M. S.

College of Law (Mumbra)

Assignment 3 Indian evidence act

Name :- Mohammed Shaikh

Roll no :- 19/B
Place :- Mumbra
Class :- TYLLB Sem 6
Professor :- Nivedita Ghosh Ma’am

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Q.1 Define Estoppel with provision, illustration and case law.

The principle of doctrine of Estoppel is stated under Section 115 of the

Indian Evidence Act, 1892, Estoppel is based on the principle that it would
unjust, if a person intentionally by conduct or in any other manner has induced
other person to believe and act upon such a representation, neither he or those
representing can in a subsequent Court proceedings deny the truth. The
accused does through omission, act or declaration.
The term Estoppel is derived from the
Legal maxim, “allegans contraria non est audiendus” which implies a person
alleging contradictory facts should not be heard, and is the species of
presumptio juris et de jure, wherein the fact presumed is taken to be true
against the party stating the same.
Principle of Estoppel was established in the case of Pickar v. Sears,
wherein a person by his words or conducts induces to another person to believe
a fact and subsequently acts according to that belief or to alter his previous
position, the accused is barred from later changing his position. The doctrine
established in this section is not a rule of equity rather rule of evidence, applied
in the Court of law.

Illustration :-

A sold a house to B, A does so by wrongfully making B believe that the house

belonged to A. A subsequently cannot take the defence that the title of the
house cannot be provided to B as the house didn’t belong to A in the first place.
A will be liable for the same

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Conditions for application of Doctrine of Estoppel
The following conditions are to be satisfied in order to apply the doctrine of estoppel:

• The representation must be made by one person to another person.

• The representation made must be as to facts and not as to the law.
• The representation must be made as to an existing fact.
• The representation must be made in a manner which makes the other person believe
that it is true.
• The person to whom the representation is being made must act upon that belief.
• The person to whom the representation would be made should suffer a loss by such
representation.

Nature of estoppel
• The legal principle of the doctrine of estoppel is viewed as a substantive rule of
law, albeit, it has been described as a principle under the Indian Evidence Act, 1872.

Types of Estoppel

Estoppel by a matter of Record or Quasi-record

Alike res judicata once a court has given the judgement, the parties, their representatives, their
executors, etc. all are bound by that decision. This doctrine stops the parties to a case, from raising
another suit in the same matter or to dispute the facts of the case after the decision has been made
by the court.

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Situations where estoppel by record or quasi record arises are as follows:

1. Where the dispute between the parties on the facts have been decided upon by the
tribunal which was entitled to take decision in the particular case, and when the same
dispute arises again in the matter subsequent to the first one, between the same
parties;
2. Where the issue raised between the parties which has been resolved by the judiciary,
incidentally comes again into question in the subsequent proceedings between the
same party.
3. Where an issue raised on the facts, affecting the status of the person or thing, has been
willing determined in a manner that in the final decision it be included as a substantive
part of the judgment in rem of the tribunal that has been setup to decide the particular
case. This should take place when the same issue comes directly in question in
subsequent civil proceedings between any party whatever.
For example, if Nano has been held guilty in a murder case, then neither he, nor his representative,
Mantro, nor his executor Berna, would be allowed to raise a suit again in the same matter. Parties
are stopped from doing so under this doctrine.

This doctrine has been dealt in:

• Section 11 to 14 of the Code of Civil Procedure, and

• Section 40 to 44 of the Indian Evidence Act, 1872.

The judgements by the court can be of two types

Judgements in rem
Delivered by a competent jurisdiction, this type of judgements tells about the status of the person
or a thing. For example, family court dissolving or establishing a marriage. Irrespective of whether
the parties belong to the case or not, a judgement in rem is binding on all.

Judgement in personam
The judgements which are binding on the parties and their privies, and which determines the rights
of the parties to a suit or the proceedings are called judgements in personam.

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Judgement not falling under the said jurisdiction
In case if the judgement given by the court does not fall under the respective jurisdiction then the
application of the doctrine of estoppel will have not effect. Section 44 of the Indian Evidence Act,
1872 states that in case the party wants to avoid the application of the doctrine of estoppel, he/she
can plead that the court delivering the judgement has no jurisdiction over the matter or that it is
fraudulently doing so.

Estoppel by Deed
It is the concept where two parties enter into an agreement by way of a deed as to certain facts.
This implies that neither he nor his representatives or any person claiming under him can deny the
facts mentioned and agreed in the deed.

For example, Mickey Shroff decided to make his will in favor of his two sons, Lion Shroff and Wolf
Shroff, and his daughter’s son Deer Shroff. Lion Shroff induced some third person to buy Deer
Shroff’s share of the property. This deed was attested by Wolf Shroff who was not aware of the
facts mentioned in the deed. Deer Shroff died without giving birth to a male child. Lion Shroff filed
a suit to recover the property from the third party. Here Lion Shroff would be estopped but not
Wolf Shroff as Wolf was not aware of the facts of the deed.

Estoppel by Pais or Estoppel by Conduct

The elucidated meaning of ‘Estoppel by Pias’ is ‘Estoppel in the Country’ or ‘Estoppel before the
public’. It has been discussed in Ss. 115 to 117.

Estoppel by conduct means when a person through agreement, misrepresentation or negligence

makes the other person believe in certain things upon which the other person had taken some
action causing a change in their current situation, then the first person cannot deny the veracity of
the statements given by him in the latter stages.

In the case of Sardar Chand Singh v. Commissioner; Burdwan Division, Chang Singh, the Managing
Director of Messrs., was denied any revolver license as he was accused in a gruesome murder case
and other cases. When the District Magistrate issued an order that he could not hold any revolver
license on the grounds of public order and safety, Chand made no appeal. This planted a reasonable
belief that he has consented to it. Later on when makes an application to the District Magistrate to
reconsider his case, it was denied following the doctrine of ‘Estoppel by Conduct’.

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Estoppel by election
Kantabai offers his maid Meena Malhotra her second-hand car. Meena out of generosity says that
she would not take it for free. Kantabai says to Meena that she has the freedom to take it as a gift
or to make a payment as per her willingness. Meena has the option to either take it as a gift or
claim a right over it by purchasing the car. Now, Meena makes the payment and takes the car in
her possession. After a year, Meena becomes bankrupt and asks Kantabai to return the money
which she had given to her as the payment for buying the car, as she now wants it as a gift.

According to the doctrine of estoppel by election the person receiving the gift or claiming the right
can enjoy one of them and not both of them. So Meena cannot now go back upon it and take the
other option.

In para 17 in the case of Revision v. Lekshmy Sukesini Devi, the court clearly stated that: Parties
should not take inconsistent pleas as it makes the conduct far from satisfactory. And also that
parties should not take inconsistent stands and lengthen the proceedings unnecessarily.

In another case, the petitioner was given a land on licence and not on interest. In the terms and
conditions of the contract it was stated that in case a dispute arises, the decision of the chairman
would be the final one. The land was given to the petitioner to build an amusement park on it.
While building the park it was found that the necessary actions have not been taken for the
establishment of the park and as a result half of the land remained undeveloped, which went on
to violate the conditions of the contract. In the suit filed, the court said that the doctrine of estoppel
cannot be pleaded in the given circumstances.

Equitable estoppel
When a person tries to take a legal action that would conflict with his previously given statements,
claims or acts, this legal principle would prohibit him from doing so. So, the plaintiff would be
stopped from bringing a suit against the defendant who acted pursuant to the commands of the
plaintiff.

Suppose Tetanus gives his gold jewellery to Vaccine, the most famous jeweller in the town, for
repairing. Vaccine, while handing over the jewellery to Tetanus after repair informed that a mark
has been made by mistake at the back of the jewellery. Tetanus didn’t mind that and took the
jewellery happily with her. Later on if she brings a suit against Vaccine, she would be stopped under
this principle as her suit would run counter to her earlier statement of forgiveness for the damages
caused to her jewellery by mistake.

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Estoppel by negligence
This principle allows one party to claim a right over the property of another party who might not
be having the possession of it. This reflects that the person being estopped owes a duty to the
other person whom he had led into wrong belief.

In the case of Mercantile Bank of India v/s The Central Bank of India Limited a firm of merchants
committed a series of fraud and until it came to the notice of the authorities, enjoyed high repute
in the state of Madras. This firm was known for groundnuts-merchant and exporters. Both the
plaintiff and defendant financed the consignments of ground-nuts purchased and each received a
‘railway receipt’ in respect of their consignment.

The merchants needed a loan so what they did was, at first pledged the railway receipt from the
Central Bank to obtain a loan and then again fraudulently pledged it to the Mercantile Bank also.
The plaintiff, the Central Bank had filed a suit for conversion of the goods against Mercantile Bank.
It was held that there was no negligence as Central Bank didn’t owe a duty to the Mercantile Bank
and so Central Bank was not estopped from having a prior title as ‘pledgees’.

Estoppel by Benami Transaction

Badrinath, the owner of land, decides to hand over the apparent ownership of his property to Kaju
Rastogi. Badrinath does so and acknowledges that Kaju has paid him the consideration for the
promise. Now, Kaju Rastogi sells this land to Tripti Sanoon, a film actress, in good faith and for a
good amount of money, as by gaining ownership over the property Kaju has also gained the right
of disposition over that property. Badrinath hates Tripti Sanoon and asserts his title over the
property. But he would be estopped from doing so under the given legal principle. And this is what
benami transaction means.

In Li Tse Shi v. Pong Tse Ching, the husband died in the year 1925. His entire will was made in the
name of his wife. In 1930 their son misrepresenting somebody else to be his father bought the
property of his father from the same seller who had sold the land to the father. Later the grandson
of the person who died, rented the land to a company and when the company stopped paying the
rent and the grandson complaint, the wife or the mother claimed the title over the land as her
husband had made the will in her name. But it was held that the principle of estoppel by benami
transaction could be applied as she was already aware of the fraudulent selling and purchasing of
land by her son.

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Estoppel on a Point of law
The Doctrine of estoppel does not apply to statutes but only to the facts. Estoppel, if applied to the
law would go against public policy and general welfare of the society. The principle of estoppel can
never be invoked for the purpose of defeating the provisions of law.

For example, if a minor, representing himself to be a major, enters into an agreement with Mr
Kanjilal for the sale of a plot of land, the agreement would be void. And nothing would stop the
minor from taking the defence that the agreement was void ab initio, as it was true that at the time
when he entered into the agreement he was a minor.

In Jatindra Prasad Das v. State of Orissa & Ors. the High Court of Orissa laid down that estoppel
cannot arise against statutes and statutory provisions. It was further said that statutory provisions
cannot be disregarded in any case, not even on the grounds of precedent or previous
administrative decision.

In the case of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., pavement dwellers who
migrated to India, because of proximity to their place of work started living on the pavements in
Bombay. Bombay Municipal Corporation (BMC) initially allowed them to stay as they constituted
the major part of the population of Bombay.

Later on when the pavement dwellers were evacuated, Olga Tellis, a journalist raised questions
against this action. It was upheld that no estoppel can arise against the Constitution of India or
against the fundamental right, i.e. the right to life and livelihood in this case.

• Estoppel and tax laws

In I.T. Commissioner v. Firm Muar the court upheld that doctrine of estoppel would not hold in the
case where a non-taxable income under Income-Tax Act, has been taxed. Also once it has been
said that a tax would be collected then one cannot give up on it. Further, stating that the tax would
not be collected would not bind the state government from collecting it, as decided in Mathura
Prasad v. State of Punjab..

• Unambiguous laws cannot be dodged

In Sales Tax Officer v. Kanhaiya Lal it was formulated that the doctrine of estoppel would not arise
in cases where the law clearly, without any ambiguity, states that the plaintiff should be given relief.
When any law is absolute and has no exception clauses, than anybody acting against it would be
acting beyond powers which would be void and the party getting affected by it can file suit claiming
estoppel against it. Whereas if any exemption clause exists in the law then relaxation can be given
based upon it. The party would not be said to be acting ultra vires and estoppel can be claimed as
mentioned in the judgement of Delhi university v. Ashok Kumar.

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 • Principles determining that there cannot be any estoppel
against statute
Categories under which the doctrine of estoppel cannot be applied against the state:

• By entering into bilateral agreement parties can contract himself out of the statutory
provisions,
• There must exist some provision in the statute which prevents the parties from entering
into such types agreements which the parties would have entered into,
• The provision should be such that it satisfies the interest of the public at large,
• The provisions should not be such that only a particular category of people can avail its
benefits, and,
• Merging of the agreement between the parties into a court’s order where the parties
have been discouraged from performing its obligation imposed on them by law,
because of certain actions by the parties.
By saying that there can be no estoppel against the statute it is meant that where the converse of
a provision mentioned in a statue exists, the party would not be estopped by his previous given
statement(s).

In Jai Jai Ram v. Srimati Laxhmi Devi the court gave a verdict that what appears to be a law is
actually a law or not is dependent on the truth of the facts and on the situation of the parties which
keeps on changing. Whether what impersonates a law is really a law or not has to be decided by
the courts.

In National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board relying on the Schedule mentioned
in the Act a new industry was given concession on tax for the next five years from the days of its
commencement. The state Government of Madras under a section of the Act had the power to
bring amendments to the schedules of the Act. Pursuant to this, the State government brought an
amendment to the above-mentioned schedule and made it a subject to certain conditions. This
was done before the completion of 5 years of that industry. The industry in his suit pleaded
estoppel to which the court said that no estoppel would arise against the government.

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Proprietary Estoppel
We often see promises being made and later broken. While in some cases we can do nothing about
it, but in certain circumstances, particularly in matters related to land or property, there is a
possibility to bring a claim to enforce a broken promise. This is called proprietary estoppel.
In Thorner v. Major it was laid down that in order to claim a right under proprietary estoppel these
things have to be proved:

• That representation has been made.

• That the party believed it to be true and acted upon it.
• That the party suffered a loss as a result of such representation.
In James v. James Allen and Sandra had two daughters and one son. The son worked for the major
part of his life with his father eventually becoming a partner. When making the will, Allen gave
some land to one of his daughters which created a dispute in the family leading to the dissolution
of the partnership. Later Allen distributed his property amongst the three ladies of his house,
cutting down the name of his son. Son brought a case of proprietary estoppel against the women
and also challenged the validity of Allen’s will. It was held that nothing has been shown or said with
clarity that Aleen would transfer his entire will to him.

