SIDDHARTH LAW COLLEGE

GANDHINAGAR

SECTOR - 16

MASTER OF LAWS (LL.M.)

SEMESTER- 3

2016

GROUP – B (CRIMINAL LAWS)

PAPER-502 ECL
LAW OF EVIDENCE

Prepaid By
RANAVADIYA MANOJKUMAR J
LLM STUDENTS SIDDHARTH LAW COLLEGE GANDHINAGAR

Cot No. 9924840059 – 8401616211

 PAPER-502 ECL LAW OF EVIDENCE

LAW 502 ECL LAW OF EVIDENCE

OBJECTIVES OF THE COURSE:

The law of evidence, is an indispensable part of both substantive and Procedural laws. It imparts
credibility to the adjudicatory process by indicating the degree of veracity to be attributed to
'facts' before the forum. This paper enables the student to appreciate the concepts and principles
underlying the law of evidence and identify the recognized forms of evidence and its sources.
The subject seeks to impart to the student the skills of examination and appreciation of oral and
documentary evidence in order to find out the both. The art of examination and cross-
examination and cross-examination and the shifting nature of burder of proof are crucial topics.
The concepts brought in by amendments to the law of evidence are significant parts of study in
this course.
 SYLLABUS :

1. CENTRAL CONCEPTIONS IN LAW OF EVIDENCE

• Facts : Section 3 definition : distinction -relevant facts/facts in issue .

• Evidence : Oral and documentary.
• Circumstantial evidence and direct evidence.
• Presumption (Section 4)
• "Proving" "Not providing" and "Disproving" Witness Appreciation of evidence.
2. ADMISSIONS AND CONFESSIONS :
• General principals concerning admission (Section 17,23)
• Differences between "admission " and "confession"
• The problems of non -admissibility of confessions caused by "any inducement, threat of
promise " (Section 24)
• Inadmissibility of confession made before a police officer (Section25)
• Admissibility of custodial confessions (Section 26)
• Admissibility of "information" received from accused person in custody with special
reference to the problem of discovery based on.
• "Joint statement " (Section 27 )
• Confession by co-accused (Section 30) The problems with the judicial action based on a
"retracted confession”

3. ORAL AND DOCUMENTARY EVIDENCE & EXPERTS EVIDENCE:

• General principles concerning oral evidence (Section 59-60)
• General Principles concerning Documentary Evidence (Section 6790)
• General Principles Regarding Exclusion of Oral by Documentary
• Evidence Special problems re-hearing evidence
• General Principles
• Types of expert evidence
• Opinion on relationship especially proof of marriage (Section 50)
• The problems of judicial defense to expert testimony Dying Declaration.
4. WITNESSES, EXAMINATION AND CROSS EXAMINATION

• Competency to testify (Section 118)

• State privilege (Section 123)
• Professional Privilege (Section 126,127,128)
• Approval testimony (Section 133)
• General Principles of examination and cross examination (Section 135-166)
• Leading questions (Section 141-143)
• Lawful questions in cross -examination (Section -146)
• Compulsion to answer questions put to witness Hostile witness (Section 154)
• Impeaching of the standing or credit of witness (Section 155)

5. BURDEN OF PROOF:

• The general conception of onus probandi (Section 101)

• General and special exceptions to onus probandi.
• The Justification of presumption and of the doctrine of judicial notice.
• Justification as to presumptions as to certain offences (Section 111A)
• Presumption as to dowry death (Section 113-B)
• The Scope of the doctrine of judicial notice (Section 114)
 LAW OF EVIDENCE

1. CENTRAL CONCEPTIONS IN LAW OF EVIDENCE

Introduction of the course

In every civilized legal system we can be classified the laws in two categories

1. Substantive Law

2. Procedural

The Law of evidence is one of the most important part of the procedural law. The law of
evidence plays a very important role in the effective functioning of the judicial system. The law
of evidence is an indispensable part of both substantive and procedural laws. It imparts
credibility to the adjudicatory process by indicating the degree of veracity to be attributed to
'facts' before the forum. This paper enables the student to appreciate the concepts and principles
underlying the law of evidence and identify the recognized forms of evidence and its sources.
The subject seeks to impart to the student the skills of examination and appreciation of oral and
documentary evidence in order to find out the truth. The art of examination and cross-
examination, and the shifting nature of burden of proof are crucial topics.The concepts brought
in by amendments to the law of evidence are significant parts of study in this course.

Contents

1. Introductory (7 Lectures)

1.1 Preamble.

1.2 Short title, Extent and Commencement.

1.3 Acts which deal with evidence.

1.4 Applicability of Evidence Act.

1.4.1 Judicial proceedings.

1.4.2 Court.
1.4.3 Court martial.

1.4.4 Tribunals.

1.4.5 Commissions of inquiry.

1.4.6 Arbitration.

1.4.7 Affidavits.

1.4.8 Contempt of court.

This chapter deals with history of statutory Evidence Law in India – Pre and post Indian
Evidence Act, 1872 realities

– Role of Judiciary, particularly the appellate judiciary in up-dating the Evidence Law rules by
judicial creativity,

general issues relating to law of evidence and also deals with object of the Act and applicability
of the Act.

2. Central Conceptions in Law of Evidence (7 Lectures)

2.1. Facts: Definition (Section 3)

2.2. Evidence: Meaning and kinds (Section 3)

2.3. Presumption (Section 4) 1/3

2.4. "Proved", "Disproved" and "Not proved” (Section 3)

2.5. Witness.

2.6. Appreciation of evidence.

This chapter deals with understanding of the concepts such as, ‘Facts’, ‘Facts in issue’, ‘Relevant
Fact’, ‘Evidence-

Oral and Documentary’, ‘Proved’, ‘Disproved’ and ‘Not Proved’ under section 3 and 4 of the
Act.
3. Relevancy of Facts (7- Lectures)

3.1. Doctrine of res gestae (Section 6, 7, 8, 10)

3.2. Evidence of common intention (Section 10)

3.3. Facts not otherwise relevant (Section 11)

3.4. Relevant facts for proof of custom (Section 13)

3.5. Facts concerning bodies & mental state (Section 14, 15)

This Chapter puts its emphasis on: Logically relevant facts – sections 5-9, 11and also deals with
Special class of relevant facts relating to Conspiracy – section 10

4. Admissions and confessions (8- Lectures)

4.1. General principles regarding admission (Section 17, 23)

4.2. Differences between "admission" and "confession"

4.3. Non-admissibility of confessions caused by "any inducement, threat or promise' (Section 24)

4.4. Inadmissibility of confession made before a police officer (Section 25)

4.5. Admissibility of custodial confessions (Section 26)

4.6. Admissibility of "information" received from accused person (Section 27)

4.7. Confession by co-accused (Section 30)

4.8. Admissions are not the conclusive proof of the matters admitted (Section 31)

The Chapter 4 explains the relationship between law of Evidence and substantive laws (Criminal
and Civil laws) and procedural laws (Code of Criminal Procedure and Civil Procedure Code).
Cases:-

Bhuboni Sahu v. The King, AIR 1949 PC 257 158;

Haroon Haji Abdulla v. State of Maharastra, AIR 1975 SC 856 163;

Ravinder Singh v. State of Haryana, AIR 1975 SC 856 169

5. Dying Declarations (3- Lectures)

5.1. Relevancy of dying declarations (Section 32)

5.2. Judicial standards regarding evidentiary value of dying declarations.

6. Relevancy of Judgments (2- Lectures)

6.1. General principles

6.2. Admissibility of judgments in civil and criminal matters (Section 43)

6.3. "Fraud" and "Collusion" (Section 44)

7. Expert Testimony (3- Lectures)

7.1. General principles.

7.2. Who is an expert? : Types of expert evidence

7.3. Opinion on relationship especially proof of marriage (Section 50)

7.4. The problems of judicial defence to expert testimony.

8. Relevancy of Character (2- Lectures)

8.1 In civil cases (Section 52)

8.2 In civil criminal cases (Section 53)

8.3 Previous bad character (Section 54)

9. Oral and Documentary Evidence (5- Lectures)

9.1. General principles concerning oral evidence (Sections 59-60)

9.2. General principles concerning Documentary Evidence (Sections 67-90)

9.3. General Principles Regarding Exclusion of Oral by Documentary Evidence.

9.4. Special problems: re-hearing evidence 2/3

9.5. Issue estoppel

9.6. Tenancy estoppel (Section 116)

Cases:-

R. S. Maddanappa v. Chandramma (1965) 3 SCR 283 114.

Madhuri Patel v. Addl. Commissioner, Tribal Development, AIR 1995 SC 94 120.

Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 131.

M.C. Vergheese v. T.J. Ponnan, AIR 1970 SC 1876 136.

State of U.P. v. Raj Narain, AIR 1975 SC 865 140.

10. Burden of proof (5- Lectures)

10.1. The general conception of onus probandi (Section 101)

10.2. General and special exceptions to onus probandi.

10.3. Presumption as to certain offences

10.4. Presumptions as to abetment of suicide by a married women (Section 113-A)

10.5. Presumption as to dowry death (Section 113-B)

10.6. Presumptions as to absence of consent in certain prosecution of rape.

11. Estoppel (5-Lectures)

11.1. Estoppel: General Principle (Section 115)

11.2. Estoppel, res judicata and waiver and presumption.

11.3. Estoppel by deed.

11.4. Estoppel by conduct.

11.5. Equitable and promissory estoppel.

12. Witnesses (4- Lectures)

12.1. Competent witness (Section 118)

12.2. State privilege (Section 123)

12.3. Professional privilege (Section 126, 127, 128)

12.4. Accomplice (Section 133)

13. Examination and Cross Examination of witnesses (6- Lectures)

13.1. General principles of examination and cross examination (Section 135-166)

13.2. Leading questions (Section 141-143)

13.3. Lawful questions in cross-examination (Section 146)

13.4. Compulsion to answer questions put to witness.

13.5. Hostile witness (Section 154)

13.6. Impeaching of the standing or credit of witness (Section 155)

 2. ADMISSIONS AND CONFESSIONS :

“Confession”

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. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of
the law of Evidence defines 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.”

In Pakala Narayan Swami v Emperor Lord Atkin observed

“ 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 in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy
Council decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement
which even though contains some confessional statement will still lead to acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would negate
the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there
was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and
for this purpose, the Court drew support from English authorities. When there is enough
evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on
the inculpatory part.
Admission and confession

Section 17 to 31 deals with admission generally and include Section 24 to 30 which deal with
confession as distinguished from admission.

Confession Admission

1. Admission usually relates to civil

1. Confession is a statement made by an accused person
transaction and comprises all statements
which is sought to be proved against him in criminal
amounting to admission defined under
proceeding to establish the commission of an offence by
section 17 and made by person mentioned
him.
under section 18, 19 and 20.

2. Admissions are not conclusive as to the

2. Confession if deliberately and voluntarily made may
matters admitted it may operate as an
be accepted as conclusive of the matters confessed.
estoppel.

3. Admissions may be used on behalf of

3. Confessions always go against the person making it the person making it under the exception
of section 21 of evidence act.

4.Confessions made by one or two or more accused 4. Admission by one of the several
jointly tried for the same offence can be taken into defendants in suit is no evidence against
consideration against the co-accused (section 30) other defendants.

5. admission is statement oral or written

5. confession is statement written or oral which is direct
which gives inference about the liability of
admission of suit.
person making admission.

The acid test which distinguishes a confession from an admission is that where conviction can be
based on the statement alone, it is confession and where some supplementary evidence is needed
to authorize a conviction, then it is an admission as stated in Ram Singh v. State Another test is
that if the prosecution relies on the statement as being true it is confession and if the statement is
relied on because it is false it is admission. In criminal cases a statement by accused, not
amounting to confession but giving rise to inference that the accused might have committed the
crime is his admission.

Forms of confession

A confession may occur in many forms. When it is made to the court itself then it will be called
judicial confession and when it is made to anybody outside the court, in that case it will be called
extra-judicial confession. It may even consist of conversation to oneself, which may be produced
in evidence if overheard by another. For example, in Sahoo v. State of U.P. the accused who was
charged with the murder of his daughter-in-law with whom he was always quarreling was seen
on the day of the murder going out of the house, saying words to the effect : “I have finished her
and with her the daily quarrels.” The statement was held to be a confession relevant in evidence,
for it is not necessary for the relevancy of a confession that it should be communicated to some
other person.

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

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

Section 164 of the Criminal Procedure Code-

Difference between judicial and extra-judicial confession-

Judicial confession Extra-judicial confession

1. Extra-judicial confession are those

1. Judicial confessions are those which are made to a
which are made to any person other than
judicial magistrate under section 164 of Cr.P.C. or
those authorized by law to take confession.
before the court during committal proceeding or
It may be made to any person or to police
during trial.
during investigation of an offence.

2. To prove judicial confession the person to whom 2. Extra-judicial confession are proved by
judicial confession is made need not be called as calling the person as witness before whom
witness. the extra-judicial confession is made.

3. Judicial confession can be relied as proof of guilt 3. Extra-judicial confession alone cannot
against the accused person if it appears to the court be relied it needs support of other
to be voluntary and true. supporting evidence.

4. It is unsafe to base conviction on extra-

4. A conviction may be based on judicial confession.
judicial confession.

Voluntary and non-voluntary confession- the confession of an accused may be classified into
Voluntary and non-voluntary confession. A confession to the police officer is the confession
made by the accused while in the custody of a police officer and never relevant and can never be
proved under Section 25 and 26. Now as for the extra-judicial confession and confession made
by the accused to some magistrate to whom he has been sent by the police for the purpose during
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 inducement, threat or promise having
reference to the change against the accused person proceeding from a person in authority and
sufficient in opinion of the court to give the accused person grounds, which would appear to him
reasonable for supporting that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceeding against him, it will not be relevant and it cannot
be proved against the person making the statement. Section 24 of the Evidence Act lays down
the rule for the exclusion of the confession which are made non-voluntarily.

Section 24 of Indian Evidence Act - 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 supporting that by making it
he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding
against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used
against the maker.

Ingredients of Section 24

To attract the prohibition enacted in Section 24 the following facts must be established:
• That the statement in question is a confession,

• That such confession has been made by the accused,

• That it has been made to a person in authority,

• That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,

• Such inducement, threat or promise must have reference to the charge against the accused, and
• The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings
against him.

1. Confession made by inducement, threat or promise- a confession should be free and voluntary.
“If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it
flows from hope or fear, excited by a person in authority, it is inadmissible.” The term
inducement involves a threat of prosecution if the guilt is not confessed and a promise of
forgiveness if it is so done. It is very difficult to lay down any hard and fast rule as to what
constitutes inducement. It is for the judge to decide in every case. An inducement may be express
or implied, it need not be made to the accused directly from the person in authority. Before a
confession can be received as such, it must be shown that it was freely and voluntarily made.
This means that the confession must not be obtained by any sort of threat or 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 influence. The ground on which confessions made by the
accused under promises of favour or threats of injury are excluded from evidence is not because
any wrong is done to the accused in suing than but because he may be induced by pressure of
hope or fear to confess the guilt without regard to their truth in order to obtain relief or avoid the
threatened danger. Thus it is clear that if 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.

In case of an ordinary confession there is no initial burden on the prosecution to prove that the
confession sought to be 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
moto. It is idle to expect that an accused should produce definite proof about beating or pressure.
But he must point out some evidence or circumstances on which a well-sounded conjecture at
least, that there was beating or pressure may reasonably be based.

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. Thus, it is necessary for the confession to be
excluded from evidence that the accused should labour under influence that in reference to the
charge in question his position would be better or worse according as he confesses or not.
Inducements in reference to other offences or matters or offences committed by others will not
affect the validity of the confession thus, where a person charged with murder, was made to
confess to a Panchayat which threatened his removal from the caste for life, the confession was
held to be relevant, for the threat had nothing to do with the charge.

