WHAT IS FACT

Generally “Fact” means "an existing thing". But Under Evidence Act, the meaning of word 'fact' is not limited to
what is tangible and visible but it also covers feelings, opinion and state of mind which are the invisible in nature.
According to Section 3 of the Indian Evidence Act,1872 “Fact” means and includes -

          (1) anything, state of things, or relation of things, capable of being perceived by the senses;           
          (2) any mental condition of which any person is conscious.

Examples –
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

The existence of a certain state of things is a positive fact, the non-existence of it is a negative fact

“RELEVANT FACT” -

     One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to
in the provisions of Indian Evidence Act,  relating to the relevancy of facts. (Section 3 of IEA).
  
  The word 'relevant' has two meanings.  in one sense, it means "connected" and another sense "admissible". One
fact is said to be relevant to another when the one is connected with the other, in any of the way referred to in the
provisions of the Evidence Act relating to the relevancy of facts (Section 5 to 55 of IEA).

There are two kinds of relevancy -

(i) Logical Relevancy –
(ii) Legal Relevancy -

 (i) Logical Relevancy - A fact is said to be logically relevant to another when by application of our logic it appears
that one fact has a bearing on another fact.

(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as relevant under Section 5 to 55
(Relevancy of Fact).

“FACTS IN ISSUE” -

Section 3 of the Indian Evidence Act, 1872 defines Fact in Issue.

 According to Section 3 the expression “facts in issue” means and includes —

            any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or
extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation -
       Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court
 records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

Illustrations -
    A is accused of the murder of B. At his trial, the following facts may be in issue —

          That A caused B’s death;

          That A intended to cause B’s death;
          That A had received grave and sudden provocation from B;
          That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable
of knowing its nature.

Distinction Between Facts in Issue and relevant Facts: - 

                     following are the notable points of distinction between facts in issue and relevant facts : 

No.            Fact in Issue                Relevant Fact 

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

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

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

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

MEANING OF FACT AND THE CONCEPT OF FACT IN ISSUE

The evidence is given for the purpose of establishing the existence of a fact in issue. It means the matter in issue. 
1) Meaning of Fact :
 
 The term 'Fact' means an 'an existing thing'  But under Evidence Act, the meaning of the word is not limited to only
what is tangible and visible or, is in any way, the object of senses.
According to  Section 3 of The Indian Evidence Act, 1872 Fact means and includes : 
 1. Anything, state of things or relation of things capable of being perceived by the senses. 
Illustrations : 
 a) That a man heard or saw something, is a fact.
 b)  That a man said certain words, is a fact.

2). any mental condition of which any person is conscious  

Illustrations :
a) A person has an intention to commit murder. 
b)That a man has a certain reputation, is a fact. 

Rights and liabilities in a judicial proceeding emerge out of fact. Section 3 of Indian Evidence Act categories fact
into - 
1) Physical facts and 
2) Psychological facts.  

A) Physical facts - It means and includes anything, state of a thing or relation of things, capable of being perceived
by senses. In other words, all facts which are subject to the perception by bodily senses are physical facts .  They are
also called external facts. 

B) Psychological facts - Those facts, which cannot be perceived by senses are 'Psychological Facts' They are also
known as internal facts. Examples- Intention (Mens Rea) knowledge, good faith, fraud etc. 

2) FACTS IN ISSUE (SECTION.3) :

The expression “facts in issue” means and includes —
any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent
of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation.—
             Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court
records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
 Illustrations
‘A' is accused of the murder of 'B'.
At his trial the following facts may be in issue:—
That A caused B’s death;
That A intended to cause B’s death;
That A had received grave and sudden provocation from B;
That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of
knowing its nature.

'Fact in issue' are those facts, which are alleged by one party and denied by other parties in the pleading in a civil
case or alleged by the prosecution and denied by the accused in a criminal case.

Example - A is accused of murdering B. at trial, the following facts may be in issue.

That A caused B's Death. ( It refers to the question, whether A has caused the death of B. If the answer is 'No', A is
discharged/ acquitted. If the answer is 'Yes' the following questions will arise)     
That A is intended to cause B's Death. (If A caused B's death, the next question arises is, whether A had an intention
to B's death or, not. If the intention(Mens Rea/Mental element) is present, it is murder or culpable homicide and A is
awarded serious punishment i.e. death or life imprisonment. Otherwise (if intention/mens rea is absent) it amounts to
an accident, which is a defense Under Section 80 I.P.C. If the accident is by negligence, the punishment is up to two
years imprisonment or fine or both)

That A had received grave and sudden provocation from B (It refer to the question, whether B is
instrumental/responsible for such a grave and sudden provocation by A, according to cause B's death.)

     That at the time of committing the act, whether A was incapable of knowing the nature and extent of the
consequences (of his act) by reason of unsoundness or other (Even if A caused B's death intentionally, A may plead
the defence, on the ground that he was incapable of knowing the nature and extent of consequence of the act he was
doing, due to insanity under Section 84 I.P.C., drunkenness under Section 85 and 86 I.P.C etc.)

In short the questions, which give rise to a right or liability are called Fact in Issue.  The fact in issue is also known
by its Latin name 'Factum Probandum' or that which is  to be proved.

DOCUMENTS

1) Introduction :
         Witnesses and Documents are the Chief sources of evidence. A witness is person gives testimony or evidence
before any Court. Evidence given by witnesses is called oral evidence while the evidence produced through the
document is called documentary evidence. According to Section 3 of the Indian Evidence, 1872 documentary
evidence means and includes all documents produced before the Court for its inspection. Documents are divided into
two categories, Public Documents and Private Documents.   

2) The meaning of Documents: 

       In general, Document is a record or the capturing of some event or thing so that the information will not be lost.
Usually, a document is written, but a document can also be in other forms like pictures and sound.  

Examples of documents: 

   Here are some examples of Documents - Birth Certificate, Bank Statement, Wills and Deeds, Newspaper issues,
Individual newspaper stories oral history recordings, Executives orders etc. 

3) DEFINITION OF DOCUMENT: 
       The document can be defined as," a piece of written, printed or electronic matter that provides information or
evidence or that serves as an official record.   

       Section 3 of Indian Evidence Act, 1872 defines Document as, “Document” means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to
be used, or which may be used, for the purpose of recording that matter.

 Illustrations -
1. A writing is a document; 
2. Words printed, lithographed or photographed are documents; 
3. A map or plan is a document; 
4. An inscription on a metal plate or stone is a document; 
5. A caricature is a document.

4) TYPES OF DOCUMENTS 

   Documents are divided into two categories  Private Documents and Public Documents.

Public Documents :  

According to Section 74 of Indian Evidence Act, 1872 the Following Documents are Public Documents:

        (1) Documents forming the acts, or records of the acts— 

               (i) of the sovereign authority, 
              (ii) of official bodies and tribunals, and 
              (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or
of a foreign country; 

        (2) Public records kept in any State of private documents."

