41

Law of Evidence
Syllabus: -
1. Concepts of evidence in classical Hindu and Islamic jurisprudence. British principles of
evidence. The main features of Indian evidence Act. Types of evidences under Indian evidence
Act.
2. The doctrine of Res Gestae. Test identification parade. Evidence of common intention. The
problems of relevancy of "otherwise" irrelevant facts.
3. Admissions and confessions.
4. Dying declarations.
5. Relevance of judgements.
6. Expert testimony.
7. Oral evidence.
8. Documentary evidence. Secondary evidence.
9. Examination of witnesses. General principles of examination. Lawful question in cross
examination.
10. Burden of proof.
11. Estoppel.

Long answer questions:-

1. Explain the various types of evidence under the Indian evidence Act 1872.
A: - the Indian evidence Act 1872 divides evidence into the following kinds.
1. Direct evidence
2. Indirect evidence or circumstantial evidence.
3. Real evidence.
4. Personal evidence.
5. Original evidence.
6. Hearsay evidence.
7. Primary evidence.
8. Secondary evidence.
9. Oral evidence.
10. Documentary evidence.
11. Judicial evidence.
12. Non judicial evidence.

1. Direct evidence: - it is also known as first evidence. Evidence given by direct witness or
eyewitness is called the direct evidence. Direct evidence is the testimony of a witness to the
existence or non existence of a fact.
2. Indirect or circumstantial evidence: - In cases, where direct evidence is not available, then
circumstantial evidence can be restored to. Circumstantial evidence is a testimony by witnesses
as to the circumstances from which and inference is to be drawn as to the fact in issue.
3. Real evidence: - it is evidence which is addressed to the sense of the Tribunal of the court.
Eg:- weapons, blood stained clothes.
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Law of Evidence
4. Personal evidence: - it reaches the court through human agency. Oral testimony of witness is
a good example.
5. Original evidence: - the production of a thing proved in its original form. It is that evidence,
which a witness reports himself to have seen or heard through the media of his own senses.
Eg:- C says that he heard the cry of B , as 'save me, I am being killed by A'.
6. Hearsay evidence: - a witness reports that he himself did not see or hear. He reports that he
has learnt the fact through the medium of a third person. Hearsay evidence is no evidence and
is not admissible.
7. Primary evidence: - it means the document itself is produced for the inspection of the court.
Eg:- A sold his house to B for 50000 rupees and executed a registered sale deed. In a dispute as
to the title, it is primary evidence. Primary evidence is considered as the best evidence since it
provides proof with certainty.
8. Secondary evidence: - it is known as inferior or substituted evidence. It indicates the
existence of more original sources of information. Secondary evidence may be given in the
absence of primary evidence if proper explanation is given for such options.
According to section 63, copies made and compared with the originals, or Photostat copies may
be treated as secondary evidence.
9. Oral evidence: - it is the evidence which is brought to the knowledge of the court by the
verbal statement of a witness qualified to speak on the point. All facts may be proved by oral
evidence except the contents of documents.
10. Documentary evidence: - all documents produced for the inspection of the court, such
documents are called documentary evidence.
11. Judicial evidence: - it is evidence received by the courts of justice in proof or disproof of
facts.
12. Non judicial evidence: - evidence given in the proceedings before magistrate or officer not
in a judicial capacity, but administrative is non judicial evidence. But confessions made to police
officers are inadmissible.