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- the threat, inducement and
promise on account of which the accused admits the guilt must come from a person who has got
some authority over the matter. To be clear the person giving different promises, threatening the
accused or inducing him to make the confession must be a person in authority as stated in the
Pyare Lal v. State of Rajasthan . 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.

If the accused makes the confession thinking that by doing so the authorities would soften the
attitude towards him the confession cannot be said to be non-voluntary.

The term “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 of 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.

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 is a
person in authority in relation to nurse of the same hospital.
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 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 the person in authority. That
being the case, not only the actual words, but words followed by acts or conduct on the 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. It does not turn 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 that he committed the
crime or worse for him if he does not. The expression, “whatever you say will be used as
evidence against you” will not exclude a confession. On the other hand “you better pay the
money than go to jail”, “if you tell me where my goods are I will be favourable to you”, “I will
get you released if you tell me 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.
It must be borne in the mind that the advantage gained or the evil avoided must be of temporal
nature therefore any 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. The expression “you had better as
good boys tell the truth”, “kneel down and tell me truth in the presence of the Almighty”, do not
give out any temporal gain and so the confession derived on these confessions are not excluded
by Section 24. Confession obtained on the allegation by the panches that if the accused does not
confess he shall be excommunicated will not exclude the confession. It should be borne in the
mind that the gain or evil must be in reference to the proceeding against him.

Evidentiary value of confession

Value of judicial confession- 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 delicti a confession
alone may not suffice to justify conviction.

A confessional statement made by the accused before a magistrate is a good evidence and
accused be convicted on the basis of it. A confession can obviously be used against the maker of
it and is in itself sufficient to support his conviction. 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 arises in this
case. Normally speaking it would not be quite safe as a matter of prudence if not of law 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. This observation was made by the Supreme Court and
therefore it cannot be said to be a good law in the case of judicial confession.

Now the settled law is that a conviction can be based on confession only if it 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.

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 believed.

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial

confession must be received with great case and caution. It can be relied upon only when it is
clear, 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 the courts to base conviction on the sole basis of extra-
judicial confession. Usually and as a matter of caution courts require some material
corroboration to an extra-judicial confession statement corroboration which connects the accused
person with the crime in question.

Extra-judicial confessions have to received with great caution and care 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 a confession was made, secondly, that
evidence of it can be given that is to say that it was voluntary and thirdly that it is true. Such a
confession must be proved by an independent or satisfactory evidence.

In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by
her father and step-mother in the National park. The alleged extra-judicial confession was made
by accused during detention in forest office. No mention of said confession in report given to
police nor any witness present there mentioning about the same confession. This extra-judicial
confession cannot be relied on.

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.

Value of retracted confession- 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 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 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 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 the 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.

It is unsafe to base the convict5ion 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 confession unless corroborated. Courts have convicted persons on retracted confession
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 in charge 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.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or 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 this is so and if the statement was made because the winess was remorseful or
because he made the confession due to fear of god or because he was truthful there is no reason
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.
Proof of judicial confession- Under section 80 of Evidence Act a confession recorded by the
magistrate according to law shall be presumed to be genuine. It is enough if the recorded judicial
confession is filed before the court. It is not necessary to examine the magistrate who recorded it
to prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession 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.

Confession to police

Section 25 – confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence.
Reasons for exclusion of confession to police- another variety of confessions that are under the
evidence act regarded as involuntary are those made to a personnel. Section 25 expressly
declares that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the
accused and thus force him to confess to a crime which he might not have a committed. A
confession so obtained would naturally be unreliable. It would not would be voluntary. Such a
confession will be irrelevant whatever may be its form, direct, express, implied or inferred from
conduct. The reasons for which this policy was adopted when the act was passed in 1872 are
probably still valid.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, supreme court noted:

The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all
of the police investigation. The police should remember that confession may not always be a
short-cut to solution. Instead of trying to “start” from a confession they should strive to “arrive”
at it. Else, when they are busy on their short-route to success, good evidence may disappear due
to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full
and through investigation with a view to establish the case de hors the confession, later, being
inadmissible for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.) at 268

Police authority itself, however, carefully controlled, carries a menace to those brought suddenly
under its shadow and the law recognises and provides against the danger of such persons making
incriminating confessions with the intention of placating authority and without regard to the truth
of what they are saying.

Effect Of Police Presence

The mere presence of the policeman should not have this effect. Where the confession is being
given to someone else and the policeman is only casually present and overhears it that will not
destroy the voluntary nature of the confession. But where that person is a secret agent of the
police deputed for the very purpose of receiving a confession, it will suffer from blemish of
being a confession to police.

In a rather unusual case, the accused left a letter recording his confession near the dead body of
his victim with the avowed object that it should be discovered by the police, the supreme court
held the confession to be relevant. There was not even the shadow of a policeman when the letter
was being written, and planted.

Exclusion Of Confessional Statements Only

This principle of exclusion applies only to statement which amount to a confession. If a

statement falls short of a confession, that is, it doesn’t admit the guilt in terms or sustainability
all the facts which constitute the offence, it will be admissible even if made to a policeman, for
example, the statement of an accused to the police that he witnessed the murderer in question.
The statement being not a confession was received in evidence against him, as showing his
presence on the spot.

Statements During Investigation And Before Accusation

A confessional statement made by a person to the police even before he is accused of any
offence is equally irrelevant. The section clearly says that such a statement cannot be proved
against any person accused of any offence. This means that even if the accusation is subsequent
to the statement, the statement cannot be proved.

Confessional Fir

Only that part of a confessional First Information Report is admissible which does not amount to
a confession or which comes under the scope of section 27. The non confessional part of the FIR
can be used as evidence against the accused as showing his conduct under section 8.

Statement Not Amounting To Confession

A statement which does not amount to confession is not hit by the bar of section. A statement in
the course of investigation was that the design was carried out according to the plan. The
statement did not refer to the persons who were involved in the murder, nor did the maker of the
statement refer to himself. This was held to be not a confessional statement. Hence, not hit by
section 25 . The statement of inspector(crimes) that the accused accepted before him that he got
the counterfeit currency notes from a stranger but the accused denying to have so stated, was not
admissible in evidence.

Use Of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence
against him, he can himself rely on those statements in his defence. The statement of the accused
in FIR that he killed his wife giving her a fatal blow when some tangible proof of her
indiscretion was available was not usable against him to establish his guilt. But once his guilt
was established through other evidence, he was permitted to rely upon his statement so as to
show that he was acting under grave and sudden provocation. There is nothing in Evidence Act
which precludes an accused person from relying upon his own confessional statements for his
own purposes.

Special Legislation
A special legislation may change the system of excluding police confessions. For example, under
the Territorists and Disruptive Activities (prevention) Act, 1987, (S15) confessional statements
were not excluded from evidence on grounds that the persons making them were in police
custody. The court said in another case that section 15 was an important departure from the
ordinary law and must receive that interpretation which would achieve the object of that
provision was that a confession recorded under S.15 of TADA was a substantive piece of
evidence and could be used against a co-accused also.

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 is
made in the immediate presence of a Magistrate, shall be proved as against such person.

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 him.

Confession Of An Accused In Polilice Custody To Any One Else-

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference 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 has seen the accused with deceased at last occasion, he
will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and
26, the Police Officer has left the accused in the custody of village head man (pradhan).
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and
to take extra-judicial confession under section 164 of Cr.P.C which has got more probable value
and it gives an opportunity to make the required warning, that this confession will be used
against the accused and after this warning he records the confession. Under section 26, no
confession made by an accused to any person while in custody of a police officer shall be proved
against him.

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.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act,
is no 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 custody. Firstly, there must be 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 hid 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 the following section does not
mean formal cutody but includes such state of affairs in which the accused can be said to have
come into the hands of a police officer, or can be said to have been some sort of surveillance or
restriction.
In R. v. Lester, 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 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 policeman was away. The confession would not be
admissible against the accused as the prisoner should be regarded in custody of the police in spite
of 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 circumstances, it would be going
further that 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 the Evidence Act.

Section 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.

Principle- 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 presumed to be true and not to have been
extracted. It comes into operation only-

• If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody, and

• 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 Maharashtra, it was
held by Supreme Court that section 27 of evidence act was enacted as proviso to. The provisions
of sections of Section 25 and 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- section 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 settlement will not be proved against him.

Section 27 lays down 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 discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.

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 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 a sub-inspector, must depose that
in consequence of the given 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.

In Suresh Chandra Bahri v. State of Bihar, it is the discovery and the seizure of articles used in
wrapping the dead body and the pieces of Sari belonging to the deceased was made at the
instance of one 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 witness. 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, 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.

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.
Confession After Removal Of Threat Or Promise- under section 24 we have seen that if 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 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 grave any evidence against her she was left off. On
Wednesday she was again arrested. The superintendent of Police went with her mistress into
Bridewell and told her in presence of her 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.” He did not tell
her that of she made a statement it might be given in evidence against her. The prisoner then
made a statement it might be given in evidence against herm 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 the
statement. Had the mistress not been present on the spot it might have been otherwise.

Impression produced by promise or threat may be removed

• By lapse of time, or

• By an intervening caution giving by some person of superior 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.

Section 29-Confession Otherwise Relevant Not To Become Irrelevant Because Of Promise

Of Secrecu, Etc.:

In 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 deception practiced on the accused
person for the purpose of obtaining it, or when he was drunk, or because it was made in answer
to question which he need not have answered, whatever may have been the form of those
questions, because he was not warned that he was not bound to make such confession, and that
evidence if it might be given against him.

CONFESSION ON PROMISE OF SECRECY, ETC- section 29 lays down that if a confession is

relevant, that is, if it is not excluded from being proved by any other provision on Indian
Evidence Act, it cannot be relevant 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.

Section 24 lays down that a confession which is the outcome of inducement, threat or promise
from a person in authority would not be relevant. Section 25 lays down that a confession to a
police officer is irrelevant. Section 26 excludes the statement of an accused in a police custody to
any person other than a Magistrate. Section 29 lays down that if a confession is not excluded by
Sections 24, 25 or 29 it will not be excluded on the ground of promise of secrecy or of deception
or of being drunk, or of being made in answer to question or without warning that it will be used
against him in evidence.

Section 29 assumes that there is no bar to the admissibility of the confession in question arising
from any of the earlier provision, viz, section 24 to 26 and it then proceeds to the invalidate or
negative other positive objections or bars that may be raised against the admissibility.

Generally when a man is under intoxication he confesses the guilt. If confessional statement is
made by some accused person while he was drunk, it will be admissible if he had not become
quite senseless for the very reason that it has not been obtained by inducement or threat now was
it made while he was in custody of a police officer.

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, it is admissible notwithstanding the fact
that the person who took the confessional statement did not warn the accused that he was 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.

Want Of Warning: 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 30- Consideration Of Proved Confession Affecting Person Making It And Others
Jointly Under Trial For The Same Offence-

When more persons than one are being tried jointly for the same offence and a confession made
by one such persons affecting himself and some other 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.

Principle Underlying: when more persons than one are jointly tried for the same offence, the
confession made by one of them, if admissible in evidence, should be taken into consideration
against all the accused, and not against the person who alone 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 other
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 admissible against the other.

In Kashmira Singh v. State of MP , the accused Kashmira who was an Assistant Food
Procurement Inspector, his services along with the another food inspector were terminated on a
report of the food officer when they were getting the rice polished in a rice mill. Kashmira was
heard twice saying that he would teach a lesson to the food officer. After a few months the son of
the food officer was found 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 of conspiracy and killing the child. The prosecution story was that Prirthipal led
the child, when he was playing near the Gurudwara, for some distance and then the child was
taken on the cycle by Kashmira to a house where he was murdered. According to the judgment
of the SC Guruibachan was not a rickshaw puller by profession and the rickshaw was hired only
for that night for the disposal of the body of the deceased.

Hence 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 is affecting the confessioner and the others.

Conclusion
This change in the Evidence Act is necessary so as to invigorate the trust and faith of the people
of India in the Judiciary that they will be provided imparted speedy justice to the wrongs done to
them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its statement of objects
and reasons mentions that the disposal of criminal trials in the courts takes considerable time and
that in many cases trial do not commence for as long as 3 to 5 years after the accused was
remitted to judicial custody. In lieu of this, it is pertinent that provisions of Criminal Law be
changed so as to reduce the time needed for a common person to get justice. After all “Justice
should not only be done, but also be seen to be done”.

[1] A.I.R. 1939 P.C. 47

[2] A.I.R. 1952 S.C. 354

[3] 1959 S.C.R. 1033

[4] A.I.R. 1959 Alld. 518

[5] A.I.R. 1966 S.C. 40

[6] CAVE J, in R v. Thompson, (1893) 2 Q.B. 12

[7] Empress v. Mohan Lal (1881) I.L.R. 4 All. 46

[8] A.I.R. 1963 SC 1094

[9] R.K. Dalmia v. Delhi Administration A.I.R. 1962 SC 1821

[10] Motilal v. Kailash Narain A.I.R. 1960 MP 132

[11] Viranwally v. State, A.I.E 1961 JK

[12] Emperoe v. Panchkauri A.I.R 1925 Cal 587

[13] In re Karumari China Mallayya A.I.R. 1948 Mad 324

[14] Birey Singh v. State 1951 All

[15] State v. Balchand A.I.R. 1960 Raj 101

[16] Madi Ganga v. State of Orissa 1981 Cr LJ 628 SC

[17] Ram Singh v. State of U.P. A.I.R. 1967 SC 152

[18] A.I.R. 2003 SC 666

[19] Kanan v. State of Kerala A.I.R. 1979 SC 1127

[20] Kashmira Singh v. State of M.P. A.I.R. 1952 SC 159

[21] Emperor v. Har Piari, A.I.R. 1926 All, 737.

[22] Sita Ram v. State (1966) Supp. S.C.R. 265

[23] Queen-Empress v. lagrup, I.L.R (1885) 7 All. 646

[24] Ramesh Chandra Mehta v. State of West Bengal, A.I.R 1970 S.C. 940

[25] Rajan Johnsonbhai v. State of Gujarat, 1997 Cr. L.J. 3702 (Guj.)

[26] In Re: Adham, 1992 Cr. L.J. 2012 (Mad.)

[27] Madaiah v. State, 1992 Cr. L.J. 502 (Karn)

[28] Lal Singh v. State of Gujarat A.I.R 2001 S.C. 746

[29] S.N. Dube v. N.B. Bhoir A.I.R. 2000 S.C. 776

[30] AIR 1990 SC 2140

[31] Mst. Maharani v. Emperor, AIR 1948 All.7

[32] ILR(1985)20 Bom 165.

[33] Ram Singh v. Sonia, AIR 2007 SC 1218 at p. 1224.

[34] AIR 2002 SC 739

[35] Md. Inayatullah v. State of Maharashtra, AIR 1976 SC 483

[36] AIR 1994 SC 2420

[37] AIR 2002 SC 1409

[38] Rangapa Hanamppa v. State, AIR 1954 Bom. 285.

[39] AIR 1952 SC 159

3. ORAL AND DOCUMENTARY EVIDENCE & EXPERTS EVIDENCE:

The facts judicially noticeable and facts admitted need not to be proved. Oral and documentary
evi are not only media of proof. This chapter deals we oral evidence only. It enacts two broad
rules rega oral evidence: firstly, that all facts except contend documents may be proved by oral
evidence, and secondly, that oral evidence in all cases must be direct an hearsay. The meaning of
expression “oral evidence” is given along with the definition of the “evidence” in Section 3 of
Indian evidence act as-: "Evidence" means and includes

General principles concerning oral evidence (Section 59-60)

S-59 says that all facts - except the contents of documents - may be proved by oral evidence. If a
fact is to be proved by oral evidence, the evidence must be of a person who has directly
perceived the facts which he testifies or who has the personal knowledge of the facts i.e. oral
evidence must be ‘direct’. (S-60) S-3 provides that “all statements which the court permits or
requires to be made before it by witnesses in relation to the matters of fact under inquiry” –
called oral evidence.

