporal nature in reference to the proceedings against

him. 10° It is for the accused to create such doubt in the mind of the court
and not for the prosecution to prove that it was voluntarily made. If such a
confession is, however, made after the impression caused by any such
inducement, threat or promise has, in the opinion of the court, been fully
removed, it is relevant. 101
Confessions can be judicial 102 and extra-judicial. 103 Extra-judicial
confession is like any other kind of evidence. It need not be independently
corroborated if found to be voluntary, reliable and trustworthy. The value,
however, of extra-judicial confession depends on the reliability of the
witness who comes forward to give evidence of it.104 The court should not
start with the presumption that extra-judicial confession is a weak type of
evidence. 105 The Supreme Court devised the two-prong test: that it should
be voluntary and should be true. 106 Conviction can be based on an extra-
judicial confession.107 But in cases of homicide and such other similar grave
offences, it would not be safe to convict a person on the confession alone
unless corroborated by other evidence. This is a rule of prudence rather
than of law.
An instance of extra-judicial confession is one made to the police
officer or in his custody. Confession made to a police officer shall not be
proved against a person accused of any offence. 108 This is because the
police are inherently suspect of employing coercion to obtain confession.
Therefore, the confession thus made or obtained is untrustworthy.
The question has often arisen as to who is a "police officer" within the
meaning of section 25. Custom officers under the Sea Customs Act, 1878
were held to be not police officers for the purposes of the section, because
they only act judicially in order to prevent smuggling of goods by imposing
penalties and they were themselves not charged with the duty of taking
action to prevent smuggling. 109 In spite of certain differences between the
Sea Customs Act, 1878 and the Customs Act, 1962 in that the officer acting
under the later Act had all the powers of an officer in charge of a police
100. S. 24.
101. S. 28.
102. Judicial confession means a confession made before a magistrate and recorded by
him.
103. Confessions made elsewhere than before a Magistrate or in Court.
104. Kanhu Majhi v. State 1998 Cri LJ 3686 (Mad).
105. Narayan Singh v. State ofM.P AIR 1985 SC 1678.
106. Shankaria v. State o/Rajasthan AIR 1978 SC 1248. Followed in Ganesh Prasad Singh v.
State ofOrissa 1987 Cr LJ 1345 and State ofT.N. v. Kutty AIR 2001 SC 2778.
107. Ram Khilari v. State o/Rajasthan AIR 1999 SC 1002.
108. S. 25.
109. State ofPunjabv. Barkat Ram (1962) 3 SCR 338.
station, but did not have the power to file a charge-sheet or lodge a report
before a magistrate under section 173 of the Code of Criminal Procedure,
the customs officer under the later Act was held not to be a police officer.110
One test of a "police officer" was stated to be the power to submit a repon
under section 190 (1) (b) of the Code of Criminal Procedure. Under the
Customs Act, 1962 the customs authorities could only file a complaint under
section 190 (1) (a) of the Code like any other citizen, before a magistrate and
could not submit a report to the magistrate like any police officer in charge
of a police station under section 190 (1) (b).111 Thus, the statement recorded
by Custom Officers under s. 108 of the Customs Act 1962 is admissible in
evidence. 112
If a confession is not made in the presence of a police officer but
merely addressed to him without his being made aware of such a confession
contained in a letter, which was addressed to him, it would not come within
the meaning of section 25. 113 For instance, where the accused had written a
letter addressed to the police and left it near the body of the person who
was murdered by him with the intention of the same being seen by a police
officer. Any admission made by a person who is not at the time of making it
an accused could be considered. In Faddi v. State ofMadhya Pradesh114 the
accused made a first information report implicating certain persons as the
murderers of his step-son. But on investigation the police charged the
accused with murder. The first information report given by the accused
contained admission by him of certain facts which had a bearing on the
question how and by whom the murder was committed and it was held
admissible under section 21 of the Act.
N o confession made by any person, while he is in the custody of a
police officer, unless it is made in the immediate presence of a magistrate,
shall be proved as against such person. 115 But this section is controlled by
section 164 of the Code of Criminal Procedure which prescribes a valid
procedure to ensure that the confession which a magistrate records from a
person accused of an offence charging him with the duty of satisfying
himself that the confession is made voluntarily but not owing to police
pressure.116 Confession made in the immediate presence of a magistrate and
recorded by him not in the manner provided by sec. 164 of Cr PC while the
accused was in police custody was not admissible.117
110. Ramea) Chandra Mehta v. State of West Bengal AIR 1970 SC 940.
111. Illyas v. Collector of Customs, Madras, Criminal Appeal No. 45 of 1967.
112. Gulam Hussain Shaikh Chougule v. 5. Reynolds AIR 2001 SC 2930.
113. Sita Ram v. State (1966) Supp SCR 265.
114. Faddi v. State ofMadhya Pradesh (1964) 6 SCR 312.
115. S. 26.
116. Nazir Ahmad v. Emperor 1936 Privy Council 253.
117. Tandra Ravi v. StateofAP2001 Cri LJ 4048 (AP).
LAW OF EVIDENCE 279
When any fact deposed to is discovered in consequence of information

received from a person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved. 118
Joint or simultaneous disclosures made by two or more is considered more
accurate and thus admissible. 119 Though the confession made by a person
while in the custody of a police officer is tainted, and is inadmissible for that
reason, if the truth of that information given by him is assured by the
discovery of a fact, it may be presumed to be untainted and is, therefore,
provable in so far as it distinctly relates to the fact thereby discovered.
However, the extent of information admissible must depend on the exact
nature of the fact discovered to which such information is required to
relate. 1 2 0 The meaning of this provision, which has been the subject of
many judicial decisions, has become further controlled by article 20 (3) of
the Constitution, which gives a constitutional protection to a person from
making any self-incriminating statement. Article 20 (3) only provides that no
person accused of any offence shall be compelled to be a witness against
himself; if there is compulsion the confession becomes irrelevant for that
reason alone. In State of Bombay v. Kathi Kalu Oghadm one of the items of
evidence against the person accused of murder was statement under section
27 leading to the discovery of firearms used for committing the crime. The
Supreme Court observed:
"If the self-incriminatory information has been given by an
accused person without any threat, that will be admissible in
evidence and that will not be hit by the provision of Article 20
(3) of the Constitution for the reason that there has been on
compulsion. It must, therefore, be held that the provision of
Section 27 of the Evidence Act are not within the prohibition
aforesaid, unless compulsion has been used in obtaining the
information".
The constitutional attack on section 27 was negatived by the Supreme
Court in State ofU.P. v. Deoman Upadhyay.122
"If Section 27 renders information admissible on the ground that
the discovery of a fact pursuant to a statement made by a person
in custody is a guarantee of the truth of the statement made by
him, and the Legislature has chosen to make on the ground an
118. S. 27.
119. State (N. C. T. ofDelhi) v. Navjot Sandhu alias Afsan Guru 2005 (6) SCALE 177.
120. Ramkishan Mithanlal Sharma v. State ofBombay AIR 1955 SC 104; Mahendra Mandal v.
State ofBihar 1991 Cr LJ 1030; State ofKarnataka v. David Rozano AIR 2002 SC 3272
and Krishna Mochi v. State ofBihar 2002 Cr. LJ 2645 (SC).
121. State ofBombay v. KathiKalu Oghad(l%2) 3 SCR 10.
122. State ofU.P. v. Deoman Upadhyay AIR 1960 SC 1125.
exception to the rule prohibiting proof of such statement, that