Private Documents : 

               As per Section 75 of Evidence Act, "all other documents other than those, enlisted in Section 74 of the
Evidence Act are Private Documents."

MEANING AND DEFINITIONS OF EVIDENCE

1) Meaning of Evidence
The Expression 'Evidence' is derived from the  Latin word 'Evidentia' which means 'being clear' or 'apparent clear'
the latin word Evidene or Evidere, means to show clearly  or to prove or discover clearly. It means to make clearto
the sight, to make plainly, certain, to ascertain, to prove.

   Evidence is Anything that gives reason for believing. According to Phison, Evidence means the testimony,
whether oral, documentary, or a real which may be legally received, in order to prove or disprove some fact in
Dispute. 
 According to Dictionary meaning (Oxford Dictionary of Law)of  Evidence - that which tends to prove the existence
or nonexistence of some fact. It may consist of "testimony", Evidence”, “real evidence, and when
admissible hearsay evidence .
   The Law of Evidence comprises all the rules governing the presentation of facts and proof in proceedings before a
Court, including in particular the rules governing the admissibility of evidence and the 'exclusionary rules.

2) Definitions of Evidence:
    Law of Evidence can be defined as a system of rules for ascertaining controverted questions of Fact in judicial
inquires . 

 According to Taylor :
  " Evidence is adduced to prove any fact the truth of which is submitted to judicial investigation."
According to Advanced Learner Dictionary of Current English :
"Evidence means anything that gives reason for believing something, that makes clear or prove something."

The Definition of Evidence given under Section 3 of Indian Evidence Act  :

“Evidence” means and includes —
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of
fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are
called documentary evidence.
       The Law of Evidence has great importance, since it enables the court to decide the existence or non-existence of
fact. 
Kinds of Evidence

What is Evidence?
                   Section 5 of the Evidence Act says," Evidence may be given in any suit or proceeding of the existence
or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no
others."

The Section says that 'Evidence may be given....' But what is Evidence?

            This word is used in common parlance in three different senses (a) as equivalent to relevant (b) as equivalent
to proof, and (c) as equivalent to the material on the basis of which courts come to a conclusion about the existence
or non-existence of disputed facts.
   For example we may say, the presence of an accused person near the scene of the crime just before the crime was
committed, is evidence that he may be guilty; whereas his presence after the crime was committed, at the same
place, is not evidence of the guilt of the accused. In this statement the word is used as equivalent to relevant.  Again
we may say that the possession of stolen article immediately after the theft is evidence of the fact that the person in
whose possession it is found is either theft, or a receiver of stolen property. In this statement, the word is used as
equivalent to proof, which is really the effect of evidence. But it is neither of these senses that the word is used in the
Act. It is used in the third sense mentioned above, namely, as equivalent to the material placed before the Court on
the basis which the court comes to a conclusion as to the existence or non-existence of a disputed fact. It is defined
in Section 3 of the Act as bellow:

Definition
“Evidence”.—“Evidence” means and includes —
                      (1) All statements which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry, Such statements are called oral evidence;

                      (2) All documents including electronic records produced for the inspection of the Court,
Such documents are called documentary evidence.

            The definition of word "evidence" Under Section. 3 of Indian Evidence Act is explanatory and not precise. It
consist oral evidence and documentary evidence. Oral evidence is evidence of the fact brought to the knowledge of
the court by the verbal statement of witness, quality to speak on the point he testifies. It includes all statements,
which the court permits or requires to be made before it by witness with regard to matter of fact under inquiry.

     Documentary Evidence is evidence of the fact brought to the knowledge of the court by inspection of the
document produce before the court.
   Oral evidence is verbal testimony of the witness whereas the documentary evidence is written testimony of a
witness of the document. Oral evidence is adduced, documentary evidence proved before it is admitted as evidence.

There are following kinds of Evidence:

1)  Direct Evidence -
It is also known as 'positive evidence'. Evidence given by direct witness / eyewitness is called Direct Evidence.
Direct Evidence is the testimony of a witness to the existence or non-existence of a fact or fact in issue. It is
evidence of fact actually perceived by a witness with one of his own senses.
Illustrations

A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye witness. A sues B for breach of
contract C deposes that he was present at the time of agreement entered into between A and B witnessed. In this
Example C is the direct witness/ Eye witness.

2) Indirect / Circumstantial Evidence -

In cases, where direct evidence is not available, then circumstantial evidence can be resorted to. Circumstantial
evidences is that which tends to establish fact in issue by proving another fact which though does not itself
conclusively establish that fact, affords and inference as to its existence.
  
Relevant case law 
1)  A.C. Lagu vs State of Bombay AIR1960 SC 500, 1960 SCJ 779: The accused, in the instant case was family
doctor. He was tried for murder of is patient, a rich woman and sentenced to death on the basis of the circumstantial
evidence.

2) Kalua Vs. State Of U.P. AIR 1958 SC 180

         In this case Kalua was charged with the murder of the deceased by shooting him a pistol. The Circumstantial
evidence proved was:

A) Few days before the killing of the deceased the accused had held out a threat against him.
B) A cartridge was found near the cot of the deceased. 
C) A pistol was recovered from his house.
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the dead body was fired from pistol
produced by accused.

       It was held that there could be no room for thinking in the circumstances established in this case, that anyone
else than the accused might have shot the deceased. He was convicted.

3) Real Evidence - 
Real or material evidence is the evidence of fact brought to the knowledge of the Court by inspection of physical
object and not by information derived from the witness or documents, for e.g. stolen property, weapons, etc.

4) Personal Evidence - 
Personal evidence is an oral testimony of the witnesses, which is afforded by human agent by way of disclosure or
by voluntary signs.

5) Original Evidence - 
Original evidence is that which a witness reports himself to have seen or heard through the medium of his own
senses for e.g. A says that he saw B murdered C with sword.
6) Hear-say Evidence - 
It is also known as second hand or unoriginal evidence, a witness is merely reporting not what he himself saw or
heard but what he has learnt in respect of the fact through the medium of the third person. It is a statement made by a
witness of what he has been said and declared out of court by a person and not before the court. Hearsay evidence is
no evidence and is not admissible.

Illustration -
         'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard ’D’ saying that 'D' saw 'A' with B's
Cycle.  Such evidence given by 'C' is not admissible on the ground that testimony of C is hearsay evidence.

        Hearsay Evidence means whatever a person is heard to say it includes:

1) A statement made by a person, not called as witness;

2) A statement contained or recorded in any book, document or record which is not admissible.
The hearsay witness may not be able to say correctly and completely the truth of his statement.
(General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain exceptions to this rule
see in detail Hearsay Evidence)

7) Primary evidence -
Primary evidence means the document itself produced for the inspection of the Court. (S. 62).

Illustration 
A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if B produces before
the court, the sale deed, it is primary evidence.

Primary evidence is considered as the best evidence since it provides proof with certainty. That is why law
insists/requires first the primary evidence. The document may be in counter parts, and then each counterpart is
regarded as primary evidence. If the document is made by uniform process like printing or lithography, each one
constitutes the primary evidence.

