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Law of Evidence
Notes on Evidence Act, 1872
compiled by Nayab Naseer

A project of Excellency Club, SFI & Students Union 2018-19, Govt. Law
College, Ernakulam
.

Historical Evolution of Law of Evidence

The object of every judicial investigation is the enforcement of a right or liability that depends on
certain facts. The law of evidence is the system of rules whereby the questions of fact in a particular
case can be ascertained. It is basically a procedural law but it has shades of substantive law.

The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly,
to discover, to ascertain or to prove.’

The law of evidence is relevant right from the time the concept of justice evolved.

In ancient India, Vasistha recognized 3 kinds of evidence:

1. Lekhya (Documentary Evidence)

2. Sakshi ( Witnesses)

3. Bukhti ( Possession)

4. Divya (Ordeals).

In the medieval period, Mohammedan law considered the following types of evidence:

1.Oral (Direct Hearsay)

2. Documentary(Less preferred than oral)

However, Muslim law gave predominance to “divine evidence” over such “earthly evidence.” This is
somewhat similar to trial by ordeals. At many places, the parties to litigation would openly fight each
other and it was believed that divine help will come to the rightful party. Such trial by battle has been
abrogated only in 1817.

In Cochin and Goa, where Portuguese ruled, ordeals were also regarded as valid evidence. It involved
tying up a person on bed of hot coals or putting ones hand in boiling water. Anyone who suffered
injury was held to be impure and guilty. It was believed that providence will not let harm come to the
innocent. Often it was the priests who manipulated the tests so that certain people could go scot-
free.

It was also believed that if a guilty man touches the corpse it would show a reaction and then the
man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the
accused.
In the Holy Roman Empire (medieval Europe) and America, woman suspected of being a witch was
tied up and thrown into a pond. If she floated up, she was considered as a witch and was burned alive
at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately she
would be dead by then but nevertheless innocent in the eyes of law. (Salem witch trials)
Confessions due to torture were not unknown either.

THE MODERN LAW

The modern ‘law of evidence’ comes from England. In 1837, an Act was a passed whereby even a
convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses
for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such
witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855,
there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.

In 1856, Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked
to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell
to Sir James Fitzjames Stephan who became the law member in 1871. His draft bill was approved
and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872.
Before independence, many states had already accepted this law as the law in their respective state.
After independence, the Indian evidence Act was held to be the law for all Indian courts.

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim
to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it
is not inconsistent with the Act.

THE LAW OF EVIDENCE IS THE LEX FORI

Lex Fori is Latin for “law of the place of action.” It means “law of the court” or “law of the forum”. In
other words, the law of the place where the proceedings are held applies.
Indian courts know and apply only the Indian law of evidence. The competency of a witness, whether
a fact is proved or disproved is determined by the Indian Law of Evidence and other relevant Indian
laws. Likewise, a court in Nigeria will apply the Nigerian law of evidence.

In India., Evidence Act is applicable to all ciovil and criminal cases. However, it is not applicable to
tribunals, departmental inquriy and disciplinary proceedings, where rule of natural justice applies.
(Kuldip Singh v satte of Punjab; 1996)

What is evidence? Main characteristics (Golden Rule)

Evidence is the available body of facts or information indicating whether a belief or proposition is true
or valid.

Evidence is derived from Lain word “evidentia” which means “plain” “apparent” or “clear.”
Evidence = facts + proof

The Golden Rules of evidence are

1. Evidence must be confined to facts in issue
2. Hearsay is not evidence
3. The best evidence must be given in all cases

Law of Evidence Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19, GOVT
LAW COLLEGE, EKM(KOCHI)

Fact and Fact-in-issue

Facts are the constituent elements of rights and liabilities, and the basis on which disputes exist.

Fact is “a deed, anything done, or anything which comes to pass.”

Facts may be of two types:

1. EXTERNAL FACTS: Anything capable of being perceived by the five senses. Eg: the sun rising from
the east, the feeling of severe heat, the book on a shelf, a salty taste etc

2. PSYCHOLOGICAL FACTS: Any mental condition of a person, as deciphered from his content,
behaviour and character, and manifesting in acts such as fraud, intention, good faith, etc.. Eg: the
intention behind the murder, a fraud transaction

Where the court believes the facts shown by a party in any proceeding exists the fact is proved. If the
court is not satisfied such facts exist the fact is “disproved”.