In Gyarsi Bai v. Dhansukh Lal, it was established that in case the first two conditions are met but
the third one is not and hence the doctrine of estoppel cannot be evoked.

Estoppel by Convention
In the case of the Republic of India v. India Steam Ship Company Limited, it was observed that
estoppel by convention arises when parties to a transaction assume the facts or the law. This
assumption might be made by both the parties or either of the parties. Under this principle, parties
to an agreement could not deny to the assumed facts, because if the party or parties are allowed
to go back on their assumptions, it would be unfair and lead to injustice.

In a meeting between the landlord and the lesses, it was decided that the landlord would send
demands at the end of the year and the receipt would be given to any one of the lessees. However,
certification was not made a requirement for the recovery of the service charged under the
agreement. The doctrine of estoppel by convention would apply whereby the landlord could
recover the service charges which could not be challenged by the lessee as there was no
certification. This was decided in the case of Clacy & Nunn v. Sanchez & Others.

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Estoppel by Acquiescence
When one party, through a legitimate notice, informs the other party about the facts of a claim,
and the other party fails to acknowledge it, that is, neither he/she challenges it nor does refute it
within a reasonable period of time. The other party now would be estopped from challenging it or
making any counterclaim in the future. The other party is said to have accepted the claim though
reluctantly, that is, he/she has acquiesced it.

Contractual Estoppel
Pappi Lahari from Bihar entered into a contract with Batman from Chennai whereby Pappi would
supply 100 bales of cotton to Batman in exchange of 25,000 rupees. While signing the contract
they agreed to the fact that in case of any dispute between them, the case would be filed in the
court of in Tamil Nadu. Once agreed the parties cannot, later on, assert to change the jurisdiction
in the particular case. They are bound by the principle of contractual estoppel.

This principle would apply even when the original statement made by the parties is not true.

In Peekay Intermark Ltd. v. Australia and New Zealand Banking Group Ltd. it was laid down that
when the parties to the contract gives consent to a fact, neither of them can deny the existence of
such facts to which they have agreed, especially when considering those aspects of their
relationship towards which the agreement had been directed. The contract would itself give rise
to contractual estoppel.

Conflict Estoppel
When one person through his speech or conduct makes the other person believe in a particular
thing and induces him to act upon it, he would be estopped from taking any conflicting or contrary
or erratic position, which could cause loss to the other party.

For example, Sattu in an agreement with Kabir says that he would not roam with his girlfriend if he
offers him a ride on his bike every day until his birthday. Kabir follows his instructions. Sattu after
few days says that the number of rides would be two per day and only then will he not chase Kabir’s
girlfriend. After 2 months he asks that the bike ride be replaced with a ride in his car. Here Sattu
cannot take conflicting positions. Once there has been an agreement to offer one ride everyday on
the bike, he cannot contradict that and make other demands, he would be estopped from doing
so.

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Issue Estoppel
Father of Neena had given words to his friend that Neena would get married only to his son,
Thangabali when they become adults. When they grew up, Thangabali went for a court marriage
with Neena. Just before the signing of the documents, Neena ran with her lover Rahul. Thangabali
filed a case stating that Rahul has forcefully taken Neena with her and that there was an agreement
whereby they were supposed to get married to each other only. But Neena confessed that her
father and Thangabali were forcing this marriage on her and that she wanted to marry her
childhood friend Rahul. The court said that the agreement is void and the matter was dismissed.

After 5 years it was found that Rahul has filed a suit where he claims that Thangabali has been
following him and his wife everywhere taking the plea that it was because of his work. It was found
that Thangabali has been meeting Neena over a period of time. This case again raises the issue of
whether Neena was forced by Rahul or Thangabali for marriage. Here issue estoppel would apply
and re-litigation of the said issue would be not be allowed.

Difference Between Issue Estoppel and Res Judicata

Res judicata is the final decision made by the court. It prevents the parties from relitigation the
issues that were or could have been raised in the specific case.

Whereas, the issue estoppel is a legal principle which says that even if the court has made a
decision the relitigation of that issue would be prohibited on a different course of action involving
either of the parties from the first case.

Sl.
Estoppel Res judicata
No.

Estoppel is that rule which prohibits
a person from contradicting what
1.
was earlier said by him in a court of
law.
Res judicata is that principle which prohibits the other
courts from deciding on the same matter, between the
same parties which has already been decided by a
competent court.

Estoppel is based upon the rule of

Res judicata has been recognized by the law as a legal
2. equity which is the natural law of the
procedure.
land.

The rule of estoppel looks into the

3. aspects of equity, justice and good Res judicata deals only with the aspect of public policy.
conscience.

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 Estoppel arises from the words or Res judicata arises out of the decision taken by the
4.
the action or conduct of the party. court, that is the final decision of the court.

Estoppel bans a person from

In this case, the court is banned from hearing the cases
5. rebutting what has been once said
which has already been decided by a competent court.
by him before the court.

Estoppel prevents the parties from

Res judicata prevents the court from performing certain
performing certain acts which is
6. action which is dealing with the same case which has
denying to what was earlier said by
already been decided by some other court.
him.

The principle of estoppel has been

incorporated from sections, 115 to The principle of res judicata has been incorporated
7.
117 of the Indian Evidence Act, under section 11 of the Code of Civil procedure, 1908.
1872.

Estoppel is implied through the Based on previous decision given by a competent

8.
actions or the conduct of the parties. court, Res judicata is claimed by the parties.

Collateral Estoppel
The doctrine of collateral estoppel safeguards a criminal from being prosecuted for the same issue
as raised in the earlier trial in more than one criminal trial.

In the case of Ashe v. Swenson six men who were playing poker when they were robbed by three
or four men. They stole one of the victim’s cars and ran away. Next morning 3 men were found
near the stolen car and Ashe was found at some distance. Ashe was put to trial and was found not
guilty due to lack of evidence. Weeks later he was called for trial in case of robbery against the
second victim. It was held that the second trial be dismissed as the prosecution of a crime arising
out of the same course of events is not permissible by the law.

Judicial Estoppel
It prevents a party from making conflicting or contradicting statements as to what was previously
said in the court as this would adversely affect the court proceedings and also cause disrepute to
the court. It was held in First National Bank of Jacksboro v. Lasater , a bankrupt person by not
following the schedule and preventing from giving all the information of his property finally lead
the estate to shut down due to bankruptcy. After this, he started claiming a title over the property
on the ground that the trustee never took any action against it. It was held that the creditors were
automatically entitled to the property and asserting title over the property in such manner is not
permissible.

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Legal Estoppel
It means that the assignor or the grantor, in the subject matter of assignment or grant, cannot in
the latter stage deny the validity of title. In Westinghouse Elec. & Mfg. Co. v. Formica Insulation
Co. the court reached a conclusion that the legal principle of estoppel by deed should apply to the
patent right as well. Law clearly recognises that assignor of the patent for novelty or utility cannot
say that a patent is void.

He would be estopped by law from doing so. In such cases court is allowed to view the art or work
in order to understand what that thing was which was assigned and to decipher the primary and
secondary character of the assigned patent. This would also assist them in determining the extent
to which the doctrine of equivalents could be invoked against the one infringing it. It is believed
that the court would not make any assumptions other than that the invention presented a
sufficient degree of utility and novelty which would justify the issuing of the patent assignee.

Q.2 Illustrate various interpretation clause u/sec 3 with illustrations and case
laws.

Answer : -

Interpretation clause is defined under Section 3 of Indian Evidence Act 1872.Provision under
this section is:

Section 3 of Evidence Act "Interpretation clause"

In this Act the following words and expressions are use in the following sense. Unless a contrary
intention appears from the context-

"Court"- includes all Judges and Magistrates, and all persons, except arbitrators, legally
authorised to take evidence.

"Fact" "Fact" means and includes-

(1) any thing, state of things, or relation of things, capable of being perceived by the sense;

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

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Illustrations :-

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in goods faith or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified time
conscious of a particulars sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

"Relevant"

One fact is said to be relevant to another when the one is connected with the other in any of
the ways referred to in the provisions of this Act relating to the relevancy of facts.

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

Explanation :-

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

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Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue:-

That caused A Bs death;

That A intended to cause Bs death;

That A had received grave and sudden provocation from B;

That A, at the time of doing the act which caused Bs death, was, by reason of unsoundness of
mind, incapable of knowing its nature.

"Documents"

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

Illustrations

A writing is a document;

Words printed, Lithographed or photographed are documents;

A map or plan is a document;

an inscription on a metal plate or stone is a document;

A caricature is a document.

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"Evidence"

"Evidence" means and includes

(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry;

such statements are called oral evidence;

(2) 8A[all document including electronic records produced for the inspection of the Court],
such statements are called documentary evidence;

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

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

"Not proved" A fact is said not to be proved when it is neither proved nor disproved.
"India" 9["India" means the territory of India excluding the State of Jammu and Kashmir.]

9A[the expressions; "Certifying Authority", "digital signature", "Digital Signature Certificate",

"electronic form", "electronic records". "Information", "secure electronic record", "secure
digital signature" and "subscriber" shall have the meanings respectively assigned to them in
the Information Technology Act, 2000.]

Case laws :-

Tape record speeches are documents, AIR 1975 SC 1788. Evidence of a witness cannot be
rejected on superficial and substantial ground, 1981 Cr. LJ
34. Suspicion however strong, cannot take the place of proof, 1957 Cr. LJ
1014. Credibility of interested witness. See AIR 1996 SC 305. For circumstantial
evidence See AIR 1996 SC 607.
Dead body resultant of a homicide in the house of accused - Failure to explain - Adverse to
accused, 1997 (1) SCC 272. Where P.W. 2 had every opportunity to identify the accused,
conviction not interfered with, 1997 (1) ALT(Cr1.) 336. Where post-mortem was done jointly
examination of one doctor, who had done major portion of the work may be sufficient, AIR
1997 SC 2780. Partisan witness, AIR 1997 SC 2914. Interested witness, AIR 1997 SC 2828, AIR
1997 SC 2835. Where independent witnesses available but not examined and only related
witness examined evidence to be scrutinised with care and caution, 1997 (5) SCC 349. Two

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eye witnesses relatives of accused - Independent witness not examined- Not a ground to
discredit the eye witnesses, 1997 (1) SCC 80. Criminal Courts not to expect a set reaction
from any eye witness on seeing an incident like murder. AIR 2000 SC 185. Paper reports
not evidence. 1998 (8) SC 715.

Appreciation of evidence - Evidence of approver. AIR 2000 SC 908.

Suspicion however strong cannot take the place of proof.

AIR 2001 SC 1512. Proved and test of reasonable person. 2001 (2) SCC 62.

Evidence of child witness in rape and murder case. AIR 2002 SC 16.

Q.3 Describe the different provisions of burden of proof with illustrations and case laws.

The Law of Evidence is a critical piece of legislature which supplements Court’s proceedings.
Evidence is the material that establishes a claim or an assertion and enables the Court to come
to a just decision. Oral or documentary evidence should be produced before the Court to prove
or disapprove respective contentions of both parties. The rule of evidence requires the
respective parties to place the best evidence in hand to establish their assertion beyond the
reasonable doubt. The Law of evidence is said to be the law of the forum or the Lex fori.

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act, states
that when a person is bound to prove the existence of a fact, the burden to provide evidence
for the same lies upon him. Chapter VII of the Act deals with provisions under burden of proof.
The term “burden of proof” isn’t defined in the Act, however it is the rudimentary principle of
criminal that, that the presumption of innocence lies with the accused unless proven
otherwise.

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was made by
A, the onus to provide evidence to support such assertion lies upon him.

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Principles of Burden of Proof

The principle of Burden of proof is based on the concept of onus probandi (burden of proof)
and factum probans (proving a fact). While the burden of proof remains constant, the onus for
the same shifts from one party to another. The facts that are required to be proved are those
which are not self-evident in nature. In the case of Jarnail Sen v. State of Punjab[ii] that in, if the
prosecution fails to adduce the satisfactory evidence to discharge the burden, they cannot
depend upon evidence adduced by the accused person in support of their defense

Initial Burden of Proof:

In criminal cases, the principle remains constant that the initial burden is on the prosecution
to establish that the accused has committed a crime. If the prosecution fails to establish
beyond reasonable doubt that the accused is guilty, the accused is entitled to an acquittal. If
burden of proof is put on the shoulders of the wrong party, the Supreme Court states that this
would vitiate the entire judicial system. Wherein, a landlord seeks eviction of the tenants on
the grounds of bona fide personal need, the onus to establish the same is on him In the case
of Banwari Lal v. Road transport, where good were lost by the carrier, the burden lies upon
him to establish that there was no negligence on his part. The defence version may even be
false; nevertheless, the prosecution cannot derive any advantage from the falsity or other
infirmities of the defence version, so long as it does not discharge its initial burden of proving
the case beyond ail reasonable doubt. In the case of Triro v. Dev Raj, there was a delay in filing
the case going beyond the limitation period, the onus to justify the delay was on the
prosecution.

In matrimonial cases, the principle of burden of proof relating to civil cases is applicable. A
party seeking divorce will have to prove the grounds for divorce such as desertion, cruelty or
infidelity

Section 102

This section attempts to locate the party, upon whom the burden of proof lays, the burden of
proof lies upon the party whose stance will fail if no evidence is produced by either of the
parties. The burden of proof lies on the party who affirms a fact rather than the party who
denies it. In the case of insanity or unsoundness of mind, the law presumes sanity until proven
otherwise. In the case of Ram Raja Ram v. Dhruba Charan Jena, the party claiming no
consideration under Section 118 of Negotiable Instruments Act must provide proof for the
same.

Illustration: A sues B for possession of family heirloom, which A asserts was left by his family in
the will, if no evidence is provided by either side, B will retain the family heirloom.

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Section 103

The section imposes the responsibility of burden of proof upon the party that wishes the Court
to believe and act upon the existence of a fact. This principles stays unaffected by the fact that
a particular fact being asserted is negative or affirmative.