2. Define Admission. Explain when admissions are relevant. And distinguish it from the
'confessions'.
A:-sections 17 to 23 deal with admissions.
Admissions: - admission means voluntary acknowledgement of the existence of a particular
fact.
Definition: - according to section 17 of the evidence act, an admission is a statement, oral or
documentary which suggests any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances, hereinafter mentioned.
To constitute admission, the following characteristics are to be present.
1. It may be oral or documentary.
2. It is a statement to suggest any inference as to any fact in issue.
3. It may be made by any person prescribed under the act.
4. It must be made under the circumstances prescribed under the act.
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Persons competent or qualified to make admissions (sections 18-20):-
Section 18 to 20 of the act lays down the provisions relating to the persons competent to make
admissions. According to section 18, the following persons can make admissions.
1. Parties to the suit or process (civil or criminal).
2. Authorised agents of the parties.
3. Persons having proprietary or pecuniary interest in the subject matter of the suit.
Eg: -statement of admission made by one partner in a firm is an admission and shall be
binding on all other parts of the firm.
4. Persons from whom the party to the suit has derived his interest.
Sections 19 and 20 deal with statements by strangers.
Self serving statements when admissible (section 21):- the general rule is that self serving
statements are not accepted as admissions. But section 21 provides three exceptions to the
general rule.
They are: -
1. When such self serving statement is made by a person who is dead. This is called dying
declaration.
2. When it relates to any state of mind or body and is accompanied by conduct rendering
its falsehood.
3. If it is relevant otherwise than as an admission.
Eg:- A is accused of having in his possession counterfeit coin, which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coin, as he doubted whether it
was counterfeit or not, and that person did examine it and told him it was genuine.
Relevancy of oral admissions as to the contents of a document (section 22):- oral admissions
as to the contents of a document are irrelevant. They can be proved to be relevant by a party
who is entitled to give secondary evidence of its contents.
When oral admission as to contents of electronic records are relevant (section 22 A):- oral
admissions as to the contents of electronic records are not relevant, unless the genuineness of
the electronic record produced is in question.
Admission in civil cases, when relevant (section 23):- in civil cases no admission is relevant if it
is made,
A. Either upon an express condition that evidence of it is not to be given,
B. under the circumstances from which court can infer that the parties agreed together that
evidence of it should not be given.

Distinction between admission and confession:-

A. Admission is a voluntary acknowledgement as to the truth of a fact. Confession means a
statement made by an accused admitting his guilt.
B. Admission is defined under section 17 of the Indian evidence Act. Confession is not defined in
the act.
C. It is not a conclusive proof. Judicial confession is a conclusive proof.
D. All admissions are not confessions. But all confessions are admissions.
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E. admission is made in civil cases. Confession is made in criminal cases.
F. Admissions can be made on behalf of another or by a stranger. Confession must be made by
the accused himself.

3. Explain the problems relating to admissibility of confessions.

A: - confession means a statement made by an accused admitting his guilt. It is an admission or
acknowledgement as to the commission of an offence. If a person accused of an offence and he
makes a statement against himself it is called confession.
Sections 24 to 30 of the Indian evidence Act deal with the provisions relating to confessions.
Eg:- A is charged with the murder of B. If A said that he had killed B, it is a confession or
confessional statements by A. Confessions are special form of admissions. It is popularly known
as "all confessions are admissions, but all admissions are not confessions".
The confessions form parts of substantial evidence, So many confessions are not admissible.
There are so many conditions to be satisfied to make a confession as admissible.
"Confessio in judicio omini probatione major est"- confession in judicial proceedings is greater
than any other proof.
Section 24:- confessions caused by inducement, threat or promise- a confession to be
admissible in evidence, it must be free and voluntary. If it proceeds from
remorse(paschatapam) and a desire to make reparation (pariharapu) for the crime, it is
admissible. A confession made by an accused in a criminal proceeding is irrelevant, if it is
caused by any inducement, threat or promise.
Eg:- if the magistrate says the accused, 'explain, how you committed the offence, so that I will
help you'. It is inadmissible because the magistrate here induces the accused to confess by
promising him.
Conditions: - to attract the prohibition enacted in section 24 the following facts must be
established.

1. The statement in question is a confession.

2. Such confession has been made by the accused.
3. It has been made to a person in authority.
4. The confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority.
5. Such inducement, threat or promise must have reference to the charge against the
accused.
6. The Inducement, threat or promise must in the opinion of the court be sufficient to the
accused ground for supporting that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings against him.
Section 25:- confessions to police officer- according to section 25 confession made to police
officer are inadmissible. Confession under section 25 may be a statement directly made to a
police officer orally or in writing or indirectly made to such police officer. The reason is that the
police officers in India resort to third degree methods to extort confession.
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Section 26:- confessions by accused while in custody of the police not to be proved against
him- a confession made by an accused in the presence of a police officer shall not be proved as
against such person, unless it is made in the immediate presence of a magistrate.
Section 27:- how much of information received from accused in the police custody may be
proved- according to section 27, when any information given by the accused in the police
custody leads to the discovery of an incriminating material object, like jewellery, weapons etc.
The portion of the information can be proved. The reason is that such discovery guarantees
truth of the information.
Eg:- A is tried for murder of B. If A, in police custody says 'I have killed B and buried the dead
body in my garden'. Accordingly, if the body is found, A's statement become provable under
section 27.
Conditions: - for application of section 27 the following conditions are to be satisfied-
1. the accused in police custody has given some information in his confessional statement.
2. Such information must relate to the discovery of certain facts relating to the commission
of some offence.
3. In pursuance of such information the police discovered certain facts.
4. The facts discovered must be connected with the offence.
Constitutional validity of section 27- according to article 23 (3) 'no person accused of an offence
shall be compelled to be witness against himself'.
So it was challenged on the above stated ground.
"State of Bombay vs. Kati Kallu Oghad"
The Supreme Court stated "it is to be presumed that the information given by the accused is
not given under compulsion. It is the prosecution to find out whether the accused gave the
information voluntarily or by compulsion. So section 27 is not voilative of article 20 (3)".
Section 30:- confession given by one accused can be considered against another in case both of
them are tried jointly for the same offence.
Eg: - A and B are jointly tried for the murder of C. It is proved that A said, 'B and I murderd
C'. The court may consider the effect of this confession as against B.

