94 EVIDENCE ACT [S.
proof is the final stage in a proceeding which is arrived at by evidence or
presumption. Presumption is one of the means of effecting proof.
Conclusive proof.-Whenever it is mentioned that a fact is a
"conclusive proof" of another fact, the court has no discretion at all. It cannot
call upon a party to prove that fact nor can it allow the opposite party to
adduce evidence to disprove the fact. Section 41 of the Evidence Act provides
inter alia that a final judgment, order or decree of a competent court in exercise
of matrimonial jurisdiction is a conclusive proof of that legal character. For
example, suppose A files a suit in a court of law for declaration that B is his
le~ally married wife. The court gives a decree in favour of A and declares that
B is his wife. After a few years in the lifetime of A, B files a suit against D for
the property of one C, alleging that she is widow of C. In this case there will be
an issue whether B is the wife of C. D files the copy of the judgment of the
previous case (A versus B). This judgment will prove that B is legally married
wife of A. Now that B is legally married wife of A is a conclusive proof of the
fact that she is not the wife of C. Therefore, after the judgment mentioned
above has been filed, the court cannot allow B to adduce evidence to prove that
she is wife of C and not of A.
"Conclusive proof" in Section 4 of the Evidence Act shows that by
declaring certain fact to be conclusive proof of another an artificial probative
effect is given by the law to certain facts and no evidence is allowed to be
produced with a view to combating that effect. These cases generally occur
when it is against the policy of Government or the interest of society that a
matter may be further open to dispute.1
000
l. Din Dayal v. Stale, AIR 1959 All. 420; Copa! Krishna v. Secretary, Board o! Revenue, AIR 195d
Mad.362.
CHAPTER II
OF THE RELEVANCY OF FACTS
SECTION 5.-Evidence may be given of facts in issue and relevant
facts.-Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact i.1 issue and of such other facts as
are hereinafter declared to be relevant, and of no others.
Explanation.-This section shall not enable any person to give
I
evidence of a fact which he is disentitled to prove by any provision of the I
law for the time being in force relating to Civil Procedure.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the
intention of causing his death.
At A's trial the following facts are in issue:-
A 's beating B with the club ;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him and have in readiness for production
at the first hearing of the case, a bond on which he relies. 'This section does not
enable him to produce the bond or prove its contents at a subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by
the Code of Civil Procedure.
COMMENTS
Scope.-This section declares that in a suit or proceeding evidence may
be given of the existence or non-existence of (1) facts in issue, and (2) of such
other facts as are declared to be relevant in the following sections (Sections 6 to
55).
"And of no others."-This section excludes everything which is not
declared relevant under any of the Sections 6 to 55.1 All evidence tendered must
be shown to be admissible under some of the following sections of the Chapter.
A party trying to adduce a particular evidence has to show that the evidence
desired to be adduced is relevant under one or more of the Sections 6 to 55.2
Evidence excluded by Evidence Act as inadmissible should not be admitted
merely because it may be essential for ascertainment of truth.3 Any fact
intended to be established has to be found to be relevant under a provision
1. R. v. Panchu, ILR 47 Cal. 671 (I I ; R. v. Abdullah, ILR 7 All. 385 (FB).
2. Dwijesh v. Naresh, AIR 19451 I 492.
3. Nanday v. Rakhala Anande, ,\ti{ 19-11 PC 17.
[95)
96 EVI DENCE ACT [S. 5 s. 5) OF TI-IE RELEVANCY OF FACTS 97
contained in the Act before it can be allowed to be proved, any argument based Relevancy Admissibility
on plausibility can have no effect. The court must therefore ignore any other
consideration and confine itself strictly to the provisions of the Act and come to 2. The rules of relevancy are 2. The rules of admissibility are not
a conclusion as to the relevancy of a fact on the interpretation of the relevant described under Sections 5-55 of described under Sections 5 to 55 of
provisions of the Act regardless of the fact whether the conclusion ultimately Evidence Act, 1872. Evidence Act, 1872.
arrived at is in accordance with commonsense view of things or not.1 3. The rules of relevancy declare 3. The rule of admissibility means
Conversely, a court cannot on the ground of public policy, exclude evidence what is relevant to be proved. that the Court can permit the
relevant under this Act.2 evidence to be given of a fact only
if it is relevant.
Distinction between relevancy and admissibility.-Relevant means,
that which is logical probative. Admissibility is not based on logic but on law 4. Under Evidence Act, 1872 the 4. Admissibility is the means and
rules of relevancy means relevant method to prove the relevant fact
and strict rules. Many facts having no bearing on the facts to be proved are
admissible. The proof of loss of original deed has no effect on the decision of evidence. They may be and to keep the evidence limited
issue but this is admissible in evidence before secondary evidence about the admissible or not. to the relevant fact.
contents of the relevant document may be given. In tne Indian Evidence Act the 5. The facts which are relevant are 5. The facts which are admissible
question of relevancy has been dealt with under Sections 5 to 55 and that of not necessarily admissible. are necessarily relevant.
admissibility under Section 56 and onwards. Relevancy how decided=-The question of relevancy is a question of
The rules of relevancy declare certain facts relevant, rules of Jaw to be decided by the Judge. The questions of relevancy should be decided
admissibility Jay down as to whether a certain form of evidence about relevant when raised and should not be reserved until the date of the judgment in the
fact, may be allowed or excluded. What is the material (Fact) which may be case.1 Where a court is in doubt as
to the relevancy of a particular piece of
produced before a court in a case is a first question. Relevancy means what facts evidence, he should declare in favour of relevancy rather than of non-
may be proved before a court. The facts that are allowed to be proved under relevancy.I The Courts in India are bound to exclude evidence of irrelevant facts
Evidence Act are called relevant facts. Thus under Evidence Act, the terms whether objected to or not.
"Relevant" or "the facts that may be proved" are synonyms. Evidence partly relevant and partly irrelevant.-If irrelevant
evidence is so mixed up with relevant evidence as to make it impossible to
The admissibility is the means and the method of proving the relevant separate one from the other the whole of the evidence is to be rejected. But
facts. The relevancy and admissibility of facts are neither synonymous nor co- where the relevant material is quite independent of the irrelevant material,
extensive. the relevant will be admitted and the other part will be rejected.3
In Ram Bihari Yadav v. State of Bihar,3 the Supreme Court speaking . Objection to relevancy and admissibility.-An erroneous omission to
through Mohd. Quadari J., said that, more than often the expression relevancy object to the relevancy of evidence before the trial court does not make the
and admissibility are used as synonym but their legal implications are evidence relevant, if the evidence is irrelevant and it has been admitted by the
different because more often than not facts which are relevant may not be trial court, an objection can be taken at any stage even in the highest appellate
admissibles ; for example, the communication made by spouse during marriage, court.4 The question of relevancy is a question of law and can be raised at any
the communication between an advocate and his client, though relevant are not stage.5 But if the evidence is relevant but the proof is improper and evidence is
admissible. So also the facts which are admissible, may not be relevant. For one admitted no objection can be taken afterwards. Under Evidence Act, the
example, questions permitted to be cross examined to test the veracity or to secondary evidence of a document may be given when the loss of the primary is
impeach credit of witness though not relevant are admissible. proved. If at the trial a secondary evidence is given of the contents of a relevant
document and no objection is raised, afterwards it cannot be objected that the
Distinction between Relevancy and Admissibility evidence has been given improperly. Question of relevancy is question of law
and can be raised at any stage, but the question of proof is a question of
Relevancy Admissibi I ify procedure and is capable of being waived.
1. Relevancy is based on logic and 1. Admissibility is not based on 1. AIR 1939 All. 61.
probability. logic but on strict rules of Jaw. 2. R v. Ram Chandra, 19 Born 749 at 759.
3. Gurmukh Singh v. Commissioner of Income-tax, AIR 1944 Lah. 381 (FB); Mistri Fazaldin v,
1. Kashyap v. Emperor, AIR 1945 Lah. 28 (FB). Kammat Husain, AJR 1936 Lah. 81.
2. I<.V.G.N. v. C. VenkahlramAyya, AIR 1946Mad. 61. 4. Miller v. Madhava, 19 All. 76.
3. AIR 1998 SC 18.50. 5. Sumitra v. Ramkumar, AIR 1946 Born. 193.
98 EVIDENCE ACT [S. 6
Where the objection to be taken is not that the document is in itself
inadmissible but that the mode of proof put forward is irregular or insufficient,
it is essential that the objection should be taken at the trial before the
document is marked as an exhibit and adrr itted to the record. A party cannot lie
until the case comes before a court of appeal and then complain for the first
time of the mode of proof.' The objection that the copy of the mortgage deed is
not legal, secondary evidence is merely to the mode of proof of a document and
should be raised at the very time the document is sought to be tendered in
evidence and proved.2 · transaction, occasion, cause, effect, motive, conduct (Sections 6 to 16).
When a document has been exhibited, it cannot de-exhibited at a later
stage on the ground of its being not legally proved.3
Explanation.-According to Section 5 a person has a right to produce
evidence in a Court of law if that evidence is relevant under any of .the Sections
6 to 55. But the explanation under Section 5 lays down that if some provision in
Civil Procedure Code disentitles the person to give evidence to a fact, he will
not be entitled as of right to adduce that evidence in the Court.
C, ECTION 6.-Relevancy of facts forming part of same transaction.-
l...) Facts which, though not in issue, are so connected with a fact in issue
as to form part of the same transaction, are relevant, whether they
occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or
done by A or B or by the by-standers at the beating, or so shortly before or after
it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by taking
part in an armed insurrection in which property is destroyed, troops are
attacked and gaols are broken open. The occurrence of these facts is relevant, as
forming part of the general transaction, though A may not have been present at
all of them.
(c) A sues B a li·bel contained in a letter forming part of a correspondence.
Letters between the parties relating to the subject out of which the libel arose,
and forming part of the correspondence in which it is contained, are relevant
facts though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered
to A. The goods were delivered to several intermediate person successively.
Each delivery is o relevant fact.
COMMENTS
Scope.-Under the definition of the word "relevant" in Section 3 one fact
is said to be relevant to another when one is connected with the other in any of
th" ways referred to in the provisions of the Act relating to the relevancy of
I. Copaldas 11. Sri Thakurjl, AIR l':143 PC 83; J L1jl Mohd v. State ol Wt"Sl Bengal, AIR 1957 SC 488.
2. C11,111d.1n Bal u. Jngjlwandos, Ai.R 1958 Raj. 110.
3. Ali I Ins.in 11. M,1lil1ll~, AIR l'.188 All. 57.
s. 6) OF THE RELEVANCY OF FACTS 99
fact. These particular ways which the law regards as relevancy have been
described in Sections 6 to 55 which deal with relevant facts. Facts. which are
not themselves in issue may affect the probability of the existence of facts in
issue and be used as the foundation of inferences respecting them; such facts are
described in the Act as relevant facts. Facts relevant to the issue have been
arranged in the following manner :
(1) Things connected with the fact in issue as part of the same
(2) Things said viz., admissions, confessions (Sections 17 to 31).
(3) Statements by persons who cannot be called as witnesses (Sections 32
and 33).
( 4) Statements under special circumstances (Sections 34 and 35).
(S) Decisions in other cases (Sections 40 to 44).
(6) Opinions about fact in issue (Sections 45 to 51).
(7) Character and reputation of parties concerned (Sections 52 to 55).
Basis of the rule.-Every facts is a part of other facts. There is no fact
which is unconnected with other facts. "The affairs of men consist of a
complication of circumstances so intimately interwoven as to be hardly
separable from each other. Each owes its birth to some preceding circumstance
and in its turn becomes the prolific parent of others and each during its existence
has its inseparable attributes and its kindred facts materially affecting its
character and essential to be known in order to right understanding of its
nature." Section 6 lays down that the facts which are so connected with the
facts in issue that they form part of the same transaction are relevant facts.
Sections 6, 7, 8 and 9 give the various ways in which the facts are so
related to each other to form component of the principal facts. These sections
enact the law which is usually laid down in England in these terms, namely,
that acts, declarations and incidents which constitute or accompany and
explain the fact or transaction in issue are admissible for or against either
party as forming parts of the res gesme. The section renders relevant facts
which form part of the same transaction as the fact in issue. Even hearsay
statements are admissible under this section if they form part of the
transaction.
"Same transaction."-The term 'same transaction' has not been defined
in the Evidence Act. A definition of the word is given by Stephen who says, "A
transaction is a group of facts, connected together to be referred to by a single
legal name, a crime, a contract, a wrong or any other subject of enquiry which
may be in Issue." From its very nature the word 'transaction' is incapable of
exact definition. It should be interpreted not in any strict or technical way but
in its ordinary etymological meaning of "an affair" or "a carrying through."
The rule of efficient test for determining whether a fact forms part of the same
transaction or another "depends upon whether they are so related to one
100 EVIDENCE ACT [S. 6
another in point of purpose, or as cause and effect, or as probable and subsidiary
acts as to constitute one continuous action." Proximity of time is not so essential
as continuity of action and purpose. On the one hand, the mere proximity of
time between several acts will not necessarily constitute them parts of the same
transaction, on the other hand, the mere fact that there are intervals of time
between the various acts will not necessarily import want of continuity. To
ascertain whether a series of acts are parts of the same transaction, it is
essential to see whether they are linked together to present a continuous
whole.1 Section 6 lays down that facts, which form part of the same transaction
are relevant.
Res gestae.-The principle underlying Section 6, the following is
sometimes termed as res gestae. This phrase means simply a transaction, 'thing
done', 'the subject matter'. 'Res gestae' of any case properly consists of that
portion of actual world's happenings out of which the right or liability,
complained or asserted in the proceeding, necessarily, arises. Apparently the
phrase is well established in the Law of Evidence. It is necessary therefore, to
understand what-it really means. That has been used in two senses. In the
restricted sense it means world's happening out of which the right or liability
in question arises. In the wider sense it covers all the probative facts by which
res gestae are reproduced to the tribunal where the direct evidence of witness or
perception by the court are unattainable. In restricted meaning res gestae
imports the conception of action by some person producing the effects for which
the liability is sought to be enforced in action. To be clear, in the restricted
sense "facts which constitute the res gestae must be such as so connected with
the very transaction or fact under investigation as to constitute a part of it."
Whatever act, or series of acts constitute, or in point of time immediately
accompany and terminate in. The principal act charged as an offence against
the accused from its inception to its consummation and whatever may be said by
either of the parties during the continuance of the transaction, with reference to
it, including herein what may be said by the suffering party, though in absence
of the accused during the continuance of the action or the latter, form part of the
principal transaction and may be given in evidence as part of res gestae of it.
While, on the other hand, statements made by the complaining party, after all
action on the part of wrong-doer has ceased and some time has elapsed do not
form part of res gestae and should be excluded.
"The res gestae may be defined as those circumstances which are the
automatic and undersigned incidents of a particular litigated act and which are
admissible when illustrative of such act. These incidents may be separated
from the act by a lapse of time more or less appreciable. A transaction may last
for weeks. The incident may consist of sayings and doings; they may comprise
things left undone as well as the things done. They must be necessary incidents
of the litigated act in the sense that they are not produced by the calculated
policy of the actors. They are the acts talking for themselves not what people
say when talking about the acts. In other words they must stand on an
1. Ran. Chandra v. Emperor, AlR 1939 Born. 129.
s. 6] OF THE RELEVANCY OF FACTS 101
immediate casual relation to the actual relation not broken by the interposition
of voluntary individual witness seeking to manufacture evidence for itself. The
test of the admissibility of evidence as part of res gestae is whether the act,
declaration or exclamation is so intimately interwoven or connected with the
principal facts or even which it characterises as to be regarded as a part of the
transaction itself and also whether it negatives any premeditation or purpose
to manufacture testimony".
"Facts forming part of same transaction."-The transaction consists
both of the physical acts and the words accompanying such physical acts,
whether spoken by the person doing such acts, the person to whom such acts are
done or any other person or persons.
Physical acts forming a part of a transaction.-The facts forming the
part of the same transaction with the fact in issue are relevant. The expression
'res gestae' as applied to a crime means the complete transaction from its
starting point in the act of the accused until the end is reached. What in any
case constitutes a transaction depends wholly on the character of the act and
the circumstances of the case. It frequently happens that, as evidence of
circumstances may be resorted to for the purpose of proving the commission of a
particular offence charged, the proof of those circumstances involves the proof
of other acts either criminal or apparently innocent. In such cases it is proper
that the chain of evidence should be unbroken. If one or more links of that chain
consist of circumstances which tend to prove that the prisoner has been guilty of
other crimes than the one charged, there is no reason why the court should
exclude those circumstances. They are so intimately connected and blended with
the main facts adduced in evidence that there is no reason why the
criminalities of such intimate and connected circumstance should exclude them
more than other facts apparently innocent. Thus, if a man be indicted for murder
and there be proof, that the instrument of death be pistol, proof of that the
pistol belonged to another man, that the prisoner was there on that night and
the pistol was seen in his possession on the day of the murder, just before the
fatal act, is undoubtedly admissible, although it has a tendency to prove the
prisoner guilty of larceny. Where a prisoner was charged with stealing six
marked shilling from a till and evidence was tendered of the taking of other
money at the same time, it was held that the evidence was admissible as the
several acts of the accused in taking the money were the parts of the same
transaction. Such circumstances constitute a part of the transaction and whether
they perfectly are innocent in themselves or involve guilt makes no difference
as to their bearing on the main question which they are adduced to prove." A
fact forming part of the same transaction with the fact in issue is relevant under
Section 6 though left to itself it has no bearing on the fact in issue. It is a
general rule that the evidence of connected precedent or surrounding
circumstances is proper to show the probability that the principal fact has
happened in all cases where it may naturally be assumed that a connection
exists between the main fact and the subordinate fact.
Where the transaction consists of several physical acts, in order that the
chain of such acts may constitute the same transaction, they may be connected
102 EVIDENCE ACT [S. 6
together by proximity of time, by proximity of place, continuity of action and
community of purpose.
Statements as res gestae.-In Gentela Vijay Yardhan Rao and Others
v. State of Andhra Pradesh,1 the accused sneaked into passenger bus with most
inflammable liquid, petrol and match-box and then set it at blaze as a result 23
passengers were roasted to death. The Magistrate recorded the statement of
victim under expectation of death. In view of appreciable interval between acts
of carnage and Magistrate's recording of statement, the statements recorded by
· Magistrate did not form part of res gestae.
In State of Andhra Pradesh v. Panna Satyanarayan,2 the accused
murdered his wife and daughter. The father of the deceased wife stated that
father of accused told him on telephone that his son had killed the deceased.
There was no finding as to whether the information given by accused's father
to the deceased's father that the accused had killed the deceased was either
of the time of commission of the crime or immediately thereafter so as to form
the part of same transaction. The statement was held to be not relevant under
Section 6.
The time.-Section 6 of Evidence Act is an exception to the general rule
whereunder the hearsay evidence is admissible for bringing hearsay evidence
under Section 6, it has to be established that it must be almost contemporaneous
with the acts and there should not be an interval which would allow
fabrication. The statements sought to be admitted, therefore, as forming part of
res geetae, must have been made contemporaneously with the acts or
immediately thereafter.3
No uniformity exists in the length of time over which the transaction
· shall properly be held to extend. The act or transaction may be completed in a
moment of time, or, if there are connecting circumstances it may extend, through
a period of days, or weeks or even months. If on a public street there is an
unexpected collision between two men, entirely strangers· to each other, the
transaction of the' collision is confined within the few moments it occupies.
When there is a social fair in which two religious parties are arrayed against
each other for weeks, then all that such parties do or say under such
circumstances is as much part of the transaction as blows given inhomicides for
which particular prosecution may be brought. In case of direct evidence as to
oral contract entered into at a particular interview, the transaction may cover
only a few minutes. In a case where an agreement between the parties has been
reached by a series of negotiations, extending over months or even years, the
_time covered by the transaction will be extended.
Space.-No limitation can be imposed as to the territorial boundaries
within which the transaction must occur. Those of sudden quarrel, shooting or
stabbing may occur at one place even in a room. They may on the other hand,
like. a rebellion, or other movement may cover the breadth of a country or of a
continent.
I. AIR 19% SC 2791.
2. AIR 200) SC 2138.
3. Sukhar u. Staie of U.P., (1999) 9 SCC 5(1!.
s. 6] OF THE RELEVANCY OF FACTS 103
Psychological acts forming part of the transaction, or-"words
accompanying physical acts".-The words spoken by the person doing the
act, or by the person to whom they were done or by the bystanders are relevant
as a part of the same transaction, but it should be borne in mind that such
statements or declarations, as they are called, in order that they might ~
admissible as res gestae should be contemporaneous with the transaction in
issue, that is, the interval should not be made as to give time and opportunity
for fabrication and connection and they should not amount to mere narrative of a
past occurrence. They are admitted, when they appear to have been made under
the immediate influence of some principal transaction relevant to the issue and
are so connected with it as to characterise or explain, immediate influence of
some principal transaction relevant to the issue. A bare statement of the
complainant to the third person is not admissible, it is the power of perception
unmodified by. recollection that is appealed to and 'not of a recollection
modifying perception. Whenever recollection comes in whenever there is
opportunity for recollection and explanation the statements cease to be part of
the transaction. A declaration must be substantially contemporaneous with the
fact and if it is separated from the fact by an interval which, though however
slight allows of fabrication, it cannot be treated as substantially
contemporaneous with it and would not the statement of its effect as res
gestae and would reduce it to the status of a complaint or narration of a past
event.1
All spontaneous statements in some way connected with the transaction
under investigation are not admissible. It must be shown that the statement is a
part of the transaction. The statement is not admissible only because it is
uttered in the course of the transaction. To be admissible it must be a part.of the
transaction. If 'A' assaults 'B' on the neck with a knife and this is seen by
bystanders who exclaim,.'A' is killing 'B' ,2 the exclamation is as much part of
the transaction of murder as the gushing out of the blood from the wound
inflicted on the neck with the only difference that the latter is a physical
reaction to the act whereas the former is the psychological reaction through
perception. While no doubt the spontaneity of the statement is guarantee of the
truth the reaction for its admissibility under Section 6 is that it is part of the
transaction and not merely because it is spontaneous.
In R. v. Bedingfied,3 a woman with a throat cut came out of the room
suddenly and said to the witness "Aunt see what Bedingfied has done to me".
C.J. Cockburn held it to be not admissible as res gestae because the statement
was .made after the incident was over.
In R. v. Christie,4 a statement made by a young boy to his mother shortly
after indecent assault on him by the offender was held not to be res gestae as it
being so separate by the time and circumstances could not be said to be part of
the same transaction.
1. Kameshwar Prasad Singh v. Rex, 1951 ALJ 149.
2. Saw al Das v. State of Bihar, AlR 1974 SC 778.
3. (1695) 6 Skin 402.
4. (1914) AC 545, Per Lord Atkinson.
10 4 EVIDENCE ACT (S.6
In Rutten v. Regina,1 the caller a woman giving her address in distress
completed ts
requested the telephone operator to connect the police but call could not be
it ended suddenly. When the police came to her house, she was
found ther dead. Her husband, who was charged of killing her by shooting,
took the plea that the fire was accidental but it was held to be intentional on
the basis of her call to the operator to connect the police as no victim of accident
would think of getting the police prior to the incident. The call by the woman
and whatever she said was held to be res gestae.
According to Lord Wilberforce Bedingfied's case was more useful as a focus
of discussion than the decision on the facts.
Res gestae an exception to hearsay.-The res gestae is an exception to
the principle that hearsay evidence is no evidence. In R. v. Foster,2 the
deceased had been killed in an accident by the speeding truck. The witness had
not seen incident but only the speeding truck. The deceased stated to him what
had happened with him in the accident. The Court held the statement of the
deceased to the witness to be admissible in evidence as res gestae.
Statement in answer to a question.-As said earlier, the requirement
of Section 6 is that the statement must have been made contemporaneously with
the act or immediately after it and not at sud. an interval of time as to make it
a narrative of past events. If the statement is answer to a query after lapse of
some time, it cannot be treated as res gestae.3 At the time of murder, the cry of
deceased 'save me' and that of the children that their mother was being killed
are relevant as res gestae.4
When a minor married girl was abducted by accused immediately on her
recovery at the railway platform she told her uncle that she had handed over
her ornaments to Ram Das who had placed them in his jhola and had run away
with the ornaments. The statement is relevant under Section 6.5
Pratap Singh was charged with the murder of Ram Charan. One Sarfaraz
Beg deposed before the court that at about 1.50 p.m. on the night of the alleged
occurrence, he heard some row from his house which was at the distance of
about 400 yards from the place of occurrence. He said that he went towards the
place of occurrence near which a large crowd had collected. On going inside the
house he found a dead body lying with fresh wounds. According to the witness,
Mst. Mahadevi was there. When she was questioned about the murder she
stated that her husband and brother had run away after committing the
murder. It was held that as the statement was in answer to a query and was
made after the lapse of some time after the murder, it cannot be treated either
as spontaneous or as part of the transaction of the murder, and so was not
admissible.6
1. (1971) l WLR 801 (PC).
2. (1834) 6 C &: C 325; 172 ER 1261.
3. Pralap Singh 11. Stale, 1971 Cr LJ 172.
4. Sawn.I Das 11. State of Bihar, AIR 1974 SC 778.
5. Ram Das 11. State, 1972 Cr LJ 57.
6. Pratap Singh v. State of M.P., 1971 Cr LJ 172.
S.6] OF TI!E RELEVANCY OF FACTS 105
K was staying in a hotel where there was a wine bar. Early in the
afternoon he took brandy and upto 2 p.m. he consumed 5 pegs. J was employed as
bearer of the hotel. It was alleged that the applicant asked him to bring hot
water for bath. It was alleged that the applicant asked for one more peg. That
was done.'/' then asked 'K' what more could be brought for him. This annoyed
the applicant who abused 'J' and shortly afterwards went inside his room and
bringing a gun fired at 'J' who crouched down and the shot missed him. Some
people came hearing the shots, and found 'j' crying. Upon enquiry he said that
he had been fired at by 'K'. It was held that the statement of 'j' did not form
part of the same transaction as the act of firing and was not admissible.1
In Noor Mohd v. lmtiaz Ahmad,2 one R practised fraud upon one M and
thus took Rs. 8,000. M lodged a report and filed a complaint. One S a prosecution
witness stated that M came to him and said that he had been deprived of about
Rs. 8,000, that M again came to him and told him that he had neither filed a
complaint against him nor had made a report against R and that after having
robbed him, R was still trying to rob him of what he still had, that after he
(the witness) once visited M and the latter said that R was making his life
miserable and that the witness said that he would take steps to have his
money recovered and thereupon M said "let that matter go. I have forgiven him
but he should not touch what is left." This statement was held inadmissible as
it was mere narrative of past occurrence.
In Richard Gillie v. Pasho us» a dispute between A and B was whether
A had agreed to make a purchase from B on a certain date. In support of B's
allegation that A had agreed to make the purchase, a letter, dated 23rd
December, 1926 from him (B) to a solicitor was produced. In this letter B had
made a mention that A had agreed to make a purchase. The letter was held
inadmissible as there was no evidence to show whether the statement in the
Jetter was made with reference to some events which had just happened.
A is passing by a road. B is walking ahead of him. C comes from aside and
stabs B from behind. A is awe-struck and cries instantaneously. 'O' wicked C
what have you done. This utterance is a straight outcome of the feeling of A
created by the shock of the stabbing upon the mind of A.
'A' begins assaulting 'B', 'C' and 'D' begin shouting that 'A' is assaulting
'B'. The fact that 'C' and 'D' shouted that 'A' was assaulting 'B' is relevant.4
The deceased and many others were celebrating Holi. The accused fired at
the deceased. Some of the witnesses arrived at the scene of occurrence
immediately after occurrence. The bystanders informed the witnesses that the
accused fired at the deceased. The evidence of the witnesses to the effect that
the person, present on the scene of occurrence told them that the accused fired at
the deceased is relevant.5
1. Kameshwar Prasad v. Rex, 1951 AL} 149.
2. AIR 19J2 Oudh 132.
3. AIR 1939 PC 146.
4. M.P. Jairaj 11. State of Karnataka, 1980 Cr. LJ NOC 13.
5. Jetha Ram v. State of Rajasthan, AIR 1979 SC 22.
106 EVIDENCE ACT [S. 6
The accused dragged the deceased from his house to Chowk area and
began to beat him. 'Z' who was present when the beating began ran to the
village Police Patel namely Lakshman, while the beating was in progress, and
told him that the deceased was being beaten by the accused. The statement of
the Patel before the court that Z told him that the accused were beating
deceased was held relevant.1
Rape.-Where the raped girl made a statement to her mother after the
rape when the culprit had gone away and the girl came home from the scene of
occurrence it was held not to be admissible under Section 6 as part of the
transaction.2
Statements of by-standers.-As seen before a statement of a by-stander
is admissible under Section 6 it forms part of the same transaction with the fact
in issue. The word 'bystanders' means the persons who are present at the 'time of
incident and not the persons who gather on the spot after it. H must be noted
that such statement is relevant only if is that of a person who has seen the
actual occurrence and who uttered it simultaneously with the incident or so soon
thereafter as to make it reasonably certain that the speaker is still under the
stress of excitement caused by his having seen the incident. The remark made by
the persons other than the eye-witnesses could only be hearsay because they
must have picked up the news from others.3 · police had already reached the village P.W. 6, told the Police that the
In Nasiruddin v. Emperor,4 one Fakiria was killed in broad daylight in
one of the crowded Bazars of Gujranwala. At the trial one Mst. Aishan Bibi was
examined as witness, She stated that when she reached the spot, she heard
the people present saying that Rajja, Nasiria and Jagari had committed the
crime. It was not stated that the people who informed her of the names of the
murderers were present when the murder was being committed . .It was held that
the statement was 'not admissible.
In Chhotka v. State,5 the accused were charged for the murder of Bhutu.
Bhutu Wf!S sitting on the cemented ledge in front of the shop and had been
served with tea, when the accused Chhotka came up and inflicted multiple
injuries. Bhutu reeled into the open drain nearby from where he was picked by
Shyama and Nero who placed him first on the Kachha flank of the road and
shortly thereafter carried him to the dispensary. The injured was placed on the
verandah of the dispensary where a large crowd was collected. One Kiran Bala
informed Moti Bewa the mother of thedeceased of the assault on her son by the
appellant. Kiran Bala happened to have gone to the tea shop in front of which
the occurrence is alleged to have taken place. At the moment of Kiran Bala's
visit the injured Bhutu had just been picked up from the drain and placed on the
flank of the Kachha road. Kiran Bala learnt from the bystanders shortly after
the occurrence that the appellant had stabbed Bhutu. This statement of Kiran
Bal~ was held inadmissible. The bystanders or the crowd from whom Kiran
1. Badruddin v. State of Maharashtra, AIR 1981 SC 1223.
2. Gulam v. R., AIR 1930 Lah. 337.
3. Mahadco v. State of M.P., 1975 Cr LJ 110.
4. Nasiruddln v. Emperor, AIR 1954 Lah 46.
5, Chhotka v. State, AIR 1958 Cal. 482.
s. 7] OF THE RELEVANCY OF FACTS 107
Bala heard the statement could not be presumed to have been present at the
time the murder was committed.
In Mahendra Pal v. State,1 the place where a murder was committed was
occupied by a number of persons apart from the deceased and eye-witnesses.
Those persons came up immediately after and were informed by the eye-
I,
' witnesses as to who the two culprits had been. The statements of these persons
were held to be admissible.
The accused-appellant was alleged to have killed his wife and five
daughters. P.W. 1 stated that P.W. 2 came to his house at about 10.30 p.m. and
told that the accused had killed his wife and daughters. T the neighbour of
the appellant had come to the house of P.W. 2 at about 11.00 p.m. and told him
that the appellant had murdered his wife and daughters with an iron knifes.
Thereafter P.W. 2 alongwith P.W. 1 and P.W. 3 went to the house of the
appellant and found the wife and children of the appellant lying dead and the
appellant in an unconscious state. The house of the appellant was at a distance
of 100 yards from Gandhi Chawk where these witnesses were stated to have
found that P.W. 6, the mother of the appellant was crying aloud of killing
appellant. Thereafter, P.W. 2 alongwith P.W. 1 and with one V, went to the
Police Station and gave the information. By the time they came back, the
appellant had killed his wife and children. The Court by a majority judgment
held the accused not guilty. The statement of P.W. 6 was found to be not so
shortly after the incident as to form part of the same transaction. To attract the
provisions of Section 6 of Evidence Act spontaneity and immediacy is necessary.
Therefore, the evidence of prosecution witnesses on that basis was held liable
to be rejected. The evidence which came from witnesses and forensic evidence
also fell short of holding the accused guilty.2
F.I.R. when res gestae.-If a witness present at the scene of occurrence
sees the whole occurrence· from beginning to end, makes cry about the offence
being committed when people from vicinity reach, he tells the story of
occurrence and then after some time goes to police station and makes first
"', information report, the making of the report is part of the transaction and so it
amounts to res gestae. The fact that some time has elapsed between the
occurrence and report is immaterial.J
S ECTION 7.-Facts which are the occasion, cause or effect of facts in
issue.-Facts which are the occasion, cause or effect, immediate or
otherwise, ofrelevant facts, or facts in issue, or which constitute the
state of things under which they happened; or which afforded an
opportunity for their occurrence or transaction, are relevant.
Illustrations
(11) The question is whether A robbed 8.
1. Mahendra Pal v. State, AJR 1955 All. 328.
2. Dhal Singh Dewangan v. State ol Cl\attisg.irh, AIR 2016 SC 4745 pp. 4755, 4756, 4757.
3. Shyam Nandan Singh v. State of Bihar, 1991 Cr.L.J. 3l50; Sawal Dall v. State of Bihar. AIR 197"
SC778.
108 EVIDENCE ACT [S. 7
The facts that, shortly before the robbery, B went to a fair with money in
his possession, and that he showed it or mentioned the fact that he had it, to
third person, are relevant.
(b) The question is whether A murdered B.
Marks on the ground, produced by a struggle at or near the place where the
murder was committed, are relevant facts.
(c) The question is whether A poisoned B.
The state of B's health before the symptoms ascribed to poison, and habits
of B, known to A, which afforded an opportunity for the administration of
poison, are relevant facts.
COMMENTS
Scope.-Section 7 lays down that the facts which are cause or effect of
the facts in issue or of relevant facts are relevant. It also lays down that the
facts which are occasion or which afford an oprortunity for the occurrence of
the fact in issue or of relevant fact, are relevant. · afford an opportunity for its occurrence or facts from which its occurrence was
Causation.-"Such relations make it possible when the existence of the
fact in the chain of causation is asserted to·test the truth of the assertion by an
inquiry as to existence of those facts, with which; had it existed, it would have
been so connected as to make their-own existence nece~sa.cy. -0&-.at·least highly
probable". · ·
"There is a principle implied in the very statement of what induction is;
an assumption with rega.rd to the grace of nature and the order of universe,
namely, that there are such things in nature as parallel cases that what
happened once, will, under a sufficient degree of similarity of circumstances
happen again and only not again but as often as the circumstances recur. This, I
say, is an assumption, involved in every case of induction and if we consult the
actual grace of nature we find that the assumption is warranted. The universe
so far known to us is so constituted that whatever is true in any one case is true in
all cases of certain description. The only difficulty is to find out the
description."
Section 7 based on induction.-Under Section 7, the relevancy of facts
is to be determined by human experience. What has been the effect of a
particular cause and what has been a constant cause of a particular effect in the
past, will be the same in future. The thing will be clear by taking examples. If a
living being is cut into pieces on the ground there shall be bleeding and the
blood will be found on the place of occurrence. By his induction whenever a man
finds human blood in a great quantity on a particular place he may reasonably
infer that some living being was cut into pieces or at least severely injured
there.
Section 7 embraces larger area than Section 6. Under Section 6 a fact to be
relevant was to "form part of the same transaction." It may often be difficult for
a judge to say whether a fact or action can be properly said to form part of the
l. Chhotka 11. State, AIR 1958 Cal 482.
s. 7] OF THE RELEVANCY OF FACTS 109
same transaction with the fact in issue. Section 7 leaving the transaction
beside, provides for the admission of several classes of facts, which though do
not possibly form part of the transaction,' are yet connected with it in particular
modes and so they are relevant with the transaction under enquiry. The facts
which are connected with the fact in issue in the following modes are relevant
under the section :
I,_
I ( 1) The facts as being occasion or cause of (the fact in issue) or of relevant
fact.
(2) Facts as being their effect.
(3) Facts as giving opportunity for their occurrence.
(4) Facts as constituting the state or things under which they happened.
These modes of action mentioned above are in truth the different aspects
of causation and the reason for admission of this nature of evidence is that if
you want to decide whether a thing occurred or not, the most and the first
natural step is to see whether there were facts at hand calculated to produce or
calculated to be produced. Moreover properly to appreciate a fact it is necessary
to know the state of things in which it occurred.
Occasion, cause, effect and opportunity.-The elements are so
connected together that it would be convenient to take them together, / was
tried for the murder of K. The dead body of K was found near a bridge in a gunny
bag. At the trial the. facts proved were : (i) the wife of K deposited all her
ornaments with /;(ii)/ took all the money that K had for purchasing a truck
that he never purchased; (iii) K demanded money from Jon the 17th May, 1947.
J asked K to come on the 19th May; (iv) K came and stayed with Jon the 19th
night, of these facts, the facts of/ being indebted to Kand K's demand for money
are relevant as the cause of murder and the fact that K went and stayed there
and slept are relevant as the occasion of murder and also. opportunity for it.1
The falling of trees in large numbers in locality indicates the existence of a
storm previously ; the tanks reservoirs found filled with water and rivers found
., in spate, indicate that there has been heavy rainfall. These are illustrations of
inferences from effect back to the existence of cause.
Foot prints.-The evidence that there were footprints, at o~ near the
scene of offence, of the accused is relevant as the effect of the going of the
accused that way.2
Injuries of accused.-The facts that the accused of a riot case had
injuries on their person is relevant to show that they took part in the riot-this
is relevant as the effect of taking part in riot.3
The state of things under which they happened.-In a murder trial
evidence was led to the effect that when it became cloudy and stormy, when
1. Jai Nand Dr. v. Rex, AIR 1949 All. 291.
2. Sldik Surnar ti. Emperor, AIR 1942 Sind 11,
3. Chandra Copal v. State, AIR 1955 NOC ~845.
110 EVIDENCE ACT [S.
the electricity failed and when it became very dark the murder was committed.
In this case the fact of murder is principal fact and the other facts show the
state of things under which the principal fact happened.
Distinction between possibility, capacity, tendency and cause.-
The notion of causation is by no means easy to analyse correctly, but it is enough
hereto point out that certain superficially different terms represent essentially
the same evidential process. When it is asked, for example, whether certain
factory-vapours were the cause of a destruction of herbage the notion of cause,
simply as it seems, became upon analysis somewhat complex and at the same
time indefinite. Stated in its broadest form, the notion of cause and effect is
merely that of invariable sequence. It is only rarely however, if at all, that
such an abstract assertion can be made in universal terms that will stand
examination. Thus that a bullet shot from a pistol into the heart "cause" i.e.,
will invariably be followed by death, is a seerningiy impregnable assertion,
and yet not only may it not be true of bullet of every size, but it may not be true,
even with ordinarily large bullets, in instances recorded here and there, and in
the future, surgical skill may show that the instances of non-sequence of death
might be made even more numerous. The assertion may then be amended by
adding limiting conditions, so as to say that, provided this and that and the
other be so, a bullet through the heart causes death. In short, instead of an
absolute certainty or invariability of sequence, the assertion will be only of a
very high probability of sequence. In most instances no one thinks of making an
assertion in absolute form, and it is easy to say that an assertion of causation
means easily only an assertion of high probability or strong tendency. Thus, the
planting of seeds in good soil at the right time of the year will probably result
in a harvest in due season, but the result is not invariably certain, because no
rain may fall or the land may be built upon or other influences may intervene.
Though we should feel justified in speaking of the seed as the cause of the
harvest, yet it would not be intended to assert anything more than the seed has
a tendency to produce the harvest. Coming now to an example of still weaker
probability, suppose it to be asserted that gun powder may spontaneously, that
it is without human meddling explode. This is not saying that it will probably
so explode, but merely that under a rare combination of circumstances it will do
so i.e., it has a capacity to do so. Capacity, then, is a quality representing the
same process of thought as tendency, i.e., it represents the possibility of a result
as compared with the probability of a result, and above them both is notion of a
still highest degree, rarely realised in experience that of absolute certainty of
result. All these are in the same category, the difference is that in the highest
degree we think of the sequence as occurring under any and every combination of
other circumstances, but on the middle degree under ordinary combinations only,
and in the lowest degree under rare combinations only. The notion of causation is
perhaps most commonly associated with the middle and highest degree only,
i.e., one would naturally say a bullet through the heart will cause death" and
"showing seed will cause a harvest," while in the lowest degree one would
either not speak at all of cause or would qualify the statement for example, by
saying 'gun powder may cause spontaneously an explosion'. The essential thing
to note is that all these terms express only varying degree of certainty or
7 s. 7) OF THE RELEVANCY OF FACTS 111
probability or possibility and that they all belong to the same logical category
of thought-" Wigmore.
In Spencer Cooper's trial for murder, the body of the deceased was found in
a river. The question in issue was whether she has committed suicide by
jumping and drowning in the river or had been killed and thrown into the
water. The stomach of the deceased contained no water. The prosecution
wanted to adduce evidence of expert doctors to the effect that a person who dies
in water the stomach must contain water. On the other hand the defence tried
to adduce evidence to the effect that a person dying in the water does not
necessarily take water inside his belly. Now in this case facts in issue are (1)
whether the deceased was killed outside and thrown into the water, or (2) she
Jumped into the water and died of drowning. Now the evidence tried to be
adduced by the parties is only to show as to what is the effect of a drowning.
One party· tried to prove by general happenings of the world that a man
drowned must have water in stomach while other party tries to prove that a
man may be drowned and still may not have water in the stomach. These
facts which being the general consequences of drowning arc relevant under
Section 7.
In another case the plaintiff brought an action against a barber for
negligent use of razor by which he had caused the plaintiff to have barber's
itch. The plaintiff adduced evidence to prove and he was allowed to prove
that he never went to another barber's shop and that two other persons who
had been shaved by the defendant acquired the itch. These facts were allowed
as they constituted the state of things in which the plaintiff acquired itch.
Similar Facts.-Generally speaking it is not admissible to prove the fact
in issue by showing that, facts similar to it (fact in issue) have occurred on
similar occasions. "It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused has been guilty of criminal acts other
than those covered by the indictment for the purpose of leading to the
conclusion that the accused is a person, likely from his criminal conduct or
character to have committed the offence for which he -is being tried." There are
certain exceptions to this general rule. If the· similar acts are so related with
the main acts as to show the party's identity irrespective of .any general
propensity, they will be admissible, notwithstanding that they may also tend
to show such propensity. So to show that A was a writer of a libellous letter,
other letters written by 'A' to third persons are admissible to prove by
comparison that the letter in question was written by A. In some other cases
evidence of similar instances are admissi'rle.
CASES
(i) The plaintiff filed a suit for injury received due to a defective stair
case. The defendant was allowed to adduce evidence that 43,000 persons have
passed from the stair-case and none received injuries.
(ii) In a case the question was whether heap of refuse and earth, in a
highway had a dangerous tendency to frighten horses. To prove this tendency
112 EVIDENCE ACT
to frighten horses the facts was received by the drivers of various other horses
than the plaintiff in passing the heap.1
(iii) In another case the question being whether A's dog killed certain
sheep belonging to B. The fact that the same dog had been seen killing one of
B's sheep on a mountain on a saturday and other sheep of B were found dead on
the same evening was h~ld admissible.
(iv) Some footprints were found near the scene of occurrence. The
prosecution led evidence of a tracker to prove those footprints were that of the
accused. The evidence was held admissible.2
(v) A Jetter was despatched to one Joshi. He sent a letter in reply. The
letter of Joshi was produced in evidence. But the contents could not be proved. It
was held that though the contents of the letter could not be proved the fact of
its receipt purporting to come from Joshi in reply to a letter sent to him would be
relevant under Section 7.3
(vi) The plaintiff claimed certain sum of money from the defendant. Of
that sum certain items were not recorded in the regularly kept account book of
the defendant. It was held that the absence of entry is admissible to prove
want of payment under Section 7.4
(vii) A is charged for poisoning B. The fact that A lives in the same house
with B and had opportunity for tampering with his food and drink is' relevant.
(viii) A is charged for entering B's room in night for stealing money. The
fact that A lived in the same house, and that there were interconnecting doors,
are relevant facts as giving opportunity of having committed theft.
Tape-recorded conversation.-Tape-recorded conversation is relevant
under Sections 6, 7 and 8 of the Evidence Act, it is res gesiae. It is also
comparable to a photograph of relevant incident. Tape-recorded conversation is
therefore a relevant fact and is admissible under Section 7 of the Evidence Act.
The tape-recorded conversation is relevant provided first the conversation is
relevant to matter in issue, secondly, there is identification of voice and,
thirdly, the accuracy of tape-recorded conversation is proved by eliminating
the possibility of erasing the tape-recorded conversation.5 There should be no
possibility of tampering of statement.6
S ECTION 8.-Motive preparation and previous or subsequent
conduct.-Any fact is relevant which shows or constitutes a motive
or preparation for any act in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit,
or proceeding, in reference to such suit or proceeding, or in reference to
1. Best on 'Evidence,' p. 467, See also Brown v. E.C.R. Co., 22 BD 391.
2. Lewis v. Jones, 1 11.R 153.
3. Pratap Singh v. The State, AIR 1955 Saurastra 68.
4. Kasam v. Firm of Hap Jamal, 76 JC 327.
5. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pratap Singh v. State of Punjab, AIR
1964 SC 72; Ramo Reddy v. V.V. Ciri, AIR 1971 SC 1162.
6. Lachmandas v. Deep Chand, AIR 1974 Raj. 79.
[S. 8
s. 8) OP THE RELEVANCY OP FACTS 113
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.
Explanation 1.-The word "conduct" in this section does not include
statements, unless those statements, accompany and explain acts other
than· statements, but this explanation is not to affect the relevancy of
statements under any other section ofthis Act.
Explanation 2.-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.
lllustraticms
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C and
that B had tried to extort money from A by threatening to make his knowledge
public are relevant.
(b) A sues B upon a bond for the payment of money, B denies the making of
the bond.
The fact that, at the time when the bond was alleged to be made, B
required money for a particular purpose, is relevant.
(c) A is tried for the murder of B by poison.
The fact that before the death of B, A procured poison similar to that
which was administered to B, is relevant.
(d) The question is whether a certain document is the will of A.
The facts that, not long before the date of the alleged will A made inquiry
into matters to which the provisions of the alleged will relate, that he
consulted vakils in reference to making the will, and that he caused drafts or
other wills to be prepared of which he did not approve, are relevant.
(e) A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime,
A provided evidence which would tend to give to the facts of the case an
appearance favourable to himself or that he destroyed or concealed evidence,
or prevented the presence or procured the absence of persons who might have
been witnesses, or suborned persons to give false evidence respecting it, are
relevant.
(j) The question :s whether A robbed B.
The facts that after B was robbed C said in A's presence-"the police are
coming to look for the .nan who robbed B" and that immediately afterwards A
ran away, are relevant.
(g) The question is whether A owes B rupees 10,000.
114 EVIDENCE ACT [S. 8
The facts that, A asked C to lend him money, and that D said to C in A's
presence and hearing-"] advise you not to trust A, for he owes B, 10,000 rupees"
and that A went away without making any answer are relevant facts.
(h) The question is, whether A committed a crime.
The fact· that, A absconded after receiving a letter warning him that
inquiry was being made for the criminal, and the contents of the letter, are
relevant.
(1) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or
was in possession of property, or the proceeds of property acquired by the crime,
or attempted to conceal things which were or might have been used in
committing it, are relevant.
(j) The question is whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint
relating to the crime, the circumstances under which, and the terms in which
the complaint was made are relevant.
The fact that, without making a complaint, she said that she had been
ravished is not relevant as conduct under this section, though it may be relevant
as a dying declaration under Section 32, clause (1), or as corroborative evidence
under section 157.
(k) The question is, whether A, was robbed.
The fact that, soon after the alleged robbery, he made a complaint
relating to the offence, the ·circumstances under which, and the terms in which,
the complaint was made, are relevant.
The fact that he said he had been robbed without making any complaint,
is not relevant, as conduct under this section though it may be relevant as a
dying declaration under Section 32, clause (1), or as corroborative evidence
under Section 157.
COMMENTS
Scope.-Section 8 deals with the relevancy of motive, preparation and
conduct. It lays down that (1) a fact which shows or constitutes a motive for any
fact in issue or relevant fact is relevant ; (2) a fact which constitutes or shows
preparation for any fact in issue or relevant fact, is relevant ; (3). previous or
subsequent conduct of any party or of any agent to any party to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any fact in
issue or relevant fact, are relevant provided such conduct influences or is
influenced by any fact in issue or relevant fact ; (4) previous or subsequent
conduct of any person an offence against whom is the subject of any proceeding or
suit is relevant provided such conduct influences or is influenced by any fact in
issue or relevant fact ; (5) statements accompanying and explaining acts
(Explanation 1) ; (6) statements made in the presence and hearing of a person
whose conduct is relevant provided the statement affects such conduct.
. 8] OF THE RELEVANCY OF FACTS 115
(a) Motive-Meaning of.-A motive is that which moves a man to do a
particular act. It is that which is in the mind of a man and which moves him to
act. "The common inducement to acts, are the desires of revenging some real or
fancied wrong ; of getting rid of rival, or an abnoxious connection, or of escaping
from the pressure of pecuniary or other obligation or burden ; of obtaining
plunder or other coveted object; of preserving reputation or of gratifying some
other selfish or malignant passion."
Motive is an emotion, a State of mind, but it is often confused with events
tending to excite, to emotion, the outward facts, which may be the stimulus and
the cause of the emotion. Motive, in the correct sense is the emotion supposed to
have led to the act. It is generally proved by two sorts of circumstantial
evidence, namely: (1) conduct of the person, and (2) by events about that person
which could excite that emotion. Conduct is effect and expression of that
inward emotion.
Motive, conduct and statements.-There is hardly any act without a
motive. Motive is the moving power which impels one to do an act. It is the
inducement for doing the act. The absence or presence of a motive and evidence
of preparation, previous attempt, previous or subsequent conduct of the parties
are relevant as they help in proving or disproving a fact in controversy. It may
sometimes be important to know, whether a man charged with an offence, has
any interest or motive to commit it. In determining the fact whether a man
charged with an offence, committed it or not, it is important to know whether
previous to the act he made certain preparations to do the act. Again, the
conduct, antecedent or subsequent, of a person committing an offence or of a
person against whom an offence has been committed, may be helpful in deciding
as to whether a man has committed an offence.
In Lakshmi v. State,1 the accused was addicted to smoking gan]« and
taking wine. He used to make demands for money from deceased Chhote Lal
who was opposed to this habit of life of the appellant and would not accede to
his request to advance him money to enable him to indulge in these vices. A few
days before the accused had also beaten his mother and wife. At that the
deceased had intervened and prevented him from doing so. On the appellant's
refusal to obey him, the deceased had chained him. The accused had run away
after breaking the chains. The accused stopped speaking to Chhote Lal. On the
evening of 6th October, 1954, Chhote Lal was sitting at his door on a chabuira.
The appellant took a phars« and proceeded towards Chhote Lal. He began to
assault Chhote Lal with the pharsa. Chhote Lal raised an alarm. A number of
persons reached the spot on hearing the cry. On the arrival of these persons the
appellant fled away outside the village with the pharsa.
The accused tried to win over the witness of fact. In jail he gave a correct
description of his address. At the trial at every stage, his statement was such
as according to his conception was best calculated to subserve his purpose and to
advance his own interest.
At the trial the accused took the plea that he was of unsound mind at the
time of the incident. All the facts given above were held to be admissible. The
1. 1959 ALJ 287.
116 EVI DEN CE ACT [S. 8
facts given in the first para were admitted as motive of the murder, the
content, of sec ond para were allowed as the conduct of the accused, before the
incident, at the tim e of the incident and afte r the incident. Th e facts given in
third para were admissible as conduct of the accused during the trial in
reference to the proceed ings.
In State of M.P. v. Dhirendra Kumar,1 Munnibai was killed. Respondent
Dhirendra Kumar had an evil eye on her. Respondent was tenant in the house
of -father-in-law of deceased. She reported the matter to her mother-in-law
who in tum told her husband who asked respondent to vacate the house. Held,
it could be taken as motive of murder.
Where from the evidence, it was established that the accused was
harbouring suspicion in his mind that the deceased was teasing his sister and
wife, the motive for the crime of murder was proved distinctly.2
Prosecutrix in the case of alleged gang-rape did not shout for help when
she was taken to garage for rape or during intermittent breaks between rape by
different accused persons. She also admitted to have taken food given by the
accused. The evidence of place of rape ~d the number of persons who raped her
twice was not consistent. She had acquaintance with the accused and after the
incid ... ,1t, she instead of hurrying back home in a humiliated state, stayed back
near the place of occurrence. She used to take financial help from the accused.
Due to her dubious night activities, she had been deserted by her husband. The
conduct of the prosecutrix was held not only unnatural but evinced feeling of
frustration due to deprivation of financial help promised by the accused and
the plea that the accused was falsely implicated for the denial of financial
help could not be discarded.'
Intention and Motive.-Motive should not be confused with intention.
Intention is an act of the will directing an act or a deliberate omission. It shows
the nature of the act which the man believes he is doing. If a man fires at a
tiger, but the aim is missed and a man is killed, he intends to kill the tiger. His
intention is not to kill the man. The motive to kill the tiger might have been to
get rid of the danger from it to men or to get its hide. A owes Rs. 1,000 to B. B
puts pressure upon A for his money. A decides to kill B with a motive to get rid
of the pressure of demand. He invites B to his house and strikes him with a
sword and kills him. His act was prompted with the said motive and at the
actual moment, the assault was with the intention to kill. Motive is reason
which prompts the intention. It is the reason which induces him to do the act
which he intends to do and does.
Importance of motive.-Motive is relevant and may be proved in a case
as it is of great importance to see whether there was motive for committing such
and such a crime or whether there was none. It is always a right argument by
the counsel of the accused that there is no apparent motive for the committal of
the crime for his client.
l. AIR l'J97 SC 318.
2. Kulvmder Singh v. State of Haryana, AIR 2011 SC 1m.
3. Raia r State ol K..mat ab, A1R 2016 SC 4930 pp. 4937, 4938, 4939.
s. 8] OP THB RBLBV ANCY OP PACTS 117
Existence of a motive for committln, a crime ls not an absolute requirement
of law but it Is always a relevant factor.
Absence of motive is a factor that weighs ln favour of the accused H it
often forms the fulcrum of the prosecution story,2
In case of direct evidence, motive for crime is meaningless.3
Motive is not Important where direct evidence is available. It 11 in case of
circumstantial evidence that motive assumes Importance.'
When t'1ere Is positive, clear, cogent and reliable ocular testimony,
motive in criminal cases Is not at all relevant. The mere fact of a 1trong motive
to commit the crime caMot be of any a11i1tance to the accused. The motive
behind a crime and absence of motive both are relevant for 111e11ing evidence.5
Motive loses all significance where pr01ecution caae Is fully establl1hed
by reliable ocular evidence,6
ln the absence of an eye-wltne11 or no 1cientlfic evidence to coMect the
accused with murder, the motive to commit murder has to be estabUshed.7
Proof of Motlve.-No doubt, motive l1 helpful In deciding a case but
often It Is very difficult to prove the motive with which an act has been done,
and so It has been laid down that If lt l1 clear and certain that a crime ha, been
committed, It 111 not esaentlal to prove that there w11 a motive for the crime.
Absence of motive or inadequacy of motive Is of comparative unimportance
where there exists absolutely cogent evidence that a crime has been committed
by a particular person.8 But If the crime is alleged to have been committed for a
particular motive, It Is relevant to inquire whether the particular crime-could
have been committed with the alleged motive.9 If there la no direct evidence of
an offence but the court has to infer about the guilt from the drcumstances, the
question of motive becomes vital. If the motive Is displaced or even made
reasonably doubtful, it Is enormously in favour of the prisoner.10 The
prosecution Is not bound to prove motive of any offence in any criminal case. If
the prosecution proves motive court has to conaider it and see whether it is
adequate.11
Where the prosecution falls completely to prove motive and evidence
regarding commission of offence is not clear and definite, the accused cannot be
convicted. But even in case of circumstantial evidence, if after giving due
consideration to the want of proof of motive the court is satisfied that the
1. Algupandl v. State of Tamil Nadu, AIR 2012 SC 2405.
2. R. Shajl v, State of Ktr1l1, AJR 2013 SC 6.51.
3. Habib v. Stitt of Utt1r Pr1dnh, AIR 2013 SC 176',
4. Subodh Nath v. State of Trlpur1, AIR 2013 SC 372611 p. 3731.
5. Darbara Singh v. State of Punjab, AIR 2013 SC 840 1t p. 844,
6. Lokellh Shlv1kum1r v. State of Kamatalca, AJR 2012 SC 956.
7. Varun Chaudhary ti, State of Rajatthan, A!R 2011 SC 72.
8. Narayan v. State of Maharashtra, AIR 1971 SC 1656.
9, State ofU.P. v. Harl PraNd, AIR 1974 SC 1740.
, 10. Matadin v. Empero r, AIR 1937 Oudh 236; Bhaojl 11. Govt. ol Hyd.,.AJR 1954 Hyd 196; Uday
• Paut Singh v. State of U.P., AIR 1972 SC 54.
11. State of Haryana v. Sher Singh, AIR 1981 SC 1021.
118 EVIDENCE ACT [S. 8
circumstances proved give one conclusion only that the accused is guilty, he may
convict the accused.'
However improbable an alleged motive for the crime may be the
prosecution is entitled to call evidence in support of it and nonetheless so
because such evidence may suggest that the accused has committed some crime
other than that with which he is charged.2
Where there is a clear proof of motive for the crime, that lends
additional support to the finding of the court that the accused was guilty, but
the absence of clear proof of motive does not necessarily lead to the contrary
conclusion. The absence of proof of motive has this effect only that the
other evidence bearing on the guilt of the accused has to be very closely
examined.3
Adequacy of Motive.-There cannot be one rule for every case, as
regards adequacy of motive ; it must depend on the moral character of the
person accused in each case. There can be no motive which can induce an honest
man to commit a crime. In the case of debauch and immoral man the slightest
motive may induce him to murder a man. The cases are not rare where men have
murdered children for ornaments worth a few chips. Thus it is seen that
adequacy of motive to commit crime depends upon the character of a man.
Sufficiency or insufficiency of motive is not always of much significance in a
criminal trial. Insufficiency of motive cannot be fatal to the prosecution case in
every trial.4 Similarly a sufficiency of motive cannot be the basis of conviction
if the case is not proved by the prosecution beyond reasonable doubt.
In the accused was charged of committing the murder of his wife in
Brussels on the very first night of her honey-moon and cutting her body into
pieces. The case was based on circumstantial evidence. The motive for the
murder was attributed that the accused objected to the behaviour of his wife
towards her male friends at the birthday party of her sister.
The engagement ceremony between the deceased and the accused took
place on 31st August, 1978 and the marriage took place on 5th September, 1978
in India. As per the understanding of the parents of the deceased, the marriage
was to be treated as engagement only as there would have to be a registered
marriage in London subsequently. Therefore, the marriage was not consummated
and Namita along with her parents returned to England on the night of the
marriage. The accused also reached there and started to live with her-in-laws.
In April 1979, the birthday of the sister of deceased was celebrated.
On 26th May, 1979, the marriage between the deceased and accused was
registered at London. A honey-moon trip for newly wedded couple was arranged
for five days commencing from 27th May, 1979. They reached Brussels at about
6.30 P. M. and stayed in the night in hotel. The prosecution case was that the
accused had murdered the deceased whereas the version of the deceased was
1. R.ljendra l<umar v. The State of Punjab, AIR 1966 SC 1322.
2. Natha Singh v. Emperor, AJR 1946 PC 187; Chhatra ,,. State, AIR 1958 Cal. 482.
3. Alley v. Stcte of U.P., AJR 1955 SC 8111; Prem Narnln v. State, AIR 1957 All 177; Harl Dag r,. State,
AlR 1958 C~l. I 18.
4. Rangi Lill v. State of U.P., 1991 Cr LI 911.
s. 8] OF THE RELEVANCY OF FACTS 119
that she had abandoned him and a story had been fabricated to implicate him.
He was arrested in India and tried for her murder. The Trial Court convicted
him under Sections 302 and 201 of IPC. The High Court of Delhi acquitted him
holding that it was impossible to accept the prosecution theory that the
accused-respondent had married the deceased only with a view to do away
with her to take revenge for her appalling behaviour at her sister's birth-day
party. Had the respondent been so resentful, there was no question of marriage
being solemnized. The Supreme Court held that there was not sufficient motive
to kill her. It was unconceivable that the accused would have married her only
for the purpose of committing murder, that too on the very first might of her
honey-moon. It was also could not be accepted that by the victim's refusal to
consummate the marriage, the simmering discontent impelled the accused to
commit the murder.1
The evidence which suggests that illicit relationship had developed
between the wife of the deceased and the accused at relevant point of time
which was not only known to the deceased but also to the informant cannot be
accepted as a decisive incriminating factor to deduce the culpability for the
charge of murder of the deceased.2
Motive, absence of Motive or sufficiency or importance or
significance of Motive.-Motive is not an indispensable requirement to be
proved in a criminal trial for commission of crime by the accused.3 Whether
there is absolutely no motive or the motive alleged is not sufficient, is
immaterial in a case where evidence is overwhelming. Absence of motive may
not be relevant in a case where there is sufficient evidence to prove the case but
in a case based only on circumstantial evidence absence of motive helps accused
and negatives the proof, i.e., to say if any case is based only on circumstantial
evidence and if there is no proof of motive the accused may not be found guilty
of charge.4
When there is direct evidence. The evidence of motive is not of much
significance. The evidence of motive becomes important to corroborate the
circumstantial evidence. In State of Uttar Pradrsh v. Nahar Singh and others,5
the Supreme Court held that where the participation of the accused in crime
had been established by eye-witness the motive would pale into insignificance
and could not be ground to justify acquittal of accused.