Eg: A took B’s book. The act of taking is the physical fact, the intention to steal is the psychological
fact. If both these facts are proved, it constitutes evidence for theft. If it cannot be proved A took B’s
book and/or A had intention to steal B’s book, the crime is “disproved.”

Type of facts:

Under the Evidence Act, facts may be of two types: “Factum Probandum” and “Factum Probans”. All
litigation, be it civil or criminal, is involve the relationship between these two concepts.

Factum Probandum (fact in issue): The ultimate fact to be proven, or what the party wants to prove in
court. E.g.: guilt or innocence, existence of a breach of contract, existence of an obligation, the injury
or damage incurred etc.

Factum Probandi (Relevant fact): The evidentiary facts by which the factum probandum will be
proved. Examples: the written contract, the promissory note to prove the existence of an unpaid debt,
etc.
Fact in Issue
For any specific case, some facts are more important than others. Facts in issue are the central
contentions upon which a dispute or case rests. These facts are the crux of the argument, or the
focal point of the dispute.

The Evidence Act defines fact-in-issue as:

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

This definition basically means fact-in-issue are issues, which fundamentally affects the dispute
before the court.
Fact-in-issue are the set of facts in a dispute over which both parties disagree or which one party is
expected to prove to the court. “Fact-in-issue” are affirmed by one party and denied by the other.
For eg: the state may initiate a criminal case against “X” for the murder of “Y”. f X denies murdering Y,
the fact-in-issue is “has X murdered Y.” The state has to prove this fact-in-issue to win the case. If the
fact-in-issue stands disproved or not=proved, the state loses the case.

Facts in issue are the cornerstone of any dispute. They determine what the court has to resolve
Factors affecting facts-in-issue

Factors affecting fact-in-issue

The facts-in-issue in any proceeding are determined by two major factors. These are:

1. The law that regulates that particular dispute i.e. the substantive law. Foe g, if the dispute Is about
theft of an object, the fact-in-issue is based on the sections of IPC dealing with theft, or relevant
provisions of any other applicable law. To prove fact-in-issue, the ingredients which constitute theft
as per IPC will have to be proved.

2. The primary court processes of the parties i.e. pleadings, in civil proceedings and the charge, in
criminal proceedings: In a civil case, the fact-in-issue would depend on the points raised or the
remedy sought in pleadings. In a criminal case, the fact-in-issue would depend on the contents of the
FIR. The contesting parties will have to prove or disprove the contents of these instruments, as the
case may be. For eg, if a charge reads “A has stolen a gold chain from B from Kacheripady Bus Stop
at 9Am on 25.11.2018” these facts soul deb specifically proved, or the defendant needs an alibi to
counter such charges.,

Fact-in-issue may be proved by direct or circumstantial evidence. When the opposing party denies the
fact-in-issue raised, it has to be proved by the party who has the burden of proving them. If that party
fails to prove those facts satisfactorily, his case is lost.
Difference between Fact-in-issue (Factum Probandum) and Factum Probandi
(Relevant fact)

Factum Probandum (fact in issue) Factum Probandi (Relevant fact)

The ultimate fact to be proven Evidence upon which the ultimate fact will be proven

Question of law which will be

Question of fact, used to prove or disprove the relevant
determined by the substantive and/or
question of law
procedural law in place

Ingredients which can prove or disprove such legal

Facts out of which some legal rights
rights or liability. These are not by itself the issue, but
or liability arises
help in deciding the issue.

Eg: breach of contract A valid contract

the promissory note to prove the existence of an unpaid

Eg: Unpaid debt
debt

Law of Evidence Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19, GOVT
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BEST EVIDENCE RULE

The best evidence rule is a legal principle that holds an original copy of a document as superior
evidence. The rule specifies that secondary evidence, such as a photocopy , will be not admissible if
an original document exists and can be obtained

The rule has its origins in Omychund v Barker (1745), were Lord Harwicke stated that no evidence
was admissible unless it was "the best that

the nature of the case will allow" This means the best evidence in possession of the party must
always be given. The better the evidence, greater its strength.

Where the transaction sought to be proved is primarily evidenced by a writing, the writing itself must
be produced or accounted for. It is only in the absence of best or primary evidence that the Court will
accept what is known as secondary evidence. Secondary evidence will never be received until the
party tendering it proves that it is out of his power to obtain the best evidence.