4. What is a dying declaration? Explain the general principles relating to the admissibility of
dying declaration.
A: - section 32 and 33 of the Indian evidence Act deals with the provisions relating to statement
by persons who cannot be called as witnesses.
Section 32:- cases in which statement of relevant fact by person, who is dead or cannot be
found etc. is relevant.
Section 32 makes relevant statements made by a person.
A. Who is dead,
B. Who cannot be found,
C. Who has become incapable of giving evidence,
D. Whose attendance cannot be procured without unreasonable delay or expenses.
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Law of Evidence
Dying declaration: - a dying declaration is a declaration written or verbal made by a person, as
to the cause of his death or as to any of the circumstances of the transaction, which resulted in
his death.
Eg: - A has been attacked by B. If A, shortly before death, makes a declaration holding B,
responsible for his injuries, it is called dying declaration.
Reasons for admissibility of dying declaration: - dying declaration is admissible for the following
two reasons-
1. As the victim is sole eye witness, exclusion of his evidence defeats the ends of justice.
2. Declarations made by a person under expectation of death are presumed to be true (a
person who is about to die would not lie).
Conditions: - for admissibility of dying declaration, the following conditions are to be satisfied.
 The declarant must have died: - dying declaration to be admissible, the declarant must
be dead. If the declarant survives, it is not admissible under section 32.
 Injuries must have caused the death: - the person must have died as a consequence of
the injuries inflicted, but not as a consequence of some other reason.
 Statement as to cause of death or circumstances leading to death: - the statement
must relate to the cause of his death or circumstances of the case resulting in his death.
Statements which relate to causes or circumstances not responsible for his death are
not admissible as the dying declaration.
 Cause of death must be in question: - the statement as to cause of the death of the
deceased person will be relevant only the cause of his death is in question.
 The declarant must be in good condition to make the declaration: - dying declaration
to be admissible under section 32, the person making the statement must be in a fit
condition to make the statement.
 The statement must be complete: - to be admissible in evidence dying declaration must
be complete.
 Competence of declarant: - the admissibility of statement under section 32 is based on
the assumption that the maker of the statement was competent to take oath as a
witness.
Section 33:- section 33 is an exception to the general rule that the person acting as a witness
should be present before the court. In a situation where a person is dead or not found or has
been incapable of giving evidence or his evidence cannot be procured without unreasonable
delay or expense or is kept out of the way of the adverse party, can be admissible as evidence.

5. Discuss the general principles of relevancy of previous judgements.

A: - section 40 to 44 of the Indian evidence Act deals with the provisions relating to judgement
of Court of justice when relevant.
Section 40:- if there exist any judgement, order, or decree relating to any subject matter on the
same facts, then it bars the other court from taking cognizance of a suit or holding a trial of the
same case. It is same as the doctrine of res judicata.
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Law of Evidence
Section 41:- relevancy of certain judgement in probate etc. Jurisdiction-
A final judgement, order or decree of a competent court (in the exercise of probate,
matrimonial, admiralty or insolvency jurisdiction) confers upon or takes away from any person
any legal character or declare that any person is entitled to such character or which declares
that any person is entitled to any specific thing absolutely is relevant when the existence of any
such illegal character is in the question.
A judgement in rem (a judgement which applies to the whole world) under section 41 shall be
conclusive in a civil as well as criminal proceedings.
Section 42:- relevancy and effect of judgements, orders or decrees, other than those
mentioned in section 41-
According to section 41 a judgement other than those mentioned in section 41 are relevant if
they relate to matters of public nature relevant to the enquiry, but such judgements on not
conclusive proof.
Eg:- A sued B for trespass on his land. B alleged that there exist a public way of right. The court
grants a degree in favour of the defendant B. Then in a subsequent suit if A sues C for trespass
of land, then the decree passed in favour of B is relevant but such decree is not a conclusive
proof that the right of way exists.
Section 43:- judgement other than those mentioned in section 40 to section 42 when
relevant- a judgement other than those mentioned in section 40, 41, 42 are irrelevant, unless
the existence of such judgement is a fact in issue, or is relevant under some other provision of
this act.
Eg:- A is charged with theft and having been previously convicted of theft. The previous
conviction is relevant as a fact in the present issue.
Section 44:- the general rule is that a judgement of a competent court shall be binding on the
parties to the suit. But on the following grounds the judgement can be impeached.
1. Lack of jurisdiction.
2. The judgement was obtained by way of fraud.
3. The judgement was obtained by way of collusion.