Illustration: A stole B’s car. B subsequently admitted the same to see. For the Court to believe
the same, A will have to provide evidence that proves admission of theft of car committed by
B.

Section 104

This section states that when admissibility of one fact depend upon the existence and
admissibility of another fact, the party which wants to prove it will depend upon the fact that
makes the subsequent fact admissible.

Illustration: A wants to prove dying declaration of B, A must prove B is dead.

Section 105

This section refers to the exceptions provided to the accused that will serve as benefit of ‘the
general exceptions of the Indian Penal Code or of any of the special laws’. The general principle
requires the Court to presume innocence of the accused until proven otherwise and it is upon
the prosecution to establish the guilt of the accused. Once the guilt is established, the onus
then shifts to the accused who can take the defense of general exceptions in I.P.C.

In Pratap v Stare of U.P. where the probability that the accused had caused death in self-
defense was held to be sufficient even though he had not taken his defense in the committal
proceedings. Again the Supreme Court held that the burden of proving that the case comes
within any of the general exceptions can be discharged by showing a preponderance of
probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who
sets up the plea of self-defence, and in the absence of proof, it is not possible for the court to
presume the truth of the plea of self defense.

The standard of proof upon the accused whilst claiming an exception under section 105 is
comparatively lower than that upon a prosecuting party in similar circumstances. An accused
may not have to bring forth evidence to prove innocence beyond a reasonable doubt.
However, an accused when asserting that his particular circumstances fall within an exception
under the said provision, he alone has the onus of proving the same.

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Section 106

Under the said provision, any person who is said to be aware of a particular fact has the onus
of proving such a fact is upon him. The section uses the term “Specially within knowledge”
denoting that the possession of such knowledge also shifts the burden of proof upon the
possessor.

An example would be the case of Eshwarai v. Karnataka[xiv] wherein a man and a woman were
found in the bedroom of person who had been killed due to extensive injuries, the burden to
prove the rationale of their presence was upon them. It was assumed that since they are
present at the scene of the crime, they would specially have knowledge regarding the
circumstances under which the death of the person was caused.

Burden upon affirmation:

A general trend that the Indian Evidence act follows is that of shifting the burden of proof onto
a person who affirms a fact or assertion. The same is visible in various provisions of the act.
The rationale behind the same is that if a person asserts something, he may also prove the
same. Such instances can be found in sections 107 to 110. Section 107 states that if a person
who was alive within the last 30 years is said to be dead by another person, the person
affirming the same must prove the death. Similarly, under section 108, person who hasn’t been
heard from in 7 years and is therefore presumed dead, the burden of proving that the person
is on whomsoever affirms it. The situation is similar under section 109 which talks about
establishing relationships between partners, landlords – tenants & principal – agents and
under section 110 regarding assertions of ownership. Whoever affirms it, must prove it.

Presumption as to Burden of Proof

Section 111 to 114 lay down certain specific conditions that define the party upon which the
burden of proof lies. These provisions envisage the exceptions to the doctrine of “Innocent
Until Proven Guilty”. These enumerated conditions go against the doctrine by shifting the onus
onto the accused to prove innocence, as opposed to the prosecution proving guilt. There are
various examples in the Indian evidence act:

Section 111A

This sec. states that a person accused of the commission of certain offences under the Indian
Penal Code such as conspiracies against the government etc. in a disturbed area is presumed
to be guilty and must prove his innocence, thereby putting the burden of proof onto him.

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Section 112

It lays down that in the event a child is born during the course of a marriage or within 280 days
of its dissolution, he may be presumed to be the legitimate child of his father. This was
characterised in the case of Smt. Dukhtar v. Mohd.Farooq as the father would have the burden
to prove that the child is not his or would owe the same obligations as he would to a legitimate
child.

Sections 113A & 113B

These create presumptions against the husband and his family in cases of allegations of
harassment, cruelty and dowry death. The burden of proof is on the husband and his family to
show innocence.

Section 114

It allows the court to presume certain facts such as that the possession of stolen property
means that the person is the thief. Another example would be that when a person refuses to
answer a question put to him in court, the presumption would be that if he had given the
answer, it would be unfavourable for him. Various other cases have been enumerated in
section 114 which allow for the court to presume the existence of certain facts and accordingly
shift the burden of proof. These presumptions generally go against the generally established
principles of burden of proof. The burden of proof is always upon the party against whom the
presumption works.

The general principle, when it concerns the burden of proof, is that the person who makes a
particular assertion has the onus of proving the same. This is based on the rationale that the
party who seeks to initiate action against another by the way of judicial dispute resolution must
also be forced to prove why the other party must undergo the said process. The Indian
evidence Act allows for the courts to shift the burden of proof onto the other party, in
contradiction of the principle above, but only in specific instances. The threshold for proof also
decreases in certain cases when that happens.

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Frequently Answered Questions:

1. Under what circumstances the burden of proof is on the defendant?

In cases of Dowry death, custodial rape, absence of consent in rape, suicide of a married
women, custodial death the burden of proof is upon the accused as opposed to the general
principle that the burden of proof is placed on the party asserting a fact.

2. What is the doctrine of res ipsa loquitor?

The doctrine states that in case of negligence the onus to prove lack of negligence is upon the
accused not on the claimant.

3. What is the burden of proving an exception?

In the case of Dayalalbhai v. State of Gujarat, the Court stated that the prosecution must prove
beyond reasonable doubt that the accused has committed the offence, however the accused
has an opportunity to rebut the claim by pleading insanity. Even if he fails to establish absolute
insanity, if his statement creates doubts it will be enough to acquit the accused

Jarnail Sen v. State of Punjab AIR 1996 SC 755

Triro v. Dev Raj AIR 19993 J&K 14

State of Haryana v. Sher Singh, AIR 1981 SC 1021

Pratap v Stare of U.P 1973 AIR 786, 1973 SCR (3) 136

Jawahar Lal Wali v/s J. and K 1993 SCC

Dukhtar v. Mohd.Farooq A.I.R 1987 SC.1049

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Q. 4 What are the provisions for witnesses, explain it with illustrations and case laws.

The witnesses are a crucial part of a criminal case with their testimony being the major proof
in favour of or against the accused providing a fair judgement delivered on the principle of
justice. The Indian Evidence Act provides certain provisions as to the persons capable of
testifying in court of law and its admissibility. The article covers an extensive research based
article on the information of the provisions on witnesses in the Indian Evidence Act.

Who is a witness?
The Criminal Jurisprudence in India has been established on certain principles founded by the
Judiciary through its pronouncements. These are exhaustive in nature with wide acceptance
across the country.

1. It is a presumption that every accused is innocent until proven guilty in a court of

law provided all principles of natural justice were followed in a fair trial.
2. The burden of proof lies on the prosecution to prove the guilt of the accused rather
than him proving innocence.
3. The proof shall be conclusive enough to prove the guilt beyond the reasonable
doubt.
4. In case of any doubt regarding the guilt of the accused, the benefit of doubt is
provided to the accused and he shall be acquitted.

To satisfy all these requirements of criminal jurisprudence, just and fair trial are carried out
with each party putting their contentions before the judge. Investigation is the tool to detect
a crime which comprises omissions by the investigating officers, later to be completed by the
testimony of the witnesses that had first hand information of the crime committed. The
statements by the witnesses are submitted as evidence in a Court made under an oath,
whether oral statements or written testamentary deposition. It is the obligation of the witness
to assist the court in delivering justice by attending the proceedings when required.

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Who can be a witness?
Section 118 of the Act states the persons who can be a witness. The court identifies all
competent individuals who can testify with proper knowledge of the crime. There are
restrictions placed in consideration by the court on those who are incompetent in
understanding the questions put to them, these include:

• by tender years;
• extreme old age;
• disease, whether of body or mind, or any other cause of the same kind.
The condition of the witness does not bar him from testifying but his incompetency to
understand the questions or answer rationally exclude him from being a witness.

Different kinds of witnesses

1. Prosecution witness – Any witness who has been brought into the court to testify
by the prosecution while supporting their claims.
2. Defence witness – Any person who justifies the contentions of the defence by
providing such statements that can discharge the accused from any charges filed.
3. Eye witness – Any person who helps the court by describing the acts committed on
the crime scene with complete authenticity as it was present there and has first
hand information.
4. Expert witness – Any person who has the professional, educational or judicial
expertise on the matter beyond any average individual, and the court can rely on its
testimony to declare a verdict.
5. Hostile witness – Any person who by his consequent statements gives out an
impression of not letting out the truth or not desirous of hiding the truth.
6. Child witness – A child who has the understanding of the questions of the court or
has the rational answers to the questions put forward can testify in a court as per
section 118 of Indian Evidence Act.
7. Dumb witness – Any person who is not capable of giving oral statements can be
allowed to provide statements in written declaratory form in the court. Such written
statements shall be deemed as oral evidence.
8. Chance witness – Any person who by the matter of coincidence happens to be
present at the site of crime committed.
9. Accomplice witness – Any person who was connected to the crime in its illegal
commission or omission provides the statements in the court.
10. Interested witness – Any person who has some interest in the case or its verdict in
order to extract some material benefit out of it.

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How can dumb witnesses provide evidence?
Every witness is important to the court for its statements regarding the crime
committed helping the court in delivering justice. The inability of a witness to speak shall not
be a hindrance in him testifying before a court, thus, Section 119 of the Act provides the dumb
witnesses with other means such as by writing or signs which could be understood in the court.
The written statements required to be made in an open court, given equal values as an oral
evidence.

Lakhan v. Emperor

This case states that if a person has vowed to keep silence owing to a religious practice, he
shall testify in writing answering all the questions put to him and this be submitted in court as
evidence.

Admissibility of a child witness in a court of law

A testimony by a child in a court of law is not given much importance due to the possibility
of the coercion induced statements which would threaten the authenticity of the witness. A
child can have a different perspective to different situations according to their mental
development.

The maturity of every individual is subjective to the environment he/she resides in and the
socio-economic development of that individual.

Suresh v. State of Uttar Pradesh

This case states that a 5 year old child testifying would be admissible as evidence in a court if
he understands the question and has the capacity to answer rationally. It was declared that no
minimum age is required for a witness to testify in a court.

Santosh v. State of West Bengal

This case states that a child of 12 years is more mature than a 7-8 year old and that on the
satisfaction of the court on the competency of the child to understand the questions put to
him, he can be considered a witness to the case.

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Principle of Vol dire Test

This test was established to identify the competency of the child to be a witness according to
the conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked
some questions out of the scope of the case details which include preliminary questions on
name, father’s name or their place of residence. If the court is satisfied with the answers of the
questions, the capability of the child to understand the questions and answer them rationally,
can the child be allowed to testify in court.

State v. Yenkappa

This case states that a man who killed his wife and his adolescent children gave
testimony against their father leading to his conviction. The question over admission of child
witnesses was raised in the appeal. The man contended that his children were tutored thus
their statements need not be accepted. It was decided that the age of the children does not
restrict them from testifying but also an innocent cannot be held guilty on the statements of
child witnesses as they can be easily tutored.

Rameshwar S/o Kalyan Singh v. State of Rajasthan

This case states that every person is competent to testify in a court of law unless restricted
by the court itself in matters of the witness not understanding the question put before
him/her.

Child Abuse in cases of sexual violence and molestation

The cases of sexual violence and molestation against children in India have been observed
in the recent past with the 2007 survey of Ministry of Women and Child Development showing
53% of children been sexually abused. The children witness in their own cases of sexual
violence are scared of disclosing the same to their parents which led to the enactment of
‘Prevention of Children from Sexual Offences (POCSO) Act, 2012’ to punish the sexual
offenders committing such crimes against children.

1. The statements made by a child are always questionable, but there is a

requirement to devise systems to verify the testimony, free from any external
factors and deal with extreme care and caution.

2. Interested persons as Witness

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 3. An interested person according to the English Law is someone who has any
material benefit from the case. The one who has an interest in the outcome of
the case by virtue of him attached to the case in some manner.

Whether evidence by an interested person is credible or not

The court shall take utmost care while hearing the interested person testifying in a court
and not take it as conclusive evidence due to the witness association with the case. The
testimony cannot be discarded but caution shall be there as a related person can be an
interested person.

Seema Alias Veeranam v. State by Inspector of Police

This case states that a court shall not deny the testimony of a related person only on the
grounds of the witness being a related person. It is the duty of the court to carefully examine
and scrutinise the evidence.

Sardul Singh v. State of Haryana

This case states that the evidence by an interested person needs to be scrutinised even
more. It cannot be discarded on it being produced by an interested person. The truth needs to
be found out by the court.

Cases where the witnesses are compelled to produce a document

Communications between husband and wife

Section 122 of the Act states that no person who is or has been married, shall be compelled
to disclose any communication made to him during marriage by any person to whom he is or
has been married. A wife cannot be compelled to make the communications made to her in a
court. However, the spouse can depose off the communication if the other spouse gives the
consent for doing so. The consent given should be expressed. Consent in such cases cannot be
implied.

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Communications made to public officer

1. Section 124 of the Act states that 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. The documents which are prepared
by the official following the procedure of law shall be accepted as evidence in a
court of law. The official needs to decide about the disclosure not going against
public interest and produce it accordingly.

2. Information is given to Magistrate in case of commission of offense

3. Section 125 of the Evidence Act provides for information as to commission of
offences. No Magistrate or Police officer shall be compelled to say whence he got
any information as to the commission of any offence, and no Revenue officer shall
be compelled to say whence he got any information as to the commission of any
offence against the public revenue.
4. The police officer is under no obligation to reveal the sources of information and
how the information was collected regarding the commission of an offence.

5. Communication made to legal Advisors

6. Section 129 of the Evidence Act states that no person can be compelled to reveal
their communication details with the legal advisor unless it decides to be a witness
in which case the court can ask the person for the communication details to explain
any evidence in the court of law.

7. When the witness is not a party to a suit, he can be compelled to produce title

deeds
8. Section 130 of the Evidence Act states that no person can be compelled to produce
any documents as to the title deeds to any property or any such document that
might criminalize him, unless he has written to the production of such documents
with the person seeking production.