Statements of facts made by the parties to the suit or proceedings, and witnesses constitute oral
evidence.

Statements made by gestures may be considered as oral evidence. Ex. R. vs. Abdullah.

S-3: DOCUMENT –

Any matter expressed or described upon any substance by means of letters, figures or which may
be used, for the purpose of recording that matter.”

Ex. A writing is a document.

Words printed, lithographed or photographed are documents.

A map or plan is a documents;

An inscription on a metal plate or stone is a document.

A caricature is a document.
Thus the term includes all material substances on which the thoughts of men are represented by
writing or any other species of conventional work or symbol.

VOX AUDIT PETIT – LITERA SCRIPTA MANET – The law of evidence recognizes the
superior credibility of the documentary evidence as against oral evidence.

General Principles concerning Documentary Evidence (Section 67- 90)

S-61 says that the contents of a document may be proved either by primary or by secondary
evidence.

S-62: PRIMARY EVIDENCE means ‘the document itself produced for the inspection of the
court’.

Explanation-1.

Where a document is in several parts, each part is primary evidence. If executed in counterparts,
each counterpart is primary evidence.

Explanation-2:

Where documents are made one uniform process, i.e. printing, lithograph or photography, each is
primary evidence of the contents of the documents.

S-63 – Secondary Evidence means and includes –

(i) Certified copies of the original documents.

(Ii) copies made from the original by mechanical process which assure the accuracy of the copy,

(Iii) copies made from or compared with the original,

(Iv) Counterpart of a document against the party who did not sign it,

(V) Oral account of the contents of a document given by a person who has himself seen the
document.

This section is not exhaustive of all kinds of secondary evidence.

S-65 provides that Secondary Evidence may be given in the following cases: -

(i) When a document is in possession of –

(a) the person against whom it is to be proved

(b) any person out of reach or not subject to the process of the court

(c) person legal bound to produce does not produce even after notice.

(Ii) when the contents of the original are admitted in writing by the party against whom to be
proved,

(Iii) when the original is lost or destroyed not out of one’s own negligence,

(Iv) when the original is not easily movable,

(V) when the original is a public document,

(Vi) when the certified copy of the original is permitted by the Act,

(Vii) when the original consists of numerous accounts and unwieldy for perusal, a summary
result of such documents.

Ss-45 to 51 dealing with ‘Expert Evidence’ constitute exception to the rule of relevancy of S-5 of
I.E.Act,1872.

S-45 provides that when the court has to take opinion upon a point

(i) of foreign law

(ii) of science or art

(iii) identity of hand writing

(iv) finger impressions the opinions of ‘persons specially skilled’ on that point will be considered
as relevant.

Such persons are called Experts.

Ex: whether the death of a person is caused by poison? The opinion of an expert doctor as to the
symptom produced by the poison may be considered as relevant.

Opinion of a professional goldsmith as to the purity of gold may be relevant as expert evidence.
(Abdul Rahaman vs. State of Mysore- (1972)

Muslim law is not a foreign law in India.

S-46 says that facts bearing upon opinion of experts are relevant.

Ex. The question whether A was poisoned by certain poison. The fact that persons who were
poisoned by the same poison had exhibited the same symptoms is relevant.

S-47 says when the opinion as to handwriting would be relevant. - Opinion of any person
acquainted with the handwriting of the person supposed to have written or signed, is relevant.

may be proved –

(i) By the evidence of the writer himself

(Ii) by the opinion of an expert

(Iii) by the evidence of a person who is acquainted with the handwriting of the person in
question, and

Iv) by the court under Sec-73 itself comparing the handwriting in question with the proven
handwriting.

In case of digital signature, by the opinion of the Certifying Authority.

S-48 makes relevant the opinions of per sons who know the existence of a general right or
custom.

S-49 refers to opinions as to usages, tenets etc - opinions of persons having special means of
knowledge thereon are relevant.
S-50 says when the court has to form an opinion as to the relationship one person with another,
opinion expressed by conduct as to such relationship by any family member or person having
special means of knowledge on that subject is relevant.

Ex. Whether A was the legitimate child of B.

Whether A and B were married.

S-51 says that whenever the opinion of a person is relevant, the grounds on which such opinion
is based are also relevant.

S-74 says that the following documents are public documents: -

1) Documents forming the acts or records of the acts –

(i) of sovereign authority,

(Ii) official bodies and tribunals, and

(Iii) of public officers, legislative, judicial and executive of India or of the Commonwealth or of
a foreign country.

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

Ex. Memorandum of Articles of a Company registered with the Registrar of companies.

A private Wakf deed recorded in the office of the sub-registrar is a public document.

Entries made by a police officer in the site inspection map and site memo held to be public
documents.

Bankers’ books of nationalized banks are public documents.

But an application for a license filed in Govt. is not a public document.

Similarly a post-mortem report is not a public document as a proof of identity of the dead
without producing the doctor in evidence.

SEC-75 SAYS THAT ALL OTHER DOCUMENTS ARE PRIVATE DOCUMENTS.

Proof of Public Documents by secondary evidence/certified copies.

S-76 says that every public officer having the custody of a public document, shall give on
demand a copy of it on payment of legal fee to every person who has a right to inspect such
document.

Endorsement at the foot of such copy that it is a true copy of such document, and shall be signed,
dated and affixed with official title and sealed.

S-77 provides that such certified copies may be produced in proof of the contents of the public
documents, or part thereof.

Cultivation registers, registers of paddy producers prepared by village assistants provable by

secondary evidence.

S-78 deals with the proof of other official documents –

Central Acts, orders or notifications – certified by the Heads of the departments concerned.

Proceedings of the Legislatures – Journals of those bodies or copies printed by the Govt.

Proclamations, orders or regulations issued by Her Majesty or Privy Council – by copies of

extracts of London Gazette.

Foreign legislative Acts – journals published by foreign authority, copy certified under the seal
of the sovereign of such foreign country.

Municipal Proceedings – publications of such body certified by their legal keeper

Public documents of any other class in a foreign country may be proved by the original or
certified copy issued by the legal keeper of the document with a certificate and seal of notary
public, or Indian counsel or diplomatic agent.

Sec-79 to 90 DEAL WITH THE PRESUMPTIONS AS TO DOCUMENTS.

S-79 – Presumption as to genuineness of certified copies – Courts shall presume.

S-80 – The Court shall presume genuineness of documents produced as records of evidence –
Deposition of witness, confessional statement of accused before Judge or Magistrate

S-81 – The court shall presume as to the genuineness of the gazettes, newspapers, private acts of
parliament and other documents etc.

S-81-A presumption as to Gazettes in electronic forms.

S-82 – The court shall presume the genuineness of documents admissible in England without
proof of seal or signature.

S-83 – Presumption as to maps and plans issued under the authority of Government – The courts
shall presume their genuineness.

S-84 – The courts shall presume the genuineness of collections of laws and reports of decisions
of a foreign country.

S-85 – Presumption as to power attorney, electronic agreements and digital signatures. – shall
presume.

S-86 – Presumption as to certified copies of foreign judicial records – courts shall presume.

S-87 – Presumption as to books, maps and charts - May presume.

S-88 – Presumption as to telegraphic messages - May presume.

S-89 – The court shall presume due execution of documents not produced even after due notice.

S-90 – Presumption as to documents of 30 years old – MAY PRESUME.

4. WITNESSES, EXAMINATION AND CROSS EXAMINATION

Competency to testify (Section 118)

Witnesses and document are the chief sources of evidence. A witness is a person who gives
testimony or evidence before any court. As a matter of fact every person is competent to give
evidence but in certain circumstances he may not be compelled to give evidence. A witness have
a privillege i.e. a right to refuse to give answer to the question. There are certain persons who
enjoy certain privillege and they cannot be compelled to testify.

COMPETENCY OF WITNESSES– A witness is said to be competent when there is nothing in

Law to prevent him from appearing in court and giving evidence . Whether a witness is
competent , depends on his capacity to understand the question put to him and the capacity to
give rational answers thereto. Ss. 118 to 121 and S.133 deal with the competency of the persons
who can appear who can appear as witnesses.

COMPELLABILITY OF A WITNESS- A witness may be competent and yet not compellable

he may have the power of understanding the question and may be able to give rational answers
thereto, but may not be subject to the authority of the court; that is to say the court cannot compel
him to attend and depose before it. Foreign Ambassadors and Sovereigns cannot be compelled
by a court to appear before it to give evidence. They are the persons, competent to depose but
they are not compellable by the court. In general a witness who is competent may be
compellable. Again a witness is competent and also may be compellable yet the law may not
force him to answer certain questions . this is called restricted compellability or privilege.
Magistrates, lawyers, spouses etc., have right to be protected from answering certain question
when they are being examined as witnesses, Ss. 124 to 132 deal with privilege.

S.118 provides: All persons shall be competent to testify unless the court considers that
they are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease, whether of body or
mind, or any other cause of the same kind.

Explanation- A lunatic is not incompetent to testify, unless he is prevented by his lunacy

from understanding the questions put to him and giving rational answers to them.
Meaning and Test of Competency:-

Meaning of competency: by competency to give evidence is meant that there is no legal bar
against the person concerned to testify in a court. This section makes all persons as competent to
testify the questions put to them or from giving rational answers to those questions (a) by tender
years, (b) extreme pld age ,or (c)disease. Thus understanding is the sole test of competency. The
court has to ascertain ,in the best way it can, whether from the extent of intellectual capacity and
understanding he is able to give a rational account of what he has seen or heard or done on
particular occasion.

Test of competency: The test of competency is the capacity to understand the questions and to
give rational answers. A witness as a matter of law to reject his testimony . even lunatics and
drunkards are also competent to testify in their lucid intervals if they are capable of
understanding the questions put to them and giving rational answers.

VARIOUS PROVISIONS OF COMPETENCY OF WITNESSES:-

(a) Lunatic:

A lunatic is one that had understanding but by disease, grief, or other accident has lost the use of
his reasons as long as the suspension of the intelligence continues, the lunatic is incompetent to
testify, but his competency is restored during lucid interval. Explanation to section 118says, “ A
lunatic is not incompetent to testify, unless he is prevented by lunacy from understanding the
questions put to him and giving, rational answers to them. “moreover, the disability does not
extend to monomania as to some immaterial matter and where a person is tendered as a witness
who is beloved to be suffering from monomania, preliminary, enquiry as to his capacity to give
evidence must be instituted and he himself must be examined.

So even lunatics and drunkards are competent to testify in their lucid intervals. If they are
capable of understanding the questions put to them and giving rational answers to them.

(b) Child witness or child testimony:

Under sec 118, a child can be competent witness. Before admitting or recording the statement of
a child, the court must satisfy itself that:
 i. The witness understands the questions, and

ii. Ascertain in the best way it can, whether from the extent of his intellectual
capacity and understanding he is able to give a rational account of what he has seen, heard or
done on a particular occasion. If a person of tender years can satisfy the requirements, his
competency as a witness is established.

No doubt Sec.5 of the INDIAN OATHS ACT is imperative but u/s.13 of that Act, provides that
no omission to make any oath invalidates a proceeding or renders evidence inadmissible. There
is no fixed period of legal direction under which an infant is ban incompetent witness. The rule
by which an infant under seven years of age can not commit a crime, because the law of
presumes him conclusively not to have sufficient intelligence for the act, has no analogy in the
law of evidence. Before recording his evidence, the court should ask questions to satisfy itself
that the witness understands the questions put and gives rational answers though omission to ask
such questions will not vitiate the trial. It has nothing to do with his religious belief or with his
idea of the consequence of falsehood of this world or the next.

It is not necessary that the child should have sufficient knowledge of the nature and
consequences of an oath. On this point, law in India differs from that in England. In England a
child to be a competent witness must believe in punishment in a future date for lying. In India a
child , although, he does not understand the moral implication of oath, can give evidence. In
such, a case, no oath will be administered to him.

The age of the girl was stated to be seven or eighty years at the time of the examination by the
assistant sessions judge who recorded her testimony. He certified that she did not understand the
sanctity of an oath and accordingly did not administer oath to her. He did not certify that the
child understood the duty of speaking the truth.

The question arose to the admissibility of the evidence of the girl.

The proviso to S.5 of the Indian Oaths Act, 1873 prescribes as follows:

‘provided that where the witness is a child under twelve years of age, and the court or person
having authority to examine such witness is of opinion having authority to examine such witness
is of opinion that, though he understands the duty of speaking the truth, he does not understand
the nature of an oath of affirmation. The foregoing provisions of this section and the provisions
of section S.6 of the Oaths Act, shall not apply to such witness, but in any such case the absence
of an oath or affirmation shall not render inadmissible any evidence given by such witness to
state the truth.’

The proviso quoted above must be read along with S.118 of the Evidence Act and S.13 of the
Oaths Act states as follows:

‘No omission to take any oath or make any affirmation – and no irregularity whatever, in the
from in which any one of them is administered, shall invalidate any proceeding or render
inadmissible any evidence whatever….’

The S.C has held in Dalip Singh v. State Of Punjab, AIR 1979,1176 that if it appears from the
version of teenaged children that it is so truthful that can be rightly belived then the arguments
like children were tutored or had given the prosecution version parrot like.etc. are not acceptable.

It has been held by the S.C that an omission to administer an oath, even to an adult, goes only to
the credibility of the witness and not his competency .the question of competency is dealt with in
S.118 of the Evidence Act. It will be observed that there is always competency in fact unless the
court considers otherwise. It has been further held been further held that an omission of the court
of the authority examining a child witness, formally to record that in its opinion the witness
understands the duty of speaking the truth, though he does not understand the nature of an oath
or affirmation, does not affect the admissibility of the evidence given by that witness. The S.C
however, observed as follows:

“it is desirable when a child is examined that judges and magistrates should always record their
opinion that the child understands the duty of speaking the truth and state why they think that
otherwise the credibility of the witness may be seriously affected, so much so that in some cases
it may be necessary to reject the evidence that effect on the records.”

Though a child may be competent witness , a closer scrutiny of its evidence is admissible before
it is accepted. The competency of a child was not consistent and probably drew upon her
imagination after having accepted. The competency of a child to give evidence is not regulated
by the age but by the degree of understanding he appears to possess and no fixed rule can be laid
down as to the credit that should be assigned to his testimony. The question depends upon a
number of circumstances such as the possibility of tutoring the consistency of the evidence, how
far it stood the test of cross examination and how far it fits in with the rest of evidence.

In State of Maharashtra v.Dama Gopinath Shinde, AIR 2000 SC 1691, it was held by Supreme
Court that a girl of seven years ago has lost her neighbor and playmate, the deceased, while they
were playing together. Later on the dead body of the deceased was recovered. It was held by
Supreme Court that the rejection of testimony of child solely on the ground that it was not
possible for a child of that age to remember what happened three years ago was not proper.

(c) Deaf and dumb:

Under S.119, a person, who is deaf and dumb can also be a competent witness, provided that he
understands the question and is capable of giving answers by writing, signs or in any other
manner in which he can make himself intelligible.

The case of deaf and dumb differs from that of a child in the following two ways:

(a) The deaf and dumb must understand the nature of an act. The child need not understand
it.

(b) The deaf and dumb can give his evidence by means of signs u/s 119.