rule is not to be deemed unconstitutional...The principle of
admitting evidence of statements made by a person giving
information leading to the discovery of facts which may be used
in evidence against him is manifestly reasonable".
The Judicial Committee of the Privy Council, in Pulukuri Kotayya v. King
Emperor123 overruled the view held by a Full Bench decision of the Madras
High Court in In reAthappa Goundan.12* The Madras High Court had held
that the statement by an accused person who gave information to the police
as to where he hid the knife would, on the knife being recovered, entitle the
court to receive including the statement "with which I stabbed". The
Judicial Committee of the Privy Council stated:
"It is fallacious to treat the fact 'discovered" within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge
of the accused as to this, and the information given must relate
distinctly to this fact."
Information as to past user, or the past history, of the object produced
is not related to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that he would produce the
knife concealed in the roof of his house did not lead to the discovery of a
knife since knives were discovered many years ago.
The words "with which I stabbed A" were held to be inadmissible since
they did not relate to the discovery of knife in the house of the informer.
The conduct of the accused person is relevant if such conduct influences or
is influenced by any fact in issue or relevant facts.125
Statements
Statements made by persons in the ordinary course of business are relevant.
Examples of the same are entries of memorandum made, books kept
in the ordinary course of business or in the discharge of professional
duty; acknowledgments written or signed for receipt of money, goods,
securities or property of any kind; documents used in commerce, written or
123. (1947) 74 Indian Appeals 65.

124. I.L.R. (1937) Madras 695. For a fuller discussion vide H. P. Administration v. Om
Prakash AIR 1972 SC 975. That information which does not distinctly connect with
the fact discovered or which merely explains distinctly connect with the fact
discovered or which merely explains the material thing discovered is not admissible;
evidence pertaining to the accused having taken the investigating officer and punches
and pointing out the object discovered may be taken into account as evident of
conduct under s. 8.
125. Peerappa v. State ofKarnataka 2005 (6) SCALE 358.
LAW OF EVIDENCE 281
signed.126 Also relevant are statements against the pecuniary or proprietary

interest of the person making it, or when the same would have exposed him
to a criminal prosecution or a suit for damages;127 statements made ante litem
motem mentioning the opinion of any such person, as to the existence of any
public right or custom or matter of public or general interest, or the
existence of which, if it existed, he would have been likely to be aware; 128
statements contained in any deed, will or other document asserting or
denying "anything inconsistent with its existence" of any transaction by
which the right or custom in question was created, claimed, modified,
recognized, asserted or denied;129 statements made by a number of persons
expressing feelings or impressions on their part relevant to the matter in
question. 130 In order to be relevant the above statements must be by those
who are dead or cannot be found; proof of death must be given before the
formal statements are admitted and there must be proof of diligent search
for that person who is alleged to be not available for being examined after
diligent search for that person. The person who formerly made the
statement might have since become incapable of giving evidence, which
disability should be established by competent medical testimony. If the
presence of that person making a statement could not be procured, as for
example, if he is in a foreign country, the statement of such a person could
also be admitted as relevant. 131
The evidence of witnesses recorded in a prior judicial proceeding or by
any person authorized by law to take evidence is admissible in a subsequent
proceeding, or in a later stage of the same proceeding, for establishing the
truth of the facts which are contained in their statements 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 in the circumstances, the
court may consider unreasonable provided the following conditions are
present:
(a) t h e proceeding was between the same parties or t h e i r
representatives-in-interest;
(b) the adverse party had the right and opportunity of cross-examining
them;
(c) the questions in issue are substantially the same in b o t h the
proceedings. 132
126. Ss. 32 (2), 34 and 35.

127. S. 32(3).
128. S. 32(4).
129. Ss. 32 (7) and 13 (a).
130. S. 32(8).
131. S. 32(1).
132. S.33.
While proof of these conditions precedent to the admissibility of such

evidence could be dispensed with in civil cases there should be strict proof
in criminal cases. 133 The Code of Criminal Procedure provides for the
recording of evidence in the absence of the accused when he is absconding
and the same being used against him when the accused is subsequently
arrested. This is on the ground that if such evidence is not recorded when
the witness are available it may be lost subsequently when the accused is
arrested. This provision134 is a statutory exception to what the Evidence Act
provides.
On the same footing certain statements made in special circumstances
are also relevant. One instance would be entries in books of account if they
are kept in the regular course of business and if they are kept in the regular
course of business and if they refer to a matter in issue before the court, but
such statements shall not alone be sufficient evidence to charge any person
with liability.135 The absence of such an entry would not be relevant as such
except facts which support or rebut an inference. 136 Even if the person
making an entry is not available as a witness for any of the reasons already
noticed 137 the entry would be still relevant and may be sufficient to charge
any person with liability. If, however, the person making an entry is available
as a witness it will be relevant under section 34, but with this difference that
its sufficiency would depend on whether it is being used to charge a person
with liability for any other purpose. Certified copies of relevant extracts
under the Banker's Books Evidence Act, 1891 could be received in evidence
to prove the entries therein, but in view of section 34 the person concerned
could not be saddled with liability for any sum stated to have been advanced
without some independent evidence to show that the advance had been
actually made. 138 There is need139 for some other evidence apart from the
presence or absence of entries in the books of account.
Entries made in public record in performance of official duty or of a
duty specially enjoined by law would become relevant if they state a fact in
issue or relevant fact. Instances of such official registers would be registers
of birth, deaths, marriages, eic.140 Judgments of court, however, do not fall
under this provision for they are separately provided for. 141 Also relevant
are statements concerning facts in issue or relevant facts, made in published
133. Chainchal Singh v. King Emperor (1945) 72IA 270.

134. The Code of Criminal Procedure, s. 512.
135. S. 34.
136. Under ss. 9 and 11.
137. Supra note 99.
138. ChandradbarGostvamiv. Gauhati Bank (1967)1 SCR 898.
139. State ofAndhra Pradesh v. Cheemalapati Ganesbwara Rao (1964) 3 SCC 229.
140. Ss. 34 and 35.
141. Ss. 43 and 44.
LAW OF EVIDENCE 283
maps and charts generally offered for public sale or those made under the
authority of the central or state government, 142 facts of a public nature
stated in Acts and Notifications made by an Act of Parliament in the U.K.
or by a central or state Act appearing in an official gazette or in any printed
paper purporting to be the London Gazette or the government gazette of
any d o m i n i o n , colony or possession of Her Majesty in England, 1 4 3
statements of law contained in a book purporting to be printed or published
under the authority of government of the concerned country or in a book
purporting to be a report of the ruling of the court of such countries. 144 If
the statement sought to be proved is part of a long statement or conversion
or part of an isolated document or is connected with the series of letters or
papers, evidence may be given only of that part which the court considers is
necessary for full understanding of the nature and effect of the statement
and the circumstances under which it was made. 145
Proof
Proof may be either oral or documentary. All facts, except the contents of
documents or electronic records, 146 may be proved by oral evidence. 147
Oral evidence, if worthy of credit, is sufficient without documentary
evidence to prove a fact or title. 148 For instance, the oral evidence given by
investigation officer, who recovered the dead body from the well, could not
be disbelieved unless there was evidence that he had a motive to create false
evidence. 149 Oral evidence must in all cases be direct; if it refers to a fact
which could be heard, it must be the evidence of one who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any
other manner, it must be by one who says he perceived it by that sense or in
that manner; if it refers to an opinion or to the grounds on which that
opinion is held it must be the evidence of a person who holds that opinion
on those grounds. This section excludes hearsay oral evidence or opinions
given at second-hand, 150 whether of the contents of a document or of the
language of a third person, who is not connected by responsible testimony
with the party against whom it is offered, is to be rejected. 151 There is,
however, a clear distinction between the factum and truth of a statement. A
142. S. 36.
143. S. 37.
144. S. 38.
145. S. 39.
146. Substituted by the Information Technology Act, 2002.
147. S. 59.
148. P. Ram Ready v. Land Acquisition Officer (1995) 2 SCC 305.
149. Radba Kant Yadav v. State ofjharkband 2003 Cri LJ NOC 13 (piar).
150. See Shard Birdichand Sarda v. State ofMaharashtra AIR 1984 SC 1622; Muni Lai Gupta
v. State 1988 Cr LJ 627 p e l ) and Satish Chandra v. State of UP AIR 1986 SC 313.
151. Shard Birdichand Sarda v. State ofMaharashtra AIR 1984 SC 1622.
statement made to a witness by a person who is not himself called as witness