9. Cases where the witnesses cannot be permitted to make a particular statement

Communications between husband and wife

Communications between husband and wife are categorised under privileged communication
that shall remain confidential among the two and cannot be asked to reveal in a court. This
doctrine is envisaged under section 122 of the Evidence Act. The communication even if
relevant to the case cannot be used as an evidence with the implication of the doctrine of
privileged communication. The spouses are provided with this privacy as to maintain the social
principles prevalent in society.

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Evidence when the affairs of the State are concerned

This immunity is included in the Section 123 of the Evidence Act to protect the interest of the
state affairs. The unpublished official records regarding the state affairs cannot be compelled
to be produced as evidence by any person unless the permission to present such records has
been procured from the officer at the head of the department concerned.

Attorney-Client Privilege

Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication,
documents or anything else with his client. The provision only states about any person in the
capacity of legal advisor barred from sharing confidential details. This privilege is applicable to
all the communications, either documentary or oral.

Section 127 of the Evidence Act extends the ambit of section 126 by including all other people
employed by the legal advisors into the restrictions mentioned in the previous section.

Section 128 acts as the waiver for the client to avoid providing any information unless it is its
own will to produce such information, calling the counsel as a witness.

Number of witnesses required by the court in any case

Section 134 of the Indian Evidence Act states that no particular number of witnesses are
required for the proof of any fact.

The State of M.P. v. Chhagan

This case states that the section 134 of IEA clearly mandates that “in any case no particular
number of witnesses is required for the proof of any fact of the case.

The court is not concerned with the number of the witnesses in a case but with the quality of
those witnesses. If the court is satisfied with the testimony of either one of the witnesses, the
other numerous witnesses contending similar testimony would be immaterial to the case.

Corroboration of Testimony of Sole Witness

Section 134 of the Indian Evidence Act exclusively does not provide for any particular minimum
number of required witnesses in a case, hence, testimony of sole witness in a case is credible
if it is enough to prove the case beyond reasonable doubt.

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Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra

This case states that even if the case against the accused hangs on the evidence of a single eye-
witness it may be enough to sustain the conviction given sterling testimony of a competent,
honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say
that witnesses have to be weighed and not counted since quality matters more than quantity
in human affairs.

Shanker v. State

The Rajasthan High Court laid down the observation regarding corroboration of evidence of
single witness held as under:

(1) As per a general rule, there is no fixed number of witnesses required for any particular case;
a court can act on the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by Statute, in the exceptional cases where the nature
of testimony of a single witness itself requires corroboration which courts should insist upon,
for example in the case of testimony of a child whose evidence is that of related character or
an accomplice.

(3) The requirement of the corroboration of the testimony of a single witness is dependent on
the facts and circumstances of each case and there is no general rule which can be laid down
on this matter like this and it also depends on the discretion of the Judge who deals with the
case.

Rights that witnesses have

Witness Protection Scheme, 2018

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat
assessment and protection measures inter alia include protection/change of identity of
witnesses, their relocation, installation of security devices at the residence of witnesses, usage
of specially designed Court rooms, etc.

The Scheme provides for three categories of witness as per threat perception:

Category ‘A’: Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.

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Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his
family members, during the investigation/trial or thereafter.

Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the
witness or his family member’s, reputation or property, during the investigation/trial or
thereafter.

Need for witness protection scheme

The witness protection scheme is necessary to encourage the witnesses to produce testimony
in the court without the fear of being killed or tortured while helping the court in deciding the
case.

Importance of Witness

A witness is the one with the first hand information of the crime committed and plays a huge
role in the investigation process as well revealing the truth behind the circumstances that led
to the crime. They help the court by clarifying what happened at the crime scene and all other
details they know of the crime, all of which is relevant to the case and assist the judge in
deciding criminal matters.

Threats to the Witnesses

There are certain types of threats associated with witnesses:

1. Forcing the witness to testify false information, or not testify at all.

2. Offering bribe to a witness in monetary or non monetary terms.
3. Threatening a witness with physical harm or personal property damage.
4. Threatening to kill or harm the family members of the witness.
5. Making arrangements to prevent a witness from reaching the court for proceedings.
All these probable threats pose an issue with the witnesses not ready to testify in a court, thus,
provisions to protect these witnesses from any harm whatsoever are to be formulated.

Incidents involving a threat to witnesses

Vyapam Scam

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A medical entrance examination scam was unearthed in Madhya Pradesh in 2013 where 13
entrance exams were conducted for admission to various professional courses. The candidates
who applied for the examinations were replaced by meritorious medical students or medical
practitioners impersonating as candidates in exchange of monetary benefits.

The investigating officers that were involved in the case along with the whistleblowers on
whose information the investigation was carried out received threats from those involved in
the scam. Around 23 whistleblowers while getting details of the scam. These whistleblowers
are secret detectives of police authorities that are entrusted with providing details of any illegal
activity being carried out in their local area. In this case, these whistleblowers would have been
presented in court as witnesses but they were killed before anything could be testified in court.

Asaram Bapu Case

Self styled godman, Asaram Bapu resided in his ashram as a devotee to god and messenger of
divine powers on Earth. He was accused of several rape charges by the women who visited him
for prayers but were instead forced into submission by him for sexual favours. The witnesses
in the case involved all the women who were raped by him. These witnesses received threats
by his men along with his followers. The investigating officers were also threatened to stop the
investigation or would be subjected to dire consequences.

Conclusion
A criminal case requires testament of the witnesses who have the first hand information of the
crime to fill the void of the investigation process and ease the task of the judiciary in dispensing
justice. The Indian Evidence Act provides provisions as to who can be a witness and what could
be the admissibility of testaments of all sorts of witnesses. The quality of witness is kept over
the quantity and need for a certain witness protection scheme has been identified considering
the importance of the witnesses and the threats they are subjected to.

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Q.5 What are the procedures for examination of witness, what are the provisions? Describe
with case laws and illustrations.

The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one
of the most reliable evidence because the person giving the statements has personally
witnessed the event happen. Section 135–165 of the Evidence Act, 1872 deals with
examination and cross-examination of witnesses. This article will cover each section one by
one, along with case laws.

Admissibility of evidence

Under the Evidence Act, 1872 Section 5 states that evidence is admissible only when it
supports a relevant fact in issue. It is further provided in Section 136 that the judge may ask
the parties if the evidence they have adduced deals with a relevant fact or not.

For evidence to be admissible in Court, the judge must be convinced that the evidence is
relevant and does help establish a relevant fact in issue.

Examination Order
Witnesses are required to answer the relevant questions presented to them. A question asked
to a witness must be relevant to a fact in issue, and must help establish the same. Their answers
when recorded are called testimonies of witnesses. This questioning of the witness and
recording their answers is called witness examination.

Examination of witness

Examination of a witness is asking the witness questions regarding relevant facts in the case
and recording the statements of witnesses as evidence. There are three parts to the
examination of a witness and Section 138 of the Evidence Act states that the witness must be
examined in the following order:

• First, the party that called the witness examines him, this process is
called examination-in-chief as mentioned under Section 137 of the Indian Evidence
Act.
• After the completion of the examination-in-chief, if the opposite party wants to,
they can take over the witness and cross-question him about his previous answers.
The opposite party may ask him any question regarding all the relevant facts and
not merely the facts discussed during the examination-in-chief. This process has
been described in Section 137 of the act as cross-examination.

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 • If the party that called the witness sees the need to examine the witness again after
cross-examination, they may examine the witness one more time. This has been laid
down as re-examination in Section 137 of the Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court for explaining
matters referred to in cross-examination. The section further states that if any new fact or
issue arises during re-examination, the opposite party can further cross-examine the witness
on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and
Kashmir that- cross-examination might not be necessary if the witness testimony is prima
facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to his statements,
his testimony can be rejected and there is no need for cross-examination in that case.

The examination of a witness must be done specifically in the sequence mentioned under
Section 138. In the case of Sharadamma v. Renchamma, it was held that examination-in-chief
must be done before the cross-examination. The opposite is neither possible nor permissible.

Examination of non-witness

Section 139

Apart from witness testimonies, there are numerous other forms of evidence admissible in the
Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might
be called just in order to produce a document. Section 139 of the Act states that- such a person
called in for producing documents, does not become a witness.

He can be examined in order to establish the credibility of the document. But, he cannot be
cross-examined unless he has been called as a witness.

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Section 140

Section 140 talks about the character of a party. “Character” of someone refers to their quality
or characteristics that distinguish them. Especially mental and moral characteristics. It also
includes a person’s reputation in society.

The section states that the witness to a party’s character can be cross-examined if the
examination-in-chief has already been completed.

The evidence of character is helpful to assist the Court in determining the value of statements
given by the witnesses.

Leading Questions

While examining, cross-examining, or re-examining a witness, the parties must refrain from
asking leading questions. Leading questions have been described in Section 141 of the Act as-
any question that suggests the answer which the person questioning expects to receive.

One party must object if the other party asks a leading question to the witness.

A leading question suggests the witness the answer, for example:

• “You saw Harry wearing a black robe, didn’t you?”

This question by itself suggests that Harry was wearing a black robe, this question is
leading the witness to reply with what the questioner wants.
• “What was Harry wearing?”
The answer to this question could be the same as the previous one, however, there
are no suggestions in the question. It is a simple question and not leading in any
way. These types of questions are permitted.
This is because the witness must answer every question by himself as he is the one who has
witnessed the fact. If there is a suggestion in the question, the questioner would be feeding
responses to the witness.

36
Can leading questions be asked to a witness?

Even though asking leading questions is prohibited by Section 141 as it feeds the witness with
responses and must be objected by the opposite party when asked to a witness.
However, Section 142 says that leading questions can be asked in an examination-in-chief, or
in a re-examination if the Court permits.

The section further states that leading questions can be permitted by the Court in cases where
the facts are introductory or undisputed or those in the opinion of the Court have already been
sufficiently proved.

The same was supported by the High Court of Kerela in the case of Varkey Joseph v. the State
of Kerela.

Section 142 does not mention asking leading questions during cross-examination. But, Section
143 states that leading questions can be asked even in cross-examination.

Leading questions cannot be asked in examination-in-chief, cross-examination, or re-

examination only if objected by the other party. Such questions may be asked if the other party
does not object.

Even when a leading question has been objected, it is at the discretion of the Court whether
to allow it or not and the discretion will not be interfered by the Court of appeal or revision
except in extreme cases.

Oral evidence of written documents

Section 144 states that any witness may be asked questions regarding the contents of a
document or contract that is not present in the document. If the witness gives statements
regarding such documents, it must be produced before the Court.

The opposite party can object to such evidence until it has been produced in the Court.

For example:

• Harry claims that overheard Hermoine telling Ron that “Tom has written a letter
threatening to kill my family and I will kill him before he can do anything”.
This statement is relevant in showing Hermoine’s intention for the murder, and
evidence may be given for it, though no other evidence is given about the letter.
If a witness is giving evidence regarding a contract, grant or any other disposition of property
he may be asked whether there is a documentation of the same. If he answers with yes,
then Section 91 of the Act becomes applicable and oral evidence of the terms of the said
document will not be permitted.

37
In the case of Atul Bora v. Akan Bora, the Court held that Section 144 has no application when
the witness is sought to be cross-examined by the election-petitioner, has not been asked any
question on any contract, grant or other disposition of property.

Cross-examination on previous statements

Every statement given by a witness must be reduced to writing. He can on a later stage of
cross-examination be contradicted on his prior made statements.

Section 145 of the act states that such contradictions can be made in relevant questions
without showing the writings to the witness before they are proved. Once the statements have
been proved to be true, there is no use of contradicting the witness then.

In the case of Purshottam Jethanand v. The State Of Kutch, the Court observed that this section
does not help the accused to get the statements made during the investigation, but it does
help him to use such statements in case he somehow obtained them. The statement on which
the witness is being contradicted must be relevant to the matter issue.

Lawful Questions

The witness’s statements will be taken as evidence by the Court, but it must be proved that
the witness is actually telling the truth. Section 146 states that during cross-examination of a
witness, he may be in addition to the aforementioned questions also be asked questions that
try to:

• Test his accuracy or truthfulness.

• Understand more about the witness and his position in life.
• To shake his credit by questioning his character.
Even though the answers to these questions have the capacity to directly or indirectly
criminate or expose him or directly or indirectly lead him to penalty or forfeiture, the witness
is compelled to answer such questions.

However, the section does not permit to adduce any evidence or ask any questions in cross-
examination that may include the victim’s moral character or previous sexual experience with
any person.

Is the witness compelled to answer?

Section 147 of the Act states that if any question related to a relevant issue of the case,
then Section 132 shall be applicable.

38
Section 132 says that the witness will not be excused from answering any question on the
grounds that the answer might criminalize him or lead to a penalty or forfeiture on any
question regarding a relevant issue in the case.

The proviso to the section says that no such answer shall subject him to arrest or prosecution
or be proved against him in any criminal proceeding. Apart from prosecution for giving false
evidence by his statements.

It is mentioned in Section 148 of the Act, that the Court must decide whether a witness should
be compelled to answer or not.

This statute provides the witness with protection from aggressive cross-examination. He is not
obligated to answer questions that:

• Injures his character, or

• Doubts his credibility.
In Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal, it has been pointed out that such
questions relate to relevant facts and are relevant only to the issue whether the witness should
or should not be believed.

In cases where the decision is solely dependent on oral evidence, it is most important to answer
such questions.

Therefore, the Court can decide when a witness is compelled to answer questions and if the
questions tend to criminalize him in any way, he cannot be prosecuted on the basis of his
statements. He has been granted protection by the statute.

Questions must be on reasonable grounds

No question must be asked to the accused without any reasonable ground as mentioned
in Section 149 of the Evidence Act.

The section states that any questions referred to in Section 148 are to be asked only when
there are reasonable grounds to ask such questions that might injure the witness’s character
or expose him.

To understand the provision better, let’s look at illustrations of Section 149:

• A barrister is informed by an advocate that the witness is a dacoit. This is a

reasonable ground to ask whether the witness is a dacoit or not.
• When nothing is known about a witness and he is randomly asked whether he is a
dacoit. There are no reasonable grounds for this question.