8) Secondary evidence - 
       Secondary evidence means inferior or substituted evidence which itself indicates the existence of more Original
source of information (Sec. 63). Secondary evidence may be given in the absence of the (better) primary evidence if
proper explanation is given for such absence. Section 65 of the Evidence Act provides for circumstances in which
secondary evidence is admissible. 

    According to Section 63 copies made and compared with the originals, or Photostat copies may be treated as
secondary evidence.

Following are the circumstances in which secondary evidence is admissible (Section 65).

1) The person in possession of the original is not within the reach of the Court.
2) If the original is in possession of the opposite party.
3) If the original is lost.
4) When original deed had already been admitted in the Court.
5) If Original is public document.
6) When the original is not easily movable; and
7) When the original consists of many accounts.

9) Oral Evidence -
All statement which the Court permits or requires to be made before it by witnesses, in relation to matter of fact
under inquiry; such statements are called Oral evidence;

10) Documentary Evidence -

All document including electronic records, produced for the inspection of the Court, such documents are called
Documentary Evidence.

The expression 'document' is defined in section 3 of the Evidence Act, as follows:

“Document”.—“Document” means any matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of
recording that matter.

Illustrations
1. Writing is a document;
2. Words printed, lithographed or photographed are documents;
3. A map or plan is a document;
4. An inscription on a metal plate or stone is a document;
5. A caricature is a document.

11) Judicial Evidence - 

It is evidence received by courts of justice in proof or disproof of facts, the existence of which comes in question
before them. Judicial Evidence is a species of the genus evidence and is for the most part nothing more than natural
evidence, modified by rule of positive law.

12) Non-judicial Evidence - 

Evidence given in the proceeding before the Magistrate or officer not in a Judicial capacity but in an administrative
one, is non Judicial evidence, e.g. evidence in proceedings u/s. 164 of Cr. P.C. i.e. recording of confession and
statements.  (Confessions made to Police Officer are inadmissible)

DEFINITIONS OF PROVED, NOT PROVED, DISPROVED, MY PRESUME, SHALL PRESUME AND

CONCLUSIVE PROOF.

INTRODUCTION 

Section 3 (Interpretation clause) and Section 4 (Presumptions) of the Indian Evidence Act, 1872 Defines Proved,
Not Proved, Disproved, My Presume, Shall Presume and Conclusive Proof. 

PROVED — 
         A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists. (Section 3 of IEA)

 DISPROVED — 
        A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does
not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does not exist. (Section 3 of IEA)

 NOT PROVED —
     A fact is said not to be proved when it is neither proved nor disproved. (Section 3 of IEA)

MAY PRESUME — 
     Whenever it is provided by the Indian Evidence Act that the Court may presume a fact, it may either regard such
fact as proved, unless and until it is disproved or may call for proof of it. (Section 4 of IEA)

SHALL PRESUME —
     Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless
and until it is disproved. (Section 4 of IEA)

CONCLUSIVE PROOF  —
      Where one fact is declared by this Act (IEA) to be conclusive proof of another, the Court shall, on proof of the
one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
(Section 4 of IEA)

DISTINCTION / DIFFERENCE BETWEEN PROVED , DISPROVED AND NOT PROVED.

                A Court after considering the evidence adduced before it and hearing arguments, comes first to a
conclusion as to the existence or non-existence of the various facts asserted or denied by the parties and, after
finding all the facts, applies the rule of law. If all the facts stated in the rule of law are found to exist, the right or
liability which would follow according to the rule of law is decreed or ordered by the court. When a court finds that
fact exist, the facts are said to have been approved, If the Court finds they do not exist, they are said to be disproved.

Section 3 defines proved, disproved and Not Proved as follows :

Proved -
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists.

Disproved -
A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not
exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.

Not proved -
A fact is said not to be proved when it is neither proved nor disproved.
A fact is said to be not proved when either its existence nor its not existence is proved. It also indicates a state of
mind in between the two, that is one cannot say whether a fact is proved or disproved. It negatives both proof and
disproof.
Distinction between Proved, Disproved and Not Proved. 

No     Proved      Disproved   Not Proved 

1 The term ‘proved’ is The term ‘disproved’ is The term ‘Not Proved’ is a
positive negative. mean between the terms
proved and disproved

2 When fact is proved the When a fact is disproved no When a fact is not proved, it
court gives judgment in further question arises as to its implies further evidence either
favour of the person, who proof. to prove or disprove the fact.
has proved it.  

MEANING DEFINITION OF PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT, 1872

        There are three types of presumptions under the Indian Evidence Act 1872. Section 4 provides these three types
of presumptions namely , may presume shall presume, and conclusive proof.

"May presume" 
Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it.

“Shall presume”
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and
until it is disproved.

“Conclusive proof” – Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of
disproving it.

Meaning : 
     Presume means "supposed to be".  In the absence of absolute certainty, we resort  to presumptions. The word
'presumption means 'an inference from known facts.

Definition :
     Presumption can be defined as "an idea that is taken to be true on the basis of probability" or " a belief .
 Some presumptions are rebuttable whereas some presumptions are irrebuttable.

Examples: 
1)  X finds Y's Bike in front of a restaurant The,  X may presume that Y is in the Restaurant. When X entered into
the restaurant, he found Y, then his presumption is correct/ true. Instead of Y if Z (Y's brother) is found X's
presumption is incorrect. Thus presumptions may be true or untrue. In other words presumptions may be rebuttable
or irrebuttable.

MAY PRESUME' SHALL PRESUME AND `CONCLUSIVE PROOF' AS USED IN SECTION 4 OF

INDIAN EVIDENCE ACT 1872.

Section 4 of Indian Evidence Act has defined the expression `May Presume' shall Presume' and `Conclusive proof.'
Before discussing these expressions, it is necessary to understand the meaning of word "presumption." 

PRESUMPTION : Presumption Means things taken for granted. Normally court while deciding any case rely on
those facts which have duly been proved according to law. But law of Evidence has provided that court can take into
consideration certain facts even without calling for proof of them i.e. court may presume certain thing. So
presumption means an inference either affirmative or negative of the existence of some facts drawn by court by
process of probable reasoning from some matter of facts either judicially noticed or established by legal evidence.

Recently in M. Narsinga Rao v. State of A.P. AIR 2001 SC 318 Supreme Court observed

"In reaching the conclusion the court can use the process of inference to be drawn from facts produced or proved.
Such inferences are a kin to presumption in law. Law gives absolute discretion to the court to presume the existence
of any fact which it thinks likely to have happened. In that process the court may have regard to common course of
natural event, human conduct, public or private business vis a vis the facts of the particular case Presumption is an
inference to certain fact drawn from other proved facts While in erring the existence of a fact from another, the court
is only applying is only applying a process of intelligent reasoning which the mind of a prudent man would do under
similar circumstances Presumption is not the final conclusional to be drawn from other facts But it could as well be
final if it remains undisturbed later". 