may or may not be hearsay. It is hearsay and inadmissible when the object of
the evidence is to establish what is contained in the statement; it is not
hearsay but would be admissible when it is proposed to establish not the
truth of the statement, but the fact it was made. 152 Similarly, computer
records of any hearsay evidence will remain hearsay as held in England. 153
The reason is that if it is otherwise, all hearsay will become admissible
provided it has been entered into a computer. Where a document is "real
evidence", it will remain relevant when produced by a computer, e.g., Bank
statements.
Where there is documentary evidence available, oral evidence is not
entitled to any weight.154 The contents of documents may be proved either
by primary or secondary evidence. 155 Primary evidence is given first and
secondary evidence is to be given in the absence of the better evidence.
Primary evidence means the document itself, which is produced for the
inspection of the court. Where a document is required to be registered, it is
admissible in evidence even though unregistered. 156 When it is in several
parts each part is primary evidence of the document; when it is executed in
counterparts, each counterpart is executed by one or more of the parties,
each counterpart is primary evidence as against the parties executing it.
Where a number of documents are all made by one uniform process
(printing, lithography, photography, etc.), each is primary evidence of the
contents of the rest; but not where they are all copies of the same. 157 A
police station diary contained duplicate pages. A carbon copy is prepared by
the same process, by which the first copy was prepared. Each was held to be
the primary evidence of the contents of the rest.158 The recent development
is the acceptance of video evidence, which is no more confined to limited
set of circumstances such as pressing need where a witness is too ill to
attend etc.
What is secondary evidence has been mentioned in detail. 159 What
conditions have to be complied with before letting in secondary evidence
have also been provided for. 160 Except in cases specifically provided for
152. Subramanian v. Public Prosecutor (1956) 1WLR 956. This decision of Privy Council
was approved by the Supreme Court in Balram Prasad Agarwal v. State ofBihar AIR
1997 SC 1830.
153. R. v. Minors (1989) 2 All ER 208.
154. Murarka Properties P. Ltd. v. Beharilal Murarka AIR 1978 SC 300.
155. S. 61.
156. Pumabashi Mishra v. Raj Kumari Mishra AIR 1995 Ori 284.
157. S. 62.
158. Rajesh Rai v. State ofSikkim 2002 Cri LJ 1385 (Sik).
159. S. 63.
160. Ss. 65 and 66.
LAW OF EVIDENCE 285
documents must be proved by primary evidence.161

If a document is alleged to be signed or is written in whole or in part by
any person, the signature or the handwriting of so much of the document as
is alleged to be in that person's handwriting must be proved to be in his
handwriting; in other words, there must be specific evidence that the
signature or handwriting purporting to be that of the executant is in the
handwriting of the executant. 162
N o particular number of witnesses in any case will be required for proof
of fact,163 but generally, especially, in criminal cases corroboration is usually
expected and there is some hesitancy in the matter acting on the sole
testimony of a witness except when the court is assured about the complete
reliability of such evidence. 164 An accomplice is a competent witness but
corroboration is usually expected. However, a conviction obtained on the
basis of uncorroborated testimony of a witness is not illegal.165 Despite the
above rule of law there is, by and large, a rule of prudence that the evidence
of an accomplice is unworthy of credit unless he is corroborated in material
particulars; one accomplice, however, cannot c o r r o b o r a t e a n o t h e r
accomplice.
Witnesses used as decoys or to trap a person to committing a crime are
not accomplices and their evidence could be acted upon if they are reliable.
In o t h e r w o r d s , t h e i r evidence cannot be rejected for want of
corroboration. 166 An approver to whom pardon has been tendered should
pass through the twin tests of reliability (common to all witnesses) and the
need for corroboration. 167
Regarding the competency of witness it is specifically provided 168 that
all persons shall be competent to testify unless they are prevented from
understanding the question put to them, or of giving rational answers to the
question, by reason of tender years, extreme old-age, disease, whether of
body or mind or of any other cause of the same kind. The Oaths Act
required that the judge must satisfy himself, before administering oath to a
witness of tender years as to whether he is in a position to understand the
significance óf an oath. It has been pointed out by the Supreme Court 1 6 9
161. S. 64.
162. S. 67.
163. S. 134.
164. Shankar Bhika Narsale v. State ofMaharastra 1972 AIR SC 1171. Evidence of sole
eyewitness in a case of murder was acted upon when it was corroborated by other
circumstantial evidence.
165. S. 133.
166. Deelpat Singh v. State 1969 AIR SC 17.
167. Piara Singh v. State ofPunjab 1969 AIR SC 961.
168. S. 118.
169. Rameshwar v. State ofRajasthan 1952 SCR 377.
where the accused was charged with the offence of rape of a girl of eight
years, omission to administer oath even to an adult bears only on the
credibility of the witness and not on his competency. The Oaths Act does
not deal with the competency of a witness but only subjects a person giving
false evidence to a criminal prosecution. A child witness may require
corroboration though it would not be illegal to base a conviction on the
testimony of such child witness alone. Before a child witness is examined
the court usually puts a few preliminary question to see its capacity of
understanding and knowledge of a difference between truth and falsehood.
A woman who is ravished is a competent witness. When the circumstances
warrant, the uncorroborated testimony of the prosecutrix in a rape case can
be legally acted upon. The religion of a witness is no bar to competency.
There is a specific provision regarding the reception of testimony of dumb
witness provided the manner in which the evidence given by the dumb
witness is made intelligible by writing or signs made in open court. 170
The order and manner of oral examination of witness is to be governed
by the Codes of Civil and Criminal Procedure and in the absence of any
such law by the discretion of the court. 171 The judge has to decide about the
admissibility of evidence.172 The examination of a witness by the party who
calls him is called his examination-in-chief; examination by the adverse party
is called his cross-examination; the examination, subsequent to the cross-
examination, by the party who called him is called re-examination. 173 The
examination and cross-examination must relate to relevant facts and the
cross-examination need not relate to the facts testified by the witness in
examination in chief; the re-examination will be directed to the explanation
of matters referred to in cross-examination and if a new matter is by the
permission of the court is introduced by re-examination there may be
further cross-examination upon that matter. 174 A person merely producing
a document does not by the mere fact of producing it become a witness
w h o is liable to be cross-examined unless and until he is called as a
witness.175 Any question suggesting the answer which the person putting it
wishes or expects to receive, is a leading question, 1 7 6 and must not, if
objected to by the opposite party, be asked in examination-in-chief, or in re-
examination, the court having discretion in the matter of putting such
leading questions as to matters which are introductory, or undisputed or
have been sufficiently proved. 177 Leading question, however, may be asked
170. S. 119.
171. S. 135.
172. S. 136.
173. S. 137.
174. S. 138.
175. S. 139.
176. S. 141.
177. S. 142.
LAW OF EVIDENCE 287
in cross-examination. 178 Any witness may be asked during the course of