39
It is clear upon reading the illustration that this Section also intends to protect the witness from
getting his character injured.

Further, Section 150 mentions that if any barrister, pleader, vakil or attorney asks such
questions as mentioned above, without any reasonable grounds, then the Court must report
the matter to the High Court or other authority to which such advocate is the subject in the
exercise of his profession.

Forbidden Questions

The Court has been conferred with the power under Section 151 to forbid such questions that
are indecent or scandalous.

In the case of Mohammad Mian v. Emperor, it was held that these questions may only be
allowed if they are related to the matter and are regarding a relevant fact in issue, or essential
for finding out whether some fact in issue exists.

The Court can also forbid questions that are intended to insult or annoy as stated in Section
152 of the act. The section further states that the Court might forbid a question even if it is
proper, but the Court thinks that it is needlessly offensive in form.

Questions should not attack the witness’s character

A question asked during an examination of a witness must establish a fact in the case, it should
not be asked merely to shake his credit or injure his character. It is stated in Section 153 of the
Act.

It says that if any question has been asked and the witness has answered it and it only causes
injury to the witness’s character, no evidence shall be given to contradict him. Unless he
answers falsely, in which case he will be charged for giving false statements.

There are two exceptions to this section, which are:

• If a witness has been asked whether or not he was previously convicted. On denial
of the witness, the evidence regarding the proof of his previous conviction can be
given.
• If a witness has been asked a question that impeaches is impartiality, on denial of
witness, he may be contradicted.
It means that if a party has sufficient grounds to believe that the witness is not
impartial, they may contradict him and try to furnish proof.
In the case of State of Karnataka v. Yarappa Reddy, the Supreme Court added that the basic
requirement for adducing such contradictory evidence is that the witness, whose impartiality

40
is in question, must be presented with evidence and asked about it and he should have denied
it.

Without adopting such preliminary measures, it would be meaningless and unfair to bring a
new witness to speak something fresh about a witness already examined.

To understand this better, here’s a hypothetical situation:

• A claims to have seen B at Delhi on a certain date,

• A is asked whether he himself was at Calcutta that very day or not,
• A denies it,
• Evidence is adduced to show A was actually in Calcutta.
The evidence is admissible, not as contradicting A on the fact which affects his credit but as
contradicting the alleged fact that he saw B in Delhi on that same date. The same was held in
the case of Reg. v. Sakharam Mukundjee.

Questions by a party to his own witness

Section 154 of the Evidence Act allows a party who calls a witness to ask any question to their
own witness like they are cross-examining him.

Sometimes a witness can turn hostile and it is necessary for the party that called a witness to
cross-examine him if such a situation occurs.

In the case of Sat Paul v. Delhi Administration, the Supreme Court has interpreted this section
and defined a hostile witness as one who is not willing, to tell the truth when a party calls him.

For the purpose of cross-examination under this section, there must be enough evidence to
show that the witness is not telling the truth and he has turned hostile as held in Atul Bora v.
Akan Bora.

In the State of Rajasthan v. Bhera, the Court observed that a previous testimony of a hostile
witness can be used as evidence as they are still on record. If the party does not resist the
hostility of the witness, then it is upon the Court to find out the truth.

The Section clearly states that it is the discretion of the Court to allow such cross-examination
or not. In Mattam Ravi v. Mattam Raja Yellaiah, the Court held that:

• The Courts have a legal obligation to exercise their discretionary powers in a

judicious manner by proper application of mind and keeping in view the attending
circumstances.

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 • Permission for cross-examination with regard to Section 154 cannot and should not
be granted on mere asking.

Impeaching credit of witnesses

If the witness has turned hostile, his credit can be impeached by the opposite party, or by the
party that calls him (subject to permission from the Court). Section 155provides three ways of
doing so:

1. By calling such a person who can from their personal experience and knowledge
testify against the witness and establish that the witness in question is unworthy of
credit.
2. By furnishing proof that the witness has taken a bribe, or has accepted to take a
bribe, or any other incentive to turn hostile.
3. By showing inconsistency in his former statements and contradicting him to the
extent permitted by Section 153 as held in Zahira Habibullah Sheikh v. Sate of
Gujarat.

Corroboration of evidence

Sometimes merely asking the most relevant fact may not be enough to obtain all the necessary
facts from a witness. Some questions that do not seem very much connected to the relevant
fact can be asked if they help corroborate such fact.

Section 156 allows parties with the permission of the Court to beat around the bush a little
with the intention of connecting the dots and establishing the relevant fact in issue.

Previous statements given by the witness can also be used to corroborate the later testimony
regarding the same fact as prescribed under Section 157 of the Act.

The prior statements do not need to be given to the Court, it can be any conversation regarding
the facts of the case.

In the case of Rameshwar v. State of Rajasthan, a young girl had been raped and she had told
her mother about it. Later that statement of the girl given to her mother was corroborated
with her other statements in order to establish the case.

It is stated in Section 158 of the act that any statement which is relevant under Section
32 or 33 and has been proved, all matters have to be proved in order to confirm or negate it,
or for impeaching or crediting the person that made such statement, to the extent as if that
person had been called as a witness.

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Refreshing Memory

We humans, sometimes tend to forget things and it is extremely important to keep

remembering the entirety of the facts if we have been called as a witness. Someone’s life could
be at the line and our statements may help the Court serve justice to someone. A witness may
be under a lot of pressure and due to all the stress he might need to refresh his memory.

Section 159

That is why Section 159 of the Evidence Act says that a witness can refresh his memory while
under examination.

He may do so by referring to any writing made by himself at the time of the event taking place
regarding which he has been questioned, or a while later as long as the Court considers it to
be fresh in his memory.

The witness can also refer to someone else’s notes prepared within the aforementioned time
frame, and decide whether it is correct or not.

The section further says that the witness may use a copy or photocopy of a document with the
permission of the Court in order to refresh his memory.

The word ‘writing’ for the sake of this section includes printed matter. A witness who heard a
speech may refer to his memory by referring to a newspaper account of it if he read it soon
afterwards, and if, at the time he read it, he knew it to be correct.

Section 160

This section states that a witness must testify to the facts that were mentioned in any such
document as mentioned in Section 159. It is irrelevant whether he remembers all the facts that
were recorded with every little detail as long as he is certain that the facts have been recorded
correctly by him.

To better understand this section, we need to look into the illustration provided in the section,
which says:

• A book-keeper will need to testify the facts he has recorded in the books regularly
kept during the course of his business.
• He might not be able to remember every detail about his entry, but as long as he
knows that the facts entered were correct and the book was kept correctly, he is
good to go.
The fundamental difference between Section 159 and Section 160 is that:

43
 • The former talks about the recollection of memory of the witness and not the
document.
• Whereas, in the latter, the document itself becomes evidence of the facts
mentioned therein.

Section 161

This section states that any writing or document mentioned in the last two sections above must
be produced and provided to the opposite party if they require it.

The opposite party may cross-examine the witness over the document if the need be.

When a document is produced under Section 161, it becomes subject to a general inspection
and cross-examination by the opposite party.

But the cross-examination on the portion referred to by the witness does not make the
document evidence against the cross-examiner.

It has been made clear in the case of Pran Dutt v. State of Uttar Pradesh that a statement of
record by the investigating officer such as police reports, under Section 161 is not usable for
contradicting a witness.

Production of documents

Section 162

This section says that a witness when summoned to produce a document must produce it if he
has it in his possession.

If there are any objections with regard to its production or admissibility, the Court will deal
with it. The Court may also inspect the document unless it refers to matters of the state.

In case the documents need to be translated, it can be done so by a translator who must keep
the contents confidential. If the translator leaks the content of the said document, he shall be
charged under Section 166, IPC for disobeying the law.

44
Section 163

This section mentions that when a party asks another party for a document to be produced,
and it has been produced and inspected by the party that asked for it, he must give it as
evidence if the party producing thinks fit.

To understand this better, let us say:

• Harry and Ron are parties to a case.

• Harry wants a document that is in possession of Ron.
• Harry must give Ron notice to produce the document.
• After receiving the notice, Ron has given the document to Harry.
• Harry has inspected the document given by Ron.
• Now, Harry must give that document as evidence to the Court if Ron says so.

Section 164

This Section talks about the consequences when a party upon receiving the notice to produce
a document, does not do so.

If under the aforementioned situation:

• Ron does not give the document to Harry.

• If sometime later, Ron wants to use that document as evidence, he will not be able
to do so without Harry’s consent.

Power of the judge

Section 165 of the Evidence Act talks about the power of the judge to pose questions and order
the production of evidence.

In order to procure proof of relevant facts, the judge may ask any question that suits him. It
does not matter whether the question posed by him is relevant or irrelevant. The question may
be asked at any time during the trial, it may take any form and he could ask anyone, be it the
witness or the parties.

However, the judge cannot compel the witness to answer his questions and his decisions
should not be solely based on his questions. The decisions must be based on relevant facts and
evidence produced.

45
Conclusion
The Indian Evidence Act, 1872 is very necessary for protecting the witnesses, letting him speak
freely without the fear of prosecution.

Judicial interpretations have brought significant positive changes in this act to meet the needs
of the time and have made some provisions more practical.

46
Q.6 What are the provisions for exclusion of oral evidence by documentary evidence. Describe
it with illustrations and case laws.

Exclusion of oral evidence by documentary evidence

Evidence reduced in the form of document

Section 91 of the Indian Evidence Act, 1872 lays down the provision that when evidence
related to contracts, grants and other depositions of the property is reduced as a document,
then no evidence is required to be given for proof of those matters except the document itself.
In the cases where the secondary evidence is admissible then such secondary evidence is
admissible.

There are certain kinds of contracts, grants and other depositions which can be created orally
and they do not require any document.

Illustration

A sells his Dog for Rs. 100 to B: In this case no written deed is compulsory.

B wants to mortgage the dog for Rs. 100 to C: No written deed is mandatory.

B pays Rs. 100 to C and takes back the possession of the dog.

All of the above-mentioned transaction will be valid even without a written deed.

But, there are many documents and matters of the court which are considered mandatory by
the law to be in writing and registered e.g., judgement and decrees, the deposition of
witnesses, when an accused person is examined etc.

Orally, many contracts, grants and other depositions can be affected but reducing the terms
of the contract on which the party agrees in a document is considered to be the best evidence
for the terms of that contract. When reduced to documents, it acts as the best evidence. Even
if the document is lost or in adversary possession secondary evidence as described
under section 65 can be produced before the court.

The principle behind section 91

Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the
contract, grant or depositions of properties have been reduced in the document even though
it is required under law to be reduced into the document. In this condition, if the proof is

47
required, the document itself is required to be produced or if the secondary evidence is
admissible then the secondary evidence can be used.

Rules to be followed for the exclusion of oral evidence by documentary evidence

The admission of the oral evidence for proving the contents of a document is excluded under
section 91 except where the secondary evidence is considered admissible. The oral evidence
is also excluded under section 92 for contradicting the terms of a contract where the deed is
proved. So, the rules laid down by these sections can be considered as an exclusive rule as held
in the case of Raja Ram Jaiswal v. Ganesh Prasad.

According to the rule laid down under section 91 of the Indian Evidence Act, no evidence can
be produced before the court to prove the statement when the terms of a contract are reduced
in writing except the document itself and under certain circumstances, the secondary
evidence.

The oral evidence excluded under section 91 in case of a deed only when the deed contains
the terms of a contract or some property is disposed of through it or the law binds the contents
of the document to be in writing. As held in the case of Tahuri Shal v. Jhunjhunwala, a law does
not make the adoption to be in writing mandatory. The deed of adoption is just a record of the
fact adoption has taken place. No rights are created by it. It is no more than a piece of evidence
and when a party fails to produce it, the law does not bar him from producing oral evidence.

Any matter required to be in writing by law

When a particular matter is required to be in writing by law then it cannot be substituted by

oral evidence. Some of the examples of the documents that are required to be in writing by
law are judgements, an examination of witnesses in civil as well as criminal cases, deeds of
conveyance of land, deed for partition, a will and many more.

Exceptions to Section 91

Exception 1: Appointment of a public officer by the way of writing

As per the general rule, to prove the content of a writing, the writing itself is required to be
produced before the court and in case of its absence, secondary evidence may be given. But,
there is an exception to this rule. When a public officer is appointed and the appointment is
required to be made in writing and if it is shown before the court that some person has acted
as the officer by whom the person has been appointed, then the writing by which he has been
appointed needs not to be proved.

Illustration

48
A question arises whether A is a judge of the High Court, then the warrant of appointment is
not required to be proved. The fact that he is working as a judge of the High Court will be
proved.

The fact that a person is working in the due capacity of his office is also evidence of that
person’s appointment in the office.

Exception 2: When probate has been obtained on the basis of a will

Another exception of the general rule of the writing to be produced itself is that when on the
basis of will probate has been obtained and if later, the question arises on the existence of that
will, the original will is not required to be produced before the court.

This exception requires to prove the contents of the will by which the probate is granted. The
term “probate” stands for the copy of a certificate with the seal of the court granting
administration to the estate of the testator.

The probate copy of the will is secondary evidence of the contents of the original will in a strict
sense but it is ranked as primary evidence

Explanations under Section 91

The explanations of section 91 state that it is not necessary for a written document to be
comprised in a single document. A contract or grant which is executed can be in a single
document or can be comprised of several documents. Section 91 applies in both conditions
i.e., whether the contracts are comprised of a single document or in several documents.

Another explanation laid down under section 91 is that when there is more than one original
document, then only one of them is required to be presented before the court.

Evidence of oral agreement excluded

Section 92 of the Indian Evidence Act lays down the provision that when as laid down under
section 91 the documents which are required to be in writing such as the terms of the contract,
grant or other deposition of property or any other matter required by the law in writing then
the court cannot allow being lead by oral evidence to the party contract or legal representative
for the purpose of contradicting, varying, addition or subtraction from the contract.

Section 92 comes into operation when the documents have been submitted under section 91
for the purpose of contradicting, varying, addition or any modification from its terms.

49
Section 92 of the Act clarifies itself that only such oral arguments are excluded which
contradicts the terms of contract, deposition or any other matter required to be in writing. If
such a document is not a contract, grant or deposition of property, then the oral evidence can
be included to vary its content.