Importance of significance or motive in circumstantial evidence.-
In State of U.P. v. Babu Ram,6 the accused himself admitted his motive of
crime as the deceased had rejected his demand for property. The Supreme Court
observed:
1. State v. Mahendra Singh Dahia, AIR 2011 SC 1017.
2. Nathiya v. State Rep. by Inspector of Police, Begyam Police Station, Vellore, AIR 2016 SC Sl 10 p.
5115.
3. Karabhal v. State of Gujarat, AlR 2017 SC 5414.
4. Sakharam v. State of M.P., AlR 1992 SC 758.
5. AIR 1998 SC 1328.
6. AIR 2000 SC 173.5.
120 BVlD'ENCB ACT [S. B
"It cannot be lald down that the motive may not be very important In cases
depending upon direct evidence, whereas motive Is very much material only In
the case which depends upon circumstantial evidence. There Is no legal warrant
to making such a hiatus. Motive 11 relevant factor In all criminal cases whether
based on testimony of eye witness or circumstanda! evidence. The question ln
this regard Is, whether prosecution must fail hecause It failed to prove the
motive, would weaken the prosecution to any perceptible limit. No doubt if the
prosecution proves the exh,tence of motive, It will be well and good for It,
Particularly In a caae depending on clrcumstantlal evidence for such motive
could then be counted u one of the circumstances. However It cannot be forgotten
that It ls generally difficult area £or any prosecution to bring on record that
what was In the mind of rHpondent. Even if the Investigation officer would
have succeeded In knowing It through Interrogation that cannot be put In
evidence by them due tu the ban Imposed by law.
In Munl1h Mubnr v. Stntl! of Hnrynnn,1 the Illicit relations between the
deceased, the employer of n lady as also between the appellant and that lady
was held to bl! motive to get rid of the deceased by the appellant besides
robbing the deceued. The Court regardlng the Importance of motive held-In a
case of clrc:umstantlal evidence, mollve aHumes great significance and
importance, for the reason that the absence c' .;,:,tlve would put the Court on its
guard and cauae It to 11crutlnlze each plece of evidence very closely In order to
ensure that susplc:lon, emotion or conjecture do not take the place of proof.
However, the evidence regarding existence of motive which operates In the
mind of an usauin ls very of ten, not within the reach of the others. The 1111d
motive may not be even known to the victim of the crime. If the evidence on
record suggest sufflcient/neceHary motive to commit a crime, it may be
concelved that the accused has commltled the same.2
ln Y11n11s v. Kartyn,3 It was held by the Supreme Court where ocular
evldence-(eye wltneH) was very clear and continuing, role of accused person in
time stood and established failure ~o prove motive for the crime was of no
consequence.
Where there were earlier election disputes and the deceased had
successfully contested the election against the candidate of accused party and
the deceased had few months before the Incident, quarrelled when the accused
had diverted the sullage water towards the house of the deceased and the
latter had frustrated their effort and in consequence of the obstruction the
sullage water collected In a pool before the house of the accused which
Infuriated them and the proceeding on that score under Cr. P.C. were pending
the old enimity coupled with the incident over the passage of the sullage
water could be the motive for the murder and the same could not be said to be so
weak as not to prompt the accused to kill their rivaJ.4
I. AIR 2013 SC 912.
2. Ibid. at p. 919; Also see Subcdar Tlwarl v. Statv of U.P., AIR 1989 SC 733; Sureah Chandra Bahri
v. Stnte of Bihar, AIR 1994 SC 2420, Dr. Sunll Clifford DanJel v. State of Puntab, JT 2012 (8) SC
639.
3. ALR 2003 SC 539.
4. Gurmc j Singh v. State of Punjab, AIR 1992 SC 214.
S.8) OP TiiB RI!LBV ANCY OP PACTS 121
Motive not a substantive evidence.-The proof of motive alone
cannot be sufficient to convict the accused as It is not subb,antive evidence but
only corroborative In nature.!
(b) Preparatlon.-Evldence tending to show that the accused made
preparation to commit a crime, Is always admlulble. Preparation only
evidences a design or plan to do a certain thing II planned. It Is not always
carried out but It ls more or le11 likely to be carried out. The existence of the
plan Is always used in dally life as the basis of inferences to the act planned. In
a cnse of burglary the four accused held a mNtlng to arrange for the crime; a bar
of Iron and pair of plncel'I were alone nece111ry; and these the accused brought;
these facts were admitted to show preparation. The probative force, both of
preparation and the prevlous attempts manifestly rests on the presumption
that an Intention to commit the offence was framed In the mind of accuNd
which persl11ted until the power and opportunity were found to carry It into
executlon.2 The preparation on part of the accused may be, to accomplish the
crime, to prevent discovery of crime or it may be to aid the escape of the
criminal and avert suspicion.
An Inn-keeper and his wife were accused of murder of a guest. It 11 shown
that on the night the murder was committed, they sent the maid-servant out of
the house 10 that there may not be anybody to 1ee the offence being committed.
When she returned the next morning she was made to sleep In another part of
the building. This is a relevant preparation to prevent the discovery of tht.
crlme.3
The accused was charged with cheating for Importing goods In Karachi
port without paying the proper custom duty. Bvidence was adduced of previous
visit of the accused to the port of Okha, where it was uid he tried to make
some arrangements with the customs whereby he could import other goods
without payment of proper duty. The evidence was held admisslble.4
(c) The conduct of a party,-The second paragraph of Section 8 make11
relevant the conduct of any pereon who is a party of a suit or proceeding in
reference to any fact in issue therein or relevant thereto. The conduct of a party,
Interested In a proceeding at the time when the fact occurred out of which the
proceeding arises is extremely relevant.
The word 'party' includes not only the plaintiff and the defendant in a
civil suit but parties in a criminal prosecution ; 111 for instance a prisoner
charged with murder.
Conduct-Meaning of.-The conduct Is the expression in outward
behaviour of the quality or condition operating to produce those effecta. These
results are the traces by which we may Infer the moving cause. A man's conduct
Includes what he does and what he omits to do. Conduct may, in certain
circumstances, include statements as is made clear by the Explanation 1.
1. State of Punjab v. Blttu, AlR 2016 SC 146 p. 150.
2. Appu v. State, AIR 1971 Mad 194.
3. Appu v. State, AIR 1971 Mad 194.
4. Mohan Lal v. Bmperor, AIR 1937 Slnd 293.
122 EVIDENCE ACT [S. 8
The conduct of any person an offence against whom is the
subject of any proceeding.-This section provides that the term 'party'
includes any one an offence against whom is the subject of any proceeding. The
reason why the Legislature said this was probably the fact that by pure legal
technicality the State occupies in criminal matters a position analogous to that
of a plaintiff in a civil suit.1 Technically speaking, a person against whom an
offence is committed is not a party to a criminal proceeding. If this clause would
not have been inserted in the section, there would have been a good deal of
controversy as to whether the conduct of a person against whom an offence has
been committed was relevant. The gestures of deceased in reply to questions put
to him together with gestures in reply to them are admissible.2
The conduct in reference to the fact in issue or relevant
thereto.-The conduct of any party to a proceeding in order to be relevant must
be (1) in reference to any fact in issue or relevant thereto, or (2) to any suit or
proceeding. The accused was charged with dacoity. He concealed a sum of
money. He pointed out the place to the police and the money was recovered.
The money was not the subject-matter of the dacoity the evidence was held
inadmissible.3
Conduct in reference to the proceeding.-As the conduct of a party
to a proceeding or suit in reference to the fact in issue or relevant fact, are
admissible, similarly the conduct of a party in relation to the proceeding is also
admissible. The fact that the accused has attempted to striffle or thwart at
the investigation of the crime is relevant. S is suspected of having poisoned T.
He tried in every way to prevent the body of T from being medically examined.
This conduct of S in preventing the medical examination of the body of T is
relevant. R disappeared while living in P's house. P was suspected of murder. It
being proposed to dig the basement of the floor, P objected. The floor was dug
and the dead body of R was found. The conduct of P in objecting was admissible.
When a person is accused of·a crime, the fact that before or at the time of or
after the alleged crime he destroyed or concealed evidence or prevented the
presence or procured the absence of the persons who might have been witnesses
or suborned persons to give false evidence respecting it is relevant as a conduct in
reference to the proceeding, conduct to referring the proceeding is illustrated
when a party does something in the reference to the proceeding.4
The conduct of a party only admissible.-It must be borne in mind
that the conduct of a party alone is admissible. The conduct of a person who is
not a party to the suit or proceeding is not admissible. The conduct of a
conspirator who was dead and so not an accused at the trial was held
inadmissible.f
Against whom admissible.-The conduct of a man is admissible only
against him. The conduct of one accused is not relevant against a co-accused.s
1. Queen-Empress v. Abdulla, 7 All. 385.
2. Emperor 11. Moti Ram Rat Singh, AIR 1937 BJm. 372.
3. Buhman Vaje Ram Raghuram 11. State, AlR 1954 Kutch 20.
4. King Emperor 11. Bhagi and Others, AlR 1941 Oudh 35'J.
5. Sardul Singh v. State of Bombay, AIR 1957 SC 747.
6. Deshraj Shanna v. State, AIR 1951 Punjab 14.
s. 8] OF THE RELEVANCY OF FACTS 123
Influences or is influenced by.-A conduct is rele ·ant if it influences
or is influenced by any fact in issue or a relevant fact. A criminal trial is not an
enquiry into the conduct of an accused for any purpose other than to determine
whether he is guilty or not.1
Previous or subsequent-A conduct to be relevant under Section 8 need
not be contemporaneous. It may be antecedent or subsequent to the fact in issue or
relevant fact. In an adoption case deed of adoption found not to be clinching but
as evidence of subsequent conduct of the parties is relevant.2 Complaints of the
deceased to the police expressing apprehension of death made two months
before death are admissible.3
The conduct of accused.-The conduct of an accused is relevant
under Section 8. The immediate reaction of the accused having some bearing
of the issue is relevant.4 Where the accused took the police and pointed out
the article it was admissible as conduct of the accused.5 Sadho was tried for
the murder of Srimati Manni. After arrest by the police he made a statement
that he had the key of the house of co-accused Parasram and that he
would recover the dead body of Srimati Manni from the house of co-accused
where it was buried. Sadho opened the lock of the house of co-accused with a
key which was in his possession and Sadho went inside the house and dug out
the body of Smt. Manni from a comer of the Kothri. The fact of the opening of
the lock by accused and digging out the body of Smt. Manni are relevant as
conduct.6
The accused were tried for the murder of Boru under Section 302 I.P.C. and
also under Section 201, I.P.C. for burying the dead body of Boru, in a sugarcane
field. The accused were arrested by Investigation Officer who took them inside
a Primary School where they gave information that they had murdered Boru,
and would also produce his dead body, after digging it out from the field of
Boru. The accused took the S.O. to the field of Boru, and they dug out his dead
body which had been placed in a gunny bag, though the statement by the
accused was not relevant under Section 27 of the Act as recovery, if any, was on a
joint information but the fact of digging out the dead body is relevant as the
conduct of the accused.?
It will be opposed to human conduct that an accused involved in a serious
crime like murder would still be wearing blood stained clothes even four days
after the murder.8 Similarly, sharing of plan to kill deceased with a stranger is
opposed to normal human conduct, and also choosing a busy place to commit a
crime of murder.9
1. Anant Lat v. State of Bombay, AIR 1960 SC 500.
2. Bishwanatha v. Dhapu Devi, AIR 1960 Cal. 494.
3. Alijan Munshi v. State, AIR 1960 Bombay 290.
4. Mahn Singh v. State of Delhi, AIR 1976 SC 449.
5. Parkash Chand v. State of Delhi, AfR 1979 SC 400; Kuldeep 11. State of Punjab, 1960 Cr LJ 71.
6. Paras Ram 11. State, 1970 AL) 149.
7. Babu Ram v. Stale, 1972 AWR 105.
8. Khalil Khan v. State of M.P., AIR 2003 SC 4670.
9. Mausam Singh Roy v. State of W.B., (2003) SCC 377.
 124 EV1DBNCE ACT
.I.R. by accused•conduct.-lf the first Information Is given by the
accused himself, the fact of his giving the information la admlaslble against
him ae evidence of his conduct.1
Threat by accused.-A threat to do a criminal act, Is relevant.2 The
accused w11 di1lnherited by hit father. His father was killed. The evidence
that the accused did declare ht, Intention to klll were held relevant. A woman
and her paramour were charged for murdering her husband. Her statement, she
lived a 'moat unhappy life with her husband and she wished him dead or If
that would not be 1he wished herself dead' made before the murder, were held
relevant.
Prevlou1 attempt.-Prtvlou, attempt to commit crime Is relevant.3
Ab1condlng.-The running away of an accused just after occurrence Is
evidence agaln1t hlm.4 But the ab1condlng can never prove the guilt of the
accuaed. A per1an though innocent may become nervous and run away:S
Mere ab1COndence of the accused caMot form the fulcrum of a guilty mind
In a murder case but lt 11 a relevant piece of evidence to be considered along
with other evidence. Ita value would always depend on the circumstances of
each ca.e.6
Through a deed one R purported to gift some property to the plaintiff. The
document w11 preaented to Sub-Registrar for regi1tration. The document was
received by R by post. He waa Illiterate. When the document w11 read over to
him, ho complained that he w11 defrauded, he meant to execute only a will but
a gift waa taken to be practl1lng fraud upon him. Thia statement was held
admls1lble under Section 8.
In Sardul Singh v. State of Bombay,7 the question was whether P was
liable as partner of the firm of Dawn and Co., in respect of contracts which were
made between the plaintiff and the firm Jn 1922 written by him to the agent of
Chartered Bank of India, Australia and China. In that letter P said that he
was writing to confirm that he had severed his connection with the firm Dawn
and Co., from fint of May, 1922. It was held to be relevant.
In Bhamara v. State of M.P .. 8 one Bhagirath was ploughing his field.
Bhamara was pa11lng that way. He called Bhagirath to chat. During the talk
the parties flared up. Scuffle ensued, Bhamara struck a stone against the head
of Bhagirath. Ratiram and Lachhima,:t ran to the spot. The accused seeing
these persona ran away but was caught by one Panna Lal. This conduct of accused
was held to be adml11ible.
1. A. Nagoalu. Silt. ofBlhar, Allt 1966 SC 119.
2. Vlnay1k Datta 11. State, Allt 1970 Coa 96.
3. Appu v. Slltt, AIR 1971 Mad 194.
,. Derbarl Kumar 11. Sllte, AIR 19700Rl .54.
5. Matru v. State of UP., Allt 1971 SC 1050; Rahman 11. Sllteof U.P., AJR 1972 SC 110.
6. Mrltunjoy Bllwu v. Prana b alias Kutt BIIW11, AIR 2013 SC 3334 11 p. 3343 ; Matru al/a, Giriah
Chandra v. State of U.P., AIR 1971 SC 1050; State of M.P. v. Pallan Mallah, AIR 2005 SC 733;
Blpln Kumar Manda! v. State of Wnt Bengal, AIR 2010 SC 36:38.
7. Allt 1957SC747.
8.. AIR 1953 Bhop 1.
[S. 8
s. 8) OP nu! RELEVANCY OF FACTS 125
In re Murugan.1-Where the accused took the police to a spot and pointed
out a place from where incriminating articles were recovered, the conduct of the
accused in taking the police and showing the spot Is admissible.
In Mistri v. King Emperor.2-M was charged with the murder of a girl.
During the investigation M took the police to a place and pointed out and
produced certain ornaments which the deceased was putting on at the time of
her death. In the trial of M, the fact that he showed the police the place
where the ornaments were hidden and the fact that he handed over the
ornaments to the police will be relevant and allowed to be proved under Section
8 of the Evidence Act as it is the conduct of the accused after the occurrence.
N was tried for the murder of Srimati Shiama. No body saw Shiama
being murdered. Her corpse was found in a well. When the police was
investigating that matter the accused took the sub-inspector to a place; took out
silver ornaments and coins amounting to Rs. 2.8 and handed them over to the
police. He then took the S.O. to the sugarcane field where he picked out a
bundle containing balance, chaddars, weights and other things. All these
things the deceased had in her possession prior to her death. In the trial all
these facts of taking out the ornaments and handing them over to the police and
finding out the clothes from the sugarcane field and giving them to the police
-vere allowed to be admitted as a conduct of the accused.3
In Emperor v. Moti Ram, 4 Moti Ram and Rai Singh were tried for murder
of Sita. She was found injured on her neck in a room. One Bh.ika reached the
house and found the door chained from outside. On entering the house he found
Sita reclining on the floor with her throat cut and bleeding profusely. By her
side lay a viii. Bhika locked the door and went to the police station to make a
report. When the sub-inspector entered the house with witnesses he found
Sita reclining on the floor and holding her throat. When questioned as to
who has cut her throat she tried to speak and with a great effort uttered
the word "Moti". When asked further whether she meant Moti Ram
she nodded her head in assent. She also pointed out her finger at the viii,
and explained by signs that "Motl Ram" has cut her throat with it after
putting his foot on her chest. Later on Sita was transferred to hospital where
her condition became serious. In the hospital she answered Magistrate's
questions by signs and pointing at the accused explained that it was he who
had cut her throat with the viii at 10 a.m. All these facts were held to be
admissible as conduct of the person an offence against whom was an inquiry
under Section 8.5
In Prakash Chand v. State (Delhi Admin.),6 the accused was charged
with the offence of bribery. It was deposed ;,y the witnesses. Evidence was to
1. AIR 1958 Mad 43; Jagdamba Prasad v. State, AIR 1957 MB 33.
2. 6 ALJ 839. /
3. Emperor v. Nanua, AIR 1941 AU 145.
4. AIR 1936 Bom. 372. The facts of this case are slmilar.
5. Queen v. Abdullah, ILR 7 (All) 38.5.
6. AIR 1979 SC 400; Shiva Bahadur Singh v. State of U. P., AIR 1954 SC 322; State of Madras 11.
Vaidyanath Iyer, AIR 1958 SC 61.
126 EV ID EN C E A CT
the etfect that at the time of raid by the police officer and trap witnesses, on
the question "whether you have accepted bribe" the fact that the accused was
stunned and did not reply, he was confused and began to appologise, or that he
began to tramble were held relevant.
In Ku/deep Singh v. State of Punjab,1 A was accused of murdering his wife.
The burnt dead body of the wife of accused was found in a closet. There was no
direct evidence. The case depended on circumstantial evidence. The accused
stated that he had gone for a morning walk with Dharmbir Mahajan and it
was in his absence within short span of half an hour that his wife committed
suicide. The facts that he had gone for a walk and that his wife committed
suicide were found to be false. The statement of the accused was held relevant.
Statements of a party to a proceeding accompanying and
explaining acts-Exp. 1.-Explanation 1 of Section 8 excludes the
admissibility of the statement distinguished from conduct. But it allows the
statement to be admitted under this section if the state.aents accompany and
exphin acts other than the statements. This explanation points to a case in
which a person whose conduct is in dispute mixes up together actions and
statements. In such a case those actions and statements may be proved as a
whole. For instance suppose that a person is running down the street in a
wounded condition calling out the name of his assailant and the circumstance in
which the injuries were inflicted. Here what the injured person !>ays and what
he does may be taken together and proved as a whole. Here the statement of
the person wounded explains his conduct. The conduct of running away and the
cry of the person both show that he has been wounded by such and such person
and in such and such condition. Only those statements which accompany and
explain acts other than statements can be regarded as conduct.2
The relevancy of statements as to the facts stated.-Under Section
8 a statement would be relevant onlr ff it explains a conduct. It would not be
relevant as evidence of a fact stated.
The statement must amount to complaint.-Illustrations (]) and (k)
make statements of persons against whom an offence has been committed
relevant but a mere statement is not relevant.
The statements must amount to complaints to be admissible. A mere
statement is not relevant. Statement in the shape of complaint is only relevant.
There may be sometimes a difficulty in distinguishing a statement from a
complaint. The essential difference between the two is that a complaint is
made with a view to redress or punish and must be made to someone like the
police, a parent or some other person to whom the complainant looked for
assistance and protection. If A is running out besmeared with blood and crying
helplessly to the people of vicinity to save his life from B who had wounded
him and is about to beat more. This is certainly a complaint. But, if A leisurely
1. 1980 Cr LJ 71.
2. Prilam Singh v. State, 1972 A WR 521 ; Bhagwan Das v. State of Rajasthan, AJR 1974 SC 898.
3. Dwingly Ariel v. State of M.P., AlR 1954 SC 15.
[S. 8 s. 8] OF TifE RELEVANCY OF FACTS 127
walks down from a place with injuries on his person and when intervened and
asked by a bystander he says that B has assaulted him, this is only a statement
and not a complaint and is inadmissible. A woman was raped on 26th of August,
1929, when her husband was away. The husband came home on the 28th and
then she told him that she had been raped. This was held not admissible.1 The
applicant was staying in a hotel. Early in the morning he took brandy and upon
being annoyed fired a gun on the bearer]. He crouched down and the shot missed
him. Afterwards people gathered and / related the story on being asked. It was
held not admissible.2
Complaints in answer to questions.-The complaints to be admissible
must be volunteered and not in answer to question, But it must be borne in mind
that the questions of a leading or suggestive character exclude the evidence.
But the questions such as this put by mother or other persons "what is matter",
"why are you crying" would not make the answer inadmissible.
Statement of another affecting conduct of a party to a
proceeding.-Expl.11.-Under this Explanation another clas.: of statements
i.e., the statements, affecting the conduct of a person, whose conduct is relevant
under this section is admissible. In such cases the conduct of person shows
nothing and becomes meaningless unless the statements are put before the court.
Here the statements made in the presence of the party are admissible as the
ground-work of that conduct. The conduct in such cases is equivocal and the
statements are admissible to explain the conduct. The question is whether A
murdered B. During the enquiry one C said in the presence of A "the sub-
inspector is coming to arrest the man who has murdered B". Hearing these
words of C, A runs away. At trial of A, the words spoken by C that the sub-
inspector was coming to arrest the murderer, and after hearing that the conduct
of A's running away are relevant together. If the words "The sub-inspector was
coming to arrest the murderer" was said to A is not proved, merely saying that
A ran away will be meaningless. Illustrations (i), (g) and (h) of the section are
examples-of such statements. If the statement has no bearing on the conduct it is
not relevant.3
Illustrations
(i) Emperor v. U. Daranpara.4-0ne A was murdered. Shortly after B
rebuked C for having murdered A. B said "you have murdered A without any
cause. You are to be damned for it". C keeps silent. This conduct of C keeping
silent together with the words spoken to him are relevant.
(ii) The accused was charged with the murder of his wife who was
missing for some time. A photograph of a dead body recovered by the police
was published in a newspaper. Soon after the photograph was published the
accused said to B. "People are saying that the photograph is that of my wife.
Please go and see". The accused appeared to be in a disturbed state of mind and
1. Ram Swami Rcddi v. Emperor, AIR 1931 Mad. 2l5.
2. Rameshwar Prasad v. Rex., 1951 AL) U9.
3. Bai .Khatija v. State, AJR 1962 Guj 1.
4. Emperor v. Daranpara, AIR 1937 Rang 83 (FB).
126 EVIDENCE ACT [S. 9
tried to away from office taking leave. It was held that the statement of the
accused was admissible under explanation.1
ECTION 9.-Facts necessary to explain or introduce relevant
S facts.-Pacts 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 anything 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.
Illustrations
(a) the question is, whether a given document is the will of A.
The state of A's property and of his family at the date of the alleged will
may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A ; B affirms that
the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected
with the alleged libel are irrelevant, though the fact that there was a dispute
may be relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from
his house, is relevant, under Section 8 as conduct subsequent to and affected by
facts in issue.
The facts that at the time when he left home he had sudden and urgent
business at the place to which h~ went is relevant, as tending to explain the
fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so
far as they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with
A. C on leaving A's service, says to A-"I am leaving you because B has made
me a better offer." This statement is a relevant fact as explanatory of C's
conduct, which is relevant as a fact in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen
to give it to A's wife. 8 says as he delivers it-"A says you are to hide this."
B's statement is relevant as explanatory of a fact which is part of the
transaction.
V) A is tried for a riot and is proved i.,.ii..ve marched at the head of a
mob. The cries of the mob are relevant a<J explanatory of the nature of that
transaction.
1. Arun Kumar Banerji v. State, AIR 1962 Cal. 504.
s. 9) OF THE RELEVANCY OF FACTS 129
COMMENTS
Scope.-Under Section 9 the following facts are relevant :-
( l) Facts which are necessary to explain a fact in issue or relevant fact.
(2) Facts which are necessary to introduce a fact in issue or relevant fact.
(3) Facts which support an inference suggested by a fact in issue or
relevant fact.
(4) Facts which rebut an inference suggested by a fact in issue or relevant
fact.
(5) Facts which establish the identity of anything or person whose
identity is relevant.
(6) Facts which fix the time or place at which the facts in issue or
relevant fact happened.
(7) Facts which show the relation of parties by whom any such fact was
. transacted.
It should be bome in mind that these seven categories of facts are not
admissible generally. They are relevant only in so far as they are necessary for
the purpose indicated in each category.
(1) Facts necessary to explain a fact in issue or relevant fact.-
There is a kind of evidence which if considered separately and alone from ·
other evidence would not amount to anything ; but if it is taken into
consideration in connection with some other facts, proved in the case it explains
and illustrates them. Sometimes it gives strength to the evidence given by one
side and sometimes breaks the force of the evidence given by the other side.
Such facts which are necessary to explain a fact in issue or relevant facts are
relevant under Section 9 of the Evidence Act. The explanatory e /idence is not
relevant in itself. It is neither one of the res gestae nor probative in any direct
line of proof to the existence of a fact in issue or relevant fact. The effect of the
evidence of the nature is not, however, in all cases affirmative. An explanation
made equally will be intended to diminish the force of the evidence produced
by the adversary.
(i) Noor Mohammnd v. £mperor.1-Noor Mohammad was tried for
abducting Mst. Saidan. Once during the investigation Mst. Saidan was being
taken to the police station. Noor Mohammad was loitering in the way. On
seeing Noor Mohammed, Mst. Saidan at once cried out to her brother Kasim
that this man was one of her abductors. Kasi.m told the head constable who was
with them and the head constable forthwith arrested him. When the trial
proceeded, Mst. Saidan was won over by the accused and she did not implicate
Noor Mohammed uor anybody else. The prosecution wanted to produce Kasim,
the brother of Mst. Saidan to depose that at the time when Mst. Saidan was
being taken to the ;'..'!:ce station, seeing Noor Mohammad, she had cried of her
own accord that he was one of her abductors. It was held that the statement by
1. AIR 1944 Sind 93.
130 EVIDENCE ACT [S. 9
Kasim that Mst. Saidan denounced Noor Mohammad as one of the abductors
was admissible as explaining the circumstances of Noor Mohammed's arrest
and also for the purpose of establishing his identity.
(ii) Rahan Lalu v. Emperor.1-The prosecution case was that Rahan Lalu
killed his wife on one morning with an axe. Their son a child of 5 years was
beside them. He made a cry and his cry attracted the witnesses who found
Rahan with an axe in his hand and his deceased wife near him. The child's
evidence was not recorded. The witnesses deposed as to what the child had
said and upon that they reached. It was held that the witnesses could speak to
the nature of the cry and even to what the child said so far as it explains their
conduct.
In the case of Rahan Lalu if the child had not said that his father was
killing his mother, the witnesses would not have gone there. So the cry and the
words of the child explain as to why the witnesses went there. Similarly in
Noor Mohammed's case the accused would not have been identified by the
constable nor had he been arrested if Mst. Saidan had not said that he was one
of her abductors.
(iii) Emperor v. Abdul Chani Bahadur Bhai.2-The accused managed to
get four drafts from some bank. Accompanied by witnesses Beni Chand, he
presented one draft at the bank and cashed it. Before he presented the second
draft at the bank a telegram was received that four bank drafts were stolen
from the bank and they need not be cashed. The telegram also contained the
particulars of the drafts. The clerk concerned asked him to wait and informed
the police. The police came and arrested the accused. It was held that the
telegram was relevant to explain the conduct of the clerk and the police. If the
telegram is not admitted, their conduct remains unexplained. Illustrations (a)
to (fJ are examples of explanatory facts.
(~) Introductory facts.-lt would be practically impossible, in
conducting a suit or proceeding to jump directly on the main fact. A judge seeks
for some- introductory matter, just as one hearing the main incident of a story
would like to know the circumstances leading up to it and the result that follow
it. Facts which are introductory of a relevant fact are often of a great help in
understanding the real nature of the transaction, and in supplying the missing
link.
In Hunt v. Swyney,3 an action was brought by one Hunt executor of the will
of one shop, against defendant Swyney to compel him, to convey certain lands
alleged to have been held in trust for plaintiff's testator and setting out the
facts relied on. Mrs. Sharp, the widow, intervened claiming that the defendant
held that land in trust for her and claiming the rent and profits, setting out
that the defendant, who was her husband's law clerk, has bought the land
referred to with her money and for her, Mrs. Sharp, when in witness's box was
asked, "During the year 1881 from December 1st, down to and including the
1. AIR 1938 Sind. 97.
2. A1R 1926 Born. 71.
3. AIR 1933 PC 854.
s. 9) OF THE RELEVANCY OF FACTS 131
month of October, 1882 was Mr. Swyney the defendant in this action, your agent
in rents for you." Objection was raised that it was inadmissible. The objection
was ruled out on the ground that it was introductory. ·
(3) & (4) Facts which support and facts which rebut an
inference.-There are certain other classes of the facts which are neither
relevant as facts in issue nor as relevant facts. But they either support the
inference suggested by the fact in issue or relevant fact or they contradict the
facts in issue or relevant facts and for the purpose they are relevant. A is
accused of committing robbery. Just after the committal of the offence, A runs
away to Calcutta. At the trial of A for robbery the fact that he ran away just
after the occurrence is a fact giving inference that he had some concern with the
offence. If A adduces evidence to prove that he had a very urgent piece of work
at Calcutta and in that connection he went there it will rebut the inference
drawn from the fact that he ran away to Calcutta.
R. v. Egestor.1-The prisoner was charged with robbing the complainant
of a coat by threatening to accuse him of an unnatural crime. The evidence was
tried to be adduced to the effect that on the following night he was attempting
to rob another person of his coat. The fact that the accused was trying to rob
another man was not in issue in the present case, but this fact was allowed only
because it supported the inference that the man must have committed robbery
on the date in question.
Emperor v. Wahiduddin.2-Where men are charged with committing of
dacoity, evidence to show that prior to dacoity the accused were closely
associating with the approver is relevant as supporting the statement of the
approver that conspiracy to commit dacoity existed.
Corpn. of Calcutta v. Province of BengaJ.3-ln arriving at the letting
value of a building, the evidence afforded by the return of the accepted
assessment of the neighbouring premises is admissible in evidence.
(5) The facts establish the identity of anything or person.-In
judicial proceeding, civil or criminal, the courts have very often to determine
the identity of persons or things.
Facts which establish the identity of a person.-"This section does
not deal with testimonial identity. Cricumstantial evidence of identity are
dealt within this section." So when a party's identity with ascertained person
is in issue, it may be proved or disproved not only by direct testimony or opinion
but by similarity or dissimilarity of personal characteristics, (e.g., height, age,
size, hair, complexion, voice, handwriting, manner, dress, distinctive marks,
faculties, peculiarities, thumb-impression, footprints), as well as residence,
occupation, family relationship, education, travel, religion, knowledge of
particular people, place or facts and other details of personal history.
It was held that identification of accused by witness in the Court is
substantial piece of evidence where accused is not known previously by the
1. (1819) R&R 375.
2. AIR 1930 Born. 157.
3. AIR 1940 Cal. 47.
132 EVIDENCE ACT [S. 9
witness. Test identification- parade must be held at earliest possible
opportunity with necessary safeguard and precaution. However, when accused
had been seen by the witness for quite number of times at different point of time
and places no test identification is necessary .1. · persons were shown to him for identification and. he identified them. It was
In a case where there was murder and dacoiry, the trial Court and the
appellate Court placed mucb';.ilnportance. on
the evidence of identify of the
accused and convicted the.accused: the-Supreme Court held· that until the
exceptional circumstances- are noPj)ro.ved·. the Supreme Court will not revalue
the evidence (given before the Lower Court) because fo ·give the importance of
such kind of witness is subject matter of the· Court of fact (not the appellate
Court). In these circumstances due to lack of revaluation of fact the conviction of
the accused is confirmed.2
Test Identification Parade.-There was no specific provision in the
Evidence Act or Code of Criminal Procedure regarding identification parade of
the accused till 2005. By the amendment of Cr.J'.C. in 2005, a new Section 54A
was inserted for identification of personarrested, Section 54A is as follows:
"Where a,person is arrested on-a charge of <y.ommitting an offence and
his identification by any other per~0J1 or persons is considered necessary
for the purpose of investigation 'of such 'offence, the court, having
jurisdiction, may on the request of the officer-in-charge of a police station,
direct the person so arrested to subject himself to identification by any
person or persons in such manner as the Court may deem fit."
This provision enable the police to seek permission of the Court for
identification of the accused and the Court may determine the manner of
identification. The manner of identification includes 'identification parade'.
The police is not bound to hold identification parade.
Test Identification Parade-Necessity.-Test Identification Parade
is meant to test the veracity of the witness and his capacity to identify
unknown persons. Test Identification Parade is not necessary where all the
witnesses state that they otherwise know accused persons and they are not
strangers to them and in the moonlight and lantern, they clearly identified
them.3
Identification parade belongs to the stage of investigation and if adequate
precautions are ensured, the evidence with regard to Test Identification Parade
may be used by the Court for the purpose of corroboration. The purpose of test
Identification Parade is to test and strengthen trustworthiness of substantive
evidence. It is for this purpose that Test Identification Parade is to test and
strengthen trustworthiness of the substantive evidence of a witness in Court.I
In Ahmad Bin Salam v. State of Andhra Pradesh,5 Police asked witness
as to whether he could identify the persons who were on scooter and who threw
1. Sure-ih Chand Bahri v. State of Bihar, AIR 1994 SC 2420.
2. Ram Deo Ram Yadav v. State of Bihar, AIR 19931780.
3. State of U.P. v. Sukhpal Singh, AIR 2009 SC 1733 at p. 1733.
4. R.:im Babu v. State of U.P., AJR 2010 SC 2143.
5. AIR l\l'J9 SC 1617.
s. 9) OF TI-IE RELEVANCY OF FACTS 133
bomb towards the deceased. The witness replied in affirmative. The accused
held not to be test identification parade.
Where the eye-witness cannot give the name of the offender but claims
that he can identify him, it is necessary to hold Test Identification Parade.1
Credibility of identification.-Where two
persons accused of murdering
a woman were arrested on 29.11.20~ and,.thi.d.~~tused was arrested on
22.12.2003 and their identification parade was held on 13.12.2003 and
26'.12.2003 respectively anq they were identified by-1_chi1d witness of 13 years
of age before whom the incident _took place in the 1'o~se of the deceased w~ere
he worked as a domestic servant, the contention of delay in holding' test
identification parade were not acceptable. There was no evidence on record
that the child witness had an opportunity to see and study the features of the
accused between their arrest and test identification parade to enable a tutored
identification.2 ' -
In the instant case,3 'N'and 'V' had gone to a bank to withdraw money.
After withdrawing Rs. 4 lakh, 'V' kept in· the bag and placed it in front of
scooter. They started to come back to their office. 'V.' was ahead of 'N'.The two
accused-persons, 'P' and 'H' who wen! on a scootercame from their backside and
fired at 'V' who fell down. The .person sifting ~n the 'pillion of the scooter
snatched the bag and they turned back their scooter. One 'K' tried to stop them
but the person sitting on the pillion fired at by a pistol and 'K' f~ll down. 'V'
succumbed to injuries. P and H were convicted and sentenced under Sections 302,
397 and 307 I.P.C. read with Section 34 I.P.C. The High Co'urt dismiseed their
appeal. The conviction was primarily based on 'the deposition of i-1.-.and 'K',
the eye-witnesses and P.W.-1, Pradhan of the. village bii;(ore ~horn, the
accused persons had confessed their guilt. On the point of identifi~¥on of the
accused persons by 'N'. The identification 'parade was noj ',held ~a use the
accused persons had refused to participate in it ·before whom fhe11ssailants had
remained for 90 seconds. Irwas contended that Hie faces of culprits could not
have been remembered at the trial after 7-1/2 years of the occurrence .. as
memory fades by that time. The Supreme Court dismissed the· appea.l.,and
held- ··:,
Under the given circumstances and keeping in view the nature 0£ incident,
90 seconds was too long a period which could enable tM eye-witness to watch
the accused persons and spdi a horrible experience would: not be easily
forgotten. Death of a friend, and !'ear death experience by the witness himself
would be etched in the memory.for along. In such a traumatic experience, faces
of accused persons would not have been forgotten even for a life time, what to
talk of 7-1/2 years that have elapsed in between. The confession before the
Pradhan of the village was corroborated by cast iron evidence of the two
witnesses 'N' and 'K'.4 . • ·
1. Lakhmindcr Singh r,. State of Punjab, AJR 2003 SC 2571.
2. Raju Choubcy v, State of Chhattisgarh, AlR 2014 SC 3741 at p. 3745.
3. Po1rgan Singh v. State of Punjab, AIR 2014 SC 3790.
4. Pargan Smgh v. State of Punjab, AIR 2014 SC 3790 at pp. 3796, 3797,
134 EVIDENCE ACT
Where the moles, scars on the face of the accused covered to large extent
with pieces of paper and similar paper covering was done on faces of other
persons participating in parade. Such identification parade was rendered
unreliable by extensive make-up on faces. The possibility of witnesses seeing
accused before parade also couJd not be eliminated. The court held that in such
case it was not safe to convict accused on the basis of such identification
parade.1
The Court may appreciate dock identification as being above board
and more than conclusive even if there is no previous test identification
parade.2
Where the informant apart from identifying the accused who had made
themselves available in test Identification Parade had also identified all of
them in Court, it deserved acceptance and the Test Identification Parade was
not dented.3
In Ramanbnai Naranbhai Patel v. State of Gujarat,4 the eye-witnesses
assaulted in broad day light were serious injured. The Court held that they
could have easily seen the faces of the persons assaulting them and their
appearance and identity would remain well imprinted in their minds
especially when they were assaulted in broad day light. The conviction of the
accused was upheld on the basis of solitary evidence of identification by a
witness for the first time in the Court.
Test Identification Parade-Corroborative Value.-The evidence of
Test Identification Parade is not substantial evidence. It has only corroborative
value.5
In State of H.P. v. Lekh Raj,6 the Supreme Court regarding the probative
value of test identification observed :
"Test identification is considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witnesses in Court as to the
identity of the accused who are strangers to them. There may, however, be
exceptions to this general rule, when for example, the Court is impressed by
a particular witness on whose testimony it can safely rely without such or
other corroboration."
Holding of Test Identification Parade is not necessary when eye-witness
and accused belong to the same locality and are known to each other."
1. Chaman v. State of U.P., AIR 1992 SC 001.
2. Siddhartha Vashlsht a/i/1$ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352; Munshi
Singh Gautam 11. State of M.P., AIR 2005 SC 402; Harbhajan Singh 11. State of J. & K., AIR 2005
SC 402 and Malkhan Singh v. State of M.P., AIR 2003 SC 2669.
3. AIR 2017 SC 2161 pp. 2312, 2313.
4. 1999 AIR SCW 4770.
S. C. Muniappan v. Slate of Tamil Nadu, AIR 2010 SC 3718 ; Amil 11. State of U.P., AIR 2012 SC
1433.
6. AJR 1999 SC 3916pp. 3917-18.
7. Sayed Darain Ahsan v. State of West Bengal, AIR 2012 SC 1286.
. ..
[S. 9
s. 9] OF THE RELEVANCY OF FACTS 135
Value and purpose of Test Identification Parade.-In Heera v.
State of Rajasthan,1 the Supreme Court held+:
The purpose of a prior test identification, is to test and strengthen the
trust worthiness of that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn testimony of
witness in Court as to the identity of the accused who are strangers to them,
in the form of earlier identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the Court is impressed
by a particular witness on whose testimony it can safely rely, without such
or other corroboration. The identification parades belong to the stage of
investigation, and there )., no provision in the Code which obliges the
investigating agency to hold ,..,r confer a right upon the accused to claim a
test identification parade. They do not constitute substantive evidence and
these parades are essentially governed by Section 162 of the Code. Failure
to hold a test identification parade would not make inadmissible the
evidence of identification in Court. The weight to be attached to such
identification should be a matter (or the Courts of fact. In appropriate
cases, it may accept the evidence of i,ientification even without insisting on
corroboration."
In Noorahammad v. State of Knrnt.itaka,3 the 'Forest officials were
allegedly attacked by the four accused-appellants who were transporting
stolen teak in a bullock cart. One of the oft'1:dal.s ~xpµ_ed while undergoing
treatment. The High Court set aside the acqucttal order passed by the Trial
Court of the appellant for the offences under Sections 304, 'Fart II, 324, 353, 379
and 411 read with Section 34 of I.P.C. but upheld their acquittal for the offence
under Section 24(e) of the Kamataka Forest Act. Di5pite the fact that the eye-
witness knew the appellants, he lodged F.1.R. agains't unknown persons. The
incident occurred at around 3 a.m. in the night at a plnce where there was no
proper light. The prosecution witness identified the ._,ccused-appellants in
Court for the first time during trial after a gap of more that, two years from the
date of incident. The accused-appellants were not known to' the Forest Officers
except one present at the place of incident. The Court, ~n the aforesaid
circumstances, held-The identification in the Court was not be} ond reasonable
doubt and the same should be seen with suspicion. The test identification
p,:.rade should have been conducted. The probative value of uni,;orroborated
ide;,_,:fication of the accused in the Court for the firs: time is minimt'l so much
"i, AIR 2~:" SC 2425 .
2. Ibid. at ]» ~127, Per Justice Dr. Arijit Pasayat; Kanta Prasad v. Delhi Admintstration, A~ 1958 SC
350; Vai~unta.'.l Chandrappa 11. Stale of Andhra Pradesh, AIR 1960 SC 1340, Budhsen v. ~tale ol
c.;. P., Al~, 1970 ~ 1321 and Rameshwar Singh v. State of J & K., AIR 1m ~ 102 referred\·
3. AIR 2016 !i'C 679 f'P· 686-687; Dana Yadav alias Oahu v. State of B.ih.'lr, AIR 2002 SC 3225; tq.,.,ta
Prasad v. D,\lhi Administration, AIR 1958 SC 350; Vaikuntam Chandrapr~ v. State of A.P., Al.~
19(,() SC 134L' · Budhscn 11. State of U.P., AIR 1970 SC 1321; Kanan v. f>tate of Kerala, AIR 1979 SC
1127; Mohanl,\i Cangararn Cehani v. State of Maharashtra, AIR ~982 SC !l."19; Bollavaram Pedda
Narsl Reddy 1, ,State of A.P., AIR 1991 SC 1468; State of Maharash)ra r,. '1jkl1dev ~ingh, AIR
1992 SC 2100; Ja ,ial Singh v. State of Punjab, AIR 1997 SC 332; R,aju u. State of Maharashtra, AIR
1998 SC 275; Gc,orse v. State of Kerala, AIR 1998 SC 1376; Rajesh1Govind Jagesha v. St,1tc of
Maharashtra, AIR '2000 SC 160; State of H.P. v. Lekhraj, AIR 1999 SC 3916 and Ramanbhal Patel
11. State of Gujarat, ¥?'}9 AlR SCW 4770 referred to.

136 EVIDENCE ACT
so that it becomes as a rule of prudence and not law, unsafe to rely ~uch piece
of evidence although the failure to hold test identification p1/ad. e does not
make the evidence of identification in the Court inadmissible.
Object of Test Identification Parade.-In An~iy11 Maruti Shinde v.
State of Maharashtra,1 which was a case of murder of ,,r'_~.Persons, the Test
Identification Parade was held in the jail premises a.Pel all the five accused
persons were made to stand in a queue in the Parade Hall. The Magistrate
conducted the Test Identification Parade. He te ified that he found the
dummies to be acceptable and respectable perso selected by the police and
were reliable. In his Explanation Report, h learly stated that no police
personnel or any of the employees of jail w allowed to stand in the parade
hall when each of the witnesses was brou t for identification of accused. The
accused persons were asked to chang heir clothes on every time and the
accused could not be seen by any of t witnesses prior to such witnesses being
called for identifying the accused. ,.the cross-examination of the accused,
nothing material was brought about to discredit his evidence. The trial Court
awarded death sentence to six accusJB persons. The High Court confirmed the
death sentence awarded to three pe:Sons and converted death sentence into life
imprisonment of three persons. n.fhasic question raised by the counsel for the
accused-appellant related to TefJ,Identifk... tion Parade and so-called dying
declaration as having no releinc'e. Dismissing the appeal, Dr. Justice Arijit
Pasayat, of the Supreme Court,91>served :
"If potholes were to b 'ferreted out from the proceedings of Magistrate
holding such parades pos ly no Test Identification parade can escape from
two lapses. If a scrutiny s made from that angle alone and the result of the
parade is treated as vi ted, every Test Identification Parade would become
unusable. Test Identi cation Parades are not primarily meant for the Court.
They are meant fo investigation purposes. The object of conducting Test
Identification Par e is two fold. First is to enable the witnesses to .satisfy
themselves that ~ prisoner whom they suspect is really the one who was seen
by them in c~tion with the commission of the crime. Second is to satisfy the
investigating thorities that the subject is the real person whom the witnesses
had seen in nnection with the said occurrence.S
Tes(Identification Parade-Failure to hold.-The failure tQ}r6ld
Test Ide,ntification Parade does not have the effect of weakening the ~ence
of identification in the Court. d'
The absence of test identification parade in all cases jl"'not fatal.3 A
person well known by sight even before the commission of occurrence need not be
put before the identification parade in order to be marked out.4
1. AIR 2009 SC 2609.
2 Ankush Maruti Shinde v. State of Maharashtra, AfR 2009 SC 2609 at p. 261;
3. Jadunath Singh r. Slate of U. P., (]Yi'O) 3 SCC 518; Harbhajan Singh v. /late of J & K, (1975) 4
sec 480.
4. Prakash Chand Sog.mi 1>. State of Rajasthan, Cr.A. No. 92 of l9S6'decitl!d on 15-1-1957 (SC).
I
' [S. 9 s. 9] OF THE RELEVANCY OF FACTS 137
1 0
As. to what weight should be .given to such an identification is to he
decided bi}' the Court in the pecuJiar circumstances of the ca!'~.1
In the First Information Report, the prosecutrix, a victim of gang-rape
named four persons, accused Nos. 1 to 4 but in her 'deposition she named only
accused Nos. 1 to 3. Only accused No. 1 was named by a prosecution witness and
none other. She knew only four persons. She had not named accused Nos.' 5 &: 6 in
,• the FIR or in her deposition. Accused Nos. 5 and 6 had been arrested on the basis
of the statements made by their-co-accused. The prosecutrix in her deposition
before the Trial Court neither named nor id~ntified accused Nos. 4 to 6. The
Trial Judge and also the High Court did not deal with the aspect as to how
/
t~eir guilt was established. The Supreme Court through Justice S. B. Sinha
observed: '
I ,
"In a situation of this nature, a Test .Identification Parade was
required to be held at least. for the purpose of identification of accused Nos.
5 and 6. Some weight should have be¢n given for arriving at a finding as
regards the guilt of accused Nos. s.and 6, as they had not been identified in
the Court."
•
·
I
.I "We, therefore,. are of the cpinion that in absence of any Test
7 Identification Parade having been ~eld or they having been identified in
I
I ..
the Court, the accused Nos. 4 to 6 canrpt be held guilty of commission of the
said offence."2 · ·
.
1
A substantive evidence of identifica~n of an accused is the one mode in
I the Court and a conviction can be based ev'° if no identification parade is held
but when a first Information Report has beEi.l lodged against unknown peISons,
the Test Identification Parade is held to t-tst the veracity of the witness in
regard to his capability of identifying the pt:5ons unknown to him. In such a
case, it is incumbent upon the prosecution' to arrange a Test Identification
Parade as early as possible to exclude the possibility of the accused being
identified either at the police station or at sane other place with reference to
the photographs published in the newspaper. A conviction should not be based
on a vague identification.e I
Where the victim identified the accused on the next day of the offence
and she 'and her family members knew the. accused, not holding of Test
Identification Parade is inconsequential.s ' ·
FaihAe tohold identification parade was held to be not material as it
would have noti served any purpose when .the accused remained in hospital for
.thirteen days.5f
Neither the investigating agency is obliged to hold nor accused has a
right to claim .identiftcatton parade. The question of identification infact
arises whel}' tbe accused is not known t9 the wimess.6
,
1. Sheo.:,hankar Singh v. State of Jharkhand, AIR 2011 SC 1403 at p. 1414.
2. Vi:tanathan v. State, AlR 2008 SC 2222 at p. 2225.
3. R,Yi alias Ravichandran v. State, AIR 2007 SC 1729 alp. 1731.
4. ·amecl v. State of Maharashtra, AIR 2007 SC 971.
5. Patangi B~larama Venkata Ganesh v. State of A.P., AIR 2009 SC 3129 alp. 3136.
6. sec
Sirnen v. State of Kamataka, (2004) 2 694.

138 EVIDENCE ACT
The identification parades belong to the stage of investigatior,1, and there
is no provision in the Code obliging the investigating agency frJ' held test
identification parade or confers ~ right uppn the accused to. claim such parade.
They do not constitute substanti~l evidence and these parades are essitially
governed by Section 162 of the Code. Failure tc, hold test identi~cation parade
would not make inadmissible the evidence of identification ii, Court. The
weight to be attached to such identification should be a matter for tH~ Courts of
fact. In appropriate cases, it may accept the evidence of identlficaiion even
without insisting on corroboration.1 · ·
I
The injured eye-witnesses id'entified the ahused in the Court. The ~st
Identification Parade (TIP) could not be held \,ecause the accused pers~
denied to participate in TIP. The evidence of ey~·witnesses cannot be rejected,
without assigning any reasons.I
In Pammi alias Brijendra Singh v. Govt. of' .Madhya Pradesh,3 the eye
witness did not see the accused for1 the first tim~. Names of some of the
assailants were mentioned by eye-witness even in t¼J:R which he lodged soon
after occurrence. Failure to hold idenrificatlon parade would not vitiate the
evidence of eye-witness.
In George and others v. State of Kera/a and others,4 it was held by
Supreme Court that the admissibility pf the identification of accused in court
was not affected for want of evid·Fnce of earlier identification in the tE;st
identification parade.
/
In Rony alias Ronald lames» Alwaris v. State of Maharashfra,q the
witness was friend of the deceased. The witness had opportunity to interact
with accused while entering the: place of incident It was held that the
evidence of identification of accusod at the trial by said witness could be relied
upon without corroboration of idemtiftcation parade.
It is well settled that in the absence of any independent corroborakion like
Test Identification Parade held l:~~ Judicial Magistrate, the evld~cJ of eye-
witness as to the identification 9£ the appellant/ accuse~el" the f'irst time
before the Trial Court generally eamnot be accepted. The-Identification of the
accused in the dock for the fii;31timti or showing photograph for the first time
in the Trial Court without be~ corroborated by Test Identification held before
a Magistrate or without l),ny other material may not be lhelpful to the
prosecution case. The ev(dence of witness given in the Court as to the
identification may be--ac{epted only if he identified the same persons in a
previously held 'I est ¾;ntification· Parade in Jail but the a bsence of Test
Identification Parade may not be fatai to the prosecution. Thent mast be some
corroborative evidenoe.s · I.
I. Md. Kalam v. State of Rajasthan, AIR 2008 SC 1813 at p. 1815.
2 State of Haryana v. 5' irendra, AIR 2007 SC 2312 at p 2313.
3. AIR 1998 SC 1185.
4. AfR 1996SC 1376.
5. AIR 1998SC 1251.
6. Rabindra Kumar Pal v. Republic of India, AIR 2011 SC 1436 at pp.1445, 1447; Manu Sha, ma
v. State (NCT of Dellu ), AIR 2010 SC 2352; Jana Yadav v. State of Bihar, AIR 2009 SC 3325.
s. 9) OF THE RELEVANCY OF FACTS 139
[S. 9
In Rajesh Gouind Jagesha v. State of Maharashtra,1 the accused had
beard and long hairs at the time of commission of offence as mentioned in FIR.
The accused had removed the same at the time of test identification parade.
No person with beard and long hairs was included in the parade. Witness
alleged to have identified the accused at first sight though he had removed
beard and long hairs. Possibility of witness having seen the accused between
the date of arrest and identification parade was not ruled out. Identification
parade was held after inordinate delay of about five weeks after the arrest of
the accused. Explanation of delay was not truthworthy. The plea as to non-
availability of Magistrate in the city could not be accepted because the
investigation agency was not obliged to get parade conducted from the specified
Magistrate. The accused was entitled to benefit of doubt.
In the instant case,2 of murder due to a land dispute the Pujari of the
temple and one of his priests were shot dead when they where inside the
Ashram. Test identification parade was not held. The incident did not last for
along. The eye-witnesses were sitting outside the satsang hall of Ashram, who
had not sufficient opportunity to see the faces of the accused who were on the
run. Held-
The test identification parade provides corroboration to the witness in
Court if required and what weight must be attached to the evidence of
identification in Court, is a matter for the Court of fact to examine. In such a
case, failure to hold test identification parade is a serious drawback in the
prosecution case.3
Where the incident was alleged to have occurred in open field in the
presence of 150-160 villagers it was necessary for the police to have the Test
Identification Parade conducted. Not conducting Test Identification Parade
which caused prejudice to the accused was a serious lacuna.4
Ku/winder Singh v. State of Punjab,5 was a case under NDPS Act in which
110 bags of poppy husk were recovered from the truck by the Police. The two
accused persons sitting on the back side of the truck jumped from the truck and
took to their heels when it was surrounded by the Police after being estopped.
The police party chased them unsuccessfully. The witnesses identified the
accused persons in the Court and as per their evidence they had seen the
accused-appellants in the torch light and they had also seen them running
away. The submission that no identification parade had been held was held to
have failed into insignificance because except giving a bald suggestion that
they had not seen the accused persons there was nothing in the cross-
examination.
Delay in holding Identification Parade.-It is true that the test
identification parade is a step in investigation, but it is the identification in
AIR 2000 SC 160.
2. Balbir n Vaztr, AIR 2014 SC 2778.
3. Balbrr v. Vazrr, AIR 2014 SC 2778 at p. 2789; Malkhan Singh v. State of M.P., AlR 2003 SC 2669;
differentiated on facts where the Supreme Court held that substantive evidence is the
evidence or identification in Court.
4. Uday Singh v. State of M.P., AIR 2017 SC 393 p. 395.
S. AIR 2015 SC 2488.
.J " • I I•• 'I •

140 EVIDENCE ACT [S. 9
the court that is an evidence. The test identification parade assumes
importance particularly if held within a reasonable time after the commission
of the offence.1 In fact there is no fixed rule as regards the period within which
Identification Parade must be held. It is for the Court to decide on the facts of
the case and evidence on the record whether to accept or reject the evidence of
identification. The delay of one month in holding the parade was not held
fatal to the prosecution as there was no motive present to be imputed by the
defence nor did it allege any irregularity in holding the parade.2 Similarly,
where witnesses had ample opportunity to see the features of the accused
persons at the time of dacoity and accused had not been shown to the witnesses
before the parade, delay in holding the parade would not affect the evidence
of identification in the parade.3 ·
In Brij Mohan v. State of Rajasthan,4 test of good and reliable
identification parade is promptness of holding the (identification parade)
after arrest of culprits, it shows genuineness and fairness of test identification
parade. The accused person were produced before Magistrate Baparda for
remand and put on test identification parade within 24 hours of their arrest.
The objection that they had been shown to the witness was not maintainable.
Duty of prosecution to hold test identification at earliest but no time limit can
be fixed. In a dacoity case in which four persons were killed in gruesome and
callous manner, Test identification parade was held after three months of
occurrence but within 24 hours of their arrest. Held, identification was
reliable.
In Daya Singh v. State of Haryarui,5 two injured eye witnesses identified
accused. Their evidence and cross-examination showed that they gained
enduring identity of accused during incident. Thus, delay in trial and
identification of accused in court after seven or eight years would not affect
evidence of said witness. The fact that the Tahsildar who conducted the
parade and police officer who recorded confessional statement of the accused
failed to identify accused in Court would not be material.
Power of perception and Jl!emory differs from man to man and also depends
upon situation. However, it would depend upon strength and trustworthiness of
witness who has identified the accused.
It is desirable that the Test Identification Parade should be conducted as
soon as after the arrest of the accused to eliminate the possibility of the
accused being shown to the witnesses prior to the Test Identification Parade
which is a common plea raised by the accused.6 Where the accused persons were
arrested on 19th March, 2003 and the identification parade of the accused was
conducted on 20th June, 2003 and the photograph of the accused had been
published in the newspaper on 19th March, 2003, it was held that there was
1. Gitja Shanker v. Slate of U. P., AIR 1993 SC 2618.
2. Ptamod Mandal v. State of Bihar, 2005 SCC (Cri) 75.
3. Lal Singh v. State of U.P., AIR 2004 SC 299.
4. AIR 1994 SC 739.
5. AIR 2001 SC 1188.
6. Heera v. Slate of Rajasthan, AIR 2007 SC 2425.
s. 9] OF THE RELEVANCY OF FACTS 141
some delay in holding the identification parade but the delay per se could not
be fatal to the validity of holding an identification parade, in all cases,
without exception when the identification parade was held in accordance with
law and the witness had identified the accused from amongst a number of
persons who had joined the identification parade and the witnesses had
identified the accused from a number of persons who had joined the
identification parade. There was nothing on record to say that the
photographs of the accused were actually printed in the newspaper. Even if
that be so, they had been published months prior to the identification parade
and would have lost their effect on the minds of the witnesses who were called
upon to identify an accused.'
Where in a murder case, incident of firing took place in broad day light
but there was little time for the witnesses to see the accused persons especially
due to commotion and everybody was running for shelter and the First Test
Identification Parade was conducted by after about 1/1-2 months of the incident
and the second Test Identification Parade was conducted by after more than a
year of the incident, it was held to be highly doubtful whether the eye-
witnesses could have remembered the faces of the accused after such a long
period. The accused were entitled to benefit of doubt.2
There was a delay of 25 days in holding Test Identification Parade. The
witnesses who had met the accused by chance only for some fleeting moments
did not disclose any identification marks or special features. Held-the
conviction cannot be based on such identification only.3
Photographs shown to witness beforehand.-Where the
photographs of the accused were shown to two of the child witnesses before the
Test Identification Parade, that took away the effect of the Test Identification
Parade.4
Identification not admissible if accused was shown before
Identification Parade or person making Identification has been
tutored before Identification Parade.-In Prahlad Singh v. State of
Madhya Pradesh,5 the factum of rape was established. However the
identification of the accused by prosecutrix (on whom rape was committed) was
not acceptable in view of her admission that she was tutored by her father and
police and accused was shown to her prior to identification.
Joint Test Identification Parade.-There is no invariable rule that the
two accused persons cannot be made part of the same Test Identification Parade.
Joint Test Identification Parade does in no manner affect the validity of Test
1. Munna Kumar Upadhyay v. State of Andhra Pt idesh, AIR 2012 SC 2470 at p. 2484 ; Rajesh
Govind Jagesha v. State of Maharashtra, AIR 2000 SC 160 held to be of no assistance to the
accused.
2. State of Maharashtra v. Syed Umar Syed Abbas, AIR 2016 SC 863 pp. 866, 867.
3. Md. Sajjad a/ins Raju 11/ins Salim v. State of W.B., AIR 2017 SC 642 p. 645; I.al Singh v. State of
U.P., AIR 2004 SC 299; Subhash v. State of U.P., AIR 1987 SC 1222; Muthuswami v. State of
Madras, AIR 1954 SC 4; Mohd. Abdul Hafeez v. State of A.P., AIR 1983 SC 367 and Musheer
Khan v. State of M.P., AIR 2010 SC 762 referred to.
4. Stale of Madhya Pradesh v. Chamru@ Bhagwandas etc., AIR 2007 SC 2400 at p. 2402.
5. AIR 1997 SC 3442.

142 EVIDENCE ACT
Identification Parade. The purpose of the Test Identification Parade is that
the investigation is going on the right track and is merely corroborative
evidence. If the accused is already known to the witness, the Test Identification
Parade does not hold much value and it is the identification in the Court which
is of utmost importance.!
Test Identification Parade-In the proper manner.-Where
nothing was elicited in the cross-examination in order to hold that the
whole of the Test Identification Parade was not conducted in the manner, it
was to be held and the identification of the appellant was not proved in
the manner known to law and such identification was proved to the satisfaction
of the Court, there was nothing more to be proved about the manner in which
it was held or to find any flaw in the holding of the Test Identification
Parade.2
Conviction on the basis of Test Identification Parade.-The
accused was convicted although the witness deposing in the Court did not
identify the accused out of fear and was trembling at the stare of the accused
whereas the witness had identified him in the test identification parade. The
Court relied upon the evidence of the Magistrate who had conducted test
identification parade.J Ram Nath Mahto v. State of Bihar, (1996)
In Rnm Nath Mahto v. State of Bihar,4 there was dacoity with murder,
the Supreme Court was to consider the credibility (importance) of evidence of
identification. In this case, the prosecution witness recognised accused as dacoit
in identification parade, conducted by Magistrate. However he denied to
recognise him before trial court. The prosecution witness was trembling when
the accused stared at him. The oral testimony of the Magistrate described the
identification parade as successful one. The evidence of prosecution witness in
identification parade conducted by the Magistrate constituted the substantive
evidence. More so when it was supported by remarks of trial court regarding
demeanour of identifying witness. Conviction based on such identification was
held to be proper by the Supreme Court.