Likewise, Oral evidence should be direct. Oral evidence is direct when it refers to something seen,
heard etc using the five senses, without any intermediary (Rule against hearsay evidence)

Best evidence rule excludes the following as evidence, save in exceptional cases

• Hearsay evidence
• Character evidence

• Similar facts
• Opinion evidence

CLASSIFICATION OF EVIDENCE
Primary (Best) and Secondary Evidence

Primary Evidence

Offers the greatest certainty of the fact in question. E.g.: the original of a contract is the best
evidence as to its contents

the marriage contract as to the fact of marriage

a receipt as to the fact of payment

When two parties enter into a contract, each copy of the contract is primary evidence against the
party executing it.

Secondary Evidence

Evidence which is necessarily inferior and shows on its face that a better evidence exists. E.g.: Xerox
copies of documents; narration of witnesses as to a written contract.

Eg: a photocopy of an original document

An oral account of a document by a person who has herself seen it is secondary proof of the
document

Secondary evidence is admissible when:

original is in possession of adversary

original is in possession of a person out-of-reach
existence of the content of original document have already * been admitted
original has been destroyed
original is a public document

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Oral v Documentary Evidence

Oral Evidence

All statements made by witness in relation to matter in fact are oral evidence. It is also known as
Parol evidence.

All facts except the contents of documents and electronic records may be proved by oral evidence.
For oral evidence to be admissible, it must be direct (Sn 60).

Documentary Evidence

Documentary evidence include any matter expressed or described on any substance, by means of
letters, figures or marks. It includes books, map, caricature, account ledgers and jorunals. In includes
electronic records as defined in IT Act 2000.

Yusuf Ali v State of Maharashtra (1968): Tape recorded conversation of attempt to bribe a civil
servant is not self-incriminatory or in violation of Article 20(3)

Rama Reddy v VV Giri (1971): Tape recordings may be admissible as direct evidence if the accuracy
of recording can be ensured, and the voice properly identified.

Hearsay Evidence
Hearsay evidence is what is heard and said. It is a second hand or unoriginal evidence, where the
witness merely reports what he learn through a third person rather than what he saw or heard.

It may include

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

2) A statement contained or recorded in any book, document or record which is not admissible.

Examples:

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

For oral evidence to be admissible, it must be direct (Sn 60). As such, hearsay evidence is no
evidence. However, there are exceptions to this general rule

1) Res gestate (statements from part of some transaction: Section 6)

2) Admission and Confessions (Section 17 - Section 23 and Section 24 - Section 30)

3) Statement by a person who cannot be called as a witness (Dying Declaration. Section 32(1)

4) Evidence given in the former proceedings (Section 33)

5) Statements in public documents (Section 35)

6) Opinions of Experts (Section 45- Section 51); and

7) Entries in books of Accounts (Section 34)

Vijender v State of Delhi (1997): By-stander gave number of vehicle of the kidnapper. But court did not
accept this from the father of the kidnapped boy, as it was hearsay evidence.

Subramanya V KSRTC (1997): Oral agreement can be proved through testimony of witness in whose
presence the agreement was made
The reasons for exclusion of hearsay Evidence are as follows :
1) Hearsay Evidence cannot be tested by Cross-Examination.
2) It supposes some better evidence and encourages substitution of weaker for stronger evidence.
3) Hearsay Evidence is intrinsically weak.
4) The evidence is not given on oath or under personal responsibility by the original declarant.
5) It has a Tendency to protect legal investigation
6) As truth depreciates in the process of repetition, it is not reliable.
7) Its reception will increase opportunities for fabrication

Direct and Indirect (Circumstantial)

Direct Evidence:

Direct evidence proves a fact in issue without the aid of any inference or presumption. Eg: the scar
which shows the wound

Circumstantial evidence

Circumstantial evidence is proof from which the existence of a particular fact in issue may be inferred
or presumed. It is akin to probative evidence

Circumstantial evidence applies only in criminal cases

As per 133(4) of Evidence Act, circumstantial evidence can support finding of guilt only when:

1. There is one more than one circumstance

2. Facts from which the inference is derived are proven

3. The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt

It is essential the circumstantial evidence presented must constitute an unbroken chain which leads
one to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the
guilty person.

Guidelines in the appreciation of the probative value of circumstantial evidence

1. It should be acted upon with caution

2. All essential facts must be consistent with the hypothesis of guilt

3. The facts must exclude every other theory but that of guilt

4. The facts must establishes such a certainty of guilt as to convince the judgment beyond
reasonable doubt that the accused is the one who committed the offense

Mathew v State (1952): It is possible to convict a person solely on circumstantial evidence, but such
evidence should be conclusive and should lead to only one conclusion.
A C Lagu v Bombay (1960): Doctor poisoned his diabetic patient to death on a moving train, to usurp
her wealth. Conviction was solely based on circumstantial evidence. In Fr Benedict v State of Kerala
(1967), the trial court convicted the accused of rape and murder solely on basis of circumstantial
evidence, but High Court acquitted the accused as motive could not be proved and all hypothesis did
not lead to the same conclusion.