examination as to whether any grant or other disposition of property, as to
which he is giving evidence, was not contained in a document. If this is so
the adverse party may object to such evidence being given until such
document is produced, or until facts have been proved which entitle
secondary evidence being led of its contents. 179 Any witness may be cross-
examined with the reference to his previous statements in writing about
relevant matter without such writing being shown or proved; the attention
of the witness must be drawn to the writing if it is intended to contradict
him by the writing. 180 During cross-examination questions which tend to
test his veracity, to discover his position in life or to shake his credit by
injuring his character, although the answer to such questions may either
directly or indirectly criminate him or expose him to a penalty or forfeiture,
may be asked.181 The court has a discretion in the matter of deciding what
questions shall be asked and when the witness may be compelled to answer;
no question is to be asked without reasonable grounds. 1 8 2 If the court
thinks that any question is asked on unreasonable grounds such conduct of
the lawyer may be reported to the high court or other authority to which the
lawyer is subject in the pursuit of his profession.183 The court may forbid
indecent and scandalous questions 1 8 4 and those which appear to be
intended to insult or annoy, or which, though proper in itself, appear to the
court needlessly offensive in form. 185 If a witness is asked and has answered
any question which is relevant to the enquiry only in so far as it tends to
shake his credit by injuring his character, no evidence shall be given to
contradict him; but if he answers falsely, he may afterwards be charged for
giving false evidence. 186 Though the expression concerning treating one's
witness as 'hostile' is not used it is laid down that the court may in its
discretion permit the person who calls the witness to put any question to
him which might be put in cross-examination by the adverse party. 187 H o w
the credit of a witness can be shaken is also stated in detail.188 All questions
tending to corroborate evidence of a fact are admissible; 189 in order to
corroborate the testimony of a witness, any former statement made by him
178. S. 143.
179. S. 144.
180. S. 145.
181. S. 146.
182. S. 148.
183. S. 149.
184. S. 151.
185. S. 152.
186. S. 152.
187. S. 154.
188. S. 155.
189. S. 156.
relating to the same fact but about the time when the fact took place or
before any authority legally competent to investigate the fact may be
proved. 190 If any witness refreshes his memory by referring to the writing
made by himself concerning the transaction about which he is questioned by
either looking at the original writing or even a copy thereof,191 the adverse
party could also look into it for the purpose of cross-examination. 192 A
witness may also testify to facts mentioned in any document which he uses
to refresh his memory, even if he has no recollection of facts to make sure
that the facts are correctly recorded. 193 If the party refuse to produce a
document which he has had notice to produce, he cannot later on use the
document as evidence without the consent of the other party. 194 The judge
may himself put questions or other production of documents in order to
discover or obtain proper proof of relevant facts. The judgment must be
based upon facts declared to be relevant and duly proved. The judge is not
to compel any witness to answer or produce any document which he would
be entitled to refuse to answer or produce in the circumstances noticed
earlier.195 The improper rejection of evidence shall not be a ground by itself
for ordering a new trial or reversal of any decision of any case if it so
appears to the court before such objection is raised that, independently of
the evidence objected to and admitted, there is sufficient evidence to justify
the decision, or that, if the rejected evidence has been received, it ought not
to have varied the decisions.196
The court may presume he existence of any fact which is likely to
happen regard being had to the common course of natural events, human
conduct and public and private business in their relation to the facts of the
particular case.197 The court can call for proof unless it is prescribed by the
Act that it "may presume" a fact and shall regard a fact as proved when it
"shall presume" a fact; it shall not, however, allow any evidence to disprove
a fact where it has been declared that one fact is conclusive proof of
another. 198
Attestation
If a document is required by law to be attested it shall not be used as
evidence until one attesting witness is called if there is one alive and subject
190. S. 157.
191. S. 159.
192. S. 161.
193. S. 160.
194. S. 164.
195. S. 165.
196. S. 167.
197. S. 114.
198. S. 4.
LAW OF EVIDENCE 289
to the process of the court and capable of giving evidence. But in the case of
any other document, which is required to be attested, which is not a will, but
has been registered under the Indian Registration Act, proof of execution of
the document required by law to be attested need not be given unless its
execution by the person by whom it is purported t o be executed is
purposely denied. 199 This section applies only where the execution of a
document has to be proved or when the allegation is that the executants was
not in a fit state of mind to know the real nature of the document. 200 The
section lays down a necessary requirement, which the court has to observe
in order that a document can be held to be proved. Atleast one attesting
witness must prove execution of a will. To prove a will it is not necessary
that the attesting witness should depose that the other attesting witness had
signed the will in the presence of the testator and after seeing the testator
signing the will as both the attesting witnesses need not be present at the
same time. 201
If no such attesting witness can be found it must be proved that the
attestation of one attesting witness is in his handwriting and that the
signature of the person executing the document is in the handwriting of that
p e r s o n . 2 0 2 The admission by a party to an attested document of its
execution by himself is sufficient proof of its execution as against him,
though it be a document required by law to be attested. 203 If the attesting
witness denied or does not recollect its execution or has turned hostile,204 it
may be proved by other evidence.205 In such circumstances, it is considered
as if there is no attesting witness. An attested document not required by law
to be attested may be proved as if it was unattested. 206
Public and private documents
Public documents are those that have been specifically described. 207 All
other documents are private. 2 0 8 Public documents include documents
199. S. 68.
200. Radbamohan v. Haribandhu AIR 1991NOC 109 (Ori.).
201. K. M. V.arghese v. K. M. Oommen AIR 1994 Ker 85, dissenting from Road Fromroze v.
Kanta Varfvandas AIR 1946 Bom 12;Vishni Ram Krishna v. Nathuithal AIR 1949 Bom
266; K Nookaraju v. P. Venkatarao AIR 1974 AP 13 and Pattammal v. Kanniammal
AIR 1981 Mad 252.
202. S. 69.
203. S. 70.
204. Chaitan Chavan Parida v. Maheshwar Parida AIR 1991 Ori 125 and Maria SheUL· v. T
Joseph Catherine AIR 2003 Mad 270.
205. S. 71.
206. S. 72.
207. S. 74.
208. S. 75.
forming the acts or records of the acts of sovereign authority or of official