In Ashish Baiham v. State of Madhya Pradesh,5 the case was relating to
identification of property. This was murder case. Chain worn by the deceased
was recovered from the accused. It was alleged that the chain had iron wire in
place of hook. The chain was not mixed with similar chains at the time of
identification. Identification of chain by the parent of deceased was held to be
doubtful.
No Conviction on the basis of Test Identification Parade
In Surendra Singh Rahtela v. State of Bihar,6 the accused fired at
inmates of a car. Injured eye-witness identified him at test identification
1. Sheikh Sintha Madhar alias Jaffara/ias Sintha v. Stale, AIR 2016 SC 1844 p. 1848.
2. Subhash Krishnan v. State of Goa, AIR 2012 SC 3003 at p. 3012.
3. Ram Nath Mah to v. State of Bihar, (1996) 8 SCC 630.
4. AI.R 1996SC2511.
5. AIR 2002 SC 3200.
6. AIR 2002 SC 260.
S. 9] OFffiERELEVANCYOFPACTS 143
[S. 9 I
parade. Eye-witness stated i~\ FIR that he could not identify the accused
assailant. l.t was held that th~lcqnviction was liable to be set aside.
Non-examination ot'M~gistrate.-In Ayyub v. State of U.P.,1 Judicial
Magistrate, in whose presen<X'!: the identification was held, could not be
examined since he had expired., The prosecution witnesses deposed in detail,
steps taken in conducting Test IJ.Jentification Parade'. Their evidences showed
that all necessary precaution was taken. It was held by the Supreme Court
that Test Identification Parade f.vas not defective.
Identity of physical fea1iures.-The age, size, height, hair, complexion
a1·~ circumstances, that provide a material for proving the identity of a person.
The other physical marks, such as, blindness, lameness artd the like also help
in fixing the identity of a person. 1
In Rajesh Govind Jag~ha v. State of Maharashtra,2 the accused was
state\! to be having a beard and ldng hair and was so described in the FIR was
req~kd to be clean shaven by the ~lice but no person similar to the description
of the accused was included in "°'e Test Identification Parade. The Court held
that the prosecution was require~ to show how and under what circumstances
the comp.lainant and the witnesse .came to recognize the accused.
,, '
Ideutity by voice and gait.-It is not safe to rely on identification of a
person b)' his voice alone. Similarly it is not possible to recognise a person
without mistake by gait. In some cases it had been held that in certain
circul{_'st~nces the identificationby- voice is reliable. By Tripura High Court it
has be~eld that a well acquainted person can be correctly recognised by voice
and face 1v face talk.3 The Supreme Court accepted the testimony based on gait
and voice a9'._{he accused was related to the witnesses.4
The father-of the deceased who, was a prosecution witness stated that the
deceased went to take bath in the canel and a jeep came on the bank of canal.
He did not see the other occupants of the jeep and identified the appellant from
his voice who was h~ grandson and nephew of the deceased who raised the
lalkara to teach the lessor to th~ deceased for cultivating the land of his grand
father. He did not recognise other appellants but he knew them. Since he did
not know their names, he could n?\t give treir names. Due to infliction of injuries
on the person of the deceased by the accused persons, the deceased succumbed to
injuries in the hospital. The stand of the appellant was that in dark night
recognition would not have been possible from voice, was held to be clearly
untenable. In a dark night, ocular udentiflcation may be difficult in some cases
but if a person is acquainted and ~osely related to another, from the manner of
speech, gait and voice, ldentificatien is possible. Therefore, there was nothing
to discard the evidence of prosecuH\ witness.5
I. AIR 2002 SC 1192. l,
2. AIR 2000 SC 160. I
3. [amsher Ali 11. State of Tripura, AIR 1954tli 11.
4. Knpal Singh u. Stale of U.P., AIR 1965 SC 7J.2; State or U.P. v. Mancher, AfR 1981 SC 2073.
5. Dalbir Singh t1. State of Haryana, AIR 2.008 SC 2389 at p. 2391; Anwar Hussain v. State of
U. P .. AIR 1981 SC 2073.
144 EVIDENCE ACT
Where the witnesses were not closely acquainted with accused, the
identification of the accused by voice was unreliable.1
Identification by Finger-print.-The accepted conclusion of science is
that several fixed and typical varieties of ridges on finger-tips are clearly
distinguishable and that the chance of two individuals bearing the same
combination of such marks are so small as to be negligible. Hence identity of
finger marks is the strongest evidence of the identity of person and such
evidence is admissible.
Identity of foot-marks.-Evidence of tracker is admissible if proved
that the foot-prints in question are identical with the foot-prints of the
accused. 1 and even nice points of difference distinguishing one thing from other of the
' same kind may merely by the frequent sight of them make an impression on the
Tyre marks.-Where a motor cycle alleged to have been used for
committing the offence of murder is recovered, the prosecution has to prove that
the tyre marks found at the place of occurrence were of the motor cycle used by
the accused and for it the tyre marks are to be lifted from the place of occurrence
for comparison with tyre marks of motor cycle recovered.s
Identification of accused during nigh~. ..:._Where the two persors, one
mason by profession and another, a petty seller of sarees came forward to
depose against the accused persons and identified them by stating that they
witnessed the incident of murder from a place just near to the Central Jail when
the murder took place in a bright day light, there was no infirmity in the
identification.I · possibility of misrepresenting or wrong inference from the behaviour of dogs can
Where the source of light for identification of accused was not mentioned
in F.I.R. There were four witnesses and some were injured in the incident. The
accused and eye-witnesses were closely related. It was held that their evidence
could not be discarded on the ground of not mentioning the source of light.4
Conviction based on Identification of accused/in court.-In
Shaikh Umar Ahmad Shaik~ and othe~s v. State of t,1aharashtra,5 the
question involved was whether an accused can be convicted on the basis of
identification in the court. In this case the designated cou:f recorded finding as
to strong probability of accused having s~own tp witii'ess before identification
parade. The conviction was recorded by relying on identification of accused by
said witness in the court. It was held by Supreme Court that the conviction was
not justified when the accused were shown to the witness. Their identification
in the court by said witness was meaningless. The conviction was set aside.
Identity of family resemblances.-Family likeness has often been
insisted upon as a reason for inferring parentage and identity. But such evidence
is not to be relied upon.6
1. Inspector of Police, T.N. v. Palanisamy, AIR 2009 SC 1012 alp. 1013.
2. Varon Chaudhary v. State of Rajasthan, AIR 2011 SC 72.
3. Abuthagir v. State Rep. by Inspector of Police, Madurai, AIR 2009 SC '1799 at p. 2803.
4. State of U.P. u. Sheo Lal, AlR 2009 SC 1912 at pp. 1913-1914.
5. AIR 1998 SC 1922.
6. Anand Bahadur v. Deputy Commissioner, Barabanki, AIR 1933 Oudh 242.
[S. 9
s. 9] OF THE RELEVANCY OF FACTS 145
The services of a sniffer dog can be taken for the purpose of investigation
but its faculties cannot be taken as evidence to establish guilt of an accused.1
Identity of things.-The identification of articles is capable of being
established not only by direct evidence but also by means of circumstances. Some
Judges have held that it is very difficult to fix any identity to things of common
pattern. Where an article is of an ordinary type, for example, a jugunu (a small
ornament), a Iota, a dhoti and a tom coat and so on they can be found with
anybody. There being no special feature or identifying marks on them it is not
practicable to identify them.2 Contrary to this some Judges are of the view that
identity of common property also can be fixed. It has been observed that small
mind and a person may identify his article and distinguish it from others even
/ without any special marks on them.3 Orissa High Court has held that a woman
can identify her necklace even without special mark on it if it is whole or
unbroken, but she can never identify a piece of a necklace.4
Evidence of sniffer dogs.-In Abdul Razzak .v. State of Maharashtra,5
the Supreme Court held that the. evidence of dog tracking is admissible but
ordinarily it is not of much weight. In G. Lakshmi Man Raju alias Ramesh v.
State of Andhra Pradesli,6 it was held by the Supreme Court that the evidence
of sniffer dogs or its master is first among them. The possibility of
misunderstanding between dog and its master is close lo its heels. The
not be ruled out. But it is a fact that from scientific point of view there is little
knowledge and much uncertainty as to precise faculties which enable the police
dogs to track and identify criminals. Police dogs are engaged in this action by
virtue of instincts and also by training imparted to them. Criminal Courts,
therefore, need not bother much about evidence based on sniffer dogs.
Investigating exercises can afford to make attempts with the help of canine
faculties but judicial-exercise can ill afford them.
In Supreme Court case of Surinder Pal Jain v. Delhi Administration,7 it
was held that where on the day of murder of wife the accused husband had
slept in the Verandah near the cot where the dead body of his wife was found
had locked the collapsable door with the recovered lock before going to sleep
and had himself been close to the dead body before the police came, the picking
up of smell by the dogs and pointing towards the accused cannot be said to be a
circumstance which can exclude the possibility of guilt of any person other than
that of the appellant or be compatible only with hypothesis of guilt of the
appellant. The pointing out by the dogs can as well lead to a misguided
suspicion that the appellant had committed the crime.
1. Dinesh Borthakue v. !,late of Assam, AJR 2008 SC 2205.
2. State v. Wahid Bux, AIR 1953 Alld. 314; State of V.P. v. Saruarnuhi, AIR 195" VP 42.
3. l'ubltc Prosecutor-», I.C'. Llngiat, AIR 1954 Mad 433; In re Govinda Reddy, AIR 1958 Mys. 150.
4. State v. Ram Bali, 1961 ALI 412; Sadasivadas v. Stale, AIR 1958 Ori 51.
5. (1969) 72 Dom LR 64b (SC).
6. AIR 2001 SC 2b72.
7. AIR 1993 SC 1723.
146 EVIDENCE ACT
(6) Facts which fix the time or place of facts in issue or relevant
facts.-Under this section facts which are necessary to fix time and place of
the occurrence are relevant. The fact of time or place become very important
when the accused pleads alibi. The question is whether murder of A was
committed by B. It must be proved at what time, A was murdered because it is
very necessary that B must be present near A at the time of murder. If the time
and place of murder is not known it cannot be said that B murdered A. If A is
murdered at Allahabad at 10 a.m. on 3rd of October, 1950, and if it is proved
that B was at Calcutta at 10 a.m, on the same day, B cannot be the murderer of
A. So these facts which fix the time and place of the facts in issue or relevant
facts are relevant.
In Bhim Singh v. State of Haryana,1 the question was as to time of death.
Time was variation in evidence. Evidence of prosecution witness sought to be
corroborated by stomach contents of the deceased as found in post-mortem
report. This piece of evidence can be relied as conclusive evidence ·in absence of
their being some other evidence to show when the deceased had his last meal
or when the deceased went to ar-swer the call of nature.
So far as they are necessary for that purpose.-The words "are
relevant in so far as they are necessary for that purpose" in Section 9 are
'mportant and should not be lost sight of in applying Section 9. Collateral facts
enumerated under the section are ordinarily not admissible in evidence unless
appears that such facts are directly connected with the facts in issue. 1Il other
words, explanatory or introductory facts can be proved if they have a direct
bearing on the fact in issue. 2
(7) Facts showing .relations.-Facts showing relationship of parties by
whom such facts was transacted are relevant.
ECTION 10.-Things said or done by conspirator in reference to
S common design.-Where there is reasonable ground to believe that
two or more persons have conspired together to commit an offence or
an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it.
Illustrations
Reasonable ground exists for believing that A has joined in a conspiracy to
wage war against the Government of India.
The facts that B procured arms in Europe for the purpose of the conspiracy,
C collected money in Calcutta for a like object, D persuaded persons to join the
conspiracy in Bombay, £ published writings advocating the object in view at
Agra, and F transmitted from Delhi to G at Kabul the money which C had
1. AlR 2003 SC 393.
2. Raicndar Singh v. State, AlR 1955 NOC 'Z765; Lakshmandas v. State, AIR 1968 Bom 400.
,
[5.10
. 10] OF THE RELEVANCY OF FACTS 147
ollected at Calcutta, and the contents of a letter written by H giving an account
of the conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A's complicity in it, although he may have been
ignorant of all of them, and although the persons by whom they were done were
strangers to him, and although they may have taken place before he joined the
conspiracy or after he left it.
COMMENTS
Principles.-The basic principle which is underlined under Section 10 is
the theory of agency and hence every conspitor is agent of this association in
carrying out the object of consipiracy, Section 10 renders anything said or done or
written by any one of the conspirators in reference to their common intention as
relevant fact not only as against each of the conspirators but proving the
conspiracy itself. Further the said fact can be used for showing that a
particular person was party to the conspiracy. The only condition for
application of the rule of Section 10 is that there must be reasonable ground to
believe that two or more persons have conspired together to commit an offence.
In State of Maharashtra v. Damu Gopinath Shinde,1 there was no doubt
that there was reasonable ground to believe that four of the accused
conspirators had conspired to commit the offence of abduction and murder of
children involved in this case. So, when these accused had spoken to each other
in reference to common intention as could be gathered from the said conspirators
that could be regarded as relevant facts falling within the perview of Section
10. A dialogue between them could be proved through any permitted legal
mode. When the confession was legally proved and found admissible in
evidence, the same could be used to ascertain what was said and done or written
between the conspirators.
Conspiracy defined.-Section 10 deals with the admissibility of
evidence in a conspiracy case. Before discussing the section itself we must know
the meaning of the term 'conspiracy'. The term 'conspiracy' means combination
of two or more persons for unlawful purposes. "Conspiracy is the corrupt
agreeing together of two or more persons to do, by concerted action, something
unlawful either as a means or as an end". Section 120-A of the Indian Penal
Code lays down : "When two or more persons agree to do or cause to be done (1)
an illegal act, or (2) an act which is not illegal but illegal by means, such
agreement is designated as criminal conspiracy ; provided that no agreement
except an agreement to commit an offence shall amount to criminal conspiracy
unless some act besides an agreement is done by one or more parties to such
agreement in pursuance thereof." Thus it is clear that when two or more persons
agree together to do some illegal act or some act by illegal means they are said
to have conspired. "That it is not necessary in order to constitute a conspiracy,
that the acts agreed to be done should be acts which if done should be criminal.
It is enough if the acts agreed to be done although not criminal are wrongful,
i.e.. amount to civil wrong." "A conspiracy consists of unlawful combination of
t-vo or more persons to do that which is contrary of law, or to do that which is
I. AIR 2000 SC 1691.
14 8 EVIDENCE ACT (S.10
wrongfui towards other persons. It may be punished criminally, or civilly by
action."
It must be remembered that mere knowledge on the part of a man about a
conspiracy will not make him a conspirator. The man may be in knowing of an
existence of a conspiracy between others yet he may not have to do with the
conspiracy. There must be a consent of will and endeavour between the
conspirators.
Scope of the section.-Under Section 10 anything done or written by
any one of the conspirators in respect of their common intention is admissible
against all the conspirators for the purpose of proving (I) that the conspiracy
existed, and (U) for the purpose of proving that a person was a party to it.
Generally a thing done or statement made is admissible against the person who
does the work or makes the statement. Under Section 10, a statement or act of
one person is evidence against another. Section 10 lays down that anything
said, done or written by one of the conspirators is relevant against each of the
persons believed to be conspiring for two purposes (1) for the purpose of proving
the existence. of conspiracy, and (2) for the purpose of showing that any such
person was a party to it. It must be borne in mind that everything said or done or
written by one of the conspirators at any time will not be relevant under Section
10. The section puts certain limitations to the general rule of admissibility
stated above. Under Section 10 a thing done, said or written after the time
when such intention was first entertained by any one of them is relevant.
Anything done, said or written before such intention of conspiracy was
entertained by any one of them is not relevant under this section. Again each
and everything said, done or written by a conspirator even after such intention
was entertained by a member of the conspiracy will not be relevant under this
section. The only thing said, done or written in reference to the common
intention of the conspirators will be admissible. There is more limitation to the
relevancy of evidence under Section 10. Before any evidence is entertained under
this section there should be a reasonable ground for the court to believe that
two or more persons have conspired together to commit, an offence or actionable
wrong.1 Any statement made by' accused after his arrest cannot fall within the
ambit of Section 10. Confessional statement of accused who is not alive would
not be of any evidentiary use.2
Analysis of Section 10.-Section 10 can be analysed as follows :
(1) There shall be a prima facie evidence affording a reasonable ground
for a court to believe that two or more persons are members of a conspiracy ; (2)
if the said condition is fulfilled, any thing said, done or written by any one of
them in reference to their common intention will be evidence against the others;
(3) any thing 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
1. H.H.B. Gill v. Emperor, AIR 1948 PC 128.
2. Sta•e of Gujarat v. Mohammed Atik and Others, AIR 1998 SC 1686.
s. 10] OP THE RELEVANCY OF FACTS 149
conspiracy, whether it was said, done or written before he entered the
conspiracy or after he left ; (5) and it can be used only against a conspirator and ·
not in his favour.'
Reasonable ground of conspiracy.-As mentioned above the
applicability of Section 10 is strictly conditional upon there being reasonable
ground for a court to believe that two or more persons have conspired together to
commit an offence. A court cannot use anything said, done or written by one
alleged member of the conspiracy, in evidence against him or against all unless
there is a reasonable ground to believe that the conspiracy between them
existed. Thus, before bringing on record anything said, done or written by an
alleged conspirator the court has to bring on record some evidence which prima
facie proves the existence of the conspiracy. Once a reasonable ground to believe
that several persons have conspired to 'commit an offence exists the acts and
declarations of a particular person in reference to the common intention are
relevant facts although that person may not so much as even know of the
existence of many others engaged in the conspiracy or were utter strangers to
him. And if the evidence is taken after a prima facie proof of conspiracy but at
a later stage of the trial that reasonable ground of belief or prima facie proof is
displaced by further evidence, the court must reject the evidence previously
taken.2
In Ammani and Others v. State of Kerala,3 it was held by Supreme Court
that where there was reasonable ground to believe that the other accused had
conspired together in committing murder, the confession made by accused could
be used against other accused also.
In Central B1mau of Investigation (CBI) v. V.C. Shukla & Others
(Hawn/a case),4 the entries were made in the accounts book alleged to be
showing conspiracy among all the accused. Evidence of prosecution witness only
indicated that one of the accused in question was known to the other accused
person and had gone to their residence on formal occasion. The witness did not
speak a word about other accused in question. It was held that Section 10 could
not be pressed into service for holding that conspiracy amongst all the accused
was proved.
Things said, done or written in reference to common intention.-
It must be borne in mind that the thing said, done or written by one person will
be admissible against him and others in a conspiracy case only when that thing
is said, done or v. ritten in reference to the common intention of the conspiracy.
Anything written by a conspirator will not be admissible against him or others
if it is not done in reference to the common intention of the conspiracy.5
1. Bh11gw11n Swamp v. State of Maharashtra, AIR 196.5 SC 682.
2. Samundar Singh v. State, AIR 196.5 Cal. 598 ; L. Chorasla v. State of Maharashtra, AIR 1968 SC
743.
3. AlR 1991! SC 260.
4. AIR 1998 SC 1406.
5. Tribhuwannath v. State of Maharashtra, AIR 1973 SC 450; Bhagwandas v. State of Rai;isthzm,
AIR 1974 SC 878.
150 EVIDENCE ACT [S ..
Once reasonable ground is shown for believing that two or more persons
have conspired to commit an offence then anything done by anyone of them in
reference to their common intention is admissible against the others.1
The word 'intention' implies that the act intended is in the future and the
section makes relevant statements by a conspirator with reference to the future.
The words "in reference to their common intention" mean in reference to what at
the time of statement was intended in the future. Narratives coming from the
conspirators as to their past acts cannot be said to have a reference to their
common intention.
In Badri Rai v. State of Billar,2 A and B were convicted under Sections
120-B read with Section 165-A, I.P.C. The facts were when the inspector of
police was on his way to police station, both A and B approached him and
requested him to hush up a criminal case pending investigation against, B, for
reward. The inspector asked them to see him in his office. The inspector
reported the matter to his superiors. Some days afterwards A came to the
police-station and offered Rs. 500 in currency notes saying that B had sent him
with the money in pursuance of the talk which they had with him some days
previously, to hush up the matter. When the money was offered there were
some witnesses in the room. At the trial the question was whether the
<{statement made by A, that he was sent by B with the money to be offered by
way of a bribe to the police officer, was admissible against A. It was held that
the incident when both A and B approached the inspector with the proposal
that he should hush up the case against B for which he would be amply
rewarded, was clear evidence of the two persons having conspired to commit
the offence of bribing a police servant in connection with the discharge of his
public duties. That being so anything said or done by any one of the two, with
reference to the common intention, namely, the conspiracy to offer bribe, was
equally admissible against both of them. The statement made by A that he has
been sent by B to make the offer of the bribe in order to hush up the case which
was then under investigation was admissible not only against the maker of the
statement A but also against B whose agent the former was in pusuance of the
object of the conspiracy. The statement was admissible not only to prove that B
had constituted A his agent in the preparation of the crime, but also to prove
the existence of the conspiracy itself.
Act of one conspirator is act of another. Under the principle contained in
Section 10 of Evidence Act, once a conspiracy to commit an illegal act is proved,
att of one conspirator becomes the act of the other.3
Evidence relating to acts outside the period of conspiracy.-It
should also be remembered that the things done, said or written by a
conspirator will be normally relevant only when it is done, said or written after
the time when such intention was entertained by any one member of the
conspiracy. If the thing was said, done or written in the past that is before such
1. Mukesh v. State for NCT of Delhi, AIR 2017 SC 2161 p. 2330.
2. AIR 1958 SC 953.
3. Sheo Narayan v, State of Maharashtra, ArR 1980 SC 439.
s. 10) OF THE RELEVANCY OF FACTS 15]
intention was entertained by any one of them, it is not relevant and cannot be
proved.1 Again a thing done, said or written by any one of the members t' the
conspiracy after the conspiracy is over is not relevant under this section. This
view of the Privy Council does not hold good in view of the opinion of the
Supreme Court expressed in Ram Narayan Popli case,2 which has been
followed in K. Hashim v. State of Tamil Nadu.3 Thus held that things said,
done or written before the conspirator against whom the evidence is sought to be
proved had entered the field of conspiracy or after he left it was clearly
covered, inspite of the fact it being related to the period prior to commission of
the offence.
In State of Gujarat v. Mohd. Atik & Others,4 it was held by Supreme
Court, that once the common intention ceased to exist any statement made by
former conspirator, thereafter could not be regarded as one made in reference to
their common intention. In other words, the post arrest statement made to the
police officer whether it is confession or otherwise touching his involvement in
the conspiracy would not fall within the amblt of Section 10 of Evidence Act.
In Mirza Akbar v. Emperor,5 Mirza Akbar, Mst. Mehr Laqa and Umar
Sher were convicted for the murder of Ali Askar, the husband of Mst. Mehr
Laqa. The prosecution case was that Mst, Mehr Laqa and Mirza Akbar desired
to get rid of Askar so that they should marry each other. Umar Sher was hired
for the purpose. Urnar Sher shot Ali Askar dead. After the murder wa
committed, Mst. Mehr Laqa was arrested on the charge of conspiracy. She wa
examined before a Magistrate and there she made certain statement
implicating Mirza Akbar. This statement was admitted in evidence both by the
trial Judge and Judicial Commissioner as relevant against the appellant under
Section 10, Evidence Act. It was held that the words of Sect-ion 10 are not
capable of being widely construed so as to include a statement made by one
conspirator in the absence of the other with reference to past acts done in the
actual course of carrying out the conspiracy, after it has been
completed Things said, done or written while the conspiracy, was on foot,
are relevant. But it would be a very different matter IQ hold that any
narrative, statement or confession made to a third party after the common
intention or conspiracy was no longer operating and had ceased to exist,
admissible against the other party. With this observation it was held that
the evidence was not admissible under Section 10 of the Evidence Act. 1n short,
past and future things said, done or written are not relevant under Section 10 of
the Evidence Act.
The principle underlying the reception of evidence under Section 10 of the
Evidence Act of the statements, acts and writings of one co-conspirator as
against the other is one the theory of agency. The rule in Section lU of the Act
confines that principle of agency in criminal matters to the acts of co-
l. Ahai Lal u. Emperor, AIR 1949 PC 90.
2. Ram Narayan PopH v. Central Bureau of Investigation, (2003) 3 SCC 641 of 779.
3. (2005) 1 sec 2J1.
4. AIR 1998 SC 1686.
5. AIR 194U PC 176.
152 EVIDENCE ACT [S. 11
conspirator within the period during which it can be said that the acts were "in
reference to their common intention" that is to say, "things said, done or
written, while the conspiracy was on foot" and "in carrying out the conspiracy."
Evidence of co-conspirators outside the period of conspiracy is not receivable in
evidence.1
S ECTION n.-When facts not otherwise relevant become relevant.-
Facts not otherwise relevant are relevant-
(1) if they are inconsistent with any fact in issue or relevant fact;
(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.
Illustrations
(a) The question is whether A committed a crime at Calcutta on a certain
day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a
distance from the place where it was commitf, .i, which would render it highly
improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed
either by A, B, C or D. Every fact which shows that the crime could have been
committed by no one else and that it was not committed by either B, C or D is
relevant.
COMMENTS
. Principle.-The object of a trial is to prove or disprove, by evidence, a
particular claim or charge, therefore any fact which either disproves or tends
to disprove that claim or charge is relevant.
Section 11 attempts to state in popular language the general theory of
relevancy and may therefore be described as the residuary section dealing with
relevancy of facts. The words of Section 11 are very wide and it may be safely
laid down that all evidence which would be held admissible by the English
Law, would be properly admitted under this section of the Act. Collateral facts
which by way of contradiction are inconsistent with a fact in issue or another
relevant fact, that which make the existence of a fact in issue or a relevant fact
impossible or highly improbable or which by way of corroboration are
consistent with the existence of the fact in issue or a relevant fact, i.e., tend to
render the existence of a fact in issue or a relevant fact highly probable are
themselves made relevant by the section.2 Where two appeals are from two
different forums namely the City Civil Court and the Family Court have been
heard together for convenience of Court and parties, it would be impermissible
I. Sardul Singh 11. SL1te of Bombay, AIR 1957 SC 747.
2. Ranagavyar 11. lnnase nulla Mudali, (1959) 2 MLJ 68.
s. 11] OF THE RELEVANCY OF FACTS 153
as a matter of procedure to read the evidence recorded by one court in relation to
the proceedings that has emanated from the other one.1 The sort of facts which
the section was intended to include are facts which either exclude the fact in
issue or another relevant fact (clause 1) or make the existence or non-existence of
the fact in issue or relevant fact highly probable (clause 2).
Section 11 controlled by other section.-The terms of Section 11 are
no doubt wide, but they must be read subject to the other sections of the Act and,
therefore, the fact relied on must be proved in accordance with the provisions of
the Act. If the fact is a statement made by a person who is not called or cannot
be called the statement cannot be admitted unless it comes within the
subsequent sections of the Act (i.e., Sections 32 and 33).
In Bela Rani and others v. Mahabir Singh and others,2 one Beni Ram, who
died in 1866, owned the property in dispute. He was succeeded by his wife Mst.
Mathuri who died in 1878 and was succeeded by her daughter Mst. Dasodari.
Mst. Dasodari transferred the property in dispute to the ancestors of
defendants. The plaintiffs purchased the property from the persons who would
be entitled to the property on the death 'of Mst. Dasodari. The plaintiff filed
the suit for possession. The main defence was that Mst. Dasodari died more
than 12 years prior to the filing of the suit which was accordingly barred by
limitation. At the death of Mst. Dasodari applications were made for mutation
of some of the property in possession of which she had been. These applications
were supported by depositions of the reversioners. Copies of the applications
and the depositions were filed by the plaintiff in the present suit. In all these
copies the date of the death of Mst. Dasodari was stated to be the 16th of
March, 1898. It was argued that the depositions make it highly probable that
Dasodari died on the 16th of March, 1898 and therefore they were admissible
under Section 11 of the Evidence Act.
It was held that the statements were simply the statements of persons
who were dead and such statements are not relevant unless they come under one
or more of sub-sections of Section 32 of the Evidence Act. The statement being not
admissible under Section 32 of the Act were held inadmissible under Section 11
of the Act.
Controlled by Section 32.-As a general rule Section 11 is controlled by
Section 32 where the evidence consists of the statements of persons who are
dead or cannot be found. But this rule is subject to certain exceptions. The test
whether the statement of that person who is dead or cannot be found is relevant
under Section 11 though not admissible under Section 32, is that it is admissible
under Section 11 when it is altogether immaterial whether what the dead man
said was true or false, but highly material that he did say it. There is
difference between the existence of a fact and statement as to its existence.
Section 11 makes admissible the existence of facts and not the statements as to
such existence unless the facts of making that statement is in itself a matter in
1. Sangeeta Balkrishna Kadum v. Bal Krishna Ram Chandra Kadam, AIR 1994 Born. 1.
2. 19 ALJ 351.
154 EVIDENCE ACT
issue.' For example suppose that the person who died in 1885 can be proved to
have said any time before he died: "A was mad when he made hi, will", that
is material to show that there was a will of some sort before 1900; and it makes
not the slightest difference whether the statement that A was mad when he
made it is true or false. The evidence would have the same and no more or less
value under Section 11 if the person had said "A was not mad when he made his
will". Where the fact that is relevant under Section 11 is not what a deceased
person chose to predicate about a thing, but that he mentioned it at all whether
what he predicated of it were true or false, then and then only it is a case
outside Section 32.
Statements.-From the wording of this section it seems that facts not
relevant under any of the section in the Chapter of Relevancy of Facts (Sections
6 to 10 and 12 to 55) are relevant under Section 11. A statement is included in the
definition of the term "Fact" and.statements can, therefore, be relevant under
Section 11 of the Evidence Act. Sections 17 to 39 deal with the admission in
evidence of the statements of persons. If a very wide interpretation is to be
given to the words of Section 11, the statements of persons inadmissible under
Sections 17 to 39 would be admissible under Section 11, for instance at a trial of
'B' of a crime it may be said by a witness that he heard A to declare that he
had seen B committing the crime for which he had been charged. This
statement of A certainly makes it highly probable that B did commit the
crime. Therefore A's declaration may be said to be relevant under Section 11 (2).
But this was not the intention of the section. Sections 17 to ;39' deal with the
relevancy of the statements. Statements not relevant under those sections cannot
be said to be relevant under Section 11. The statement of A referred to above is
not relevant under any of the Sections 17 to 39 and so it cannot be relevant under
Section 11. Stephen, in his introduction has very rightly remarked that "the
meaning of this section would have been more fully expressed if the words of
the following effects had been added to it. "No statement shall be regarded as
rendering the matter stated highly probable within the meaning of this section
unless it is declared to be relevant fact under some other section of this Act".
The reason why .statements as to fact made by persons not called as witnesses
are excluded except in certain specified cases under Sections 17 to 39 are various.
In the first place it is a matter of common experience that statements in common
conversation are made so lightly, and are liable to be misunderstood or
misrepresented, that they cannot be depended upon for any important purpose
unless they are made in special circumstances. The statements not admissible
under Sections 17 to 39 are not admissible under Section 11. Section 11 makes the
existence of 'fact' admissible and not 'statements' as to such existence, unless of
course the fact of making that statement is itself a matter in issue.2
Analysis of the sectlon.v-Secuon 11 contains two clauses. The first
clause lays down that the facts, which are inconsistent with the facts in issue
or relevant facts, are relevant.
1. Thakurji 11. Permeshwar Dayal, AIR 1960 All. 839 ; Ambika Charan Kundu v. Kumud Mohan
Olaudhari, AJR 1928 Cal, 893; Mst. Nalma Khatun v. Basant Singh, AJR 1934 All. 406.
2. Naima Khatun 11. Basanl Singh,/AJR 1934 All. 436.
[S. 1
s. 11) OF THE RELEVANCY OF FACTS 155
Under the second clause the facts which by themselves or in connection
with other facts make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable are relevant. We shall take up
these two parts of the section separately.
(1) Facts inconsistent with any fact in issue or relevant facts.-
One fact is said to be inconsistent with the other when it cannot co-exist with
the other. Let us take examples. The question is, whether A committed a crime
at Calcutta on a certain day. The fact that A was at Lahore on that day is
relevant as they cannot co-exist. A is illiterate is a fact, similarly A wrote a
defamatory article damaging the fame of B, is another fact. Now these two
facts are inconsistent with each other. They cannot co-exist. If A is illiterate,
he cannot write an article, vice versa if he can write an article he cannot be
illiterate. Therefore, if A charged with writing a defamatory article against B
the fact A is illiterate is relevant under Section 11. So under the first clause of
Section 11 facts are relevant only because they cannot co-exist with the
relevant facts in issue. If their existence is proved the existence of fact in issue
or relevant facts are negatived. In the above mentioned example the fact in
issue is 'whether A wrote a defamatory article against B'. A is entitled to lead
evidence of the fact that he is illiterate because illiteracy and writing of
article cannot co-exist. There are generally five classes of cases that arise for
consideration under this clause :
( i) Alibi ;
(ii) Non-access of husband to show illegitimacy of issue ;
(iii) Survival-of .tne alleged deceased;
(iv) Commission-of an offence by a third person;
(v) Self-infliction-of harm.
(i) Alibi.-The plea of absence of a person, charged with an offence, from
the place of occurrence at the time of the commission of the offence is called the
plea of alibi.
Plea of Alibi-When can be raised-Statements under Section
161 not admissible.-If the plea of alibi is raised by the accused, the burden
to prove it lies on him which he could do by leading evidence in the trial and
not by filing some affidavits or statements purported to have been recorded
under Section 161 Cr. P. C. The statements of the witnesses under Section 161 Cr.
P. C. are wholly inadmissible in evidence which cannot be taken into
consideration. No finding of plea of alibi can be recorded by the High Court for
the first time in a petition under Section 482 Cr. P. C.1
Where an alleged offence has been committed and the prosecution accuses
a person of having committed the same, it would be a complete answer to the
accusation for that person to plead that he was at that time elsewhere ; this
has of course no reference to offence in which time or place are not material
factors ; and if that person succeeds in establishing that plea technically called
I. Rajlndra Singh v. State of U. P., AlR 2007 SC at p. 2791.
156 EVI D EN C E A CT
the plea of alibi, he will be entitled to an acquittal. Of course for the purpose of
arriving at that conclusion, namely, the conclusion that the plea of alibi has·
been established not only to the defence evidence in support of the accusation
should be examined. The reason is that what may appear on examination of the
defence evidence alone to be proved may tum out really not to be so, viewed in
the light of the evidence to the contrary adduced by the prosecution. On the
other hand, even though the defence evidence may by itself fail to reach the
standard of positive proof, yet the evidence taken alongwith the evidence laid
by the prosecution may raise a reasonable doubt as to whether the accused was
really present at the time when or at the place where the offence was
committed in which case the accused would still be entitled to an acquittal.
That being so where an accused pleads alibi it would be taking in their natural
sequence to examine the defence evidence relating to the plea first.
In Munshi Prasad and others v. State of Bihar,1 the presence of the
accused at a distance of 400-500 yards between place of occurrence cannot be said
to be presence elsewhere. It cannot be impossibility to be at place of occurrence
and also at panchayat meeting.
Where the accused set up a plea of alibi that he was on duty at another
town on the date of occurrence, the burden of proof lies on him under Section 103,
Evidence Act, to establish the plea and it is not for the prosecution to prove
that the accused was absent from duty on the date of occurrence, of course, if
there were anything on the record to support the allegation of the prosecution
having tampered with the defence witnesses that taken along with the other
fact and the circumstances of the case might have raised a doubt that after all
the plea of alibi may be well founded and in that case the defence would be
entitled to the benefit of that doubt but a mere allegation in an application
without evidence in support of that allegation is of no consequence whatsoever.2
In order to establish the plea of alibi the accused must lead evidence to show
that he was so far off at the moment of the crime from the place of occurrence
that he could not have committed the offence.3 Failure of plea of alibi does not
help the prosecution.f
Where the case of defence was that at the time of incidence the accused
was injured at 1.30 p.m. (noon). He was taken to another village in a tractor.
The injured was admitted in the hospital at 7.00 p.m. (evening) and not in the
afternoon and he lodged the report of incidence on next day. The statement that
the assault was on said time was not correct. The plea of alibi cannot be
accepted.5
In Sura] Pal v. State of U.P.,6 the prosecution examined 11 witnesses and
mainJy relied on PWs 1 to 4 who figured as eye-witnesses. Even examined under
1. AIR 2001 SC 3031.
2. Satyavir fl, State, AIR 1958 AIL 746.
3. Doodhnath Pande fl. State of U.P., AIR 1981 SC 911 ; State of Mahara.shtra 11. Nar Singh, AIR
1984 SC 63.
4. State of Haryana fl, Prabhu, AIR 1979 SC 1019.
5. Ama r.ippa 11. State of J<amata.ka, AIR 1989 SC 2004.
6. AIR 1994 SC 748.
(S. 11
s. 11) OF THE RELEVANCY OF FACTS 157
Section 313 Cr. P.C. all the accused denied their participation and pleaded
that they were falsely implicated due to enmity. The appellant however
pleaded alibi and DWs 1 and 2 were examined in support of his plea of alibi.
OW 1 produced register Ex. kha 3 to prove an entry dated November 20, 1974 to
show that appellant went to district jail Fatehgarh to meet one Rajendra
Kumar an under-trial prisoner. The evidence of PW 1 and DW 2 would only at
the most show that the appellant visited the jail to see DW 2. DW2 concealed
that the appellant had no special reasons to meet him. The High Court had
rightly rejected the evidence in support of plea of alibi holding it to be flimsy.
We have also presumed the evidence of D.Ws. 1 and 2 and we do not think that
any importance can be attached to the same.
In Vijay Pal v. State (GNCT) Delhi,1 the deceased had died of bum
injuries. She stated to her brother that her husband had poured kerosene and
set her ablaze. The Trial Court held her husband guilty under Section 302 and
the High Court confirmed the same. In appeal to the Supreme Court, the amicus
curiae, seriously criticized the judgment of the High Court in not accepting the
plea of alibi, advanced by the accused which had a solid foundation, for the
fateful day was "Bhaiva Dooj" and, therefore, the accused had gone to his
sister's place as per tradition. The Supreme Court held-
There is no warrant to dislodge the concurrent finding of fact when the
Trial Court as well as the High Court disbelieved the plea of alibi. The
evidence produced by the accused is not of such a quality to prove with absolute
certainty so as to exclude the possibility of his presence at the place of
occurrence. It is not also of such a quality that the Court may entertain a
reasonable doubt. The burden on the accused is rather heavy and he is required
to establish the plea of alibi with certitude. The plea can succeed only if it is
shown that the accused was so far away at the relevant time that he could not
be present at the place where crime was committed.2
In Darshan Singh v. State of Punjab3 the allegation was that the part'es
of the complainant and the accused had gone to attend the Court proceedings
under Sections 107 and 151 of Cr. P.C. At about 11 A.M., both the parties started
quarreling and in a heated exchange of words, the appellant took out his Siri
Sahib (small Kripan, a sharp edged weapon) and gave blow to the deceased.
He took the plea of alibi stating that he was attending his duty as laboratory
assistant in a senior secondary school at the time of incident. It was proved on
the record that in the proceedings under Sections 107 /151 of Cr. P.C. before the
Executive Magistrate, he was to be present in the said case on that day. The
injured eye-witness narrated in detail his presence and role. He had moved an
application for casual leave in the school one day before the incident. The
Court held it hard to be believed that after moving application one day before
for C.L., he attended the school next day in the first half and sought half day
leave thereafter. The attendance register was not seized immediately after the
incident. His plea of alibi was vacillating.
1· AIR 2015 SC 1495.
2. Vijay Pal v. State (GNCI) Delhi, AIR 2015 SC 1495 at p. 1504 referred to.
3. AIR 2016 SC 253 at pp. 257, 2.58.
158 EVI D EN C E A CT
1
Burden of Proof.-In Binay Kumar and others v. State of Bihnr, it was
held by Supreme Court that, it is basic law in the criminal case in which the
accused is alleged to have inflicted physical injury to another person, the
burden is on prosecution to prove that the accused was present at the scene and
has participated in the crime. The burden would not be lessen by mere fact that
the accused has adopted the plea of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in discharging its burden it is
incumbent on accused who adopts plea of alibi to prove with absolute certainty
so ~s to exclude the possibility of his presence at the place of occurrence. When
the presence of the accused has been established satisfactorily by the
prosecution through reliable evidence, normally the court will be slow to
believe any counter evidence to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some reasonable
doubt regarding his presence at the scene when occurrence took place, the
accused, would no doubt, for that purpose it would be sound proposition to be
laid down that in such a circumstance the burden on accused is heavy. It
follows, therefore, that strict proof is required for establishing the plea of
alibi.
In Brij Lal Prasad Sinha v. State of Bihar,2 the police officers were
charged with murder in encounter. The plea was that the accused was
transferred to some other places at the time of occurrence. The prosecution
witness gave the evidence that the accused was present at the place of
occurrence. There was no attempt by the accused to prove that he was present at
another place on relevant date. Plea of alibi was rejected.
In a case of gang rape, one of the accused took the plea that he was
attending the musical programme at park with his family on the date of
incident. The plea of alibi contradicted against evidence of injured informant,
the dying declaration of prosecutrix, D.N.A. analysis and finger print analysis.
The evidence of the Park Authority revealed that no permission was granted
by any Authority to organise musical programme in park and no such
programme was organised on the date of incident. The Court held-The accused
failed to establish the plea of alibi. It is settled law that while raising a plea
of 'alibi', the burden squarely lies upon the accused person to establish the plea
convincingly by adducing cogent evidence.3
Plea of alibi in relation to co-accused.-The plea of alibi cannot be
accepted in favour of an accused merely on the ground that the same was
accepted in relation to co-accused. Where there was no material to show that
on the date of occurence, the accused was present in the school, nor any
appointment letter was produced. His plea of alibi was rejectcd.t
I. AIR 1997 SC 321.
2. AJR 1998 SC 2443.
3. Mukesh v. State for N.C.T. of Delhi, AIR 2017 SC 2161 at pp. 2244 to 2247.
4. Bikav Pandey v. State of Bihar, AfR 200l SC 997.
[S. 11
s. 11) OP THE RELEVANCY OF FACTS 159
Failure to establish alihi.-Failure on the part of accused to establish
plea of alibi does not help the prosecution and it cannot be held that the
accused was present at the scene of occurrence, the prosecution must prove it by
positive evidence.1 Thus the mere failure on the part of the accused to establish
the plea of alibi, shall not lead to an inference that the accused was present at
the scene of occurence.2
In a murder case under Section 300 l.P.C. the defence of alibi and suicide
raised by the accused cannot be taken as circumstances against him. Simply
because the pleas of suicide and alibi have failed at the trial no adverse
inference can be drawn against the accused.3
(ii) Non-access of husband to show illegitimacy of issue.-Since
legitimacy of a child implies a begetting by the husband, in disproving
legitimacy, it would be relevant to prove that the husband had no access to the
wife at the probable time of begetting.
(iii) Survival of the alleged deceased.-A is accused of murdering Bon
the 6th of August, 1951, A tries to prove that B was alive till 31'.it August, 1951.
This fact is relevant under Section 11, clause (1), only because this is
inconsistent with the fact in issue that A murdered B on the 6th of August 1951.
It is acceptable to a simple common sense that a man alive on the 31st of August,
1951, cannot be said to be murdered on the 6th of August, 1951.
(iv) Commission of a crime by third person.-A is charged with the
murder of B. A can prove that one C murdered B. Because the fact C murdered B
is inconsistent with the fact that A murdered him.
(v) Self-infliction of harm.-A is charged with the murder of B. Here A
can lead evidence under Section 11 (1) to prove that B committed suicide.
(2) Facts making the existence or non-existence of any fact in
issue or relevant fact, highly probable or improbable.-'Highly
improbable'.-As we have seen above under sub-clause (1) of Section 11, facts
are relevant because they are inconsistent with any facts in issue or relevant
fact. They are so diametrically opposed to the facts in issue that the existence
of those facts make the existence of those facts in issue or relevant fact
impossible. Under sub-clause (1) of Section 11 the facts are relevant because if
they are proved to exist the facts in issue or relevant facts can in no case exist.
'Highly probable' or improbable-Meaning of.-The words 'highly
probable' point out that the connection between the facts in issue and the
collateral facts sought to be proved must be so immediate as to render the co-
ixlstence of the two highly probable.
No doubt, a fact admissible und=r this section is collateral to the fact in
issue or a relevant fact, but all collateral facts having some remote and
conjectural probative force are not to be admitted under Section 11. There are
1. Shankar Lal v. Sl~le of Maharashtra, AIR 1981 SC 765 ; Sakharam v. State of M.P., A@ 1952 SC
758.
2. Dasari Siva Prasad Reddy v. 1',,blic Prosecutor, High Court A.P., AIR 200l SC 4383.
3. Sakharam v. State of M.P., Al~ 1092 SC 758.
160 EVIDENCE ACT [S. 11
limitations to the admission of facts under this section. The Courts must exercise
a sound discretion and see that the connection between the facts sought to be
given in evidence under Section 11 to the facts to be proved must be so that the
existence of the facts to be given in evidence excludes the possibility of the
existence of the fact to be proved or the relation and connection between the
facts to be proved and the facts to be given in evidence must be so immediate as
to render the co-existence of the two highly probable. The section makes
admissible only those facts which are of great weight in bringing the court to a
conclusion one way or the other, as regards the existence or non-existence of the
fact to be proved. The admissibility under this section must, in each case,
depend on how near is the connection of the facts sought to be proved with facts
in issue and to what degree do they render facts in issue probable or improbable
when taken with other facts in the case.
In Brij/al Prasad Sinha v. State of Bihar,1 the police officials were tried
for murder of some alleged culprits in encounter. It was alleged by police
official that the occupants of vehicle used by deceased were also firing from
their firearms. But bal\astic report, showed that the pistol found near dead
body, from which the deceased were alleged to have fired, were never used and
also that those arms were deffective. Thus, the allegation that the deceased
had fired from pistol and the ballastic report that pistol was never used and
was deffective, were held inconsistent fact. The ballastic reports made it
highly improbable that the deceased must have fired from alleged pistol.
Thus, the ballastic report was admissible under this section, since it made the
existence of fact in issue i.e., whether the deceased fired or not, highly
improbable. It was more so when it was found that glasses of vehicle in which
victims were travelling were broken and there were no marks of firing in which
police officials were travelling. The accused were liable to be convicted.
Under sub-clause (2), facts are relevant because if they are proved they
make the existence or non-existence of any fact in issue or relevant fact highly
probable or improbable. The facts proved under sub-section (1) of Section 11 only
negative the existence of facts in issue or relevant facts. By the proof of those
facts, the existence of the fact in issue or relevant fact is disproved. Sub-clause
(2) deals with both the affirmative and negative aspects of the fact in issue.
Under this clause, the facts proved are conclusive as under clause (1). Under
clause (2) the facts are relevant only because if they are proved either it
becomes highly probable for the fact in issue to exist or it becomes highly
improbable for the fact in issue to exist.
"Highly probable."-lt must be borne in mind that in this clause only
those facts are relevant which make the existence of the fact in issue or
relevant fact highly probable or improbable. The words 'highly probable' are
of great importance. Whether a fact is to be admitted under the clause or not,
depends upon the weight to be given to such evidence. To be clear this clause
allows the admission of those facts only, which after being admitted will be of
great help in bringing the court to a conclusion as regards the existence or non·
existence of the fact in issue. If the facts are of little importance they cannot be
1. A1R1998SC244J.
s. 11] OF THE RELEVANCY OF FACTS 161
admitted in evidence. The words 'highly probable' mean more than normal
standard of probability.1
In a case of election petition on ground of mal practice, the evidence that
truck drivers who were carrying the voters for a candidate were convicted is
relevant under Section 11.2·0mission of important fact, which seriously affect
the prosecution case from the first information report may be proved under
Section 11.3
Relevancy of similar facts.-The section has been expressed in very
wide language. But this does not mean that every fact, however remote it may
be is relevant only because it is shown to have some bearing on the fact in issue.4
Previous instances of a similar nature to one under inquiry are not relevant,
various transactions of ma/a fide with a third person are not relevant to prove
the ma/a fide of the present transaction.5
Recitals in deeds.-Recitals in a deed inter paries are relevant. But
recitals in· deed between strangers are not relevant to prove the truth of the
facts stated therein. Recitals about boundaries in deeds between strangers are
not relevant under Section 11.6
In Emperor v. Yaqub.7-A was charged with having obtained money from
B by falsely representing that he was servant of one Akbari Begum, a wealthy
lady of Rampur who was anxious to lend money on easy terms. B tried to lead
evidence that at about the same time A made such a representation to others. It
was held that this was admissible only because the fact that A at the same
time made the same representation to others makes the fact "that A made such
a representation to B" highly probable.
Illustrations
1. A is charged of handing over forged currency notes to B representing
them to be genuine. B tries to prove that few days after and before A handed
over currency notes of the same denomination to C, D, E and F. This fact is
relevant because if it is proved that A handed over forged notes to a number of
persons at about the time when he is alleged to have handed over a forged note
to B it will make it highly probable that A might have handed over a forged
note to B knowing it to be forged.
2. 11,e question in controversy is whether a certain lease granted by A to B
is perpetual. B tries to prove that many leases were granted by A to many other
persons at the same time and all of which were perpetual leases. This fact is
relevant because it makes the factum of the lease in question being perpetual,
highly probable.
1. B. Choukhani v. WJ. Theatre, AIR 1957 Cal. 7fH.
2. Pretap Singh v. Rnjenora Singh, AIR 1975 SC 114-.
3. Ram Kumar I', State of M.P.. AIR 19-15 SC I 126.
4. R~k:ndra Singh v. ~JI" Covind, AIR 195<1 P.lt. 556.
5. 8. Choukhanl v. Western Indra Theatre, ,'\lR 1957 C.-1!. 709.
6, R.C. R. lnsutute v. State, AIR 197:, Kant. 75 ; Nihal Jha v. Derbdeo, AIR 1935 Pat. 167 (FB) ;
Chandreshwer v. Ram Chandra Singh, AIR 1m Pat, 215.
7. 15 Al.] 2-!I.
162 EVIDENCE ACT [S. 12
3. A is charged of forgery. It is tried to prove that the accused possessed
many other forged documents. The evidence is admissible.
S ECTION 12.-In suits for damages, facts tending to enable court to
determine amount are relevant.-ln 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.
COMMENTS
Suits for damages.-Damages, which are the pecuniary satisfaction
which a plaintiff may get in a suit are always a fact in issue. Damages are
claimed either in an action based on contract or tort. The question as to when
damages may be awarded and the amount of damages to be awarded is a
question of the particular branch of the substantive law under the provisions of
which such suits are brought. In a suit in which damages arc claimed the
amount of damages is always a fact in issue. Section 12 lays down that evidence
tending to 'determine' i.e., to increase or diminish the damages is admissible.
Mitigation or aggravation of darnages.-In an action for libel, the
other defamatory statements by the defendant, whether made before or after
the commencement of suit, are admissible for the plaintiff so as to enhance the
damages. Similarly the evidence of fact which have the effect of mitigating
damages admissible for the defendant. Where the defamatory statement_
concerned is an imputation of bad conduct towards a woman and truth is pleaded
in defence, evidence to the effect that the woman herself made statements to
that effect to a number of persons is relevant under this section.
S ECTION 13.-Facts relevant when right or custom is in question.-
Where the question is as to 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, recognised, asserted or denied, or
which was inconsistent with its existence ;
(b) particular instances in which the right or custom was claimed,
recognised, or exercised, or in which its exercise was disputed,
asserted or departed from.
Illustration
The question is, whether A has a right to a fishery. A deed conferring the
fishery on A ·s ancestors, a mortgage of the fishery by A's father, a subsequent
grant of the fishery by A's father, irreconcilable with the mortgage, particular
instances in which A's father exercised the right, or in which the exercise of
the right was slopped by A's neighbours, are relevant facts.
COMMENTS
Scope.-Scc:tion 13 lays down as to what fads are relevant and may be
proved when the question at issue is whether any right or custom exists. The
section consists of two parts-clauses (a) and (b).
s. 13] OF THE RELEVANCY OF FACTS 163
The first part {clause (a)J deals with transaction. Where the question is as
to whether a certain right or custom exists, any transaction by which the right
or custom in question was created, claimed, modified, recognised, asserted or
denied or which was inconsistent with its existence may be proved.
The second part [clause (b)J deals with instances. Where the question is as
to whether a right or custom exists, the particular instances, in which that
right or custom was claimed, recognised, exercised, or in which its existence was
disputed, asserted, or departed from, may be proved.
Principle.-Section 13 deals with the proof of existence of any right or
custom. Therefore, before discussing the section we have to know as to what is
meant by 'custom' and 'right'.
Custom defined.-A 'custom' is a particular rule which has existed
from the time immemorial and has obtained the force of law in a particular
locality.1 Generally all the sons succeeds to and inherit the properties of their
father. But there was a custom among some zamindars that only the eldest son
succeeded to the estate and others got only maintenance. Similarly as a matter
of general law every man has a full freedom to sell his land to any body he
likes. But in certain districts it was incumbent upon a person who wished to sell
his land, to offer the land for. sale to his blood relations and co-sharers and on
their refusal he could sell it to strangers. In_ absence of such offer the sale could
be pre-empted by the relations of the co-sharers on the payment of the real
consideration.2 Suppose A sold his land to B for Rs. 500 without making any
offer to E, a brother of A. E might bring a suit of pre-emption and on payment of
Rs. 500 to B he would get the property.
The chief characteristics of a custom is that it cannot extend to the whole
realm nor can it embrace the whole of the public. To be concise "a custom is a
rule which in a particular family, or in a particular district, has from long
usage, obtained the force of law."
Requisites of valid customs.-Under the English law, a valid custom
must fulfil the following conditions :-
(a) It must be ancient (it must be in existence beyond the memory of man
or it must go back as far as the reign of Richard 1).
(b) It must be continued, unaltered, uninterrupted, uniform and constant.
(c) It must be peaceable and acquiesced in.
(d) It must be reasonable.
(e) It must be certain and definite.
(/) Compulsory and not optional to every person to follow or not.
(g) It must not be immoral, it must not be opposed to morality or public
policy, the custom to marry daughter's daughter cannot be recognised
and it must not be expressly forbidden by the Jegislature.3
I. Subramanian Chettiar 11. Kamnappa Chettiar, AIR 1955 Mad. 145.
2. Balusarni t>. llalkrishna, AIR 1957 Mad. 97.
3. Maha Maya Devi v. Haridas, !LR 42 Cal. 455; Venketa Subba Rao v. Bhujrmguyya. AIR 1960 A.P
412; Rajendra Ram v. Devendradas, AIR 1973 SC 268.
164 EVIDENCE ACT (S. 13
The acts required for the establishment of customary law, must have
been performed with the consciousness that they spring from a legal
necessity.
The law of valid custom in India.-" A custom to be valid must have
four essential attributes : (1) it must be immemorial, (2) it must be reasonable,
(3) it must have continued without interruption since its immemorial origin, and
(4) it must be certain in respect of its nature generally, as well as in respect of
the locality where it is alleged to obtain and the persons to whom it is alleged
to affect."!
Antiquity.-The English rule "that a custom, in order that it may be
legal and binding must have been used so long that memory of man runneth not
to the contrary" cannot be applied to Indian conditions. It is undoubted that a
custom observed in a particular district deserves its force from the fact that it
has, from long usage, obtained in that district, the force of law. It must be
ancient but it is not of the essence of this rule that its antiquity must, in every
case, be carried back to a period beyond the memory of man still less than it is
ancient in the English technical sense. It will depend upon the circumstances
of each case what antiquity must be established before customs can be accepted.
Whal is necessary to be proved is that the usage has been acted upon in practice
for such a long period and with such invariability as to show that it has, by
common consent, been submitted to as the established governing rule of
particular district.2
In Homi P. Ranina v. Eruch B. Desai,3 the custom was of appointing
Senionnost· trustee as President of Trust. There was no provision in Scheme of
trust for holding election of appointment of President. Manner, mode of
appointment or tenure of President was not prescribed in trust deed. The Bombay
High Court held that Seniormost trustee was entitled to hold office of the
President.
Though the period of Length of Practice is relevant in establishing custom.
Case of custom cannot be rejected simply on the ground that it is not for sufficient
long period.
Usage.-Means habitual but not necessarily immemorial practice. The
word 'usage' would include what people are now or recently, in habit of doing in
a particular place. It may be that this particular habit is only of a very recent
origin or it may be one which has existed for a very long time. If it is one which
is regularly and ordinarily practised, there is a usage.4 So a business usage as
distinguished from a common law custom need not be long established or strictly
uniform.
1. Maha Maya Devi v. Harldas, ILR 42 Cal. 455; Rajendra Ram v. Devendrndas, AIR 1973 SC
268; Akram Sheikh v. Makid Sheikh, AIR 1971 Cal. 405.
2 Mst. Subbani v. Nawab, AIR 1941 PC 21; Cokul Chand v. Pravin Kumari, AIR 1952 SC 231;
Venkata Subba Rao v. Bhujangayya, AIR 1960 AP 412; Ram l<rishana v. Cajadh11r, AIR 1958 Ori
26; Puran Chand v. Du.rlava Chand, AIR 1983 Cal. IO.
3. AIR 1996 Born. 141.
4. Dalgish v. Muzaffar Hussain, Jl.R 23 Cal. 427; Sariatullah v. Prannath, 11.R 26 Cal. 184 ; Abbas Ali
Shat-. J. Muhammad Sh.th, AIR 1951 HP 92.
s. 13) OF THE REI.EV ANCY OF FACTS 165
Kinds of custom.-Three classes of customs are dealt within the Act (0
private, (II) general, and (Ill) public.
I. Private custom.-Private custom is that custom which governs a
particular family, such as, the custom of an estate, the custom of pre-usag~
nature and impartibility prevailing in some estates or take an example from
England the custom of a particular manner. ·
II. General custom.-The expression 'general custom' is defined to
include customs common to any considerable class of persons (Section 48 of the
Act). These are :
(a) Local custom.-Termed as deshachar, e.g., in the Broach and other
Gujarat districts Waqf property which is inalienable according to
Mohammedan Law, may be by custom of the district alienated. In Eastern
Bengal the right of pre-emption which was based on Mohammedan Law was
allowed and enforced by custom between Hindus also.
(b) Caste or class custom.-This kind of custom governs persons of a
particular caste or class. For example the Khojas and Cutchi Memons
(Mohammedans) in the Bombay presidency are governed in matters of
inheritance and succession by the Hindu Law.
(c) Trade, custom or usages.'
(III) Public custom.-Public custom has not been .defined in the
Evidence Act. It· is not clear. In speaking of matters of public and
general interest the terms 'public' and 'general' are sometimes used as
synonymous meaning merely what concerns a multitude of persons [Section 32
(4)]. Under English law a distinction has been made between them; the term
'public' being strictly applied to that which concerns every member of the State
and the term 'general' being confined to a lesser, though still a considerable
portion of the community. But the Indian Evidence Act makes no such
distinction. ·
Right.-There has been controversy among the different High Courts
about the meaning of the word 'right' as used in Section 13, Evidence Act.
According to Calcutta High Court the word 'right' in Section 13 means only
public and incorporeal rights, such as, right to ferries, right to roads, right to
fisheries and so on. According to this view the word 'right' in Section 13 does
not include private and corporeal right, i.e., ownership of material objects, such
as ownership of a house or a chattel and so on.l
Contrary to this view of the Calcutta High Court, the High Courts of
Allahabad, Bombay and Madras have held that "rights under Section 13 must
be understood as comprehending all rights recognized by law, and, therefore,
including a right of ownership and not being confined to incorporeal rights
only."2 ·
1. Gulla Lall v. Fatteh Lall, 6 Cal. 171.
2. Ranchhoddas v. Bapu, 10 Born. 439 ; Collector of Gorakhpur v. Akashwani, 12 All. 1 ; .~ •
Swami v. Appu, 12 Mad 96.
166 EVIDENCE ACT [S. 13
Now it is almost settled that Section 13 applies to all kinds of rights,
whether rights of full ownership or falling short of ownership, e.g., right of
easement. A right may be public or private, corporeal or incorporeal.!
The section makes relevant the "transaction" and "instance". According to
this section transaction and instances are facts .. Section 3 contains the general
definition of the term, "facts" as used in this Act. As stated above the
particular facts which are made relevant under this section were
"transactions", and "instances". Neither of these terms has been defined by this
Act. For their meaning we have to depend on extraneous definition.
"Transaction".-According to dictionary meaning a transaction is the
doing or performing of any business, management of any affairs, performance·
which is done, an affair, as transaction in the exchange. A transaction is
something already done and completed. A "transaction" as its. derivation
denotes is something which has been concluded between persons by a cross or
reciprocal action as it were.2 Whatever may be done by one person which.
affects another's right, and out of which a cause of action may. arise is
transaction. It _is at broader term than the contract because every contract is a
transaction, but every transaction is no~ a contract.
'The term "transaction" is not confined to a dealing with property between
two persons inter vivos but can, without any strain on the language, be taken to
include a testamentary dealing with the property. A statement, therefore, in a
will that the property dealt with thereunder is the property of the testator is
admissible under Section 13 as a transaction.3
A transaction contemplated by Section 13 is a genuine and bonn fide
transaction. A benami transaction which is not meant to be acted upon is
fictitious and in the eye of law is not a transaction at all.4 ·
Section 13 (a) lays down that any transaction by which the right or custom
in question was created, claimed, modified, recognised, asserted or derived, or
which was inconsistent with its existence is relevant to prove the existence of
custom or right.