Section 92 is applicable only to the parties to the instrument and not to the person who is a
stranger to the instrument. In the case of Ram Janaki Raman v. State, it was held by the court
that the bar laid down by section 92 of the Act was not applicable under the Criminal
proceeding.

Proviso(1): The facts which invalidate the document

If a fact will invalidate the contact then no man is debarred from proving that fact. According
to the laws of contract, any contract which is created by fraud or undue influence, it is not
enforceable and considered invalid. So, such facts are easy to prove in the circumstances when
the contract has been reduced into written form.

Proviso(2): Separate oral arguments

The term separate oral arguments in this context refer to the oral agreements made before
entering into the documents. The contemporaneous or prior oral agreements are referred to
under Proviso (2) of section 92.

When there is a prior oral agreement on a matter about which the document is silent, then it
can be proved only when such terms of oral agreements are not in contradiction with the terms
of the contract.

So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this proviso are:

1. On the matter on which the document is silent, a separate oral agreement should
be related to it.
2. Such oral agreement should not be inconsistent with the terms of the document.

Proviso (3): Separate Oral Argument as a condition precedent

The situation when an oral agreement is to the effect that it will not be effective or will not be
enforced unless a condition precedent is fulfilled or unless a certain event takes place, the oral
agreements are admissible in this case to show that as such condition has not been performed,
the contract was not enforceable.

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Proviso (4): Distinct oral agreement made subsequently to renew or modify the contract

To prove any subsequent oral agreement leading to alteration of terms of all the written
contracts except to the contracts which are required to be in writing by law evidence can be
given.

When a transaction is reduced to writing which is not required by law to be in writing but the
agreement is made for the convenience of parties then an oral agreement made subsequently
to modify it is admissible.

Proviso (5): Any usage or customs by which incidents not mentioned in any contract are usually
annexed to contract

Parol evidence of usage and customs are always admissible. When the object is to make
intelligible before the court about the meaning in which the parties have used a parol evidence
may be given to prove any local custom of the general application, so that it may be applied to
the subject matter of the contract and bind the parties to the written contract unless such
usage or custom is inconsistent with the writing.

Proviso(6): Extrinsic evidence of surrounding circumstances

Whenever a document is required to be proved before the court, its object is to endeavour
and ascertain its real meaning and the extrinsic evidence are necessary for this purpose. The
object of admissibility of the evidence of the surrounding circumstances is to ascertain the real
evidence of the parties but from the language of the document, the intentions of parties must
be gathered as explained by extrinsic evidence.

Inter-relation between section 91 and 92

Section 91 and 92 are supplementary to each other. Both sections support and complete each
other. When the terms of the contract, deposition of a property or any matter required to be
in writing under the law if proved by the document then the oral evidence is not required to
contradict it.

After a document has been produced to prove its terms under section 91, then the provisions
of section 92 play for excluding evidence of any oral agreement or statement for the purpose
of contradicting, varying, addition or subtraction from its terms.

Even though the two sections are supplementary to each other, both sections differ about
some of the opinions in particular. Section 91 deals with the documents whether or not they
are having the purpose to dispose off the rights or not but section 92 is applicable to the
documents which are dispositive in nature.

51
Section 91 applies to the document which is both bilateral and unilateral documents but
section 92 applies only to the document which is of bilateral nature.

Latent and Patent Ambiguity

The rule about admission or exclusion of extrinsic evidence has been laid down under section
93 to 98 of the Indian Evidence Act. Such exclusion or admission of extrinsic evidence is in
connection with the facts contained in a document which either a contract or not.

The ambiguity in the language of a document can be divided into two categories:

1. Patent ambiguity
2. Latent ambiguity
A patent ambiguity is when the language of the document or deed is uncertain. The latent
ambiguity is an ambiguity which is not present in the deed but it arises due to extrinsic factors.

Test of difference

The test to find the difference that whether the ambiguity is a patent ambiguity or a latent
ambiguity is to put the document in the hands of an ordinary intelligent educated person.

1. If on reading the document the ambiguity can be detected and no definite meaning
can be understood then such ambiguity is patent ambiguity.
2. If on perusal of document no ambiguity can be found by him and the meaning is
definite but that document is applied with the instrument of facts, the ambiguity
arises and its meaning becomes indefinite, then the ambiguity is the latent
ambiguity.

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The distinction between Patent Ambiguity and Latent Ambiguity

S.No. Patent Ambiguity Latent Ambiguity

When the language of the document is

When the language of a document is certain
so uncertain and effective that no
and meaningful but the document makes no
1. meaning can be granted to the
relevance in the present circumstance then it
document then it is called as Patent
is latent ambiguity.
Ambiguity.

The patent ambiguity is personal in The latent ambiguity is of objective nature and
2. nature and it is related to the person it is related to the subject matter and object of
executing the document. the document.

Oral evidence is not allowed for the To remove latent ambiguity, oral evidence is
3.
removal of patent ambiguity. allowed.

The rule on which the patent ambiguity Giving oral evidence in case of latent ambiguity
4. is based is that the patent ambiguity is based on the principle the latent ambiguity
makes the document useless. does not make a document useless.

Latent ambiguity is not evident from prima

A patent ambiguity is on the face of the
facie inspection of the document but it
5. document and is evident from
becomes apparent when the language of a
inspection of the document itself.
document is applied to existing circumstances

Extrinsic Evidence to explain Ambiguity in a document

Indian Evidence Act lays down the provision for including extrinsic evidence in order to explain
ambiguity in a document.

When extrinsic evidence cannot be given

Section 93: Exclusion of evidence while explaining or amendment of an ambiguous document

53
Section 93 of the Indian Evidence Act, deals with the patent ambiguity and no oral evidence is
given to remove the patent ambiguity.

According to section 93 when the language of the document is ambiguous or defective on its
face, the evidence which can show its meaning or supply its effects may not be given.

Illustration

An agreement is made between A and B that A will sell his crops for Rs. 1000 or 2000. The
evidence cannot be given that which price was to be given.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., it was held by the Supreme Court that it would
not be open for the parties or the court to remove the ambiguity or vagueness by relying upon
the extrinsic evidence.

Section 94: In the application of document to existing facts, the application against it to be
excluded

According to section 94, when the language in the document is simple and plain itself and it
applies accurately to the existing facts, the evidence to show that it was not meant to apply to
such facts may not be given.

When there is neither a patent ambiguity nor a latent ambiguity then the evidence cannot be
given to contradict this.

In the case of General Court Marshal v. Col. Anil Tej Singh Dhaliwal it was held by the Supreme
Court that section 94 applies only when the execution of the document is admitted before the
court and there are no vitiating circumstances against it.

54
Q.7 Describe documentary evidence, what are the presumptions explained in documentary
evidence? Elaborate with illustrations and case laws.

The evidence in criminal cases plays an important role in deciding the case and to bring
out justice. The Indian Evidence Act accepts two forms of evidence, documentary evidence and
oral evidence. According to the Indian Evidence Act, the documents which are produced for
the inspection of the court are called documentary evidence. The documentary evidence is of
great help and they are very reliable during the process of investigation. The documents are
mainly of two types: private document and public document. This article would deal with the
presumption as to the documents and their evidential value.

Public Documents
The interpretation clause of the Indian evidence act defines the term document. According
to Section 3 of the Indian Evidence Act, document means any matter expressed or described
upon any substance and it can be in various means of letters, figures or marks, or by more than
one of those means, intended to be used, or which may be used, for the purpose of recording
particular information or matter. There are various examples given for documents in the act
like map, plan, caricature and letters. Any words which are printed and lithographed are
considered to be documents according to the Indian Evidence Act. Section 74 of the Indian
evidence act provides the definition of the term Public document. According to this Section,
the following documents are considered public documents:

• The documents forming the acts or records of acts of sovereign authority;

• The documents forming the acts or records of acts of official bodies and tribunals;
• The documents forming the acts or records of acts of various officers like public
officers, legislative, judicial officers and executive working in any part of India;
• The public records which are kept in the state of private documents also come under
this category.
Every other document which does not come under the above-mentioned category is
considered as private documents according to Section 75 of the Indian Evidence Act. Section
76 of the Indian Evidence Act provides the power to public officers to provide certified copies
of public documents when it is necessary and when the person has the right to demand copies
and ask for the copy of the document.

Presumption as to Documents
Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the
documents. There are certain presumptions regarding the documentary evidence in this act.
According to the Indian Evidence Act, the presumption is of two types. There are certain cases
in which the Court “shall presume” and in certain cases, it “may presume”. The terms are
defined in Section 4 of the IEA. According to this Section,

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 • “May presume” means whenever it is mentioned by this Act that the Court may
presume a fact, it may either consider such fact as proved, unless and until it is
disproved or may call for proof of it.
• “Shall presume” means whenever it is mentioned in this Act that the Court shall
presume a fact, it shall consider such fact as proved, unless and until it is disproved.

Presumption as to the Genuineness of Certified Copies

The certified copies are the copies of public documents that are provided by the authorised
officer when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the
presumption as to the genuineness of these certified copies. According to this Section, the
court presumes the certified copy to be genuine when it comes with a valid certificate. The
court also presumes that the officer who has signed the documents holds the official character
of the designation mentioned in the certificate. The certified copy of the public document must
contain a certificate which is provided by the authorized officer that has to mention that it is
the true copy of the document and the officer has to sign the certificate with their name and
they also have to mention the date and designation. The certificate should also be sealed
whenever it is necessary by the authorized officer.

Presumption as to Documents produced as Records of Evidence

Section 80 of the Indian Evidence Act provides the various presumptions regarding the
documents which are provided as evidence. The Court presumes that the documents which
are produced for inspection are genuine. The court also presumes that any statements as to
the circumstances under which it was taken, considered to be made by the person signing it,
are true and that such evidence, statement or confession was duly taken by following all the
procedures. The documents provided for inspection can be a record or memorandum of the
evidence that is provided by a witness during the judicial proceeding before the officer
authorized by law to take evidence or it can be a statement or confession that is provided by
any prisoner or person who is accused, which taken in accordance with the law and the
confession must be signed by the magistrate or any other officer authorized by law.

Presumption as to Gazettes, Newspapers, Private Acts of the Parliament and other Documents

Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes,
newspapers, private Acts of the Parliament. The court presumes the following documents to
be genuine, according to this Section:

• The document professed to be the London Gazette, or any Official Gazette, or the
Government Gazette of any colony;
• The documents which are a dependency of possession of the British Crown;

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 • Newspaper or journal;
• Copy of a private Act of Parliament of the United Kingdom which is printed by the
Queen’s Printer.
The documents must be kept in the substantial form mentioned in the law and also it must be
produced from proper custody. The Court also presumes the Official gazettes kept in the
electronic form is genuine if it is kept in the substantial form mentioned in the law.

Presumption as to Maps and Plans made by Government authorities

The maps and plans are also a recognized type of documentary evidence. Section 83 of the
Indian Evidence Act provides the various presumptions regarding maps and plans made by the
authorities of the government. According to this Section, the maps and plans are presumed to
be genuine and accurate if it is made by the authority of the Central or State government.

Presumption as to a Collection of Laws and Reports

Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and
reports. According to this Section, the court presumes every book which contains laws and
reports of the decisions of the Courts of the country to be genuine if the book is printed or
published by the authority of the government.

Presumption as to the Power-of-Attorney

Section 85 of the Evidence Act provides various presumptions regarding the power of attorney.
According to this Section, the court shall presume that every document that is considered to
be the power of attorney, and that is executed before the authorized officer or Notary Public
or any court or before any Magistrate is executed and authenticated.

Presumption as to Books, Maps and Charts

Section 87 of the Indian Evidence Act provides various presumptions regarding the books,
maps and charts. The Court presumes that any book which contains any information which
contains matters of public or general interest, or any published chart that are in relation with
the case or any statements that contain relevant facts which are produced for inspection is
written and published by the person mentioned in the book. The court also presumes that the
time and place of publication which is mentioned in the book or chart to be true.

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Presumption as to Telegraphic Messages

Section 88 provides various presumptions regarding the telegraphic messages. According to

the Section, the court presumes “that telegraphic messages to be that a message, which is
forwarded from a telegraph office to the person to whom such message which claims to be
addressed, is in relation with a message that is delivered for transmission at the office from
which the message purports to be sent”. The Section also mentions that the Court does not
make any presumption regarding the person by whom such a message was delivered for
transmission. The Section is not of any use now as the telegraph services have been stopped
by the Indian Government

Presumption as to Electronic Messages

This is a very important Section as a lot of information are transferred in the electronic form in
the modern days. Section 88A of the Indian Evidence Act provides various presumptions
regarding electronic messages. According to this Section, the Court presumes that an
electronic message, which is forwarded by the originator by means of an electronic mail server
to the addressee to whom the message claims to be addressed corresponds with the message
as fed into his computer for transmission. According to the Section, the terms “addressee” and
“originator” has the same meaning as mentioned in the clauses (b) and (za) of sub-section (1)
ofSection 2 Information Technology Act,2000”.

Presumption as to due Execution of Documents not Produced

Section 89 of the Indian Evidence Act provides various presumptions regarding the due
execution of documents not produced. The Court presumes that every document that is called
for inspection and the documents are not produced even after the notice period, it is presumed
that the documents are attested, stamped and executed in the manner which is prescribed by
law.

Presumption as to Documents Thirty years old

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are
thirty years old. The Court presumes that any document which is produced for investigation is
from proper custody and the signature corresponds to the signature of the person whose
custody the document was in. The Court also presumes that any handwriting in the document
is the handwriting of the person who has the custody of the document. It is also presumed by
the Court that in case if the document attested or executed, that it was duly executed and
attested by the persons by whom it professes to be executed and attested. The term proper
custody means that the document is with the care of the person and in a place where it would
naturally be. For example, ‘A’ has been in possession of a certain property for a long time. He

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produces from his custody deeds the various documents relating to the land showing his titles
to it and the custody is held to be proper.