6. Who is an expert? Explain the general principles of experts' testimony.

A: - section 45 to 51 of Indian evidence Act deals with the provisions relating to opinions of
experts.
Section 45 defines an expert as, one who has acquired specialised knowledge; skill or
experience in any science, trade or profession, such knowledge may have been acquired by
practice, observation or careful studies.
Section 45:- when the court has to form an opinion upon a point of foreign law, or of science,
or of art, or as to identity of handwriting or finger impressions, the opinion upon the point of
persons specially skilled in such foreign law, science or art, or in questions as to identity of
handwriting or finger impressions are relevant facts.
Such persons are called experts.
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Experts’ opinion is only a piece of evidence and cannot be taken as substantive piece of
evidence since it is to be judged along with other evidences.
Section 46:- facts bearing upon opinions of experts- where an expert opinion is relevant under
section 45, section 46 makes relevant two types of facts, namely
1. Facts, which support expert opinion,
2. Facts, which are inconsistent with expert opinion. Thus, section 46 confirms that the opinion
of expect is not conclusive.
Section 47:-opinions as to handwriting- when the court has to form an opinion as to the
person by whom any document was written or signed, the opinion of any person acquainted
with the handwriting of the person easily is a relevant fact.
Section 48:- opinion as to digital signature when relevant- when the court has to form an
opinion as to the digital signature of any person, the opinion of the certifying authority which
has issued the digital signature certificate is a relevant fact.
Section 49:- opinions as to usages, tenets, etc. When relevant:-
When the court has to form an opinion as to the usage, tenets of any body of men or family,
the constitution and government of any religion or charitable foundation, the meaning of words
used in particular districts or by particular class of people, the opinions of persons having
special means of knowledge there on, are relevant facts.
Section 50:- opinions on relationship, when relevant- when the court has to form an opinion
as to the relationship of one person to another, the opinion expressed by any person who is
member of such family is a relevant fact.
Section 51:- grounds of opinion, when relevant- according to section 51, whenever the opinion
of any living person is relevant, the grounds on which such opinion is based are also relevant.
Mere opinion unaccompanied by its grounds is not admissible.

7. Define secondary evidence and explain when secondary evidence can be given to prove the
contents of a document?
A: - secondary evidence- sections 63, 65 and 66 deals with the provisions relating to secondary
evidence.
Section 63- copies made and compared with the originals or Photostat copies may be treated as
secondary evidence.
Section 63 runs as follows:-
Secondary evidence means and includes-
1. Certified copies given under the provisions hereinafter contained.
2. Copies made from the originals by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies.
3. Copies made from or compared with the original.
4. Counterparts of documents as against the parties who did not execute them.
5. Oral accounts of the contents of a document given by some person who has himself
seen it.
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eg:- a photograph of a original is secondary evidence of its contents, though the two have not
been compared, if it is proved that the thing photographed was the original.
Section 65:- cases in which secondary evidence relating to documents may be given-
1. The person in possession of the original is not within the reach of the court.
2. If the original is in the possession of the opposite party.
3. If the original is lost.
4. When original deed had already been sudmitted in the court.
5. If the original is a public document.
6. When the original is not easily movable.
7. When the original consists of many accounts.
Section 65A:- special provisions as to evidence relating to electronic record- the contents of
electronic records may be proved in accordance with the provisions of section 65B.
Section 65 B: - admissibility of electronic records-
Section 66:- section 66 lays down the procedure to be followed in admitting secondary
evidence as allowed by section 65. Before resorting to secondary evidence under section 65 A,
a notice to produce the original must be served on the person in whose power and possession
the original is.