"By which" .-The words 'by which' are very material. Section 13 (a)
speaks of transaction "by which" the right or custom is created, asserted, etc.,
and those 'in which' the right is asserted, etc. The nature and scope of the
transaction is thus the pertinent consideration. Thus where the right in question
was whether tenant ·held land under a Makadi or Dhovali system of rent, a
statement in a deed of gift executed by a deceased ancestor of the tenant as to
the Makadi nature of the tenancy was held not to be admissible as the Makadi
nature of the holding was not asserted by the deed of gift though it was
asserted in the deed of gift. Where the right in question was whether a certain
tenancy was of a permanent nature or not a statement as to the permanent
character of the tenancy in a deed of partition was held to be not admissible, as
1. Rangayan v. Innsimuthu, AJR 1956 Mad. 226.
2. Channo Mahto v. Jang Bahadur Singh, AJR 1957 Pat 293.
3. Peryasami Kachirayer v. Verdappa Kachirayer, AJR 1950 Mad. 486.
4. Anwar Ali Khan v. State of Assam, AIR 1944 ul 67.
s. 13] OF lliE RELEVANCY OF FACTS 167
the partition could not be considered to be a transaction by which the right in
question was asserted.
On the other hand the statement as to the permanent nature of the
tenancy in a sale-deed by the tenant is admissible because this is a transaction
by which the right is asserted.1
A transaction by which a right is created, claimed and modified is
admissible under Section 13 (a). On account of the governing qualification "By
which" in regard to any transaction if it is a case which is sought to be made
admissible on the ground of the right being created, claimed, modified,
asserted or derived, then it must be shown to be a part of the transaction by
which it was created, claimed, or modified. A case of creation or modification
of right would be inconceivable apart from the transaction by which it was
created or modified.2
~'Claimed".-The word "claimed" denotes a demand or assertion in
relation to a thing as against or from some person, showing the existence of a
right to it in the claimant. A bare statement may not be a claim according to the
circumstance in which it is made. It may amount to a claim or be a mere
statement of a claim. A mere assertion of right in a document to which the
person against whom the right is asserted is not a party and which he knows
nothing, is not to claim the right.3
But a different view has been taken by other High Courts. In a suit
brought by the plaintiff for recovery of possession and in the alternative for the
assessment of fair and equitable rent, the defendant pleaded that the land in
suit was an old free Fakirana grant and produced two documents, namely, a
pntta of the year 1900 and a sale-deed of the year 1922 in favour of the
predecessor in interest of the defendants mentioning the suit land as rent-free
[akirana grant. The plaintiff or his ancestors were not party to the deed. He
contended as these documents were not inter partes ; he had no concern with
them and so they were not admissible under Section 13 as it could not be said
that by the transaction of the patta and sale a right was claimed. It was held
that "the claim used not necessarily be made in the presence and to the
knowledge of the person to be effected thereby. A claim can very well be made
in the absence and without the knowledge of the person to be affected. The
papers were held admissible under Section 13."4
"Asserted."-The word 'assert' means to lay claim, to insistent upon
anything, to affirm and so ~· The word 'assertion' includes both a statement
and enforcement by act. Ordinarily the evidence tendered under this section
will be evidence of act done, but a verbal statement not amounting to and not
accompanied by, any act would also be admissible if it amounted to a 'clalm'.5
1. Narendra Nath v. Sanyasl Charan, AIR 19l3 Cal. 398.
2. Rangaynn v. Innsimuthu, AIR 1956 Mad. 226.
3. Brolendra Kishore Roy v. Mohin Chandra, AIR 1927 Cal. 1.
4. Ashfaque Ali Khan v. Ashraf Mahaseth, AIR 1951 Pat. 541; Kanhalya Singh v. Bhagwat Singh,
AIR 195-l Patna 325.
5. Ram Krishna Ranga Rana Oahadur v. Venkata Suryanarayana Rao, AIR 1949 Mad. 439.
1S8 EVIDENCE ACT [S. 13
"Assertion and recital" distinguished.-"It is well settled now that
there is a fundamental distinction between a mere recital and an assertion. A
right is not asserted simply because it is recited in a certain document. It is
asserted only when the transaction concerned is itself entered into in the
exercise of the right. For example, if a tenancy is not transferable unless it is
permanent character, a transfer of the tenancy would be an assertion of a
permanent right but if a tenancy is transferable, whatever its nature may be,
accompanied by a statement in the deed that the tenancy was of a permanent
character will not be an assertion of a permanent right." In the present case the
executants were entitled to grant a usufructuary mortgage of the land, whether
thev held them under a revenue-free title or not. The executants. mentioned in a
deed of mortgage that they held revenue-free title in land mortgaged. It was
held that in those circumstances the mere fact that in the document of the
mortgage a revenue-free title was recited would not constitute an assertion of
such title within the meaning of Section 13 of the Evidence Act.1 ·
In Moti Lal v. Baldeo Das.2-There Wc\S one Har Prasad who died in 1829
without any issue. He had made a sort of will providing that his properties
should be given to Baldeo temple. In his will Har Prasad has stated that this
is a temple of Tameras. One of the questions of the trial was whether the
temple in question had been created and h?. -: i.een controlled in the past by
Tamera Community. The statement of Har Prasad in the will to the effect that
this is a temple of Tameras, was sought to be proved as evidence under Section
13 (a) 'allegmg that it was an assertion of the claim. It was held "that the most
reasonable view would be that a transaction in which the right was directly
asserted might be admissible, while one in which it was casually referred to,
would not be. If this recital (this is temple of Tameras) is omitted it would
make no difference on the transaction or of the document. If Har Prasad Tamera
had said nothing about this matter or had even said that the temple wasthe
private property of the defendant the paper would have still the same effect.
On this view this is not a transaction in which this particular right was
asserted and therefore it would be inadmissible.
"Recognised."-The word "recognised" means to know again; to see the
truth of. To recognise is to take cognizance of that which comes again before our
notice ; to acknowledge is to admit one's knowledge whatever comes fresh under
our notice. Where, therefore, the existence of a right is in question, it is
1 been held that recital of boundaries in document not inter partes are
permissible for the party relying on its existence to prove any transaction by
which it was recognised, a particular instance in which it was exercised, by
means of recitals of boundaries in documents not inter partes.3
lnstance.-The term "instance" means an example ; something which
has once occurred. This clause does not bring in the particular instance in which
the right was asserted. The clause speaks of particular instances (1) in which
the right was claimed, or (2) in which its existence was asserted. The word
"claim" implies demand. The section does not bring in the statement itself but
1. Kumud Kant v. Province of Bengal, AIR 1947 Cal. 290.
2. AIR 1952 VP 36.
3. Jey Chander v. Shyam Chand, AIR 1952 Ca.1'455.
s. 13] OF THE RELEVANCY OF FACTS 169
only the instances in which the exercise of the right was asserted. The mere
statement in a deed of sale that the vendor had a particular right cannot be
said to be instance in which the exercise of the right was asserted.'
It must be borne in mind that the instances in which the right or custom
was claimed, recognised, exercised, etc., must be instances prior to the suit in
question, because this clause is the past tense throughout.
Document 'inter partes.'-An act of transfer by way of sale or mortgage
of property necessarily involves in assertion that the transferor owns the
interest transferred and is, therefore, a transaction by which such right is
claimed or asserted. Sale deeds and mortgaged deeds are therefore admissible
under this section. 2
Documents not 'inter partes.'-Documents not inter partes are
admissible in evidence in proof of the existence of any right or custom, when the
right or custom in question was created, claimed, modified, recognised, asserted
or denied or in which its exercise was disputed, asserted or departed from.
The question was whether the relationship between A and B was that of
partners or of employer or employee, In 1936, shortly after they started the
business A had executed and handed over to B's lawyer a document in which A
had stated that the relationship between the parties was that of employer
and employee. The document was held to be admissible.3
In a suit for declaration of title and confirmation of possession the
plaintiff produceda kabala to show that he purchased the land in suit from a
certain person. It was contended that the .entries in plaintiffs kaoala were not
admissible. It was held that it was admissible under Section 13, Evidence Act.4
For the purpose of proving a custom entitling the ryot to transfer their
houses, sale-deeds by other ryots transferring their houses were held
admissible under Section 13.5
The recital in document.-As mentioned above a document is
admissible in evidence if it is a transaction by which a right is asserted or
claimed, but recitals in it (not amounting to assertion or claim) are not
admissible except when they amount to admission and are otherwise relevant.6
Recital of boundaries.-Re<;itals of boundaries in deeds not between the
parties to the suit or proceedings were held to be inadmissible.7 However it has
admissible.f
1. .Brajendra Kishorc v. Mohin Chandra, AIR 1927 c,1. 1.
2. . Lachhml Narain v. Manak Chand, AIR 1933 Lah 846; Hari Prasad v. Deo Narain, AIR 1956 SC
305. ·
J. Hurbert P. James v. Gularn Hussain, AIR 1949 PC 151.
4. Bahadur Singh v. Barkatulla, A[R 1946 CaJ. 450.
S. Narain Singh v. Mail Ram. AIR 19-10 All 535.
6. U.P. Government v. C.M.T. Association Ltd., AIR 1948 Oudh 54 ; Abdul Rahim Khan v. Faqir
Mohd, AIR 1946 Nag. 401.
7. Saney Lal v. Darb Deo, AIR 193.5 Patna 167 (FB) ; Abdul Rahim Khan v. Faqir Mohd., AIR 19'6
Nag. 401.
8. Ranggayan 11. lnnsimuthu, AIR 1956 Mad 226; A. A. Nalnar v. A. Chetlar, AIR 1972 Mad 154.
170 EVIDENCE ACT [S. 13
Admissibility of judgments and decrees as transaction or
instances.-Judgments qua judgments or adjudications upon question in issue
and profits of the particular points to decide are only admissible either (a) as
res judicata (under Section 40) or (b) as being in rem (under Section 41) or (c) as
relating to matters of public nature (under Section 42). Judgments of the class (a)
are conclusive between the same parties; those of class (b) are declared by law
to be conclusive proof against all persons of certain matters only; those of class
(c) though not conclusive, are relevant as adjudications against persons not
parties to them, the reason being that in matters of public right the new party
to the second proceedings as one of the public has been virtually a party to the
former proceedings. But judgments, orders and decrees, other than those
admissible under Sections 40, 41 and 42 may be relevant under Section 43, if
their existence is a fact in issue or is relevant under some other provisions of the
Act. In the sections relating to judgment under Sections 40, 41 and 42 the
judgment is admissible as the opinion of the court on the questions which come
before it for adjudication. Ordinarily judgments are not admissible between
persons who were not parties and do not claim under the parties, to the previous
litigations. But there are exceptions to this general rule-the cases
contemplated by Section 43 are those where a judgment is used not as res
[udicata or as evidence more or less binding-upon an opponent by reason of the
adjudication it contains.
Under Section 43 a judgment, decree or order is admissible (1) when such
judgment, decree and order is a fact in issue in a subsequent suit, or (2) when it is
relevant under .some other provisions of the Act. Judgments· as held to be
admissible under Section 13 also. This being 'so, the question arises whether,
and if so how, previous judgments, orders and decrees not being between the
same parties are admissible in evidence in proof of right and custom (not being
of a public nature) under this section either as transactions under clause (a) or as
particular instances under clause (b). There has been a controversy among the
various High Courts of India as to the admissibility of a judgment, decree or
order of a previous litigation not inter partes as transactions or as an instance.
Some High Courts held that they were not admissible under Section 13, on the
other hand, some High Courts were of the opinion that they were admissible ·
under this section.
But recently the trends of the decisions of the Supreme Court of India and
the High Courts is towards holding that although a judgment in a previous case
not inter partes may be admissible under the provisions of Sections 13 and 43 of
the Evidence Act or establishing a particular transaction, the decisions arrived
at, the reason upon which the judgment was founded are no part of the
transactions and cannot be considered nor can any finding of fact be relevant
evidence.
A judgment is conclusive evidence for or against all persons whether
parties or strangers only of its own evidence, date and legal effects
distinguished from the accuracy of the decision rendered.1
1. Ram Kri~ Chaudhari v. Musammat Mana basi Kumari, AIR 1958 Pat. 477.
s. 13) OF THE RELEVANCY OF FACTS 171
A judgment in another suit which is not inter paries may be evidence under
Section 13 of the Evidence Act for certain purposes, namely to prove the fact of
judgment ; to show the parties to the suit were ; to show what was the subject-
matter of the suit; to show what was decided or declared by the judgment; to
show what documents had been filed by the parties in the proceedings ; to
establish the transaction referred to in the judgments ; as evidence to show the
conduct of the parties or particular instances of the exercise of a right of
assertion of a title ; or to identify property or to show how property had been
previously dealt with ; to establish a particular transaction in which a right is
asserted and the name of the person, if any, who is declared in the judgment as
entitled to possession but the judgment is not evidence to establish the truth of
the matter decided in that judgment. The findings of fact arrived at on the .
evidence in one case are not evidence of fact in an another case. "The reason upon
which a judgmentis founded cannot be regarded as, nor can.any finding of fact
there come to other than the transaction itself, be relevant in another case."!
"The true point is not that the judgment themselves are transactions, but that
the suit in which they were made was a transaction, and that to establish that
such a transaction took place they are the best evidence.2
In Shri Niiuas Nnrain,3 one Siddopant and Krishna Rao were real
brothers and were members of joint Hindu family. Krishna Rao died in 1897
· leaving behinda widow Rukmini Bai. Siddopant died in 1899 leaving behind
his son Gundo who died in 1901 leaving behind a widow Lakshmi Bai. Lakshmi
Bai adopted' Deoji who died on 6th May, 1935, leaving three sons, defendants 1
to 3. On 26th April, 1944 Rukmini Bai adopted Shri Niwas, the plaintiff.
Before adopting Shri Niwas, Rukmini Bai · had filed two maintenance suits
against the members of the family of her husband ·in which she mentioned
certain property as joint family property and prayed that a charge of her
maintenance may be declared on them. The same was granted. On 29th August,
1944, the plaintiff filed the present suit for partition claiming the half share
in the family property. In order to prove that some of the propertieswere the
joint family property, the judgments in two suits instirutedby Rukmini Bai were
produced. It was contended that the judgments were not. admissible under
Section 13 of the Evidence Act. The Supreme Court held-:-
The contentions cannot be accepted and the amount of maintenance to be
awarded would depend on the extent of joint family property and an issue was
actually framed on that question. Moreover there was a prayer that the
maintenance should be charged on· the family properties and the same was
granted. The judgments are admissible under Section 13 of the Evidence Act as
assertions of Rukmini Bai that the properties now in dispute belonged to the
joint family.
1. Covind Narain Singh v. Shyam Lal Singh, A1R 1931 PC 89,at p92: See also Lachhman v. Amrit,
!LR 24 Born 591 ; Dinarnan Chowdhrani v. Braj Mohni Chaudhari, 29 IA 24 (PC) ; Mohd. Amin
v. Hasan, ILR 31 Born 143 at p. 155; Harihar Prasad Singh v. Mst. of Munshi Har Prasad, AIR
1956 SC 305 at 30'); Kesho Prasad v. Mst. Bhaygana Kunwar, AJR 1937 PC 69 at p. 74; Gopica
Raman Roy v. Atar Singh, AlR 1929 PC 99; Ramji v. Manahat, AIR 1961 Born 169; State of Bi.har
v. Radha Krishna, AIR 1983 SC 684.
2. Collector of Gorakhpur v. Palakdhan, ILR 12 All 1.
3. AIR 1954 SC 379.
172 EVIDENCE ACT [S. 13
In Shital Das v. Sant Ram,1 one Kishore Das was last Mahant of
Thakurdwara who died on the 4th of April, 1945. Kishore Das had granted a
lease in respect of some land appurtenant to the endowment. Shital Das filed a
suit for the cancellation of the lease on the grounds that it was colourable
transaction executed without consideration and not supported by legal
necessity. Shital Das based his claim on the ground that he was duly
appointed Mahant. His case was that he is a Bhatija Chela of Mahant
Kishore Das he being a descendant of the fourth degree from Ram Kishun Das
through whom Kishore Das also traced his spiritual lineage. To prove his
relationship Shital Das produced a judgment of the Court of Sub-judge in which
Kishore Das along with one Vidya figured as plaintiff and Mangal Das who
was, to say the spiritual grandfather of Shital Das was one of the defendants,
Kishore Das asserted in the case his right to file the suit as the spiritual
collateral of Mangal Das. It was contended that the judgment was not relevant.
The Court held that the judgment itself can be received in evidence under
Section 13 of the Evidence Act in which Kishore Das from whom Iswar Das
purports· to derive his title, asserted his rights as· a spiritual collateral of
Mang~! Das and on that footing got a decree.
Proof of Custom.-Section 13 makes the instances and transactions
relevant to prove .or disprove a custom ; it has nothing to do with the mode of
proof. · judicially ascertained and established, it becomes the part of the law
A custom is a mixed question of law and fact. First certain facts are to be
proved and from those facts an inference of the existence of a valid custom is
drawn. Where a custom is pleaded by one party and denied by the other, the
onus is on the party pleading it to show ils existence.
A custom may be proved or disproved in any of the following ways :
(1) By opinions of persons likely to know of its existence of having special
means of knowledge thereof.
(2) By statement of persons who are dead or whose attendance cannot .be
procured without unreasonable delay or expenses, provided they were made
before any controversy as to such custom arose and were made by persons who
would have been or likely to have been aware of the existence of such custom if
it existed.
(3) By any transaction by which the. custom in question was claimed,
modified, recognized, asserted or· denied or which was inconsistent with its
existence.
(4) By particular instances by which the custom was claimed, recognised
or exercised or knowledge of its existence was disputed, asserted· or departed
from.2
judgments, orders or decrees are relevant to prove a custom but they are not
conclusive proof thereof. But when a custom has been repeatedly brought to the
notice of the court and judicially recognised, it becomes a part of the law of the
1. Shilal Das v. Sant Rami , AIR 1954 SC 606.
2. Ramakrishna v. Gangadha.r, AIR 1958 Ori 26.
s. 14] OF THE RELEVANCY OF FACI'S 173
locality where it prevails and it is not necessary to prove its attributes in each
individual case.!
Proof of family custom or kulachar.-In order to establish a family
custom at variance with the ordinary law it is necessary that it should be
established by clear and positive proof. And the more unusual the custom, the
stricter must be the proof.2 To establish a family custom one at least of two
things must be shown (1) either a clear, distinct and positive tradition in the
family that the custom exists ; or a long series of a instance of the peculiar
inheritance from which the kulachar or the custom may be inferred.3
Proof of local custom or usage.- Usage or (deshachar) if it really
exists, being a custom prevalent over a whole district and not confined to one
particular family of estate, must from its universality, be more easily
susceptible to proof than family custom. To prove a local custom the evidence
must be precise and conclusive.
Proof of usage of trade.-The evidence of general custom is not
admitted to contradict the law of trade. A custom or usage of trade must in all
cases be consistent with law. The law (law merchant) has, however, been
gradually developed by judicial decisions, ratifying the usage of merchants in
the different departments of trade : where a general trade usage has been
merchant, which the courts of justice are bound to know and recognise.
Mercantile usage should be proved by evidence of particular instances and
transactions in which it has been acted upon and by evidence of opinion only
usage of trade may be proved by multiplying instances of usage of different
merchants if it appears to be the same as that of the other merchants.4 The
usage must be shown to be certain and reasonable and so universally acquiesced
in that every body in the particular trade knows it or might know it if, he took
the pains to enquire.5
S ECTION 14.-Facts showing existence of state of mind, or of body or
bodily feeling.-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 of body or bodily feeling, are relevant, when the existence of
any such state of mind or body or bodily feeling, is in issue or relevant.
Explanation 1.-A fact relevant as showing the existence of a
relevant state of mind must show that the state of mind exists, not
generally, but in reference to the particular matter in question.
Explanation 2.-But where, upon tl.e trial of a person accused of an
offence, the previous commission by the accused of an offence is relevant
1. Jugal Kishore Birla v. Vishnu Harijan, AIR 1955 Cal 419 at p. 421 ; Raja Ram v. Raja of Pittapur,
AIR 1918 PC 81; Benarsidas v. Sumati Prasad, AIR 1936 All 641,
2. Ganga v. Ched(, ILR 33 All 605.
3. Samarpuri v. Shyam Narain, AIR 1954 Pat 586.
4. Valkort v. Vetterela, 11 Mad. 465.
5. Valkort v. Vetterela, 11 Mad. 465.
174 EVIDENCE ACT [S. 14
within the meaning of this section, the previous convictions of such
person shall also be a relevant fact.
Illustrations
(a) A is accused of receiving stolen goods knowing them to be stolen. It is
proved that he was in possession of a particular stolen article.
The fact that, at the same time, he was in possession of many other stolen
articles is relevant, as tending to show that he knew each and all of the
articles of which he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit
coin which, at the time when he delivered it, he knew to be counterfeit.
The fact that, at the time of its delivery, A was possessed of a number of
other pieces of counterfeit coin is relevant.
The fact that A had been previously convicted of delivering to another
person as ~enuine a counterfeit coin knowing it to be counterfeit is relevant.
(c) A sues B for damage done by a dog of B's which B knew to be ferocious.
The facts that the dog had previously bitten X, Y and Z, and that they
had made complaints to B, are relevant.
(d) The question is whether A, the acceptor of a bill of exchange, knew
that the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same manner before
they could have been transmitted to him by the payee if the payee had been a
real person, is relevant, as showing that A knew that the payee was a
fictitious person.
(e) A is accused of defaming B by publishing an imputation intended to
harm the reputation of B.
The fact of previous publications by A respecting B, showing ill-will on
the part of A towards B, is relevant, as proving A's intention to harm B's
reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B, and that A
repeated the matter complained of as he heard it are relevant, as showing that
A did not intend to harm the reputation of B.
(j) A is sued by 8 for fraudulently representing to B that C was solvent,
whereby B, being induced to trust C, who was insolvent, suffered loss.
The fact that, at the time when A represented C to be solvent C was
supposed to be solvent by his neighbours and by persons dealing with him ls
relevant, as showing that A made the representation in good faith.
(g) A is sued by B for the price of work done by B, upon a house of which A
is owner, by the order of C, a contractor.
A's defence is that B's contract was with C.
s. 14] OF THE RELEVANCY OF FACTS 175
The fact that A paid C for the work in question is relevant, as proving
that A did, in good faith, make over to C the management of the work in
question, so that C was in a position to contract with B on C's own account, and
not as agent for A.
(h) A is accused of the dishonest misappropriation of property which he
had found, and the question is whether, when he appropriated it, he believed
in good faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in
the place where A was, is relevant, as showing that A did not in good faith
believe that the real owner of the property could not be found.
The fact that A knew, or had reason to believe, that the notice was given
fraudulently by C, who had heard of the loss of the property and wished to set
up a false claim to it, is relevant, as showing the fact that A knew of the notice
did not disprov_e A's good faith.
(i) A is charged with shooting at B with intent to kiJI him. In order. to
show A's intent, the fact of A's having previously shot at B may be proved.
(j) A is charged with sending threatening letters to B. Threatening letters
previously sent by A to B may be proved, as showing the intention of the letters.
(k) The question is, whether A has· been guilty of cruelty towards H, his
wife.
Expressions of their feeling towards each other shortly before or after the
alleged cruelty, are relevant facts.
(/) The question is, whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms, are relevant
'facts.
(m) The question is, what was the state of A's health at the time when an
'assurance on his life was effected.
Statements made by A as to the state of his health at or near the time in
question, are relevant facts.
(n) A sues B for negligence in providing him with a carriage for hire not
reasonably fit for use, whereby A was injured.
The fact that, B's attention was drawn on other occasions to the defect of
that particular carriage, is relevant.
The fact that B was habitually negligent about the carriages which he
let to hire, is irrelevant.
(o) A is tried for the murder of B by intentionally shooting him dead. The
fact that, A on other occasions shot at 8 is relevant, as showing his intention to
shoot B.
he fact that A was in the habit of shooting at people with intent to
murder them, is irrelevant.
(p) A is tried for a crime.
176 EVIDENCE ACT [S. 14
The fact the said something indicating an intention to commit that
particular crime, is relevant.
The fact that, he said something indicating a general disposition to
commit crimes of that class, is irrelevant.
COMMENTS
Principle.-This section declares that facts which show the existence of
any state of mind, such as, intention, knowledge, negligence, good faith, ill
will, rashness, good will or body or bodily feeling are relevant when such state
of mind or body or bodily feeling is in issue or relevant.
Scope.-ln some offences the state of mind is to be proved to constitute
the offence. If the existence of a mental or bodily feeling is in issue or relevant
it is clear that facts from which the existence of such mental or bodily state or
bodily feeling may be inferred, are also relevant.
State of mind or body or bodily feeling.-Facts are either physical
or psychological (mental). The physical facts are perceived by senses. A
assaults B. Here the facts of B being assaulted by A can be seen by eyes by
anybody present on the scene of occurrence. C steals watch of D and delivers it to
M ; N delivers a forged note to X as genuine. The facts can be perceived by senses
by those who are present there, psychological facts are the subject of
consciousness and·mind of a man is their seat. A assaults B with the intention of
killing him ; M received a stolen watch knowing it to be stolen ; N delivers a
forged note to X fraudulently and knowing it to be so. In these cases the intention
of A, the knowledge of M and fraud knowledge of N are in their minds. This
mental state of their minds cannot be perceived by anybody else. They
themselves know it and can state them. A person can testify to his own intent.
But if he swears to the contrary to his intention it would not serve the purpose.
lf that would be the only manner of proof of a man's intent, most of the offenders
would go unpunished of the offences in which the proof of a mental state is
essential. But a man's intention is a matter of fact capable of proof. This kind of
facts, however, are incapable of direct proof of the testimony of witnesses ;
their existence can only be ascertained either by the confession of the person
whose mind is their seat or by presumptive inferences from physical facts. But a
witness must speak the facts and the inference from those facts be drawn by the
court. Under this section evidence is admissible to explain the state of mind,
though it does not otherwise bear upon the issue to be tried. As regards this
principle there is no difference in civil and criminal cases. The subject of the
existence of state of mind is one of the most important topics. In criminal cases
sometimes they are the main considerations and in civil cases also they are
often very material as for example in the cases of fraud, malicious intention or
negligence.
The proof of mental condition.-The state of mind of another person is
proved by collateral facts. The admissibility of collateral facts to prove
mental condition may be grouped under these heads : (1) Where the prosecution
seeks to rebut a suggestion on the part of the prisoner of accident or mistake. (2)
Where the prosecution seeks to prove knowledge by prisoner of some fact.
s. 14] OF THE RELEVANCY OF FACTS 177
(1) Proof of mental condition by evidence of person concerned.-
As stated above the mental condition of a man may be proved by the statement
of the person whose mental condition is in dispute. So in a case for malicious
prosecution where the defendant himself was called and was asked in
examination-in-chief : "Had you any other object in view in starting the
criminal proceeding, than to further the ends to justice." It was held that the
question was admissible. Similarly in cases of obtaining goods on false pretext,
the prosecutor is asked, with motive, or for what reasons, or on what impression
he parted with the goods.
Problem-Question.-In a charge of murder of 'A' where the
prosecution case is that on the day of incident, the accused uttered a threat that
he would finish off 'A' and then after also kill himself. Is the evidence
admissible to show that the accused after killing 'A' tried to kill himself.
Answer.-The utterance of accused is admissible in evidence Section 14
makes the facts relevant which show the existence of any state of mind, such
as, intention, knowledge, good-faith, negligence, rashness, ill-will or goodwill
towards any particular person. In this problem, the accused on the day of
incident threatened to finish off 'A' and then also to kill himself. It indicated,
the state of mind of the accused. Therefore, this evidence will be relevant that
the accused after killing 'A' tried to kill himself.
(2) By evidence of other persons.-But it is dear that in many cases
such evidence may not be reliable and in some cases it may not be even
available. The mental and physical conditions of a person must then be proved
by the evidence of other persons who speak to outward manifestations, known
to them, of states of mind and body. Such manifestation may be either by
conduct, correspondence.
Contemporaneous manifestations.-To prove mental and physical
conditions evidence may be given of all contemporaneous manifestations of the
given condition, whether by conduct, conversation or correspondence as part of
the res gestne. The answers of a patient to the questions by a doctor are evidence
of state of his heaJth provided they are confined to contemporaneous symptoms
were caused. And if the condition of the patient be material his declarations at
such times as to his present condition are equally admissible. A statement of an
accused immediately after the occurrence may be relevant to show the state of
his mind at a given time. Thus where the question was whether a person know
that he was insolvent at a certain time, his own statement implying the
consciousness of the fact as well as letters from third persons refusing to advance
him money were held to be admissible.
By collateral facts.-In addition to evidence of contemporaneous
manifestations of tile given conduct, collateral facts are admitted to show the
existence of a particular state of mind. Acts unconnected with the act in question
are frequently rece'v=ble to prove psychological facts such as intent.
Similar acts.-In order to show the state of mind similar acts done by a
party are admissible but similar acts are not admissible to prove the existence
178 EVIDENCE ACT
of a particular fact in issue. Under this section evidence of acts similar to but not
part of the same transaction as the main fact cannot be received in evidence for
the purpose of proving the occurrence of the main fact which must be
established by evidence directly bearing on it.1 But when the existence of that
fact has been so established and a question arises as to the state of mind of the
person who did it, the evidence of similar acts may be adduced.
Section 14, Evidence Act applies only to cases where a particular act is
more or less criminal according to the state of the mind or feeling of the person
who does it. It does not apply to cases where the question of guilt of innocence
depends upon actual facts as it does at a trial for the offence of arson. Where a
man is on his trial for a specific time such as uttering a forged note or coin or
receiving a stolen property, the issue is whether he is guilty of that particular
Act. To admit, therefore, as evidence against hill'. to the effect that he uttered
forged notes or received stolen articles in the past is to introduce collateral fact.
This cannot be done with the object of inducing the court to infer that because
the accused has committed a crime of similar description on other occasions he
is to be presumed to have done the present act, but this evidence can be relied
upon to establish to prove the criminal intent.2 In a Full Bench case of
Allahabad High Court, where the accused was charged for taking bribe, Dar,
J., held that evidence of previous bribe was not admissible as there was no
controversy about the state of mind. Iqbal Ahmad, C.J. and Alsop, J, were
inclined to hold that the evidence was admissible but they based their
judgment on some other admissible evidence. It is respectfully submitted that
the view of Dar, J, was correct.J
In the instant case,4 the accused was a clerk in the office of Municipal
Board and it was his duty to deal with applications for renewal of licences for
hand carts. He received rupees two for each such renewal, whereas he ought to
have taken Rs. 1-14-0. He was charged with cheating. The evidence was
produced showing that he had taken two annas in other cases. It was held that
in the present case the accused knew what amount he was entitled to take and
the only question is whether he represented to the complainant that he was
bound to pay two annas more and on the strength of that representation induced
each of them to pay rupees two instead of Rs. 1-14-0 and put the difference in
his pocket. The evidence was held inadmissible.
In a Full Bench decision of the Calcutta High Court.5 In that case the
question was whether the previous acts which were alleged to have been
committed by the accused consisting of paying visits to the houses of three
prostitutes followed by theft of their ornaments would be admissible in a case
where the accused was charged with the murder and theft of ornaments of
another prostitute. It was held that the evidence that the accused had
l. A.H. Gandhi v. King, AIR 1941 Rang 324.
2. C.Omo Rama 11. Emperor, AIR 1945 Born, 278; Ram Sumiran Panda v. Emperor, AIR 1942 Pat 291;
Emperor v. Yaqub Ali, 15 ALJ 241.
3. Sheokali Goswami 11. Emperor, AJR 1944 All. 'l!i7.
4. King-Emperor v. Abdul Wahid Khan, 8 ALJ 1269.
5. Empeeor 11. Panchu Das, JLR 47 Ceil 671.
[S. 14
s. 14) OF THE RELEVANCY OF FACTS 179
similarly introduced himself as wealthy person on previous occasions to three
other prostitutes, that he introduced another person as his Durwan that both
visited the woman and suddenly disappeared and that their disappearance
was followed by discovery, by the woman in each case, of the loss of their
money or ornaments was not admissible under Section 14 or 15 Evidence Act, in
the subsequent case where he was charged with the offence or murder, robbery
and theft relating to a different woman. Section 14 applies to that class of cases
where a particular act was more or less criminal or culpable according to the
state of mind or feeling of the person who did it and that the court must be very
careful not to extend the operation of the section to other cases, where the
question of guilt or innocence depended upon actual facts and not upon the state
of a man's mind or feeling.
Illustrations
(1) A is charged of receiving stolen property knowing it to be stolen. This
offence is constituted of two facts : (1) that he received a stolen property, and
(2) that at the time he received the property he knew it to be stolen. The fact
that A was in possession of the stolen property it has to be proved by direct
evidence. To prove that he received it knowing to be stolen evidence may be led
to the effect that at the same time A was in possession of many other stolen
properties. Similar acts may be proved under Section 14 to prove the state of
mind of the accused, such as, intention, knowledge, etc., but they cannot be
admissible to prove the commission of the actual act.
(2) A is accused of fraudulently delivering to another person a counterfeit
coin, which at the time he delivered it he knew it to be counterfeit. The fact
that he delivered the counterfeit coin cannot be proved by leading evidence to
the effect that (1) at the time of its delivery A was possessed of a number of
counterfeit coins, or (2) that A was previously convicted of delivering to
another person a counterfeit coin. Simply because a man possesses or has once
possessed a counterfeit coin, it cannot safely be inferred that he delivered a
counterfeit coin at a particular time to a particular individual. But once it has
been established that A delivered the counterfeit coin to another the above
facts may be proved to establish that he delivered it knowingly and
fraudulently. "We have no right to prove that a man committed theft or any
other crime on one occasion, by showing that he committed similar crimes on
other occasions."
Previous and subsequent events.-Both previous and subsequent
events are admissible under this section to prove the state of mind but previous
events are more important as showing the influences which have brought into
existence the condition that was at the moment under investigation.
Illustrations (j) and (n) are examples of previous events showing the state of
mind. A was tried for contravening a Price Control Order by selling salt to
dealers at a price higher than that fixed. B, the other accused, was tried for
abetting the first, A number of dealers were called to speak of transactions, not
the subject of any charge, which they had with the accused during or before or
 EVIDENCE ACT [S. 14
180
after, the period covered by the dates of the offence charged. It was held that
the evidence was relevantshowing ~he intention.1 .
Intention or mens rea.:- The question of intention is very well
illustrated by the illustrations (e), (!) and (j) of the present section.
The fundamental principle of English Criminal Jurisprudence to use a
maxim which has been familiar to English lawyers for nearly eight hundred
years is actus non facit reum nisi mens sit tea. An act does not make a man guilty
without a guilty intention to do the guilty act which is made penal by the
statute or common law. But there is generally no room for the application of
this doctrine in India. The penal Statutes in India define the offences precisely
and contain within themselves the precise and particular elements that go to
make up the offences referred to in those Statutes. So, in the Indian Penal
Statutes where the doctrine of mens rea is intended to come in operation and a
guilty mind is deemed essential for the proof of an offence the Statute itself
uses the words like "knowingly", "willingly", "fraudulently", "negligently"
and so on. Such knowledge can always be brought home by adducing
circumstantial evidence. No question of mens rea arises where the legislature
has omitted to prescribe a particular mental condition as an ingredient of an
offence.2
Proof of intention.-Whether a man has or has not a particular
intention is a matter of fact to be inferred from the surrounding circumstances
and from the acts of the person concemed.3 A man must be held to intend the
natural ordinary consequences of his acts, irrespective of his objects in such acts,
if at the time he knew what the natural and ordinary consequences would be,
and that if he does an act which is prima facie illegal, the fact that he did it
with some other object will not make it legal, unless that object would, in the
circumstances, make it legal.4
Knowledge.-Each fact which goes to prove guilty knowledge may be
proved. The prisoner was charged for endeavouring to obtain an advance from a
pawn-broker upon a ring by the false pretence that it was diamond ring,
evidence was held to have been properly admitted to show that two days
before the transaction in question the prisoner had obtained an advance from a
pawn-broker upon a chain which he represented to be a gold chain but which
was not so. The cases in which this has been acted upon are mostly common cases
of delivering forged coins, notes, or documents ; but they are not confined to those
cases.
Accomplice Evidence.-So far as the question about the conviction
based on testimony of the accomplice is concerned the law is settled and it is
established as a rule of prudence that the testimony of accomplice if it is
thought reliable as a whole, conviction could only be based if it is corroborated
1. Srin!wasomall v. Emperor, AIR 1947 PC 135.
2. Hansh Chandra v. Emperor, AlR 1945 All. 90.
3. Ramzan v. Emperor, AIR 1935 Sind 203.
4. Sal1a Muthu v. Palla Muthu, JLR (1912) 35 Mad 186.
s. 14] OF TIIB RELEVANCY OF FACTS 181
by independent evidence either direct or circumstantial connecting the accused
with the crime.
In a murder case under Section 300 I.P.C., the evidence of witness
participating in test identification parade but not examined at trial is not
sufficient to corroborate evidence of accomplice approver. The conviction was
therefore set aside.1
Good faith, bad faith and fraud.-Fraud is not capable of being
proved by positive and express proof. It is by nature secret in movement. A
person's good faith in doing an act may generally be inferred from any facts
which would justify its doing. In such cases the information on which he acted
will often be material. Where a person charged of theft alleges that he
purchased the property in question the court should not convict him of theft if
the claim was made in good faith and this should be determined by considering
all the circumstances. Where the accused was charged under Section 206 of the
IPC with fraudulently transferring three properties to three different persons
on a certain day in order to prevent their (properties) being seized in execution
of a decree and the prosecution tendered evidence of five other fraudulent
transfers of properties effected by the accused on the same day, apparently
with the same object. This evidence was held admissible under this section to
prove fraudulent intent.2
If the Government delayed in the issue of a certificate to the petitioner to
practise as a Notary it cannot be inferred that in doing so the Covernment acted
ma/a fide.3 Mala fide can be proved by circumstances.'
State of body and bodily feeling.-As to state of body and bodily
feelings illustrations (o) and (m) of this section are examples. In a divorce case
a letter written by the wife to her paramour is good .evidence under this section
for her feelings towards the paramour at the .time:t\le leije~.was written.
Explanation 1.-The Explanation 1 means, "the state of mind to be
proved must not be a general tendency or'dispositions; towards. conduct Qi a
similar description to that in question, but a condition of thought and feeling
having distinct and immediate reference, to the matter which is under enquiry.
The fact that a man is generally dishonest, generally malicious, generally
negligent or criminal in his proceeding does not bear with sufficient directness
on his conduct on any particular occasion, or as to any particular matter, to make
it safe to take it as a guide in interpreting the state of mind with immediate
reference to that particular occasion or matter. lllustrations (a) and (b) make
this clear. A man is accused of receiving stolen goods with guilty knowledge, if
he is merely shown to be generally dishonest, the probability of his having
been dishonest, in this particular transaction is perhaps increased, but in a
vague and indefinite way ; but if, at the time he is found in possession of a
number of other stolen articles, this fact throws a distinct light on his
1. Chandap v. State of Rajasthan, AJR 1988 SC 599.
2. R. v. Viglram, ILR 16 Born 414. '
3. Kashi Prasad v. State, AlR 1969 All 195.
4. Aluminium Corporation v. L.R.C. Mills, AIR 1970 All. 452.
182 EVIDENCE ACT [S. 14
knowledge and intentions as to the articles of which he is found in possession. It
would be dangerous to infer, because a man was generally dishonest, he was
dishonest in any single case; but it is not dangerous to infer that a man, who is
found in possession of 50 articles, which are shown to have been stolen from
different people, came by each and all in a dishonest manner."
This explanation narrows the application of Section 14. Under the section
similar facts showing the state of mind (intention, knowledge, etc.) are
relevant. This explanation lays down that facts showing the mental state in
reference to the fact under enquiry are relevant.
The matter will become crystal clear by studying the illustrations of the
section.
A is accused of receiving stolen goods knowing them to be stolen ...... The
fact that, at the same time he was in possession of many other stolen
properties, is relevant.
The reason for this is not far to seek. A man may be in possession of one
single article of stolen property by chance, mistake or incident. A thief may sell
a stolen cycle to an honest man and the purchaser may buy it in good faith
believing it not to be stolen. But if one man is in possession of twenty stolen
cycles there are little chances of his having them in his possession not knowing
them to be stolen.
Example
A is accused of fraudulently delivering to another person a counterfeit
coin, which at the time he delivered it he knew to be counterfeit. The fact that
at the time of delivery A was possessed of a number of other pieces of
counterfeit coins is relevant.
In this case too the same argument would apply. The possession of many
counterfeit coins almost excludes the possibility of his having them by chance,
incident or in good faith. A man may possess a counterfeit coin by chance and he
may also pass it on, in good faith, to others believing it to be genuine. But if one
is found delivering counterfeit coins on a number of times the greater chances are
that even on the time in enquiry also he was delivering it knowing to be
counterfeit.
Facts showing general state of mind would not at all be helpful in
determining the state of mind at enquiry and so they are excluded.
A man may be a habitual thief but he may not be liking to deal in
counterfeit coins. Similarly a man may habitually be dishonestly dealing in
counterfeit coins but he may be hating the act of committing theft. Both of these
acts are dishonest but they may not co-exist in an individual.
Therefore, at the trial of a man charged with delivering counterfeit coins
evidence to the effect that he had committed many thefts in the past would be
dangerous.
Examples
(1) A is accused of receiving stolen goods knowing them to be stolen. It is
proved that he was in possession of a particular stolen property. The mental
s. 15) OF THE RELEVANCY OF FACTS 183
state remains to be proved, i.e. it is to be proved further that A received the
property knowing it to be stolen.
In order to prove that guilty knowledge, suppose, evidence is led to the
effect that A has in his possession a number of counterfeit coins. The possession
of counterfeit coins show the existence of a state of mind that A is dishonest.
But this state of mind is too general. A man may be dealing in counterfeit coins
but still may not be liking to receive stolen goods. So from the fact that A has in
his possession counterfeit coins it cannot safely be inferred that when he
received the stolen goods he knew them to be stolen.
(2) A sues B for damages done by a dog of B, which B knew to be ferocious.
The fact that the dog had previously bitten X, Y and Z and they had made
complaints to B that his (that very) dog (which bit A) had bitten them,
certainly gives rise to an inference weak or strong that B was aware of the
ferocious nature of the dog.
But suppose that in this very case evidence is adduced that some other dog
of B had bitten X, Y and Z previously, it would not be admissible. If one dog of a
person goes mad and bites people, he is to take precaution in respect of that
particular dog and if after its ferocious nature is known, it bites people,
knowledge can safely be attached to the owner.
But if one of his dogs goes mad he cannot be on guard in respect of another.
Illustration
A is tried for the murder of B by intentionally shooting him dead .•
In this case as in all murder cases the intention would be material. If A
shot B dead intentionally he will be punished for murder and if it is proved
that it was accidental, some minor offence would be committed.
The fact that A on other occasions shot at B will show that A intended to
shoot B and kill him thereby. But the fact that A was in habit of shooting
people will not prove the intention of his shooting at B. He may have shot
others intentionally but this shot at B still might have been accidental.
S
~ or
ECTION 15.-Facts bearing on question whether act was accidental
intentional.-When there is question whether an act was.
accidental or intentional, or done with a particular knowledge or
intention, the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned, is
relevant.
Illustrations
(a) A is accused of burning down his house in order to obtain money for
which it is insured.
The facts that A lived in several houses successively, each of which he
insured in each of which a fire occurred, and after each of which fires· A
received payment from a different insurance office, are relevant, as tending to
show that the fires were not accidental.
184 EVIDENCE ACT [S. 15
(b) A is employed to receive money from the debtors of B. It is A's duty to
make entries in a book showing the amounts received by him. He makes an
entry showing that on a particular occasion he received less than he really did
receive.
The question is, whether his false entry was accidental or intentional.
The facts that other entries made by A in the same book are false, and
that the false entry is in each case in favour of A, are relevant.
(c) A is accused of fraudulently delivering to B a counterfeit rupee.
The question is, whether the delivery of the rupee was accidental.
The facts that, soon before or soon after the delivery to B, A delivered
counterfeit rupees to C, D and E are relevant, as showing that the delivery to B
was not accidental.
COl\1MENTS
'J
Scope.-Section 14 lays down the 'rules relating to the· evidence showing
the existence of any state of mind, such as, intention, knowledge, good faith,
negligence, rashness, ill-will or goodwill towards any earticular person. Thus
it is clear that all cases, in which proof or disproof of intention in doing an act
is necessary, are covered by Section 14 Evide..ce Act.
Section 15 lays down rules as to admissibility of evidence in cases where
the question is whether a particular act was accidental or was done with a
particular intention or knowledge. Thus it is clear that Section 14 is a general
section dealing with all cases in which mental state is involved whereas
Section 15 picks out only those cases where the question is whether a particular
act is accidental or intentional. The section is a particular application 'of the
general rule laid down in the rrevious section. I It applies to cases where there
is conduct indicating a system.
In general, where it is necessary to rebut, even by anticipation the defence
of accident, evidence may be given to prove that the accused had been concerned
in a systematic course of conduct of the same specific kind and proximate in time
to the conduct in question.3 The words of the section as well as. of Illustration (a)
show that it is not necessary that such acts should form part of one transaction.
It is only necessary that all the acts should form part of a series of similar
occurrences.4 On a charge against the accused of cheating by falsely
representing that they were the servants of a wealthy lady and were entrusted
to act on her behalf in the arrangements for loans to be made to the
complainants out of the money she possessed and thereby obtaining money from
them on one pretext or another in connection with this affair. It was held that
evidence of instances of similar but unconnected transactions with other persons
during the period covered by the evidence of the complaints is admissible under
Sections 11, 14 and 15 of the Evidence Act.
I. Emperor v. Devendra, !LR 36 Cal. 573.
2. Raghunath v. R., AIR 1919 Cal 1084.
3. Emperor v. Harjivan Valji, AIR 1926 Born 231.
4. Emperor v. Cakul, 15 ALJ 241.
s. 15) OF THE RELEVANCY OF FACTS 185
Under this section as under Section 14 the prosecution cannot use the
evidence as to the commission of other acts of a similar nature to prove the
existence of specific acts which form the subject-matter of the charge. But when
the existence of the acts in issue has been established by other evidence and the
only question which remains to be decided is whether they were done
accidentally or intentionally or with a particular knowledge or intention, then
and then alone the evidence of other similar acts is admissible to prove the
state of mind. The similar facts are admissible under this section provided : (a)
it is shown that such acts were of the same specific kind, (b) they formed part
of a series of occurrences in each of which person committing the act was
concemed.1
Parts of series of similar occurrences.-The section lays down that in
order to prove that an act was intentional or not accidental, the fact, that such
act former part of series of similar occurrences, in each of which the person
doing the act in question was concerned, is relevant. From that it is obvious that
in order to be admissible under this section the similar occurrences must be
many ; one single instance cannot constitute a series of similar occurrences and so
it is not admissible.
The accused who was entrusted with collection of money from the debtors
of a bank, collected a certain amount from a debtor and did not credit it in the
cash book of the bank. To charge under Section 408, IPC, his defence was that
there was no misappropriation but owing to pressure of work he forgot to credit
the amount in the cash book. To prove dishonest intention on his part evidence
was led in of another instance of a similar omission by him to credit an amount
collected from another debtor. It was held that such evidence was inadmissible
as one instance could not constitute 'a series of similar occurrences' within the
meaning of Section 15 of the Evidence Act.2 The Rangoon High Court has,
however, held that evidence of a single act will be admissible under Section 15
and in this sense one evidentiary fact can form a series within the meaning of
the section.3
It may be submitted that the Rangoon High Court's view is not correct for
two reasons :-
( 1) the act itself speaks of series of D<:currences ; .
(2) one single instance of similar occurrences may be the outcome of a
slip.
Proximity of time.-Cakutta High Court has held that acts tendered in
evidence must have been proximate in time to that in question.4 But the English
courts have held that the acts are admissible even though they are not
proximate in time to the fact in question. According to this view proximity is
important to test the weight of the evidence and not their admissiblity.5
I. M.L. Prit Chand v. Emperor, AIR 1923 Lah 382.
2. Motl Lal Roy v. Panch Bihi Industrial Bank Ltd., AJR 1946 Cal. 440.
3. A.H. Gandhi v. King, AlR 1941 Rangoon 324.
4. Amrlt Lal Hazara v. Emperor, ILR 47 Cal 998.
5. Rex v. Rhoder, (1889) 10 B 77.
186 EVIDENCE ACT [S. 16
Similar acts.-The acts of which evidence is tendered must be of the
weight of the same specific kind as that in question.1
This section must be read as subject to Section 14 so far as evidence of
knowledge and intention is concerned. The fact that a man generally dishonest,
generally negligent or criminal or does not bear with sufficient directness on his
conduct on any particular occasion to make it a safeguard for interpreting his
conduct.
Accident or intention.-A distinction must be made between accident
and intention. The appellant was found, in a dwelling house about 1 o'clock in
the morning. He was tried for burglary. In his defence, he pleaded that he had
no recollection of entering the house and must have done so in a state of
automatism. It was held in this case, the real defence was, that the act was
involuntary. It was not the defence of accident.2
The accused was tried for the murder of a woman named Ayesha by
poisoning her. Evidence was given to show that the accused had previously
murdered another woman under a similar circumstance. This evidence was held
to be inadmissible as there was no direct evidence that the accused had
administered the poison. If the accused was proved to have administered
poison to Ayesha in circumstances consistent with accident, the proof that he
had previously administered poison to any other in similar circumstances
might well have been admissible.3
It is true that there is always a possibility, where a boy of twelve gets
drowned in a tank, that there has been an accident but previous attempts by
the accused, to kill the boy, would be admissible to rebut a suggestion of
accidental drowning.f
In a trial for forgery, evidence of similar transaction not included in the
charge, is relevant as proof of intention though not as a proof of forgery.5
S ECTION 16.-Existence of course of business when relevant.-When
there is a question whether a particular act was done, the existence of
any course of business, according to which it naturally would have
been done, is a relevant fact.
Illustration
(a) The question is, whether a particular letter was despatched.
The facts that it was the ordinary course of business for all letters put in a
certain place to be carried to the post, and that that particular letter was put in
that place, arc relevant.
(b) 11,e question is, whether a particular Jetter reached A. The facts that
it was posted in due course, and was not returned through the Dead Letter
Office. are relevant.
1. A.H. Gandhi ti. King, A1R 1941 Rangoon 324.
2. R. u. Hanssan Orien, (1951) 2 All ER 726.
3. Mohammad v. King, AIR 1949 PC 161.
4. Emperor v. Sha.nkaraya Gurshedhavay, AIR 1940 Born 365.
S. Kedama.t.h ti. Emperor, A1R 1953 All. 521.
s. 16] OF THE RELEVANCY OF FACTS 187
COMMENTS
Scope.-Under Section 16 it has been laid down that when the existence
of any course of business is natural to produce a certain result, .~,e mere proof of
such existence of the course of business will give a presumption that the
result was produced. In commercial transactions the presumption is that the
usual course of business was followed by the parties thereto. In Henry v.
Benciia, it was observed "where the maxim of ommia proesummunntrrite set
solemnier essa act11s (all acts are presumed to have been done rightly and
regularly) applies, there indeed if the event ought probably to have taken
place on Tuesday, evidence that it did take place on Tuesday or on Wednesday
is strong evidence that it took place on Tuesday." To prove that an act has been
done it is admissible to prove any general course of business or office, whether
public or private, according to which it would ordinarily have been done, there
being a probability that the general course of business will be followed in a
particular case. This probability is stronger in case of public officers. A alleges
in a case of ejectment of house that he gave a notice for the termination of lease
to Bon 1st December, 1951, writing therein that the tenancy terminating on 31st
December and that the house be vacated by that time. B denies having
received any such notice. A files a postal receipt showing that a registered
letter was sent by A to B on 1st December, 1951. Now this will give a
presumption under Section 16 that the letter was received by B as in the natural
course of business if a Jetter is posted or registered in a post office it must reach
the addressee. There must be evidence that the letter reached the post office.!
Where the invitation cards bear the postal stamps of the place of posting and
also the place of destination, except a bare suggestion that they are concocted,
nothing was brought on record to indicate the suspicious nature of other
documents, the inference can be drawn that in the normal course they were
posted and received by the addressees. Under Section 16 all these documents are
admissible in evidence.2
The presumption under this section is only permissible and not an
inevitable presumption. Section 16 does not compel a court to draw
presumption.3
The presumption attaches to the postal peon's report "refused." The
writing of endorsement "refused", falls within the ambit of "common course of
business" of the postman and therefore even without any formal proof, evolves
the presumption that it was written on refusal by the addressee.4
ln Dr. Kripa Ram Matlwr v. State of U.P.,5 the procedure adopted by
Selection Committee showed that the selection was made on merit and ranking
to selected candidates was given accordingly. Merely because, the State failed
to produce marks obtained by each candidate at such a belated stage, it could
l. Bnnk of Bihar v. Tata Sub-dealers, AIR 1960 Ca.I. 475.
2. Vandavasi Knrthikeya v. S. Kamalamma, AIR 1994 AP 108.
3. L.M.G. Salecma, Smt. v. B.B. Cujaral, 1981 ACC 293.
4. Balbhaddar v. I.T. Commissioner, AIR 1957 Punjab 284; Kunnabdulla v. l<rihnam., AIR 1957
Kerala 33; Dudha v. Bcdaruja, AIR 1981 MP 76.
5. AIR 2001 SC 3071.
188 EVIDENCE ACT
not be said that selection process was not based on comparative merit of
candidates appearing before Selection Committee. Appellant challenged the
merit list after success it was held by Supreme Court that the presumption of
genuineness of official would also apply.
ADMISSION
ECTION 17.-Admission defined.-An admission is a statement,
S (oral or documentary or contained electronic form]! which suggests
any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances, hereinafter
mentioned. ·
ECTION 18.-Adrnission by party to proceeding or his agent.-
S Statements made by a party to the 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.
By suitor in representative character.-Statements made by parties
to suits, suing or sued in a representative character, are not admissions,
unless they were made while the party making them held that character.
Statements made by-
(1) By party interested in subject-matter.-Persons 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
(2) By person from whom interest derived.-Persons from whom
the parties to the suit have derived their interest in the subject-matter of
the suit, are admissions, if they are made during the continuance of the
interest of the persons making the statements.
S ECTION 19.-Admissions by persons whose position IY~st be
proved as against party to suit.-Statements made by persom whose
position or liability it is necessary to prove as against any party to the
suit are admissions, if such statements would be relevant as against such
persons in relation to such position or liability in a suit brought by or
against them, and if they are made whilst the person making them
occupies such position or is subject to such liability.
Illustration
A undertakes to collect rents for 8.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owed B rent is an admission, and is a relevant
fact as against A, if A denies that C did owe rent to B.
1. Subs. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. Il.
[S. 17
s. 20] OF THE RELEVANCY OF FACTS 189
ECTION 20.-Adrnissions by persons expressly referred to by party
S to suit-Statements made by persons to whom a party to the suit has
expressly referred for information in reference to a matter in dispute
are admissions.
Jllustration
The question is, whether a horse sold by A to B is sound.
A says to 8-"Go and ask C, C knows all about it". C's statement is an
admission.
COMMENTS
Admission.-Admission plays a very important part in judicial
proceedings. If one party to a suit or any other proceeding proves that the other
party has admitted his case, the work of the court becomes easier. A files a suit
against B alleging that B is not the last male owner's daughter's son and that
he (A) is, the last male holder's sapinda. B files a document in which A
admitted B to be the daughter's son of the last male holder. This document is
not only admissible in evidence but is a very strong and important piece of
evidence. Admission has been dealt with in Sections 17 to 31. In which Sections
24 to 30 are devoted to confession. It is to be noted that the confession is
admission of guilt by the accused in criminal case.
Admission cannot be inferred it is positive acknolwdgement.-
Admission is positive act of acknowledgment or confession. It is conscious and
deliberate act and not something which would be inferred. A party by
voluntary acknowledgement of the existence of certain facts during the judicial
or quasi judicial proceedings can concede as true or valid the allegation made in
proceeding or in the notice. This formal act of acknowledgement during the
proceedings dispenses with the production of evidence by· conceding for the
purpose of litigation that the proposition alleged by the opponent is true.
Merely the failure by respondent by denial or silence or inaction in respect to
the notice cannot be treated as admission. No acknowledgement or implied
admission can be inferred from silence or no implied admission can be inferred
from silence, inaction, or failure to act. Admission with respect to the existence
of certain fact which is in issue or relevant to an issue in the case should be in
expressed terms. Merely because the allegation has not been denied it cannot be
admitted to be established. The omission to answer the notice by itself cannot
be treated as evidence of truth of (statement) allegation made in notice. The
allegation can be said to be proved only when there is conscious and deliberate
admission in expressed terms.1
Sections 17 to 20 define 'admission'. Section 21 gives as to which party to a
proceeding can use admission, i.e., it gives as to when an admission by one
person can be proved by another and when and in what circumstances it can be
proved by the person making the statement. Section 22 excludes the oral
evidence against the contents of documents. Section 23 deals with relevancy in
civil cases of admission made upon an expressed condition that it shall not be
given in evidence.
I. Mukesh Kumar Ajmera v. Slate of Rajasthan, AIR 1997 Ra~ 250.
190 EVIDENCE ACT [S. 20
Admission-Defined.-Sections 17, 18, 19 and 20 taken together define
'admission' Section 17 lays down that statements, oral or documentary, which
suggest any inference to any fact in issue or relevant fact made by admissions.
The definition of the term 'admission' as used in the Indian Evidence Act will
be clear by reading all these four sections together. If all these sections were to
be written in one sentence, they would read as follows :-
An admission is a Which suggests (1) A party to the proceeding;
statement oral or any inference as to
documentary or any fact in issue or
contained in relevant fact and is
electronic form made by :
(2) An agent to any party whom
the coi.rt regards under the
circumstances of the case, as
expressly or impliedly
authorised by him (the party)
to make them.
(3) Parties to suits, suing or being
sued in represen ta ti ve
capacity if the party making
the statement held that
representative capacity while
making the statement.
(4) Persons who have proprietary
or pecuniary interest in the
subject-matter of proceeding
and who make the statement
in their character of persons so
interested and also if the
statements are made during
the continuance of the interest
of the person making the
statements.
(5) Persons from whom the parties
to the suit have derived their
interest in the subject-matter of
the suit, if the statements are
made during the continuance of
the interest of the persons
making the statement-
Section 18.
(6) Persons whose position and
liability it is necessary to
prove as against any party to
the suit, if such statements
s. 20) OF THE RELEVANCY OF FACT'S 191
would be relevant as against
such persons making the
statement in relation to such
position or liability in a suit
brought by or against them and
if such statements are made
while the person making them
occupies such position or is
subject to such liability-
Section 19.
(7) :?ersons to whom a party to the
suit has expressly referred for
information in reference to a
matter in dispute-Section 20.
According to the definition given above, the statements of parties to the
suits o: proceedings and also of persons who are not parties to such suits or
proceedings, i.e., of strangers are admissions if they are made under the
circumstances mentioned above and suggest any inference as to any fact in issue
or relevant fact.
The statement of person making admission should be read completely (not
partly) and the statement drawn from reference cannot form admission.!
The admission of a party will be admitted against him and to make his
statement admissible, it is not necessary that the attention of person making
admission should be brought to the said fact (admission).2
Admission is a prior statement adverse to ones interest and not a prior
statement in ones inrerest.I
Admission of Law.-In India, admission of fact is a proof against the
party making the admission but admission on a pure question of law is not
binding on the maker. An admission on a point of law is not an admission of a
"thing" so as to make the matter of estoppel.4 Counsel's admission on question of
mixed law and fact are not binding. The lawyer of the plaintiff made an
admission to the effect that the parties were governed by custom under which a
mother could have alienated the property of her minor sons for their benefit.
This was held not binding because it was a pure question of law or at least a
mixed question of law and fact.5 The admissions of law by a counsel are not
binding on a court and the court is not precluded from deciding the rights of the
parties on a true view of the law.6 Under tl,e English Law admission of law is
relevant.
1. Dharmavati 13.li v. Shiv Sil\gh, AIR 19'>1 MP 18.
2. Maimuna Bibi v. Rasool Mian, AIR 1991 Pat. 203.
J. Satrucharla Vijaya Rama Raju v. Nlmmaka [aya Raju, (2006) 1 SCC 212.
4. [agwant Singh v. Sitan Singh, fLR 21 AU 285.
5. Kosar v. Bular, AlR 1945 Lah 356.
6. Society Belge De Benque v. Girdhari Lal, AlR 1940 PC 90.
.-
192 EVIDENCE ACT
Admission to parties to proceedings.-lt has already been discussed
that the statements of a party amounting to admission ~re, as against such
party, admissible in evidence. Under the designation of 'parties' the law
includes not only those who appear on the record in that capacity, but also
persons who are actually parties without so appearing. Persons who are not
parties on the record but who are interested in the subject-matter of the suit are
considered by the law as real parties in interest and accordingly their
admissions have the same weight as though they were parties on the record.
Conversely, a party on record who has no beneficial interest in the issues of the
litigation will not be permitted to effect by his admission the substantive right
of one for whom he is acting. In other words, in all these relations, substantive
interest rather than form of record is regarded as determining factor. For
example, in a suit brought by a guardian for a minor the statement of the
guardian will not be an admission against the minor. The admission of a fact in
dispute by a party to a suit or proceeding is a very important piece of evidence.
It has been held that what is admitted by a party to be true must be presumed
to be true 'unless' the contrary is shown.1
Admission by Agent.-The statements by agents are admissible
against their principals for the reasons similar to those which govern the
statement of coparceners. The principal constitutes the agent as his
representative in the transaction of certain business. Therefore, whatever the
agent does, in the lawful transaction of that business, is the act of the
principal, the statements and the admissions respecting the subject-matter will
also bind him if made at the same time.