Presumption as to the Electronic Record of Five years old

Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic
records of five years old. According to this Section, the Court presumes that when any
electronic record that is above five years old and it is procured from the proper custody for
investigation. It is presumed that the digital signature corresponds to the particular person
whose custody the record is or the signature belongs to the person who has authorized it. The
term proper custody means that the electronic record is with the care of the person and in a
place where it would naturally be. It is also mentioned in the Section that no custody is
improper if it is proved that the custody is of legitimate origin in the particular case to render
such origin possible.

Conclusion
The Sections regarding presumptions is a very important part of the Indian Evidence Act as
they help in the investigation. The presumptions make the investigation easier and fast. The
Court has to follow all the presumptions and it can only change its notion on presumptions
only when it is necessary. The documents have a lot of evidentiary value and it is important to
investigate them properly and also save the Court’s valuable time at the same time. Thus the
presumptions regarding the documents is a very essential part of the Indian Evidence Act.

References
MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. - 2006 (Z) TMI 576 -

Bag…..

SUPREME COURT the Supreme Court held that a presumption is a legal or a factual assumption

: Principle of natural justice drawn from the existence of certain facts. Presumption raised
under the Statute only has an provisional release of goods evidentiary value.

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Q.8 what do you mean by relevancy of fact ? What are the various provisions related to
relevance of facts? Explain with illustrations and case laws.

Relevancy of Facts

1. Doctrine of Res- gestae: The doctrine of Res gestae is expressed under section 6 of
the Indian Evidence Act, 1872 in the following words- “Facts which though not in
issue are so connected with the facts in issue so as to form a part of the same
transaction, are relevant, whether they occurred at the same time and place or at
different times and places”
2.
Res gestae was originally used by the Romans which means to ‘acts done or actus’. The most
important principle of this doctrine is that all the facts must be described in the same
transaction. Whereas transaction means a group of facts which are so connected to each other
that they can be considered as a single fact. In Layman’s language, a transaction may be
considered as a series of certain acts and when all the actions are carried in the same situations
at the same point of time then such situation or condition be called as the act of the same
transaction. Circumstantial or indirect facts are also considered under the doctrine of res
gestae as they are also forming a part of the same transaction.

Essentials of Doctrine of Res Gestae-

• The statement made should not be an opinion and must be a statement.

• The statements should be made by the participants of the transaction.
• The statements should have enough information to explain or brief about the
incident.
• The statements made by the person or act of the person should be spontaneous
and simultaneous to the main transaction.
Illustrations-

If a person is dying of poison and before dying, he tells the name of the accused.

If a person is about to die as the accused is in front of him holding a gun and he asks for help.

If an injured person is crying for help.

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In, Ratten V. Queen[1] the victim (wife) called the police for help as her husband was holding
the gun and was about to kill her but before the operator could get connected to the call and
report the statements of the victim, the call disconnected. Later the police found her dead
body in her house from where she called the police for help. Later the police found that the
time of the call and time of death was almost the same so the call by the victim comes under
the principle of res gestae. Hence the court found the husband guilty of murder and quashed
his reasoning that he shot accidentally without any intention.

In, Sukhar V. State of UP [2] the victim tried to alarm that the accused will shoot him in a few
minutes. On hearing the alarm the witness almost reached the place of incident. However, the
victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt
to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court
recognised the act in the same part of the transaction and explained it to be a case of section
6 of the Indian Evidence Act. Therefore the statements of the witnesses were admissible as it
formed a part of the same transaction.

In Uttam Singh vs. State of Madhya Pradesh[3]the child and the victim were sleeping together
at the time of the incident and he suddenly awakened due to the voice of axe and screamed
for help by taking the name of the accused. Just after the call for help his mother, sister and
other witness come there. The court found this evidence to be admissible as the act of the
child and the accused was of the same part of the single transaction.

2. Motive Preparation and Conduct

Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation,
conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive &
Preparation are among the first act before any conduct. Therefore Section 8 explains the
importance of motive, preparation and conduct where there are no direct evidence and the
facts are proven on the basis of circumstantial.

Motive- The general meaning of ‘Motive’ a purpose, or objective to obtain something. The
Supreme Court of India defined motive is something which induces or activates a person to
make an intention and knowledge, with respect to awareness of consequences of the act.

The relevance of Motive under the Act: As in the above discussion we have already seen that
Motive is the main inducing force which induces a person to do some act. It is expressed that
if the offence has been commenced voluntarily then could be no possibility of the absence of
motive. Although it is very difficult to obtain the evidence of motive still evidence of motive
becomes very important in the case of circumstantial evidence. The Supreme Court in the
reference of motive said that ‘if the witnesses of any case are trustworthy and have enough
credibility then the motive of any act done by the offender has no such importance’.

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Although motive and intention are the same there is a thin line of difference between them
that intention is the pre-calculation or knowledge of ascertained consequences in the mind of
the offender. In some cases, it is observed that sometimes motive behind the execution of a
crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P[4]: The son-in-law before his marriage demanded a piece of
land from the deceased. But after the marriage, the deceased refused to transfer the
ownership of the property and expressed that he would give this property to his daughter.
Such inferences of the father in law induced the accused in committing a crime and after some
time the crime commenced. The court observed that there is a strong motive with the accused
of committing the crime as the father in law refused to transfer the property in the accused
name.

In, Gurmej Singh Vs State of Punjab[5]: The deceased has won the election against the accused.
It is also seen that they don’t have good relations between and they have always had a quarrel
with each other. The reason behind frequent quarrels was that the accused diverted dirty
water stream towards the house of the deceased. The court observed that there were pending
litigation between them and dirty water stream induced the frustration between them. After
the death of the deceased, the Court concluded that dispute related to the passage of dirty
water could be the motive of the murder.

In, Rajendra Kumar Vs State of Punjab[6]: The Court held that the accused can only be
convicted if the prosecution completely proves the motive and provide the supporting
evidence to establish the commission of the offence by the accused.

Preparation

The Supreme Court of India interpreted ‘preparation’ as a word which denotes the action or
preparation of any act and also those components which are prepared. Preparation includes
arranging the essentials objects for the commission of a crime/offence.

Evidence tending to show that the accused had prepared for the crime is always admissible.
Preparation does not express the whole scenario of the case rather preparation is only
subjected to the arrangements made in respect of committing any act. Further, there is no
mandate that preparation is always carried out but it is more or less likely to be carried out. It
is very difficult to prove preparation as there is no mandate that preparation is always carried
out for the purpose of committing any crime. It is mostly observed that the Court draw
inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor[7]: The accused was charged for cheating as he was importing goods
in Karachi port from Okha port without paying the proper custom duty as he made some
arrangements with the customs department. The prosecution showed enough evidence to
prove the preparation by the accused in avoiding the import duties. The Court held that the
act by the accused was completely wrongful and are prohibited by the law hence the accused
is liable for preparation.

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In, Appu Vs State[8]: The four accused arranged a meeting to make essentials arrangements
for commencing crime. Certain facts related to the objective of the scheduled meeting were
admitted which showed preparation on their part. The preparation was administered clearly
that it is an intention to commit burglary and the accused were waiting for the right time to
get the best opportunity to execute their preparation.

Conduct- Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an
external behaviour of a person. To check if the conduct of a person is relevant to the incident
then the court must establish a link between the conduct of a person who committed the crime
and the conduct of incident. The most important role of this part is that the relevant conduct
must bring the court to a conclusion of the dispute. If the Court came to a conclusion then the
conduct was previous or subsequent, it shall be checked properly by the Court. It is very clear
that conduct is one of the very important evidence explained under Section 8 and such
importance is only considered when this conduct is in direct form, otherwise, if the conduct is
recognised indirectly then it will lose its importance.

In, Bhamara Vs State of M.P[9]: a person X was farming on his land, on seeing another person
standing near to his place he called the person for some conversation. After a few moments,
the conversation turned into arguments and ended up into a fight. On seeing such activity
other people came to the place of incident to stop the fight but subsequently, the offender
tried escaping. But the offender was caught by some other person. The Court found that the
conduct of escaping of the offender was relevant subsequent conduct.

In, Nagesha V. State of Bihar [10], it was held by the Court if the first information is given by
the accused himself, the fact of his giving information is admissible against him as evidence of
his conduct.

Conspiracy- Conspiracy means few people come together to do an act with common intention.
So in the same context, a criminal conspiracy is the act of at least two or more persons to do
an act which is not authorised by the law i.e., an illegal act, or to do a legal act by illegal means.
Criminal Conspiracy is a kind of partnership in crime, and every member of such partnership
must join the partnership by mutual agreement for executing a common plan.

There are two relevant provisions which deal with the criminal conspiracy i.e., Section 120(A)
of the Indian Penal Code and Section 10 of the Indian Evidence Act talks about the things said
or done by a conspirator.

Essentials of Criminal Conspiracy u/s 10 of the Indian Evidence Laws:

• There should be reasonable grounds to establish a conspiracy.

• There should be at least two or more persons to form a conspiracy.
• There should be a common intention of all the conspirators.
• Acts or Statement of the conspirators.

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 • The acts or statements of the conspirators must be in reference to common
intention.
In, State of Tamil Nadu v. Nalini[11], the court held that once any of the participants of
conspiracy execute the conspiracy then his statements made by him cannot be used against
other conspirators according to Section 10 of the Indian Evidence Act.

In Subramaniam Swamy v. A Raja[12], the court in its judgments showed that anything which
is doubtful cannot be considered as legal proof and such proofs are insufficient to prove any
criminal conspiracy.

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of
the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become
relevant’ and makes the provision as a defending ground for the accused. The simplest
meaning of this section is a condition when the incident took place and the accused is charged
for the incident then he may make defend him on explaining that at the time of the incident
he was not present at the location. Although previously it was not relevant for the court to
know that where he was as the investigation showed that he committed the crime but his
explanation that he was not at the place of incident make the irrelevant facts a relevant fact.
The important part of Section 11 of the Evidence Act is that this rule is only accepted in the
course of admission of the evidence and no other statute provides such rule.

The plea of alibi has to be taken on the very first stage of the trial and must be proved without
any reasonable doubt as the burden of proof is on the person who is taking advantage of
Section 10 i.e., Plea of Alibi.

Essentials of Plea of Alibi:

• There must be an offence punishable by the law.

• The person taking the defence of Section 10 should be accused of that particular
offence punishable by the law.
• The defence must be satisfactory and beyond any reasonable doubt.
• The defence must be backed by evidence.
In, Lakhan Singh @ Pappu vs The State of NCT of Delhi[13] A plea of alibi cannot be compared
with a plea of self-defence although both the plea is to be taken on the very first instance of
the court proceedings.

In, Sahabuddin & Anr vs the State of Assam[14] Once the court is in doubt with respect to plea
of alibi and the accused does not give any substantive explanation to support his statement
under Section 313 CrPC, then the Court is authorised to conclude a negative or not a positive
inference against the accused.

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In, Jitender Kumar v State of Haryana[15] the Court not believing the plea of alibi as the
accused did not provide the sufficient supportive evidence for establishing the defence. And
the Court supported the case from the prosecution side.

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an
admission of crime by a criminal or suggesting the inferences that he committed a wrongful
act, confession can be made at any time during the trial.

In, Palvinder Kaur v State of Punjab the Supreme Court observed two aspects which are: Firstly,
the definition of confession is that the accused must either admit the guilt or admit
subsequently all or few facts which constitute the offence. On the other side, a mixed
statement which also contains some confessional statement will still lead to an acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would negate
the matter or offence, cannot amount to a confession.

In, Nishi Kant Jha v State of Bihar the Supreme Court opined and substantiated its arguments
on the support of English authorities that it the discretion of the court and there is nothing
wrong with relying on some specific part of the confession and rejecting the other part.

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate
during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant
and are considered as one the most important type of confession as they are directly recorded
by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence
and such confession will hold enough evidentiary value that the confessor can be held guilty.
Rajasthan High Court has also held that the confession of an accused must be free, voluntary
and genuine that nothing is left with the prosecution to prove any fact then only the person
can be convicted on the basis of confession.

Dying Declaration
The word “Dying Declaration” means any statement is written or verbal of relevant facts made
by a person, who is dead or it is the statement of a person who had died explaining the
circumstances of his death.

The concept of dying declaration was evolved from a legal maxim, ‘nemo mariturus
presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth. Although it may
sound impractical but our law has adopted this concept and functions accordingly. Section
32(1) specifically deals with the concept of dying declaration in respect of a cause of death and
it is assumed that such statements are relevant even whether the person who made them was
not at the time when they were made.

In Uka Ram v. State of Rajasthan, the Apex Court defined dying declaration in a way that, “when
a statement is made by a person in the threat of his death or as to any circumstances which
cause threat or results into his death, and when the cause of his death comes in question the

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statements made by him are admissible as evidence, such statement in law are compendiously
called dying declaration.”

The Supreme Court in deciding P.V. Radhakrishna v. State of Karnataka, Appealheld that ‘the
principle on which a dying declaration is admitted in evidence is indicated in the Latin
maxim, ‘nemo morturus procsumitur mentri’, which means that a man will not meet his maker
with a lie in his mouth. Information lodged by a person who died subsequently relating to the
cause of his death is admissible in evidence under this clause.

In K.R. Reddy v. Public Prosecutor the evidentiary value of dying declaration was observed as:

“The dying declaration is admissible under Section 32 & because the statement not made on
oath so that its truth could be tested by cross-examination, the court has to observe the closest
inspection of the statement before acting upon it. And it is also assumed that the words of a
dying man are of very serious nature because a person on the verge of death is not likely to tell
lies or to connect a case to a malice prosecution of an innocent person. Once the court is
satisfied that the dying declaration is true & voluntary and are not influenced, then the
statements can be sufficient to prove the conviction even without further corroboration.”

The evidentiary value of FIR in the circumstances of dying declaration comes from the concept
that- A dying declaration can also be recorded by public servants, or by a doctor as well, where
the victim is hospitalized and is badly burnt or injured and wants to make a statement, the
doctor can also record the same and make a note of that statement. Although, it is advisable
that the dying declaration should be made to the magistrate itself or in the presence of
magistrate but if there is a condition where no such possibility is seen then the dying
declaration can also be recorded by the police officers, although the court discourages such
declaration to the police officer but if the condition and circumstances are of such a nature
that no other possibilities are seen, then the dying declarations written by the police officers
are also considered by the courts.