Deaf and dumb persons were formerly regarded as idiots and, therefore, incompetent to testify by
the modern doctrine is that they are of sufficient understanding, they may give evidence either by
signs or through an interpreter or in writing.

Every person is competent to give evidence provided he satisfied the test of the being able to
understand the questions which are put to him, and he is in a position to give rational answers to
those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf
and dumb persons can give evidence.

State privilege (Section 123)

Tilka And Ors. vs State on 20 June, 1958

Equivalent citations: AIR 1959 All 543, 1959 Cri LJ 1035

Author: A Srivastava

Bench: A Srivastava

ORDER A.P. Srivastava, J.

1. The applicants made a certain complaint against one Munshi Singh, a police officer, and on
the basis of that complaint Munshi Singh was tried under Section 7 of the Police Act. Certain
witnesses were examined in that case and deposed about certain incidents. Subsequently the
applicants were challenged for offences punishable under Sections 147 and 323, 325 and 332
read with Section 149, I.P.C. and the same witnesses who had been examined in the proceedings
under Section 7 were examined in the criminal trial. The applicants wanted to cross-examine
those witnesses on the basis of their previous statements made in the proceedings under Section
7 of the Police Act as it was their case that the witnesses while giving evidence at the trial were
stating things, which were directly contradictory to what they had stated in the course of the
proceedings under Section 7 of the Police Act. For the purpose of confronting the witnesses with
their previous statements and in that way contradicting them, the applicants summoned the
record of the proceedings under Section 7 of the Police Act which contained the previous
statements of the witnesses. The record was summoned from the Superintendent of Police. He
sent the record in a sealed cover to the Magistrate and claimed privilege under Sections 123 and
124 of the Indian Evidence Act The Magistrate conceded the claim of privilege and decided that
the applicants were not entitled to have those statements produced. The Applicants went up in
revision to the Additional District Magistrate hut he declined to Interfere and agreed with the
view which the learned Magistrate had taken. The applicants have, therefore, come up to this
Court in revision and contend that the view taken by the two courts below in respect of the claim
of privilege made by the Superintendent of Police is incorrect and that they were entitled to have
the record of the previous statements of the witnesses to be able to confront the witnesses with
those statements during cross-examination. Section 123, Evidence Act provides:--

"No one shall be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks fit." Section 124
then lays down-
"No public officer shall be compelled to disclose communications made to him in official
confidence, when he considers that the public interests would suffer by the disclosure." Section
162 of the Evidence Act provides that-

"A witness summoned to produce a document shall, if it is in his possession or power, bring it to
Court, notwithstanding any objection which there may be to its production or to its admissibility.
The validity of any such objection shall be decided on by the Court.

"The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take
other evidence to enable it to determine on its admissibility."

There is a third clause also to the section, but it is immaterial for our present purposes.

2. An analysis of Section 123 shows that if two circumstances exist, i.e.

(1) there is an unpublished official record relating to an affair of the State, and

(2) someone is attempting to give evidence derived from that kind of record, the section provides
that

(3) such evidence shall not be permitted to be produced except with the permission of the head of
the department concerned. It shall be in his discretion to give or withhold the permission.

3. The question whether the record in question is an unpublished official record relating to any
affair of the State must be decided first before Section 123 can be availed of by the head of the
department concerned. That question cannot be decided by the head of the department himself. It
is the Court which must decide whether the record in question is an unpublished record and
whether it relates to an affair of the State. Under Section 162 of the Evidence Act when the
record is required to be produced it must be produced. In order to decide the question the Court
may inspect the document unless it relates to an affair of the State. In the latter case it will have
to take other evidence relating to the nature of the document. But the privilege of deciding
whether the document is an unpublished record of an affair relating to the State is that of the
Court, and it is the Court alone which can deal with that matter (vide Public Prosecutor v.
Venkata Narassayya, AIR 1957 Andh Pra 486). If the Court, after such evidence as it considers
necessary or after seeing the document, comes to the conclusion that the document is not an
unpublished official record, or that it does not relate to an affair of the State, there is an end of
the matter and Section 123 ceases to apply.

If, on the other hand, the Court comes to the conclusion that the document in question is of the
kind mentioned in Section 123, i.e., it is an unpublished official record relating to any affair of
the State, then, whether permission should be given to anyone to give evidence on the basis of
that document depends on the discretion of the head of the department concerned. It is he alone
who can decide in that case whether he would grant permission or refuse to grant it. Whether he
exercises that discretion in one way or the other is his own look-out. The Court cannot compel
him to exercise that discretion in any particular manner.

4. Section 124 of the Evidence Act prohibits a public officer from being compelled to disclose
communications made to him in official confidence jf he feels that public interest would suffer
by such disclosure. For the application of this section the first question which has to be decided
is whether the communication which is to be disclosed was one made to the officer in public
confidence. If it is such a communication then it will be for the officer concerned to decide
whether public interest would suffer on account of its disclosure or not, and if he thinks that it
will suffer, ho cannot be compelled to disclose that communication.

5. Now, in the present case the record of the proceedings under Section 7 of the Police Act were
sent to the Magistrate in a sealed cover. The Magistrate did not inspect the record himself. He
also does not appear to have taken any evidence about its contents. There was, therefore, no
material before the Magistrate on the basis of which he could have recorded the finding whether
the record in question was an unpublished record of an affair relating to the State nor has the
learned Magistrate recorded any finding to that effect. He has only accepted what, the
Superintendent of Police had noted on the sealed cover. The learned Magistrate, therefore, failed
to exercise the power which he had of deciding whether the record in question was in fact an
unpublished record relating to an affair of the State, and without deciding that question he could
not accept the claim of privilege made by the Superintendent of Police that he would not allow
evidence to be given on the basis of that record. The stage of claiming that privilege would have
arrived after the Magistrate had decided that the record was an unpublished record relating to an
affair of the State. If his decision on the question was in the negative the question of claiming a
privilege under Section 123 would not have arisen at all.
6. In the present case there was no question of the application of Section 124 of the Evidence
Act. No public officer was being compelled to disclose communications made to him in official
confidence. The statements of the witnesses previously made were being required only for
contradicting those witnesses themselves. Nor can it be said that the statements had been made to
any public officer in official confidence and were not known to other persons. The applicants
themselves were parties to the proceedings under Section 7 of the Police Act because the
proceedings had been started on their own complaint. Learned Counsel for the applicants tells
me that during those proceedings when the witnesses were examined the applicants were present.
In that case the applicants must have known what the statements were, and there was no question
of the statements being made to any one in confidence. There could also be no question of their
disclosure in any way affecting public interest. They already stood disclosed at least to the
applicants and to the persons who were present at the time when those statements were made.

7. The courts below, therefore, appear to be unjustified in allowing the Superintendent of Police
to claim any privilege in respect of this particular record without deciding the question whether
the record was an unpublished record relating to an affair of the State. The order allowing the
privilege to be claimed should, therefore, in my opinion, be set aside and the case should be sent
back to the learned Magistrate so that he may first decide whether the record in question is an
unpublished record of an affair relating to the State. While deciding that question the learned
Magistrate may bear in mind the observations made by the Calcutta High Court in the case of
Harbans Sahai v. Emperor, 13 Cri LJ 445. If the learned Magistrate decides that the record in
question falls within the purview of Section 123 of the Indian Evidence Act, it will be for the
Superintendent of Police, who is the head of the department, to decide whether he will allow the
documents to be used or not. If, however, the Magistrate decides that the documents are not such
as are covered by Section 123, the question of claiming that privilege will not arise at all.

8. The application in revision is, therefore, allowed to the above extent. Let the record be sent
back to the court below for being proceeded with according to law

Professional Privilege (Section 126,127,128)

It has been observed that a sound system of the administration of justice should possess three
ingredients, namely a well planned body of law based on wise concepts of social justice, a
judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high
principles of professional conduct and existence of suitable generation to ensure fair trial.A
"privileged professional communication" is a protection awarded to a communication between
the legal adviser and the client. It is out of regards to the interest of justice, which cannot go on
without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters
affecting rights and obligations, which form the subject matter of all judicial proceedings. If the
privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived
all professional assistance, a man would not venture to consult any skilled person, or would only
dare to tell his counsel half his case. The following discussion compares the laws dealing with
privileged communications in India and England.

Indian law:

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is
attached to professional communication between a legal adviser and the client. Section 126 and
128 mention circumstances under which the legal adviser can give evidence of such professional
communication. Section 127 provides that interpreters, clerks or servants of legal adviser are
restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the
confidential communication which has taken place between him and his client.

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to

1. disclose any communication made to him by or on behalf of his client or any advice given by
him to his client in the course and for the purpose of his employment;

2. to state the contents or conditions of any document with which he has become acquainted in
the course and for the purpose of his employment. There are certain exceptions to this rule.
This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose;

2. any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

The protection afforded under this Section cannot be availed of against an order to produce
documents under Section 91[3] of the Code of Criminal Procedure. The document must be
produced, and then, under Section 162[4] of this Act, it will be for the Court, after inspection of
the documents, if it deems fit, to consider and decide any objection regarding their production or
admissibility.

Under Section 126, it is not that every communication made by a person to his legal adviser is
protected from disclosure but only those communications made confidentially with a view to
obtain professional advice are privileged. It should also be remembered that the privileged
extends only after the creation of pleader-client relationship and not prior to that. Also,
communication must be made with the lawyer in his capacity as a professional adviser and not as
a friend.

Considering the exception to this rule, existence of an illegal purpose will prevent any privilege
attaching to any communication. Thus, communications made with a view to carry out a fraud
are not privileged.

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections
prevent a legal adviser from disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall
be compelled to disclose in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory
process. This immunity may extend to third parties, such as consultant who are recruited to help
with the preparation of the case for trial. However, once the material has got out, it should not be
kept out of Court on account of its confidential nature any more than would any other
confidential matter.Also, if a party becomes a witness of his own accord he shall, if the Court
requires, be made to disclose everything necessary to the true comprehension of his testimony.

In a recent case, an unsigned and undated letter which was allegedly written by the advocate-
accused to his client-terrorist to remain absconding was held to be professional communication
and not ‘ abetment’ and thus could not be used against the advocate] But in another case, the
Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for
money on basis of forged promissory note.

The rule is established for the protection of the client, not of the lawyer, and is founded on the
impossibility of conducting legal business without professional assistance, and on the necessity,
in order to render that assistance effectuated, of serving full and unreserved intercourse between
the two.
English law:

In England, the main category of privilege afforded to a communication is legal professional

privilege. Further there are two types of legal professional privilege:

1. Legal advice privilege:

It protects communication between a lawyer in his professional capacity and his client provided
they are confidential and are for the purpose of seeking or giving legal advice. This type of legal
privilege is similar to that under Section 126 of the Indian Evidence Act.

2. Litigation privilege:

The second type of legal professional privilege arises only after litigation or other adversarial
proceeding are commenced or contemplated. It is wider than legal advice privilege and protects
all documents produced for sole and dominant purpose of the litigation, including all
communication between

a lawyer and his client

a lawyer and his non professional agents

a lawyer and a third party.

This type of privilege has similar protection under Section 127 and 129 of the Indian Evidence
Act.
The above privileges have an exception similar to that under Indian law but the only difference is
that under the Indian law, any communication made in furtherance of an illegal purpose is not
privileged. Under the English law, the purpose must be criminal and not merely illegal.

In England, the Court of Appeal recently decided a landmark case on legal advice privilege. The
decision given in "Three Rivers District Council and others v. Governor & Company of the Bank
of England" is likely to have a profound impact on the way in which such privilege is handled
due to which companies may need to reconsider the organization of their internal systems.
The facts of the case were as follows:

He question of legal advice privilege arose in the context of the ongoing litigation between
liquidators of the BCCI and the Bank of England. In 1991, following the collapse of the BCCI,
the government set up a Bingham Inquiry to investigate the Bank of England’s supervision of
BCCI and to consider whether the action taken by UK authorities were appropriate and timely.
The Bingham inquiry Unit (BIU), an internal body at the Bank of England which consisted of
three Bank officials, was set up to deal with all communications between the Bank of England
and the Bingham Inquiry. The Bank of England was advised during the inquiry by the Bank’s
solicitors.

The liquidators of BCCI subsequently brought proceedings against the bank of England for
misfeasance in public office relating to events emerging from the collapse of the BCCI. In these
proceedings, the liquidators sought disclosure of certain documents prepared by the Bank
employees and ex employees that came into existence at the time of the Bingham Inquiry, which
were classified by the Court of Appeal as follows:

(i) documents prepared by the Bank’s employees that were sent over to the bank’s solicitors;
(ii) documents prepared by the Bank’s employees with a dominant purpose of the Bank obtaining
legal advice which were not sent over to the bank’s solicitors;

(iii) documents prepared by the Bank’s employees without the dominant purpose of the Bank
obtaining legal advice but were sent over to the bank’s solicitors;

(iv) documents under the above three points prepared by the bank’s ex employees.

The Bank refused to disclose these documents on the ground that they were covered by the legal
advice privilege. The claim for privilege was upheld at first instance. However, the Court of
Appeal reversed the decision and decided that the documents were not covered by the privilege.

The decision of the Court of Appeal accepted the basic principle of law that documents passing
directly between the lawyer, acting in his professional capacity, and the client are protected by
the legal advice privilege, where the dominant purpose of those communication is to obtain legal
advice. The Court of Appeal has discussed some important essentials of the legal advice
privilege: -
1. Who is he client?

2. What constitutes legal advice privilege?

3. Whether evidential material obtained from the employees prior to the communication is
excluded from privilege?

1. Who is the client?

The Court took a narrow view of who actually constitutes the client as opposed to an employee
of the client. While the Court accepted that a corporation could only act through its employees, it
held that this in itself was not sufficient to protect al communication by an employee to the
employer’s lawyer. But the Court gave no guidelines as to when an employee may be deemed to
be a client and when it may not.

2. What constitutes legal advice privilege?

This question was left open but the Court suggested that obtaining information for employees
and ex employees in the context of an investigation might be for the dominant purpose for
enabling evidence to be presented to the investigation rather than to obtain legal advice, and so
again fall outside the privilege. Thus, legal advice had to be distinguished from other forms of
assistance a lawyer might provide.

3. Whether evidential material obtained from the employees prior to the communication is
excluded from privilege?

The Court appeared to treat preparatory documents as no more than the raw material on which
the client can thereafter seek legal advice. The apparent consequence of the Court’s decision is
that all the following communication may not be protected by legal advice privilege:

(i) Communication and documents prepared by the client’s employees, if not deemed to be the
client, with the dominant purpose of obtaining legal advice, but not sent to the client’s lawyers;

(ii) communication and documents prepared by the client’s employees, if not deemed to be the
client, with the dominant purpose of obtaining legal advice, which are intended to be sent to and
are in fact sent to the client’s lawyers;
(iii) Communication and documents prepared by or obtained from independent third parties such
as expert non legal advisers, i.e. brokers, economist or accountant ( and including ex employees)
with a dominant purpose of obtaining legal advice, and then sent to the client but not sent to the
lawyer; and

(iv) Communication and documents prepared by independent third parties (including those
referred to in the third point) with a dominant purpose of obtaining legal advice for a client and
passed by the third party to the client’s legal adviser.

Practically, to implement these rules, it has to be seen whether the investigation or the regulatory
proceedings are adversarial or non-adversarial. If adversarial, the wider litigation privilege would
apply. If non-adversarial, only legal advice privilege would be applied. The Court of Appeal did,
however, note that the scope of the legal advice is not clear cut as might be expected.

Comparative Analogies:

The effect of such a case in India will change the outlook toward legal advice privilege.