It should be borne in mind that admission of the agent binds the principal
only when made during the continuance of the agency. When the agent's right
to interfere in the particular matter has ceased, the principal can no longer be
affected by his declarations. As the rule admitting the admission of the agent
is founded upon his legal identity with the principal, such declarations bind
the principal only so far as the agent has the authority to make them.
The section lays down that a statement by an agent, whom the court
regards under the circumstances of the case as expressly or impliedly
authorised, is admissible. From it, it becomes clear that the fact of agency must
be proved before the admissions of the agents are received in the evidence. The
second point which is material for the relevancy of agent's admission is that
the agent must be authorised to make that statement. The third point to be
taken into consideration before receiving an admission of an agent is that the
statement must be made during continuance of the agency. By termination of
agency his authority to make admission ceases.
Admission by agents in criminal cases.-The rules of admissibility
are, in general, the same for the trial of civil and criminal cases. Whatever the
agent does, within the scope of the authority binds his principal and is deemed
his act. It must be shown that the agent has the authority, and that the act is
within his scope. It is known and familiar principle of criminal jurisprudence
l. Nalhulal v. Durga, AIR 1954 SC 355; Abd ul v. Baijan, AIR 1932 All. 199.
[S. 20
s. 20) OP THE RELEVANCY OF FACTS 193
that he who commands or procures a crime to be done, if it is done is guilty of
the crime and the act is his act. Sometimes it so happens that the agent is quite
innocent and the principal is held guilty as in the cases of infants and idiots
employed to administer poison. According to the Indian Evidence Act,
admission of an -agent is admissible against the principal if made within his
authority but the confession of the agent is not so admissible. But in a criminal
trial, if it is intended to bind a principal by the statement of his agent, the
relation of master and servant must be strictly proved.1
Admissions by pleaders, attorneys and counsels in civil cases.-If
client appoints a pleader, attorney or counsel and gives him full authority to
conduct his case and gives him full information about facts, then the admission
made by such a counsel under his signature without some serious mistake is
conclusively binding upon the client and cannot afterwards be withdrawn.
When a person engages an advocate or a vakil to conduct his case, it must follow
that he authorises his advocate or vakil to make binding admission before the
court in the course of his conduct of the case.2 But an admission of law, where it
is erroneous, by the vakil is not binding on the client.3
It must be borne in mind that before the admission of party's agent is taken
into consideration, the fact that the person making the admission is the agent
and is authorised to make the statement must be proved.4 In S. Bhattacharjee'»
case,5 it was held "where A is sought to be bound by an admission made by B,
the relation of agency between A and B should be pleaded and established."
Admission by counsel in criminal cases.-The law makes no
provision for admission by a counsel in a criminal case. No admission by counsel
can relieve the prosecution of the duty to prove the case.6 But when the counsel
of the accused appears as witness to prove some facts the above principle does
not apply.
One Raghunath Prasad got a sale-deed executed by unknown lady in
respect of the property of one Smt. Suk.hdei. The unknown lady had been put
forward to personate Smt. Suk.hdei, Raghunath and others were tried before
the Court of Session for offences under Sections 419, 465 and 466, l.P.C. etc.
Thumb impression of Smt. Suk.hdei had been taken in the Court of Magistrate
for examination by handwriting expert. The expert compared thumb impression
on the deed in dispute with the specimen of the thumb impression of Sukhdei
taken in the Court of the Magistrate. Shri Bhairo Prasad Srivastava, counsel
for the accused appeared as P.W. and deposed specimen impression was of Smt.
Sukhdei. It was contended by the accused that the identity of thumb impression
of Smt. Sukhdei admitted by the counsel of the accused was not binding on them
so the prosecution had failed to prove that specimen thumb impression were of
1. Rit Vnrma v. Emperor, 19 Cr LJ 789; Kedar Nath Bcjoria v. State of West Bengal, AJR IQ54 SC
660.
2. Jang Bahadue Singh v. Shanker, 13 Alld 2n ; Venkata v. Bhashya, 22 Mad. 5J3 ; Sen 11. Chunni
Lat, 15 Cal 385.
3. Krishna Swami v. Rajya Pal, 18 Mad 73; Kamta v. Chait, AIR 1934 All 531.
4. Kedarnath Bajori.i v. State of West Bengal. AIR 1954 SC 660.
5. S, Bhattacharjee v. Sentinel Assurance Co., AlR 1955 Cal. 594.
6. S.C. Miter v. State; AIR 1950 CaH35; Ganesh Das Milani v. King, AIR 1955 NOC 755 .
194 EVIDENCE ACT [S.20
Smt. Sukhdei. The Supreme Court held that in face of sworn testimony of the
counsel for the accused, it was wholly out of place to apply the rule, that the
accused are not bound by the admission of their counsel and the statement was
held to be relevant.1
Statements made in representative character.-Wherc the party
sues or is sued in a representative capacity, i.e., as trustee, Pxecutor,
administrator or the like, the representative is different from the ordinary
capacity and only admissions made in former "quality are receivable.
Statements made before or after incumbency are inadmissible. Conversely his
admission as executor or the like could not be receivable against him as a party
in his personal capacity.
Persons having any proprietary or pecuniary interest.-"Where
several persons are jointly interested in the subject-matter of the suit, the
general rule is that the admissions of any one of these persons are receivable
against himself and fellows, whether they all be jointly suing or sued, or
whether an action be brought in favour of or against any one or more of them
separately, provided the admissions relate to the subject-matter in dispute and
be made by the declarant in his character of a person jointly interested with
the party against whom the evidence is tendered." The rule is founded on the
legal principle that persons seized jointly are seized of the whole. The
admission of the one is the admission of other. A foundation first be la.d by
showing prima facie that a joint interest exists. As apparent, joint interest is
obviously insufficient to make the admission of the one party receivable
against his companion where the reality of that interest is the point in
controversy. The existence of joint interest which is disputed cannot be
established by the admission of one of the parties sought to be charged but this
fact must be established by independent proof.
In general the statement of defence made by one defendant cannot be read
in evidence for or against his co-defendant. If it were allowed, the plaintiff
might make one of his friends a defendant and thus may gain a most unfair
advantage. It is plain, therefore, on principle and policy that the statement of
a co-party (while useable against him) are not useable against a co-party.2
Admissions of persons having joint interest.-As mentioned above
an admission is ordinarily in evidence against the party making it. But
admission of one party may be given in evidence against another, when the
admission is sought to be used has a joint interest with the party making the
admission, in the subject-matter of the thing to which his admission relates the
statement made by a person who has any proprietary or pecuniary interest in
the subject-matter of the proceeding or persons having derivative interest
during the continuance of the interest or admissions.I
"The principle is that when several persons are jointly interested in
subject-matter of the suit, an admission of any one of these persons is receivable
not only against himself but also against other defendants, whether they be all
1. Raghunath v. State of U.P., AlR 1973 SC 1100.
2. Azizullah Khan v. Ahmad Ali Khan, 7 All 343.
3. Shrichand Gupta v. GuljarSlngh, AlR 1992 SC 123.
. 20] OF THE RELEVANCY OF FACT'S 195
jointly suing or being sued provided their admission relates to the subject-
matter in dispute and be made by declarant in his character of a person jointly
interested with the party with whom the evidence is tendered. The
requirement of identity in legal interest between the joint owners is of
fundamental importance. It must be borne in mind that the joint ownership must
have existed at the time when the statement was made. Admission of one
person cannot be admitted in evidence against another on the ground of a joint
interest in the subject unless the interest is a subsisting one at the time of the
admission.1 One Narayan died. Dispute arose for his succession. There was an
inquiry before the Revenue Inspector. One D made the statement as follows-
" K, C and G residents of Sankatipali are the principal heirs to the deceased.
There are no others except these." Afterwards a suit was filed by one Q against
K, C and G alleging that he and his brother D were the heirs of Narayan. The
statement mentioned above was proved in the case by the defendants. It was
held. "In this case D is the brother of the plaintiff. He is, therefore, jointly
interested in the subject-matter of this litigation along with plaintiff and this
statement of his, affects title to the property which is the subject-matter of
this litigation for if that statement is true, then he will have no right in the
property as also the plaintiff." The statement was held admissible in evidence
under Section 18 of the Evidence Act.
Persons from whom the parties derive interest.-A former owner of
a land is so identified in interest with a subsequent owner, holding under the
same title, that his (the former owner's admission) respecting the title, made
while in possession and vested with title, are receivable in evidence. This
evidence is based on the theory that the self-interest involved in the
ownership of title is a sufficient guarantee for the truthfulness of the statement
against an interest made by the owner. Generally a man does not make a
statement against his own interest. A is the owner of a house and he is in
possession of it. While in possession and vested with the ownership of the
house he makes a statement that he has mortgaged the house to 8 for Rs. 1,000.
Afterwards A sells the house to C. B files a suit to recover Rs. 1,000 by the sale
of the house, C contends that the house was never hypothecated to B. Here B
can prove the statement of A. This statement of A will be admissible against C
because it was made by A, from whom C derived title and because it was made
by A when he was vested with the ownership and possession of the house in
question and also because it was made against his own interest. It is essential
that the statement be made while the prior owner is vested with the title. If
made after the title has been disposed of the guarantee of the truthfulness is
lost and it has been always held that such statement is inadmissible. In the
above mentioned example suppose A makes the statement referred to above
after he has sold the house to B the statement will not be admissible.
It must be borne in mind that the statement of one person is binding upon
the other only when the latter derives nis title through the former. A admits
in a judicial proceeding that his deceased brother's widow adopted C and he
(C) was entitled to the property left by his (A's) brother. After the death of
l. Ambika Devi v. Bal Mukund Pandey, AIR 1981 Pat. 111.
 196 EVIDENCE ACT [S. 20
the widow of A's brother A's sons filed a suit for a declaration that their uncle
died leaving no son and that they were the reversioners. At the trial C tried to
prove the admission of A. It was held that the admission of A was not binding
on the plaintiffs since they claim in their own right and not through their
father.1
Admission by a person whose position must be proved as against
a party to a suit.-When two parties are litigating, statement of any of them
made prior to the litigation may be proved at the trial if it amounts to
admission. Ordinarily statements by strangers to a suit or proceeding are not
relevant as against the parties. A files a suit against B for possession of a house
· alleging that it belongs to him. B contends that the house belongs to him. A can
lead evidence to the effect that B admitted his title to the hous€ in dispute out
of court. Similarly B can prove A's admission. If any one of them tries to prove
that one C, who is not a party to the proceeding, admitted his title to the
house in dispute, he will be stopped from doing so. But in some cases admissions
of strangers to a proceeding are relevant. When in a suit a party to it in order to
achieve success in the litigation, has to prove the position of liability of a
stranger to the proceeding, the statement of such stranger would be relevant
against a party to the proceeding as admission, if the statement is of such a
nature that if a suit is brought against him in relation to that position or
liability against or by that person who made the statements it would be
relevant provided when the statement was made, the person making the
statement occupies such position or subject to such liability about which the
statement was made. Under Section 19 the party to a suit can use the statement
of even a third party, if the statement of that third person contained an
admission against the interest of that third person, and could have been used
against the third person if he sued or was sued in connection with a matter
involving the position or liability affected by that admission.
11, the illustration given under the section the liability of 'A' to pay 'B'
arises from the liability of C to B. Therefore, if A states that he owed rent to B
will be admissible as against A, provided that the statement was made while
the liability against C was existing. If at the time when C admitted the
liability when the debt against him was time barred, the statement will not be
relevant.
Admission by persons expressly referred by party to a suit.-
Section 20 deals with another class of admission of persons other than the
parties when a party refers to a third person for some information or an opinion
on a matter-in dispute, the statement made by third person are receivable as
admission against the person referring. The reason is that when a party refers
to another person for statement of his view, he approves of his statement in
anticipation and adopts as his own. "If a man refers another upon any
particular business to a third person, he is bound by what the third person says
or does concerning it as much as that it had been said or done by himself." A
says to B ·1 will pay you the sum of Rs. 200 if C says I owe it to yo~", on
l. Gopal Singh 11. Hukum Singh, AIR 1950 AU 644.
s. 20] OF THE RELEVANCY OF FACTS 197
reference C says, "A owes Rs. 200 to B". This statement of C will be proved
against A as his admission under Section 20. The declarations of the persons
referred to will be admissible only when they relate strictly to the subject-
matter in relation to which the reference is made. Thus where a defendant
stated that a book-keeper would furnish whatever information was contained
in the book. The book-keeper instead of giving the information contained in the
book stated that in his opinion certain entries in the book were false. It was
held that this was not admissible because the matter referred to the book-
keeper was what was the entry and the statement as to the correctness or
incorrectness of the entries examined and the statement as to the correctness or
incorrectness of the entries were not referred to. In a suit the plaintiff stated
that the defendant may be examined and the suit may be decided on the basis
of what he says. The defendant made a statement against the plaintiff. It was
held that the statement of the defendant was admissible under Section 20 of
the Evidence Act.1 Parties to a suit made a joint application to the effect that
the Munsif may decide the suit after he has made a local inspection. The suit
was decided on the mere memorandum of the local inspection of the Munsif.
It was held that the report of the Munsif is admissible in evidence as
admissions of the parties under Section 20 of the Evidence Act.2 It must be borne
in mind that when before the statement is made by the referee, a party resiles
from the agreement, the statement of the referee cannot be proved as
admission. At the trial on 19th of December, 1927, the parties agreed that
they would abide by the statement of one Bhagwant Singh. Bhagwant Singh
was accordingly ordered to be summoned and 9th of January, 1928, was fixed for
recording his statement. The next day, i.e., on the 20th of December, 1927, the
defendant made an application to the court stating that he had learnt that
Bhagwant Singh was related to the plaintiff and that he would not like to be
bound by Bhagwant Singh's statement. On 9th January, 1928, the Munsif held
some inquiry and came to the conclusion that Bhagwant Singh was not related
to the plaintiff. The court proceeded to take down the statement of Bhagwant
Singh and ultimately passed a decree in terms suggested by Bhagwant Singh.
The defendant appealed in the High Court. Their Lordships of the High Court
held that the statement was not admissible.3
Section 20 is the second exception to the general rule laid down in Section
18. It deals with one class of vicarious admissions that demand of persons other
than the parties. Where a party refers to a third person for some information or
an opinion on a matter in dispute, the statements made by the third person are
receivable as admission against the person referring.4
In K. M. Singh v. Secretary Indian University Association,5 it was said
that resignation given by the plaintiff was not voluntary. The resignation was
obtained under fraud, coercion, threat and inducement. During the proceeding an
1. Kesho Ram v. Pyare Lal, 21 ALJ 209.
2. Sitaram v. Piari, 47 All 621.
3. J um man Singh and others v. Sheo Darshan Singh, 52 AU 235.
4. Hira Chand Kothari v. State of Rajasthan, AIR 1985 SC 998.
5. AIR 1992 SC 1356.
198 EVIDENCE ACT
application was given by the plaintiff that if the officials of association,
namely Sardar Amrik Singh and R. B. Mahindru by taking oath in Gurudwara
and temple respectively say that plaintiff's resignation was not under
fraud, coercion, inducement and threat, (referred to Amrik Singh and R. B.
Mahindru) then the portion of this case may be dismissed or deemed to
be withdrawn. Sardar Amrik Singh and R. B. Mahindru accepted this
challenge. A local commission was issued. Both the references were ready to
take oath in Gurdwara and temple. The local commissioner administered the
oath.
On the next day oath was administered to the referred person. But it was
prayed by plaintiff that the decision of the case should be made on the basis of
merit of the case.
This later application was rejected by the trial court. The trial court held
that Section 20 of Evidence Act will be applied in this case. The High Court
confirmed the decision of trial court. The Supreme Court also relied on Section
20 of the Evidence Act and held that the plaintiff was bound by the statement
of the person whom he had referred to. The case of Rnm Sahai and others v. Jai
Prakash and ot/1ers1 was for ejectment. A person who had the power of attorney
for U1e tenant accepted the arrears of rent. This acceptance was made binding
upon tenant because this was the statement of person referred by plaintiff.
Admission is substantive evidence.-Where in a civil suit a party
produces documents containing admissions by his opponent, which documents
are admitted by the opponent's counsel and the opponents enters the witness-
box it is not obligatory on the party producing those documents to draw in cross-
examination the attention of the opponent to the said admissions, before he be
permitted to use them for the purpose of contradicting the opponent, provided
that the admissions are clear and unambiguous but where the statements relied
on as admissions are ambiguous or vague, it is obligatory on the opponent to the
said statement before he can be permitted to use them for purposes of
contradicting the evidence on oath of the opponent.2
Admission are substantive evidence by themselves, though they are not
conclusive proof of the matters admitted. The admissions duly proved are
admissible in evidence irrespective of whether the party making them
appeared in the witness-box or not and whether such party when appearing as
a witness was confronted with those statements, in case, he made a
contradictory statement. But the admissions must be clear, if they are to be used
against the persons making them.3
Admission is not admissible against a person other than the person
making it unless such person can be said to be bound by such admission.t
l. AIR 1973 MP 147.
2. Ayodhya Prasad Bhargava v. Bhawani Shankar Bhargava, AIR 1967 All 1 (FB) ; Vishwanath
Prasad i•. Dwarka Prasad, AIR 1974 SC ll 7.
3. Bharat Singh v. Bhagirathi, AIR 1966 SC 405; Beer Basabaradhya v. Devotees l.ingadagudi Matt,
AIR 1973 Mys 260.
4. Sit.J Ram v. Satanee Prasad. AIR 1966 SC 1967.
[S. 20 s. 21) OF THE RELEVANCY OF FACTS 199
ECTION 21.-Proof of admissions against persons making them, and
S by or on their behalf.-Admissions are relevant and may be proved
as against the person who makes them, or his representative-in-
interest ; but 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 :
(1) An admission may be proved by or on behalf of the person
making it, when it is of such a nature that, if the person making it were
dead, it would be relevant as between third persons under Section 32.
(2) An admission may be proved by or on behalf of the person
making it, when it consists of a statement of the existence of any state of
mind or body, relevant or in issue, made at or about the time when such
state of mind or body existed, and is accompanied by conduct rendering
its falsehood improbable.
(3) An admission may be proved by or on behalf of the person
making it, if it is relevant otherwise than as an admission.
Illustrations
(a) The question between A and B is, whether a certain deed is or is not
forged, A affirms that it is genuine, B that it is forged.
A may prove a statement by B that the deed is genuine, and B may prove
a statement by A that the deed is forged ; but A cannot prove a statement by
himself that the deed is genuine ; nor can B prove a statement by himself that
the deed is forged.
(b) A, the captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business
showing observations alleged to have been taken by him from day to day, and
indicating that the ship was not taken out of her proper course. A may prove
these statements, because they would be admissible between third parties, if
he were dead, under Section 32, clause (2).
(c} A is accused of a crime committed by him at Calcutta.
He produces a letter written by himself and dated at Lahore on that day,
and bearing the Lahore post mark of that day.
The statement in the date of the letter is admissible, because, if A were
dead, it would be admissible under Section 32, clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them below their value.
A may prove these statements, though they are admissions, because they
are explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coi.i
which he knew to be counterfeit.
200 EVIDENCE ACT [S. 21
He offers to prove that he asked a skilful person to examine the coin as he
doubted whether it was counterfeit or not, and that the person did examine it
and told him it was genuine.
A may prove these facts for the reasons stated in the last preceding
illustration.
COMMENTS
Proof of admissions against the person making them and by
him.-Section 21 lays down that an admission may be used against a person
who makes them or his representatives in interest, but generally cannot be used
by the person who makes it for his own use. Further it gives three exceptions to
this general rule that admission cannot be used by a person who makes it.
Besides, the three cases mentioned in the section an admission cannot be used by
a person who makes it.1
The principle underlying this rule of law is very dear, it is natural for a
man to make statements in his favour. If a man makes a certain statement
against his own interest it means that the statement must be true. On the other
hand, a man wants to make statements favourable to himself even if the
statements are altogether false. It is on this principle that the law has laid
down that the statement will be used against •.:1e persons who make them and
only in certain exceptional cases by the person who makes them. It has been
remarked very ably by a judge that "it would be manifestly unsafe to allow a
person to make admissions or statements in his own favour which would affect
his adversary: whereas we have a sufficient safeguard for admitting
statements against interest from the assurance that according to ordinary
experience people do not speak untruths against themselves. If admissions were
allowed to be used by a party who makes them it will be very easy for one to
make a favourable statement beforehand and then use it at the time of the
trial". Such statements are rejected because if a man might bring evidence to
prove statements made by himself favourable to his own case nothing would be
easier than for a party who had a week case to strengthen it by making such
statements beforehand or by suborned witnesses to speak to having heard him
to make such statements.
Proof of admission by the maker.-Thus we see that the admission
cannot be used by the persons making them but Section 21 has given three
exemptions to this general rule. In these exceptional cases the person making
admission may use it at the trial and may derive benefit out of it. The
exceptions are as follows :
Admission falling under Section 32.-Clause (1) lays down that an
admission by a person may be proved by or on behalf of the person making it,
when it is of such a nature that, if the person making it were dead, it would be
relevant as between third persons under Section 32. Section 32, Evidence Act,
lays down that statements made by persons who are dead or who cannot be
found, may be proved if the statement was made under the circumstances
l. Shamsher v. Rustam, AIR 1988 Raj. 188.
s. 21) OF THE RELEVANCY OF FACTS 201
mentioned in sub-clauses (1) to (8) of that section. Sub-clause (2) of Section 32
lays down that when the statement was made by such persons in the ordinary
course of business and in particular when it consists if an entry made by him in a
book kept by him in the ordinary course of business, it is relevant. Thus sub-
clause (5) Jays down that when the statement relates to the existence of any
relationship by blood, marriage or adoption between persons as to whose
relationship the person making it had special means of knowledge and when
the statement was made before the question was raised, it is relevant. The
question is, what was the price of grain on a certain day in a particular market.
The plaintiff tries to prove the entries relating to the price made by him in the
ordinary course of business in his account book. This entry is the admission of
the plaintiff but he will be allowed to prove his own admission only because if
he were dead the statement would have been admissible under Section 32, sub-
clause (2). The plaintiff sought to establish his pedigree by proving inter
alia that A and B were brothers. One of the plaintiffs made a statement long
ago before the controversy in the present suit in which he had stated that A
and B were brothers. The plaintiff wanted to prove that statement in the
present case. Though the statement was plaintiffs own admission, it was
allowed to be proved only because if the plaintiff after making that statement
was dead, the statement would have been admissible under Section 32, sub-
clause (5).
State of mind or body.-When the admission of man consists of a
statement of existence of any state of mind or body relevant, and when it was
made at or about the time when such state of mind or body existed and is
recommended by conduct rendering its falsehood improbable, it may be used by
the person who, makes it even for his own benefit. A executes a deed of gift in
favour of B. After a year or so A files a suit against B for the cancellation of the
deed with the allegation that at the time of the execution of the gift-deed he
was seriously ill so much so that he could not understand the contents of the
gift-deed. In this case a real point at issue would be whether at the time of the
execution of the gift-deed the state of mind and body of A was healthy enough
so that he might have understood the contents of the gift-deed. One day before
the execution of the gift-deed A had written a letter to C, a friend of his,
alleging that he was losing the balance of mind and was suffering from some
severe disease and which the doctors of his town could not correctly diagnose. In
the very letter he had asked C to bring some expert doctor from his own city.
The doctor came that very evening, prescribed medicine for A and charged
Rs. 1,000 for his fee and price of medicine. This letter of B though his own
statement will be allowed to be proved by A because it was made at the time
when the state of body and mind existed and also the subsequent conduct of A in
getting advice of the doctor and paying a very heavy sum for the treatment
rendered its falsehood improbable.
Admission made in ignorance of law.-Any admission made in
ignorance of law or under duress cannot bind the maker of the admission.1
1. Shri Krishna v. Kurkshetra University, AlR 1975 SC 376.
202 EVIDENCE ACT [S. 22
Statement relevant otherwise than as admission.-An admission
may be proved by or on behalf of the person making it, if it is relevant
otherwise than as an admission. The plaintiffs filed suit for partition in
respect of certain properties against the defendants. They alleged that the
plaintiffs and defendants were co-owners of the properties in suit. The
defendants contested the suit that there has been a partition between the
parties and the defendants came in possession of a specific property in lieu of
these shares in all the properties. Now in this case there was an issue whether
the property was joint or there had been a partition according to which the
defendant was in possession of that specific property separately. The
defendant had filed a written statement in a previous litigation alleging that
there was a partition and that he was in exclusive possession of that specific
property. In the present suit he tried to prove his previous written statement in
which he himself had stated that there was partition and that he was in
exclusive possession of the property. Now this statement of the defendant is his
own admission but this was admitted under Section 21, clause (3) because this
statement was admissible under Section 11 of the Evidence Act. The plaintiff
brought a suit against his son for recovery of possession of land which stood in
the name of the latter alleging that the same was acquired benami, by him.
The defendant alleged that the land was purchased for him by his paternal
grandfather. The plaintiff answered that his father had died before the
property was acquired. The plaintiff produced a mortgage bond executed by him
long before the date of purchase of the land in suit, in which he described his
father as dead. It was held that the statement made by the plaintiff in the
mortgage bond was admissible in evidence under Section 21, sub-clause (3) as
this statement was admissible under Section 11, sub-clause (2). Thus this is
dear that this clause is intended to apply to the cases in which the statement
is sought to be used in evidence otherwise than as an admission.
No admission of law.-Admission of facts only bind the person making
them. The admission of law are not contemplated by the chapter of
admissions.1
S ECTION 22.-When oral admissions as to contents of documents are
relevant.-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 rules hereinafter contained, or unless the genuineness
of a document produced is in question.
COMMENTS
Principle.-Under Section 22 it has been laid down that when there has
been a document, nobody can be allowed to prove oral admission about the
contents of that document e.g., A executed a deed of mortgage in favour of 8. B
files a suit for the possession of the property mortgaged on the basis of that
mortgage. During the trial A denied the execution of the mortgage. Now in this
case B cannot prove by oral evidence that he had before some persons admitted
1. Banarasi Das v. Kashiram, AIR 1963 SC 1165.
s. 23] OF THE RELEVANCY OF FACTS 203
that he had mortgaged the property to him. B can prove the execution of the
mortgage and can get possession of the property only when he 'iles that deed of
mortgage in the court and proves it.
There are two exceptions to this rule: (1) when a person is entitled to give
secondary evidence of the contents of some documents he will be entitled to rely
on oral admission, (2) Under Section 65 secondary evidence of the contents of a
document can be given when the original is lost or when it is in possession of the
oppo~ite party and so on. Thus we see that under Section 22 a party can prove
oral admission of the contents of the document when he proves that the
document has been lost, destroyed or that it is in possession of the opposite
party. Oral evidence of admission can also be given when a document is
. produced and its genuineness is disputed.1
S ECTION 2(22-A.-When oral admission as to contents of electronic
records are relevant.-Oral admissions as to the contents of
electronic records are not relevant, unless the genuineness of the electronic
record produced is in question.]
civil cases when relevant.-ln civil cases
S ECTION 23.-Admission in
no admission is relevant, if it is made either upon an express
condition that evidence of it is not to be given, or under circumstances
from which the Court can infer that the parties agreed together that
evidence of it should not be given.
Explanntion.-Nothing in this section shall be taken to exempt any
barrister, pleader, attorney or vakil from giving evidence of any matter of
which he may be compelled to give evidence under Section 126.
COMMENTS
Admission in civil cases "without prejudice".-Section 23 is
applicable to civil cases. It lays down that in civil cases if a person admits the
liability upon an express condition that evidence of such admission should not
be given or if it is made in such circumstances that the court can infer that there
was some sort of agreement that the admissions will not be proved in evidence
in a case, such admission will not be relevant and will not be allowed to be
proved. Very often for the purpose of buying peace and settling disputes by a
compromise people make so many statements. lf such statements are allowed to
be proved in court, it will become impossible for people to talk of compromise
and peace. When there is a dispute between two persons and one of them writes
to the other making an offer of certain terms, he may stipulate that i!l case his
offer is not accepted his letter is not to be used against him an admission of
liability. Such a letter is generally described as written without prejudice and
is not admissible in evidence. Then an admission has been made to the opposite
side on the understanding that it is not to be used against the party making it, is
privileged. Such admission are commonly made in the course of negotiations
between the parties or their agents with a view to the compromise of the claim
I. [algopal Sm!jh v. Divisional Forest Officer, AIR 1952 Pat 310.
2. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), 5. 92 and Sch. II.
204 EVIDENCE ACT [S. 24
which afterwards becomes subject-matter of litigation, and the usual way by
which the person making the admission secures the privilege is by stipulating
that the communications are without prejudice.
Under Section 23, in order to sustain the plea of privilege it must be shown
that both the addressor and addressee intended to claim the same.1
In a dispute between the two parties letters and negotiations between
their respective solicitors which are written declared to be without prejudice
are irrelevant. The ruJe under consideration does not apply where admissions
are made not under condition of their being without prejudice or where an
agreement though purporting to be compromise has been finally concluded as
where it has been signed by the parties and executed. It must be borne in mind
that this section has application only in civil cases. It is not extended to
criminal cases.
Admission must be taken as a whole.-An admission must be used
either as a whole or not at all. An admission made by a person cannot be split up
and part of it used against him. It must be accepted as a whole.2 But if there is
other evidence which disproves a part of admission, the other part may be
relied upon.3
Admission on matter of law.-Parties cannot by their admission of law
arising out of an undisputed state of facts, bind the court to adopt their view.
An admission on point of law by a party is not binding on him.4 An erroneous
admission by the counsel on a point of law is of no effect and does not bind the
party.5
Classes of person not exempted from giving evidence.-Under the
Explanation the legal advisor of the party will not be prevented from giving
evidence of any communication made in furtherance of any illegal purpose or
any fact showing that crime or fraud has been committed since his employment.
S ECTION 24.-Confession caused by inducement, threat or promise
when irrelevant in criminal proceeding.-A confession made by an
accused person is irrelevant in a criminal proceeding, if the making of
the confession appears to the Court to have been caused by any
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 avoid any evil of a temporal nature in
reference to the proceedings against him.
I. Lucknow Improvement Trust v. P. L. Jaitly, AIR 1930 Oudh 105.
2. Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343; Palvendra Kaur
v. State or Punjab, AIR 1952 SC 354 ; Raj Bahadur v. Raghuvir, 49 All. 707 : Kali Charan v.
Hardy a Nath, AIR 1935 Pat. 24 ; Sundara v. Gopala, AIR 1934 Mad. 100; Jwala Das v. Sant Dasi,
AIR 1930 PC 245.
3. Shrv Ram v. Shiv Charan, AIR 1964 Ra]. 126.
4. Serain v. Sunder, AIR 1929 Lah 879.
5. Beni Prasad v. Dood Nath, 27 Cal 156.
s. 241 OF THE RELEVANCY OF FACTS 205
COMMENTS
'Confession' defined.-The word 'confession' appears for the first time
in Section 24 of the Indian Evidence Act. This section comes under the heading
of 'Admission' so it is clear that the confessions are merely one species of
admission. Now the question is as to what admission amount to confessions. The
word 'confession' has not been defined in the Act. Mr. Justice Stephen in his
Digest of the Law of Evidence defined confession as "confession is an admission
made at any time by a person charged with a crime stating or suggesting the
inference that he committed that crime". According to this definition a
statement of an accused will amount to a confession if it fulfills any of the
following two conditions :
(1) If he states that he committed the crime he is charged with, or
(2) if he makes a statement by which he does not clearly admit the guilt,
yet from the statement some inference may be drawn that he might have
committed the crime.
Confession to be voluntary.-Where a confession is made by a person
before a report was made to the police and before he was accused of an offence
by others. The confession must be regarded as one made by an accused within the
meaning of this section. A confession, if voluntary and truthfully made is an
"efficacious proof of guilt". It is an important piece of evidence and therefore it
would be necessary to examine whether or not the confession made by the
appellant was voluntary, true and trustworthy.1
A confession which is voluntary and free from any pressure can be
accepted.2 ·
A confession cannot be used against an accused person unless the Court is
satisfied that it was voluntary and at that stage the question whether it is true
or false does not arise. If the facts and circumstances surrounding the making of
a confession appear to cast a doubt on the veracity or voluntariness of the
confession, the Court may refuse to act upon the confession, even if it is
admissible in evidence. The Court has to be satisfied that at the time of
making the confession the accused was a free man and his movements were not
controlled by the police either by themselves or through some other agency
employed by them for the purpose of securing such a confession.3
In Mohammad Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State
of Maharashtra,4 the question was whether the appellant who was a
Pakistani national and was caught alive in Bombay Terror attack and was
charged with serious crimes including collecting arms with the intention .of
waging war against the Government of India, waging and abetting the waging
of war against the Government of India, commission of terrorists acts, criminal
conspiracy to commit murder, robbery/ dacoity with an attempt to cause death -
1. Shivappa v. Stale of Kamataka, AIR 1995 SC 980.
2. Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvanathapuram, AIR 20CTl
SC 794 at p. 7%.
3. Kusuma Ankama Rao v. State of A. P., AIR 2009 SC 2819 at p. 2824.
4. AIR 2012 SC 356.5.
20n EVIDENCE ACT
or grievous hurt and causing explosions punishable under the Explosives
Substances Act, 1908, had made the confession voluntarily. The Magistrate
asked the appellant when he was brought before her when he first felt like
making a confession. He replied the thought of making the confession came to
him when he was arrested by the police. He then added that he had
absolutely no regret for whatever he had done. At another stage of proceeding,
she once again asked the appellant why he wished to make the confessional
statement. He replied that he wanted to set an example for others to follow
and to become Fidayeen like him. The Supreme Court held that he did not
make the confessional statement from any position of weakness or resignation or
out of remorse. He was hero in his own eyes and the confessional statement
made by him was voluntary and truthful.
Not admitting the guilt in term.-Some High Courts adopted the
definition of Mr. Justice Stephen and held that statement of accused amount to
confession even though he did not in term admit the guilt nor did he admit
substantially the facts which constituted offence, but by the facts admitted an
inference may be drawn that the accused might have committed the crime.
Some other High Courts were of the view that a statement amounted to
confession only when it admitted the guilt. The controversy has been set at rest
by the Privy Council which defined confession as below :
"No statement that contains self-exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true 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 itself a confession, e.g. an admission
that the accused is the owner and was in recent possession of the knife or
revolver which caused the death with no explanation of any other man's
"possession", Second part of definition of Justice Stephen is no confession
according to this decision. This case has been followed by the Courts in India in
the following cases :"1
On 23rd of March, 1937 a body of a deceased man was found in a steel trunk
in a compartment at Puri. The body was identified to be of a peon the father-in-
law of the accused Pakala Narayana Swamy. The accused was charged with
the murder of the deceased man. The prosecution story was that the deceased
man came to the house of the accused on the 21st March ; the accused cut him
into pieces, placed the dead body in a trunk and took it to the Railway Station.
The prosecution tried to prove a statement of the accused. The accused stated
that the deceased came to his house on the evening of the 21st March, slept in
one of the out house rooms for the night and left on the evening of the 22nd by
the evening train. That on the morning of 23rd March, the accused went to the
station and went off by the passenger train to Chatrapur in connection with
some private business.
1. Om Prakash v. State of U.P., AIR 1960 SC 409; Sah oo v. State of U.P., AIR 1966 SC 40; Padynchi
of Tamil Nadu, AIR 1m SC 66; Vecra Ibrahim v. State of Maharashtra, AIR 1976 SC
11. State
1167; Nagesia 11. State of Bihar, AJR 1966 SC 119.
[S. 24 s. 24) OF THE RELEVANCY OF FACI'S 207
It was contended that the above statement amounted to confession. Their
Lordships of the Privy Council repelled that contention and held that the
statement that contains self-exculpatory matter can not amount to a confession,
if the exculpatory statement is of some facts which if true would negative the
offence alleged to be confessed. Moreover, a confession must either admit in
terms of the offence, of at any rate substantially all the facts which constitute
the offence. An admission of a gravely incriminating facts, even a conclusively
incriminating fact is not itself a confession, e.g., an admission that the accused
is owner of and was in recent possession of the knife or the revolver which
caused the death with no explanation of other man's possession. Their
Lordships referred to the definition of confession given by Lord Stephen (an
admission made at any time by a person charged with a crime stating or
suggesting the inference that he committed that crime) and remarked : "The
aefinition is not contained in the Evidence Act, 1872 and in that Act it would not
be consistent with the natural use of language to constitute confession as a
statement by an accused "suggesting the inference that he committed" the
crime".1
The appellant Om Prakash was charged with and tried tor offences under
Sections 165-A and 468/109, l.P.C. The charge against him was that he paid
Rs. 300 on or about 4th of December, 1948 to Roshanlal Gupta, unit clerk in M.l's
Office, Bulandshahar to issue to him fictitious permit for bricks and which
were issued to him. The following statement of the appellant were relied on as
confession by the prosecution "I beg to submit that I stood in need of some bricks
for construction of a house. I came to know that bricks, cement, etc. could be had
from the office of the Mechanical Inspector of Bulandshar. Babu Roshanlal,
head clerk had told me this thing. Thereupon I made a request to him that, if
possible, he should get the permit for bricks, issued to me from his office.
Thereafter Roshanlal came to my house on the 4th December, 1948. He took
Rupees 300 from me and gave me four permits. I could not get the bricks. I
searched for Roshanlal. He assured me that those permits had been finished by
his department. He was on leave and he would give me fresh permit when he
joins his office".
"When I did not get the goods I demanded the money (Rs. 300) from
Roshanlal he said that he would give me the money when he would have got
back the same from the Inspector, Mr. Bhatnagar (to whom according to him he
had given) thereafter, "I demanded the money from Mr. Bhatnagar who
promised to return the money after returning from Bareilly. l have not received
that money as yet". Their Lordships held that these statements did not amount
to confession and remarked, "It may be that the two documents read as a whole
suggest an inference, but it is not what tr ·s Court and Privy Council have laid
down us a test for basing a conviction of an accused on his own admission. On the
facts a suspicion may arise, that money was paid as a bribe, but we cannot
successfully repel the suggestion that the appellant might have been cheated
and had no intention of paying a bribe : Their Lordships of Privy Council have
laid down that unless there be a plenary admission of guilt the facts must be
1. Narayana Swamy r. Emperor, AIR 1939 PC 47; Gad ha Pumi 11. State, 1980 Cr LJ 188.
208 EVIDENCE ACT [S. 24
interpreted reasonably and an admission of all the facts which constitute the
offence should be present."!
In Ammini and Others v. State of Kerala,2 the accused sustained injury.
He was examined by the doctor before whom he stated the cause of injuries. It
was held to be not confession. The statement was not hit by provisions of this
Act.
In State of Gujarat v. Mohd. Atik and Others,3 it was held by the Supreme
Court that, when there was no statutory prohibition for using confession
fulfilling the requirement of Section 15 of Terrorist and Disruptive Activities
(Prevention) Act (TADA), 1987, on the premises that it was not recorded during
the investigation of particular offence, which was under trial, there was no
need or reason for the court to introduce a further fetter against the
admissibility of confessional statement. It often happens that a confession
would disclose very many acts and events including different facet of his
involvement in preparation, attempt or commission of crime including the acts
of his co-participation therein. But to expel other incriminatory disclosure
than those under investigation of particular crime from the ambit of
admissibility is not mandated by any provisions of law. Therefore, when a
confession was usuable under Section 15 of TADA it would not become unusable
merely because the case was different. If the confession covers that different
crime it would be relevant item of evidence in the case in which that crime is
under trial and it would then become admissible in the case.
In Behara Tanti v. State,4 the appellant Behera of Tanti was charged
with the offence of committing murder of his wife by severing her head from
the body with '[alsia', The evidence against him was his retracted confession.
The statement of the accused was as follows :
"There was an altercation between me and my wife. I did not know what I
did with her though I saw my wife stained with blood. I, therefore, ran to the
police station where I realised that I had killed my wife."
It was argued by the learned Counsel for the State that the appellant's
statement amounted to an admission of a guilt, firstly, because the appellant
said that he found the knife to have contained the stains of blood on it and
secondly because of his statement that shortly after he realised that he had
killed his wife. Their Lordship said :
"We are unable to accede to this contention because his statement purports
to convey what appears to have been an impression created in his mind
regarding the occurrence and cannot amount to a categorical admission that he
had actually killed the deceased."
If Tanti had made the report to the effect that he stabbed his wife it
would have amounted to confession.
1. Om Prak.uh 11. State of U.P., AIR 1960SC409.
Z. AIR 1998 SC 260.
3, AI& 1998 SC 1686.
'- AIR 1959 Ori 202.
s. 24) OF THE RELEVANCY OF FACTS 209
In Paluinder Kaur v. State of Punjab,1 one Palvinder Kaur was convicted
under Section 302, I. P. C., for having committed murder of her husband by
administering potassium cynide poison. She stated "my husband was fond of
hunting as well as of photography. Some material for washing photos was
purchased and kept in an almirah. My husband developed abdominal trouble.
He sent for medicine. I placed that medicine in the same almirah. By mistake
my husband took the liquid which was meant for washing the photos. He fell
down and died". It was held that "the statement did not amount to confession".
A confession must either admit in terms the offence or at ..any rate
substantially the facts which constitute the offence. Any statement short of
this will not amount to confession even if bl
that some inference of implication
of the accused in the crime may be drawn. A is charged with murder of B. He
makes a statement that he committed the crime. This will amount to confession.
Again he may state, "I and B both were taking bath in a tank. B abused me
severely. I was angry so I got hold of his neck and drowned him in the tank."
Here the accused substantially admits the facts which constitute the offence so
his statement amounts to confession. He may state that he, Band C were
bathing in the tank when B and C quaralled. In spite of the fact that he asked
C not to drown B, C did not mind his words but he pushed B down in the tank
and B was drowned. By this statement of A some sort of inference can be drawn
about the implication of A in the murder of B. It may be at least shown that he
was present at the time of the murder but at any rate it cannot be said to be
confession because he neither admits the guilt nor does he admit substantially
the facts which constitute the offence. A statement which contains an
exculpatory assertion of some fact, which if true would negative the offence
alleged cannot amount to a confession. The accused was charged under Section
135 of the Customs Act. The accused made a statement to the Custom Inspector.
Therein, the deponent claimed that he was not aware that the packages which
were loaded in the truck were contraband goods and alleged that the goods
were not loaded under his instructions. The deponent claimed to be an innocent
traveller in the truck. It was held that the statement did not amount to
confession.3 The accused a woman stated that she stabbed the deceased as he
tried to commit rape on her. The statement did not amount to confession because
the statement taken as a whole does not amount to confession. A lady has
right to kill a person in self defence if the latter attempts to commit rape on
her.4
Confession at a later stage of trial.-A confessional statement not
retracted even at a later stage of the trial and even accepted by the accused in
his examination under Section 313 of Cr. P. C. can be fully relied upon.S
Admissions and confessions-Exceptions to hearsay rule.-
Admissions and cor,f.;ssions are exceptions to the "hearsay" rule. The Evidence
1. AIR 1952 SC 354.
2. Gndhapurna t•. State, ,:180 Cr. LJ 188.
3. Veera Ibrahim 11. Slate of Maharashtra, AIR 1976 SC 1167.
4. Stale ot Orissn 1•. Nirupama, 1989 Cr LJ 621.
5. Blshnu Pm..1d Sinha 11. Stale of Assam, ALR 2007 SC 848 at p. 853.
210 EVIDENCE ACT [S. 24
s. 24] OF TI-IE RELEVANCY OF FACTS 211
Act places them in the province of relevance, presumably on the ground that
they being declarations against the interest of the person making, they are in Confessions Admissions
all probability true.l 2. Confession if deliberately and I 2. Admission are not conclusive as
voluntarily made may be to the matters admitted it may
Admissibility of Tape Recorded.-Tape recorded confession is accepted as conclusive of the operate as an estoppel.
admissible. Tape recorded statement is document as defined in Section 3 of the matters confessed.
Evidence Act which stands on no different footing than Photograph. They are
relevant on satisfying the fo!Iowing conditions :
3. Confessions always go against I 3. Admissions may be used on
the person making it. behalf of the person making it
(i) the voice of the person alleged to be speaking must be identified by under the exceptions provided in
the maker of the record or by others who know it, Section 21 of Evidence Act.
(ii) acc~racy of what was actually recorded has to be proved by the 4. Confessions made by one or two I 4. Admission by one of the several
maker of the record, and satisfactory evidence, direct or or more accused jointly tried for defendants in suit is no evidence
circumstantial, has to be there so as to rule out the possibility of the same offence can be taken against other defendants.
tampering with the record, · into consideration against the
co-accused (Section 30).
(iii) the subject-matter recorded has to be shown to be relevant according
to the rules of relevancy in the Evidence Act.2 5. Confession is statement written I 5. Ad.mission is statement oral
or oral which is direct or written or contained in
It may be used as evidence, confession and it may also be used for admission of guilt. electronic form which gives
contradiction or corroboration under Sections 145 or 147 of Evidence Act. inference about the liability of
person making admission.
Admission and confession : Distinguished.-Sections 17 to 31 deal
with admissions generally and include Sections 24 to 30 which deal with A confession differs from an admission :
confession as distinguished from admission. From this it would appear that "The distinction between a confession and admission, as applied in .
confessions are a species of which admission is a genus.3 All admissions are Criminal Law, is not a technical refinement but based upon the substantive
not confessions but all confessions are admissions.4 Thus a statement amounting differences of the character of the evidence deduced from each. A confession is a
to confessions under Sections 24 to 30 in a criminal proceeding may be an direct acknowledgement of guilt, on the part of the accused, and by the very
admission under Section 21 in a civil proceeding. Sections 18 to 21 are not force of the definition excludes an admission which of itself as applied in
confined in their application to civil cases only. Incriminating statements not Criminal Law, is statement by the accused direct or implied, of facts pertinent
hit by Section 162, Cr. P.C. may be admissible as admissions even in criminal to the issue, and tending in connection with a proof of other facts to prove his
cases.5 guilt but of itself is insufficient to authorise a conviction."
Distinction between Confession and Admission The acid test which distinguishes a confession from an admission is that
Confessions Admissions where conviction can be based on the statement alone, it is a confession and
where some supplementary evidence is needed to authorise a conviction, then it
1. A confession is a statement made I 1. An admission usually relates is an admission.1 Another test is that if the prosecution relies on the statement
by an accused person which is to civil transaction and as being true it is confession and if the statement is relied on because it is false it
sought to be proved against him comprises all statements is admission.2 In criminal cases a statement by accused, not amounting to
in criminal proceeding to amounting to admission confession but giving rise to inference that the accused might. have committed
establish the commission of an defined under Section 17 and the crime is his admission.3
offence by him. made by person mentioned under
Sections 18, 19 and 20. Examples of Admission.-(1) 'A' is charged with the murder of '8' by
drowning. [f he states that he drowned 'f!' it is confession. But if he states that
1. State of Maharashtra v. Kamal Ahmad Vakil Ansari, AIR 20!3 SC 1441 at p. 1447.
'/' and '8' were bathing in the river 'C' came and began to drown 'B', I tried to
2. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Z.B. Dhukari v. D.R. Mehrad, AIR 1975 save 'B • but could not" it is admission and not confession.
SC 1788.
3. Siddhl-shwar Nath v. Emperor, AIR 1934 AU. 351. 1 Ram Singh v. State, AIR 1959 AU. 518.
4. Nit.. Chandra jaria v. Emperor, AIR 1937 Cal. 433, 2. In I\J Seshaparo, AIR 1937 Mad. 209.
5. Akal Sahu 11. Emperor, AJR 1941! Patna 62; Narayan Swam, v. Emperor, AIR 1939 PC 47; Paddl 3. K. Padyachl v. ~tale of Tamil Nadu, AIR 1972 SC 66; Nishikant v. State of Bihar, AlR 1969 SC
11. State of M.P., AIR 1%4 SC 1850. 422.
212 EVIDENCE ACT [S. 24
(2) 'F' was charged with the murder of 'G' whose corpse was recovered
from a well. 'F' stated that on peeping into the well near the pipal tree a day
before the recovery of the dead body he saw the dead body of Gulab floating in
it. This was admission but not confession.1 Had he stated that he killed Gulab
and threw the dead body in the well it would have amounted to confession.
(3) P was charged with having committed murder of N on the night of
10th July, 1969, he stated that the deceased Natesa caused injury on his toe at
about midnight on 10th July, 1969 by biting him, this was an admission.2
N was charged with the murder of/ in the running train, he stated that he
was travelling with the deceased one L entered in the train, he took / into
lavatory and began to beat him. I wanted to save him but could not though I
received injuries in attempting to save J. Statement is admission not confession.3
Had he stated that he killed / or that he cut the throat of J by knife it would
have amounted to be a confession.
(4) 'R' was charged with murder of his wife and three daughters. He
wrote on a piece of paper that they (the wife and the daughters) were not in
this world. This was an admission. Had he stated that I killed them it would
have amounted to confession.4
Judicial and extra-judicial confessions.-Confessions have been
divided by English text-writers into two classes, namely, judicial and extra-
judicial.
Judicial confessions.-Judicial confessions are those which are made
before a Magistrate or in court in the due course of legal proceedings. A judicial
confession has been defined to mean "plea of guilty on arrangement (before a
tribunal) if made freely by a person in a fit state of mind".5 A is accused of
having killed G. He may, before the trial begins confess the guilt before some
Magistrate who may record it in accordance with the provisions of Section 164,
Cr. P.C. At the committal proceedings before the ;nagistrate or at the trial
before Sessions Judge, A may confess his guilt. All these are Judicial confessions.
Extra-judicial confessions.-Extra-judicial confessions are those which
are made by the accused elsewhere than before a Magistrate OI'. in court. An
'extra-judicial confession' can be made to any person or to a body of persons. It is
not necessary that the statements should have been addressed to any definite
individual. It may have taken placein the form of a prayer. A confession to a
private person is extra-judicial. An extra-judicial confession has been defined to
mean "a free and voluntary confession of guilt by a person accused of a crime in
the course of conversation with persons other than judge or Magistrate seized of
the charge against himself'. A person was charged with the slaughter of a cow
which he had stolen. When the report w .. s to be lodged against him a man of
I. Fadd.i v. State of M.P., AIR 1964 SC 1850.
2. K. Padyachi v. State ofTamil Nadu, AIR 1972 SC 66.
3. Nishikant v. St;ate of Bihar, AIR 1969 SC 422.
4. State of As&lm v. U.N. Ragkho va, 1975 Cr LJ 354.
5. Bala Majru v. State of Orissa, AIR 1951 Ori 168 (FB).
s. 24] OF THE RELEVANCY OF FACTS 213
the village asked as to why he has committed the crime. He apologized and
said "I am very sorry for my action. I may be excused", This is certainly an
extra-judicial confession, A man after the commission of a crime may write a
letter to his relation or friend expressing his sorrow over the matter. This may
also amount to an extra-judicial confession.
Extra-judicial confessions are those which are made elsewhere than
before a Court or Magistrate. Extra-judicial confession is generally made before
private individuals which includes even judicial officer in his private
capacity. It also includes a Magistrate not empowered to record confessions
under Section 164 of the Cr. P.C. or a Magistrate so empowered but receiving the
confession at a stage when Section 164 of the Code does not apply.!
An extra-judicial confession which is voluntary and true and made in a fit
state of mind can be relied upon by the Court. The value of the evidence as to
confession, like any other evidence, depends upon the veracity of the witness to
whom it has been made.2
It is not necessary that the witness should speak the exact words but there
should not be a vital and material difference.3
A conviction on the basis of extra judicial confession can be based only after
subjecting the evidence of witness, to whom confession was made, to rigorous test
on the touchstone of credibility. The extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility.'
Where accused went to the Ex-Sarpanch and told him that he had
committed murder and that he should take him to the Police. Ex-Sarpanch was
faced with gruelling cross examination but defence could not elucidate anything
to discredit him. The deposition made by Ex-Sarpanch was held to be
trustworthy piece of evidence.5
The accused stated to his mother that he had killed his daughter who
had left her husband and living in an adulterous and incestious relationship
with her uncle, the son of the maternal aunt of the accused. It was an extra-
judicial confession and was admissible. Such a confession can be relied upon and
conviction can be founded thereon.6
Where the extra-judicial confession was alleged to have been made before
two prosecution witnesses, one of whom was the brother of the deceased, there
was no reason for the accused to repose faith in him to seek his protection and
another witness testified that he was not even acquainted with the accused,
the case of the prosecution that the accused had made extra judicial confession
was rejected,"
1. State of Punjab v. Harjagdev Singh, AIR 200') SC 2693 at p. 2695.
2. 13hagwan Dass v. State (NCI) of Delhi, AIR 2011 SC 186.3.
3. Ajay Singh v. State of Maharashtra, AIR 2007 SC 2188 at p. 2189.
4. Kusuma Ankama Rao v. State of U. P., AIR 2008 SC 2819 at p. 2824.
5. Kulvmder Singh v. State of Haryana, AIR 2011 SC 1m.
6. Bhagwan Dass v. State (NCI) Delhi, AIR 2011 SC 1863 ; Kulvinder Singh v. State of Haryana,
2011 AIR SCW 2394 and State of Rajasthan v. Raja Ram, AIR 2003 SC 3601.
7. State of Rajesthan v. Kashl Ram, AIR 2007 SC 114 at p. 148.

214 EVIDENCE ACT
A truthful and voluntary extra-judicial confession made to a stranger for
whom there is no reason to state false, cannot be eschewed from being
considered.1
In Shiva Karam Payaswami Tewari v. State of Maharashtra,2 the
accused who used to prepare spices in a hotel was charged of murdering the
deceised, the Manager of the hotel and after breaking open the cash-box
stealmg Rs. 35,000/- from it. The accused was convicted on the basis of
circumstantial evidence, particularly on the ground of extra-judicial confession.
The High Court dismissed the appeal. The extra-judicial confession was made
to his friend by the accused. However, the conviction under Section 302 of I.P.C.
was altered to Section 304 of I.P.C. because assault was made in the course of
sudden quarrel without premeditation, the accused being is not armed prior to
the assault but he picked up the wooden log lying there and made the assault.
Regarding extra-judicial confession, Justice Dr. Arijit Pasayat observed :
"Though it is not necessary that the witness should speak the exact words
but there cannot be vital and material difference. While dealing with a stand
of extra judicial confession, Court has to satisfy itself that the same was
voluntary and without any coercion and undue influence. Extra-judicial
confession can form the basis of conviction if persons before whom it is stated to
be made appear to be unbiased and not even remotely inimical to the accused.
Where there is material to show animosity, Court has to proceed cautiously
and find out whether confession just like any other evidence depends on
veracity of witness to whom it is made. It is not invariable that the Court
should not accept such evidence if actual words as claimed to have been spoken
are not reproduced and the substance is given. It will depend on circumstance of
the case. U substance itself is sufficient to prove culpability and there is no
ambiguity about import of the statement made by accused, evidence can be acted
upon even though substance and not actual words have been stated. Human mind
is not a tape recorder which records what has been spoken word by word. The
witness should be able to say as nearly as possible actual words spoken by the
accused. That would rule out possibility of erroneous interpretation of any
ambiguous statement. If word by word repetition of statement of the case is
insisted upon, more often than not evidentiary value of extra judicial confession
has to be thrown out as unreliable and not useful, that cannot be a requirement in
law. There can be some persons who have a good memory and may be able to
repost exact words and there may be many who are possessed of normal memory
and do so. It is for the Court to judge credibility of the witness's capacity and
thereafter to decide whether his or her evidence has to be accepted or not. If
Court believes witnesses before whom confession is made and is satisfied that
confession was voluntary basing on such evidence, conviction can be founded.
Such confession should be dear, specific and unamblguous.f
Communication to another not essential.-Por extra-judicial
confession communication to another is not an essential component to constitute
1. Ram Singh t•. Sonia, AJR 2007 SC 1218 at p. 1232.
2. AIR 2009 SC 1692.
3. Shiva Karam Payaswami Tewari v. State of Maharashtra, AJR 2009 SC 1692 ;at pp. 1693-1694.
l
I
[S. 24
s. 24) OF THE RELEVANCY OF FACTS 215
'statement'. The dictionary meaning of the word 'statement' is "act of stating;
that which is stated; a formal account, declaration of facts etc." The word
'statement' includes both oral and written statement. An accused overheard
uttering to himself or saying to his wife or any other person in confidence makes
the statement. He may also utter something in soliloquy. He may keep a note in
writing. Such statement being an admission of guilt amounts to confession
whether it is communicated or not.1
A confession is a statement by the accused. Communication to another is
not an essential ingredient of a concept of confession. The murmuring of the
accused all alone to himself that he has killed Sundarpali was held to be
confession.2
In the case of Pandru Khadia v. State of Orissa,3 it has been held that the
confession must be addressed to some one. In view of the above Supreme Court
case it is not correct law.
Extra Judicial confession-Principles forming the basis of
conviction.-In Sahadeuan v. State of Tamil Nadu,4 the Supreme Court
held-Extra judicial confession is admissible and for it the following principles
form the basis of conviction:-
( i) It is a weak evidence by itself. It has to be examined by the Court with
greater case and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary
value if it is supported by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should
not suffer from any material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in
accordance with law.
Examples of Confession.-A confession can be excluded when it is made
before a police officer. A Village Administrative Officer does not come under it.
He does not fall even under the category of Magistrate. Therefore, confession
before him amounts to extra-judicial one and is not inadmissible. This may not
be treated always to be a weak one. Each case has to be examined on its own
facts and circumstances.> However confession made before two witnesses who
were known to the brother of deceased. The evidence was held unbelievable
and unnatural as they were neither sarpancn nor a ward member.6
1. Ajay Singh v. State of Maharashtra, AIR 2007 SC :!1!18 at p. 2190, Per Dr. Arijit Pasayat J.; Silhoo
v. Stall! of U. r., AIR 1966 SC 40; referred to.
2. Sahu v. State of U.P .. AIR 1966 SC -10. ·-
3. 1992 Cr LJ 762.
4. A!K 2012 SC 2435 at p. 2441.
5. Sluv Kumar io. State, (2006) l SCC 714; See also State of Ra1a.~th;m v. Raja Ram, (2003) 8 SCC 180.
6. State ul Rajasthan v. Kashi Ram, AIR 2007 SC U4.
 216 EVIDENCE ACT [S. 24
ln the instant case, the extra-judicial confession of murder was made to the
prosecution witness had been Village Administrative Officer for ten years
standing. Where extra-judicial confession is given to the Village
Administrative Officer, he is required to go to the scene of occurrence, observe
the dead body as well as the scene, to satisfy himself about the truth of the
statement given by the person concerned and then prepare the material records,
to prepare duplicate of extra-judicial confessional statement, prepare a Yadast
which must be sent to the Court by him. The failure on his part to prepare the
documents when he was aware of his duty was held to create the doubt
regarding the entire case of prosecution.1
In Baluiindar Singh v. State of Punjab,2 accused having made confession to
one of his relatives. Such person lodging complaints after delay of three to five
days, though being social worker, she was with the police for two days in
connection with some other case. The confession was held to be surrounded by
suspicious circumstances.
In Vinayak Shivaji Rao Pd. v. State of Maharashtra,3 the confession was
made by accused, an army Sepoi, to his senior. The confession was found to be
voluntary. The Senior was not enimical to the accused. The Supreme Court held
that minor variation between confession "'!" rl his evidence did not make
confession unreliable.
In Ram Khilari v. State of Rajasthan,4 the extra judicial confession was
made to relative after 20 days. Delay in recording the statement was explained
by investigation officer. Conviction based on this confession was proper.
An unambiguous extra-judicial confession has got value of high
probability because this type of confession is made by that person who had
committed the crime and it will be taken into consideration if it is free from
doubt and its untruthfulness is free from any doubt. But for confession made
about charge in question the court has to satisfy itself that the (extra-judicial)
confessions voluntary and the confessions should not have been caused by
inducement, threat or promise or the confession should not have been taken
under the circumstances which came under the perview of Section 25 or 26.5
Before accepting the extra-judicial confession, it should be seen that it is
not made under unfair or collateral notions. For this the court has to enquire all
the relevant facts, such as to whom the confession was made, the time and
place of making confession and the phraseology used by the accused.s
In a murder case, where the prosecution case hinges upon extra-judicial
confession as one of the circumstance, the confession of accused twenty days after
the incident and there being no sufficient reason as to why the accused should go
to a witness who himself is an accused in another case and make a confession. It
was suggested by the defence that the witness was deposing at the instance of
I. State of Tamil Nadu v. Mamatharaj, AIR 2009 SC 1757 at p. 1759.
2. AIR 1996SC607.
3. AIR 1998 SC 1096.
· 4. AIR 1999 SC 1002.
5. Kishore Chand v. State or H.P., AIR 1990 SC 2140.
6. Kishore Chand v. State of H.P., AJR 1990 SC 2140.
s. 24) OF THE REL.EV ANCY OF FACTS 217
police is not without force. It was held that this circumstance is of doubtful
nature. The prosecution failed to establish all circumstances by independent
evidence to form a complete chain bringing home the guilt to the accused
without giving room to any other hypothesis. Therefore the conviction was set
aside.1
In Kumar v. State of Tamil Nadu,2 the prosecution case was that the
accused committed rape of the deceased, the wife of his brother, when she was
alone in her house. While he made attempt to rape her, she resisted. The
accused struck a blow with 'purikatai' on her head due to which she fell
unconscious. Taking advantage of her condition, the accused had sexual
intercourse with her. Immediately thereafter, he also attacked 13 months old
girl of the deceased playing nearby giving a forcible punch on her face due to
which she also became unconscious. With the intention to cause disappearance
of evidence and in order to show it a suicidal case, he arranged kerosene from
his neighbour-P.W. 2 a woman, on the pretext of cleaning a machine he poured
kerosene and set them on fire causing their death. P.W. 2 deposed that she went
to the house of the accused and found the deceased and daughter dead. He
threatened her not to disclose to any body and confessed that finding the
deceased alone in the house, he embraced her but she resisted then he attacked
her and raped her and thereafter he committed the murder of the deceased and
her daughter by setting them on fire. Under this threat she called the brother
of the deceased as if the deceased was calling by putting her saree on the
receiver of the phone. Impersonating as deceased, she spoke to the brother of
the deceased that she had been tortured for money and asked him to come
within one hour, otherwise she would commit suicide. The evidence of P. W. 2
was corroborated by evidence. The doctor who conducted post mortem
examination deposed that the back side of the body, crown of the head and the
soles were not burnt. Thus, there was no possibility of committing suicide. It was
a case of murder. The Court held-The evidence of P.W. 2 clearly shows that
the accused had made extra-judicial confession to her. There is no reason to
disbelieve her testimony, on the other hand, the same is acceptable if we
consider other circumstances. The extra-judicial confession made to P.W.-2 has
been rightly accepted by the Trial Court as the same is within the parameters
of law and withstood the test of reasonableness and credibility.