Presumption can be of two kind:-

(i) Presumption of Fact or Natural Presumption
(ii) Presumption of Law or Artificial Presumption
(iii) Mixed Presumptions (Presumption of Fact and law both)

1) PRESUMPTION OF FACT OR NATURAL PRESUMPTION :

As stated above presumption of fact are those inferences which a person naturally draw having regard to experience
and observation of natural course of events. Section 114 of Indian Evidence Act and its illustrations are example of
presumption of fact.
           Sections 86 - 88, 90,, 113A and 114 lay down the provisions relating to Presumption of Fact or Natural
Presumptions  as stated below. these principles are generally rebuttable.

1. Section 86.Presumption as to certified copies of foreign judicial records

2. Section 87.Presumption as to Books, Maps and Charts
3. Section 88.Presumption as to Telegraphic Messages
4. Section 90.Presumption as to documents thirty years old
5. Section 113A.Presumption as to abatement of suicide by a married women
6. Section 113B.Presumption as to dowry death

2) PRESUMPTION OF LAW OR ARTIFICIAL PRESUMPTION:

Presumptions of law or artificial presumptions are inferences or propositions established by law. 
Presumption of law are of two kind :-
(a) Rebuttable Presumption of Law
(b) Irrebuttable Presumption of Law

(a) Rebuttable Presumption of Law: 

In simple words rebuttable presumption of law is one which can be rebutted by leading evidence to contrary.
Rebuttable presumption of law denotes what term "shall presume" as defined in section 4 of Act implies.

These kinds of presumptions arise when presumptions of law are certain legal rules, defining the amount of evidence
requisite to Support a particular allegation, which facts being proved, may be either explained away or rebutted by
evidence to the contrary but are conclusive in absence of such evidence. For example, A man is presumed innocent
until he is proved guilty. A child is born in a legal wedlock shall be presumed legitimate and one who questions his
legitimacy must disprove it.

Following are the Examples of this presumptions : 

1. Section 107.Burden of proving death of person known to have been alive within thirty years.
2. Section 108.Burden of proving that person is alive who has not been heard of for seven years.
3. Section 102.On whom burden of proof lies.

(b) Irrebuttable Presumption of Law or Conclusive : 

Those presumption of law or legal proposition which are conclusive in nature and which cannot be rebutted or
overcome by leading evidence to contrary. Irrebuttable presumption of law denotes what term `conclusive proof'
implies in Section 4 of Evidence Act.

These Presumptions are those legal rules which are not outcome of any evidence that the fact is otherwise. Section
82 of  Indian Penal Code is the well-known instance of an irrebuttable presumption of law which provides that
nothing is an offense which is done by a child under 7 year of age. Section 115, 116 and Section 117 of the Indian
Evidence Act 1872 deals with the rule Estoppel which are the examples of irrebuttable presumptions.

Following are the Examples of this presumptions : 

1. Section 115. Estoppel
2. Section 116. Estoppel of tenant and of license of person in possession
3. Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee

3) Mixed Presumptions (Presumption of Fact and law both) : 

               Mixed presumptions of law and Fact are mainly confined to the English law of real property so it is not
necessary to presume subject here. The Indian Evidence Act has made some provisions for the presumptions of fact
and the presumptions of law. In certain sections of the Evidence Act, it has been provided that the court may
presume certain facts. In some other sections, The court shall presume a fact has been used. There are certain
sections in which it is said that a certain fact is conclusive proof of a certain another fact. Section 4 of the Evidence
Act controls these sections and gives a direction to courts as to how proceed under those sections of the evidence
act.

Now coming to Section 4 of Evidence Act.

"May Presume": " Whenever it is provided that court may presume a fact, the court may either regard such fact as
proved, unless and until it is disprove or may call for proof of it."
So expression `May Presume' implies that court has discretion to presume a fact or not. Court may instead of
presuming such fact as proved, may call party to lead evidence to prove such facts and then allow opposite party to
lead evidence for disproving such fact For example Section 90 of Indian Evidence Act provides that when a
document purporting to be 30 years old as produced from proper custody, then court may presume that the document
was signed and written by person by whom it purported and dispense with the proof of it or may call for proof of it.

"Shall Presume": Section 4 further provide that "Whenever there is provided in the Act that court shall presume a
fact, it shall regard such fact as proved unless and until it is disproving."
So whenever there is provision to the effect that the court "shall presume" a fact', the court cannot exercise its
discretion. It is compelled to take the fact as proved i.e. it shall have to presume the fact. But in this case court will
be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed.

"Conclusive Proof": Section 4 further provide that "When one fact is declared by this act to be conclusive proof of
another, the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for
the purpose of disproving it". So conclusive proof implies irrebuttable presumption and whenever, it is provided that
a fact is `conclusive proof' of another fact; court has no discretion at all. It cannot call upon a party to prove that fact
because court will presume such fact as proved nor court will allow the opposite party to adduce evidence to
disprove the fact.

CIRCUMSTANTIAL EVIDENCE  : 

            Circumstantial evidence is that which tends to establish the fact in issue by proving another fact which,
though, does not conclusively established that fact, affords and inference as to its existence. In simple words,
circumstantial evidence is a testimony by witnesses as to the circumstances from which an inference is to be drawn
as to the fact in issue.  where direct evidence is not available then, circumstantial evidence can be resorted to.

Example 
X is charged with the murder of Y. At the trial, a witnesses Z, on behalf of the prosecution, gives evidence that he
saw X stab Y or, Z may make the statement that he saw X running away from the place where Y's corpse was found,
with a blood-stained knife in his hand. In the first case, the evidence given by Z is usually referred to as direct
evidence and in the second circumstantial evidence.

Case Law :  

 A. C. Lagu Vs State of Bombay AIR 1960 SC 500; 1960scj 779
      In this case, accused was a family doctor. He was tried for the murder of his patient, a rich woman and
Sentenced to death on the basis of the Circumstantial Evidence    

ADMISSIBILITY OF ELECTRONIC RECORDS | LAW OF EVIDENCE

What is Admissibility? 
Admissibility is the concept in the law of evidence that determines whether or not evidence can be received by the
court. The evidence must first be relevant, but even relevant evidence will be tested for its admissibility.
What is Electronic Evidence?
     Electronic evidence or digital evidence in any probative information stored or transmitted in digital form that a
party to a court case may use at trial. Before accepting digital evidence court will determine if the evidence is
relevant whether it is authentic if it is hearsay and whether a copy is acceptable or the original required. (Wikipedia)
Admissibility of Electronic Evidence  (Section 65B).
(1) Notwithstanding anything contained in Indian Evidence Act,  any information contained in an electronic record
which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned
in this section are satisfied in relation to the information and computer in question and shall be admissible in any
proceedings, without further proof or production of the original, as evidence of any contents of the original or of any
fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely —
          (a) the computer output containing the information was produced by the computer during the period over
which the computer was used regularly to store or process information for the purposes of any activities regularly
carried on over that period by the person having lawful control over the use of the computer;
          (b) during the said period, information of the kind contained in the electronic record or of the kind from which
the information so contained is derived was regularly fed into the computer in the ordinary course of the said
activities;
          (c) throughout the material part of the said period, the computer was operating properly or, if not, then in
respect of any period in which it was not operating properly or was out of operation during that part of the period,
was not such as to affect the electronic record or the accuracy of its contents; and
          (d) the information contained in the electronic record reproduces or is derived from such information fed into
the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities
regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by
computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more
computers and one or more combinations of computers, all the computers used for that purpose during that period
shall be treated for the purposes of this section as constituting a single computer; and references in this section to a
computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing
any of the following things, that is to say,—

          (a) identifying the electronic record containing the statement and describing the manner in which it was
produced;
          (b) giving such particulars of any device involved in the production of that electronic record as may be
appropriate for the purpose of showing that the electronic record was produced by a computer;
         (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting
to be signed by a person occupying a responsible official position in relation to the operation of the relevant device
or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.