8. Discuss the admissibility of evidence derived from unpublished official records relating to
any affairs of state.
A: - section 123 and Section 124 deal with state privilege relating to the protection of
unpublished official records as well as confidential records of the state. Both the sections are
based on principle that the public interests must not be jeopardised.
i) Evidence as to affairs of State (Sec.123)
According to Sec.123, no one shall be permitted to give evidence from unpublished official
records relating to state affairs. Such disclosure affects the public interest. Section 123 reads
as follows:
No one shall be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the head of the
Department concerned, who shall give or withhold such permission as he thinks fit.
The expression 'affairs of State" has not been defined in the Evidence Act.
Every communication which proceeds from one officer of the State to another is not necessarily
relating to 'affairs of State', the expression covers only matters of public nature in which State is
concerned. It is not limited to matters of political or administrative character but
also sometimes includes matters relating to trading, commercial or contractual activities of the
State.
Under the section unpublished official records of the state are protected from being disclosed.
Only exception laid down is that such unpublished document may be disclosed with express
permission of the head of the department. “The court is also bound to accept without question
the decision of the public officer.”
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According to the section unpublished official records are not permitted to be disclosed except
with the permission of the head of the department concerned. Naturally, no question in this
regard can be raised in the court of law. But, whether a document falls within unpublished
official records may be decided in accordance with Section 162 of the Evidence Act. When
Section 123 is read with Section 162 “the effect is that the final decision whether the
permission should be granted or not should be with the court. About the power of the court to
inspect the document, there is residual power of the court to decide whether its disclosure
would be injurious to public interest.
In order to claim immunity from disclosure thereof the document must be unpublished state
documents and must relate to affairs of the state and the disclosure thereof must be against
interest of the state or public interest. Under section 162, the rest documents can be inspected
by the court to examine the privilege claimed that the disclosures would injure the public
interest. After inspection, the court is free to disclose either whole or in parts, provided that
will not to give a distorted or misleading impression of the document.

ii) Official Communications (Sec.124)

According to Sec.124, no public officer shall be compelled to disclose any communication made
to him in official confidence.
No public officer shall be compelled to disclose communications made to him
in official confidence, when he considers that the public interest would be surffer by
the disclosure.

9. Explain the examination of witnesses. What are the lawful questions that can be asked in
cross examination?
A: - section 135 to 166 of the Indian evidence Act deals with the provisions relating to
examination of witnesses.
Section 135:- order of production and examination of witness- section 135 evidence act
provides for the order in which witnesses are to be produced and examined before the court.
The order shall be regulated by
1. The law and practice relating to civil and criminal procedure.
2. in the absence of such law by the discretion of the court.
Section 118:- competency of witness- all persons shall be competent to testify unless the court
considered that they are prevented from understanding the questions put to them by reason of
their age, disease or any other cause of body.
Explanation:-A lunatic is not incompetent to testify, unless he prevented by his lunacy from
understanding the questions put to him and giving rationale answers to them.
Section 137:- stages in examination of witnesses- examination of witnesses consists of the
following stages
1. Examination in chief.
2. Cross examination.
3. Re examination.
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1. Examination in chief: - it means examination of a witness is done by the party which called
him. If the advocate for the plaintiff/defendant introduces witnesses in support of this case and
examines them, it is called 'examination in chief'. In chief examination, no leading questions can
be put except in certain special cases. Leading question is one, which suggests the answer. Only
relevant questions should be asked.
2. Cross examination: - the examination of a witness by the adverse party is called cross
examination. It must be late to relevant facts. Leading questions may be asked. A witness
may be cross-examined as to previous statements made him in writing or reduced into writing.
Cross-examination is considered as the most powerful weapon. According to Philip Wendell, it
is double- edged weapon, if you know how to use it, it helps to cut enemy's neck. Otherwise, it
cuts one's own hands.
3. Re-examination: - After cross-examination is over, the party, who called the witness feels,
necessary, may once again examine the witness. Re-examination cannot be claimed as a matter
of right, except with the permission of the court. The purpose of re-examination is to explain
any new matters rose in cross-examination, but not to prove any other fact. It refers to matters
in Cross-examination, and new matter with permission of the court. Leading questions should
not be asked in re examination except in the following cases.
1. If not objected by the adverse party; or
2. With the permission of the court; or
3. Already sufficiently proved matter (undisputed).
The other (adverse) party may further re cross examine the witness.
Following are the questions that can be asked in cross examination:-
When a witness is cross-examined, he may be asked any question which tends:
1. To testify his veracity (correctness);
2. To discover, who he is, and what is his position; and
3. To shake his character.
These questions cannot be asked in examination-in-chief.
Leading questions can also be asked in cross examination.
Leading questions (Sections 141-143)
Sections 141 to 143 of Chapter-X, Part-III of the Indian Evidence Act, 1872 deal with Leading
Questions'.
Section 141 defines leading questions. Sections 142 and 143 prescribe the circumstances under
which the leading questions may or may not be asked.
Meaning & Definition:
The expression Leading Question' literally means "a question, which by itself suggests the
answer as expected by the person asked/put the same."
Examples:
1. is not your name so and so?
2. Do you reside in such a place?
3. Are you not in service of such and such person?
4. Have you not lived with him for so many years?
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5. Did you see A enter B's shop and take a watch?
When leading questions must not be asked (Section 142):- According to Sec.142, leading
questions must not be asked in Examination-in-chief or in Re examination except with
the permission of the Court.
Sec.142 reads as follows: Leading questions must not, if objected to by the adverse party, be
asked in an examination in-chief, or in a re-examination, except with the permission of the
Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved.
Objection to leading questions: - Objection to leading question is not that they are illegal but
only that they are unfair. The rule excluding leading questions is intended to prevent unfairness
in the conduct of the inquiry. The Act gives absolute discretion to court to allow
or disallow leading questions.
When leading questions must be asked (Sec.143): - According to Section 143 of the Evidence
Act, leading questions must be asked in cross-examination.