(i) The companies will have to establish well in advance who constitutes the client. When the
company is the client it cannot be assumed that all the employees are treated as clients for the
purpose of legal advice privilege. This has to be defined early in the process so that those
handling the investigation know the scope of the protection from disclosure.

(ii) It will be appropriate to consider internal processes for the gathering of information and
creation of preparatory documents for those investigations. The documents produced either by
the employees, ex-employees or independent third parties, whether communicated to the lawyer
or not, may not be protected and may have to be disclosed in subsequent litigation.

(iii) Safeguards have to be placed by ensuring that in-house and external lawyers prepare all the
notes and documents in the context of the inquiry. But it has to be shown that dominant purpose
of preparing the material was to obtain legal advice.

(iv) In general, the companies have to be cautious in producing documents or passing relevant
information internally without the approval of the lawyer.
Conclusion:
A lawyer is under a moral obligation to respect the confidence reposed in him and not to disclose
communications which have been made to him in professional confidence i.e. in the course and
for the purpose of his employment, by or on behalf of his client, or to State the contents or
conditions of documents with which he has become acquainted in the course of his professional
employment, without consent of his client. If such communications were not protected, no man
would dare to consult a professional adviser, with a view to his defence, or to the enforcement of
his rights, and no man could safely come into a Court, either to obtain redress, or to defend
himself.

The rigid enforcement of this rule occasionally operates to the exclusion of truth; but if any law
reformer feels inclined to condemn the rule on this ground, he will do well to reflect on the
eloquent language of the late Knight Bruce, LJ, who observed,

"Truth, like all other good things, may be loved unwisely, - may be pursued too keenly, - may
cost too much. And surely the meanness and the mischief of prying into the man’s confidential
consultation with his legal advisers, the general evil of infusing reverse and dissimulation,
uneasiness, suspicion and fear, into those communication which must take place, and which,
unless in the condition of perfect security, must take place uselessly or worse, are too great a
price to pay for the truth itself."

[1] C.L. Anand, General Principles of Legal Ethics, pg. 39

[2] Greenough v. Gaskell (1833)1 Myl. & K. 98 as per Brougham L.C.

[3] Section 91 of the Code of Criminal Procedure states, "Summons to produce document or
other thing.

1. When any Court or any officer in charge of a police station considers that the production of
any document or other thing is necessary or desirable for the purpose of any investigation,
inquiry, trial or other proceeding under this Code by or before such Court or office , such Court
may issue a summons, or such officer a written order, to the person in whose possession or
power such document or thing is believed to be, requiring him to attend and produce it, or to
produce it at the time and place stated in the summons or order.
2. Any person required under this Section merely to produce a document or other thing shall be
deemed to have complied with the requisition, if he causes such document or thing to be
produced instead of attending personally to produce the same.

3. Nothing in this section shall be deemed a) to affect Sections 123 and 124 of the Indian
Evidence Act

(1 of 1872) or the Bankers’ Book Evidence Act (13 of 1891), or b) to apply to a letter, postcard,
telegram or other documents or any parcel or thing in the custody of the Postal or telegraph
authority.

[4] Section 162 of the Indian Evidence Act states, "A witness summoned to produce a document
shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which
there may be to its production or to its admissibility. The validity of any such objection shall be
decided by the Court. The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its admissibility. If for such
purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit,
direct translator to keep the contents secret, unless the document is to be given in evidence: and,
if the interpreter disobeys such direction, he shall be held to have committed an offence under
Section 166 of the Indian Penal Code."

[5] Ganga Ram v. Habib Ullah (1935)58 All 364

[6] Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379

[7] Wallace v. Jefferson 2B 452

[8] Smith v. Duniell 44LJCh 189

[9] O’Rourke v. Darbishire (1920) AC 581

[10] Calcraft v. Guest (1898)1 QB 759

[11] Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576

[12] D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
[13] Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31

[14] Jones v. Great Central Railway 1910 AC 4

[15] [2003] EWCA Civ 474

[16] Pearse v. Pearse 1846, 16 LJCh 153

Approval testimony (Section 133)

Approvers

1. Definition—The term “approver” is neither defined nor used in the Criminal Procedure Code,
but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to
an offence to whom a pardon is granted under Section 337 of the Code [Section 306 of new
Code] with a view to securing his testimony against other persons guilty of the offence. The
procedure laid down in Section 337 [Section 306 of new Code] has often to the resorted to in this
State in cases of organized crime like dacoities, when no independent evidence is available to
bring the offenders to book.

2. When pardon may be tendered and by whom—The scope of Section 337 [Section 306 of
new Code] has been widened by the amendments made by Act No. 26 of 1955. Now besides the
other offences specified in sub-section (1), a tender of pardon can be made in cases of all
offences punishable with imprisonment of seven years or more. A Magistrate exercising powers
inferior to those of a Magistrate of the first Class cannot tender a pardon, and Magistrate of the
first class can do so only if the case is under inquiry or trial by him or (with the sanction of the
District Magistrate) if he has jurisdiction in the place where the offence might be tried or
inquired into, and it is still under investigation.

3. Reasons for tendering pardon should be recorded and extent of pardon explained to the
intended approver—The reasons for tendering a pardon to any person must be stated.

In the cases in which a pardon is tendered, the intended approver should always be made clearly
to understand the extent of the pardon offered to him : it should be explained to him that he is
being tendered a pardon and will not be prosecuted in respect of such and such a case, and no
others.
4. Only High Court or Sessions Court or Special Judge to try cases in which pardon has
been tendered—When a Magistrate has tendered a pardon to any person and examined such
person, the case cannot be tried by any Court other than the High Court or the Court of Session
or in cases of offences punishable under Section 161 or 165-A of the Indian Penal Code or under
the Prevention of Corruption Act, 1947 (II of 1947) by any Court other than the Special Judge
appointed under the Criminal Law Amendment Act, 1952 (XLV of 1952).

5. Testimony of an approver generally requires corroboration for conviction—The evidence

of an approver being that of an accomplice is prima facie of a tainted character, and has therefore
to be scrutinized with the utmost care and accepted with caution [cf. 2 P. R. 1917 (Cr.)]. As a
matter of law, pure and simple, a conviction is not bad merely because it proceeds upon the

Uncorroborated testimony of an accomplice (vide Section 133 of the Indian Evidence Act). But
it has now become almost a universal rule of practice not to base a conviction on the testimony
of an accomplice unless it is corroborated in material particulars. As to the amount of
corroboration which is necessary, no hard and fast rule can be laid down. It will depend upon
various factors, such as the nature of the crime, the nature of the approver’s evidence, the extent
of his complicity and so forth. But as a rule corroboration is considered necessary not only in
respect of the general story of the approver, but in respect of facts establishing the prisoner’s
identity and his participation in the crime.

6. The danger of accepting approver’s evidence without corroboration should be pointed

out to the jury—In cases tried with the aid of a jury, the evidence of an approver should not be
left to the jury without such directions and observations from the Judge as the circumstances of
the case may require, pointing out to them the danger of accepting such evidence in the absence
of corroboration. The omission to do so is an error in summing up and is on appeal a ground for
setting aside a conviction when the Appellate Court thinks that the prisoner has been prejudiced
thereby and there has been a failure of justice.

7. If approver gives false evidence he can be tried for the offence and also for perjury—An
approver is under the condition of his pardon bound to make a full and true disclosure of the
whole of the circumstances within his knowledge relative to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof. If the approver
fails to comply with this condition and gives false evidence, he is liable to be prosecuted for the
offence in respect of which pardon was granted and also for perjury. He cannot, however, be
tried for the former offence except upon a certificate granted by the Public Prosecutor as laid
down in Section 339 [Section 308 (1) of new Code]. Sanction of the High Court is necessary for
his prosecution for giving false evidence. An application to the High Court for sanction to
prosecute an approver, for giving false evidence should be by motion on behalf of the State and
not by a letter of reference (cf. 10 P. R. 1904).

8. Approver should be kept in judicial custody until close of trial—An approver accepting a
pardon under Section 337, Criminal Procedure Code [Section 306 of new Code], has to be
“detained in custody” until the termination of the trial. The word “custody” as used in Section
337 (3) [Section 306(4) (b) of new Code], Criminal Procedure Code has not been defined
anywhere in the Code, but the High Court has held recently that this “custody” means judicial
and not Police custody. The detention of an approver, therefore, must be in a judicial lock-up
under the orders of any Court. The practice of detaining approvers in Police custody is not
correct.

General Principles of examination and cross examination (Section 135-166)

Indian Evidence Act – Examination of Witnesses (Part 1 of 3)

Chapter X deals with the examination of evidence. Further the chapter also deals with how the
evidence is presented and witnesses lay their testimony in the court as well as the powers of the
judges in such matters.

Section 135 talks about Order of production and examination of witnesses. It reads that the
order in which witness are produced and examined shall be regulated by the law and practice for
the time being relating to civil and criminal procedure respectively, and, in the absence of any
such law, by the discretion of the Court.

The order in which the witnesses are to be presented for examination is to be decided by the
party leading the evidence and the court is very slow in interfering with the order. However, the
court has the discretion to do so as long as it is fairly exercised.

Section 136 says that it is up to the Judge to decide as to admissibility of evidence. The
Section reads as follows.
When either party proposes to give evidence of any fact, the Judge may ask the party proposing
to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge
shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not
otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some
other fact, such last-mentioned fact must be proved before evidence is given of the fact first
mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with
such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the
Judge may, in his discretion, either permit evidence of the first fact to be given before the second
fact is proved, or require evidence to be given of the second fact before evidence is given of the
first fact.

Illustrations: X is accused of receiving stolen property knowing it to have been stolen. It is to

prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its
discretion, either require the property to be identified before the denial of the possession is
proved, or permit the denial of the possession to be proved before the property is identified.

It is proposed to prove a fact (X) which is said to have been the cause or effect of a fact in issue.
There are several intermediate facts (T, U and V) which must be shown to exist before the fact
(X) can be regarded as the cause or effect of the fact in issue. The Court may either permit X to
be proved before T, U or V is proved, or may require proof of T, U and V before permitting
proof of X.

Keeping Section 5 of the Act, a Judge may ask the party proposing to give evidence of any fact
in what manner the alleged fact will be relevent if proved. A party seeking to put a document in
evidence must show the section or provisions under which the document is admissible.

Section 137 says that examination in-chief is the examination of a witness by the party who
calls him and the examination of a witness by the adverse party shall be called his cross-
examination. The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination.

Examination in Chief is the first examination after the witness has been sworn or affirmed. It is
the prerogative of the party by who the witness has been called to examine him in chief so as to
get all the material facts within his knowledge to prove such a party’s case.

Cross- Examination is a powerful tool to test the veracity of a witness and the accuracy or
completeness of what he has stated. Cross- examination can at times take form of intensive
questioning with the expected answers hinted to in such questions itself.

The examination and cross – examination has to be related to relevant facts but the cross –
examination need not be confined to the facts to which the witness testified on his examination –
in-Chief.

The re-examination shall be directed to the explanation of matters referred to in cross-

examination ; and , if new matter is, by permission of the Court, introduced in-re-examination,
the adverse party may further cross-examine upon that matter.

In civil cases, the advocate or counsel narrates the facts of the case and this is known as the
opening of the pleading. In criminal cases, one of the officers of the ourt reads out the summary
of charge leveled against the accused as well as his plea.

Now three basic stages can be laid down in the examination of witnesses:

1. EXAMINATION IN CHIEF: Where the advocate for the party calling the witness
introduces the witness and examines him, whether for the plaintiff or the defendant. It is a
vivavoce examination. Here the questions are to the witness and he answers them and the
answers are dult recorded. No leading questions ahould be posed here. It is preferable that
the questions move in a chronological order so that the information presented can be
lonked to the case better. Only relevant questions can be asked. Here the questions are
asked for the sake of an answer, generally one that supports and proves the case for the
party who called the witness.
2. CROSS EXAMINATION: The cross-examination is also called examination exadverso.
It can be used to impeach the credibility of the witness as well as expose the inaccuracies
of the evidence of the particular witness.

If the defense fails to challenge the relevant facts that have been stated by the prosecution
witness in the examination-in-chief, the court may take it as acceptance of the truth of such facts
as was decided in GANESH JADHAV V STATE OF ASSAM 1995 1 CR LJ 111.

3. RE-EXAMINATION: If the counsel thinks it is necessary, he may with the permission

of the court re-examine hiw own witness. RE-examination cannot be claimed as a matter
of right and its purpose is only to explain the new points or matter that may have been
raised in the cross-examination and not to prove any other fact.

An order of re-examination can be made by the court on an application by a party or by court’s

own motion. If the prosecution does not examine its witness and offers him to be cross-
examined, it is tantamount to abandoning one’s own witness an therefore, a witness cannot be
thrown open to cross examination unless he is first examined-in-chief.

Each question should call for a fact and not for opinions or conclusions on law.

Section 138 lays down the order of examinations of witnesses or turns in simple terms. It says
that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross –
examined, then(if the party calling him so desires) re-examined.

Now sometimes a person is called to the court to produce a document. Section 139 says that
such a person does not become a witness by the mere fact that he produces it and cannot be cross
examined unless and until he is called as a witness. This principle was retreated in BIJOY
BHARATI V FAKRUL HUSSAIN 1976 3 SCC 642.

Further Section 140 says that witnesses to character may be cross-examined and re-examined.

This is an important basic concept of the law of evidence. We have to know about Leading
questions. Section 141 says that any question suggesting the answer which the person putting it
wishes or expects to receive is called a leading question.
Illustration: The purpose of examination-in-chief is that the witness can tell the relevent facts in
his own words and put them across himself. A leading question is where a person does not have
this freedom. For instance, if a witness is asked, “Do you live at XYZ place, City M?”, he will
answer in a mere yes or no and thus, it is said that leading questions put the answer in the mouths
of the witnesses.

A leading question can put in the examination-in-chief or the re-examination with the permission
of the Court. They cannot asked if objected to by the adverse party, in an examination-in-chief,
or in a re-examination, except with the permission of the Court as per Section 142. The Courts
permit leading questions as to matters which are introductory or undisputed, or which have, in
its opinion, been already sufficiently proved. A leading question may be asked in cross
examination as per Section 143.

Section 144 says that any witness may be asked, whilst under examination whether any contract,
grant or other disposition of property, as to which he is giving evidence, was not contained in a
document, and if he says that it was, or if he is about to make any statement as to the contents of
any document, which, in the opinion of the Court, ought to be produced, the adverse party may
object to such evidence being given until such document is produced, or until facts have been
proved which entitle the party who called the witness to give secondary evidence of it.

In simple terms, a witness can give oral evidence of statements made by other persons about the
contents of documents if such statements are in themselves relevant facts.

Illustration: The question is, whether X assaulted Y. M deposes that he heard X say to N-“Y
wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant, as
showing X’s motive for the assault, and evidence may be given of it, though no other evidence is
given about the letter.

Section 145 allows the cross- examination of a witness with respect to previous statements
made by him in writing or reduced into writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him, or being proved; but, if it is
intended to contradict him by the writing, his attention must, before the writing can be proved, be
called to those parts of its which are to be used for the purpose of contradicting him.
The general rule is that the contents of writing cannot be used unless the writing is itself
produced. This section is an exception to this rule. The propose is two-fold, one that the credit of
the witness can be impeached as well as that the statement cannot be used as a positive evidence
of the facts contained in writing. This Section mandates that if any contradiction in the evidence
of a witness in his previous statement is intended to be used, the attention of the witness must be
called to that particular part of his previous statement and has to proved in an appropriate
manner.

This Section applies only to contradictions. But if there are omissions in the previous statements
that are not contradictions but throw some doubt on the veracity of what was omitted, the
uncertainty may be capable of removal by questions in re-examination as was decided in
LAXMAN V STATE 1974 3 SCC 704.