(5) For the purposes of this section —

           (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form
and whether it is so supplied directly or (with or without human intervention) by means of any appropriate
equipment;
           (b) whether in the course of activities carried on by any official information is supplied with a view to its
being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of
those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of
those activities;
           (c) a computer output shall be taken to have been produced by a computer whether it was produced by it
directly or (with or without human intervention) by means of any appropriate equipment.

 Explanation — For the purposes of this section any reference to information being derived from other information
shall be a reference to its being derived therefrom by calculation, comparison or any other process.

DISTINCTION / DIFFERENCE BETWEEN RELEVANCY AND ADMISSIBILITY

No.
Relevancy Admissibility 
 1) Relevancy is based on logic and probability Admissibility is not based on logic but on strict rules of
law.

2) The rules of relevancy are described from The rules of admissibility is described after Section 56 of
Section 5 to Section 55 of Evidence Act, Evidence Act, 1872.
1872.

3) The rules of relevancy declare what is The rule of admissibility declares whether certain type of
relevant. relevant evidence are admissible or are to be excluded.  

   
4) Under Evidence Act the rules of relevancy Admissibility is means and of modes for admissibility of
means where evidence are admissible. relevant Evidence.

5) The facts which are relevant may not be The facts which are admissible are necessarily relevant.
necessarily admissible.

MEANING OF RES GESTAE:

    The term 'Res' is a Latin word which means "thing" and the expression "Res Gestae" literally which means “the
thing done, a subject matter, a transaction or essential circumstances surrounding the subject".  In the law of
evidence, it means things done including words spoken, forming part of the same transaction. There is a fact story
behind every case before the court of law. In (fact story) contains certain acts, omissions or statements, which are
not in issue but are capable of throwing some light on the nature of the transaction revealing its true quality and
character. Such acts, omissions, or statements from part of the same transaction in issue and are allowed to be
proved.

DEFINITION OF RES GESTAE:

            Halsbury defines 'Res gaste' as "Facts which form part of the res gestae and are consequently  provable as
facts relevant to the issue ; include acts , declarations and incidents which themselves constitute or accompany and
explain the facts or transaction in issue.

            S. 6 embodies the rule of Admission of Evidence know as Res gestae. This phrase means simply a
transaction, thing done, subject matter Res gestae of any case properly consist of that portion of actual happening of
the world out of the rights or liability, complained or asserted in the proceeding, necessarily, arise. The principle
underlying S. 6, is sometimes termed as Res gestae. This phrase of Res gestae is well established in the law of
Evidence. This phrase has been used in two senses. In the restricted senses 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 an 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 principle
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, from part
of the principle 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 acts and Declarations accompanying the transaction or the facts in issue are treated as Res gestae and
admitted in Evidence. But the fact deposed must form part of the transaction and must be made at the same time
with the act immediately after it.

 Relevant Case Law:

 Supreme Court in Punjabrao v. D P Meshram, AIR 1965 SC 1179, held that the Evidence of the conversion of a
member of Scheduled Caste to Buddhism may be Corroborated by the Evidence of his conduct subsequent to his
conversion. In Pershadi v. State , AIR 1957 SC 211, held that in a case of murder soon after the murder the accused
who had earlier held out of a threat to the victim told the father of the victim that he had a hand in this appearance of
the accused, is Admissible u/s. 6 of the Indian Evidence Act.

        Supreme Court in Chander Kala v. Ram Kishan, AIR SC 1268, held that when the complainant narrated the
incident to the relative of the deceased and he deposed to that effect in Court, such Evidence is Admissible in
Evidence.

  In state of Andhra Pradesh v. Panna Satyanarayan, AIR 2000 SC 2138 , held that when the accused murdered
his wife and daughter, the statement by the father of the deceased wife that father of the accused told him on
telephone that his son has killed the deceased. Absence of a finding as to whatever 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 the same transaction, the statement cannot be considered
as relevant u/s. 6.

    In Mahendra pal v. State, AIR 1955 All. 328, the place where a murder was committed by number of persons
apart from the deceased and witnesses. Those came up immediately after and were informed by the eye witnesses as
to who the two culprits had been. The statements of those persons were held to be Admissible u/s, 6.

CONDITIONS:

A Statement to be admissible under Section.6, the following conditions are to be satisfied:

1) The statement must be a statement of fact and not opinion
2) The statement must have been made by a participant or witness of the transaction.
3) The statement made by bystander is Admissible, if he was present at the scene of the offense.
4) The statement must explain, elucidate or characterize the incident in the same manner.

CONFESSION AND KINDS OF CONFESSION

               Section 24 to 30 of Indian Evidence Act deals with confessions. Confessions should be voluntary. There
are four kinds of Confession a) judicial confession, b) Extra-Judicial Confession, c) Retracted Confession, d)
Confession by co-accused.

The meaning of Confession:

          The expression confession means a statement made by an accused admitting his guilt. It is an admission as to
the commission of an offence. If a person accused of an offence makes a statement against himself, it is called
confession or confessional statement. Confessions are the special form of admissions. Thus it is popularly said that
"All Confessions are admissions, but all Admissions are not confessions."

DEFINITION OF CONFESSION:

      According to Sir James Stephen "An admission made at any time by a person charged with a crime stating or
suggesting the inference that he committed a crime".

     The term confession nowhere defined in the Indian Evidence Act 1872, But the definition of admission under
section 17 of Indian evidence Act becomes applicable to confession also. Section 17 provides " A statement, oral or
documentary which suggests any inference as to any fact in issue or relevant fact."

    If a statement made by a party in the civil proceeding, it is called as admission while if it is made by the party
charged with the crime, in a criminal proceeding, it is called as a confession. Thus, the confession is a statement
made by the person charged with a crime suggesting an inference as to any fact in issue or as to relevant fact.  The
inference that the statement should suggest that he is guilty of a crime.

Confession, in short, is an admission by the accused charged with an offence in the criminal proceeding.

Example :
                    If X is charged with the murder of Y, If X said that he has killed B, it is a confession.