10. General rules relating to burden of proof.

A: - section 101 to 114A of the Indian evidence Act deals with the provisions relating to burden
of proof.
Burden of proof: - the expression burden of proof means obligation to prove a fact. Every party
has to establish facts, which go in his favour or against his opponent.
Section 101:-whoever desires any Court to give judgement as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that this facts exist.
Illustrations:
1. Suppose, A desires a court to punish B for commission of crime, the burden of proof lies on A.
2. A desires a court to give judgement that he (A) is entitled to certain land, which is in B's
possession. But B denies it to be true. A must prove the existence of those facts that, he is
entitled to that property.
Section 102:-On whom burden of proof lies- the burden of proof in a suit or proceeding lies on
the person who would fail if no evidence at all were given on either side.
Section 103:-Burden proof as to particular fact:-the burden of proof as to any particular fact
lies on the person who wishes the court to believe in its existence.
Section 104:-Burden of proving fact to be proved to make evidence admissible: - eg- A wishes
to prove a dying declaration by B. A must prove B's death.
Section 105:- if the accused claims exemption from criminal liability under the chapter of
general exceptions under IPC the burden of proof rests on him.
Section 106:- when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
Section 107:- a person is alive within 30 years. If anyone says that he is dead, then the burden
of proof that he is dead lies on him.
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Section 108:- if a person has not been heard of for 7 years, there is a presumption of law that
he is dead. If anybody says that he is alive, the burden of proof lies on him.
Section 109:- if two persons are partners or there exist any relationship between the two
persons, then the burden of proving the relationship is on the person who affirms it.
Section 110:- burden of proof as to ownership- a person in possession of a property is
presumed to be the owner. If anybody denies that the processor is not the owner, the burden
of proof lies on him.
Section 111:- where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of proving the
good faith of the transaction is on the party who is in a position of the active confidence.
Section 112:-if a child is born within 280 days after dissolution of the marriage, it is a conclusive
proof of legitimacy.
Section 113:- if a woman commits suicide within 7 years of marriage, then the court presumes
that her husband or relatives subjected her to cruelty.
Section 114:- Court may presume existence of certain facts- the court may presume the
existence of any fact which it is thinks likely to have happened regarding being had to the
common cause of natural events, human conduct and public and private business, in relation to
the facts of the particular case.
Eg:- the court may presume that a man who is in possession of stolen property soon after the
theft is either the thief or has received the goods knowing them be stolen.