Section 146 says that a witness during cross-examination, may, in addition to the questions
herein before referred to, be asked any questions which tend:

(1) To test his veracity.

(2) To discover who he is and what is his position in life, or

(3) To shake his credit, by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him or might expose or tend directly or indirectly t expose
him to a penalty or forfeiture.

Such questions can be asked even if the answer might tend to directly or indirectly incriminate
the witness or expose him to a penalty or forfeiture.

Leading questions (Section 141-143)

Leading Questions

Grissom - I tend not to believe people. People lie. The evidence doesn't lie.

The entire corpus juries (body of laws) is broadly classified into 2 categories, i) substantive laws,
and ii) adjective laws. Substantive laws are those, which define the rights, duties and liabilities,
the ascertainment of which is the purpose of every judicial enquiry. Adjective laws are those,
which define the pleading and procedure by which substantive laws are applied in practice. The
Indian Evidence Act is the adjective law, steps in for the enforcement of the substantive law. The
rules regarding evidence in the administration of justice are of high importance. No substantive
law can be enforced without the help of the rules of law of evidence. The law of evidence can be
stated to be the foundation on which the entire structure of judiciary is based. If the foundation is
weak the structure is bound to collapse. Similarly, if the rules of law of evidence are not sound
the administration of justice is bound to go astray.

Leading questions are questions which are framed in a way which evokes a specific response
from the individual being questioned. Issues about leading questions can come up in journalistic
interviews, court rooms, and surveys, and in some cases, the use of such questions is viewed as a
branch of ethics and professionalism. Leading questions may also be used in a more casual
setting, such as a conversation between friends, relatives, or coworkers. In a leading question, the
questioner uses language which suggests a particular answer.

For example, instead of asking a witness on the stand “where were you on the night of
December 20th, 1967,” the questioner would say: “you were driving to Maine on the night of
December 20th, 1967, were you not?” The difference between these two examples is quite clear.
The first question is open ended, while the second is closed, requiring only a yes or no answer.

Many leading questions are framed as yes or no questions, with the subject of the questions
essentially being coached into a specific answer. Others may be open ended, but framed in a way
which embeds the information that the questioner wishes to elicit. Yes or no questions are not
always leading, but they often are, so they should be constructed carefully. In a court room, the
use of leading questions is frowned upon, because people believe that they compromise the
witness and potentially taint the evidence which he or she provides. These types of questions are
usually only allowed in very specific situations, such as providing establishing biographical
information from a witness when he or she first arrives on the stand.

In surveys, leading questions can be very dangerous, because they can be formulated in a way
which slants results, and the same holds true for leading questions used in media interviews.
Some leading questions are assumptive, meaning that the questioner makes an assumption in the
process of asking the questions. Others use implications, and some are coercive, designed to
strongly suggest the preferred answer.
Leading questions can also create false links in the mind of the witness. Some psychological
studies have shown that using leading questions can actually result in the implantation of false
memories. Questions that call for a narrative answer are more or less the opposite of leading
questions. Questions that call for a narrative often produce long speeches that can waste the time
of the court and the parties. These kinds of questions are very unpopular with courts and should
be avoided. During cross-examination, attorneys may only ask about subjects that were raised
upon the direct examination of the witness, including credibility. If cross-examiners stray into a
new topical area, the judge may permit them to do so in the interest of time or efficiency, but
harassment of the witness is not permitted under any circumstances.

Leading Question Defined Under The Indian Evidence Act

Section 141 Leading Questions: -

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

The purpose of an examination in chief, that is, questioning of the witness by the party who has
called him, to enable the witness to tell to the court by his own mouth the relevant facts of the
case. A question should be put to him about the relevant facts and then he should be given the
fullest freedom to answer the question out of the knowledge he possesses. The answer should not
be suggested. The question should not be framed as to suggest the answer also. The question
should not carry an inbuilt answer in it. Any such question which suggests to the witness the
answer which he is expected to make is known as a ‘leading question’.

For example, it is relevant to tell to the court as to where a witness lives, the question to be
asked to him should be “where do you live”? and then he may tell where he lives. If the question
is framed like this, “do you live in such and such place”, the witness will pick up the hint and
simply answer “yes” or “no”. This is a leading question. It puts the answer in the mouth of the
witness and all that he has to do is to throw it back.

Various definitions given English jurists:-

1) According to Stephen, “A leading question is one which either (a)suggests the answer desired,
or (b) assumes the existence of disputed facts as to which the witness is to testify.”
2) According to Bell, “A question is leading where the question assumes any fact which is in
controversy, so that the answer may really or apparently admit that fact.”

3) According to Lord Ellen-Borough, “A leading question is a question framed in such a manner

that it throws a hint as to, or suggests directly or indirectly, the answer which the examiner
desires to elicit from the witness.”

4) According to Bentham, “A leading question is a leading one when it indicates to the witness
the real or supposed fact which the examiner expects and desires to have confirmed by the
answer.”

Leading questions are asked to make the witness acquaintance and to remove the fear or
apprehension etc. from the mind of the witness. It is just like inducing a small child by a guest
with little words, to enhance the acquaintance. The object of putting leading questions to a
witness is to revive or refresh his memory by drawing his attention to a particular topic, without
suggesting any answer.

Illustration:-
(a) You were at Duffy's bar on the night of July 15, weren't you?

It suggests that the witness was at Duffy's bar on the night in question. The same question in a
non-leading form would be:

(b) Where were you on the night of July 15?

This form of question does not suggest to the witness the answer the examiner hopes to elicit.

Sections Relevant To Leading Questions

Section 142:- When they must not be asked

Section 143:- When they may be asked

Section 146:- Questions lawful in cross-examination

Section 147:- When witnesses to be compelled to answer

Section 148:- Court to decide when question shall be asked and when witness compelled

Section 142 enjoins that the leading questions should not be asked in examination-in-chief or in
re-examination if they are objected to by the opposite party. In case the opposite party objects,
the court can decide the matter and may in its discretion either permit a leading question or
disallow it. The section also enjoins the court that it shall permit leading questions as to matters
which are introductory or undisputed, or which have, in the opinion of the court, been already
sufficiently proved.

In Varkey Joseph v. State of Kerala, the Supreme Court held that the prosecutor ought not to
be allowed to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’
so as to enable him to elicit such answers, which he expects or desires. It also held that allowing
such leading questions would offend the right of the accused to fair trial enshrined in Article 21
of the Constitution of India

Section 143 When they may be asked: -

Leading questions may be asked in cross-examination

A leading question can be put in the examination-in-chief or re-examination with the permission
of the court. The court shall permit leading questions to be asked in the examination-in-chief or
re-examination in respect of matters which are of introductory or undisputed nature or which
matters in the opinion of the court have already been sufficiently proved. It can be asked where it
is not objected to by the adverse party. A leading question may also be put when the adverse
party objects to it, but the court over rules the objection, if it is in the opinion of the court that
question pertains to matters which are introductory or undisputed or which have been sufficiently
proved.

In Barindra v. R, it was held that the court has to determine, and not the counsel, whether a
leading question should be permitted and the responsibility for the permission rests with the
court.

The section always permit leading questions being put in cross-examination, the reason is that
the object of cross-examination is to test the veracity and credibility of witnesses and to expose
any inaccuracy that exists in the testimony of the witnesses It is so because the party which calls
the witness always tells him the facts in advance, which the witness is likely to oust in the court.
As a result the witness would remain hostile to the cause of the adverse party cross-examining
him and will be biased in favor of the party calling him.

Section 146 Questions lawful in cross-examination: -

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to,
be asked any questions which tend:

(1) To test his veracity.

(2) To discover who is and what is his position in life

(3) to shake his credit, by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture:

(Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to
put questions in the cross-examination of the prosecutrix as to her general immoral character)

Questions are allowed to test the veracity of the witness in regard to his honesty so as to
convince the court to what extent the witness is reliable and credit worthy. This section also
allows ascertaining the identity of the witness and the position he holds in life. The purpose of
such questions is to establish whether the witness is an honest witness or a professional witness
giving evidence for money. The character of a witness is attacked through questions in order to
shake his credit thus exposing his respectability.

Section 147 When witness to be compelled to answer: -

If any such question relates to a matter relevant to the suit or proceeding, the provisions of
Section shall apply thereto.

Phipson says, “A witness is compellable to answer every question put to him in cross-
examination which is relevant to the issue, unless protected by public policy, or privilege, or
unless the case is one in which oral evidence is excluded by documentary. All cross-examination
must be relevant to the issue or to the witness’s credit.”
Section 147 supplements the provision in section 146 by providing that if the question put to the
witness relates to a relevant fact the provisions of section 132 will apply. Section 132, provides
that if the question relates to a relevant fact, the witness shall be bound to answer the question
and cannot be excused from the answering it only on the ground that the answer will expose him
to some civil or criminal liability.[But whatever answer the witness shall be compelled to give
shall not be used against him as evidence, except that if the answer is false the witness may be
prosecuted for giving false evidence.

Illustration: - A public servant appearing as a witness is asked whether it is not true that he is in
regular habit of receiving bribes. The purpose of this question is only to shake the credit of the
witness and to impeach his credibility. The witness however is not excused from answering the
question, which injures his character. But if the witness answers the question in the affirmative
manner admitting the allegation contained in the question the answer cannot be used for the
purpose of subjecting him to an arrest or to use the same in evidence in any suit or proceeding.

Section 148 Court to decide when question shall be asked and when witness compelled to
answer: -

If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it
affects the credit of the witness by injuring his character, the Court shall decide whether or not
the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is
not obliged to answer it. In exercising its discretions the Court shall have regard to the following
considerations:

(1) Such questions are proper if they are of such a nature that the truth of the imputation
conveyed by them would seriously affect the opinion of the Court as to the credibility of the
witness on the matter to which he testifies;

(2) Such questions are improper if the imputation which they convey relates to matters so remote
in time, or of such a character, that the truth of the imputation would not affect, or would affect
in a slight degree, the opinion of the Court as to the credibility of the witness on the matters to
which he testifies;

(3) Such questions are improper if there is a great disproportion between the importance of the
imputation made against the witness’s character and the importance of his evidence;
(4) The Court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the
answer if given would be unfavorable.

Sections 148-152 are intended to protect a witness against improper cross-examination-a

protection which is often very much required. The object of Section 148 is to prevent the
unnecessary raking up of the past history of a witness, when it throws no light what so ever on
the questions at issue in a case. It protects a witness from the evils of a reckless and unjustifiable
cross-examination under the guise of impeaching his credit.

Section 149 Question not to be asked without reasonable grounds: -

No such question as is referred to in Section 148 ought to be asked; unless the person asking it
has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustration:-
(1) A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This is a
reasonable ground for asking the witness whether he is a dacoit.

(2) A pleader is informed by a person in Court that an important witness is a dacoit. The
informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This
is a reasonable ground for asking the witness whether he is dacoit.

(3) A witness, of whom nothing whatever is known, is asked at random whether he is dacoit.
There are no reasonable grounds for the question.

(4) A witness, of whom nothing whatever is known, being questioned as to his mode of life and
means of living, gives unsatisfactory answers. This may be reasonable ground for asking him if
he is a dacoit.

The illustration appended to the section drive home the lesson of the section. If nothing
whatsoever is known about a witness and he is abruptly asked the question whether he is dacoit.
The question is not well founded. But if the witness is asked to explain the means of his
livelihood and he gives unsatisfactory answers, he may then be asked whether he is living on
dacoity. The question will be well founded. Similarly, where the lawyer carrying on a cross-
examination is informed by a reliable source that an important witness is a dacoit, this is a good
reason for asking the question to the witness.

In Prakash v. State of Maharashtra, it has been held that no scandalous question should be put
unless there are reasonable grounds to believe them to be true.

Section 150 Procedure of Court in case of question being asked without reasonable grounds: -

If the Court is of the opinion that any such question was asked without reasonable grounds, it
may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the
case to the High Court or other authority to which such barrister, pleader vakil or attorney is
subject in the exercise of his profession.

Section 150 is the penalty that may ensue against a reckless cross-examination, if the court is of
opinion that the questions were asked without reasonable grounds.

Section 150 provides the procedure to be followed by the court in regard to the advocate in cases
where questions are asked by him without reasonable grounds. The court may report to the High
Court or to the Bar Council of the State, in which such an advocate enrolled his name. The court
can consider the questions without reasonable grounds as contempt of court and/or professional
misconduct.

he object of section 149-152of the Evidence Act is to lay down, in the most distinct manner, the
duty of counsel of all grades in examining witnesses with a view to shaking their credit by
damaging their character. The court may disallow cross-examination used simply to oppress and
not for the purposes of justice.

Section 151 Indecent and scandalous questions: -

The court may forbid any questions or inquiries which it regards as indecent or scandalous,
although such questions or inquiries may have some bearing on the questions before the court,
unless they relate to facts in issue, or to matters necessary to be known in order to determine
whether or not the facts in issue existed.

Section 151 of the Evidence Act invests a court with power or discretion to forbid questions.
The trial judge is not mere automation but is supposed intelligently to control the conduct of the
cases in the court and it is one of his important functions to see that scandalous matters are not
introduced in the record unless they are relevant for the proper decision of the case.

In Mohinder Singh v. State, it was held that a trial judge shall not permit questions which are
scandalous, vexatious or even those cantankerous, which elicit irrelevant or inadmissible
answers, or even those which do not advance the trial, but are calculated to hinder or delay in
progress

The purpose of cross examining the victim of rape is not to humiliate her but to get to the truth of
the matter and consequently questions which have no real relevance to the issues before the court
and which are apparently directed to cause discomfiture, if not humiliation, to a victim of sexual
offences should not be permitted, as such they do not serve the ends of justice.

Questions touching upon a witness moral character should not be put to him/her in cross-
examination, without any material to substantiate the suggestions.

Section 152 Questions intended to insult or annoy: -

The court shall forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the court needlessly offensive in form Under Section
151, the court cannot forbid indecent and scandalous questions if they relate to the facts in issue.
But under Section 152, though it appears to the court that the question is proper in itself, but if it
is offensive in form, the court shall have to forbid it.

The term ‘to annoy’ means to ruffle, trouble, vex. The word ‘insult’ means affront, scornful
abuse, a gross indignity offered to another whether by act or by word; to offer indignity to
someone. ‘To insult’, says Webster, ‘to treat with abuse, insolence, or contempt; to commit an
indignity upon, as to call a man a liar’. Insult excludes politeness. There never can be a
justification of insult.

In Fatima Riswana v. State, where concerning commission of offences to acts or pornographic

material, evidences as to the subject-matter of which could cause embarrassment not only to the
presiding officer, both male and female, but also to the lady witnesses/accused as well as to any
decent persons the Supreme Court held that presiding officer could make adjustments or
arrangements in the procedure so as to minimize embarrassment to himself or herself and the
witness

Lawful questions in cross - examination (Section - 146)

146. Questions lawful in cross-examination.-

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to,
be asked any questions which tend-

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might
tend directly or indirectly to criminate him or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture. Provided that in a prosecution for an offence under section
376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal
Code or for attempt to commit any such offence, where the question of consent is an issue, it
shall not be permissible to adduce evidence or to put questions in the cross-examination of the
victim as to the general immoral character, or previous sexual experience, of such victim with
any person for proving such consent or the quality of consent. Madras High Court:
R.Dineshkumar @ Deena vs State Rep. By on 13 November, 2014 Under Section 146 of the
Evidence Act, during cross examination, it is lawful to ask questions which may or may not be
relevant to the matter in issue for any one or more of the three purposes mentioned in Section
146 of the Evidence Act, although the answer may directly or indirectly incriminate him. These
questions falling under Section 146 of the Act relate to the trustworthiness of the witness. When
such a question falling under any of the purposes enumerated in Section 146 of the Evidence Act
is asked, whether the witness could be compelled to answer the said question, if the question
tends to incriminate him is dealt with in Section 147 of the Evidence Act. Compulsion to answer
questions put to witness Hostile witness (Section 154)

Hostile Witnesses and Efficacy of Law

In a democratic set up important role to procure the rule of law of the citizens lose faith in the
judicial system for resolving their disputes in the court of law or they are made remediless they
would resort to extra constitutional or extra legal measures which will affect the very basis of
democracy, the rule of law. The concept of hostile witnesses only in the writing form. There is
no more implementation of laws relating to the Hostile witness. The provisions regarding the
hostile witness were under cloud.