bodies and tribunals and of public officers. Public records are those which a
government unit is required by law to keep or which it is necessary to keep
in discharge of duties imposed by law.209 For instance record maintained by
revenue officer relating to land revenue, survey and settlement 2 1 0 or
electoral roll 211 or records of nationalized banks 212 or medico-legal case
prepared by medical officer213 is a public document. However, registered
power of attorney 2 1 4 or post-mortem report or medical certificate 215
regarding the date of death is not a public document. Public documents
form an exception to the hearsay rule and their admissibility rests on the
ground that the facts contained therein are of public interest and the
statements are made by authorized and competent agents of the public in
the course of their official duty. 216
Who can certify copies of public documents, 217 which can be taken in
proof of these documents 218 and how official documents can be proved 219
have been dealt with in detail. A public document given by a public officer
should bear a certificate written at the foot of such copy that it is a true
copy of such document. If it bears no certificate and not supported by the
evidence of the person who prepared it, it is not admissible in evidence. But
a carbon copy of the court order issued in official process but not marked as
'true copy' was allowed in evidence. 220 Presumptions of genuineness can
also be drawn in respect of such duly certified copies 221 and other official
d o c u m e n t s . 2 2 2 There is a special presumption of genuineness, valid
execution, attestation, etc. arising in respect of documents more than 30
years old coming from proper custody. This presumption 223 does not extent
to copies.
209. Narattam Das v. Aid. Masadharali (1991) 1 Gau LR (DB).

210. K. Peddjangaiah v. Aiandal Revenue (Officer, Moinabad 1996 AIHC 1006 (AP).
211. Naladbar Mabapatra v. Seva Dibya AIR 1991 Ori 166.
212. Garanda Venkatesbwanu v. B. Demudu AIR 2003 AP 251.
213. Dalip Kumar v. State 1995 Cr LJ 1742 pel).
214. Bidan Paul v. Paresh Chandra Ghosh AIR 2002 Gau 46.
215. State v. BhoU Pal 1995 Cr. LJ 3717 (Cal).
217. S. 76.
218. S. 77.
219. S. 78.
220. Thatha v. Peru AIR 1986 Ker. 196 and Democratic BarAssn, Allahabad v. High Court,
Allahabad AIR 2000 All 300.
221. Ss. 79 and 86.
222. Ss. 80-85, 87 and 89.
223. S. 90.
224. Kalindi Venkata Subbaraju v. Chitalapati Subbaraju 1968 AIR SC 947.
LAW OF EVIDENCE 291
Proof of contents of documents and ambiguities in them
Normally the contents of a document are proved by the original and the
truth of the contents by oral evidence, but in the case of certain contracts,
grants and other dispositions of property specifically dealt with 2 2 5 the
document is evidence both of contents and the truth of the contents. When
the terms of a contract or of a grant or of any other disposition of property
has been reduced in the form of a document and in all cases in which any
matter is required by law to be reduced to the form of document no
evidence shall be given in proof of the same except the document itself or
secondary evidence of its contents. 226 The section prohibits the admission
of oral evidence to prove the contents of the document. 2 2 7 It has no
application when the writing is not evidence of the matter reduced to
writing 2 2 8 because court cannot be compelled to prefer documentary
evidence over oral or vice versa. Following are the exceptions229 thereto:
1. Any fact may be proved which would invalidate a document or
which would entitle any person to a decree relating thereto, such as
fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting party, want or failure of consideration,
or mistake in fact or law.
2. The existence of any separate oral agreement as to any matter on
which a document is silent, but not inconsistent with the terms
regard being had, however, to the degree of formality of the
document.
3. The existence of any separate oral agreement, constituting a
condition precedent to the attaching of any obligation under any
such contract, grant or disposition of property.
4. The existence of any subsequent oral agreement to rescind or
modify such contract, grant or disposition of property except in
cases where such contract is by law required to be in writing or has
been registered according to law pertaining to registration of
documents.
5. Any usage or custom by which incidents not mentioned in any
contract are usually annexed to contracts of that description,
subject to the further condition that the annexing of such incident
is not repugnant to or inconsistent with the express terms of the
contract.
225. S. 91.
226. Also see Roop Kumar v. Mohan Thedani AIR 2003 SC 2418.
227. Hira Devi v. Official Assignee, Bombay AIR 1958 SC 448; YGanganaidu v. M.
Surkantam AIR 1993 AP 130 and Kashiram v. State ofMP AIR 1996 MP 247.
228. Javarasetty v. Ningamma AIR 1992 Kant 160.
229. S. 92.
6. Any fact, which shows in what manner the language of a document,

is related to existing facts.230
Both the above provisions supplement each other; each would be
frustrated without the aid of the other. The former provision applies to
documents (both bilateral and unilateral) whether they purport to affect
rights or not whereas the latter is confined to bilateral document and to the
parties to the instrument or their representatives in interest-it does not
extend to strangers who are not bound or affected by the terms of the
agreement. Section 91, however, lays down a rule of universal application;
there is a specific provision,231 which enables persons who are not parties to
a document or their representatives in interest to give evidence of any fact
tending to show a contemporaneous agreement varying the terms of" the
document.
If there are ambiguities they can be resolved only in the manner
provided. 232 Patent ambiguities cannot be removed by giving evidence of
facts, which show its true meaning and supply its defects. 233 When the
language is plain in itself and fits certain existing facts accurately evidence
may not be given to show that it was not meant to apply to such facts.234
But there is said to be a latent ambiguity when the language is plain but is
unmeaning with reference to certain existing facts;235 when the facts are
such that the language used might have been meant to apply to any one and
could not have been meant to apply to more than one of several persons or
things evidence may be given concerning facts to show to which persons or
things it was intended to apply.236 When the language used applied partly to
one set of existing facts and partly to another set of existing facts but the
whole of it does not apply correctly to either, evidence may be given to
show to which of the two it was meant to apply.237 When there are illegible
or not commonly intelligible characters or obsolete, technical, local and
provincial expressions, abbreviations or words used in a peculiar sense
evidence may be given to explain them. 238 The above provisions relating to
letting in of evidence are not to apply in the matter of construction of wills
to which the provisions of the Indian Succession Act, 1865 applies. 239
230. Bai Han Devi v. The Oficial Assignee ofBombay 1958 SCR 1384.
231. S. 99.
232. Ss. 93-98.
233. S. 93.
234. S. 94.
235. S. 95.
236. S. 96.
237. S. 97.
238. S. 98.
239. S. 100. The Act of 1865 has been replaced by the Indian Succession Act, 1925.
LAW OF EVIDENCE 293
Judicial notice
There are some facts of which evidence need not be given if they are
relevant, and if the court can take judicial notice of them or if they are
admitted by the other side.240 Apart from these two categories certain facts
may be taken judicial notice of by the court and those facts need not be
proved. 241 The reason for this is that they are considered to be well-known
- too notorious and so well-known that it would be an insult to intelligence
if evidence is offered to prove the existence of those facts. This provision 242
may have to be widened sufficiently to take in many more facts, which may
properly belong to this category in the light of the advancement of human
knowledge. For instance, the court can take judicial notice of general
deterioration in law and order situation, 243 or that an area is terrorist-
stricken, 2 4 4 or that the system of education in the state has virtually
c r u m b l e d 2 4 5 or availability of alternative sources 2 4 6 or alternative
accommodation in case of acquisition of dwelling house, 247 or that many
blind persons have acquired great academic distinction 248 etc. The Supreme
Court was of the view that no judicial notice could be taken of Rattigan's
Digest concerning a point of customary low in the Punjab in spite of the
same having been compiled with great effort. In that case the custom
pleaded was that the sister was excluded from inheritance by her brother's
collaterals. The alleged custom was required to be proved. 249
Privileges and privileged communications
There are also some facts of which evidence cannot be given.250 N o person
w h o is or has been m a r r i e d shall be compelled t o disclose any
communication made to him during marriage by any person to whom he is
or has been married. The prohibition is based on the ground that the
admission of such testimony is likely to disturb the peace of the family and
weaken the feeling of mutual confidence. The prohibition does not rest on
any technicality, which can be waived at will. Under English law, the
protection is afforded to the receiver of communication whereas Indian law
protects the maker of communication.
240. S. 56.
241. S. 57.
242. S. 57.
243. Shashi Nayar v. Union ofIndia AIR 1992 SC 395.
244. Abdul Malik v. State of UP AIR 1994 All 376.
245. Managing Committee ofRajo Sidheshwar High School v. State ofBihar AIR 1996 Pat 19.
246. Assistant Collector of Central Excbe v. Dunlop India Ltd. AIR 1985 SC 330.
247. Bamandas Mukhe^ee v. State ofW.B.MK 1985 Cal 159.
248. Jai Shankar Prasad v. State of Bihar AIR 1993 Pat 22.
249. Vjagar Singh v. Mst. Jeo (1959) Supp 2 SCR 781.
250. Ss. 122 to 127.
In view of this section, communication by husband to his wife of