Short answer questions:-

1. Facts in issue
A: - section 3 of the Indian evidence Act.
The expression Facts in issue means and includes-any fact from which, the existence, non-
existence, of any right, liability, asserted or denied in any suit or proceeding, necessarily
follows.
Explanation: Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue.
Illustrations:
A is accused of the murder of B'.
At his trial the following facts may be in issue:
 That A caused B's death;
 That A intended to cause B's death;
 That A had received grave and sudden provocation from B:
 That A, at the time of doing the act which caused B's death, was, by reason
of unsoundness of mind, incapable of knowing its nature.
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Facts in issue in the plain sense means facts, which are in issue and form the subject matter of
the court's decision'. The questions relating to a fact enabling the court to give decision are
'Facts in Issue'.

2. Res Gestae
A: - section 6 of the Indian evidence Act deals with the provisions relating to doctrine of res
gestae.
Section 6:- fats(though not in the issue) which are so connected with the fact in issue as to form
part of the same transaction are relevant whether there occurred at the same time and place at
different times and places.
Eg: - A is accused of the murder of B by beating him. Whatever was said or done by A at the
time of beating B, or shortly before or after beating B forms part of the same transaction and
those facts are relevant.

3. Confession made to police officer.

A: - according to section 25 confessions made to a police officer are inadmissible. Confession
under section 25 may be a statement directly made to a police officer orally or in writing or
indirectly made to such police officer. The reason is that the police officers in India resort to 3rd
degree methods to extort confession.
Sitaram vs. state.
The accused after committing murder left a confessional letter on the dead body. The letter
was address to police officer. The Court treated the letter, not addressed to police, since police
officers was not nearby. The confession was admitted and the accused was convicted.
Section 27:- how much of information received from accused in police custody may be proved-
according to section 27, when information given by the accused in the police custody leads to
the discovery of an incriminating material object, like jewellery, weapons etc. The portion of
the information can be proved. The reason is that such discovery guarantees truth of the
information.
Eg: - A is tried for mother of B. If A, in police custody says 'I have killed B and buried the dead
body in my garden'. Accordingly, if the body is found, A's statement become provable under
section 27.
Conditions: - for application of section 27 the following conditions are to be satisfied-
1. The accused in police custody has given some information in his confessional statement.
2. Such information must relate to the discovery of certain facts relating to the commission
of some offence.
3. In pursuance of such information the police discovered certain facts.
4. The facts discovered must be connected with the offence.
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Law of Evidence
4. Confession by co-accused.
A: - section 30:- consideration of proved confession affecting person making it and others
jointly under trial for sale offence- when more than one person is being tried jointly for same
offence, and a confession made by one of such persons affecting himself and some other of
such persons is proved, the court may take into consideration search confession as against such
other person as well as against the person who makes such confession.
Example: - A and B are jointly tried for the murder of C. It is proved that A said, "B and I
murdered C". The court may consider the effect of this confession as against B.
b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and
B, and that B said -'A and I murdered C'. This statement may not be taken into consideration by
the Court against A, as B is not be being jointly.

5. Relevancy of opinions.
A: - long answer question number 6. Write about the relevancy of opinions of experts.

6. Public document
A:-section 74:- the following documents are public documents-
1. Documents forming the acts or records of the acts-
A. Of the sovereign authority;
B. Of official bodies and tribunals: and
C. Of public offices, legislative, judicial and executive or of any foreign country.
2. Public records kept of private documents.

7. Ambiguous document
A: - Section 93: - exclusion of evidence to explain or amend ambiguous document- when the
language used in a document is, on its face, ambiguous or defective, evidence may not be given
of facts which would show its meaning or supply its defects.
Example:-
A. ‘A’ agrees in writing to sell a horse to B, for 'Rs.1000 or Rs.1500'. Evidence cannot be given to
show which price was to be given.
B. A Deed contains blanks. Evidence cannot be given of facts, which would show how they were
meant to be filled.

8. Alibi
A: - Alibi comes under the head facts otherwise relevant become relevant explain under section
11 of the Indian evidence Act.
Meaning: - Alibi is a Latin term which means elsewhere. The accused very often takes the plea
that he was not present at the place where the offences committed. Alibi is a defence under
which a person accused of an offence alleges that he was so far away from the place of the
commission of the offence, that he could not be guilty.
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Law of Evidence
Eg: - A is accused of B's murder on a particular day at Bombay. On the day A was at Delhi is
relevant to prove Alibi. He has to prove that it would be impossible for him to commit murder
at Bombay as he was in Delhi at the time of occurrence of the offence.