The role of a witness is paramount in the cardinal justice system of any country.

By deposing in a case, they assist the court in discovering the truth. But the witnesses turning
hostile is a common thing happening in the criminal justice system. The whole Case of the
prosecution can fall only on a false statement of the witness. The result is that more and more
citizens are losing faith in the effectiveness of the system in providing justice to the victims. As
long as the witnesses continue to go hostile and do not make truthful depositions in court, justice
will always suffer and People’s faith in efficacy and credibility of judicial process will continue
to be eroded and shattered.

According to Bentham, "witnesses are the eyes and ears of justice".

In the words of Justice Wadhwa "A criminal case is built on the edifice of evidence, evidence
that is admissible in law. For that witnesses are required to be classified that whether it is direct
evidence circumstantial evidence."

Witnesses are the key to the case. But what happens when these witnesses turn hostile or retract
from their statement. Hence the importance and primacy of the quality of trial process if the
witness himself is in capacitated from acting as eyes and ears of justice. The trial gets paralyzed
and it no longer can constitute a fair trial. Due to several factors like the witness being not in a
position for reasons beyond control to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion time has became rite to act on account of numerous
experiences faced by courts on account of frequently turning of witnesses as hostile either due to
threats, coercion, lures and monetary considerations at the instances of those in power their
henchmen and hirelings political clouts and patronage and innumerable other corrupt practices in
generously adopted to smother and stifle truth and realities coming out to surface rendering truth
and justice to become ultimate casualties.

'Hostile witness' which is more than just a concept in the Indian criminal Justice has again come
back to picture with yet another case i.e. Jessicalal murder case. Not, many years have passed
when a key witness in the Best Bakery case turned Hostile. The retraction in statement acquitted
21 accused. The collapse in the sensational riot case showed among other things, the need to vest
more powers in the trial court to prefect witnesses and take action against those threatening
witnesses.

In Best Bakery case Zahira Sheikh had first disclosed to the social activists that she and other
witnesses turned hostile under threat.

In this case Zahira has committed contempt of this court and Zahira is sentenced to undergo
simple imprisonment for 1 year and pay cost of Rs. 50,000/- and in case of default of payment
within 2 months she shall suffer further imprisonment of one Year.

2. Hostile Witnesses: Meaning and Analysis of the Term "Hostile Witnesses"

The term "Hostile witness has Hostile has its genesis in the common Law". The word Hostile has
to be interpreted in comprehensive manner. The function of the word Hostile under common
Law was to provide safe guard against the contrivance of an artful witness who willfully by
hostile evidence ruin the cause of party falling such witness. Common law laid down certain
peculiarities of a hostile witness such as not desirous of telling the truth at instance of the party
calling him or the instance of a hostile animus to the party calling such a witness. Indian law also
derives the meaning of Hostile witness from the common law.

The term ‘hostile witness’ was first introduced in the common law to provide adequate safeguard
against the “contrivance of an artful witness” who willfully by hostile evidence “ruin the cause”
of the party calling such a witness. Such actions hamper not only the interest of the litigating
parties but also the quest of the courts to meet the ends of justice. The “safeguard” as envisaged
under the common law, consisted of contradicting witness with their previous statements or
impeaching their credit (which normally as a rule was not allowed) by the party calling such
witnesses. To initiate the “safeguard”, it was imperative to declare such a witness “hostile”. For
this purpose, common law, laid down certain peculiarities of a ‘hostile’ witness, such as, “not
desirous of telling the truth at the instance of the party calling him” or “the existence of a ‘hostile
animus’ to the party calling such a witness.”
(a) Dictionary Meaning 'Hostile Witnesses'

The mere fact that a witness before the sessions courts. Make statements relating to past of the
prosecution case different from that made by him before the committing magistrate does not
necessarily make him a hostile witness (AIR 1934 cal 636).

A hostile witness is a witness who from the manner in which he gives his evidence shows that he
is not desirous of telling truth to the court (Sir J.P. Wilde Coles Vs Cales and Brow (1866) LR P
and D 71)

(b) Statuary Meaning "Hostile Witnesses"

A witness cannot be treated as hostile merely because his evidence is favorable to the other side
and the fact that the witness has become hostile has to be established by eliciting information as
could give an indication of hostility. A hostile witness may be defined as one who from the
manner in which he gives evidence (within which is included the fact that he is willing to go
back upon previous statements made by him),shows that he is not desirous of telling the truth to
the court where therefore one comes across a witness of this description. There is very high
authority for proposition that the evidence of such witness cannot in part be relied upon and the
rest of it discarded or rejected.

A witness who states the truth cannot be dubbed as "Hostile" just because his statement doesn't
suit the party producing him. A witness who is gained over by the opposite party is a hostile
witness.

It is observed: "Adverse" means hostile i.e. when in the opinion of the judge he bears a hostile
animus to the party calling him and so does not give his evidence fairly and with a desire to tell
the truth to the court.

Atri Ajit defines hostile witness as 'an adverse witness in a trial who is found by the Judge to be
hostile (adverse) to the position of the party whose attorney is questioning" the witness, even
though the attorney called the witness to testify on behalf of his/her client. When the attorney
calling the witness finds that the answers are contrary to the legal position of his/her client or the
witness becomes openly antagonistic, the attorney may request the Judge to declare the witness
to be 'hostile' or 'adverse'. If the Judge declares the witness to be hostile the attorney may ask
leading questions which suggest answers or are challenging to the testimony just as on cross-
examination of a witness who has testified for the opposition. Hostile witness is a witness who
testifies for the opposing party or a witness who offers adverse testimony to the calling party
during direct examination.'

The term "hostile" witnesses mean "advance" or unfavorable witnesses are alien to the Indian
evidence Act. These all are terms of English law a hostile witness is described as one who is not
desirous of telling the truth at the instances of party calling him and unfavorable Witness is one
called by the party to prove a particular fact or issue a relevance to the issue who acts to prove
such fact or proves the opposite test. Gura Singh Vs state of Rajasthan. AIR 2001/ SC 330.

The domestic law differs to a significant degree in this respect firstly the provisions section 154
of the Indian evidence Act 1872 only talks about permitting "such questions as may be asked in
cross examination:" secondly the law mentioned the, need to declare a witness as 'hostile' before
the previsions can be invoked. Where a party or witness makes statement against the interest of
the party who has called him hit-is know-as a hostile witness.

(c) The Concept Of Hostile Witness Has Been Explained By The Supreme Court

In Sat Paul Vs Delhi Administration

An officer was charged with taking bribe a trap was laid by an inspector of the Anti-corruption
Department. The office of the accused was raided immediately after the money was supposed to
have been passed to him. The evidence of the witnesses who participated in the trap, as also that
of the inspection was rejected because they were interested in the success of their trap. Two other
witnesses who were supposed to be independent made contradictory statements and the
prosecution itself had cross-examined them with the permission of court. The question of the
value of their evidence arose. The court said a hostile witness is described as one who is not
desirous of telling the truth at the instance of the party calling him and an unfavorable witness is
one called by a party to prove a particular fact who fails to prove such fact or proves an opposite
fact.
In Panchanan Gogoi V. Emperor

A hostile witness is one who from the manner in which he gives evidence shows that he is not
desirous of telling the truth to the court. Within which is included the fact that he is willing to go
back upon previous statements made by him.

In R.K.Dey V. State of Orissa

A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the
interest of the party calling him. A witness’s primary allegiance is to the truth and not to the
party calling him. Hence, unfavorable testimony does not declare a witness hostile. Hostility is
when a statement is made in favour of the defense due to enmity with the prosecution.

In G.S.Bakshi V. State

The inference of the hostility is to be drawn from the answer given by the witness and to some
extent from his demeanor .So, a witness can be considered as hostile when he is antagonistic in
his attitude towards the party calling him or when he conceals his true sentiments and does not
come out with truth and deliberately makes statements which are contrary to what he stated
earlier or is expected to prove. When a prosecution witness turns hostile by stating something
which is destructive of the prosecution case, the prosecution is entitled to request the Court that
such witness be treated as hostile.

Elements Responsible For Turning A Witness 'Hostile'

1. Disinclination to get involved with court proceedings.

2. Fear of criminals or goondas. A witness turning hostile is either due to allurements or threats
to witnesses. Commonly threats play a part in forcing a witness to retract from his statements.
This also reflects our criminal justice system and how it treats victims and witnesses.

3. Sympathetic attitude toward accused.

4. Lack of civilized sense in the public.

5. High rate of Bribe and corruption to has been observed that while offenders have range of
rights (both constitutional and legal). The victims and more particularly witness have a limited
range privileges and protection accorded to them through the judicial or discretions of the judges.

6. Categorization of witness is an important procedural requirement in the witness protection

mechanism. The two primary purposes: "categorization sacks to serve are:

1. To identify those witnesses who have the proclivity to term hostile out of fear of intimidation
because of

(a) Nature of crime- Terrorism/Drug related crime, victims of riot/organized crime etc in these
cases the witness become hostile.

(b) To use those witnesses, who turn hostile to weaken the prosecution's case by helping the
accused?

2. Inherent vulnerability (owing to the personal characteristics of the witnesses) of the witness
women, children (Especially in cases of sexual offences e.g. Rape cases) in these cases witness
turns hostile.

For example:- Priyadarshini Mattoo rape and murder case. In this Priyadarshini Mattoo was
raped and murdered at her Delhi residence by Santos Kumar Singh who had stalking her for over
a year. The lower court had acquitted Singh on the ground that the CBI failed to prove its case
beyond reasonable doubt. But after 10 long years he convicted by High Court.

7. Non-implementation of penal Laws.

8. Observations of the Delhi High court that witnesses in a large number of cases were turning
hostile due to intimidation and threats.

9. Threats of retaliations and actual Physical violence intimidate many victims and witnesses into
not co-operating criminal proceeding.

10. If the person or witnesses are poor or disadvantaged by caste, community or gender, they
may instead be victims of grave threat and intimidation. It is routine practice, for instances in
cases of Delhi atrocities, for police to register criminal complaints against Davits victims and
witness as well they are then coerced to change their statement to escape criminal prosecution in
rigged cases and socio-economic boycott in their villages. This is also the main reason that they
cannot give real statement and become hostile witness.

Other factors

Political pressure, self-generated fear of police and the legal system, absence of fear of the law of
perjury, an unsympathetic law enforcement machinery and corruption are some of the other
reasons for witnesses turning hostile in the course of trial.

These all are the causes when witnesses make statements against the interest of the party who has
called him and turned from their precious statement.

Efficacy of Law In Relation To Hostile Witnesses or Legislation Provisions

A. Indian Evidence Act, 1872

1. Section 154 –

The court may, in its discretion, permit the person who calls a witness to put any questions to
him which might be put in cross examination by the adverse party.

Under section 154 of Evidence Act, permission may properly be granted to a party to cross
examine a witness of his over if the witness has given evidence unfavorable to the party, calling
him, is correct there can be no stronger case of witness being unfavorable to a party than where
the witness, by previously making a statement in favor of the party, has induced him to call him
as his witness. Certain other provisions of the Indian Evidence Act, 1872, govern the use of such
statements in a criminal trial, and thereby merit our attention. Section 141 of the Indian Evidence
Act, 1872 defines leading questions, whereas Section 142 requires that leading questions must
not be put to witness in an examination-in chief, or in a re-examination, except with the
permission of the Court. The court can however permit leading questions as to the matters which
are introductory or undisputed or which in its opinion have already been sufficiently proved.
Section 154 authorizes the court in the discretion to permit the persons who call a witness to put
any quest to him which might be put in cross examination by other party. Such questions will
include:-
Leading questions (Section 143 of Evidence Act) 12

Questions relating to his previous statements (Section 145 of Evidence Act)

Questions, which tend to test his veracity to discover who he is and what is his position in life or
to shake his credit (Section 146 of Evidence Act)

The courts are under a legal obligation to exercise the discretion vested in them in a judicious
manner by proper application of mind and keeping in view the attending circumstances.
Furthermore the permission of cross-examination Under Section 154 of the Evidence Act cannot
and should not be granted at mere asking of a party calling the witness.

Section 145 of this Act prescribes one of the most effective modes for impeaching the credit of a
witness. This section allows for the cross-examination of any witness as to any previous
statement made by him in writing. The previous statement made by the witness can be used for
the purpose of contradiction of the witness, under this section, as long as his attention is taken to
those parts of the writing that are to be relied on for such purpose. Section 145 statutorily
incorporates one significant use of previous statements made by witnesses and assumes
prominence especially in the context of the general principle that such statements cannot be used
as substantive evidence. The other relevant provision is Section 157 of the Act, which states that
any former statement made by a witness relating to the same fact, before any authority legally
competent to investigate the fact, can be used to corroborate the oral testimony.

2. Section 132

A witness shall not be excused from answering any question as to any matter relevant to the
matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer
to such question will criminate, or may tend directly or indirectly to criminate, such witness, or
that it will expose or tend directly or indirectly to expose, such witness to a penalty or for feature
of any kind.
Provided; that no such answer which a witness shall be compelled to give, shall subject him to
any arrest or prose certain, or be proved against him in any criminal proceeding except a
prosecution for giving false evidence by such answer.

3. Section 161

According to Section 161 (1), any person supposed to be acquainted with the facts and
circumstances of the case can be orally examined –

(a) By a police officer making an investigation of the case, or

(b) On there question of such officer, by any police officer not be love such rank as the state
court may be According to Section 161 (2)

Such person shall be bound to answer truly all questions relating to such case put to him by such
officer other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or for feature.

According to Section 161 (3)-

The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so he shall make a separate and true record of the
statement of each such person whose statement he records.

It was held in Zaheera Habibullah Sheikh Vs State of Gujrat that in case of examination of
witness by police it is not obligatory on the part of police Officer to record and statement made
to him and it need not be recorded in the large age known to the person giving statement, further
the person making statement was not required to sign the statement.

4. Section 172.

Absconding to avoid service of summons, notice or order proceeding from any public servant
legally competent, as such public servant, to issue such summons notice or order, shall be
punished with simple imprisonment for a term which may extend to one month or with fine
which may extend to five hundred rupees or with both. Or if the summons or notice or order is to
attend in persons or by agent or to produce a document or an electronic recording a court of
justice with simple imprisonments for a term which may extend to size months or with fine
which may extend to one thousand rupees, or with both.

5. Section 202

Intentional omission to give information of offence by person bound to inform - Who ever,
knowing or having reason to believe that an offence has been committed intentionally omits to
give any information respecting that offence which he is legally bound to give shall be punished
with imprisonment of either description for a term which may extend to size months or with fine
or with both.

6. Section 203 –

Giving false information respecting an offence committed. Whoever, knowing or having reason
to believe that an offence which he knows or believes to be false shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with
both.