libelous material does not amount to publication. 2 5 1 The protection
afforded under this section extends to all the communications and not
limited to only confidential matter. The communication, however, is .not
protected if it can be proved without their assistance. That means, it is the
disclosure by spouse that is protected and not the communication per se.
Moreover, the protection extends only to communication that is utterances
and not acts. A person may be p e r m i t t e d t o disclose any such
communication with the consent of the person w h o made it or his
representative in interest. Such consent cannot be implied. The exception to
this would be suits between married persons and proceedings in which one
married person is prosecuted for crime against the other. 252
N o person shall be permitted to give any evidence derived from any
unpublished official record relating to affairs of state except with the
permission of the head of the department concerned. 253 The protection
against disclosure seeks to protect public interest by preventing public
injury. This presents a conflict between the public interest in fair
administration of justice and public interest sought to be protected by non
disclosure, which the courts are called upon to balance. N o public officer
shall be compelled to disclose communications made to him in official
confidence when he considers that the public interest would suffer by such
disclosure. 2 5 4 There is a difference in application between these two
provisions. Under the former the court will have to decide the propriety of
the claim without looking at the document containing the subject matter, of
course with the help of other evidence. If the court disagrees with the
officer claiming such privilege, the contents of the documents are to be
disclosed; it would not be looked into if the court agrees with the claim of
privilege. If the privilege is claimed under the latter provision then the court
may look into the document and decide upon the propriety of the claim.
The document would be returned to the officer and the claim of privilege
upheld without its being disclosed to anybody if the court upholds the claim
of privilege. The mere fact that privilege could be claimed with reference to
a document, which is summoned by court, would not excuse the person
summoned from bringing the document to court because it is only the
court, which has to decide upon the validity of any such claim of privilege or
objection to its being produced. 255
The Supreme Court considered 256 a claim of privilege made in the
public interest, which was put forward in respect of the production of a
251. Wennhak v. Morgan (1888) 20 QB D 635.
252. S. 122.
253. S. 123.
254. S. 124.
255. S. 162.
256. State ofPunjab v. Sodhi Sukbdeo Singh 1961 2 SCR 371.
LAW OF EVIDENCE 295
report of the Public Service Commission; the chief secretary of a state

concerned filed an affidavit in support of the claim of privilege. After
pointing out the kind of affidavit that has to be filed and by w h o m in
support of a claim of such privilege the Supreme Court observed that a
court could hold an inquiry, by even subjecting the deponent of the affidavit
to cross-examination, if need be, in support of the claim of privilege as to
whether it relates to affairs of state. If it does not relate to affairs of state the
claim of privilege should be rejected. If it relates to affairs of state the last
word on this question should remain with the head of the department. The
thinking of the Supreme Court to some extent was influenced by the earlier
decision of the House of Lords, 257 but there has been going back on this
holding subsequently by the House of Lords. 258 The last word was held to
be with the court and not with the minister. In India too, the position has
changed since then. The Supreme Court has overruled Sodhi Sukhdev Singh
case in S P Gupta 259 by holding that the final decision in regard to the
validity of an objection against disclosure would always be with the court by
reason of section 162.
N o 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. 260 This section
extends protection to the informants whose information becomes the
channel for detection of crimes. In the application of this privilege, twin odd
goals are to be accommodated. One is the protection of informants. Two, to
provide sufficient opportunity to the accused to establish his innocence. 261
N o judge or magistrate except upon special order of some court to which he
is subordinate, shall be compelled to answer any question as to his conduct
in court as such judge or magistrate, or as to anything which came to his
knowledge in court, as such judge or magistrate, but he can be examined at
to other matters which occurred in his presence while he was so acting. 262
The Judicial Officer's Protection Act gives complete protection to the judge
in respect of those acts done in good faith even in cases falling outside his
jurisdiction. This protection is in respect of any action concerning anything
done by him as judge or magistrate.
Professional communications between lawyer and client are privileged
unless the client expressly consents to the disclosure of any such
257. Duncan v. Cammell Laird and Co. Ltd. 1942 A.C. 624.
258. Conway v. Rimmer 1968 1 All E.R. 874.
259. S P Gupta v. Union ofIndia AIR 1982 SC 149.
260. S. 125.
261. Also see R. v. Johnson (1989) 1 All ER 121; R. v. Rankine (1986) 2 All ER 566 and
Sunil Kumar v. State 1990 Cr LJ 414.
262. S. 121.
communication made to the lawyer for the purpose of his professional

employment; this applies to the contents or conditions of any document
with which the lawyer became acquainted in the course of discharging his
professional duties as well as to the advice given by him. The notes made by
lawyers of statements of witnesses 263 are also entitled to protection. The
exceptions, however, are that there is no privilege in respect of any
communication made in furtherance of any illegal purpose or any fact
observed by the lawyer in the course of his employment showing that any
crime or fraud has been committed since the commencement of his
professional employment. This obligation would continue even after the
professional employment has ceased.264 The same provisions are extended
to interpreters, clerks or servants of the lawyer. 265
The protection afforded under this section cannot be availed of against
an order to produce documents under section 91 of the Criminal Procedure
Code. The documents must be produced and it is for the court to consider
and decide any objections regarding their production and validity. 266
The privilege belongs to the client and he alone can waive it. The
privilege is not waived by the mere fact of the party giving evidence at his
own instance or other wise.267 Similarly, calling the legal adviser as a witness,
unless the party having the privilege questions him relating to the
confidential matters does not lose the privilege. 2 6 8 N o one shall be
compelled to disclose to the court any such confidential communication
unless the party offers himself as a witness in which case he may be
compelled to disclose any such communication as may appear to the court
necessary to be known in order to explain any evidence given by him. 269 N o
witness who is not a party to a suit shall be compelled to produce his title
deeds to any property, or any document by virtue of which he holds any
property as pledge or mortgage, or any document the production of which
might tend to criminate him unless he has agreed in writing to produce
them. 270 A book of accounts cannot be withheld on the ground that it tends
to incriminate a witness. This protection is extended to the persons who are
in possession or control of documents specified above on behalf of other
persons and to documents and electronic records. 271 These persons may
include agents, attorneys, mortgages, trustee etc.
. 263. Superintendent & LR v. 5. Bhowmick AIR 1981 SC 917.