Distinction between Judicial confessions and Extra-judicial
confessions
Judicial Confessions I Extra-judicial Confessions
1. Judicial confessions are those I 1. Extra judicial confessions are
which are made to a judicial those which are made to the
magistrate under Section 164, Cr. persons other than those
P. C. or before the court during authorised by law to take
committal proceeding or during confession. It may be made to any
tri a I. person or to police during
investigation of an offence.
1. Kailash v. State of U.P., AIR 1994 SC 470.
2. AIR 2013 SC 2802 at p. 2808.
218 EVIDENCE ACT [S. 24 s. 24) OF THE RELEVANCY OF FACTS 219

Judicial Confessions Extra-judicial Confessions In Gu/am Husain Seikh Cliaughle v. Rynolds Superintendent of Custom,1
2. To prove judicial confession 2. Extra judicial confessions are the case of appellant was that since the confessional statement was made under
the person to whom judicial proved by calling the person as inducement, threat or promise, which the High Court declined to accept on the
confession is made need not be witness before whom the extra facts emerging from the evidence in the case. There is no escape of this Court to
called as witness. judicial confession is made. interfere with the order in regard in exercise of jurisdiction under Artucle 136 of
the Constitution.
3. Judicial confessions can be 3. Extra judicial confession alone
relied as proof of guilt against cannot be relied. It needs support According to Supreme Court, the statement recorded by custom officer
the accused person if it appears of other supporting evidence. under Section 108 of Customs Act is admissible in evidence. The Court has to
to the court to be voluntary and test whether the inculpating portion were made voluntary or whether it is
true. . vitiated on account of any premises envisaged in Section 24 of Evidence Act.
4. A conviction may be based on 4. It is unsafe to base conviction on Confession when irrelevant.-If a confession comes within the four
judicial confession. extra judicial confession. comers of Section 24 it is irrelevant and cannot be used egainst the maker.
Principle underlying Section 24.-The ground upon which confessions
The ingredients of Section 24.-To attract the prohibition enacted in
are received in evidence is the presumption that no person will voluntarily
Section 24 the following facts must be established :
make a statement which is against his interest unless it be true. But the force of
the confession depends upon its voluntary character. There is always a danger (1) that the statement in question is a confession,
that the accused may b2 led to incriminate himself falsely. Very often (2) that such confession has been made by the accused,
the police, while seeking to obtain a character for activity and zeal, harass
and oppress prisoners and compel them to make confessions of guilt although (3) that it has been made to a person in authority,
they are innocent. Sometimes a prisoner is induced, by hope held out, to (4) that the confession has been obtained by reason of any inducement,
confess. threat or promise, proceeding from a person in authority,
Voluntary and non-voluntary confession.-The confession of an (5) such inducement, threat or promise must have reference to the charge
accused may be classified as voluntary and non-voluntary. A confession to the against the accused, and
police officer is the confession made by the accused while in custody of a police
(6) the inducement, threat or promise must in the opinion of the court be
officer and never relevant and can never be proved under Sections 25 and 26. sufficient to give the accused ground, which would appear to him reasonable,
Now as for the extra-judicial confession and confession made by the accused to for supposing that by making it he would gain any advantage or avoid any evil
some Magistrate to whom he has been sent by the police for the purpose during of a temporal nature in reference to the proceedings against him.2
the investigation, they are admissible only when they are made voluntarily. If
the making of the confession appears to the court to have been caused by any (1) Confession caused by inducement, threat or promise.-The
inducement, threat or promise having reference to the charge against the term of inducement involves a threat of prosecution if the guilt is not confessed
accused person proceeding from a person in authority and sufficient in opinion of and a promise of forgiveness if it is so done. It is very difficult, to lay down any
the court to give the accused person grounds, which would appear to him hard and fast rule as to what constitutes inducement. It is for the Judge to decide
reasonable for supposing that by making it he would gain any advantage or in every case. An inducement may be expressed or implied, it need not be made
avoid any evil of a temporal nature in reference to the proceeding against him, to the accused directly from the person in authority. Before a confession can be
it will not be relevant and it cannot be proved against the person making the received as such, it must be shown that it was freely and voluntarily made.
statement. Section 24 of the Evidence Act lays down the rule for the exclusion of This means that the confession must not be obtained by any sort of threat or
the confession which are made non-voluntarily. violence, not by any promise either direct or indirect, expressed or implied,
however slight the hope or fear produced thereby, not by the exertion of an
In Lokman Shah and others v. State of West Benga[,l it was held by influence. The grounds on which confessions made by the accused under promises
Supreme Court that voluntariness of confession recorded by Magistrate cannot be of favour or threats of injury are excluded from evidence is not because any
doubted. Confession can be acted upon for the .purpose of entering conviction. In wrong is done to the accused in suing them but because he may be induced by
this case, the confession of the accused showed that accused got pressure of hope or fear to confess the guilt without regard to their truth in
himself involved in the episode, that he shared common object of unlawful order to obtain relief or avoid the threatened danger. Thus it is dear that if
assembly.
1. AIR 20Cl1 SC 2930.
I. AIR 2001 SC 1760. 2. Veera Ibraham v. State of Maharashtra, AIR 1976 SC 1168.
220 EVIDENCE ACT
threat or promise from persons in authority is used in getting a confession it will
not be taken into evidence. Every threat or inducement may not be sufficient to
induce the accused to confess a guilt. The proper question before excluding a
confession is whether the inducement held out to the prisoner was calculated to
make his confession untrue one. The real enquiry is whether there had been any
threat of such a nature that from fear of it the prisoner was likely to have told
an untruth. If so, the confession should not be admitted.
Confession recorded on oath.-If any person in authority records the
confession of an accused on oath, the statement becomes non-voluntary. Giving
oath to the accused would by itself amount to a concealed threat because if the
statement was found to be false, the appellant may have entertained a genuine
belief that he might be prosecuted.1
It appears to the court.-An important question arises to the meaning
of the words "appears to the court". The use of the word "appears" seems to
show that this section does not acquire positive proof, "within the definition of
Section 3," of improper inducement to justify the rejection· of the confession.2
The word "appears" indicates a lesser degree of probability than the word
"proof", When once the voluntary character of a confession is challenged by the
defence, the Judge could make a thorough inquiry whether in fact the confession
was voluntary.3 The inference of the non-voluntariness may be suggested by the
confession itself or by the evidence of the prosecution or by the evidence
adduced by the accused person or by the surrounding circumstances which the
court is always bound to take into consideration. A confession, may appear to
the Judge to have been the result of inducement on the face of it and apart from
direct proof of that fact. A court might perhaps in a particular case fairly
hesitate to say that it was proved that the confession has been unlawfully
obtained, and yet might be in a position to say that it appears to the court had
been so obtained.4 As said above that section does not require proof. Well-
grounded conjecture is insufficient and if there is a doubt then the prosecution
must satisfy the court that the confession was voluntary.5 To reject a confession
it is not necessary that there should be a positive proof to establish that the
confession was obtained by use of threat, etc. Anything from a best suspicion to
positive evidence would be enough for confession being rejected.6
If the circumstances create a probability in the mind of the court that the
confession was improperly obtained it should be rejected? "It appears" means
"it seems".8
The burden of proof.-In case of an ordinary confession there is no
initial burden on the prosecution to prove that the confession sought lo be
1. Brij l..11 t•. State of M.P., AIR 1979 SC 1080.
2 R. v. Baswanta, 25 Bom. 68.
3. Nasrr e, Emperor, AIR 1933AII. 31.
4. R. v. Ba~w.mta, 25 Bom. 1683; Raggha v. Emperor, AIR 1925 All. 627.
5. R. o. Panchkawari, AIR 1925 Cal. 587; Ms. Bhagwant v. State, AIR 1955 Pepsu 33; Ms. Bhukkhin
D. Emperor, AIR 1948 Nag. 344.
I>. Raggha v. Emperor, AIR 1925 All. 627 (FB).
7 Nazir 11. Emperor, AIR 1933 All. 31.
~- Pyare Lal v. State of RaJasthan, AIR 1963 SC 1094
{S. 24
s. 24] OF THE RELEVANCY OF FACTS 221
proved is not obtained by inducement, threat, etc. It is the right of the accused
to have the confession excluded and equally the duty of the court to exclude it
even suo motu.1 In the absence of an evidence to show that any threat, promise
or inducement was made to the accused and when he had continuously
questioned all the time but only at intervals during the period the mere fact
that it took two or three hours from the time that the accused was brought to
the house of the Mukhia to the time when he made the confessional statement
cannot make his confession one other than free and voluntary.2
It is idle to expect that an accused should produce definite proof about
beating or pressure. But he must point out some evidence or circumstance on
which a well-sounded conjecture at least, that there was beating or pressure
may reasonably be based.3
(2) Inducement must have reference to the charge.-The
inducement must have reference to the charge against the accused person, that
is the charge of offence in the criminal courts and inferencing the mind of the
accused with respect to the escape from the charge. The inducement must have
reference to escape from the charge. Mere exhortation to speak the truth in
name of God cannot in itself amount to an inducement.4 M, K, were threatened in
a Panchayat of their caste-fellows- that they would be excommunicated from
caste for life if they did not tell whether they murdered B. Upon this they
confessed the guilt, which was afterwards sought to be proved against them on
their trial for the murder of B as confessions. It was held that there was no
threat made having reference to any charge against them. The inducement must
have been made for the purpose of obtaining a confession of the offence, the
subject of that charge. It must reasonably imply that the prisoner's position
with reference to the particular charge will be rendered better or worse,
accordingly as he does or does not confess, and if the inducement be made as to
the one charge, it will not affect the confession as to a totally different charge.
An inducement relating to some collateral matter unconnected with the charge
will not exclude a confession. Thus promise to give the prisoner a glass of spirits
or to strike his handcuffs or to let him see his wife will not be a bar to
admissibility of the confession.
Express or implied.-The inducement need not be necessarily expressed.
It may be implied from the conduct of the person in authority, from the
declaration of the prisoner or the circumstances of the case. Similarly it need
not be made to the prisoner directly ; it is sufficient to have come to his
knowledge provided it appears to have induced to confession.
(3) Threat, inducement and promise from a person in authority.-
Thi.' threat, inducement and promise on account of which, the accused admits
the guilt must come from a person who nas got some authority over the matter.
To be clear the persrm giving different promises, threatening the accused or
I Bala Majih, v. State of Orissa, AIR 1951 Orissa 168 (FB).
2. Ratan Covuul v. State of Uihar, AIR 1959 SC 18.
3. Roshan L~1l !J. Union of India, AIR 1965 HP I.
4. Charnan Lall'. Stale of). and K., 1976 Cr LJ 1310.
222 EVIDENCE ACT
1
inducing him to make the confession must be a person in authority . If a friend
of the accused induces him to make a confession or a relation if he makes him a
promise that if he confesses he will get him released or even if he threatens
him and the accused on that account admits his guilt this statement will not be
excluded by Section 24 as the threat, inducement or promise do not emanate from
a person in authority.
Accused induced by his own belief .-If the accused makes the
confession thinking that by so doing the authorities would soften the attitude
towards him the confession cannot be said to be non-voluntary .2
Person in authority.-The term "a person in authority" within the
meaning of Section 24 was held to be one who has authority to interfere in the
matter charge against the accused. If this definition is to be accepted that term
"a person in authority" would mean only the police who are in charge cf the
investigation and the magistrate who is to try the case. This view appears to
be too restrictive. It appears that a person in authority within the meaning of
Section 24 should be one who by virtue of his position wields some kind of
influence over the accused so a Patel was to be a person in authority.3
The term ·a person in authority' includes master of the accused, the
zamindar of the accused or any other person wielding some influence over the
accused.
A mukhia of a village or a ziledar serving in a great estate is a person in
authority within the meaning of Section 24. This is more specially so if these
persons are closed with the further authority from the investigating officer
deputing them to arrest the accused person.4 A supervisor, Post-Raid
Information Service was held to be a person in authority.5 The President of a
village Vigilance Committee is a person in authority.6 Village numberdar
whose duty is to make report of cognizable cases.7
It must be borne in mind that a person in authority is one who exercises
some influence or authority. It would be doing violence to the terms of Section 24
to hold that a co-villager who does not exercise any influence or authority, in
the village is a person in authority.f
The question as to whether a person to whom a confession has been made is
a person in authority would naturally depend on the circumstances of each case
having regard to the status of the accused in relation to the person before whom
the confession is made. A house surgeon of the hospital is a person in authority
in relation to nurse of the same hospital."
I. Pyare LJI l'. SIJt~ ul Rajasthan, AIR 1963 SC 1094.
2. R. K. Dalm1a 11 IA!lh, Adnurnslration, AIR 1962SC 1821.
3. Mottl.:it 11• Karlash Narain, AIR 1%0 MP 132.
4. Ram Din t'. Emperor, AIR 19411 All. JUI.
5 Ganj\a Prasad Gupta 1,. Emperor, AIR 1'145 Cal. 360.
6. In re Battu Sathalvendan, AIR 1'139 Mad. 515.
7. Bhason 11• State of Pepsu. AIR 1958 Pepsu 33; P. Rustamji v. State or Maharashtra, AlR 1971 SC
1087
8 Emperor 11. K11h1b Bux, AIR 1930 Cal. 633
9. V1r.inw.illy 1>. Srate, AIR 1961 ;K II
[S. 24 s. 24] OF THE RELEVANCY OF FACl'S 223
(4) Sufficiency of the inducement, threat or promise.-Before a
confession is excluded, inducement, threat or promise would in the opinion of
the court be sufficient to give the accused person ground which would appear to
the accused (and not the court) reasonable for supposing that by making the
confession he would gain an advantage or avoid an evil of the nature
contemplated in the section. Consequently the mentality of the accused has to
be judged and not that of the person in authority. That being the case, not only
the actual words, but words followed by acts or conduct on part of the person in
authority, which may be taken by the accused person as amounting to an
inducement, threat or promise, will have to be taken into account. A perfectly
innocent expression, coupled with acts or conduct on the part of the person in
authority together with the surrounding circumstances may amount to
inducement, threat or promise.1 It does not tum upon as to what may have been
the precise words used ; but in each case, whatever the words used may be it is
for the judge to consider whether the words used were such as to convey to the
mind of the person addressed an intimation that it will be better for him to
confess thot he committed the crime, or worse for him if he does not." The
expressions, "What you say will be used as evidence against 1ou", will not
exclude a confession. On the other hand, expressions "you had better pay the
money, than go to jail", "If you do not tell the truth I will send for the constable
to take you". "If you tell me where my goods are I will be favourable to you". "If
you confess the truth nothing will happen to you." "The watch has been found
and if you do not tell me who your partner was I will commit you to prison", "I
will get you released if you tell the truth", have been held to be sufficient to
give the accused grounds for supposing that by making the confession he would
gain an advantage or avoid an evil.
The Advantage to be gained or the evil to be avoided.-A s
mentioned above the inducement, threat or promise would in the opinion of the
court be sufficient to give the accused person grounds which would appear lo the
accused person reasonable for supposing that by making the confession he would
gain advantage or avoid an evil. It must be borne in mind that the advantage to
be gained or the evil, to be avoided must be of a temporal nature; therefore ,my
inducement having reference to a future state of reward or punishment does not
affect the admissibility of confession. A confession will not be excluded which
has been obtained by the accused by moral or religious exhortation.2 The
expressions "you had better as good boys tell the truth". "Kneel down and tell
me truth in the presence of the Almighty", "Do not run your soul in more sin but
tell the truth", do not give out any temporal gain and so the confession derived
on these confessions are not excluded by Section 24. Confession obtained en the
allegation by the punches that if the accused does not confess he shall be
excommunicated will not exclude the confession. It should be borne in mind that
the gain or evil must be in reference to the proceeding against him.
Accused person.-The expression "made by an accused person" in the
section includes. ,my person who subsequently becomes accused, provided that at
the time of making the statement criminal proceedings were in prospect. Section
!. Emperor ,, Panchkaun, AIK l\lc Cal S87. l'y.uc L.11 t•. State of Rajasthan, AIR 1%3 SC 1097.
111 re Karumarl China Mall.inJ, ,\IK 1~8 MJJ. )2,1
224 EVIDENCE ACT (S. 24
24 of the Evidence Act would apply even if the person who is said to have made
the confession was not an accused person at the time when he made the
confession. A person who afterwards becomes an accused may have made the
confession. It is sufficient if the person ultimately comes to be an accused person
with reference to the charge in respect of which he is said to have made
statements amounting to confession and such confession would be controlled by
Section 24. The test which has to be applied in deciding whether Section 24
applies is the position of the person at the time when it is proposed to prove
the admission and not position at the time when he is alleged to have made it.
A confession, therefore, made to police officer by a person when he is not
accused of an offence is inadmissible in evidence against him when he is accused
of an offence. A dacoity is committed in the house of one Mohan. Nobody is
identified to have committed the crime. The police arrests one Sohan. He is
assaulted by the police very severely and he is threatened that if he does not
admit to have committed the crime his limbs will be cut off. Sohan admits
that he committed dacoity. Till the time of confession there was no case against
him. As the statement was made under threat, it is not admissible as laid down
in Section 24 of the Evidence Act. The expression 'accused person' in Section 24
describes the person against whom evidence is sought to be led in a criminal
proceeding. It does not predicate a formal accusation against him at the
time of making the statement sought to be proved as a condition of its
applicability.!
Confession must be voluntary and true.-The confession is really a
very valuable piece of evidence. If the person charged with an offence admits
the guilt, certainly he can be convicted on that basis. Before a confession can be
a basis of conviction the courts have to come to the conclusion that (1) the
confession was made voluntary, (2) that it is consistent, and true.2 A confession
which is inconsistent and untrue will not be enough for conviction of a person
making the confession. There are two stages, (1) admitting the confession in
evidence and (2) convicting on it. If it appears to the court that the confession
was not made voluntary it will be inadmissible in evidence and it will not be
brought on record and, if by mistake it is brought on record it cannot be looked
into. A confession cannot be used against an accused person unless the court is
satisfied that it was voluntary and while the court is considering this question,
the question whether it is true or false does not arise. It is abhorrent to the
notions of justice and fair play, and is also dangerous to allow a man lo be
convicted on the strength of a confession unless it is made voluntary and unless
he realises that anything he says may be used against him, and any attempt by
a person in authority to bully a person into making a confession or any threat or
coercion would at once invalidate if the fear was still operating on his mind at
the time when he makes the confession and if it would appear to him
reasonable for supposing that by making it he would gain any advantage or
-·-------
1. State of U.P. ,,. Denman Upadhyay, AIR l'J60SC 1125.
2. Subrata Kumar v. Dipu Banerjee, AIR 1974 Cal. 61 ; Shankaia v. State of Rajasthan, 197H Cr LJ
1251; Dendra Pasad t•. State of U.1'., 8 Cr. L) 1614; State, of M. P. v. Daya Ra111, AIR 198\ SC
Zf.XJ7 ; &-wanh L.11 v. State of Maharashtra, AIR 1979 SC 705.
s. 24] Of THE RELEVANCY OF FACTS 225
avoid any evil of a temporal nature in reference to the proceedings ag: inst
him.
Even if it is proved that the statement was made voluntarily, and even if
it is proved and the court is competent to read it, the court cannot base its
conviction on such confession, if his confession is inconsistent and seems to be
false. When the confession is wrong in material particulars it is difficult to
hold that the rest of the confession is true. And it has been laid down that it is
very unsafe to rely on such confession. Where the accused stated that he had
strangulated the deceased but the medical examination found no marks of
strangulation the confession was not relied upon.1
If there is no reasonable doubt that the confession is voluntary and
genuine, it is legal, and sufficient proof of guilt, under ordinary circumstances.
It must be repeated that before accepting a confession it must be scrutinized
to find out whether it is true, or not. 1n Harold's case,2 their Lordships of the
Privy Council have laid down : "Confessions are not always true, and that they
must be checked, more particularly in murder cases in the light of the whole of
the evidence on the record in order to see if they carry conviction. It would be
dangerous in the extreme to act on a confession put into the mouth, of the accused
by the witness, having motive for implicating some one, and uncorroborated
from another source." Thus we see that though there is no legal bar for
convicting an accused person on the sole testimony of his own confession but it
has been held to be the rule of prudence not to base the conviction of the accused
on his confession unless and until there is more corroboration by some in
dependent evidence. It means that besides the statement of the accused
admitting his guilt there must be some sort of evidence on the record to show
that he committed the crime. Let us take an example : A is charged of murder of
B. He makes a confession that "on the night between the 19th and the 20th June,
1945, I entered the house of the deceased when she was away, t,y breaking the
lock, I waited there till 11 a.m. the next day and in the day time when the
deceased went up stairs to sweep the room I pounced upon her and killed her
with n dagger and took away her ornaments. This statement does not seem to be
true. The story has some inherent improbabilities and seems to be untrue. Why
the woman, when she came to the house and found her house open, did not make
any hue and cry? And again why the accused waited up to the next day and did
not kill her in the night ? "It must be established that a confession is voluntary
and also that it is true. For the purpose of establishing its truth it is necessary
to examine the confession and comp,ue it with the rest of the prosecution
evidence and the probabilities of the case."3 In Ram Chand v. Stattt vf UP.,~ it
has been observed, "the confession in this case was not safe to be acted upon, at
least, in so f.lr as the commission of murder was concerned. We are not satisfied
that the murder, if ,m)', had been committed ,\t the time and the place and i.,
I Ja>:mul I'. Lmperor, '"" I Q.l!I i\11211.
2. , larold t· Kmg, AIR t•>-15 l'C 181.
3 Swar.m !>111i;h r•. Stal" ol Pun1at>, AlR 1957 SC <>37.
4. All{ l'>:-7 SC 3Hl.
226 EVIDENCE ACT [S. 24
the manner indicated in the confession and hence the accused whether entitled
to the benefit of doubt."
Points to be determined-Voluntariness of confession
recorded.-A judicial confession is recorded under Section 1,; i of the
Criminal Procedure Code. A magistrate before recording a confession must
explain the person making it that he is not bound to make confession and that if
he does so confession may be used against him. Besides these two points the
magistrate must give some time to the accused and keep lurn out of the police
custody before recording his confession, It would naturally be difficult to lay
down any hard and fast rule as to the time which should to be allowed to an
accused person in any given case before recording his confession. However,
speaking generally, it would be reasonable to insist upon giving an accused
person at least 24 hours to decide whether or not he should make a confession.
Where there may be reason to suspect that accused has been persuaded or
coerced to make a confession, even longer period may be given to him before his
confession is recorded.! The object of giving such time for reflection to the
accused is to ensure that he i~ completely free from police influence, if
immediately before recording of the confession the accused was in judicial
custody beyond the reach of the investigating police for some days, then such
custody from its nature may itself be a factor dispelling fear or influence of
police from the mind of the accused. In such a case it may not be necessary to
send back the accused for any prolonged period to jail or Judicial lock up before
recording his confession.2 Another precaution to be taken by the magistrate is
that he should not hand over the accused to the custody of the police if he says
that he is not willing to make confession.
Confession as a whole.-lt has been laid down that where the
confession is the only evidence and there is no other evidence incriminating the
accused, the confession must be taken as a whole. That is to say that if the
statement of the accused is such that a part of it incriminates him whereas the
other part of it exculpates him from the liability, the court is not free to take
that part only which brings the guilt home to the accused and exclude the other
part of it. The court is bound to consider the whole of the statement made by the
accused. It was held : "Where there is no other evidence to show affirmatively
that dny portion of the exculpatory element in the confession is false the courts
must accept or reject the confession as a whole and cannot accept only
exculpatory element while rejecting the exculpatory element as inherently
incrcdible".3
Their Lordships of the Supreme Court have held that confession and
admission must either be admitted as a whole or rejected as a whole and the
court is not competent to accept only the inculpatory part while rejecting the
exculpatory part as inherently incredible.4 In this case the lady stated that
Swaran Singh v State of Punpb, AIR 1957 SC 637.
2. Abdul RazJk v. Stall! of Maharashtra, AIR 1970 SC 283 ; Shankaria v. Stale of Rajasthan, AIR
l'/78 SC 12~7.
3. Bah.iukund 11. Emperor, AIR 1931 All. I (fB) and A Nagesia t1 State of Bihar, AIR 1966 SC 11\1.
4. Palvrnder Kaur t• Stale ol Pun,ab, AlR l'i152 SC 354.
s. 24] OF THE RE LEV ANCY OF FACTS 227
the husband took poison by mistake and died and that she out of fear put his
body in a trunk and threw it into a well. The lower court relied upon the latter
part of her statement and she was convicted under Section 201, I.P.C., for
destroying the evidence of an offence by throwing the body into a well. But the
first part of her statement that the death of her husband was accidental
exonerated her of any offence and if that is taken into consideration no offence
under Section 201, I.P.C. is made out. Their Lordships held that admission or
confession must be taken as a whole and the judgment of the lower court was set
aside. Similarly in Hanumant's case.! it has been laid down that an admission
made by a person whether amounting to a confession or not cannot be split up and
part of it used against him. An admission must be used either as a whole or not
at all.
There are two exceptions to the rule that confession should be taken as
whole : (i) It is permissible to believe one part of confessional statement which
is inculpatory if there is other evidence to prove its correctness,2 (ii) if the
exculpatory part of the statement is inherently improbable it may be rejected
. and inculpatory part may be admitted.3 But it should be borne in mind that
when the statement of the accused contains inculpatory and exculpatory
statement the accused is entitled to insist that the entire statement
including exculpatory part must be tendered in evidence, but this principle is
of no assistance to the accused where no part of statement is self-exculpatory.
In such cases the court may rely on a part of the confession,4 and reject the
other.
Bhagwan Singh appellant was working as sub-Postmaster in Sohana Post
Office, in leave vacancy of Raghu Ram. Navtej Singh delivered parcel
containing a wrist watch, the watch was not received by the addressee. A
complaint was filed by the addressee to postal authority and an enquiry was
made. During the enquiry the appellant himself recorded a statement in his
own handwriting. He admitted that he was working as sub-Postmaster at
Sohana Post Office on 21st March when a Sikh boy (Navtej Singh) came to the
Post Office and delivered a parcel under postal certificate. The appellant also
admitted that the parcel was opened by Tej Ram (Post Office packer) and that
Tej Ram took out a wrist watch from it and gave it to him. These were
inculpatory statements. Appellant however stated that he had asked Te] Ram
not to open the parcel but he opened it without his consent. The inculpatory
part of the statement of the appellant was corroborated by other satisfactory
evidence on the record in the material particulars. Consequently the
inculpatory part of the statement was admitted and exculpatory part was
rejected.5
I. Hanumant t•. State of M. P,, AIR 1952 SC 343.
2. Bhagwan Singh ti. State of Haryana, AIR 1976 SC 11179.
3. Nrshikant 11. Stille of Bihar, AIR 1966 SC 422; H.H. Advam ,,. Stale of Mahar~shlra, AIR 1971 SC
44; Mohan Lal t•. Apt, AIR 1979 SC 1183.
4. A. Nagesta 11• Slate of Bihar, AIR 1966 SC 119; Ram Chandra v. State of U.P., AIR 1957 SC 381;
Keshva Ram t•. State of Assam, AIR 1978 SC 1096.
5. Bhagwan Singh 11. Slate of Haryana, AtR 1976 SC 1797
·228 EVIDENCE ACT IS. 24
In Nishi Kant ]Ila v. State of Billar,1 who was student of a school in
[hajha was charged with murder of a fellow student of the same school on 12th
October, 1961. The case of the prosecution was as follows:
When the Barauni Sealdah passenger train reached Madhupur Station
the dead body of a person was discovered in the lavatory of the first class
compartment, the dead body was found with the neck cut and besmeared with
blood and there was plenty of blood on the floor of the lavatory. The appollaru
was noticed by one Ram Kishore Pandey washing blood-stained clothes with
soap one hour before sun set on 12th October, 1961. Pandey noticed that the left
hand of the appellant was cut. Being questioned about the injury, the appellant
said that when he was coming from the side of Gangamami, a cowboy assaulted
him and cut his finger with glass. Rumour was afloat in village that a murder
had been committed in Barauni train and murderer was missing. Nishi Kant,
the accused, was suspected of murder. He was chased and arrested and was
brought before Mukhia where he stated, "when I boarded first class
compartment in Barauni Passenger at Jhajha, an unknown person was sitting in
it. When the train reached near Sirnultala, Lal Mohan Sharma entered into
that compartment. When train stopped at Jasedeeh station and when I wanted
to get down Lal Mohan Sharma did not allow me to get down. When train
moved ahead Lal Mohan Sharma took that outsider in the lavatory and began
to .,eat him. At this I caught hold of his hand as a result of which my left
forefinger got injured with knife. Then, on being afraid, I sat quietly in that
compartment. He further said, that I should not open the window and door. At
that very time, he killed him. When the train was reaching near Mathurapur
Lal Mohan Sharma jumped down from running train and fled away. I also
jumped down on the other side near Madhupur and fled away because I
apprehended that I would be the person who would be arrested.
A blood stained knife was recovered from accused and his books were also
found besmeared with blood. In this statement the inculpatory part was
admitted and the exculpatory part was rejected. It was observed by their
Lordships of the Supreme Court that the exculpatory part of the statement was
not only inherently improbable but was contradicted by other evidence.
According to his statement, the injury which appellant received was caused by
the appellant's attempt to catch-hold hand of Lal Mohan Sharma to prevent
the attack on the victim. This was contradicted by the statement of the accused
under Section 342, Cr. P.C. (313 now) to the effect that he had received injuries
in a scuffle with a herdsman, the injury found on his person negative both of
these versions. Neither of these versions accounts for the profuse bleedings
which led to his washing his clothes and having bath in river, the amount of
bleeding and washing of blood stained clothes so considerable as to attract the
attention of Ram Kishore Pandey. The bleeding was not a simple one as his all
clothes got stained with blood and also his books, his exercise books, his belt
and his shoes. The knife that was recovered from his person was stained with
human blood and it could have been the cause of injury on the victim. In
circumstances, the exculpatory statement which was inherently improbable
AIR 1%9 SC 422.
s. 24) OF THE RE LEV ANCY OF FACTS 229
and was contradicted by other evidence was rejected and the inculpatory
statement was admitted.
One Ram Chandra was convicted for having committed various offences
under Sections 302, 364, 368 and 201, I.P.C. The case against him was that he
along with six others conspired to extort a sum of Rupees 10,000 from Chauhan
by kidnapping and murdering his son Om Prakash. The accused made a
confession, in his confession he made two part of inculpatory statement, in the
first part he made the statement about the story of kidnapping the boy by
himself, and other accused, in the second part he confessed. the manner in which
he and other accused committed the murder of the boy. The court rejected the
confession in respect of murder as it did not appear to be true, but it admitted
confession in respect of kidnapping of the boy.1
According to prosecution Kalinath Bora was uprooting pulses from his
land when accused Kesho Ram Bora and some others reached there and
attacked him. Kalinath fell down and afterwards died. The accused stated in
his statement under Section 342, Cr. P.C. (313 now), "Rahim and Mohammad
were ploughing in our land Kalinath came there and chased me, raising a dao
to assault me as soon as he came near to me by raising dao, I having found no
means started assaulting him with holanga taken for bringing paddy. After a
little while he fell down." In this case the prosecution case was also that the
accused assaulted Kalinath with hoiang«. The court accepted the inculpatory
part of the statement of the accused to the effect that he assaulted Kalinath
with holnnga and rejected the other part to the effect that the accused
assaulted Kalinath in his own field in exercise of right of self-defence which
was exculpatory. It was held that where a confession or admission is separable
in parts there can be no objection to taking one part into consideration which
appears to be true and reject other parts which are false.Z
EVIDENTIARY VALUE OF CONFESSIONS
Value of judicial confession.-Judicial confessions should be
distinguished from extra-judicial confessions. It may be doubted whether a ~
conviction can be based solely upon an extra-judicial confession but there is no
reason for hesitating to base conviction on a judicial confession.
Proof of judicial confession.-Under Section 80 of the Evidence Act a
confession recorded by magistrate according to law shall be presumed to be
genuine. It is enough if the recorded judicial confession is filed before the court.
lt is nut necessary to examine the magistrate who recorded it to prove the
conf,•ssion.3 But the identity of the accused has to be proved.
A case where there is no proof of corpus delicti must be distinguished from
another where that is proved. In the absence of the corpus d~licti a confession
alone nMy not suffice to justify conviction.4
---- ------------
I. 1<.1111 Chand t•. Slate of U.P., AIR 1Y57 SC 3111.
2. Keso Ram l'. Stats, ,,I AsSJm, AIR 1978 SC 10%.
J Kashrrura Smgh 11. State ,;,f MP .. AIR 11152 SC 159; Barulhu Kechei ti. State, 1976 Cr LJ 32.~
~- llm,y Singh 1•. St.itc. Cr. App No 106.'i of l\lSO, deoded on 251h September, 1951 (All).
 230 EVIDENCE ACT
A confessional statement made by the accused before a Magistrate is a
good evidence and accused be convicted on the basis of it.1 A confession can
obviously be used against the maker of it and is in itself sufficient to support his
convlction.Z Rajasthan High Court has also held that the confession of an
accused person is substantive evidence and a conviction can be based solely on a
confession.'
If it is found that the confession was made and was free, voluntary and
genuine, there would remain nothing to be done by the prosecution to secure
conviction. If the court finds that it is true that the accused committed the
crime, it means that the accused is guilty and the court has to do nothing but to
record conviction and sentence him. No question of corroboration of confession
arises in a case. Even if there is corroboration the court's finding would still be
the same, e.g., that it is true that the accused committed the crime. If the
finding remains the same it is evident that the corroborative evidence was
quite redundant. Corroborative evidence certainly does not add to the efficacy
of the finding of guilt at all.4
"Normally speaking, it would not be quite safe, as a matter of prudence if
not of Jaw to base a conviction for murder on the confession of the alleged murder
by itself and without more. It would be extremely unsafe to do so when the
confession is open to a good deal of criticism and has been taken in the jail
without adequate reason and when the story of murder as given in the
confession is somewhat hard to believe."5
The above observation was made by the Supreme Court in the case of
retracted confession and therefore it cannot be said to be good law in the case of
a judicial confession not retracted. Moreover in that case the confession
relied upon did not appear to be voluntary and true. Thus it may be submitted
that the view taken by Desai, J., as he then was, in Birey's case is the correct
one.
Now the settled law is that a conviction can be based on confession only if
1t is proved to be voluntary and true." If corroboration is needed it is enough
that the general trend of the confession is substantiated by some evidence
which would tally with the contents of the confession. General corroboration is
enough."
The value of extra-judicial confession.-Extra-judicial confessions are
not usually considered with favour but that does not mean that such a confession
coming from a person who has no reason to state falsely and to whom it is made
in the circumstances which support his statement, should not be behoved."
1. Emperor u. Lal Uaksha, AIR 1945 Lah 43.
2. Sh,mf u. Emperor, AIR 1944 Lah 472.
3. Slat<' c•. B.ilchand, AIR 1960 RaJ IOI.
4. B1r£'y Smgh 11. State•, Cr Appeal No. 106.5 of 1950, decided on 25th September, 1951 (All).
5 RJm Chandra z• State of U.P., AIR 1957 SC 381.
.; D.11"!,h.in 1..il v. State of J. & K., AIR 1'175 SC 1158.
1 Mad, Gani;a u SL.lit- of Orissa, 198'1 Cr L.J 628 (SC) .
8. !om !>ingh 11 St:itc of UP., AIR 1967 SC 152.
.
{S. 24
s. 24) OF THE RE LEV ANCY OF FACI"S 231
TI1e evidence of extra-judicial confession is a weak piece of evidence. 1 The
extra-judicial confession must be received with great care and caution. It c an be
relied upon only when it is dear, consistent and convincing. The court has to
decide whether the person before whom the admission is said to have been
made are trustworthy witnesses. The extra-judicial confession is open to the
danger of mistake due to the misapprehension of the witness before whom the
confession was made, to the misuse of the words, and the failure of the party to
express his own meaning. This is also open to another sort of danger. There being
no record, and there being no sanction behind, it is very easy for the prosecution
to catch-hold of any witness who may come and depose that the accused
admitted his guilt in his presence on some particular time. Due to those reasons
it is very dangerous for courts to base conviction on the sole basis of extra-
judicial confessions. It may be relied upon only when it is very clear and
convincing and the truthfulness of the witness is proved beyond any doubt or
when it has been corroborated by other evidence on the record. It has been very
rightly observed : "The only real difficulty is in the proof of the fact that
an alleged extra-judicial confession has been made. Such a fact is proved
by somebody's testimony. Such testimony is often furnished by paid informers,
treacherous associates, angry victims and overzealous officers of l,1 w.
As regards testimony of these persons the suspicion of the court is aroused
and its caution is stimulated."2 Usually and as a matter of caution courts
require some material corroboration to an extra-judicial confessional statement,
corroboration which connects the accused person with the cruae in
question.3
A confession made before a classmate and ex-schoolmate who also used to
live close to each other, was clear, cogent and appeared to have been made in
the normal course without any pressure, hence was held to have been
unjustifiably discarded by trial Court.!
When the attempt is made to rely upon an extra-judicial confession, t.>very
precaution should be taken to ascertain as exactly as possible the very words
used by the prisoner. Extra-judicial confessions have to be received with gre.1t
care and caution, and when the foundation of the conviction is the confession
alleged to have been made by the accused, there are three things which the
prosecution must establish. First, that ..i confession \/,IS made, secondly. that
evidence of it can be given that is to say that it WdS voluntary, and thirdly,
that it is Intl'. Such a confession must be proved by an independent or
satisfactory ev idcnce.5
In Statr of Karnat11k,1 v. A.B. Nax Jfoj/' there was allegation that the
deceased girl was killed by her father and step-mother in National Park, The
I. St,1lc of l'unJab v. Uhab•w.in Sin~h. AIK 1975 SC :?:">ti; Indir K11nur t•. State of Tripura. l'>N'.! Cr LJ
IJ,
2 1 lawaldar 1• Emperor, AIR 1'132 Oudh )24
J. Uhni;w,~t C,,nJ I'. State of lhhar, AIK IY59 SC ltl; Aneppa t•. St.itc <>f Kanwt.llu, IY7tl Cr LI 462.
4. VU.i~ P.imlura111i Patil v State of Mah.uashtra. AIK :!lOl !,C 3.'\i>2
5. (..;.1y.ipr,1"'1cl 11 St;,tt,, AIR 1957 All ·15'>
t, AIK WtU SC o6i>.
 232 EVIDENCE ACT
alleged extra judicial confession was made by accused during detention in forest
office. There was no mention of said confession in report given to Police nor any
witness present there mentioned about the same confession. Held-This extra
judicial confession cannot be relied on.
An extra-judicial confession, if voluntary, can be relied upon by the court
along with other evidence convicting the accused. The confession is to be proved
like any other fact. The value of the confession depends upon the veracity of
the witness to whom it is made. It is true that the court requires the witness to
give actual words used by the accused as nearly as possible, but it is not an
invariable rule that the court should not accept the evidence, if not the actual
words but the substance were given.1 It is for the court having regard to the
credibility of the witness, his capacity to understand the language in which
the accused made confession to accept the evidence or not. A mere general
statement to the effect that the prisoner had confessed is too uncertain a
foundation to sustain a finding against him.2
In Kislum Lal v. State of Rajasthan,3 it was held by Supreme Court that
before the (extra judicial) confession can be relied on it must be proved that it is
clear and unequivocal. In this case, the alleged confession made by large number
of persons before Panchayat was more in y;rr,e,·al and vague form therefore no
reliance could be placed on such confession.
In State of Karnoiak« v. M.N. Ram Das,4 the extra judicial confession
was made to a stranger which falsely implicated accused. Respondent was
charged of committing murder of his companion at a room in a Lodge. Extra
judicial confession was made by an accused to the witness who was friend of
proprietor of Lodge who had come to stay in the lodge during relevant period.
Factum of compensation was brought to the knowledge of owner of lodge. The
Police soon after came. Conduct of accused committing murder and remaining in
the lodge after incident and immediately relieving this fact to stranger though
not ordinarily consistent with ordinary human conduct, did not necessarily
shake credibility of witness who spoke for such confession. Moreso, it was
corroborated by circumstantial factor and by evidence of other witness who had
no reason to falsely implicate the accused.
In such confessions, the question whether the accused did make the
confession or not is to be considered.5 Usually, as a matter of caution courts
require some material corroboration which connects the accused with the
crime." Evidence about extra-judicial confession is a weak kind of evidence," If
it is not probable it must be rcjected.8 Now the settled law is that the law does
not require that evidence of an extra-judicial confession must be corroborated in
all cases. Where the extra-judicial confession is proved by an independent
I. Mulk ~ .. , r• State of U.P., AIR 1959 SC 'I02; Sele also In rt Ramayee AIR 1960 M,1J. 1117.
2 An>;nu 1•. Stale, 1960 ALJ 211.
3. AIR 1 'J'J9 SC )0(,2 .
~. AIR 2002 SC 3109
5 In re Vcn.-il, AIR 1970 M~J. 291:1.
----- -. 6
., Ram Singh 1> State of U.P., AIR 1967 SC 152; Thrrnmia v. State of Mysor<?, AIR 1971 SC 11171.
Stat~ of Pun~,t, t•. 6ha)'ln Singh, 1975 Cr LJ 282.
8. Jagta r,, Stall! of Haryana, AIR 1974 SC 1545.
[S. 24 s. 24) OF THE RE LEV ANCY OF FACTS 233
witness who bore no animus against accused it may be b=sis of conviction
without corroboration.1 If the court believes the witnesses before whom the
confession is made and if it is proved to be voluntary, conviction can be based on
confession alone.2
The accused was a resident of Kerala. He was a clerk in Cash Office of
Central Railway at Jhansi. One V.S. Radha Krishnan Nair was friend of the
accused. The wife of the accused was seriously ill and she was admitted in a
hospital. A minor operation was performed on her. While the wife of accused
was hospitalised the accused left his two minor children with Nair. After the
minor operation, it was revealed that she had tumour in the uterus and a major
operation which may cost around Rs. 600 was considered necessary. After
consulting with Nair, it was decided that the wife of accused be taken to
Kerala for arranging the major operation. The accused had to pay to the
hospital concerned Rs. 206 in all. He had no money. Somehow arrangement was
made for Rs. 206, the wife was brought to home from hospital. On the way
respondent picked up the two children from the house of Nair. The accused
requested Nair to send his wife to his house to look after his ailing wife. On
27th February, 1973 at 10.00 a.m. Nair went to the house of the accused with
wife and children. They knocked the door but no response. Through the back
door people entered the house and they saw the wife of accused and two
children were lying on the ground and their clothes were besmeared with blood.
They were declared dead by the doctor. On March 1, 1973 at about 7-15 a.m.
Nair went to the home of accused and while they were discussing how the
tragedy occurred in the course of which Nair stated that whoever was
responsible for the murder of such charming dear children would not be forgiven
by God. At that stage the accused started weeping, got up and went near the
Photo of Jesus Christ, muttered something and confessed to Nair in Malayalam
language in the following words : "My wife had fatal disease. I was in trouble
without money. Just now I would have required Rs. 600/- for operation. I was
already debted. I already borrowed Rs. 200 from you and could not get help any
more from others. Therefore I murdered my wife and children." It was argued
that conviction could not be had on the extra-judicial confession. It was held
that the evidence of the witness read as a whole had a ring of truth. The
witness being a friend and a well-wisher of the family of accused there could be
no hesitation in accepting his testimony.3 An unambiguous extra-judicial
confession is admissible in evidence provided it is free from suspicion and
suggestion of its falsity but in case of extra-judicial confession the court has to
be satisfied that it is voluntarily and does not appear to the result of
inducement, threat or promise or was brought about in suspicious circumstances
to circumvent Sections 25 and 26.4
I. Slate uf Rajasthan u. Mangi Lal, 1981 Cr. LJ !IS2 ; Piara Singh v. Stale of Punjab, AIR 1976 SC
227-1 ; Darshan bl 1•. State of J.K., AIR 1975 SC !158; Magher v. State of Punjab, AIR 1975 SC
1320; State of U.P. v. M.K. Anthony, AIR 11185 SC -l8.
2. Magher Singh I!. State, 1\175 Cr LJ I 102; Darshan Lal v. State of J. & K., AIR 1975 SC 8.5$; Piara
Smgh I'. Statl" of Punjab, AIR 1976 SC 2:i.74; State of Rajasthan v. M,mgr Lal, 1981 Cr LJ 852.
3. Slak o] U.l' !'. M.K. Anthony, AIR l\185 SC 48.
4. Kishore Ch,111J 1• State of HP., AIR 1990 SC 2140; Baldro Ra11•. State ol Haryana, 1\l'JO Cr. L.J.
2t>t3 (SC)
234 EVIDENCE ACT
In Salish v. State of Haryana,1 the accused persons were alleged to have
committed assault on the deceased. The appellant, the wife of the deceased,
was present in the room at the time of assault. She made extra-judicial
confession to one of the prosecution witnesses, about conspiracy to engage hired
killers with the assistance of one Ramesh, a week after the occurrence who was
acquitted of giving benefit of doubt. The Court held that the confession was
composite in nature with regard to a conspiracy hatched with the assistance of
Ramesh, to do away with the deceased, it would not be safe to take the same
into consideration and the Court would therefore, proceed to examine regarding
the availability of other sufficient material against the appellant.
Where the accused was alleged to have confessed inflicting injuries to the
deceased before a member of Gram Panchayat who was not an independent
witness, such extra judicial confession was held not to inspire confidence.2
Circumstances to be considered in testing the veracity of extra-
judicial confession.-Before relying on extra-judicial confession, it must be
considered whether the confession was really made. It should also be
considered as to why the accused reposed confidence in the witnesses stating
about the confession. It was alleged that the accused made confession to a
witness who was the widow of one of the conspirators and was helping her
husband in making spears and other weapons. It was held that the confession
was not reliable.3
In Surindar Kumar v. State of Punjab,4 where the accused persons were
alleged to have confessed to a person not related or connected with them, it was
held to be improbable that all the accused confessed at one and the same time.
The person to whom the confession was made did not disclose it to the wife of
the deceased though he was dose to the family of the deceased. Allegation
that he had disclosed the confession to the police officer was not corroborated,
It was held by the Supreme Court that this extra judicial confession was not
trustworthy.
In C.K. Ravindran v. State of Kerala,5 the prosecution witness failed to
reproduce extra judicial confession made to him in exact words or even in the
words as nearly as possible and further his statement showed that he consumed
liquor along with the accused and therefore the accused discussed entire
incident to him. It was held by the Supreme Court that the statements of the
accused could not be said to be voluntary and truthful one. On the other hand, it
was outcome of consumption of liquor by both the witness as well as accused.
Retracted confession-Meaning of .-A retracted confession is a
statement made by an accused person before the trial begins, by which he
admits to have committed the offence, but which he repudiates at the trial.
After the commission of a serious offence some police officer makes
I. AIR 2017 SC 3439 p. 3440. The observations In Palvinder Kaur v. State of Punjab, AIR
354 held to ht' relevant.
2. Viiay Shankar v. State of Haryana, AlR 2015 SC 3685 p. 369~3691.
3. Kanan v. State of Kerala, AIR 1979 SC 1127.
4. AIR 1999 SC 215.
5. AIR 2000 SC 369.
rs. 24 s. 24] OF THE RELEVANCY OF FACTS 235
investigation into the matter, examines witnesses and the accused. If in his
opinion the accused is proved to have committed the offence, he submits a
report (charge-sheet) to a magistrate having jurisdiction in the matter. The
court takes evidence and examines the accused. If during the investigation, the
accused on being examined by the police officer is willing to admit the guilt,
the police officer sends the accused to some magistrate for recording his
statement. The magistrate after being satisfied that the accused is making the
statement voluntarily, takes his statement. If the accused admits in his
statement to have committed the offence, this recorded statement by the
Magistrate may be proved at the trial. When the trial begins the accused on
being asked as to whether he committed the crime, he may say that he did not
commit the crime. The question may again be put to him as to whether he made
statement before a Magistrate during the investigation confessing the guilt. He
may deny to have made the statement at all or he may say that he made that
statement due to undue influence of the police. In this case the confession made
by the accused to the Magistrate before the trial begins, is called retracted
confession.
Value of the retracted confession.-lt is unsafe to base the conviction
on a retracted confession unless it is corroborated by trustworthy evidence.
There is no definite law that a retracted confession cannot be the basis of the
conviction but it has been laid down as a rule of practice and prudence, not to
rely on retracted confessions, unless corroborated. Courts have convicted persons
on retracted confessions when they have been of the opinion that the confession
when it was made was voluntary or consistent and true but the real rule of law
about the retracted confession is "where the retracted confession is the sole
evidence it can be of little value specially when made during the competition
for a pardon which sometimes occurs where a number of persons are suspected of
an offence." It very often happens that a number of persons are accused of
murder or dacoity or of any other offence. The person incharge of the
investigation falling on direct and independent evidence chooses some of the
accused to admit the guilt on the promise of making him a witness in the case.
Instances are not rare when a young man is made to admit some guilt due to
pressure or fear. The best proposition of law about retracted confession is found
in the following passage : "I always suspect these confessions which are
supposed to be the off-spring of penitence and remorse and which are
nevertheless repudiated by the prisoners ,1t the trial. It is remarkable that it is
very rare occurrence for evidence of confession to be given when the proof of the
prisoner's guilt is otherwise clear and satisfactory, but when it is not clear and
satisfactory the prisoner is not unfrequently alleged to have been seized with a
desire born of penitence and remorse to supplement it with confession, a desire
which vanishes as soon as he appears in a court of justice." It is really very
strange for an accused to confess before the investigating authority that he has
committed a murder. That statement, if made without any pressure, fear or
1952 SC hope must be either due to the remorse or godly fear or it is so because the
accused is as truthful as Harish Chandra and Yudhisthir. If that is so, and if
the statement was made because the witness was remorseful or because he made
the confession due to fear of Cod or because he was truthtful, there is no reason
236 EVIDENCE ACT
as to why he resiles from that statement when he is put to trial. Due to this
suspicion a retracted confession can always be suspected to have been extracted
by pressure, undue influence, inducement or threat by some person in authority.
It cannot in many cases be said to be voluntary and so as laid down in the above
passage from the judgement of Queen's Bench Division, it is always wise not to
convict an accused on the sole testimony of the retracted confession and in 99.9
recurring cases retracted confession cannot form the basis of conviction. A judge
can convict an accused on the sole testimony of retracted confession only when he
is fully satisfied about the truthfulness of the statement and entertains no doubt
about its being voluntary. The general rule as mentioned above and supported by
the opinions of the High Courts in India and also the Privy Council, had been
that it is always unsafe to base the conviction on the sole testimony of retracted
confession. Apart from general rule of prudence where the circumstances of a
case cast a suspicion on the genuineness of confession, corroboration is needed.'
In State of Tamil Nadu v. Kutty alias Laxrni Narsimhan,2 the Supreme
Court said that, it is not law that once the confession was retracted the Court
should presume that confession is tainted. Non retracted confession is rarity in
criminal cases. To retract from confession is right of confessor and all the
accused against whom the confession were proved by prosecution have
invariably adopted that right. It would be injudicious to jettison a judicial
confession on mere premise that its maker has retracted from it. The court has
duty to evaluate the confession by looking all the aspects. The twin test is to
ascertain whether confession is voluntary and that once the test is found
positive, the next endeavour is to see whether there is any other reason which
stand in the way of acting on it. Even ror that retraction is not ground to throw
confession over-board.
The settled view of the Supreme Court of India is that as a matter of
prudence and caution, which has sanctified itself into a rule of law, a retracted
confession cannot be made solely the basis of conviction unless the same is
corroborated, but it does not necessarily mean that each and every circumstance
mentioned in the confession regarding the complicity of the accused must be
separately and independently corroborated, nor is it essential that the
corroboration must come from the circumstances discovered after the confession
was made.3 It would be sufficient that the general trend of the confession is
substantiated by some evidence which would tally with what is contained in
the confession. In this connection it would be profitable to compare a retracted
confession with the evidence of an approver.
In the case of :m approver. on hie; own showing, he is a depraved and
debased individual who after having taken part in the crime wants to
exculpate himself and tries to fasten the liability on another. In such
circumstances, it is absolutely necessary that what he has deposed must be
I. Muthu Swami v State of Madras, AIR 1954 SC 4 : In re Karun Karan, 1975 Cr LJ 798 ; Lank
Chand t• State, 1988 Cr LJ 24; Slate of Kerala v. Amnum, 19118 Cr LJ 107 (Fil).
2 AIR 2001 SC 2778.
3. State ol Maharashtra t•. P.K. Pathak, AIR 1980 SC 1224; State of Delhi v. Vijai Pal, AIR 1980 SC
lb2l.
[S. 24 s. 24) OF THE RELEVANCY OF FACTS 237
corroborated in material particulars. A person who makes a confession stands on
a different footing. In the case of a retracted confession one has only to find out
whether the earlier statement, which was the result of repentance, remorse
and contrition was voluntary and true or not and it is with that object that
corroboration is sought for. In the case of the person confessing who has resiled
from his statement, general corroboration is sufficient, while an accomplice's
evidence should be corroborated in material particulars. In addition the court
must feel that the reasons given for the retraction in the case of confession are
false.
Subramania Gaunda was tried for murder. At the time of the investigation
he made a confession giving full details as to the manner in which he
committed the murder. From him a bloodstained drawer and a banian worn by
him were seized. On the information of the accused a bloodstained bed-sheet
\, as recovered. At the trial, the accused denied to have made the confession
voluntarily. 11,e confession was held to be voluntary, the reason for retraction
untrue. On the above finding and also in absence of any other evidence, the
evidence of blood on the drawer, banian and bed-sheet were held to corroborate
the confession and his conviction was upheld.1
In law it is always open to the court to convict an accused on his confession
itself though he has retracted it at a later stage. Nevertheless usually courts
require some corroboration to the confessional statement before convicting an
accused person on such a statement. What amount of corroboration is necessary
in such a case would always be a question of fact to be determined in the Light of
the circumstances of the case.2
Even if a confession is inculpatory, corroboration is necessary if the
confession is retracted.3 If the retracted confession is generally corroborated by
circumstantial evidence it can be acted upon.4
The rule of prudence requires that a confession must be corroborated
before conviction can be based upon it. But the rule of prudence does not
require that each and every circumstance mentioned in the confession with
regard to the participation of the accused person in the crime must be
separately and independently corroborated, nor is it essential that the
corroboration must come from the fact and circumstances discovered after the
confession was made.
If the rule required that each and every circumstances mentioned in the
confessional statement must be separately and independently corroborated,
then the rule would be meaningless inasmuch as the independent evidence itself
would afford sufficient basis for conviction and it would be unnecessary to call
the confession in aid.
I. Subramania Caunda 11. State of Madras, AIR 1958 SC 66.
2. Sarvan Smgh 11. State ot Punjab, AIR 1957 SC 637.
3. l'.K. Singh 11. State of Manipur, AIR 1951, SC 9 ; Darbari v. State, AIR 1970 Onssa 54 ; Panu u.
Statu, 19711 Cr LJ t,90 ; Abdul Chanl 1,. State of U.P., 1973 Cr LJ 280 ; Shankaria v. Slate of
Rajasthan, i\lR 1',178 SC 1218.
4. Henry w.,st Huller v. State of Assam, \'i85 Cr LJ 1079.
238 EVIDENCE ACT .(S. 24
Balbir Singh v. State of Punjab.1-Balbir Singh and one JJgir Singh were
tried with having murdered one Mst. Chinti and her two sons. Mst. Chinti was
the wife of one Sharda Singh. About a fortnight prior to the date of occurrence
Sharda Singh went away in search of work. The prosecution case was that on
that night Mst. Chinti and her two sons were sleeping in the house. Balbir
Singh and Jagir Singh effected an entrance into the house through an opening.
Balbir Singh strangulated Mst. Chin ti by twisting her 'dupatia' around her
neck ; when she almost strangled to death, Balbir committed rape and then
made sure that Mst. Chinti was really dead. The trunks and the boxes kept in
the house were ransacked and some gold and silver ornaments were removed.
The two boys of Mst. Chinti got up, they were also killed by means of kirpan.
After the murder Balbir left the village at about 4 or 5 a.m. and did not come
back till the night of next day. The only evidence in the case was (a) the
confession alleged to have been made by Balbir Singh, (b) the identity of the
cliaddar, (c) the recovery of blood-stained shirt from the person of Balbir
Singh, and (d) the recovery of gold and silver ornaments on the information of
Balbir Singh. These materials were held to be sufficient corroboration of the
confession ; it was observed, "as a matter of fact, three circumstances found
against the appellant, namely, (1) recovery of blood-stained chaddar from the
room where the murder took place, (2) the recovery of the gold rings which
belonged to the deceased woman, and (3) the recovery of a blood-stained shirt
from the person of the appellant, were all circumstances, which if believed
would connect the appellant with the crime.
Hem Raj v. State of Ajmer.2-0ne Hem Raj was tried and convicted for
the murder of Mangli Lal. On 16th July, 1952, Mangli Lal, a shop-keeper of
Vijai Nagar received a letter. The letter purported to have been sent by
"Bhayanker Daku Dal" demanding payment of Rs. 5,000 at 6.30 p.m. on 17th of
July and saying that, "if you do not pay or if you inform the police you shall be
shot dead." The letter was sent to the police department but no action was
taken. On the 17th of July at about 9-30 p.m. when Mangli Lal was sitting at his
shop two persons came from the neighbouring street. One was dressed in Khaki
suit and the other in blue. They demanded money from Mangli Lal. The man in
Khaki entered the shop and took out the gun hanging on a peg. The person
dressed in blue fired from pistol and shot Mangli Lal dead.
The only evidence in the case was (a) the confession of the accused, (b)
certain articles were recovered from Hemraj's house, a hat, a mask, a bush shirt
and a pistol. These recoveries were held to be good independent evidence in
corroboratior, of the confession. Certain other articles were recovered on the
information of Hernraj. The gun and the gun-case were also recovered. It was
contended that the recovery of clothes and delivery of arms and ammunition by
Hernraj to the police had been made before the 30th of July when the confession
was made and that the facts within the knowledge of the police before the
confession was made, could not be used as evidence corroborating the confession.
It was held that a confession can be made even during a trial and the evidence
1 AIR 1Y57 SC 216
2. AJR 1954 SC Mi2
s. 251 OF THE RE LEV ANCY OF FACTS 239
already recorded may well be used to corroborate it. It may be made in the
Court of the committing magistrate and the material already in possession of
the police may well be used for purposes of corroboration. The contention that a
confession can only be corroborated by evidence discovered by the police after a
confession had been made and any material that is already in the possession
cannot be put in evidence in support of it is not valid.
In Sakharam v. State of Maharastra,1 it was held by the Supreme Court.
It is well settled now that the retracted extra-judicial confession though a
piece of evidence on which reliance can· be placed but the same has to be
corroborated by independent evidence. That apart, the court must be satisfied
that the confession alleged to have been made was true and voluntary one and
in judging the same the conduct of the PW and circumstances which impelled
the accused to make such statement to PW should be above suspicion. Unless,
the extra-judicial confession itself is true, voluntary and reliable the Court
cannot proceed further to examine whether there is any other independent
corroboration evidence.
Proof of extra-judicial confession.-Extra-judicial confPssion may be in
writing or oral. In the case of a written confession the writing itself will be the
best evidence but if it is not available or is lost, the person before whom the
confession was made, be produced to depose that the accused made the
statement before him.
When the confession has not been recorded, person or persons before whom
the accused made the statement should be produced before the court and they
should prove the statement made by the accused. M is murdered. Before any
person is named as the murderer X and Y were gossiping in a drawing room of X.
During the course of the conversation Y said to X 'I murdered M because he had
molested my mistress'. Afterwards Y is tried for the murder of M. At the trial X
may be produced as a witness and he may depose that Y said to him : "I
murdered M because he had molested my mistress".
S ECTION 25.-Confession to police officer not to be proved.-N o
confession made to a police officer, shall be proved as against a
person accused of any offence.
COMMENTS
Principle.-The principle upon which the rejection of confession made to
a police officer or confession made by the accused while in the custody of such
officer is founded is that a confession thus made or obtained is untrustworthy.
The broad ground for not admitting confessions made to a police officer is to
avoid the danger of admitting a false confession.2 A police officer, on receiving
information of the occurrence of a dacoity or other offence of a serious character,
failing to discover the real culprits may endeavour to secure himself against
any charge of neglect by implicating persons who are innocent. In order to secure
conviction in a case he may put the person so arrested to severe torture and make
I. AIR l'J'J.I SC 159.J.
2. Paulose v. Statv uf Kerala, 1990 Cr LJ 108 Ker.
240 EVIDENCE ACT (S. 25
him to confess a guilt without having committed it and when such steps are
taken there is impunity for the real offender and great encouragement to crime.
Section 25 lays down that no confession made to a police officer shall be proved
as against person accused of an offence.
In a trial for murder the prosecution proved the panchnama prepared by
the police the day the murder was committed and signed not only by the
Panches but purporting to have been signed also by the accused persons. That
document was a record which was a complete confession of the crime from the
beginning to the end, by all the accused persons. It was held that this was
highly irregular as the provisions of Section 25 Evidence Act, were not
observed.'