9. Child witness.
A:- Section 118:- competency of witness- all persons shall be competent to testify unless the
court considered that they are prevented from understanding the questions put to them by
reason of their age, disease or any other cause of body.
Explanation:-A lunatic is not incompetent to testify, unless he prevented by his lunacy from
understanding the questions put to him and giving rationale answers to them.
Second persons are regarded as not competent to give evidence.
Eg: - child witness, insane.
 A child of tender age may be allowed to give evidence if the court is satisfied that he has
capacity to understand the questions put to him and gives rational answers to those
questions.
 The Indian evidence Act prescribes no age limit as to the competence of giving evidence.
 Even if a child of 3 or 4 years old is competent to give evidence provided, is competent
to give ration answers to the questions put to him.
 A child witness below the age of 12 years did not administer oath before giving
evidence, since he is ignorant of the moral significance of the oath.
 The court conducts a test to a child witness. It is known as " Voire Dire Test", in this test
the court asks certain questions and unconnected with the case like what is your name?
What is your father's name? Where are you residing? etc. If the child gives racial
answers to these questions, the court satisfied that the child is a competent witness and
allowed to put questions to the child, pertaining to the case. Thus, the evidence given by
a child witness is admissible in evidence.

10. Hostile witness

A: - section 154 of the evidence act speaks about hostile witness. The word hostile literally
means unfriendly. A witness is generally expected to give evidence in favour of the party by
whom he is called. But in certain cases such witness may unexpectedly turn hostile and gives
evidence against the interests of the party who has called him. Such witness is called hostile
witness. a hostile witness is one who from the manner in which he gives evidence shows that
he is not desirous of telling the truth to the court.
The court may, in its discretion, permit the person who calls a witness to put any questions to
him which might be put in cross examination by the adverse party.

11. Ancient document.

A: - section 90:- presumption as to documents thirty years old- where any document
purporting to be 30 years old is produced before the court. the court in that particular case
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considers that document as proper and the court may presume that the signature and every
other part of such document is in the person's handwriting by the person by whom it is
purports to be signed and in the case of document executed and attested, that it was duly
executed and attested by the persons by whom it purports to be executed and attested.

12. Presumptions
A: - Presumption' is an inference, which takes place in the absence of absolute certainty as to
truth or falsehood of a fact. In other words, presumption is an inference drawn by the court as
to the truth of a particular fact, from other known or proved facts.
Presumption -In the absence of absolute certainty, we resort to presumptions. The word
presume means "supposed to be". The word 'presumption' means "an inference from known
facts".
Eg: - For instance, A finds B's scooter in front of a restaurant. Then, A may presume that B is in
the restaurant. When A entered into the restaurant, he found B, then his presumption is
correct/true. Instead of B, if C (B's brother) is found, his (A's) presumption is incorrect/wrong.
Thus, presumptions may be true or untrue. In other words, they may be rebuttable (may be
challenged) or irrebuttable (cannot be challenged).
Classification of Presumptions: - Presumptions may be classified as follows:
1. Presumption of Fact or Natural Presumption or May Presume (Ss.86-88, 90, 113.A and 114).
2. Presumptions of Law or Artificial Presumptions
A. Rebuttable Presumptions of Law or Shall Presume (Ss.79-85, 189, 105, 111.A, 111.B
and 114.A)
B. Irrebuttable Presumptions of Law or Conclusive Proof (Ss.41, 112 and 113).
Presumptions (Section-4)- (May Presume, Shall Presume and Conclusive Proof).
Sec.4 of the Indian Evidence Act, 1872 provides for three types of presumptions namely, May
Presume, Shall Presume and Conclusive Proof.
It runs as follows:
May Presume'- Whether it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
Shall Presume'- Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved:
Conclusive Proof' - When one fact is declared by this Act to be the conclusive proof of another,
the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it.
Evidence is a 'means' to arrive at proof. Proof is a process by which truth or falsehood as to a
fact is convinced. Proof enables a reasonable man to come to a conclusion.

13. Character evidence

A: - section 52 to 55 of the act lays down the provisions relating to character.
Character means the collective qualities or characteristics especially mental and moral that
distinguish a thing or a person.
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Section 52:- in civil cases the character of a person is irrelevant unless such character evidence
is itself in issue.
Section 53:- relevancy of character in criminal cases- in criminal proceedings the fact that the
person accused is of a good character is relevant. The innocence or criminality of an accused
can easily be judged by basing on his character.
Section 54:- previous bad character irrelevant-in criminal proceedings the fact that the accused
person has a bad character is irrelevant, unless evidence has been given that he has a character
in which case it becomes relevant. A previous conviction is relevant as evidence of bad
character.