264. S. 126.
265. S. 127.
266. Ganga Ram v. Gabib Ullak (1935) 58 All 364.
267. S. 128.
269. S. 129.
270. S. 130.
271. Electronic records has been inserted by the Information Technology Act, 2000.
LAW OF EVIDENCE 297
N o witness would be excused from answering any question as to any

matter relevant to the matter in issue in any civil or criminal proceeding, on
the ground that the answer to such question will incriminate him or may
tend directly or indirectly to incriminate such witness, or that it will expose,
or tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind; no such answer shall by itself subject him to any
arrest or prosecution, or to be proved against him in any particular
proceeding except a prosecution for giving false evidence in giving false
answer. 272
Estoppel
Evidentiary rule of estoppel is based on the maxim allegans contraria non est
audiendus (a person alleging contradictory facts should not be heard). When
one person has by a declaration, act or omission intentionally caused or
permitted another person to believe a thing to be true and to 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 such thing. 273 It is necessary that the person who claims the
benefit of estoppel must have acted to his detriment on the basis of such
representation/' n
Estoppel is a rule of civil action and can be described as capable of
creating or defending rights. 275 The rule is founded upon the doctrine laid
down in Pickard v. Sears. It is binding upon parties and privies, which are
divided into three classes: privies in blood, privies by estate, and privies in
law.
It may be noticed in this connection that resjudicata as provided by
section II of the Code of Civil Procedure is similar in its effect to estoppel.
But the distinction between the two consists in the fact that while in the
case of estoppel the person alone is estopped, in the case of resjudicata the
court ceases to have jurisdiction. In other words, estoppel prevents a person
from saying one thing at one time and the opposite at another. Resjudicata
precludes a man averring the same thing twice in successive litigation. 276
Estoppel is a part of law of evidence and proceeds upon the equitable
principle of altered situation whereas doctrine of res judicata belongs to
procedure.
272. S. 132.
273. S. 115.
274. Dhiyan Singh v. Jugal Kishare 1952 SCR 478 and Gyarsi Bai v. Dhansukb Lai AIR 1965
SC 1055.
275. B.L. Shreedhar v. KM. Munireddy AIR 2003 SC 578.
276. Amita Shekbawat v. State ofRajasthan AIR 2003 SC 230.
Waiver is a different conception from estoppel in that the former is a

matter of contract and any later attempts to enforce what has been given up
is discouraged. Being a matter of contract the waiver itself must be for good
and valid consideration. For attracting the principle of waiver, there are two
essential elements to be satisfied. First, waiver should be voluntary and
intentional and secondly, there should be two parties - one waiving and the
other getting benefit from such waiver.277 But there is no such requirement
in the case of estoppel. There can be estoppel by omission, even by silence,
when there is a duty to speak; but in the case of waiver similar silence would
not be enough for it requires a positive statement about waiving certain
rights. There is no such thing as estoppel by waiver.278
There are various kinds of estoppel: estoppel by attestation (any
attestation with knowledge of the contents of the document or attestation in
circumstances which may be sufficient to draw a presumption of such
knowledge may amount to estoppel), estoppel by contract, estoppel of
landlord and tenant, 2 7 9 an acceptor of a bill of exchange not being
permitted to deny that the drawer had authority to draw or accept it. 280
When the question is whether the person is landlord or tenant or partner or
principal or agent and it is shown that he has been acting as such, the
burden of proving that he does not stand or he ceases to stand in the
specific relationship, is on the person who affirms it. Estoppel also can be
on a constructive basis, for example, registration being noticed of a
document under the provisions of the Transfer of Property Act. There can
also be estoppel by election. For example under section 180 of the Indian
Succession Act where a legatee obtains under a will a benefit to which he is
not otherwise entitled and accepts the same he is precluded from disputing
the will. Estoppel can also arise by means of negligence; this could happen
in cases of conduct, representation, or holding out of ostensible authority.
But there can be no estoppel against statute281 or when the parties know the
truth.
Besides this, there is estoppel by matter of record, which results from
the judgment of a competent court. It is concerned with the effect of
judgments and their admissibility in evidence. Only the final decision and
277. Chetan Das v. Annusuiya 1996 A M C 1706 (Raj). Also see Radha Kishan v. Election
Tribunal-Cum-Sub-Judge AIR 2001SC 68; St Anne's School Society v. Urban Improvement
Trust AIR 2000 Raj 70; Prithvi Raj Bhalla v. Industrial Cables (India) Ltd. AIR 2002
Del 539 and Ferro Alloys Corpn. Ltd. v. Union ofIndia AIR 1999 SC 1236.
278. Dawsons Bank Ltd. v. Nippon Menkwa kabushiki Kauha (1935) 37 Bom LR 544 and
Uniply Industries Ltd v. Unicorn Plywood P. Ltd. AIR 2001 N O C 49 (Mad).
279. S. 116.
280. S. 117.
281. Nookala Setharamaiab v. Kotaiah Naidu AIR 1970 SC 1354.
LAW OF EVIDENCE 299
not any and every expression of opinion in a judgment give rise to an

estoppel by record.
Burden of proof
Rules concerning burden of proof have been laid down. 282 Generally the
burden of proof lies on the party who substantially asserts the affirmative of
the issue and not upon the party who denies it. This rule of convenience has
been adopted in practice because negative does not admit of direct and
simple proof of which the affirmative is capable. Moreover, it is just and
reasonable that the suitor who relies upon the existence of a fact should be
called upon to prove his own case. This has been derived from the Roman
maxim, ei qui affirmat, non ά qui negat, incumbit probation.
Burden of proof has two meanings: one, the burden of establishing a
case and the other, burden of introducing evidence. The former is fixed and
unchanged whereas the latter shifts as soon as the party adduces sufficient
evidence to raise a presumption in his favour.283 Whoever desires any court
to give judgment as to any legal right or liability dependent on the existence
of facts which he asserts, must prove that those facts exist. 284 When a
person is bound to prove the existence of any fact the burden of proof lies
on that person. In this section, the word burden is used in the former sense.
The burden of proof in the sense of introducing evidence (second meaning)
is as follows; the burden of proof in a suit or proceeding lies on the person
who would fail if no evidence at all were given on either side.285
The burden of proof as to any particular fact lies on the person who
wishes the court to believe in its existence, unless it is provided by any law
that the proof of that fact shall lie on that particular person. 2 8 6 This
amplifies the general rule laid down in section 101 in the sense that in
section 1001 party has to prove the whole of the facts, which he alleges to
entitle him to judgment whereas this section provides for the proof of some
one particular fact. The burden of proof concerning any fact necessary to be
proved in order to enable any person to give evidence of any other fact is on
the person who wishes to give such evidence.287 The burden of proving that
a particular accused comes within any exception, general or special, of the
Indian Penal Code is on the accused. 288 Any fact especially within the
282. S.s 101-103.