In, Kapoor Singh V. Emperor [16] the court observed that the FIR lodged by the deceased
person can be admissible as a piece of evidence in the court if the FIR is relating and explaining
the circumstances of his death. Also in the case of Sukhar V. State of UP [17], it was observed
that if the dying declaration in the FIR is not sufficient to ascertain the facts and reasons for
the cause of his death, even though the FIR has enough information related to the accused and
details of the incident. Then the information cannot be considered as dying declaration.

In the case of Maniram V. State of Madhya Pradesh, the dying declaration was recorded by the
doctor but the doctor did not attest the consciousness report of the deceased and also there
was no thumb signature on the dying declaration, in that case, the FIR has lost its credibility
and it was difficult to rely on the dying declaration.

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Q.9. What facts need not to be proved? Elaborate with case laws and illustrations.

FACTS WHICH NEED NOT BE PROVED

Section 56 to 58 of the Indian Evidence Act, 1872 lays down provisions relating to facts which
need not be proved. Here are the facts which should not be proved in any court of law.

1. FACTS JUDICIALLY NOTICEABLE NEED NOT BE PROVED (SECTION- 56):

Section 56 declares that “no fact of which the court will take judicial notice need be proved”.
Thus, if the court is bound to take notice of a particular fact the parties are spared of the burden
of proving that fact. For example, the court is bound to know the law of the land.

In Managing Committee of Raja Sidheshwar High School v. State of Bihar (AIR 1996 Pat. 19.), it
was held that the court can take judicial notice of the fact that the system of education in the
State has virtually crumbled and serious allegations are made frequently about the manner in
which the system is being worked.

3. FACTS OF WHICH COURT MUST TAKE JUDICIAL NOTICE (SECTION- 57):

The Provision is supplemented by two declarations at the end of the section. One of them says
that in all these matters, and also on matters of public history, literature, science or art, the
court may consult the appropriate books or documents of reference. The second declaration
is that if a party calls upon the court to take judicial notice of any fact, it may refuse to do so
unless and until such person produces any such book or document as the court may consider
necessary to enable it to take judicial notice. It means that the party who desires the court to
take judicial notice of a fact has to produce before the court the reference material. Where,
for example, a party request the court to take judicial notice of the proceedings of the
legislatures, he should produce before the court the journal of those bodies, or their published
acts or abstracts, or copies purported to be printed by order of the government concerned. In
other words, the source material in which the judicially noticeable fact is recorded will have to
be produced before the court.

The only guiding principle, apart from statute, as to judicial notice which emerges from the
various recorded cases, appears to be that wherever a fact is so generally known that every
ordinary person may be reasonably presumed to be aware of it, the court notices it either
simplicity if it is at once satisfied of the fact without more, or after such information or
investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.

The basic essential is that the fact is to be of a class that is so generally known to give rise to
the presumption that all persons are aware of it. This excludes from the operation of judicial
notice what is not ‘general’ but ‘particular’ facts.

Constitutional, Political and Administrative Matters: Judicial notice of a fact means that the
court is supposed to have knowledge of the fact and the judge may rely upon his personal
knowledge for deciding the case though it is not evidence in the real sense. Thus, where a judge
recognised the signature of the minister for defence saying that he knew the Minister and had
seen his signature as such Minister on many papers that came to him.

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Law, Regulations and General Customs: The Courts may also take notice of regulations, bye-
laws and other forms of sub-legislation. “Regulation made under the Act became part of the
law and a tribunal takes judicial notice of the law, being at liberty to refresh memory by
referring to the text of the regulations which, if there is any doubt about it, can be established
by reference to a copy printed by the government printer. In Union of India v. Nihar Kanta Sen
(AIR 1987 SC 1713), the Supreme Court has pointed out that the court should have taken
judicial notice of the fact that a notification had been issued concerning the land of an
intermediary.

The courts also take judicial notice of general customs. In Jiwan Singh v. Des Raj (AIR 1982 Punj.
[N.O.C] 306), it was held that when a general usage has been judicially ascertained and
established, it becomes a part of the law merchant which courts of justice are bound to know
and recognize.
Matters of common knowledge: The courts also take judicial notice of matters of common
knowledge. For example, the courts take judicial notice of the meaning of ordinary terms being
a matter of common knowledge, and evidence is not admissible to expound their meaning,
through the court, in addition to suing its own knowledge, may refer to standard authors and
authoritative dictionaries in order to obtain assistance in interpretation [Camedan Marquis v.
Inland Revenue Commissioners, (1914) 1 K.B. 641].

Judicial notice of the value of service of the housewife: A housewife died in a motor vehicle
accident. The court said that judicial notice could be taken if services rendered by a housewife
to her family. Rs. 1,500/- was taken to be the value of such services. The question of deducting
1/3 of the amount did not arise. Award of compensation of Rs. 2,95,000 was held to be
proper (United Indian Insurance Co. Ltd. v. Virambhai Ranchodbhai Patel, AIR 2007 Guj. 119.).
Judicial notice, the fact of marriage in Army record: The fact of the marriage of an Army officer
which was duly entered by the Army in its record was allowed to be tendered in evidence to
prove the factum of marriage (Ajay Singh v. Tikka Brijendra Singh, AIR 2007 H.P. 52).

3. FACTS ADMITTED NEED NOT BE PROVED (SECTION- 58):

Another set of facts which need not be proved are facts which have been admitted. “Facts
admitted need not be proved”. Section 58 lays down this principle. Averments made in a
petition which have not been controverted by the respondent carry the effect of a fact
admitted.

In Thimmappa Rai v. Ramanna Rai, [(2007) 14 S.C.C. 63: (2007) CHN 144], an admission made
by a party to a suit in an earlier proceeding is admissible against him in a subsequent suit also.
Once a party to a suit makes an admission, it can be taken in aid for the determination of issues
having regard to the provision of Section 58.
There are two systems of holding a trial, one is the inquisitorial system in which the judge also
acts as an investigator of facts; he can neither advise any party nor ask for the production of
any evidence. He gives his judgment on the basis of the contentions argues before him, that is
to say, according to the issues between the parties. Facts that have been admitted on both
sides are not an issue and, therefore, no proof needs to be offered them.

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The effect of admissions has already been noted before. It is that admission does not constitute
conclusive evidence of the fact admitted, though it may operate as an estoppel. Therefore,
section 58 also provides that the court may in its discretion require some other proof of an
admitted fact. But the discretion is that of the court. The section does not bar the court from
acting on the admission itself and without requiring any further proof.

Q.10 Define oral evidence with illustrations and case laws.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence
is defined under section 3 (under evidence head) which explains that “All statements which
the court permits or requires to be made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called as oral evidence.” The word ‘Oral’ itself describes
its meaning as something spoken or expressed by mouth; so anything which is accepted in
the court in relation to the inquiry and expressed by any witnesses who are called in the trial
is termed as oral evidence. Oral Evidence also includes the statements made by people in
signs and writing forms (inclusive of people who cannot speak).

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been growing in regards
to usage; as earlier it was not considered to be as precise and blunt as documentary but its
need and importance has been constantly subjected to rapid growth. Oral evidence is also
equally important as it stimulates a person and extracts what a person has seen or what he
wants to say in regards to the trial. Oral evidence is comparatively easier to refer. The
importance has been explained by the Bombay High Court in one of the cases that if the oral
evidence is proved beyond reasonable doubt it can also be enough for passing conviction.

Section 59 – Proof of facts by Oral Evidence

All the facts and circumstances may be proved by oral evidence by expressing or speaking
except the contents of documents and electronic records. The contents of documents and
electronic records cannot be proved by oral evidence. It is held that if any person has to be
called for proving their documents then that document becomes oral and documentary
evidence loses its significance.

It was held in Bhima Tima Dhotre v. The pioneer chemical co. that “Documentary evidence
becomes meaningless if the writer has to be called in every case to give oral evidence of its
contents. If that were the position, it would mean that, in the ultimate analysis, all evidence
must be oral and that oral evidence would virtually be the only kind of evidence recognised by

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law. This provision would clearly indicate that to prove the contents of a document by means
of oral evidence would be a violation of that section.”

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence
needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be
fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to be
pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For
acting out one, the other needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is taken into regards
must be direct. The word direct does not include any category of hearsay as its main element
is vested in the word “must”. Every statement under oral evidence must be direct. Now let’s
focus on some conditions which need to be fulfilled to make oral evidence admissible;

• Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of
direct oral evidence. The word “Direct” in all matters must mean that it is administered by any
person on their own i.e through their personal knowledge and is not passed by any other
person (hearsay) which on the other hand will be inadmissible. This involves certain cases in
which the word “direct” is involved :-

1. It refers to a fact which could be seen, it must be the evidence of a witness who says
he saw it –
It refers to evidence which has been given by the person who has actually seen or observed
the matter by their own eyes, This will be actuated as direct evidence.For example: if A saw
that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that of
direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it –
It refers to evidence which has been given by the person who was present and has actually
heard the matter by themselves, this will come under direct evidence.For example: if A
overheard B’s conversation that stated; that he is going to kill C tomorrow under the bridge,
A’s testimony will be that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner,
it must be the evidence of person who says he perceived it by that sense or
manner –
Meaning such evidence that has been given by the person who has perceived it in any other
manner or by any other senses but it has been perceived by that person itself. For example:
through sense of smell or taste.

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 4. If it refers to an opinion or to grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds –
It means when a person holds any opinion on any matter or incident, only his testimony on the
ground of which his opinion is formed will be admissible in the court.For example A thinks that
B is not a good guy, so his testimony of that opinion will be termed under direct evidence.

• Meaning of Hearsay Evidence

All of us are aware of what hearsay is; hearsay is any information which is received by any
person from any other source. Hearsay means when a person does not have a personal
knowledge about a particular matter or incident and he has been informed about that
particular matter by any other person.

As oral evidence includes first-hand knowledge thus, Hearsay evidence is excluded under the
ambit of oral evidence because hearsay is not directly obtained evidence.

• Rationale behind the exclusion of Hearsay Evidence

From the above head now we know that Hearsay Evidence is second-hand knowledge. But why
is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand knowledge. It only
includes what is directly seen, heard and perceived by a person. There is no room for second-
hand knowledge. A conviction passed on hearsay may be truly unjustified as there is no
reliability as to whether the person who has passed on the following information is credible
enough or not. For example: if A has received information through B that he saw C hitting D.
This will be hearsay because A himself has not administered the incident. For this reason,
Hearsay has been excluded from Oral Evidence.

• Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their testimony is accepted
and not treated as hearsay. In certain cases, such statements may be admissible. Opinions of
experts which are embedded in things which are maintained for sale like books of authors can
be accepted as oral evidence when the author of the book is dead, cannot be found, cannot
come to the court for some reason or the court thinks that calling such person may be a delay
of proceeding, so any such statements shall be admissible.

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 • Child Complainant’s Evidence by video-recording and television link

Oral Evidence also includes the child’s complainant evidence by video recording and television
link, so if there is any evidence which is presented through video recording they are admissible
under oral evidence as long as they are not tampered with.

• Witnessing offence on visual display of video-recording

If there is a video which displays an offence being committed it may be admissible if it ensures
that it is not tampered by any means. This may also be included under oral evidence.

Section 33 as an Exception to Section 60

Section 33 of Indian Evidence Act, 1872 basically gives us a structure of exception to section
60, it has certain exceptions against rule of hearsay which we will see below:

1. Res-gestae( derived from a Latin word meaning something deliberately undertaken

or done)– For example, if A sees B passing by him on a bike and after that he sees
that B has been injured but A has not administered the accident on his own, when
A goes to B; B says that C has hit him by truck, such statement though hearsay may
be admissible.
2. Admission or confession- For example, A coming out of the court tells B his guilt of
committing murder of C, though hearsay but statement shall be accepted as
evidence.
3. By any reason the person cannot come to the court if he is dead, cannot be found,
is incapable of coming to court; every such information which has been passed to
the other person and that person giving the testimony in the court shall be held
admissible.

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Difference Between Oral and Documentary Evidence

BASIS ORAL EVIDENCE DOCUMENTARY EVIDENCE

Oral evidence is the Documentary evidence, on the other

evidence given by witnesses hand, is the evidence which is submitted
1. Meaning who are called in the court in in the court in written form including
regards to the trial orally. documents, papers etc.

Oral evidence is mentioned Documentary evidence is dealt from

2. Legally defined under section 59 and 60 of section 61 to 66 of the Indian Evidence
the Indian Evidence Act. Act.

Oral evidence should be Documentary evidence has direct

3. Types
given direct form. documents and secondary documents.

Oral evidence can be given

4. Forms of Documentary evidence must be given in
through speaking, signs or
submission writing.
gestures

Case Laws on Oral Evidence

• State v. Rajal Anand

It was held under this case that section 60 of the Indian Evidence Act only includes the word
“direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence
does not hold any area under oral evidence as it is not direct. But the doctrine of Res-
gestae has been observed as an exception to the rule of hearsay which explained that any
person who has experienced any series of relevant facts, his testimony after the incident even
if he has not seen the crime being committed will be accepted.

• Amar Singh v. Chhaju Singh And Anr.

A relationship between section 50 and 60 of Indian Evidence Act has been established which
says that for proving an evidence completely, two things shall be fulfilled firstly, there shall be
a presence of relevant facts and those facts have been presented directly by the person who
has either seen them, heard them or etc.

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 • Bhima Tima Dhotre v. The Pioneer Chemical Co.

In this case, it was held that any fact can be proved by oral evidence instead of the content of
documents or electronic records. It is seen that if the person who has presented the
documentary record is called to prove the records, documentary evidence loses all its
significance and it will become oral evidence which will be meaningless.

Conclusion
On concluding the article, oral evidence, with its increasing approach can be appropriate for
passing judgement if proved beyond a reasonable doubt. Earlier it was seen to be weak
evidence but its need has been growing in modern times. In my opinion incidents and facts can
be better understood through oral ways as the person who has administered the incident itself
can explain it in a more clear way rather than documentary form of evidence.

THE END

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