7. Section -4

Oaths or affirmations to be made by witness interpreters and juror's oaths or affirmation shall be
made by the following persons namely:

(a) all witnesses that is to say all person who may lawfully be examined or give or be required to
give evidence by or before any court or person having by law or consent of party authority to
examine such person or to receive evidence.

(b) Interpreters of questions put to end evidence given by witnesses, and,

(c) Jurors.

Proviso- An oath cannot be administer to a child who is below 12 Years.

8. Section-311

Power to summon material witness or examine person present In criminal cases the fate of the
proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to
see that essential questions are not so far as reasonably possible left answered.

It was held in a famous case that section 311 confers very wide power on court for summoning
witnesses. The power under section 311 is wholly discretionary but it should be exercised
judicially the wider the power is greater the necessity for application of judicial mind.

It was further held is commonly known as "Best bakery case" that fair trial warrants that a
presiding judge must not be a spectator and a mere recording machine. But he should play active
role in evidence collecting process and elicit all relevant materials necessary for reaching the
correct conclusion to find the truth

In Tahsildar Singh V. State of U.P

The Supreme Court examined in detail the purpose and object of this provision. According to the
Apex Court, the legislative intent behind this provision was to protect the accused person from
police officers who would be in a position to influence the makers of such statements, and from
third persons who would be inclined to make false statements before the police. This is a highly
laudable objective and is truly reflective of the attempt to ensure fairness in the process of
criminal investigation.

At the same time, it was imperative that there be some mechanism for recording Confessions and
other statements in a fair and foolproof manner, especially in situations where the police thought
the witnesses were unlikely to stick to the statements made by them under Section 161. It was
precisely this objective that resulted in vesting of authority in the Judicial Magistrate to record
statements by witnesses as well as confessions by accused persons, under Section 164 of the
Code.

In State of U.P. V. Singhara Singh

The Supreme Court also observed that Section 164 would be rendered wholly nugatory if the
procedure prescribed by that provision was not held to be mandatory. Section 164 strikes a fine
balance between the interests of the investigating agency and the accused person, and this is the
primary reason for judicial insistence on strict compliance with the prescribed procedure. As
rightly observed by a Full Bench of the Madras High court

The Evidential Value of Statements Recorded Under Section 164

Any statement made before a Magistrate and duly recorded under Section 164 is considered a
public document under Section 74 of the Indian Evidence Act, 1872. Written documents
containing such statements are also presumed to be genuine as well as duly recorded, under
Section 80 of this Act. The effect of this provision is to dispense with the examination of the
Magistrate who recorded the statement under SECTION 164. Section 164 can be used as
evidence of the verbal statement made by the witness before the Magistrate.

Should Witnesses Who Turn Hostile Be Penalized

In this context, two contradictory views arise; Yes, it'll discourage those who look at justice as
purchasable Commodity.

(1) No. Even the witness Protection Programme is a simplistic solution:-

Simplistic solutions and knee jerk reactions have neither worked in the past nor are they going to
make a difference in the further whether it was the menace of snuggling 60s, food adulteration in
70s, corruption in 80s or terrorism in 90s, simplistic solutions kike in traducing prescriptions
against the accused reversal of proof admissibility of confessions before police etc Failed to
achieve the desired results always. That why even the witness protection programmer is a
simplified solution to the problems of criminal courts. Instead there should be an in depth study
itself. It needs more than a mere legislation.

WPP can never work in India since we don't have a culture of confidentiality. The problem lies
in the criminal justice system which is expected with bullock crate facilities. A look at the
working of our criminal courts gives an idea of what is wrong with system. For example:

Victim’s rights and criminal justice reforms

1. In 1985, the United Nations adopted the Declaration of Basic Principles of Justice for
victims of crime and Abuse of Power. The declaration recognized four types of rights and
entitlements of victims of crime.
 2. 2. The United Kingdom enacted the criminal Injuries compensation Act, in 1995.

3. In 2001 in a report on "criminal Justice" The way a Head" the home Department found that
many victims felt that the rights of accused of a crime take precedence over theirs in criminal
proceedings.
4. Mallimath committee appointed by the GOVT OF INDIA (2003) made a series of
recommendations to put the victim Back at the centre of criminal proceedings through a series of
steps designed to empower him and the court.

2. Some other rights granted to accused consist of:

1. Protection in respect of conviction for offences (Article 20); right to life (Art 21), Right not to
be subject to orbiter & arrest and detention (Art.22.) standard proof beyond reasonable doubt
(sec.101 IEA 1872) right to cross-examination (Sec 145 IEA 1872) etc.

2. Yes it will discourage those who look at justice as purchasable commodity.

The extra ordinary rational outrage when the killers of Jessica lal walked away free has created
the moral universe for introducing several long delayed reforms in India's crumbling and
discredited criminal justice system. The glittering party where her life was taken was attended by
many rich and powerful people. Yet most of them failed to give or stand by their eye-witness
statements leading ultimately to shameful acquittal of the accused. The people who turned hostile
in this case should be punished for their indefensible complicity in helping the guilty escape the
law. In Gujrat the major reasons for large no. of witnesses turning hostile in cases related to 2002
carnage is open threats and rampant fear. Therefore, punishment of people who charge their
statement must require investigation that establishes that they did so because they were bribed. It
should never be used to victimize the victim further. Punishing hostile witnesses should indeed
be part of a much larger package of reform including witness protection much stronger police
and judicial accountability.

In Zabeera Habibullab Sheikh Vs state of Gujrat

In this case supreme court held that "Zaheera is sentenced to undergo simple imprisonment for
one year and to pay cost of Rs 5~00 and in case of default of payment within 2 months she shall
be suffer further imprisonment of one year.
Hostile Witnesses: Judicial Remedy

The malady afflicting our criminal justice system is much more deep-rooted. Cosmetic changes
just won't do much to deliver justice. The system requires a comprehensive revamp. The V S
Malimath committee on reforms of the criminal justice system prepared an outline for such a
wide-ranging correction in 2003.

For a situation like the Jessica Lal case, where witnesses refused to support the prosecution's
case, the committee has suggested the following measures: -

1. Holding in-camera proceedings,

2. Taking measures to keep identity of witness’s secret,

3. Ensuring anonymity, and

4. Making arrangements to ensure their protection.

5. Witnesses in court should be treated like guests of honor;

6. They should be adequately compensated for spending money on travel and accommodation;
7. Comfort, convenience and dignity of witnesses while deposing in the court of law should be
ensured; and

8. A law for protection of witnesses should be enacted as there is no such law in India.
9. Constitution of a National Security Commission at national level and a State security
commissions at state level.

Swaran Singh Vs state of Punjab

As the Supreme Court observed "A witness is not treated with respect in the court. He waits for
the whole day and then finds the matter adjourned. And when he does appear he is subjected to
unchecked examination and cross examination and finds himself in helpless situation. For their
reasons and others, a person abhors becoming a witness".

Impeaching of the standing or credit of witness (Section 155)

155. Impeaching credit of witness.- The credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe
him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has accepted the offer of bride, or has received
any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted;

Explanation.--A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination, and the answers which he gives cannot be contradicted, though, if they are false, he
may afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to
B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered
goods to B. The evidence is admissible.

(b) A is indicted for the murder of B. C says that B, when dying, declared that A had given B the
wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the
wound was not given by A or in his presence. The evidence is admissible. Appabhai .Vs. State of
Gujrat The Court while appreciating the evidence must not attach undue importance to minor
discrepancies. The discrepancies which do not shake the basic version of the prosecution case
may be discarded. The discrepancies which are due to normal errors of perception or observation
should not be given importance. The errors due to lapse of memory may be given due allowance.
The Court by calling into aid its vast experience of men and matters in different cases must
evaluate the entire material on record by excluding the exaggerated version given by any
witness. When a doubt arises in respect of certain facts alleged by such witness, the proper
course is to ignore that fact only unless it goes into the root of the matter so as to demolish the
entire prosecution story. The witnesses now a days go on adding embellishment to their version
perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should
not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Arjun
and others ..Vs.. State of Rajsthan A little bit of discrepancies or improvement do not necessarily
demolish the testimony. Trivial discrepancy, as is well known, should be ignored. Under
circumstantial variety the usual character of human testimony is substantially true. Similarly,
innocuous omission is inconsequential. Supreme Court : Rammi Alias Rameshwar vs State Of
Madhya Pradesh on 21 September, 1999 It is a common practice in trial courts to make out
contradictions from previous statement of a witness for confronting him during cross-
examination. Merely because there is inconsistency in evidence it is not sufficient to impair the
credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching
the credit of a witness by proof of inconsistent former statement. But a reading of the Section
would indicate that all inconsistent statements are not sufficient to impeach the credit of the
witness. The material portion of the Section is extracted below: 155. Impeaching credit of
witness.- The credit of a witness maybe impeached in the following ways by the adverse party,
or, with the consent of the court, by the party who calls him

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted. A former statement though seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement
which is liable to be contradicted would affect the credit of the witness. Section 145 of the
Evidence Act also enables the cross-examiner to use any former statement of the witness, but it
cautions that if it is intended to contradict the witness the cross-examiner is enjoined to comply
with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use
the previous statement of the witness (recorded under Section 161 of the Code) for the only
limited purpose, i.e. to contradict the witness. To contradict a witness, therefore, must be to
discredit the particular version of the witness. Unless the former statement has the potency to
discredit the present statement, even if the latter is at variance with the former to some extent it
would not be helpful to contradict that witness.
5. BURDEN OF PROOF:

Q. What do you understand by Burden of Proof? On whom the does the burden of proof
lie? State the rules of determining Burden of Proof in a suit or proceeding. When does the
burden of proof shift to the other parties? Are there any exceptions?

General Concept of Burden of Proof

The responsibility to prove a thing is called burden of proof. When a person is required to prove
the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case,
many facts are alleged and they need to be proved before the court can base its judgment on such
facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant
facts in a case to the required degree of certainty in order to prove its case. For example, in a case
of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All
such conditions are facts in issue and there is an obligation to prove their existence. This
obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor
or against his opponent, this obligation is nothing but burden of proof.

Section 101 defines burden of proof as follows - When a person is bound to prove the existence
of any fact, it is said that the burden of proof lies on that person.

The important question is who is supposed to prove the various facts alleged in a case. In other
words, on whom should the burden of proving a fact lie? The rules for allocation of burden of
proof are governed primarily by the provisions in Section 101 to 105. The rules propounded by
these sections can be categorized as General rules and Specific rules.

General rules

Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact. It
says that whoever desires any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist. For example, A
desires a Court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime. Another example - A desires a Court
to give judgment that he is entitled to certain land in the possession of B, by reason of facts
which he asserts, and which B denies, to be true. A must prove the existence of those facts.
Facts can be put in two categories - those that positively affirm something and those that deny
something. For example, the statement, "A is the owner of this land" is an affirmative statement,
while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the
person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus,
the person who makes the statement that "A is the owner of the land", has the burden to prove it.
This rule is useful for determining the ownership of the initial burden. Whoever wishes the court
to take certain action against the opposite party based on certain facts, he ought to first prove
those facts.

However, it is not very simple to categorize a fact as asserting the affirmative. For example, in
the case of Soward vs Legatt, 1836, a landlord suing the tenant asserted that the tenant did not
repair the house. Here, he was asserting the negative. But the same statement can also be said
affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that
In ascertaining which party is asserting the affirmative the court looks to the substance and not
the language used. Looking at the substance of this case, the plaintiff had to prove that the
premises were not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to begin
who in substance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a matter of
law and pleading, and the burden of proof as a matter of adducing evidence also called as onus.
There is a subtle distinction between burden of proof and onus of proof, which was explained in
the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to prove the main
contention of party requesting the action of the court, while the second one is the burden to
produce actual evidence. The first one is constant and is always upon the claimant but the second
one shifts to the other party as and when one party successfully produces evidence supporting its
case. For example, in a case where A is suing B for payment of his services, the burden of proof
as a matter of law is upon A to prove that he provided services for which B has not paid. But if B
claims that the services were not up to the mark, the onus of burden as to adducing evidence
shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims
that the services were provided as negotiated in the contract, the onus again shifts to A to prove
that the services meet the quality as specified in the contract.

The next rule determines who has the onus of proof.

Rule 2 - As per Section 102, the burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side. The following illustrations explain this
point -
Illustration 1 - A sues B for land of which B is in possession, and which, as A asserts, was left
to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to
retain his possession. Therefore the burden of proof is on A.

Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted, but B
says that it was obtained by fraud, which A denies. If no evidence were given on either side, A
would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of
proof is on B.

Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact is the
one who is supposed to prove that fact unless it is provided by any law that the proof of that fact
shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to
believe that B admitted the theft to C. A must prove the admission. Another example - B wishes
the Court to believe that, at the time in question, he was elsewhere. He must prove it. Further, as
specified in Section 104, if a person wants the court to believe in a fact that assumes the
existence of another fact, it is up to the person to prove the other fact also. For example, A
wishes to prove a dying declaration by B. A must prove B's death. A wishes to prove, by
secondary evidence, the contents of a lost document. A must prove that the document has been
lost.

Specific Rules

These rules specifically put the burden on proving certain facts on particular persons -
Rule 1 - As per Section 106, when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. When a person does an act with some intention other
than that which the character and circumstances of the act suggest, the burden of proving that
intention is upon him. For example, A is charged with traveling on a railway without a ticket.
The burden of proving that he had a ticket is on him.

Rules of Presumption - Section 107 and 108 say that if a person was known to be alive within
30 yrs the presumption is that he is alive and if the person has not been heard of for seven years
by those who have naturally heard from him if he had been alive, the presumption is that the
person is death. But no presumption can be draw as to the time of death. Sections 109 establishes
the burden in case of some relations such as landlord and tenant, principle and agent etc. Further
sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.

Exceptions –

Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It is
the prosecution who is required to establish the guilt of the accused without any doubt. At the
same time, the accused is not required to prove his innocence without any doubt but only has to
create reasonable doubt that he may not be guilty. Section 105 specifies an exception to this
general rule. When an accused claims the benefit of the General Exception clauses of IPC, the
burden of proving that he is entitled to such benefit is upon him. For example, if an accused
claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane
at the time of committing the crime.

In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In
this case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while Nanavati
claimed innocence on account of grave and sudden provocation. The defence's claim was that
when Nanavati met Prem at the latter's bedroom, Prem had just come out of the bath dressed
only in a towel; an angry Nanavati swore at Prem and proceeded to ask him if he intends to
marry Sylvia and look after his children. Prem replied, "Will I marry every woman I sleep
with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown packet,
Nanavati too went for it and in the ensuing scuffle, Prem's hand caused the gun to go off and
instantly kill him.

Here, SC held that there is a presumption of innocence in favor of the accused as a general rule
and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when
an accused relies upon the general exception or proviso contained in any other part of the Penal
Code, Section 105 of the Evidence Act raises a presumption against the accused and also throws
a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there
existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of
murder.

Exception 2 - Admission - A fact which has been admitted by a party and which is against the
interest of that party, is held against the party. If the fact is contested by the party, then the
burden of proof rests upon the party who made the admission. For example, A was recorded as
saying that he committed theft at the said premises. If A wants to deny this admission, the burden
of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain things. For example, as
per Section 107/108, court presumes that a person is dead or alive based on how long he has not
been heard of. Section 109, presumes that when two people have been acting as per the
relationship of landlord - tenant, principle - agent, etc, such relationship still exists and anybody
who contends that such relationship has ceased to exist has to provide proof. Section 110
presumes that the person who has the possession of a property is the owner of that property. As
per Section 113A, When the question is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband. As per Section 113B, when the question is whether a
person has committed the dowry death of a woman and it is shown that soon before her death
such woman had been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the court shall presume that such person had caused the dowry
death.

Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests
on the opposite party