283. kundan Lai v. Custodian, Evacuee Property AIR 1961 SC 1316.
284. S. 101.
285. S. 102.
286. S. 103.
287. S. 104.
288. S. 105. Also see Rizam v. StateofChhattisgarh AIR 2003 SC 976; Rabindra Kumar Dey
v. State ofOrissa AIR 1977 SC 170; Kuzhiyaramadiyil Madbavan v. State ofKeraL· 1994
Cr LJ 450 (Ker) and Brindaban Prasad v. State ofBihar AIR 1964 Pat 138.
knowledge of any person has to be proved by that person. 289 This section
applies only to parties to a suit.
When a person is shown to be alive within a period of 30 years the burden
of proving that he is dead is on the person who affirms it, 290 provided that
in the case of person who is not heard of for seven years by those who
would naturally have heard of him if he had been alive, the burden of proof
to show that he is alive is shifted on to the person who affirms it. 291
There are also special rules concerning burden of proof in addition to
what was noticed earlier. 292 The question is when any person is 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 who affirms that he is not the
owner/"
Where there is a question as to the good faith of a transaction between
two parties, one of whom stands to the other in a position of active
confidence, the burden of proving the good faith of the transaction is on the
party who is in a position of active confidence.294
Conclusive proof
Sections 41, 112, 113, 113A and 113B deal with matters, which are to be
regarded as 'conclusive proof. When any question of filiations arises the fact
that any person was born during the continuance of a valid marriage
between his mother and any man, or within 280 days after it s dissolution,
the mother remaining unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it is shown that the parties to the marriage
had no access to each other when he could have been begotten. 295 This
section is based on the public policy that it is undesirability to enquire into
the paternity of a child whose parents 'have access' to each other. 296 The
presumption under this section is rebuttable by the party, who is disputing
the paternity. The disputing party has to prove non-access in order to dispel
the p r e s u m p t i o n . 2 9 7 The non-access must be proved by strong
289. S. 106
290. S. 107 deals with presumption of survivorship. Also see Surjit Kaur v. Jhujhar Singh
AIR 1980 SC 274.
291. S. 108 deals with presumption of death.
292. S. 109.
293. S. 110.
294. S. 111.
295. S. 112.
297. Non-access under this section means the existence or non-existence of
opportunities for sexual contract. Actual cohabitation is immaterial. See Kamti Devi
v. Poshi Ram AIR 2001 SC 2226; Chilukuri Venkataswarlu v. Chilukuri
Venkatanarayana AIR 1954 SC 176 and Karapaya Servai v. Mayandi AIR 1934 PC 49.
LAW OF EVIDENCE 301
preponderance of evidence. Mere balance of probabilities would not suffice.

Once strong prima facie case of non-access is made out, the court may order
for blood test or D N A test to confirm the position. However, no person
can be compelled to go for Blood or DNA test to determine paternity. 298
Section 113 A 299 deals with the presumption as to abetment of suicide by
a married woman. If she commits suicide within seven years of marriage and
her husband or his relatives have subjected her to cruelty, it is presumed that
her husband or relatives have abetted such suicide. Section 113B300 raises a
presumption of dowry death of a woman if she has been subjected to
cruelty or harassment for or in connection with any demand for dowry or
harassment for or in connection with any demand for dowry soon before
her death.
Suggested Readings
1. A. Thakur. Hindu Law ofEvidence, University of Calcutta, Calcutta 1933.
2. C. D. Field, The Law ofEvidence, 6 vols., 10th ed., 1970-73.
3. J. G. Woodroffe and Amir Ali, The Law of Evidence, 4 vols., 12th ed. by
J.P. Singhal, 1968.
4. Journal of the Indian Law Institute, Special Issue, 1972 on the Indian
Contract Act and the Indian Evidence Act.
5. Ratanlal Ranchhoddas and Dhirajlal Thakore, Hindu Law of Evidence.
6. S.C. Sarkar, The Law of Evidence, 14th ed., Wadhwa & Co. Nagpur, 1993.
7. The Indian Evidence Act, 1872.
8. V.B. Raju, Commentaries on the Indian Evidence Act, 1872, 2 vols., 3 r d ed.,
1970.
9. V. P. Sarathi, The Elements of the Law ofEvidence.
10. Y. H. Rao and Y.R. Rao, Circumstantial and Presumptive Evidence.
298. SyedMohd Ghouse v. Noorunnisa Begum 2001 Cri LJ 2028 (AP); Sajeera v. P.K. Salim
2000 Cri LJ 1208 (Ker) and Devesh Pratap Singh v. Sumita Singh AIR 1999 MP 174.
299. Inserted by the Criminal Law (2nd Amendment) Act, 1983 w.e.f. 26-12-1983.
300. Inserted by Act No. 43 of 1986.

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LAW OF EVIDENCE

Despite such rules of evidence as were prevalent in Hindu 1 and Muslim

* Formerly Chairman, Monopolies & Restrictive Trade Practices Commission, New

The reforms which had been advocated in England by Lords Denman

of 1938) deleted section 2 of the Evidence Act 10 but it is considered 11 that

15. Proceedings of the Legislative Committee dated 12.12.1868.

principle of well-known maxim optima legum interpret est consuetude. This is

necessary to explain or introduce a fact in issue or relevant fact, or which

individual co-conspirator including his acts, writings and statements would

42. (1964) 2 SCR 378.

prevents any court from taking cognizance of a suit or holding a trial, is a

section 40 a judgment of a criminal court can only be relevant in another

Opinion of third parties

in that record. 55 It is not essential either that the handwriting expert be

The question when the character of a person becomes relevant is one of

In criminal proceedings the fact that the accused is of a good character

contract of tenancy. 80 It has to be proved to be the statement of the person

(3) If it is relevant otherwise than as an admission. 88

Confessions by persons accused of a criminal offence are either those which

avoid any evil of a temporal nature in reference to the proceedings against

When any fact deposed to is discovered in consequence of information

exception to the rule prohibiting proof of such statement, that

123. (1947) 74 Indian Appeals 65.

signed.126 Also relevant are statements against the pecuniary or proprietary

126. Ss. 32 (2), 34 and 35.

While proof of these conditions precedent to the admissibility of such

133. Chainchal Singh v. King Emperor (1945) 72IA 270.

statement made to a witness by a person who is not himself called as witness

documents must be proved by primary evidence.161

in cross-examination. 178 Any witness may be asked during the course of

Public and private documents

forming the acts or records of the acts of sovereign authority or of official

209. Narattam Das v. Aid. Masadharali (1991) 1 Gau LR (DB).

Proof of contents of documents and ambiguities in them

6. Any fact, which shows in what manner the language of a document,

Privileges and privileged communications

In view of this section, communication by husband to his wife of

report of the Public Service Commission; the chief secretary of a state

communication made to the lawyer for the purpose of his professional

. 263. Superintendent & LR v. 5. Bhowmick AIR 1981 SC 917.

N o witness would be excused from answering any question as to any

Waiver is a different conception from estoppel in that the former is a

not any and every expression of opinion in a judgment give rise to an

282. S.s 101-103.

preponderance of evidence. Mere balance of probabilities would not suffice.

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