Kinds of Confession: 

         There are four kinds of Confession, are as follows:

 1) Judicial confession
 2) Extra-Judicial Confession
 3) Retracted Confession
 4) Confession by co-accused

 1) Judicial confession: 

        A Judicial Confession is that which is made before Magistrate or in a court due course of judicial proceeding.
Judicial Confession is relevant and is used as an evidence against the maker provided it is recorded in accordance
with provisions of Section 164 of Cr.P.C. The magistrate who records a confession under Section 164, Criminal
Procedure Code, must, therefore, warn the accused who is about to confess that he may or may not be taken as an
approval. After warning the accused he must give time to think over the matter and then only record the confession.
Such a confession is called judicial confession.

 2) Extra-Judicial Confession

       Extra-Judicial Confession is made not before a Magistrate or any Court in due course of judicial proceeding but
is made either to police during the investigation or into police custody or made otherwise than to the police. Extra-
Judicial confession is not relevant. (See Detail Note on Extra-Judicial Confession)
  
 3) Retracted Confession
      The Accused person who confessed earlier and later denied such confession does not destroy the evidentiary
value of the confession as originally recorded. The Supreme Court has stated that a Retracted confession may form
the basis of a conviction if it receives some general corroboration from other independent evidence. But if the court
finds that the confession originally recorded was voluntary, it should be acted upon.

 4) Confession by co-accused  

     Section 30.Consideration of proved confession affecting person making it and others jointly under trial for
the same offense

            When more persons than one are being tried jointly for the same offense, 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 as against the person who makes such confession.

Explanation: “Offence” as used in this Section, includes the abetment of, or attempt to commit, the offense.

Illustrations 

(a) A and B are jointly tried for the murder of C. It is proved that A said – “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 murdered by A and B and that B said,
“A and I murdered C”. The statement may not be taken into consideration by the Court against A and B is not being
jointly tried.

DIFFERENCE BETWEEN CONFESSION AND ADMISSION

       All confessions are Admissions, but all Admissions are not Confessions…Let’s see Difference between
Admission and Confession.
 
                                             
No.            Admission            Confession

1) If a statement is made by a party in civil If a statement made by a party charged with crime, in
proceeding it will be called as admission  criminal proceeding, it is called as a confession  

2) The expression ‘Admission’ means The expression ‘Confession’ means “a statement made
“ voluntary acknowledgement of the existence by an accused admitting his guilt. If a person accused of
or truth of a particular fact” an offense (accused) makes a statement against himself,
it is called confession.

3) An admission is genus Confession is specie hence all confessions are

admissions but all admissions are not confessions. 
 4) The Term Admission is applicable to a Confession is the term for admission of guilt 
statement, oral or in writing made by a party made in the criminal side.
on civil side.

5) An admission is not conclusive proof of the A confession, if voluntarily and free, may in the
matters admitted and is always rebuttable. discretion of the judge or magistrate, by itself be
accepted as conclusive proof of matters confessed and is
alone sufficient to warrant a conviction. 

6) An admission may be proved by or behalf of  But confession always goes against the person making
the person making it. it. 

7) An admission may be made by an agent in While an agent can never make the confession of
course of business. an offense against a co-defendant.

8) Admission by one of the several defendants Confession made by one or two or more accused jointly
in suit is not evidence against other tried for the same offense can be taken into
defendants. consideration against the co-accused.

WHAT IS DYING DECLARATION

             Dying Declaration is of the utmost importance and the evidence as to it should be exact and full as possible.
The general rule is, 'hearsay evidence is no evidence and is not admissible in evidence.' Section 32 and 33 of the
Evidence Act are among the Exceptions, as such dying Declaration is an exception to this general rule.
     
Statement made by a person who cannot be called as Witness:
            Section. 32 Cases in which statement of relevant fact by person who is dead or cannot be found etc is
relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or who
has become incapable of giving evidence, or whose attendance cannot be produced without an amount of delay or
expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts
in the following cases.

 When it relates to cause of death:

 
              When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in which cases the cause of that person's death comes into question.

               Such statements are relevant whether the person who made them was or was not, at the time when they
made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death
comes into question.
    Following are the classes of person who cannot be called as witness under section 32 and their statements allowed
to be proved in their absence.

1) Person who is dead:

2) Person who cannot be found
3) Who has become incapable of giving evidence: or
4) Whose attendance cannot be produced without unreasonable delay or expense?

MEANING AND DEFINITION:

 "A dying declaration is a declaration written or verbal made by a person, as to the cause of his death or as to
any of the circumstances of the transaction, which resulted in his death"

Illustration 
Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding Anna, responsible for his
injuries, it is called "Dying Declaration'. 

Section 32(1) of The Indian Evidence Act defines, ‘dying declaration' as  " a statement verbal or written made by a
person who is dead or cannot be found, who has become incapable of giving evidence or whose attendance cannot
be procured without an amount of delay or expense, which under the circumstance of the case, appears to the court
unreasonable, are themselves relevant facts in the following cases.

a) When it relates to cause of death    

b) When it is made in course of business; or
c) Against the interest of maker; or 
d) Gives opinion as to public right or custom or matters of general interest; or
e) Relates to existence of relationship; or 
f) When it is made in will or deed relating to the family affairs; or
g) In document relating to transaction mentioned in section 13(a);
h) When it is made by several persons and expresses feeling relevant to matter in question

      In short according to Section 32(1), “Dying declaration is a statement oral or written made by a person
who is dead or cannot be found or incapable of giving evidence or whose attendance involves delay or
expensive under the circumstances stated above, which the court considers reasonable “. 

            Before such statements are admitted in evidence, it must be proved that who made the statement is dead and
gone and therefore cannot appear before the court unless this fact is proved, the statement is not admissible. When
the statement is admitted under any of the clause of this section, it is substantive evidence and has to be considered
along with other evidence. Dying declaration is an exception to the general rules as to relevancy of fact. The
relevancy of fact provides that the statement made by witness in connection of fact or fact in issue are relevant but
under Section 32 a statement made under certain circumstances become relevant , even though person is not called
as a witness before the court.  Dying declaration in fact is a surviving declaration. Declarant died and statement
survives. It is declaration of a dead person.

The Conditions in this Section are: 

1) It must be a statement, written or verbal

2) The person making statement must have died.
3) The statement relate to the cause of his death or the circumstances of the transaction which related in his death
and not the cause of the death of someone else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the statement.
6) The statement must be competent
7) Declaration must be competent

Reasons For admissibility of dying declaration:

Dying declaration is admissible for the following two reasons.

1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
2) Declaration made by a person under exception of death is presumed to be true.

 Merits of Dying Declaration:

1) There is heavy conscience -, therefore law presume that there is a possibility of true statement as to the cause of
his death. It has moral and religious aspect behind it because a person who is on the bed of death, about to die
generally speaks true, so as to attain spiritual benefits in other world. This is relative element, which changes from
person to person, personality and mentality person making Dying Declaration. So a person who is about to die, tells
the truth and truth only is a half-truth as in case of harden criminals. So it is the personality, circumstances and the
character of the person making Dying Declaration that decides the relevancy of Dying Declaration.