Confession before or after the investigation.-This section makes no
distinction between a confession made before investigation and a confession
made after investigation. It is confession to a police officer made at any time
which is not admissible.2
A person accused of any offence.-The expression 'person accused of
any offence' in Section 25 is descriptive which means the person, against whom
evidence is sought to be led in criminal proceeding, whether or not he was so
when he made the statement.3
The test which has to be applied in deciding whether Section 25 of the
Evidence Act applies, is the position of the person (making the confession) at
the time when it is proposed to prove the confession, not his (accused) position
at the time when he is alleged to have made it. A confession, therefore, made
to a police officer by a person when he is not accused of any offence is
inadmissible in evidence against him when he is accused of an offence. A
murder was committed on a dark night. Nobody was named as the murderer.
The sub-inspector of police went to the locality to investigate. While he was
investigating one B came to him and said that it was he who committed the
murder. After that he was arrested and became accused in the case and was
tried for that. Though the confession was made by B to the police officer when
he was not an accused, his confession proved was held not admissible at the
trial because at the time of proving the confession he had become an accused.4
Statement made to a police officer by one accused is inadmissible against a
co-accused.5
Confession is a source of information.-ln Pawan Kumar v. State of
U.P.,6 the two accused disclosed the names of the co-accused persons at whose
1. Narain Rao fl. State of Andhra Pradesh, AIR 1957 SC 737.
2. Pakala Narain Swami fl, Emperor, AIR 1939 PC 47; l-lusanlya v. Emperor, AIR 1936 Lah 380.
3. Pakala Narain Swamy fl. Emperor, AIR 1939 PC 47; State of U. P. v. Deoman Upadhyay, AIR
1960 SC 1125; Devi Ram fl. State, AIR 1962 Pun], 70; Nagesia 11. State, AIR 1966 SC 119; Padarn
Pradhan fl. State, 1982 Cr LJ 534.
4. State of U.P. v. Deoman Upadhyay, AIR 1960 SC 1125.
S. Nagu ]halla v. Emperor, 36 IC 480.
6. AIR 2015 SC 2050 p. 2059.
s. 25) OF TiiE RELEVANCY OF FACTS 241
instance various incriminating materials including pistols, cartridges, bullets,
blood-stained articles were recovered. They denied their role without proper
explanation as to the knowledge about those incriminating material. The Court
held that the Courts below were justified to presume the involvement of the co-
accused persons as the confession by the two accused was not the basis for the
Courts below to convict the accused but it was only a source of information to put
the criminal law in motion. The accused could not take shelter under Section 25
of the Evidence Act.
Confession only excluded.-It must be borne in mind that Section 25 of
the Evidence Act excludes only confessions. All the statements made to the
police officers are not excluded. The statements that do not amount to
confessions are not excluded by Section 25 of the Evidence Act and can be brought
on record and proved against any accused.1 In the instant case, here was a fight
between two parties in which death was caused. Several persons of one party
drove several cattle belonging to the deceased to the cattle-pond. Two of them
made a statement to the police that the cattle of the deceased damaged their
crops. They were bringing the cattle to the pond, the deceased interefered with
the carrying of the cattle and so there was fight. These persons were
afterwards charged with murder of the man who had died in the fight. The
statement referred to above was tried to be proved by the prosecution. An
objection was raised by the accused that the statement could not be proved as it
was excluded by Section 25 of the Evidence Act. The Court held that the
statement did not amount to confession inasmuch as it was only an exculpatory
statement of the circumstances, under which the cattle had been seized and was
an admission of guilt but rather in the nature of a complaint against the
deceased was not therefore inadmissible in evidence. Consequently it was
proved against the accused.
The statement which is not confession cannot be excluded by the provisions
of Section 25. Where this statement happens to have been made to the police
prior to the commencement of the investigation of the case it cannot possibly be
hit by Section 162 of the Criminal Procedure Code and therefore is admissible.2
The Supreme Court also had endorsed the same view. Where the person, who
lodged the first information report, regarding the occurrence of a murder is
subsequently himself an accused and the report lodged by him is not a confession
but is an admission by him of certain facts which have a bearing on the question
to be determined by the court, the first information report is admissible to prove
against him as his admission which are relevant under Section 21 and the fact
of reporting as conduct.3
The corpse of a boy was recovered from a well. The accused lodged <1 report
at the police station stating therein that on peeping into the well he found the
boy lying dead in the well. Afterwards, the accused was tried for the murder of
Guiab. It was held that the report was not a confession rather it was only
1. Ialal v. Emperor, !!1 JC 347; Safdar v. Emperor, AIR 1941 Lah. 82.
2. Shital Chandra 11. Stale, AIR 1956 Cal 82; State 11. Mohd. Husam, AIR 1959 Born. S34 ; Jasoda
Halder v Saitendranath, AIR 1957 Cal 37.
3. Nam Ali v. State of U J'., AIR 1957 SC 366.
242 EVIDENCE ACT
admission of certain facts Which had bearing on the question to bl:' determined
by the court.1 In A. Nagesia v. State of Bihar,2 a murder was committed in a
compartment of a running train. The accused stated that he also was travelling
in the same compartment. A stranger entered the compartment and began to
assault the deceased, he (the accused), tried to save the deceased bu· · .uld not.
The statement was not a confession so it was admitted in evidence.3
The accused denied to have committed the murder but he stated that the
deceased had caused injury on his toe. The statement WJS held to be relevant.I
A confession made to a police officer in any circumstance is not relevant.5 It
often happens that a person after making the report in a police station becomes
an accused. If such report amounts to a confession, it would not be relevant6 ; if it
does not amount to confession, but is only admission of certain facts, it is
relevant." If it amounts neither to confession nor admission it would not be
relevant.
Made to police officer.-ln Section 25 the criterion for excluding the
confession is the answer to the question to whom the confession was made. If the
answer is that it was made to police officer the law says that such confession
shall be absolutely excluded from evidence, the person to whom it was made is
not to be relied on for proving such a confession and he is moreover suspected of
employing coercion to obtain confession. Before a confession is excluded it must
be shown to have been made to some police officer. A confession which is not
made to police officer will not be exduded. The statement to be excluded must be
made to the police officer. The mere presence of the police officer will not make
the statement irrelevant if it was made to some other person. A confession made
to the village people in the course of inquiry about the deceased even if made in
presence of the chaukidar would not be inadmissible under Section 25 as it was
not made to the chaukidar.8
The confession was made in F.I.R. This cannot be used for any purpose in
favour of prosecution and against the accused. However, the admission in
favour of accused can be taken into account to examine whether the case falls
under exception 1 to Section 300 I.P.C. particularly when there is no evidence
disclosing as to how the quarrel ensued and attack took place.9
The accused Sitaram wrote a letter as follows :
"My dear Darogaji, I have myself committed the murder of my wife .
· -Smt. Sindora Rani. Nobody else perpetrated this crime. I would appear
myself after 20 or 25 days and then will state everything. One day the
law will extend its hands and will get me arrested. I would surrender
myself."____ (Signed) Sitaram.
1. Faddi v. State of M.P., AJR 1964. SC 1856.
2. AIR 1%6 SC 119.
3. Nishikant v. Slate of Bi.har, AIR 1969 SC 422.
4 K. P.. dyach, v. State of Tamil Nadu, AJR 1972 SC 66.
5. K. Padyaclu v. Stat!.! ot Tamu Nadu, AIR 1972 SC 66.
6. A. Nagcs1a v. State of Bihar, AJR 1Yb6 SC 119; K.H. Amulak v. State o( Gujarat, AIR 1972 SC 922,
7. FaJ~i v. State of M.P., AIR 1%4 SC 1850.
8. Mst. Mlharam u. Emperor, AIR 1948 All. 7; Chunru v. Emperor, AIR 1934 All. 132: JagJil Singh
v. State, AIR 1956 Kutch I; Sn Ol,vi v. State, 1974 CLJ 126,
9 Murli ah~s Denny v. State of Raj.isthan, AIR 1994 SC 610.
[S. 25
s. 25) OF Tl IE RELEVANCY OF FACT'S 243
-- .. ·-- -This letter was kept near-the dead.body.of.Sindora.and. found by the S.I. It
was held to be admissible.'
Police officers-Who are.-Section 25 of the Evidence Act provides a
healthy protection (Security). This section should not be interpreted in narrow
and technical sense but it should be understood in popular and wide
perspective. At the same time its interpretation should not be made in such a
wide sense that those persons should be included in as police officer who had
been given some powers of Police Officer.
--·- ---
The important quality (feature) of a Police Officer is that he must not
only have power to make investigation of crime but to file a report against
criminal and to have the power to prosecute the criminal. Unless and until a
person has power to make investigation and frame charge against accused under
Section 173 of Cr. P. C., he cannot be called a Police Officer within the meaning
of Section 25 of Evidence Act. Under Section 53 of Narcotic Drugs and
Psycotropic Substance Act 1985, if some person, other than incharge of Police
Station, is conferred some powers of officer of Police Station, he has no power to
exercise all the powers granted under Chapter XII of Cr. P. C. He has neither
power to file report nor has he power to frame charge under Section 173 of Cr. P.
C. Thus he is not police officer within the meaning of Section 25 of Evidence
Act.2 The primary test for determining whether an officer (not belonging to
police force) is a police officer is whether the officer concerned under Special
Act, has been conferred upon all the powers of investigation on offences
including the power to initiate prosecution by submitting charge-sheet under
Chapter XV of Criminal Procedure Code. In order to bring him within the
purview of 'police officer' for the purpose of Section 25 of Evidence Act, it is not
enough to show that he exercises some or even many of the powers of a police
officer conducting investigation under Criminal Procedure Code.3
Confession before an officer under Exercise Act.-In Abdul Ri1shid
v. State of Bilrar,4 the confession was made by an accused to Superintendent of
Excise under provisions of Bihar and Orissa Excise Act. The Supreme Court
held that the confessional statement made to Superintendent of Excise was
inadmissible because excise officer was police officer under Section 25 of
Evidence Act. Conviction, based only on the f,1ct that accused was found
together with co-accused from whom the offending article was received and on
basis of confession of accused, the conviction W<lS liable to be set aside.
Confession before an officer under Customs Act, etc.-Custom
Officer, Forest Officer in Madras. Prohibition Sub-Inspector in Madras. Mukhia
arc not Police Officer, Choukidar, and Excise Officer are not Police Officers.5
l. Sitaram !I Sl,11,• of u.r., AIR "ll)j,t, SC 111()(,.
2. ,,f
kaJ Kumar Karwal 1•. Union tndi.1, AIR 1991 SC -15.
3. O.il KishJ11 !•. Stale of l'vfah;ir,1'htra, AIR 19111 SC 379.
4 AIR 2001 S( 2~~2
5. Ballahabdas !•. Collector ,,f Cusl,1111, AIR llJt>.'i SC ,l~J; St.it., of Mabarashtra v I'. K. Pathak, AIR
191\ll SC 122-1, £:. C. Richardt'. Forest Officer, AIR 19!10 ~- 31 ; In re Snruwas N,1rsh1mma, AIR
1955 NUC nXt,; Ram Charan t'. Stale, AIR 11135 All. S.N; Deokmaudan t•. Emp,.-n•r, AIR l'lJo All.
753; RJm Ja1,wJl "· Stat,• oi ll1h.>r, AJR lll!H SC 8:?~
 2H EVIDENCE ACT [S. 25
Confession before an officer of Reserve Police.-In State of Gujarat
v. Anirudh Singh arid Others,1 the Reserve Police Officer was on duty at the
time of flag hoisting on the independence day and at the end of the function the
deceased was done to death by shooting. The fact that he remained on duty till
in the evening until D.0.5.P. has come and started investigation and thereafter
he left the place would not be sufficient to term him as investigating as he was
not a police officer, but only witness to the occurrence.
A Senior reserve police officer (Officer of RPF) appointed under the State ,
Reserve Police Force Act, though he is police officer under the Bombay Police
Act and officer in charge of a police station, he is incharge only for the purpose
of maintaining law and order and tranquillity in society and the power of
investigation envisaged in Chapter XII of Cr.P.C. have not been invested with
him. Section 25 would not get attracted in regard to confession made by accused
to him.
Regarding the contention that the accused will not be in position to
distinguish as lo who is or who is not police officer invested with the power of
investigation but will assume the person in uniform to be police officer,
therefore all the officer performing the police duty may be required to be
treated to be police officers within the meaning of Section 25 of Evidence Act,
the Supreme Court held-Though this argument is prima facie attractive, at it
_ is difficult to give acceptance to the same.
Confession before an officer under N. D. P. S. Act.-A confession
made before an officer under Narcotic Drugs and Psychotropic Substances Act,
1985 who is an officer in the Department of Revenue Intelligence is not hit by
Section 25 of The Evidence Act but such a confession must be subject to closer
scrutiny than a confession made to a private person or official having no
investigating powers under the Act.2
An officer vested with the powers of an officer-in-charge of a police
station under Section 53 of the N. D. P. S. Act is not a Police Officer within the
meaning of Section 25 of The Evidence Act. An statement made under Section 67
of the N. D. P. S. Act is not the same as a statement made under Section 161 of
the Cr. P. C. The statement made under Section 67 of the N. D. P. S. Act is
allowed to be used as a confession against the person making it and excludes it
from the operation of Sections 24 to 27 of the Evidence Act. Conviction can be
based on it when it is corroborated by other evidence.3
The consent statement was given by the accused under Section 50 of NDPS
Act for being searched by the Police Inspector and on being searched, 1 Kg and
750 gram opium was recovered from his custody. The consent statement was held
to be admissible and the bar under Section 25 was held not to apply. No
confession was made in this case through the consent given by the appellant
with regard to any of the offence with which he was subsequently charged.4
I. AIR Im SC 2780.
2. Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thrruvanathapuram, AIR 2007
SC 794 at pp. 7%-797; Raj Kumar v. Union of India, AIR l'f.11 SC 45.
3. l<.1nha1ya!~ t•. Union of India, AIR 200!1 SC 1044 at p. 1052.
-1. la.mail S111gh v. State of Punjab, AlR 2011 SC 'Jb4 at p. 9tfJ.
s. 25] OF THE RELEVANCY OF FACI"S 245
Motive, etc. in confessional statement.-A confession may consist of
several parts which may reveal not only the actual commission of the crime but
also the motive, the preparation, the opportunity, the provocation, the
weapon used, the intention, the concealment of the weapons and the subsequent
conduct of the accused. If the confession is tainted, the taint attaches to each
part of it. It is not permissible in Jaw to separate one part and to admit it in
evidence as non-confessional statement. Each part discloses some incriminatory
fact, i.e. some fact which by itself or along with another suggests the inference
that the accused committed the crime. If a statement contains an admission of
an offence not only that admission but also every other admission of an
incriminating facts contained in the statement in part to the confession. If proof
of such confession is excluded by Sections 24, 25 and 26 the entire confessional
statement in all its parts including the admissions of minor incriminating facts
has also to be excluded.
N made a report in the police station as "My aunt gave her property to
her daughter X, quarrels have been occurring among us. Today in the morning. I
found Somra (son-in-law of my aunt) grazing cattle. I dealt him a Tanga blow.
He died. Then I came to the field where Ghamni (daughter of my aunt) was
weeding grass. I killed her. Thereafter, I went to the house of my aunt. I struck
her on head. She died. Near her was Somra's son. I killed him also. I finished
the life of my aunt so that no one could take share in her properties. My aunt
had all along been quarrelling like a fool." All the dead bodies and the Tanga
with which I have killed them are lying where I have concealed them. I can
point them out."
All these were held to be inadmissible except the fact that the accused
went to the police station and made the report. Then the facts leading to
discovery were made admissible under Section 27 of the Act.1
The accused made a report to the effect that he killed his wife as she was
a woman of bad character, all was held to be inadmissible.2
Apart from any technical meaning occurring in any particular act, in more
comprehensive and popular meaning, the expression "police-officer" means
other than a Magistrate whose duty is to prevent and detect crime, the latter
duty involving the duty of holding investigations. It is in this sense that the
term "police-officer", should be read in construing Section 25 of the Indian
Evidence Act. It includes Excise Officers exercising ~owers of detection and
investigation of crimes committed against excise laws. A confession, therefore,
made to a Deputy Commissioner of Police was held to be inadrnissible.! ln order
to determine whether a person is the "Police Officer" or not, the material thing
to consider would be, not the name given to him nor the colour of the uniform he
1~ required to wear, but his functions, powers and duties.5 The following persons
arc "Police Officers" within the meaning of this section-Police Patel,
A. N,1gcs1o111. State of Bihar, AIR 1%0 SC-1 l'J.
2 Copel 1·. State. 1'177 SCI 35!>.
J. Auun Shanf 11 Emperor, ILR 61 Cal. b07; Raja Ram v. State of Bihar, AIR 1964 SC 828
4. R. 1• I lurn Boll. ILR I Cal. 207.
5. Public Prosecutor 11. Paramasivan, AIR 19SJ Mad. 917.
 EVIDENCE ACT
Bombay, 1 Police Sub-Inspector, Police-Constable, Police-Head Constable and
Clwukidar.2 Custom Officers are not police officers."3
Cannot be proved against the accused.-The prohibition contained
in this section applies only to confessions which are to be proved as against the
accused that is in support of the prosecution case, and does not apply to
statement on which the accused himself wishes rely for his defence. In short
the confession made by an accused to a police officer cannot be utilised by the
prosecution but it can be used by the accused for his defence. One Hassan was
charged with murder of Ata Mohommad. Just after the occurrence Hassan made
a report. In this report he admitted that he murdered Ata but he mentioned
certain facts that mitigated the offence. At the trial, the accused tried to prove
the report. The trial court disallowed this evidence holding that it was
excluded by Section 25, Evidence Act. In appeal the Sindh High Court held-
The prohibition contained in Section 25 can be treated as applying only to
confessions which are to be proved as against the accused, that is, in support of
the prosecution case, and cannot apply to statements on which the accused
himself wishes to rely in connection either with his conviction or his sentence.I
Confession of one guilt during the inquiry of another.-The
confession under this section need not be confession of the crime which the police
is at the moment investigating. In course of investigation of one case, a man may
confess to have committed another offence. TI1at confession too is excluded under
Section 25, Evidence Act. Suppose A is accused of a dacoity committed at the
house of Z at Allahabad. During the inquiry of this case, A makes a statement
to the Sub-Inspector making the inquiry that he took part in dacoity committed
at Banaras. This statement too is excluded under Section 25 of Evidence Act. The
terms of Section 25 do not limit its applicability only to confession of offences
with which accused was charged. This section applies equally to confession of
offences not under investigation.5
In civil cases.- Statement made to a police officer cannot be admissible
as an evidence of confession of guilt in a criminal case. But a statement made
before a police officer can be proved as an admission in a civil case.
It has been held by Supreme Court in Commissioner of Police, New Delhi
v. Nandan Singh,6 that the Sections 25 and 26 operate in different fields. These
sections are not applicable to disciplinary or departmental proceedings.
SECTION 26.-Confession by accused while in custody of police not
to be proved against him.-No confession made by any person
whilst he is in the custody of a police officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such
person.
I. R. 1·. Bhim, 17 llom. ~85; Darosa R. v. Pancham, 4 All. 198; Chaukidar Dcoki Nandan v.
Emperor. AIR 1942 Lah. 37.
2 Hasain 11 Emperor, AIR 19.t.2 Lah. 37.
3. Vallabh Das t'. Collector, AJR 1%5 SC 431.
4. Ah Cauhar 1•. Emperor, AIR 1941 SinJh 134.
5. In re Seshampam, AIR 1937 Mad. 209.
6 (20061 .a sec 2b5.
[S. 26
s. 26) OF THE RELEVANCY OF FACTS 247
Explanation.-In this section "Magistrate" does not include the Head
of a village discharging magisterial functions in the Presidency of Fort St.
George or elsewhere, unless such Headman is a Magistrate exercising the
powers of Magistrare under the Code of Criminal Procedure, 1882.
COMMENTS
Object.-The object of Section 26 of the Evidence Act is to prevent the
abuse of their powers by the police, and hence confessions made by accused
persons while in custody of police cannot be proved against them unless made in
presence of a Magistrate. The custody of a police officer provides easy
opportunity of coercion for extorting confession obtained from accused persons
through any undue influence being received in evidence against them.
Confession of an accused in police custody to any one else.-
Section 26 provides that a confession which is made in the custody of a police
officer cannot be proved against him. Unless it is made before a magistrate.!
In Kishore Chand v. State of Himacnal Pradesh,2 the extra judicial
confession was made to Pradhan who was accompanied by Police (enquiry)
Officer. The only inference which could be drawn from the circumstance of the
case is that the confession was made at the time when the accused was in the
custody of Police and it could not be proved against the accused. It could not be
believed that, when a Police Officer had seen the accused with deceased at
last occasion, he would not take the accused in the custody.
Section 25 deals with the confessions made to some police officers, but
Section 26 has always been taken to apply to confessions made to some person,
other than police officer. "The present section deals with confession made in
presence of a police officer who has the custody of an accused, i.e., of a police
officer who is concerned more or less in the investigation of the case ; and those
confessions are absolutely excluded whether made to any police officer or to any
other person, unless made in the immediate presence of a Magistrate. The
proper construction of Sections 25 and 26 is one which excludes confessions to a
police officer under any circumstances or to any one else, while the person
making it is in a position to be influenced by a police officer unless the free and
voluntary nature of the confession is secured by its being made in the immediate
presence of a Magistrate, in which case the confessing person has an
opportunity of making a statement uncontrolled by any fear of police.3
The criterion adopted in Section 26 for excluding confession is as to what
were circumstances when the confession was made. If the answer is that the
confession was made whilst the accused was in the custody of a police officer,
the law lays down that such confession shall be excluded from evidence unless
it was made in the immediate presence of a Magistrate.
Police custody.-Having seen that a confession made by a person, in
police custody to any person other than a Magistrate is excluded from evidence,
1. Klshore Chand v. State of Himachal Pradesh, AIR 1990 SC 21-10.
2. ALRI990SC2l40.
3. Bishwar.ath v. Dhapu Debi, AIR 1950 Cal. 494; Mahabir v. Stole of Bihar, AIR 1972 SC llll.
248 EVIDENCE ACT
il becomes necessary to know what is a police custody? The word 'custody' is
used here in wide sense. A policeman may lay his hand on a person, hand-cuff
him or tie his waist with a rope and may take him with him. Again a police
officer may not even touch a person but may keep such a control over him that
the person so controlled cannot go any way he likes. His movement is in the
control of the police officer. A police officer comes to A and asks him to follow
to the police station as he is wanted in connection with a dacoity case. A
follows him. He is in custody of the police officer. Again ·a police officer who
has taken some persons in his custody may leave him away from him for a short
time. Where a chaukidar arrests B and starts with him to the police station. In
the way, he leaves the arrested person with some villagers and goes to some
neighbouring village for some purpose. In this case too the police custody is
intact.1 The police custody in the real sense commences from the time where the
movements of the accused are restricted or controlled and is direct or indirect
under police surveillance.2
Th us it is settled that "The custody of a police officer for the purposes of
Section 26, Evidence Act, is not mere physical custody. A person may be in
custody of a police officer though the other may not be physically in possession
of the person of the accused making the confession. There must be two things in
order to constitute a custody. Firstly, there miv ; ~'e some control imposed upon
the movement of the confessioner, he may not be at liberty to go any way he
likes, secondly such control must be imposed by some police officer indirectly.
The crucial test is whether at the time when a person makes a confession he is a
free man or his movements are controlled by the police by themselves or
through some other agency employed by them for the purpose of securing such
confession. The word 'custody' in this and the following section does not mean
formal custody but includes such state of affairs in which the accused can be
f
said to have come into the hands of a olice officer, or can be said to have been
some sort of surveillance or restriction.
In R. v. Lester,4 the accused was being taken in a tonga by a police
constable. In the absence of constable, the accused confessed to the tanga-driver
that he had committed the crime. The confession was held to be in police
custody as the accused was in the custody of constable and it made no difference
of his temporary absence. Where a woman, charged with the murder of her
husband, was taken into the custody of the police, a friend of the woman also
accompanied her. The policeman left the woman with her friend and went
away to procure a fresh horse. The woman confessed her guilt to her friend.
while the poiiceman was away. This confession would not be admissible
against the accused as the prisoner should be regarded in custody of the police
in spilt- .:-f the fact that he was absent for a short time. But where the accused is
not arrested nor is he under supervision and is merely invited to explain certain
----
). At dulla t'. Emperor, AIR 1937 Lah. 6.W; Emperor u. Jagia, 124 !C 525; Maharani u. Emperor, AIR
19-lS Ail. 7; Brija 11. Emperor, AIR I 941 Oudh 532; Harbans Singh o. State, AIR 1970 Born. 790; N.
?-;agaf)an r•. State of T.N., 19% Cr LJ 1007 Mad.
2. Ml.ldduvJarc Rawlhor Smile v Stale, 1982 Cr LJ 2102.
l M~t. Maharani II Emperor, AIR 19,18 All. 7.
JLR (189;) 20 Bom 165.
"
[S. 26
s. 26) OF TI-IE RELEVANCY OF FACTS 249
circumstances, it would be going further than the section warrants to exclude the
statement that he makes on the grounds that he is deemed to be in police
custody.
Where the accused had consumed poison and so she was removed to the
hospital for treatment and from the moment of her admission to the hospital
till her discharge from there, the police personnel were neither present in the
room wherein the accused was kept for treatment or even in the vicinity of the
hospital nor they frequently visited the hospital, it could not be said that the
accused's movements were restricted or she was kept in some sort of direct or
indirect police surveillance and she was in police custody for the purpose of
Section 26 of Evidence Act.'
The appellant demanded a bribe of Rs. 500. A trap was arranged and it
was decided that the appellant should be invited at Bedia Bungalow. And he
was so invited. After the tea while the appellant emerged from the Bedia
Bungalow, he was followed by Sri Joshi a first class Magistrate, Sri Deo, the
Assistant District Magistrate and Sri S.D. Pandey, the Sub-Inspector. Sri Joshi
called out to him to stop. And on coming up to him told him that he was going to
be searched because he had accepted an illegal gratification. The appellant
begged to be saved and implored for kindness, as he was a family man with
children. It was held, "if these alleged statements are to be regarded as
confessions they will be hit by Section 25, Evidence Act, for they were made to
Pandey, the police officer, who was there. If they are sought to be brought in
under Section 26 as confessions made in the immediate presence of a Magistrate
then also they will not be admissible in evidence in that they were not recorded
by the Magistrate in the manner prescribed by Section 164, Criminal Procedure
Code.2
Confessional Statement Under Terrorist and Disruptive Activities
(Prevention) Act (TADA), 1987 (since repealed).-As a general rule the
confessional statements are not admitted in evidence or are not reliable on the
ground of the accused having made such statements in Police custody. but the
custodial interrogation by an accused under TADA was admissible to meet the
grave situation arising out of terror unleashed by terrorist activities by person
residing within and out of country.
Section 15 provided that notwithstanding anything in the Cr. P.C. or
Indian Evidence Act a confession made by a person before a Police Officer not
lower in rank than a Superintendent of Police and recorded by such officer were
admissible in trial of such person or co-accused, abettor or conspirator for an
offence under this Act or rules made thereunder.
The Supreme Court held that on the failure to follow strict procedure
under Section 15 of TADA and Rule 15 of TADA Rules for recording the
confession the confession would not be admissible.
Nobody will like to admit the guilt as he is fully aware that it will be
admissible against him. Apart from it, there is constitutional right of accused
1. Ram Singh 11. Sonia, AIR 2007 SC 1218 at p. 1224.
2. Zwiaglc Ariel 11. State of M.P., AIR 1954 SC 15; State of U.P. v. Singhara Singh, AlR 1964 SC 358.
 250 EVIDENCE ACT [S. 27
that he shall not be under-any-test11iH)ltia-t-compulsion. Under Act 20 (3) of
Constitution, the accused has protection against compulsion to be witness
against himself.'
Confession recorded by a Second Class Magistrate.-Where a
second class Magistrate, not specially authorised by the State Government to
record a statement of confession, recorded the confession of the accused under
Section 164 of Criminal Procedure Code, it was not admissible. His oral
evidence to prove the confession was also inadmissible.2
In Priiam Singh v. State of M.P.,3 the Supreme Court held-When
Magistrate cautioned the accused, as required, that he was not bound to make
confession and that if he did make the confession, it might be used against him
however not fulfilling other requirement of putting the question to the accused
to satisfy himself that the accused was making confession voluntarily, the
confession cannot be entertained as a piece of evidence.
Confession to custom officer in inquiry under Sections 107 and
108, Customs Act.--Confession by a person summoned as a witness in a
proceeding under Sections 107 and 108, Customs Act is admissible as the person
summoned is not an accused nor the Custom Officer is a police officer. But if
confession is exercised by issuing third degree method it would be
inadrnissible.!
In Ammani & Others v. State of Kerala,5 the Supreme Court asserted that
the Magistrate recording confession under Section 164 Cr.P.C. need not give
reasons for taking the confession to be voluntary.
Confession in Departmental Enquiry.-In Ku/dip Singh v. State of
Punjab,6 the Supreme Court held-It is true that confession or admission of the
guilt made by a person accused of an offence before or while in police custody is
not admissible in court of law according to Section 25 or Section 26 but it is
equally well settled that rule of evidence does not apply in the departmental
enquiry. It is for the disciplinary authority to decide whether the confession is
voluntary or not.
S ECTION 27.-How much of information received from accused may
be proved.-Provided that, when any fact is deposed to as
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.
COMMENTS
Principle.e=This section of the Act is founded on the principle that if the
confession of the accused is supported by the discovery of a fact then it may be
1. A))'ub Etop P. S1.1teof U.P., AIR 2002 SC 1192.
2 Slate ol Utt.u Pradesh 11. Singhara 51.ngh, AIR 1%4 SC 358.
3. AlR 19'17 SC H.5.
4. ~n Bibi u. )01111 S,,cretary Government of T.N., l 'J!W Cr LJ 134.
5. zso
AIR 19':18 SC
b. AlR 1997 SC 79
;,.
s. 27] OF THE RELEVANCY OF FACTS 251
presumed to be true and not to have been extracted. It comes into operation
only-
(1) if and when certain facts are deposed to as discovered in consequence c.J _
;nformation received from an accused person in police custody and
(2) if the information relates distinctly to the fact discovered.
This section is based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded thereby that the
information was true and accordingly can be safely allowed to be given in
evidence. But clearly the extent of the information admissible must depend on
the exact nature of the fact discovered to which such information is required to
relate.
In Pandu Rang Kallu Patil v. State of Maharastra,1 it was held by
Supreme Court that Section 27 of Evidence Act was enacted as proviso to. The
provisions of Section 25 and Section 26, which imposed a complete ban on
admissibility of any confession made by accused either to police or at any one
while in Police custody. Nonetheless the ban would be lifted if the statement is
distinctly related to discovery of facts. The object of making provision in
Section 27 was to permit a certain portion of statement made by an accused to
Police Officer admissible in evidence whether or not such statement is
confessional or non-confessional. - _ ___,
Scope.-Sections 24, 25 and 26 of the Evidence Act exclude certain
confessions. Section 24 lays down that if a confession appears to have been
caused by threat, promise or inducement from some man in authority it will be
irrelevant and cannot be proved against the confessioner. Section 25 excludes a
confession made to a police officer. Section 26 lays down that if a person while
in custody of a policeman, confesses his guilt to any other person not being a
Magistrate, his statement will not be proved against him.
Under Section 27 disclosure of statement leading to discovery of fact is
admissible.2 - ·- ······
Section 27 provides that when at any trial, evidence is led to the effect
that some fact was discovered in consequence of the information given by the
accused of an offence in custody of the police officer, so much of the information
as relates to the facts discovered by that information, may be proved
irrespective of the facts whether that information amounts to confession or not.
Let us take an example, R is accused of murder of P. He is arrested and kept in
custody of the sub-inspector of police. In course of the investigation, R confesses
his guilt and says that he murdered P with a bhuiali and that after murder he
buried the b}wjali in a tank. The sub-inspector proceeds to that particular tank
with the accused and some independent witnesses. The bhujali is recovered from
the tank from that very place where the accused said that he had buried it.
Now, the statement of the accused that he murdered and buried the bhujali in
the tank 1s a confession lo a police officer and according to Section 25, it must
l AIR 2002 SC 739; Bhodh RaJ 11/,as Bod ha 1•. State of Jammu &: Kashmir, AlR 2002 SC 3164.
2 Runn Bora Dutta u. Stall! ot Assam. AIR 2013 SC 2-122.
252 EVIDENCE ACT ·1s. 21
not be proved against the accused. But Section 27 Jays down that if some fact is
discovered in consequence of an information given by an accused.fhat much of
the information which leads to the discovery will be proved. Consequently, in
the above example the sub-inspector will depose in the court that in
consequence of the information given by the accused the bhuiali was recovered
and then the statement of accused "I have buried the bhujali in the tank" will
be proved.
The part of the confession by the accused to the Police leading it and
identifying the place where dead body was lying is admissible.1
The confessional statement regarding the person with whom article would
be found is admissible under Section 27. It is the discovery of fact whether the
articles are found at a place or with the person as per the statement made by
the accused whether it amounts to confession or not.2
The requirements under the section.-The conditions necessary for
the application of Section 27 are : (1) The fact must have been discovered in the
consequence of the information received from the accused. (2) The person giving
the information must be accused of an offence. (3) He must be in custody of a
police officer. (4) That portion only of the information which relates distinctly
to the fact discovered can be proved. The rest is inadmissible. (5) Before the
statement is proved, somebody must depose that some articles were discovered
in consequence of the information received from the accused. In the example
given above, before the statement of the accused could be proved, somebody,
such as Sub-Inspector, must depose that in consequence of the information given
by the accused, some facts were discovered. (6) The fact discovered must be a
relevant fact, that is, to say it must relate to the commission of the crime in
question.3 In Suresh Chandra Bahri v. State of Bihar,4 it the discovery and
seizure of articles used in wrapping the dead body and pieces of Sari belonging
to the deceased was made at the instance of one accused. Such discovery was
made soon after the arrest of the accused. Articles recovered were neither
visible nor accessible to the people but were hidden under the ground. No public
witness was examined by the prosecution in this behalf. However, the evidence
of Investigation Officer did not suffer from any doubt or infirmity. Articles
discovered were duly identified by the witnesses. It was held that in these
circumstances, failure of Investigating Officer to record the disclosure of
statement was not fatal.
In State of Maharashtra v. Bharat Ehagan Lal Raghani,5 it was held by
Supreme Court that, the fact that seized weapons were displayed by police in
press conference was not a ground to disbelieve the factum of recovery.
I. Anu] Kumar Gupta v. State of Bihar, AIR 2013 SC 3013 at p. 3017.
2. Sanjay Dutt v. State of Maharashtra, AIR 2013 SC 2687 at p. 2770; Jalfor Hussain Dastagir 11.
State of Maharashtra, AIR 1970 SC 1934; Also see State (NCT of Delhi) v. Navjot Sandhu, AIR
2005 SC 3820.
3 Md. lnayatullah 11. State of Maharashtra, AIR 1976 SC 483; Sile also Earabha Drappa v. Stall! of
Kamatak.:i, AJR 1983 SC 446.
4 AIR 19';,1 SC 2420.
5. AIR 2002 SC U09
s. 271 OF THE RELEVANCY OF FACTS 253
In Limbaji 11nd others v. State of Maharashtra.1 it was held that
presumption as to possession of stolen article concealed under earth in the field
of third party was an evidence of discovery of confessional statement of accused
that he had hidden article at particular places. Accused further led the
investigation officer and panchas to the spots where the stolen property was
concealed. Statement as to concealment was admissible. Accused could be
deemed to be in exclusive possession of articles concealed under earth though
spots at which they were concealed could be accessible to public.
Discovery is guarantee for reliability.-The section seems to be based
on the view that if a fact is actually discovered in consequence of information
given by the accused some guarantee is afforded thereby that the information
was true and accordingly can be safely allowed to be given in evidence.2 But
clearly the extent of the information admissible must depend on the exact
nature of the fact discovered to which such information is required to relate.3
In Stat,: of U.P. v. Arun Kumar Gupta,4 the dead body, weapon and blood-
stained earth were recovered from the house of accused the witness to recovery
was not resident in immediate proximity of house of accused. There was
discrepancy over whether the witness by himself came to the scene of occurrence
or was called. This evidence as to recovery was doubtful. The witness belonged
to biradari of deceased and was friend of father of deceased. Extraordinary
interest was taken by witness in investigation and remaining were present at
every important place and time during course of investigation. Held-The
evidence did not inspire confidence.
In State of Maharashtra v. Damu Gopinatn Shinde,5 the Supreme Court
held that the basic idea embodied in Section 27 of Evidence Act was the
doctrine of confirmation by subsequent events. The doctrine is favoured on the
principle that if any fact is discovered in search made on the strength of any
information obtained from the prisoner. Such discovery is guarantee that the
information supplied by the prisoner is true. The information might be
confessional or non-inculpatory in nature but if it results as discovery of fact, it
becomes reliable information. Hence, the legislature permits such information
to be used as evidence by restricting the admissible portion to the minimum.
In a rape case, the waist chord was recovered which was used in
strangulating the victim. Its non-production in the Court was held fatal and the
Court gave benefit of doubt to the accused,"
If Fact is known to the person other than accused.-It is most
essential condition of admissibility under Section 27 that the fact must be
discovered in consequence of information supplied by the accused against whom
the fact is tried to be proved. If the fact is known to other person also, i.e., to
1. AIR 2002 SC 491.
2. Ram Kishan v. Bombay State, AIR 1955 SC 104.
3. Kanaya v. Emperor, AIR 1947 PC 67; See also State of Maharashtra v. Damu Gopmath Shinde,
AIR 2000 SC 1691.
4. AIR 2003 SC 801.
5. AIR 2000 SC 1691.
6. State of Rajasthan v. Kanshi Ram, Al.R 2007 SC 144.
25-l EVJOENCE ACT
s. 27) OJ- THE RELEVANCY OF FACI'S 255
the investigation officer (Police) it cannot-be-said -that-the.factwas d iscovered been used to commit murderand that the shirt belonged to the appellant were
in consequence of information given by accused. held to be inadmissible. I
Where it was already ~,o-;,n to the public at large the place of weapon to 111 State uf M11h11rashtm v. Dantu Copinath Shinde,2 the Supreme Court
be recovered, the confessional statement of the accused recorded thereafter laid down the limitation of admissibility of information admissible under
could not be said to have led to the discovery of an unknown fact.' Section 27 in these words : "no doubt the information permitted to be admitted
in evidence is confined to that portion of information which distinctly relates
"Fact".-The word "fact" as contemplated by Section 27 is not limited to to the fact thereby discovered but to get admissibility the information need not
"actual physical material object". It is fairly settled that the expression fact be so transacted (extended) as to make it insensible. The extent of information
discussed includes not only the physical object produced but also the place from admitted should be considered with understandability."
\' hich it is produced and the knowledge of the accused to this.2
The "fact discovered" envisaged in the section embraces the place from
which the object was produced, "the knowledge of the accused as to it but the
Facts discovered-Meaning of .-"It is fallacious to treat the fact
information given must relate to the accused.J
discovered" within the section as equivalent to the object produced. The fact
discovered embraces the place from which the object is produced and the Where the prosecution failed to prove that the clothes recovered from the
knowledge of the accused as to this, and information given must relate house 0f the sister of the accused pursuant to the voluntary disclosure statement
distinctly to this fact.3 Information as to past user or the past history of the of the appellant made by him belonged to the deceased, the recovery of the
object produced is not related to its discovery in the setting in which it is clothes being devoid of merits should not be treated a.. incriminating
discovered. circumstances.4 _ _ _

Information supplied by a person in custody was that "I will produce a No lawful recovery statement under Section 27 useless.-Where a
knife concealed in the roof of my house" does not lead to the discovery of knife, recovery is alleged to have been made on the information of accused the
knives were discovered many years ago. It leads to the discovery of the fact recovery must be legal and must be proved beyond reasonable doubt. If
the seizure of property said to be recovered at the information of the
that a knife is concealed in the house of the informant to his knowledge and if
accused failed, the statement attributed to the accused would not help the
the knife is proved to have been used in the commission of the offence the fact
prosecution. The law is settled that unless in fact any lawful seizure of any
discovered is very relevant. But if to the statement the words be added "with
object is made, the mere statement under Section 27 of Evidence Act can prove
which I stabbed A" ; these words are inadmissible since they do not relate to
nothing.5
the discovery of the knife in the house of the informer.4
Article concealed at Public Place.-ln this regard a question may arise
In Pandu Rang Kalu Patil v. State of Maharashtra,5 the statement of that if the article is concealed at public place and recovered in consequence of
accused in memorandum was "I have kept the firearms concealed behind old information given by the accused in Police custody will whether it reduce the
house in the heap of wood", The fact discovered before police officer before efficacy. The Supreme Court considered this question in State of Himachal
whom the statement was made, was certainly not the gun (weapon). The fact Pradesh v. [ee! Singh, b and observed :
discovered was that the accused had concealed the gun behind the old house
under heap of wood. It was same gun with which the accused had fired and "There is nothing in Section 27 of Evidence Act which renders the
statement of accused inadmissible if the recovery of evidence was made from
that aspect was proved with the help of other evidence. ---------.. . _
- any place which is open or accessible to others. It is fallacious notion that when
The appellant Prabhoo was charged with the offence of murder. It was recovery of any article was made from a place which is open or accessible to
the prosecution case that on arrest by the police the appellant stated that the others it would vitiate the evidence under Section 27 of Evidence Act. Any
axe with which the murder had been committed and his blood-stained shirt
I. Prabhuo 1•. State of U.P. AIR l<J6J SC 1113 ; Parshadi 11. State of U.P., AIR 1957 SC 211 ;
and dhoti were in the house and the appellant was ready to produce them. It Rajanikm1t v. State, AIR 1%7 Coa 21 (FB).
was said that the appellant produced them. The statement that the axe had 2. AIR 200l1SC 16111.
3. Pulukun Kotayya v. Kin~ Emperor, AIR(~) 1'147 PC b7.
1. Madhu v. State of Kerala, AIR 2012 SC 664. 4. Ahab Ahmad A11s.u1 t•. State of Uttaranchal, AIR 2010 SC 773; Also su State of Mhar.1shtra v.
2_ Damu, AIR 2(100 SC lb'I; State of Maharashtra zo. Suresh, (2000) l SCC 471 ; St.ilc! of Punjab v
Palukun Korayya v. Emperor, AIR 1947 PC 67; Udai Bhan v. SL1h! of U.P., AIR 1962 SC JI 16;
Oi.irandas Sw.ini v. State of Gujarat, AIR 2017 SC 1761 p- 1784. Guruam Kaur. 200'> AIR SCW '.\371: Bhagwan Dass t•. State (NCT of Dt!Ih1), AIR 2011 SC 1863;
3. Md. lnay.itullah t'. Slate of Maharashtra, AIR 1976 SC 4113; State of U_P, v. Jagesar, AIR 1983 SC Manu Sharma ,,. Stale (NCI ,.,, Delhi], AlR 2010 SC 2352; Runu Bora Dutta v. State of AS5,J,m,
349. AIR 2013 SC 2-122; Charandas '""'"' 1• St.:st,• of Gu1.:1r.it, AfR :!017 SC 1761 pp. 178-l-17B5-
4. s_ !Wib u i,. Sbte of MP., 1979 Cr LJ 908. 5, State,,t
UP.,,. jogesar, AIK l'J~ SC ~<J; St.ate of M.P. v. Ram Prakash, 1989 Cr LJ 1585.
5_
0, AIR IW') SC 1293
AIR 2002 SC 733.
 256 EVIDENCE ACT [S. 27
object can be concealed in places which are open and accessible to others. For
example if it is buried on main road side or if it is concealed under dry leaves,
lying on public place or kept hidden in public office would remain out of
visibility of others no normal circumstances until such article is disinterred, its
hidden state would remain unhampered. The person who hide it alone knows
where it is until he discloses that fact to any other person. Hence the crucial
question is not whether the place was accessible to others or not but whether it
was ordinarily visible to others, if it is not then it is immaterial that the
concealed place is accessible."
In State of Maharashtra v. Bharat Farika Dhiwar, 1 one of the articles
used in commission of offence was found in tall grass and other was buried.
They were out of visibility of others in normal circumstances. Their hidden
state remained unhampered and accused alone knew where the articles were
until he disclosed it. Thus, the plea that since the recovered article was found
from open place, no reliance could be placed on such recovery, would not be
tenable.
In Limbaji and others v. State of Maharashtra,2 the accused led the
investigation officer and panchs to the spots where the stolen property was
concealed. The statement relating to concealment was held to be admissible.
The accused could be deemed to be in exclusive possession of articles concealed
under earth though the spots at which they were concealed might be accessible
to public.
Where the pistol used in the offence of murder was recovered which had
been hidden, by digging earth under a plant of Sarkanda about half a kilometre
away from on the Katcha path from a bridge, the pistol was recovered from a
public place but it could not have been easily accessible by anyone and
therefore the accused could not get any benefit from it.3
Recovery of an incriminating article from a place accessible by
others.-ln a murder of woman, the husband and elder brother of husband and
Bhabhi of her husband were alleged to have killed the deceased by dipping
her face into bucket of water. The husband was held guilty by the Trial Court
but acquitted by the High Court because the bucket which was recovered was
lying in the courtyard and was identified by the accused-persons was accessible
by other persons also. The Supreme Court held-Recovery of bucket i.e., an
incriminating article from a place which was open and accessible to others,
alone cannot-vitiate·such recovery under Section 27 of the Evidence Act.4
The fact discovered must be a relevant fact.-The object of the
section is to admit evidence which is relevant to the matter under enquiry,
namely, the guilt of the accused and not to admit evidence which is not
relevant to that matter. The discovery of material object is of no relevancy to
the question whether the accused is guilty of the offence charged against him
unless it is connected with the offence. It is, therefore, the connection of the
l. AIR 2002 SC lb.
2. AIR 2002 SC 491
3. Curpnder Singh v. State of Punjab, AJR 2011 SC 972 at p. 976.
4. State of Himachal Pradesh 11. Jai Chand, AIR 2013 SC 3349 at p. 3355.
..-··
s. 271 OF THE RELEVANCY OF FACTS '!57
thing discovered which renders its discovery a relevant fact.1 Where the
accused produced gtmdasa from a pond and the gandosa was not blood-stain=d
and was not proved to have been connected with the crime, it was held that the
statement was not admissible.2
Article not concealed on discovery.-lf the article is not concealed
and in the normal course the police officer is bound to see it, it cannot be said to
have been recovered on the information of the accused.3 If the article is so
concealed that it could not be known to others, the statement leading to
discovery is relevant under this section.! But if the place of recovery is
accessible to all, it cannot be said to have been recovered on the information of
the accused.5 In Brij Mohan and others v. State of Riljasthan,6 recovery of crime.,
article pursuant to the information given by three appellants from the house of
one of them, held that there was nothing unnatural.
The discovery does not connect accused with the offence.-The
discovery of an article does not connect the accused with the crime. It has to be
proved that the material fact about which recovery has been made is connected
with the crime and that the accused has committed the crime concerned.
TI1e evidence of recovery of a pistol at the instance of an accused cannot by
itself prove that he who pointed out the weapon wielded it in offence?
Whether "amounts to confession or not".-The words "whether
amounts to confession or not" clearly indicates that this section renders
inculpatory statement given to police officer admissible in evidence.8
Statement which relates distinctly to the facts discovered.-An
information received from the accused can be received in evidence only when it
fulfils two conditions : (1) the information must be such that has caused the
discovery of the fact, and (2) the information must relate distinctly to the fact
discovered. The requirements of both the conditions specified above must be
satisfied before an incriminating statement can be received in evidence. Thus
only that portion of the information is provable which was the immediate or
approximate cause of the discovery of the fact. Anything which is -not
connected with the facts as its cause or is connected with it not as its immediate
or direct cause, but as its remote cause does not come within the ambit of the
section and should be excluded.9
The word 'distinctly' means 'directly', 'indubitably', 'strictly',
'unmistakably.' · -- --- .
-----·-------
1. l'uran Singh u. Emperor, AIR lY-17 Pat 162; In re Venkanna, AIR 19-t8 MJd. ol.
2. K,1,hi l{;rn, 1' Emperor, AIR 1955 Lah -133 ; Jaf.ir Hussain ti. Stale ,,f M.ih,uJshtr.1, AIR 1970 SC
IY}.I
J. Anun l'. St,11,•, AIR 195K All 293.
4. N,up,11 ~111i;h c•. St.,tt· v; ~larpn,,, ,\II{ 1\/77 SC lllno; Ear.it>h,, Drappa 1•. Stal,· ,,t Karnataka, AIR
I <JIIJ SC ·I-In.
5 t\ai ln,\\,1tullah I' ~,~,._. of Maharc-htro. AIR 1970 SC -l&J.
h '\IR l\194 !',L 7.IY
7 I >.,,.1dh N,,lh l',111d,•\• 1•. Stat,• ,,t U.P., All( l\lt,l SC' \11 I.
K SI.it,· "t M11,1;,d1al l';radc~h r>. J,..,,t Singh, AIR I\N'l SC l'.!\IJ
Y Sukhan , .. l'mpuror, (1•>2'J) 20 L1h 2S3 (FB)
258 EVIDENCE ACT [S. 27
The statement of the accused had to be split up into its components to·
separate that leading to discovery from that which do not
le'°a'crio discovery,.
Then the portion leading to discovery is to be proved.
In Md. lnnyatullnh v. State of Mnlwra;htra,1 the accused stated, "I will
tell the place of deposits of the three chemical drums which I took out f·om the
Haji Sunder on lst August." The only-portion relevant was "l.~ill tell the place
of deposit of the three chemical drums."
In Pulukuri Kotn.yyn v .. E.mpaor,2 in a case of rioting and murder, the
accused on being arrested made a statement that "about fourteen days ago I,
. Kotyya, _a_n.£1 _p~ople of my party lay in wait for Sivayya and others at about
sunset time at th<i corner of Pull Pak tank. We all beat Baddupati, China,
Sivayya and Subayya to death. The remaining persons Pollayya, Kotayya and
Narayana ran away. Dondapati Ramtayya who was in our party received
blows on his hand. He had a spear in his hand. He gave it to me then. I hid
spear and my stick in the rick of Venkata Narasu in the village. I will show if
you come. We did all this at the instigation of Pulukuri Kotayya."3
... ·-··· The other accused stated to the Sub-Inspector that "I stabbed Sivayya
with a spear, I hid the spear in the yard of my village. I will show you the
place." The Madras High Court held the whole statements admissible in
evidence but Privy Council through Sir John Beumont held that in the
statement made by the first accused. Out of the whole of the above mentioned •
statement the passage "I hid the spear and my stick in the rick of Venkata
Narasu in the village ; I will show if you come" is admissible because this
leads to the discovery of stick and spear. The other part of the statement to the
effect that the accused and his party lay in wait for the deceased and his party
and that they killed them so on and so forth has nothing to do with the
discovery of the stick and spear and so cannot be proved against the accused.
Regarding the statement by the other accused, the Privy Council held-The
first sentence of this statement, i.e., "I stabbed Sivayya with a spear" must be
omitted and cannot be proved. The sentence "I hid the spear in a yard of my
village; I will show you the place" will be proved as on this information spear
was recovered. Thus, it is a settled principle of law that of information
received from an accused in the custody of a police officer, only that part is to be
proved which leads to the discovery. The part of the statement which has
nothing to do with the discovery of the fact but relates to the manner of the
committal of the crime, to the part taken by the accused person in it, to the
place of occurrence etc., will not be proved. To make the matter clearer we may
take one more example.
From the words of the section it clearly follows that simple statement or
statements while pointing out the scene where the crime was committed, or
AIR 1910 !,( 410
2 AIR 1'147 l'C t,7
3 MJ. lnayatullah t:. State of Maharashtra, AIR l':17c, SC 48J.
s. 27) OF'!HE RELEVANCY OF FACfS 259
while producing articles and showing the connection of the place or ·thing with
offence Ml' nut rendered admissible under Section 27 but only the statement
prcced ing the hru.iing,__up_o1.1_sea_r_~h or en9u(!y, of articles or other facts connected
: with or referable to the crime. The test is, was the facTdiscovei-ed-by" reason of
· the information and how much of the information was the immediate cause of
the fact discovered and as such a relevant fact. The information gizen.b y a
person, body produced by him is that of a person murdered by him, that the
weapon produced is the one used by him in the commission of a murder, or that
... -· the ornaments produced were stolen in a dacoity would all be inadmissible
because they do not relate to the discovery of a fact rather they relate to the
commission of a crime. If Section 27 would allow the admission of such
statements into evidence little substance would remain in the bar impose-cl by
1 Sections 25 and 26 on confessions made to police officer or by persons in police
custody. That bar presumably inspired by the- fear of the Legislature that a
person under police influence might be induced to confess by the exercise of undue
pressure. But if all that is required to lift the bar be included in the confession
of information relating to an object subsequently produced, it seems reasonable to
suppose that the persuasive power of the police will prove equal to the
occasion and that in practice the bar will lose its effects. If upon the discovery
of a fact upon the information of an accused the whole of his confession is to be
proved, no confession to a police officer will be excluded. The police officer will
extract confessions and then will make false recoveries and prove the
confessions and the provisions of Sections 24, 25 and 26 will be negatived. A
statement made by the accused to the police that the articles recovered in his
house were articles of loot is not admissible-in evidence.1
Section applies when statement is tried to be proved.-If
however, the police officer does not want to prove the information or any part
thereof, Section 27 does not come into operation at all. The evidence of the
investigating officer was that on a certain day the accused A made a certain
statement as a result of which he took accused A and 8 to ltava and leaving the
accused B there the party proceeded to Bhagwasi with the accused A and that
the accused A_poi.~t.~~--~1t_Balr,1m who at the instance of the accused A dug out
from a mud house a tin box containing three revolvers and two tins containing
live cartridges. It was held that the statement of the police officer was
. admissible without attracting the provision of Section 25, Evidence Act.2
Accused of any offence.-The expression 'accused of any offence' is
descriptive of the person concerned against whom evidence relating to
information alleged to be given by him is made provable by Section 27,
Evidence Act. It does not predicate a formal accusation against him at the time
of making the statement sought to be proved against him as a condition of its
applicability. The expression "accused of any offence" covers a person accused
of ,m offence at the trial, whether or not he was accused of an offence when he
made the confcssion'
--·--··- -·-·- - ~-· ----
1. G,,)a Pr;i,,1d l'. State. AIR !'157 All 45\1; Jlumma t'. State ol Mysore, AJR l':171 SC 1871.
2. Ram K"h"" P. Bombay !-tatc, AIR l'.lt>.'i SC 104.
3. "tatL· ol U.I'. l'. Deuman Up,1dhyay.1, AIR 19o0 SC 1125; State 1•. Menon MJ. Hussa in, AIR 1'15',1
Uum 5;\-1; Slat" ,,i Assam t•. U.N. Rajkhowa, 1975 Cr LJ l.'i4.
 260 EVIDENCE ACT [S. 27
Accused in custody.-Before the decision in State of U.P. v. Deonian
Upadhyay, 1 for the application of Section 27, it was necessary : (1) that the
person giving information must be an accused at the time of the giving 0f
information, and (2) he must be in police custody. Consequently, if the person
was in custody but not the accused or he was an accused but not in custody or
neither an accused nor in custody, Section 27 was not applicable.2
But now since the decision of Supreme Court in Deomans case the only
necessary factor for application of Section 27 is that the person giving the
information must be in a custody.
The term 'custody' does not necessarily mean under physical arrest. A
person directly giving information by word of mouth may be deemed to have
submitted himself to the custody of the police.3
No conviction without proof of connection of accused with the
incident.-These can be no conviction founded on the sole circumstance of the
recovery of weapon and other articles if the basic foundation of prosecution
crumbles down by not connecting the accused with the incident in question.
When basic foundation in a criminal case is so collapsed, the circumstantial
evidence becomes inconsequential.4
Article 20 (3) of the Constitution and Section 27.-Article 20 (3) of
the Constitution reads as "No person accused of an offence shall be compelled to
be a witness against himself."
The information given under Section 27 may be either voluntary or
extracted from him by compulsion. In either case before the Indian Constitution
was enforced, it was admissible in evidence if the conditions laid down in the
section were complied with. But Article 20 (3) of the Constitution embodies the
principle of protection against compulsion of self-incriminating and the
protection afforded under that article extends to compelled testimony
previously obtained from him. Information given to the police by the accused is
certainly testimony previously obtained from him for that is intended to be
used in a court of law. If that information is not voluntary but is compelled
testimony, Article 20 (3) prohibits the user of the said evidence in court. Section
27 of the Evidence Act, and Article 20 (3) of Constitution may be reconciled.
Information voluntarily received from an accused relating distinctly to the fact
thereby discovered is not hit by Article 20 (3) and is relevant under Section 27.
Such information obtained by compulsion was admissible before the
Constitution. After the enactment of Article 20 (3) they must be excluded from
evidence for otherwise the accused would be compelled to be a witness against
himself.5 Article 20 (3) applies to discoveries under Section 27, Evidence Act, if
____these discoveries are the results of compulsion. The scope of Section 27,
I. State of U.P.11. Deornan Upadhyay, AIR 1960 SC 1125; A. Nagesia v. State of Bihar, AJR l9o6
SC li<l
2. <..'. 11,'t'n-Empn.-ss "· Babul, ILR 6 All 509.
3. State of Assam 11. U. N. Ratkhowa, l lf75 Cr LJ 354
4 Stat of U.P 11. Sunil, AlR 2017 SC 2154 p. 215.5. _
5 ···Jnl'l!'MauuguJ;;i'Jcrm,ah, AIR 1957 AP sn.
'
.j
s. 27) OF THE RELEVANCY OF FACfS 261
Evidence Act is thus restricted by Article 20 (3) of the Constitution and the
discoveries which follow a confession brought about by compelling an accused
person cannot be used against him.! A similar view was taken by another Bench
of Allahabad High Court.2The Bombay High Court has also held that Section
27 is hit by Article 20 (3).3 Contrary to this it has been held by the Mysore
High Court that Section 27 is not controlled by Article 20 (3).4 It is submitted
that the Mysore view is wrong. But the mere fact that the accused while
making the statement was in police custody will not attract the provision of
Article 20. It has to be decided whether or not the accused has been compelled
to make the statements.I
Section 162 (1) Cr. P.C. and Section 27 of Evidence Act.-In State
of Rajasthan v. Teia Ram & Others,6 the Supreme Court held-If any
investigation officer ignorant of Section 162 (1), Cr. P.C. procures the signature
of the person concerned in the statement, it does not mean that witness's
testimony in the court thereby becomes contaminated or vitiated. The court will
only reassure the witness that he is not bound by that statement albeit his
signature finding place thereon, thus apart, the prohibition contained in sub-
section (1) of Section 162, Cr. P.C. is not applicable to any proceedings made as
per Section 27 of Evidence Act. Thus the investigation officer is not obliged to
obtain the signature of an accused in any statement attributed to him while
preparing the seizure memo for recnvery of any article covered by Section 27 of
Evidence Act but if any signature has been obtained by investigating officer,
there is nothing wrong or illegal about it. Hence, it could not be said that the
signature of the accused in seizure memo would vitiate the evidence regarding
re.:overy of axes.
Deposed to.-lt is necessary in order to bring a case of discovery within
Section 27 that the fact discovered should be deposed to by the person to whom
the statement was made.7 A report is made against one Harl that he murdered
a man with a knife. Hari is arrested by the police. He states that he murdered
the man with a knife and has buried it behind his house. The knife is recovered
on his information. At the trial of Hari if the prosecution wants to prove the
relevant part of his statement, some witness has to depose the discovery first.
The Sub-Inspector or any other witness will state that the knife was recovered
in consequence of the information of Hari. Then it will be proved that Hari saic'
that he had buried the knife in his house.
The discovery statement to be used only against the makerc=-The
statement leading to discovery can be used only against the maker of the
statement. It cannot be used against non-makers.8
1. Amm v. State, AIR 1958 All 293.
2. Bhoom Singh 1•. Stall', AIR 1957 All 197.
3. Amrut 1,. Stale, AIR 1%0 Dom -l88.
4 In re Covrnda, AIR 1958 Mys. 151.
5. State of Bombay v. Kathe Kalu, AJR 1961 SC 1808; R.l<. Daloua v. Administration of Delhi, AlR
1\162 SC821.
b. AIR IW9 SC 1776
7. Kouayya v. Emperor, AIR 1947 PC 67
ti Mahendra Mondal v. State of Bihar, 1991 Cr LJ 1030
 262 EVIDENCE ACT (S. 27
In State of Haryana - v. Ram SingJr,I the question before Supreme Court
arose as to evidentiary value of discoveries made in presence of interested
witness. Discovery was made as a result of disclosure by the accused. No
independent witness was found out for the purpose. It was held by
Supreme Court that it created doubt as to whether the same had been tailor-
made or not. Benefit of doubt must go to the accused. It was more so when in
instant case High Court had acquitted one of the accused persons on the basis of
discrepancy between oral testimony and documentary evidence as to such
recovery.
Information by two or more accused.-lt may happen that two or
more persons may be accused in a criminal case. Anyone of the accused may give
information in consequence of which a fact may be discovered. The other
accused may also give like information. In such cases the statement made by the
first person under Section 27 may be treated as evidence against him but it is not
allowable to treat it the evidence against the other persons who have
afterwards made the statement of the same description as has been done by the
first accused. A, B and C are accused of murder of D. A makes a statement to the
Sub-Inspector while in the custody that "I together with B and C murdered D
and have concealed his body under a culvert." Afterwards B and C also make
the similar statements. The dead body was recovered in consequence of their
information. The statement of A that "I concealed the dead body of D under a
culvert" is admissible against him. The statements of Band C to the same effect
cannot be proved against them for the simple reason that it cannot be said that
the dead body was discovered in consequence of the information given by all the
accused. When a fact is discovered in consequence of the information received
from one of several persons charged with an offence, and others give like
information of that fact should not be treated as discovered from the
information of them all. It should be deposed that a particular fact has been
discovered from the information of the particular accused and this will let in so
much of the information as relates distinctly to the information therein
discovered.2
Section 27 ought to be strictly construed. The use of the words "a person" in
singular in Section 27 is somewhat significant. The words are used in singular
designedly because the joint statement of a number of persons cannot be said to be
an information received from anyone of them. When a fact is discovered in
consequence of information received from one of several persons charged with an
offence and others give the like information it is impossible to treat the
discovery as having been made from the information received from each one of
them.