2) There is no reason to implicate wrong person: 

The person making Dying Declaration and mentioning in the name of the person responsible who has caused
injuries to him which are likely to result in his death, generally will not implicate in a wrong person who is not at all
responsible for such injuries.

3) There is no reason why he will avoid the name of the person who is responsible for his death and his worst
enemy in his life. It is more logical and realistic concept because person who is on the bed of Death will not
implicate the name of wrong person for the cause of his death, but he will not allow his enemy to go unpunished
who is responsible for his death.

Infirmities/ Defects of Dying Declaration:   

1) There is no oath administered: 

                    When a person is called as witness in the Court he has to make a statement on oath. This is to have his
inner conscience say truth and truth only. Law presume and expect person to state the truth.  This is the theoretical
aspect as it may be correct theoretically but not practically.

2)  There is no cross-examination of such person making Dying Declaration:

                    The need of cross-examination is to judge the credibility of the witness. It is the right of Defence
Council. Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or defence
council have no opportunity of cross-examination of the witness who is dead.

3) Witness is not present before the Court: 

                     Behaviour, manner of answering the question of witness before the Court is a vital aspect in law
because it gives opportunity to the judges to judge the character, personality of the witness this element is absent in
dying declaration and hence it is not accepted as a rule

 Evidentiary Value of Dying Declaration:

              The evidentiary value of dying declaration will vary according to the circumstances of a particular case in
which it is made
              Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other evidence
for example other facts and evidence supporting Dying Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty of the
judge to consider the valuation of Dying Declaration. Such valuation of Dying Declaration depends upon many
things as under

1) State of mind of declarant.

2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement?
5)  Whether the statement is recorded in the same language and in a same word of the declarant. Even though Dying
Declaration is said to be of weak piece of evidence it is relevant in the Indian Evidence Act, because it is the best
available evidence as to the cause of his death after his death.

MEANING AND KINDS OF ESTOPPEL

          Part III , Chapter VII containing Section 115 to 117 of the Indian Evidence Act 1872 , lay down the provisions
relating to the "doctrine of Estoppel" Section 115 embodies the principle of Estoppels.
  
Meaning and Definition: 

              The expression 'Estoppel' is derived from the French word 'Estoup' which means, 'shut the mouth". When a
person by declaration (act or omission) makes/ induces another to believe a thing, cannot deny its truth
subsequently. The other person cannot be estopped from proceeding upon such declaration.

     Estoppel is rule of evidence, by which a person is not allowed to plead the contrary of a fact or state of things,
which he formally asserted as existing. 
 
Section 115 of the Indian Evidence Act, 1872 embodies the Principle of Estoppel, as Follows....

 When one person has by his declaration, act or omission, intentionally caused or permitted another person to
believe a thing to be true and to act upon such belied, neither he nor his representative shall be allowed, in any suit
or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration: 

              'A' intentionally and falsely leads 'B' to believe that certain land belongs to 'A' and thereby induces 'B'
to buy and pay for it.

              The land afterwards becomes the property of ’A’ and A seeks to set aside the sale on the ground that, at the
time of the sale, He had no title. He must not be allowed to prove his want of title.

              The principle of Estoppel says that a man cannot approbate and reprobate, or that a man cannot blow hot
and cold, or, again that a man shall not say one thing at one time and later on say a different thing.

Kinds of Estoppel:
The Principle of Estoppel is classified under three heads in English Law: 
i) Estoppel by Record
ii)  Estoppel by Deed
iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, Estoppel in pais)

i) Estoppel by Record:
            Estoppel by record arises in a case where a judgment has been given by a competent court, and the effect of
it is that the matters decided cannot be reopened by a person who is a party to the judgment or his representative. We
do not use this rule in India but rely upon the principle of Res Judicata to get the same effect. (See also...Difference
between Estoppel and Res Judicata)
                  
ii)  Estoppel by Deed
        Estoppel by deed also does not obtain in India. English law attaches a particular importance to deeds, with the
result that if a person makes a statement in a deed he cannot say the opposite of it later. It means when a person
enters into an agreement, and his statement is furnished therein, he shall not be permitted to deny his statement.

iii) Estoppel by Conduct ( in pais de hors the instrument or, usually, estoppel in pais)
       When a person, by acts or words or deeds, induces another person to believe the existence of things and make
him to act upon it he (for example - the person who induced another) is estopped from denying the existence of such
facts.

Other kinds of estoppel 

a) Constructive estoppel:
     This phrase is a really used, and it is submitted that it is wrongly used. The adjective "constructive" is used in
cases where the true state of affairs is different from what is construed to be. For example, under the Transfer of
Property Act, registration of a document operates as constructive notice of its contents.  A man may really know
nothing of the document or its contents, but because it is registered, it is construed as if everyone has such
knowledge - because if one wanted to have such knowledge he could obtain it.  The adjective is inappropriate when
used with Estoppel. Either the conditions of Estoppel are present in which case the principle operates, or they are not
present and the principal will not operate.

b) Estoppel by election
           This arises in cases where there is a plurality of gifts or rights which are inconsistent or alternative and the
party who makes the gifts or creates the rights, shows by and express or implied intention that the person taking the
gift or claiming the right should enjoy one of them, but not both of them. Having made his choice, the person
choosing cannot go back upon it and later attempt to choose the other.
It also rises in cases where a person cannot approbate or reprobate under the same instrument.

c) Estoppel by silence:
       Such Estoppel arises only when there is a duty to speak or disclose
If A and B are parties to a litigation and A contends that B is estopped from raising a particular plea and B, in his
turn, contends that A is estopped from raising another plea, and each establishes a case for the application of the
principle of Estoppel, then it is as if the two estoppels cannot out, and the court will have to proceed as if there is no
such plea on either side.
Relevant Case Law: 

Sarat Chandar Dey vs Gopal Chandra Laha (1892) 19 IA 203.

           A widow was holding property under a hibanama (hiba-bil-ewaz) executed by her husband in her favour.  She
mortgaged the property. During the transaction, her son acted on her behalf under a power of attorney. He has
signed the mortgage on her behalf and in her name and received the money from the mortgagee. The mortgagee
filed a suit on his mortgage and in the execution of a decree, the Appellant and purchased the property. Meanwhile,
the son claiming to the owner of the property had sold a part of it to the respondent and the respondent filed a suit
for partition and possession of the part purchased by him. The Appellant set up the widow's title to the property and
also that is if the Hibanama was ineffective her son was estopped from denying her title under Section 115.

Satnam Gowda vs Beherampur University 1990 SC 107 1990 (3) SCC 23.

           In this case the Appellant, a student was admitted to law course at Ganjam Law College. There was no
dispute that at the time of admission he had submitted his marksheet. He studied for 2 years and was admitted to
final year course. His result of Pre-law and intermediate examinations watch withheld on the ground that he was
ineligible for admission as he secured 39.5% marks in M.A. examination Overruling the High Court decision, the
Supreme Court held that Estoppel would apply. The Court also pointed out that there was the requirement of
minimum marks 40% of marks for graduates only. There was no requirements of any percentage of marks for
postgraduates. There was no Fraud or miss-representation on the part of the candidate

Oral Evidence under Indian Evidence Act 1872

ORAL EVIDENCE -

1) Introduction- -
         S.59 and S.60 of Indian Evidence Act deals with 'Oral Evidence'. Oral evidence is a much less satisfactory
medium of proof than documentary proof. oral evidence in all cases must be direct and not hearsay.

2) Meaning of the Expression -
         Meaning of the expression "Oral Evidence" is given along with the definition of the term 'evidence' in S.3 of
the Indian Evidence Act

“Evidence” means and includes —

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court,
such documents are called documentary evidence.

3) S.59.Proof of facts by oral evidence

All facts, except the contents of documents, may be proved by oral evidence

Oral evidence must be direct.  Oral evidence must, in all cases, whatever, be direct; that is to say;

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who
holds that opinion on those grounds -

     Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on
which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be
found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or
expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document,
the Court may, if it thinks fit, require the production of such material thing for its inspection

4) S. 60 says that Oral evidence must be direct

Oral evidence must, in all cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that manner;
If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who
holds that opinion on those grounds -
Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which
such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or
has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense
which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document,
the Court may, if it thinks fit, require the production of such material thing for its inspection
This section sets out the scope of the expression ‘direct evidence’, and hearsay  evidence is excluded by this section.

5) Conclusion -
At present days oral evidence is much less satisfactory medium of proof than documentary evidence

PUBLIC DOCUMENTS

1) Introduction
All the documents may be classified into two categories either ' Public documents' or ' Private documents' . S. 74 of
Indian evidence Act deals with definition of Public document whereas S.76 to S.78 deals with the modes or the
proof for the purpose of proving the contents of a public document. The public documents are admitted in evidence
and as an exception to hearsay rule as the fact contained in them are of public interest and they are the statements
made by the authorised and competent agent of public in the course of their official duties.

2) Definition of Public Document.

S.74 Public documents
The following documents are public documents :—
(1) Documents forming the acts, or records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a
foreign country;

(2) Public records kept in any State of private documents.

          In order to bring documents within the definition of "public document" as laid down in S.74,  it must be
shown to gave been prepared by any public servant in the discharge of his official duty. The mere fact that it is kept
in a public office does not make it a public document.

        According to the definition given u/s. 74, only those documents are said to be public documents as form of the
act and records of public officer. It also includes the act of parliament and state legislatures, proclamation,
ordinance, state papers and gazettes.
      The acts and record of acts of the proceedings of the municipal board would come under the category of acts or
records of acts of official bodies. Municipal register of birth and death kept by municipal board is a public
document. The acts and record of election tribunals are the documents which would come within the meaning of
public document.  The record of court of justice and other judicial writings are public documents.
S.74 (2) refers to private document through made by private individuals but kept as record in public offices in order
to facilitate public to have an access to it. Such private documents are kept in Public offices are regarded as public
documents . for example , S.51 of the Indian registration Act , 1908 provides for the maintenance of certain records
of the documents registered and S.57 of the same Act , enables the registration officer to give certified copies of all
such documents .

3) Examples of Public documents

1) Birth and death registers of municipalities .
2) Charge sheet
3) confessions recorded by magistrate u/s . 164 of Cr.P.C.
4) Deposition of witnesses recorded by an officer of the Court.
5) Entry in the register of power of attorney kept in the registration office .
6) sanction to prosecute.
7) Notice u/s 106 of Cr.P.C.
8) Record of information u/s.145 Cr.P.C
4) S.75 Private documents 
All other documents are private.

This section simply provides that any document not coming under of the two clauses of S.74 is private document. A
deed of contract, memorandum, letter, sale deed, etc .are the private documents.
  
  5) Certified copies of Public Documents S.76 -
       Every public officer having the custody of a public document, which any person has a right to inspect, shall give
that person on demand a copy of it on payment of the legal fees there for together with a certificate written at the
foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate
shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such
officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation -
Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to
have the custody of such documents within the meaning of this section.

6) S. 77 Proof of documents by production of certified copies :

Such certified copies may be produced in proof of the contents of the public documents or parts of the public
documents of which they purport to be copies.
The certified copies as referred in S.76 may be produce on proof of the contents of public document or parts of
public documents. Any person who has a right to inspect a public document may obtain a certified copy of it from
the public officer whose custody it is and may produce before the court for purpose of proving the contents of such
public documents. Certified copies are treated as equivalent to originals.

7) S.78 Proof of other official documents :

The following public documents may be proved as follows -

(1) Acts, orders or notifications of the General Government in any of its departments, or of the Crown
Representative or of any State Government or any department of any State Government.
By the records of the departments, certified by the heads of those departments respectively, or
By any document purporting to be printed by order of any such Government or as the case may be, of the Crown
Representative;

(2) The proceedings of the Legislatures -

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient
Tavern be printed 3by order of the Government concerned;

(3) Proclamations, orders or regulations issued by Her Majesty or by the privy Council, or by any department of Her
Majesty’s Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the
Queen’s Printer;

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -
By journals published by their authority, or commonly received in that country as such, or by a copy certified under
the seal of the country or sovereign, or by a recognition thereof in some central Act;

(5) The proceedings of a municipal body in a State, -

By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published
by the authority of such body,

(6) Public documents of any other class in a foreign country, -

by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public,
or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of
the original and upon proof of the character of the document according to the law of the foreign country.

     This section deals with the special modes of proof are available for the purpose of proving the contents of certain
kinds of public documents like government statutes , proceedings of legislatures or of a municipal body .The modes
available under this section are nor exhaustive and resort can be had to any other modes also.

8) There are six kinds of public documents referred in S. 78 which are as under -

1) Acts and notifications
2) proceedings of the legislature
3) Proclamation , orders and regulations of her majesty ir of the privy council.
4) This Acts of the executive or proceedings of foreign legislatures .
5 ) Proceedings of municipal bodies
6) Public documents of any other class in a foreign country.
 
 9) Case law -
A) Manjula V. Mani 1998 Cr. L. J 1476 (mad).
In this case, Madras High Court Held that Hindu Marriage register is a public document. Therefore the certificate
copies of such register may be obtained from the office of marriage registrar and the same are admissible in
evidence in a criminal charge of bigamy punishable u/s494 Indian penal code.
B) shyam lal  vs State 1998 Cr. l.J. 2879 (All) 
 The first Information report is a public document and said accused is entitled to have its certified copy from the
police authorites or from the court on Payment of requisite fee.
10) Conclusion -
Documents are classified into two categories Public And private documents . Any document not come under the
definition of Pubic documents are Private documents. Certified copies of a public document may be issued only by
public officer having its custody and may be produce in proof of the contents of the public Document.