Simultaneous information by many accused.-lf the prosecution is
in a position to establish that the statement by two or more persons which led
to the discovery of certain facts were actually made simultaneously the
evidence with regard to this simultaneous statement would not be entirely shut
I AIR 2002 SC b20.
2. R. ti. Babul, 6 All SO'J
1., ...
s. 27) OF THE RELEVANCY OF FACTS 263
out by the provision of this section.1 But there must be clear and satisfactory
evidence on this point such as enables the court to decide specifically as to
whether the evidence is admissible against both of the accused or either and if
so against which. That is the view of the High Courts of Allahabad and
Calcutta.I The Orissa High Court has taken a different view. It has held,
where as a result of joint statement of accused persons the dead body of the
deceased is discovered but the evidence is not clear as to who gave the
information first and who next, it cannot be said that either of the accused
made the crucial statement which led to the discovery and, therefore, the joint
statement would not be admissible in evidence to admit the guilt of the
accused.3 Statement by one accused in presence of his co-accused in leading to
the discovery of an axe is admissible only against the accused making it. It
cannot be used against the other accused. A statement of one accused leading to
the discovery of certain facts and inculpating other accused has a very little
evidentiary value against the co-accused.
The point came for determination before the Supreme Court in Lachiman
Singh v. State,4 but was not decided. On the evening of 16th December, 1948,
Achhar Singh went 'to the house of one lnder Singh for getting paddy husked.
Darshan Singh his brother also went there. While the two brothers were
returning home they were attacked by the three appellants and two of their
relatives. The five assailants inflicted a number of injuries on the two victims
as a result of which they died then and there. After the murder the appellants
and their companions tied the two dead bodies in two wrappers and took them
to village Salimpura where two other persons Ajit Singh and Banta Singh
joined them, and the dead bodies after being dismembered were thrown into a
stream known as Saki Nala.
According to the prosecution, all the three accused were interrogated by
the police. They made certain statements which were duly recorded by the
police. In these statements it was disclosed that the dead bodies were thrown
in the Saki Nala. Thereafter, the police party with the three accused went to
Saki Nala, where each of them pointed out the place where the different parts
of the dead bodies were discovered. It was observed : "It seems to us that if the
evidence adduced by the prosecution is found to be open to suspicions and it
appears that the police have deliberately attributed similar confessional
statement relating to facts discovered to different accused persons, in order to
create evidence against all of them, the case undoubtedly demands a most
conscious approach. But as to what should be the rule when there is clear and
unimpeachable evidence as to independent and authentic statements of the
nature referred to in Section 27, Evidence Act having been made by several
accused persons either simultaneously or otherwise, all that we wish to say is
that as at present advised we are inclined to think that some of the case relied
I. Puttu ti. Emperor, AIR 1945 Oudh 285 ; Fakira v. Emperor, AIR 192\1 Lah 665 ; Emperor t'.
Sheopujia, AIR 1930 Dom. 2H; Kuddu t'. Emperor, AIR l'.125 N.ig. ,107; Pashki v. State, 195.:' ALJ
115.
2. Abdul Qadir v. Emperor, AIR 19-16 Cal. pp. 452 to 45b; Quloen-Empn.•s,; v. Babul, b All. Sf8 (FB).
3. Guru Baru Parara v. King, AIR l\14'.l On. 67.
! 4. Lichtman Singh v. State, AIR 1952 SC' lt>7; Abdul Hahz v. State of A.P., AIR 19!13 SC 367.
J
2M EVIDENCE ACT
upon by the accused have perhaps gone further than is warrar.ted by the
language of Section 27.1
It has been held by the Kerala High Court that where individual
statements recorded from each of the accused were of the same pattern and
referred to same articles, and all of them declared that if the inspector
accompanied them they would point out the place at which the articles were
hidden. It was held as there was no knowledge on whose information the
material fact was discovered, the statements were not admissible.2
Discovery on the information of the accused.-The discovery to be
admissible under Section 27 must be based on the information given by the
accused. Discovery of incriminating articles alleged lo have been recovered by
the accused is not admissible in evidence, if the police already knew where
they were hidden. The accused was tried for murder. It was in evidence that he
was bearing a false beard and a mask at the time of murder. The false beard
and mask were found buried in the grounds of Dewayat's house and the
appellant is said to have recovered them in the presence of Panchas. Dewayat
said that appellant confessed the murder to him and told him that he had gone
there wearing a false beard and a mask and that he had buried these articles
under the Shammi tree. Dewayat said, "Next the police called me to go to
Kalawad. At that time Raja (accused) had been arrested. I was interrogated. I
spoke about the beard at that time. Then the police came to my field with
Raja". It was held that the discoveries were inadmissible in evidence because
the police already knew where they were hidden.3
Recoveries made-very crucial.-'The recoveries made under Section 27
of the Evidence Act in an investigation are very crucial. Such recovery not only
acts as the foundation stone for proceeding with an investigation but also
completes the chain of circumstances. Once the recovery is proved, by the
prosecution, burden of proof on defence to rebut the same is very strict which
cannot be discharged merely by pointing at procedural irregularities in making
the recoveries, especially when the recovery is corroborated by direct as well
as circumstantial evidence, especially when the investigating officer assures
that failure in examining independent witness while making the recoveries
was on account of exceptional circumstances attending the investigation process.
Need to examine independent witnesses while making recoveries pursuant to
the statement of the accused is a rule of caution evolved by the judiciary which
aims to protect the right of the accused to ensure transparency and credibility in
the investigation of a criminal case. Seizure memo of recovery made pursuant to
the st.uement of the accused prepared by the Investigating Officer need not
necessarily be attested by independent witnesses. Non-attestation of seizure
111L'mo by independent witnesses cannot be a ground to disbelieve recovery of
articles list consequent upon the statement of the accused+
---···9-------
Kurappa 1,. Slate, AIR J'J(,O Ker. 231!
R.1,a Khime v. Stat~ of Saurashtra, AIR J95t, SC 217.
3 l<JIJ Khrme 1•. State of Saurashtrc, AIR J<J56 SC 217; )affar Hussam Dastager lJ. State ol
~1Jh.1ra,htrJ, AIR 1970 SC 1934.
Mukcsh 11 State tor N.CT. ol Dclhr, AIR 2017 SC 2lbl p. 2313, p<'r [usuce It llhanumntlu: Also
"'' ~tall' Covcrnment N.C T. ol Delhi v Suml, (2001) t sec 652
iS. 27 s. 27) OF THE RELEVANCY OF FACTS 265
Where dead body of the deceased was recovered from the valley on the
basis of statement of the two accused persons who were taken together by :he
i olice on the spot and the disclosure was made by them !> parately in quick
succession to Investigating Officer, it was held that the fact disclosed by them
and discovery made at their instance was admissible in evidence against both
the accused persons in terms of Section 27 of the Evidence Act.1
Recovery on the basis of extra-judicial confession.-The extra-
judicial confession made to P.W. by the appellant led to the recovery of
bloodstained clothes from the box lying in his house and also knife from the
field. The human blood was detected in the blood-stained clothes of the
appellant by the forensic expert. The blood-stained clothes and knife were
disintegrated. The extra-judicial confession made to P.W. was highly doubtful
as he was not an independent witness. The Court held that much weight could
not be attached to the alleged recovery of the blood-stained clothes and the
knife.2
The accused was alleged to have caused the death of the deceased while
taking her to her sister and the deceased's ornaments were recovered at the
instance of the accused. The witnesses, the two ladies, alleged to have lent
" ornaments to the deceased were not called to identify the ornament. Held-
Recovery of ornaments at the instance of the accused was not proved.3
Seizure of weapon not material when there is direct evidence.-
In a case where there is direct evidence, even the seizure of weapon is not very
material.4 Mere recovery of weapon is not a proof that the accused had
committed the crime.5
In Snnj11y alias Knkn v. State of Delhi, Nawabuddin alias Nawab v.
State of Delhi and Vinod Kumar v. State of Delhi,6 the recovery of article
was made on the basis of disclosure statement by the accused alleged to have
committed robbery and murder. After recovery of the article, the daughter of
the deceased stated that she identified the article as belonging to her mother
which was stolen on the day of murder. Held-It cannot be said that recovery
of article had preceeded the making of disclosure of statement.
Mere recovery of wea~on not sufficient for conviction.-In Brijesh
Mnvi v. State of NCT of Delhi, a .380" caliber revolver was recovered at the
instance of the accused who was involved in the murder case. The recovery was
effected after more than two years. The prosecution did not prove that during
the intervening period, the weapon had not changed hands and the same was
consistently possessed by the accused. The live and fired cartridges along with
the bullets recovered from the place of occurrence and also the bullets recovered
----
l. Ki-horc llh.1dk,· 11. State of Maharashtra, AIR 2017 SC 279 p. 293.
2. ViJil)' ~hank,1r v. State of Haryana, AIR 2015 SC 3686 p. 3691.
3. C,mpat Singh t•. State of M.P., AIR 2017 SC 48311 p. 4842.
4. Pradurnansmgh Kalubha t•. Stal!! of Cu,arat, AlR 19'J2 SC 881
5. Nirm.il Kumar 1•. State of UP, AIR 1992 SC I 131.
b. AIR WOl SC 979.
7 AIR 2012 SC 2657.
266 EVIDENCE ACT
from the dead body in the course of post-mortem were sent to the fSL Rohini.
After the recovery of the revolver, it along with cartridges (live and empty) as
well as four bullets recovered from the place of occurrence was sent to the CFSL,
Chandigarh but the bullets recovered from the dead body at the time of post-
mortem were not sent to the CFSL, Chandigarh. There was no explanation
given for the serious lapse on the part of the prosecution. Therefore, there
remained lingering doubt regarding proving of the charge against the accused-
appellant. Mere recovery of weapon was not sufficient to convict the accused for
murder.
Non-matching of blood group on the weapon recovered used in
the offence-In R. Sliaji v. State of Kerala) where the chopper used in the
murder of the deceased was recovered on the disclosure made by the accused but
there was failure by the serologist to detect the origin of the blood due to dis-
integration of the serum, it did not mean that the blood stuck on the axe could
not have been human blood at all. Sometimes, it is possible either because of
the stain is insufficient in itself, or due to haematological changes and
plasmatic coagulation, that a serologist may fail to detect the origin of the
blood in question. In such a case, unless the doubt is of a reasonable dimension,
which a judicially conscientious mind may entertain with some objectivity, no
benefit can be claimed by the accused in this regard. Once the recovery is made
in pursuance of a disclosure statement made by the accused, the matching or non-
matching of blood-group(s) loses significance.
Discovery a weak kind of evidence.-Discovery is a weak kind of
evidence and cannot be wholly relied upon in a serious matter so where the
prosecution discovered some articles ten days after murder barely 300 feet away
from the dead body of the deceased and no attempt was made by the
prosecution to prove that discovered articles belonged to the accused and there
was also no evidence of motive of murder, it was held to be a clear case of
benefit of doubt.2
When the sword, the weapon of murder, was alleged to be recovered on
disclosure statement made by the accused but it was not sent for any
examination by the Forensic Science Laboratory and the report, if any, was not
exhibited and even no question in that regard was put to the accused when he
was examined under Section 313 Cr. P. C., the conviction of the accused on the
basis of this evidence could not be upheld.3
Where the prosecution witness stated in cross-examination that the
waist-cord which had been used for strangulating the deceased was recovered
much earlier from the scene of offence by the police itself and the waist cord
was not even produced before the Court and it might be that some other witness
had stated that the waist-cord was not recovered from the spot, the benefit of
doubt must go to the accused.4
I. R. Shaji v. State of Kerala, AIR 2013 SC 651; Prabhu Babaji Navle v. State of Bombay, AIR 1956
SC 51; Raghav Prasanna Tripathi v. State of U.P., AIR 1963 SC 74; State of Rajasthan v. Teja
Ram, AIR 1999 SC 1776; Gura Smgh v. State of Rajasthan, AIR 2001 SC 330; John Pandian v.
State, AIR 201J SC (Supp) 531, Dr. Sunil Cliford Daniel v. State of Punjab, AfR 2012 SC 4657.
2. Mani v. State of Tamil Nadu, AIR 2008 SC 1021 at p. 1025.
3. State of Rajasthan v. Waktcng, AIR 2007 SC 2020 at p. 2023.
4. State of Rajasthan v. Kaslu Ram, AIR 2007 SC 144 at p. 148.
( . : 'I
[S. 27
s.271 OF THE RELEVANCY OF FACTS 26,
Section 27-Proviso to the preceding sections.-Section 27 is very
unhappily worded. The section begins with the words "provided that". It
appears that it is not an independent section because had it been an independent
section, it would not have begun with the word "provided" which is always
given in the beginning of some proviso of some section. At the same time, it is
numbered as independent section. Sections 24, 25 and 26 exclude confession under
certain circumstances. Section 24 lays down that if the confession appears to
have been caused by threat, or promise, or inducement, it cannot be proved.
Section 25 lays down that confession made to the police officer cannot be proved
against an accused. Section 26 lays down that a confession made by any person
while in custody of a police officer to any person other than a Magistrate will
not be proved. Section 27 is a proviso, that is, a controlling section and furnishes
an exception to the rule of excluding the confession. It lays down that a
confession is admissible if it leads to the discovery of some fact. Now, if Section
27 is proviso to Sections 25 and 26 only, the statement of the accused leading to
the discovery of the fact will be proved only if the accused was in the custody
of the police when he made the statement. According to this view if a
statement is made due to inducement, threat or promise and in consequence of
which some fact is discovered, the statement will not be proved. But if Section
r; 27 is proviso to Sections 24, 25 and 26 that will be admissible. The Bombay
I
High Court has held that Section 27, Evidence Act is an exception toSection 26
only. On the other hand, the High Courts of Allahabad,1 Calcutta and Patna
have held that Section 27 is a proviso to Sections 24, 25 and 26. The accused B
and R were charged under Section 414, I. P. C. They stated to one constable
Hafizullah to the effect that they had stolen the cows and cock and sold them
in Mauza Madanpur to one Abdul Rahman and had stolen the goat in Bhelupur
and sold it. The cattle were recovered in consequence of the information given by
the accused. This confession was made to the police officer and must be excluded
according to Section 25, if Section 27 does not control it. The question whether
these confessions as they were made to the police officer were admissible in
evidence against them under Section 27 of the Evidence Act was referred to the
, Full Bench for opinion. The Full Bench held that Section 27 of the Indian
Evidence Act is a proviso not only to Section 26 but also to Section 25 and that
therefore so much of the information given by the accused to the police officer
whether amounting to confession or not as distinctly related to the fact thereby
discovered might be proved.s
M, a woman was charged with the murder of a girl. On the hope of pardon
being given to her, she took the police to a place and pointed out and produced
certain ornaments which the deceased was wearing at the time of her death.
Now this confession was taken from the accused by promising pardon to her and
is clearly excluded by Section 24 if, that section is not controlled by Section 27.
Their Lordships of the Allahabad High Court held that the statement leading
to discovery of ornaments was admissible.3 Accordingly if a confession comes
within the purview of Section 27 and lea.ds to the discovery of certain fact it
l. Queen-Empress v. Babul Lal, 6 All. 50') (Fil).
2. Ibid.
3. Met. Misri t•. King-Emperor, 6 ALJ 8, 9.
t. . ... .,.
268 EVIDENCE ACT [S. 27
would be admissible in evidence even if it is hit by Section 24 as having been
obtained by inducement, threat or promise. A similar view was held by Patna
High Court.1 Other High Courts are of the same view. It is now clear beyond
all doubt that Section 27 controls the three earlier sections, namely Sections 24,
25 and 26.2
The Bombay High Court has held that statements leading to discovery
are admissible under Section 27, Evidence Act, although they are statements
made to the police in the course of investigation.3 But the principle of Section
24 applies to the statements under Section 27 and if the statement is
involuntary, it would be excluded. Where the statements leading to discovery
were made to the police as a result of harassment and continuous interrogatories
for several hours after the person is treated as an offender and accused, such
statements must be regarded as involuntary and must, therefore, be excluded
from evidence. 1n this case the Judge of the Bombay High Court relied upon
Ramkishan v. State of Bombay.4 In this case it was held that Section 27,
Evidence Act is an exception to the rules enacted in Sections 25 and 26 of the
Act.5 By this observation it cannot be said that Section 27 is not a proviso to
Section 24. If a fact is discovered upon the information of an accused, it is almost
certain that the accused has the knowledge that the particular article was
concealed at particular place. It will not make any difference at all whether
the information by the accused was given voluntarily or it was outcome of some
inducement, threat or promise. In my opinion, Section 27 is proviso to Section 24
also.
1n an Allahabad case, it has been held that where facts disclosed point to
the accused having been subjected to third degree methods prior to the
discovery of a dead body, the genuineness of the discovery is rendered doubtful
and the discovery becomes worthless as a piece of evidence, the reason is that
although discovery by itself is a guarantee of the genuineness of the discovery
there may be cases where the circumstances are such that the fact that the
discovery was induced by a promise would raise a doubt as to genuineness of this
discovery and render the evidence almost worthless.6 It may be submitted that
the decision of this case is not an authority to the effect that Section 27 is not a
proviso to Section 24. In this case; the very discovery was doubted. Whether
Section 27 is proviso to Section 24 or not, as seen above the statements made by
the accused leading to discovery obtained by pressure are hit by Article 20 of
the Constitution of India and is not admissible.
Supreme Court has held that Section 27 is an exception to Sections 24 to
26.7 It may be submitted that ingredients of Section 24 are so embracing that it
may co-exist with the cases covered by Sections 25 and 26. The correct position
is that Section 27 is proviso to Sections 24 to 26.
1. Emperor u. Remisheislian, AIR 1947Pat 152.
2. Hakim Khan v. Emperor, AIR 1940 Lah 129.
3. Amrut t•. Slate of Bombay, AIR 1%0 Born. 488.
.J AIR 1955 SC 104; Delhi Adrrumstranon u. Bal Krishna, AIR 1972 SC 3.
5. Dhuom Singh P. State, AIR 1957 All. 197.
6 Dhoom Smgh u. State, AIR 1957 All. 197.
7 lnayatulla II State of Maharashtra, AIR 1976 SC 483.
s. 27] OF THE RELEVANCY OF FACTS 269
Section 27 and Article 14 of the Constitution.-In State of U.P. v.
Deoman Upadhyny, 1 Deoman was married to one Dulari, Dulari's parents had
died in her infancy, and she was brought up by Sukhdei her cousin. Sukhdei
gifted certain agricultural land inherited by her from father to Dulari. The
land gifted to Dulari and the land of Sukhdei were cultivated by Mahabir,
uncle of Deoman. Mahabir and Deoman entered the negotiations for the sale of
some of these lands situated at a village to Anand Din. Sukhdei refused to
agree to the proposed sale. According to the case of prosecution in the evening of
18th June, 1958, there was an altercation between Deoman and Sukhdei.
Deoman slapped Sukhdei on her face and threatened that he would smash her
face. Early in the morning of June, 19 Deoman made a murderous assault with a
gandasa upon Sukhdei who was sleeping in the court-yard near her house and
killed her on the spot. Thereafter he threw the gandasa in the village tank
washed himself and absconded from the village. He was arrested in the
afternoon of the 20th June. On 21st June, he offered to hand over the gandasa
wl,ich he said he had thrown in the village tank and in the presence of the
investigating officer and certain witnesses, he waded into the tank and took out
a gandasa which on examination by the serologist was found to be stained with
human blood. He was convicted by the Sessions Judge and was sentenced to
death.
The appellate Court held that inasmuch as Section 27 of the Evidence
Act, creates an unjustifiable discrimination, between "persons in custody" and
"persons out of custody" and which offends Article 14 of the Constitution and
Deoman was acquitted.
The State of U.P. appealed against the judgment of High Court in
Supreme Court. Which held that the distinction arising in the matter of
admissibility of such statements made to the police officer in the course of an
investigation between person in custody and person not in custody, has little
practical significance. When a person not in custody approaches a police officer
investigating an offence and offers to give an information leading to the
discovery of a fact, having a bearing on the charge which may be made against
him, he may appropriately be deemed to have surrendered himself to the
police. Exceptional cases may certainly be imagined in which a person may
give information presenting himself before a police officer who is investigating
an offence. For instance, he may write a letter and give such informations or
send a telephonic or other message to the police officer. But in considering
whether a statement is the constitutional on the ground that the law has given
equal treatment to all persons similarly circumstanced, it must be remembered
that the Legislature has to deal with the practical problems. The question is
not to be judged by merely enumerating other theoretically possible situations
to which the statute might have been put is not applied. In that premise and
considered in that background that "persons in custody" and "persons not in
custody" do not stand on the same footing nor require identical protection is the
more theoretical possibility of some degree of unequality of the protection of
law relating to the admissibility of evidence between persons in custody and
I. AIK JYt,()!:i(' 1125
270 EVIDENCE ACT [S. 28
persons not in custody by itself a ground for striking down a solution or problem
of law of evidence.
It was held that Section 27 did not offend Article 14 of the Constitution.
The appeal was allowed.1
SECTION 28.-Confession made after removal of impression caused
by inducement, threat or promise, relevant-If such a confession as
is referred to in Section 24 is 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.
COMMENTS
Confession after removal of threat or promise.- Under Section 24, if
in the opinion of a court a confession seems to have been caused by any
inducement, threat or promise having reference to the charge and proceeding
from a person in authority, it is irrelevant and cannot be proved even against a
person making the confession.
Section 28 provides that if there is inducement, threat or promise given to
the accused in order to obtain confession of guilt from him but the confession is
made after the impression caused by any such inducement, threat or promise
has, in the opinion of the court, been fully removed, the confession will be
relevant because it becomes pre and voluntary.
It must be borne in mind that there must be strong and cogent evidence that
the influence of the inducement has really ceased. A female servant was
suspected of stealing money. Her mistress on Monday told her that she would
forgive her if she told the truth. On Tuesday she was taken before a Magistrate
and as no one gave any evidence against her she was let off. On Wednesday she
was again arrested. The Superintendent of Police went with her mistress into
Bridewell and told her in the presence of her mistress that "she was not bound
to say anything unless she liked and that if she had anything to say, her
mistress would hear her" (not knowing that her mistress had promised to
forgive her). He did not tell her that if she made a statement it might be given
in evidence against her. The prisoner then made a statement confessing the
guilt. It was held that this evidence was not admissible in evidence as the
promise of the mistress must be considered as still operating on the prisoner's
mind at the time of her statement. Had the mistress not been present on the spot
it might have been otherwise. The mistress had promised her that she would
forgive her if she told the truth. It is very probable that the servant made the
statement in pursuance of that inducement of her mistress and so it cannot be
said that impression caused by the inducement of the mistress had been fully
removed before confession was made. The general principle is universally
conceded that the subsequent ending of an improper inducement must be shown.
It is assumed to have continued until the contrary is shown, i.e. if it is proved
that there has been some inducement, threat or promise towards the accused
and after that he made certain confessions it should be presumed that
51.at~of U.P r, Deoman Upadhyay, AIR 1'.loO SC 1125.
s. 29] OF THE REL EV ANCY OF FACTS 271
confession was made in the existence of the impression of inducement, threat or
promise and it lies very heavily on the prosecution to prove that at the time
when confession was made the impression of inducement, threat or promise had
already been removed. I
The fact that the accused had been 12 days in police custody after the
police beating or threat and had time to reflect before making a confession to a
Magistrate, will not necessarily lessen the effect of the influence which had
been brought to bear on him.2
Impression produced by promise or threat may be removed (I) by lapse of
time, or (2) by an intervening caution given by some person of superior (but not of
an equal or inferior) authority to the person holding out the inducement, where
a prisoner confessed some months after the promise and after the warning his
confession was received.
29.-Confession otherwise relevant not to become
S CCTION
irrelevant because of promise of secrecy, etc.-If such a confession
is otherwise relevant, it does not become irrelevant merely because it
was made under a promise of secrecy, or in consequence of a deception
practised on the accused person for the purpose of obtaining it, or
when he was drunk, or because it was made in answer to questions
which he need not have answered, whatever may have been the form of
those questions, or because he was not warned that he was not bound
to make such confession, and that evidence of it might be given against
rum.
COMMENTS
Confession on promise of secrecy, etc.- Section 29 lays down that if
a confession is otherwise relevant3, that is, if it is not excluded from being
proved by any other provision of Indian Evidence Act, it cannot be irrelevant if
it was taken from the accused by (1) giving him promise of secrecy, or (2) by
deceiving him, or (3) when he was drunk, or (4) because it was made clear in
answer to question which he need not have answered, or because no warning was
given that he was not bound to say anything and that whatever he will state
will be used against him.
To be clear it may be said that if a confession is made voluntary without
any inducement, threat or promise from a person in authority and if it is not
made to a police officer nor was it made while the accused was in police custody
to any person other than a Magistrate, it will be received in evidence even if it
was made by a promise of secrecy, in consequence of deception, in a state of
drunkenness, or in answer to questions or without any warning that it may be
used against him.
Section 29 assumes that there is no bar to the admissibility of the
confession in question arising from any of the earlier provision, viz, Sections 24
1. Bhai;irilthi 1•. State of MJ· ., AIR 1959 MP 17.
2. Narain v. Kutch Government, A 'I~ N59 Kutch 27.
3. A confession made to a Pohce CfftcL'r or a confession made by the accused while in custody of ,1
Police Officer cannot be proved .i~amst a P4-'rso11 accused on an offence under Sections :S .md
2b of the Evidence Act respectively.
272 EVIDENCE ACT [S. 29
to 26 and it then proceeds to invalidate or negative other positive objections or
bars that may be raised against its admissibility.1
A confession obtained from an accused by promise of secrecy is relevant
under this section. A is accused of murdering B. C is a friend of A While sitting
in a lonely place C asked A whether he had killed B. A hesitated to answer, C
said "I swear by God that I will not tell it to anybody if you tell me the truth."
A confessed to his friend C that it was really he who committed the murder of
B. This statement has been obtained by a promise of secrecy but this will not be
excluded and may be proved under Section 29 because it is otherwise relevant
that is to say it is neither obtained by inducement, threat or promise in
connection with the crime of the accused from a person in authority.
A is arrested for the murder of B and is kept up in jail. A writes a letter to
his father expressing his regret for having committed a very heinous offence by
murdering B. The gate-keeper made a promise to the .. ccused that he will give
the '.etter to his father and to nobody else, but when he got the letter from the
accused, he delivered it to the authorities. Here though the confessional
statement of the accused, was taken by the gate-keeper by practising fraud upon
him, the statement is admissible as it was not taken by inducement, threat or
promise emanating from a man in authority nor was it made to any police
officer nor to anybody else while the accused was in custody of the police
officer.
Generally, a man under intoxication confess the guilt. If confessional
statement is made by an accused person while he is drunk, it will be admissible
if he has not become quite senseless for the very reason that it has not been
obtained by inducement or threat nor its made while he is in custody of a police
officer.
Want of warning
When a statement is made voluntarily without inducement, threat or
promise from a man in authority ; and when it is not made to a police officer or
made while the accused was in custody of the police officer, it is admissible
notwithstanding the fact that the person who took the confessional statement
did not warn the accused that he was not bound to make the statement and if he
did so, it may be used in evidence against him and upon that he may be
convicted.
A voluntary confession is admissible, though it does not appear that the
prisoner was warned, and even though it appears on the contrary that he was
not so warned.
Section 164 (2), Criminal Procedure Code, 1973 and Section 29.-
Section 164 (2), Criminal Procedure Code, 1973 [corresponding to old Section 164
(3), the Magistrate shall before recording a confession made to him during the
course of an investigation under Chapter XII of the Cr. P. Code, 1973 explain to
the person making it that he is not bound to make a confession and that if he
does so it may be used as evidence against him. There is a conflict of authority
l. RJngappa Hanamppa 11. S111c, AIR 1954 Born. 285.
s. 29) OF THE RELEVANCY OF FACTS 273
as to whether this provision overrides Section 29 of the Evidence Act. In some
cases it has been held that Section 164 (2), Criminal Procedure Code docs not
override Section 29 and that even if the provisions of Section 164 (3), Criminal
Procedure Code arc not complied with, the confession is admissible.! In other
words, according to these decisions a confession otherwise admissible docs not
become inadmissible merely because the accused was not warned that he was
not bound to make the confession and that if he does so it may be used as
evidence against him. The full Bench of Orissa High Court held-where the
requirements of Section 164 (2) [corresponding to old Section 164 (3) of the Code]
have not been proved to have been substantially complied with, what purports
to be the confessional statement cannot be treated as a validly recorded
confession under Section 164 which could be brought in under Section 26,
Evidence Act and there is thus no scope for invoking Section 29, Evidence Act.2 A
similar view was expressed by the High Court of Andhra Pradesh.3 The
Madras High Court, in a later case, held-Though Section 29, Evidence Act,
makes a confession made by an accused person who had not been warned
according to the provisions of Section 164 of Criminal Procedure Code,
admissible in evidence still the court must find out how far such confession can
be acted upon.4
The Orissa High Court has held that where there is substantial
compliance with the provision of Section 164, Cr. P.C., reliance can be placed on
Section 29, Evidence Act.5
The Patna High Court has held that Section 29 covers the field of
confessions other than those dealt with in the preceding Sections (24 to 28) or in
other words extra-judicial confessions. Section 29 was meant to dispel doubts
with regard to extra-judicial confession made under circumstances similar to
those which make judicial confession inadmissible and with respect to
confessions relevant otherwise than as confessions. For example, an admission
under conditions not requiring proof of guilt.6
In Nazir Ahmad v. The King Emperor,1 the Privy Council applied the
directive laid down in Taylor v. Taylor and held-Where power is given to do
a certain thing11 in a certain way, the thing must be done in that way or not at
all and other methods of performance are necessarily forbidden. Therefore
when a Magistrate of First Class records a confession under Section 164 of Cr.
P.C. but does not follow the procedure laid down therein oral evidence of
confession is inadmissible. The Supreme Court in U.P. State v. Singh,m, Singh9
held-If confession recorded by .i Magistrate is not recorded as directed under
Section 164, Cr. P.C., it would not be admissible. Therefore, it would be implied
1. Vella M. Coundan 11. Emperor, AIR 1932 Mad. -131 ; Emperor 11. Nanua, AIR 1941 All. US;
R,ing,,ppa Hanamppa t•. Stale, AIR 1954 Bom 285; Dhula t•. State, AIR 1957 RaJ 141.
2. D,,la l\.lan1lu t•. Slak·of Onssa, i\lR 1951 On. ies \F~).
3. In re M,m,wm Edu';,.,; ialu, AIR 1957 ,\I' 7~.
4. In n• K,1nm,1 Thamlu, /\IR 1950 MaJ 579.
5. Sh,1111111 State, 1977 Cr. LJ 2!53.
6. Emp,·ror v. Jamna ~mgh, AIR 1947 Pat. 31.15.
7. LI< 631/\ )72: (l93o) 38 Dom LR 987 (PC).
II. (lll75) I Ch lH2b. 431.
9. AIR l\lt>-1 SC 3.511 .
274 EVIDENCE ACT [S. 30
that a confession recorded under Section 164, Cr. P.C., without warning would
not be admissible. It is, therefore, submitted that the correct view is that
Section 29 applies to extra-judicial confessions.
S ECTION 30.-Consideration of proved confession affecting person
making it and others jointly under trial for same offence.-
When more persons than one are being tried jointly for the same offence
and a confession made by one of such persons affecting himself and some
other of such persons is proved, the Court may take into consideration
such confession as against such other person as well a<; against the person
who makes such confession.
Explanation.-"Offence " as used in this section includes the
abetment of or attempt to commi t, the offence.
Ill us/ rations
C. It is proved that A said-
(a) A and Bare jointly tried for the murder of
"B and I murdered C". The Court may consider the effect of this confession as
against B.
(b) A is on his trial for the murder of C. There is evidence to show that C
was r-urdered by A and B, and that B said-"A and I murdered C".
Ibis statement may not be taken into consideration by the Court against A,
as B is not being jointly tried.
COMMENTS
Use of confession by one accused against others.-As seen before, a
confession may be used as evidence against the person making it, and it is strong
piece of evidence against him. Section 30 lays down that when two or more
persons are tried jointly for the same offence, and the confession made by one of
them is proved at the trial, the Court may take into consideration
that confession against the other accused as well as the accused confessing the
guilt.
Principle underlying.-Where more persons than one are jointly tried
for the same offence, the confession made by one of them, if admissible in
evidence at all, should be taken into consideration against all the accused, and
not against the person alone who made it. It appears to be very strange that the
confession of one person is to be taken into consideration against another. Where
the confession of one accused is proved at the trial, the other accused persons
have no opportunity to cross-examine him. It is opposed to the principle of
jurisprudence to use a statement against a person without giving him the
opportunity to cross-examine the person making the statement. This section is
an exception to the rule that the confession of one person is entirely
inadmissible against another. The principle underlying this section is thus
stated by Phear, J. : "It seems to me that it is the implication of himself by the
confessing person which is intended by the Legislature to take the place, as it
were of the sanction of an oath, or rather which is supposed to serve .. s some
guarantee for the truth of the accusation against the other. Where a person
s. 30] OF THE RELEVANCY OF FACTS 275
admits guilt to the fullest extent and expose himself to the pains and penalti ... s
provided for his guilt, there is guarantee for his truth and the Legislature
provides that his statement may be considered against his fellow prisoners
charged with the same offence." But this principle is not very sound. In the first
place the confession of a crime is not an absolute guarantee of its truth as the
person making it, for it may have been made from a sense of hopelessness of
contending against the array of circumstantial evidence against him. At the
same time, it does not necessarily follow that because a man has truly
implicated himself, therefore his implication of another is also true.
Before the confession of one accused may be taken into consideration
against others, it has to be shown that (1) the person confessing and the others
are being tried jointly, (2) they are being tried for the same offence, (3) the
confession (to be taken into consideration) is affecting the confessioner and the
others.
Tried jointly.-Dn e of the tests as to whether the confession of an accused
person can be used as against his co-accused is, whether they are tried jointly.
A, Band C commit murder of D. Out of them only A is arrested.Band C abscond.
A makes a confession. He is tried and convicted. Afterwards Band
C are arrested and sent for trial. At their trial the confession of A cannot
be taken into consideration for the simple reason that they are not tried
jointly.
Under Section 30 the statement of one accused is admissible as against his
co-accused only when they are tried jointly.1 The confession by a person
originally charged with accused but discharged on withdrawal of case against
him cannot be used against the other accused. If the person making the
confession died and was never brought to trial, his confession would not be
admissible under this section as the confession of a co-accused. 2 But where
during the course of joint trial of two accused, one died but before !us death his
confession had been put on the record, it was held that the confession could be
used against the other accused but it would not be substantive piece of
evidence.3
In Suresh Budharmal Kt1/a11i a l i a s Pappu Kalani v. State of
Maharashtra,4 it was held by Supreme Court that when accused making
confessional trial was discharged not facing trial, his statement could not be
used against co-accused.
For the same offence.-For using confession of one accused against the
other only their joint trial is not necessary. II is also necessary that they should
be tried for the same offence. The expression 'same offence' in Section 30 means
the identical offence and does not mean offence of the same kind. Offences are of
the same kind when they are punishable with the same amount of punishment
------
1. AIR 1937 SinJ 211!.
2. l::>cnbo Kendvro 1,. Emperor, AtR 19311 Simi 94.
3. Ram Swaroop v. Emperor, AJR l'.137 Cal 3'.I; llaroon HaJi u. State <>I Maharashtra, AIR 1%8 SC
!132.
-1. AIR 1998 SC 32'il!.
276 EVIDENCE ACT [S. 30
under the same section of Indian Penal Code or of any special or local law. If
two persons are charged under Section 325, I.P.C., they are said to be charged
with the offence of same kind. A is charged under Section 325, I.P.C., for having
caused grievous injury to B,C is charged for having caused grievous injury to G.
Suppose A and G are tried jointly and A makes a confession to the effect that he
caused grievous hurt to B. This confession of A cannot be used against C, because
they are not tried for the same offence. But if A and C are tried jointly and both
of them are charged for having caused grievous injury to B and if A makes a
statement that he and C caused grievous hurt to B, the statement may be used
against both of them. Section 30 does not cover different offences in the same
transaction by different persons.
Confession of different offences committed in same transaction.-
If different offences are committed in course of same transaction and many
persons are tried jointly for different offences, the confession of one of such
persons cannot be used against the others. Where two persons are tried jointly,
but one is charged with offences under Section 372 and other under Section 373,
I.P.C., a confession made by one of them cannot be admitted against the other
under Section 30, Evidence Act.1 Where two persons are accused of an
offence under Section 411, I.P.C. and another of offence under Section 457,
I.P.C., the offences arising out of the same transaction, it was held that
the confession of the third accused would not be used under Section 30,
Evidence Act against the other two accused.2 Where three accused persons are
tried jointly, two of whom were charged for offences under Sections 302 and 457,
I. P. C. and the third offence under Section 411, I.P.C., it was held that
confession of the third accused would not be taken into consideration to
determine the guilt of the first two accused.3 A number of persons were charged
under Section 302, I. P. C. One of them was charged of offence under Section 201
of the same Code, the confession of the latter of the offence under Section 201
cannot be taken into account against the other accused with regard to charge
under Section 302.4
Statement by one accused leading to discovery.-A statement of
one accused leading to discovery cannot be used against a co-accused under
Section 30 of the Act.5
Affecting himself and some other.-To render the confession of the
one person jointly tried with another admissible in evidence against the latter,
it must appear that the confession implicates the confessing person and the
other accused. As to the extent of implication there is controversy between the
High Courts. Some High Courts have held, before the confession of a person
jointly tried with a co-accused can be taken into consideration against such co-
accused, it must appear that the confession implicates the confessing person
substantially to the same extent as it implicates the person against whom it is
I. Dy. U-Kal Remembrancer v. Daruna Baistoscr, JLR 22 Cal. "16'1.
2. Kundan v. Emperor, AIR l'JSO Smd 65.
J. Bhaga v Crown. AIR ICJ50 HP 35.
t Gani;•nna v. Emperor, AJK 1946 Mad 124.
5 Nabt Md. !1. Stall' of Mah,u ash!ra, 1980 Cr LJ 860.
s. 30J OF TIIE RELEVANCY OF FACfS 277
to be used in the commission of the offence in which they ate jointly tried,1
while some other High Courts have held that a confession is admissible
against the co-accused whether the maker ascribes to himself major or minor
part in the crime. They have also held the confession need not implicate the
maker to the same extent as the other co-accused.2 The controversy seem to
have been almost settled by the Supreme Court. So far as the confessional
statement of one accused is concerned, it may be taken into consideration against
the other accused if it fulfils the conditions laid down under Section 30 of
Evidence Act. One of the conditions is that the confession must implicate the
maker substantially to the same extent as the other accused person against
whom it is sought to be taken into consideration.3 Where on reading the
confession as a whole it appears that he was really trying to throw the main
blame on the other accused and make out that he was an unwilling spectator of
the crime committed by the other accused, the utmost that can be stated is that
the confession cannot be used at all against the other accused.4
Retracted confession of co-accused.-It is clear from the terms of the
section that where more persons than one are being tried jointly for the same
offence, a confession made by any one of them affecting himself and any one of
his co-accused can be taken into consideration by the court not only against the
maker of confession but also against his co-accused. The Evidence Act nowhere
provides that if the confession is retracted, it cannot be taken into
consideration against the co-accused or the confessing accused. The Act does not
prevent the court from taking into consideration retracted confession against the
confessing accused and his co-accused.s But it is a very weak evidence.6
Evidentiary value of confession of co-accused.-Section 30 does not
say that the confession of one accused will be evidence against the co-accused. It
only says that the court may take into consideration such confession. The
confession of a co-accused is not evidence. No conviction can be based upon it
solely. It can be used only to corroborate other evidence on the record. "A
confession of co-accused can be used to corroborate other evidence. It might assist
the court in coming to the conclusion that the other evidence is true and
therefore, an accused is guilty. The conviction must be based on other evidence.
The confession can only be used to help to satisfy a court that the other evidence
is true.7
The Court cannot start with the confession of the co-accused. It must begin
with the other evidence adduced by the prosecution and after forming the
opinion with regard to quality and effect of the said evidence, it is permissible
to tum to the coniession in order to receive assurance to the conclusion of the
guilt which the judicial mind is about to reach on the said other evidence.8
1. Sheroo v. Emperor, AIR 1925 Nag 78; Emperor v. Chhatrapal Singh, AIR 1930 Oudh 502; Kunja
Subudhi tt. Emperor, AIR l 'J29 Pat. 275 ; Shamboo v. Emperor, AIR 1932 AJI 228.
2. Dhanpal 11. Emperor, AIR 1946 Cal 156.
3. Balblr Sini;h v. Stale of Punjab, AIR 1957 SC 216.
4. Rajan! Kant t•. State, AIR 1957 Coa 21 {fB); C. Das v. State, AIR 1971 Ori. 100.
5. Ram Prakash v. State of Punjab. AIR 1959 SC 1; Hussain t•. Daleep Singh, AlR 1970 SC <15.
6. Haroon Haji t•. State of Maharashtra, AIR 1968 SC 832.
7. Chandra Das v. State, AIR 1952 Cal 618; Bhuboni Sahu v. Emperor, AIR 1949 PC 527.
8. Pancho v. State of Haryana, AIR 2012 SC 523 at p. 528.
278 EVIDENCE ACT [S. 30
In Kashmira Sin8h v. Statt? of M.P.,1 one LP. Tiwari was the Food
Officer at Gondia. The appellant Kashmira Singh was an Assistant Food
Procurement Inspector there. On 1st July, 1949 Tiwari found the appellant
getting rice polished at certain rice mill. At that date the polishing of rice was
prohibited by the State Law. Tewari reported the matter to the higher
authorities. The appellant was suspended and later on his services were
terminated by an order of the State Government with effect from the 7th July.
This embittered the appellant who on atleast two occasions was heard to
express a determination to be revenged. Ramesh was the son of L.P. Tiwari. In
pursuance of this determination, Kashmira Singh got into touch with Guru
Bachan Singh and enlisted his services for murdering the boy Ramesh.
On 26th December, 1949, religious ceremonies were in progress all day in
the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and
from there Kashmira was heard twice saying that he would teach a lesson to
the Food Officer. After few months, the son of the Food Officer went missing
and his body was found in a well. Kashmira, Gurudayal brother of Kashmira,
Prithipal son of Gurudayal and one Gurubachan, a rickshaw-puller in this case
were tried for conspiracy and killing the child. The prosecution story was that
Prithipal led the child, when he was playing near a Gurudwara, for some
distance and then the child was taken on cycle by Kashmira from where it was
recovered to the house of the appellant's brother Gurdayal Singh and was done
to death in the middle of the day at about 12. The boy was then tied up in a
gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal's
house till about 7 p.m.
At about 7 p.m. the body, wrapped a" above, was carried by Guru Bachan
Singh on his head to a chotokidar's hut near the Sikh Gurudwara and it was
left there till about midnight.
Shortly before midnight, the appellant and Guru Bachan engaged the
services of rickshaw coolie Shambhu. They took him to chotokidar's hut,
recovered the bundle of bedding and went in the Rickshaw to a well there. The
body was thrown into the well. The conviction was upheld by the High Court
Gurubachan was executed. The appellant went in appeal to the Supreme Court.
Evidence on which the prosecution relied, was the confession of Guru Bachan
Singh and the testimony of witnesses. The evidence was of circumstantial
nature and the Supreme Court was of opinion that even if believed, no
conviction could safely be based on ii. As for the cvidentiary value of the
confession of the co-accused Gurubachan confessed his crime implicating
himself and the appellant and Kashmira was also sentenced to death on the
basis of confession made by Gurubachan. The Supreme Court following Privy
Council decision in Bhubani Sahu v. King2 held that the confession of co-
accused is a very weak type of evidence. It is not recorded on oath nor it is tested
by cross-examination. It is a much weaker type of evidence than the evidence of
an approver as the approver gives his testimony under oath and is subjected to
I. A[R 1952 SC 159.
2. AIR 1949 PC 257.
s. 30) OF THE RELEVANCY OF FACTS 279
cross-examination. Therefore, the confession of co-accused cannot be made the
basis of conviction of accused. According to Justice Bose of the Supreme Court,
the proper test in such a case is first to marshall the evidence against the
accused excluding the confession altogether from consideration and see,
whether, if it is believed, conviction could be safely based upon it. If it is
capable of belief independently of the confession, then of course it is
unnecessary to call the confession in aid. But cases may arise where the Judge is
not prepared to act on the other evidence, as it stands even though, if believed,
it would be sufficient to sustain a conviction. In such an event, the Judge may
call in aid the confession and use it to lend assurance to the other evidence and
thus satisfy himself in believing that "which without the aid of confession, he
would not be prepared to accept".
According to the judgment of the Supreme Court Gurubachan was not a
rickshaw puller by profession arid it appeared that rickshaw was hired only
for that night for disposal of body of the deceased. He was like an accomplice
and not an independent witness. His confession could not be corroborated by the
evidence as he was not reliable witness because hiring the rickshaw by the
accused and taking Gurubachan to the place where the body was thrown into
well and he becoming witness of crime when the body had already been taken
for more than half distance or, the head did not show the witness being
independent. As regards motive of the accused, it was held that the accused
had strong motive to take revenge but other persons dismissed from their
services had also similar motives. The Supreme Court referred to Bhubani S11hu
v. King,1 in which the Privy Council observed that there was a peculiar
tendency prevalent in India to mix innocent with guilty and the only safeguard
against the danger of condemning the innocent with guilty could be only by
insisting on independent witness. The appellant was acquitted.
The confession of a co-accused is not a substantive evidence, it can be
pressed into service only when the court is inclined to accept the other evidence
and feels the necessity of seeking for an assurance in support of his conclusion
deducible from the other evidence.2
As proved.-As discussed before there are many stages for an accused
person to make a confession. After an offence is committed a police officer begins
investigation. The person suspected of the crime is arrested by the police. If the
person so arrested expresses his desire to confess, the police officer taken him to
some Magistrate, who records the confession. Then, at the trial that confession
is proved. Again an accused person who had not -nade any confession during
investigation as mentioned above, may confess it at the trial. The question for
consideration is as to whether both kinds of confessions mentioned above, are to
be taken into consideration under Section 30. There is divergence of judicial
opinion on this point. Some High Courts have held that Section 30 does not
refer to confessions made at the trial. Accordin~ to them Section 30 applies to
confessions made before and proved at the trial. Some other High Courts have
I. 76 IA 147.
2. Han Charan v. State of Bihar, AIR 1954 SC 1184; Mohd. Hussain t•. Daleep, AlR 1970 SC 45.
3. Gov md t•. Emperor, AIR 1929 Mad, 28.'i ; Empress v. Mahadeo Prasad, AIR 1923 All 322.
 280 EVIDENCE ACT
held that the confessions at the trial can also be taken into consideration.1 It
should be remembered that the first kind of opinion seems to be correct. This
section uses the word "proved." A confession can be proved at the trial only if it
was made before the trial. If a confession is made at the trial it does not require
any proof. The section says, "when a confession is proved." This makes it clear
that the section refers to the confession made prior to the trial and not one made
at the trial.
Confessional statement against co-accused.-A confessional
statement can be used even against co-accused, if the person making the
confessions besides implicating himself also implicates others who are being
jointly tried with him.2
In Nathu v. State,3 Nathu, Bhola and Ram Singh were charged with the
murder of Sumer Singh aged about ten or eleven years. The prosecution story was
that on the day previous to occurrence the appellant Nathu told them to bring
the deceased, Sumer Singh, and promised to pay Rs. 5 to each of them (Bhola
and Ram Singh). Accordingly on 17th May, 1952 Ram Singh and Bhola enticed
the boy away to an outlaying garden stating that they might eat mangoes
there. While they were in garden, the appellant Nathu came there, tied an
'angochha' round the neck of Sumer Singh ar .: s.rangled him, while Bhola and
Ram Singh were holding the deceased by the hand and feet. After killing the
boy they threw him in the well. Bhola and Ram Singh made confessional
statements before a special Magistrate. These confessions, though subsequently
retracted have been found by both the Courts below to have been true and
voluntary, and it was on the strength of these confessions which received
corroboration in the material particular from the evidence in the case that
accused Bhola and Ram Singh were convicted. The confessions of Bhola and
Ram Singh were relied on in support of the conviction of the appellant. One of
the contentions urged on his behalf in the Supreme Court was that the
confessions of Bhola and Ram Singh were inadmissible in evidence against him
and the conviction based thereon was illegal. Held-Such statements were not
evidence as defined in Section 3 of Evidence Act, and no conviction could be
founded thereon but they could be referred to as lending assurance to that
conclusion and fortifying it.
Over whelming evidence against co-accused and confession of
accused in a criminal conspiracy.-Where in a criminal conspiracy, there is
overwhelming evidence against co-accused independent of confession of accused,
the confession can be fully applied against co-accused.4
S ECTION 31.-Admissions not conclusive proof, but may estop.-
Admissions are not conclusive proof of the matters admitted, but they
may operate as estoppels under the provisions hereinafter contained.
l. G~nrat r•. Emperor, AIR 1931 Nagpur 169; Jana 1'. Mohd. Akbar, 1976 Cr L/ 1'147
2. Stato of M~h,uashtr" r. K.:irn.il Ahmad Mobammed Vakil Ansarl, AIR 2013 SC J.141.
3. AJR 1956:, _ 56.
4 Md. Jamiluddin v State of West &-ngal, AIR 2014 SC 2587 ill p. 2609.
[S. 31 s. 31) OF THE RELEVANCY OF FACTS 281
COMMENTS
An admission is a voluntary acknowledgment made by a party or someone
identified with him in legal interest of the existence of certain facts which are
in issue or relevant to an issue in the case. The predominant characteristic of
this type of evidence consists in its binding character. Admissions are broadly
classified into two categories : (11) judicial admissions, and (b) extra-judicial
admissions.
Judicial admissions and extra-judicial admissions.-Judicial
admissions are formal admissions, made by a party during the proceedings of
the case. Extra-judicial admissions are informal admissions not appearing on
the record of the case. Judicial admissions being made in the case fully binding
on the party that makes them. They constitute a waiver of proof. They can be
made the foundation of the rights of the parties.
Example
A files a suit against B challenging a sale deed executed by his (A's)
father in respect of joint Hindu family property. A alleges that the property
was sold by his father without any legal necessity and so it was not binding
upon him. B admits in his written statement there was no legal necessity to sell
the property. He may even after filing the written statement admit that the
sale deed was executed without any legal necessity. If at any time, after the
sale-deed was executed by A's father and before A filed the suit, B had a
statement, written or verbal, admitting that A's father had it would also be
admission sold the property without any legal necessity, the admission at the
trial are designated as a judicial admission, it would also be admission. The
admission at the trial operates as a waiver. It relieves the opposite party from
the need of any evidence. The other party may apply to the court for such
judgment or order as upon such admission he may be entitled to. In the above
mentioned example, when B admits at the trial that the sale deed was
executed without any legal necessity, A need not produce any evidence to prove
that the sale deed executed by his father was without legal necessity. "So the
judicial admission is a formal act, done in the course of judicial proceeding,
which waives or dispenses with the production, of evidence, conceding for the
purpose of litigation that the proposition of fact alleged by the opponent is
true."
Admissions under Sections 17 to 23 not conclusive.-Admissions
dealt with in the Indian Evidence Act (in Sections 17 to 23 and 31) are different
from the judicial admissions. Admission in the Evidence Act is nothing but a
piece of evidence.
According to Section 1 admissions as dealt with in Sections 17 to 23 are
only a piece of evidence. They are not conclusive proof of the facts admitted
like the judicial admissions, but they may operate as estoppels under Sections
115 to 117 of the Act.
Admissions of a party to a suit are strong evidence against him but he is at
liberty to prove that such admissions were mistaken or were untrue and is not
282 EVIDENCE ACT IS. 31 s. 31] OF Tl IE RELEVANCY OF FACTS 283
estopped by them unless another person has been induced (by admissions) to the admission is duly proved and the person against whom it is proved does not
alter his condition. satisfy the court that it was mistaken, untrue, there is nothing to prevent the
If from the facts it could be shown that the admission was wrong, it would court from deciding the case in accordance with it. Admissions are very strong
fail to have any effect. It is only prima [acie evidence against the party piece of evidence against the party making it unless they are proved to be false.
making the statement and shifts the burden of proof.1 Admission by a party in plaint may be used against him in other suits. But such
admission cannot be regarded as conclusive and the party can show it to be
The weight to be attached to which must depend on the circumstances
wrong.1
under which it is made. It can be shown to be erroneous or untrue, so long as the
person to whom it was made has not acted upon it to his detriment in which Admission in a book==Statements made in a book, though cannot be
case it might become conclusive by way of estoppel. considered as conclusive admissions, yet they can be taken as additional
It is no doubt true that what a party himself admits to be true may circumstance alongwith other circumstances for determining whether the
reasonably be presumed to be so. But before this rule is invoked, it must be conduct of the appellant amounts to waiver and/or abandonment of right in
shown that there is such a clear and unambiguous statement by the opponent, as respect of the articles in question.
will be conclusive unless explained. A statement by a party in the certain
proceedings which were fraudulent and not conclusive in character would not be Admission does not create title.-No title can pass from one person to
sufficient, without more, to sustain a finding that the proceedings were another by mere admission.3
collusive.2
An admission shifts the onus on the person admitting the fact, on the Admission is substantive evidence.-Admission is a substantive
principle that what a party himself admits to be true, may reasonably be evidence though they are not conclusive proof of matter. If the admissions are
presumed to be so and until the presumption is rebutted the fact stated must be not explained by the person by whom it was made it is a very strong piece of
taken to be true. But admissions are not conclusive, and unless they constitute evidence against the matter.4 The admissions are not to be put to the matter for
estoppel, the maker is at liberty to prove that they are mistaken or untrue. contradiction if he appears as a witness if they are not ambiguous.5
Admissions are mere pieces of evidence and if the truth of the matter is known
It is true that evidentiary admissions are not conclusive proof of the facts
to both parties, it has little value.3
admitted and be explained or shown to be wrong, but they do raise an estoppel
An admission is the best evidence that an opposite party can rely upon and and shift the burden of proof to the person making them or his representative-
though not conclusive is the decisive of the matter unless successfully in-interest unless shown or explained to be wrong, they are efficacious proof of
withdrawn or proved erroneous.4 the facts admitted.6
'The principle underlying the evidentiary value of an admission may be
summarised thus : Admission may estop.-Admissions which have been acted upon by
(1) An admission constitutes a substantive piece of evidence in the case and others are conclusive against the party making them. He cannot prove that
for that reason can be relied upon for proving the truth of the facts incorporated admissions are mistaken or false.7
therein.
Distinction between Admission and Estoppel
(2) An admission has the effect of shifting the onus of proving to the
...
contrary on the party against whom it is produced with the result that it casts Admission Estoppe!
an imperative duty on such party to explain it. In the absence of satisfactory 1. Admission is statement oral or 1. Estoppel is rule of evidence
explanation it is presumed to be true. documentary or contained in which prevents a person from
(3) An admission, in order to be competent and to have the value and effect electronic form which or relevant retreating his earlier
referred to above should be clear, certain and definite and not ambiguous, or fact suggest any inference or representation.
confused. relevant fact. .. --

Evidentiary value.-From what has been said above, it is not to be 1. Basaru Singh v. Jank! Singh, AIR 1967 SC 341; Narain v. Gopal, AlR 1960 AIL 100; Wasiq Ali v.
inferred that admission of a party is of no or little evidentiary value.5 When Director of Consolidation, AIR 1974 All. 46.
2. Karan Singh (Dr.) v. Stale of J. & K., (200!) 5 SCC b98.
I. Rahmanul Hassan 11. Zahurul Hassan, AIR 1974 Alld. 281; Davind v. Lachrni, AJR 1930 Lah. 985. 3. Arnbika Prasad t•. Ram Ekbal Rai, AIR 1966 SC 605.
2. Nagu Bait•. Shama Rao, AJR 1956 SC 593.
3. Ksshon Lal v. Mst. Chalti Bai, AfR 1959 SC SOI ; K. S. Srinivasan v. Union of India, AIR 1958 SC 4. Bharat Singh 11• Bhaglrath, AIR 1966 SC 405.
419. 5. Ayodhy,, Pcrshad v. Bhawanl, AIR 1957 AU. 1 (FBJ.
4. Narayan 11. Gopal, AJR 1960 SC 100. 6. Oudh Kishore 11• Ram Gopal, AIR 1979 SC Sol.
5 Ayodhya Pruad v Bhavani Shanker, AIR 1957 All. 1 (FB). 7. Guiab Bhai 1,. Collector of Daman, AIR 1970 Goa 59.
284 EVIDENCE ACT [S. 31 s. 32) OF THE RELEVANCY OF PACTS 285

telling the truth. Besides this, the evidence of C is given under personal
Admission Estoppel responsibility and if he deposes falsely he may be criminally liable. None of
2. Admission is not conclusive 2. Estoppel is conclusive. these sanctions can be availed of against D when he says "C told me that he
evidence. It can be rubutted by saw B attacking A". In this case 'B attacked A' cannot be stated on oath by D.
positive proof. He can only state on oath that C told him like that. Again he cannot be cross-
examined on the fact of assault. On every question he will plead ignorance and
3. ln some circumstances, the 3. Estoppel operates only against
say that C knows it. And also there is no fear for him to be prosecuted for
admission of third person binds person making representation and
perjury.
the parties to the suit (Section 19 his legal re-presentative.
and Section 20 of Evidence Act). The purpose and reason of the hearsay rule are based on two
4. Admission is weakest kind of 4. Estoppel is regarded a decisive considerations : (1) a necessity for the evidence, and (2) a circumstantial
evidence. evidence of high quality. guarantee of trustworthiness. As said above, hearsay is excluded because it is
considered not sufficiently trustworthy. It is rejected because it lacks the
5. In case of admission, it is not 5. ln case of estoppel, the person to
sanction of the tests applied to admissible evidence, namely the oath and cross-
necessary that a party has whom representation is made has
examination. But when there are special circumstances which give a guarantee
changed his position on changed his position to his
of trustworthiness to the testimony, it is admitted even though it comes from a
inducement of person making detriment.
second-hand source. The theory is that there are two principles as the basis of
admission. the necessary exceptions, (1) necessity, (2) special circumstances which render
6. The rules regarding admissions 6. The rules regarding estoppel are the evidence more trustworthy than hearsay evidence in general. It may be
are laid down under Sections 17 to laid down under Sections 115 to impossible, or it may cause unreasonable expense or delay to procure the
23 and Section 31 of Evidence Act. 117 of Evidence Act. attendance, of a witness who, if present before the Court, could give direct
evidence on the matters in question ; and it may also be that this witness has
STATEMENTS BY PERSONS WHO CANNOT made a statement either written or oral with reference to such matter under
BE CALLED AS WITNESSES such circumstances that the truth of this statement may reasonably be
presumed. In such a case the law as enacted by Sections 32 and 33 dispenses with
Principle.-As a general rule, oral evidence must be direct, that is to say, direct oral evidence of the fact and with the safeguard for truth provided by
a fact to be proved by oral evidence must be stated before the court by the person cross-examinations, and the sanction of an oath, the probability of the
who has got first hand knowledge of the facts to be proved. A is murdered by B, statement beu:rv true depending upon other safeguards which are mentioned in
C is present on the scene of murder.Bis sent up to stand his trial in the Court of the sections. All the clauses of Section 32 are based upon the principle that the
Sessions Judge. In this case C may appear as a witness and depose that he saw B statements are of, such nature or were made under such circumstances as to
assaulting A with dangerous weapon. One D may try to depose as "C told me guarantee their being true.1
that he saw B assaulting A". Here the statement of C is direct evidence as he
himself saw the occurrence. The statement of D is second hand or derivative Exception to the general rule.-There are several exceptions in the
evidence. The second-hand evidence is loosely termed as 'hearsay evidence'. rule excluding hearsay evidence. Sections 32 and 33 of the Indian Evidence Act
When a witness appears before the court to give evidence of a fact about are exceptions to the rule. Under Sections 32 and 33 derivative, i.e., hearsay
which he has got first rate knowledge, he has to take oath and also the evidence is admissible. These two sections give different instances where
opposite party is given an opportunity to cross-examine him. At the same time, indirect evidence is relevant.2
every witness must give his testimony, under such circumstances as may expose SECTION 32.-Cases in which statement of relevant fact by person
him to all the penalties of falsehood. A second-hand, that is hearsay evidence who is dead or cannot be found, etc., is relevant.-Statements,
is generally excluded from evidence on the grounds: (1) that it is not stated on written or verbal, of relevant facts made by a person who is dead, or
oath, (2) that the party against whom the proof is offered, has no opportunity who cannot be found, or who has become incapable of giving evidence, or
of cross-examining the original source whence it is derived, and (3) that the whose attendance cannot be procured without an amount of delay
person putting the fact before the court is immune from all sorts of penalties of or expense which, under the circumstances of the case, appears to the
falsehood. court unreasonable, are themselves relevant facts !n the following
In the example given above if C appears before the court, he will have to cases:-
take oath that he will tell the truth. When he has deposed that he saw B
l. Soney L..11 v Daribdeo, AIR 1935 Pat 167.
assaulting A, the counsel for B will cross-examine him to show that he is not 2. Mst. lliro v. Atma Ram, AIR 1937 PC 101.