Positive vs. Negative Evidence

Positive-evidence

Affirms the occurrence of an event or existence of a fact

Eg: a witness declares he saw a fight or a murder

Negative Evidence

The evidence denies the occurrence of an event or existence of a fact. includes denials and alibi

Eg: The accused presents witnesses who testify that the accused was at their party when the crime
was committed. It

The general rule is that positive evidence prevails over negative evidence. Positive assertion is given
more weight over a plain denial.

Conclusive vs. Prima-facie Evidence

Conclusive Evidence

1. Evidence which the law does not allow to be contradicted eg: judicial admissions, fact a minor
cannot be sentenced for a crime,

2. Evidence, the effect of which overwhelms any evidence to the contrary Eg. DNA tests.

However, the admissibility of conclusive evidence depends on the law. For eg, law does not allow a
married couple to conduct DNA test to prove parentage unless it can first be proved husband did not
have contact with wife.

Prima Face Evidence

Evidence, which standing alone and uncontradicted, is sufficient to maintain the proposition affirmed,
until is has been disproved, rebutted or contradicted or overcome by contrary proof.

Cumulative and corroborative Evidence

Cumulative evidence
Additional evidence of the same kind bearing on the same point
E.g.: testimonies of several eyewitnesses to the same incident

Corroborative Evidence

Additional evidence of a different kind or character but tending to prove the same point. Evidence
which confirms or supports eg

1. Medical certificate which describe injuries to have been caused by a sharp pointed instrument
corroborates the statement that the accused used a knife to stab the victim

2. the positive results of a paraffin test corroborates the allegation that the person fired a gun

3. the ballistics examination on the gun of the suspect corroborates the statement that he fired his
gun at the victim

Proved, Not proved and Disproved

Proved -

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

Disproved -

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

Not proved -

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

Law of Evidence Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19, GOVT
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Presumptions
Presumptions are inferences which are drawn by the court with respect to the existence of certain
facts. When certain facts are presumed to be in existence the party in whose favor they are presumed
to exist need not discharge the burden of proof with respect to it. This is an exception to the general
rule that the party which alleges the existence of certain facts has the initial burden of proof but
presumptions do away with this requirement.

Presumptions of fact (May presume)

Presumptions of fact are inferences derived on the basis of experience and observations in the
course of nature or in the human mind

These presumptions are in general rebuttal presumptions. The courts have discretion to decide as to
whether a presumption is allowed to be raised or not.

In presumptions of fact , the court presumes that a fact is proved unless and until it is said to be
disproved before the court of law or it may call for proof of a fact brought before it.

Eg: Courts may presume that any message that was sent from a telegraph office was the same
message that reached whoever the message was intended for.

Courts may presume a man in possession of stolen goods under Sn 114 has knowledge goods were
stolen.

Presumption of law

Presumptions of law are those inferences which are said to be established by law. It can be
subdivided into rebuttable presumptions of law and irrebuttable presumptions of law

Rebuttal (shall)

Rebuttable Presumptions of law are those presumptions of law which hold good until they are
disproved by evidence to the contrary.

The court shall presume a fact as proved until it is disproved.

For example, if certified copies of official documents have been produced in support of the party’s
submission, the court shall presume the authenticity of these documents.

Non-rebuttal (conclusive)

Irrebuttable Presumptions of Law are those presumptions of law which are held to be conclusive in
nature. They cannot be overturned by any sort of contrary evidence however strong it is

For example, birth of a child during a couple’s marriage, shall be conclusive proof of the legitimacy of
the child unless it can be shown that the couple did not have access to each other at the time that the
child was conceived.

The general rule about burden of proof is that it lies on the party who alleges the fact to prove that the
fact exists. But a party can take advantage of the presumptions which are in his favor. If the
prosecution can prove that the conditions of a presumption are fulfilled and such a presumption is of
rebuttable nature then the burden of prove to rebut it is always on the party who wants to rebut it
Relevancy of Facts
Not everything holds value in the court of law, only certain events, physical or abstract that are
brought to court’s notice, through legal means, hold relevancy

if ‘A’ were to beat ‘B,’ with a club and an intention to cause his death, the following would form the
facts in issue:
• A’s beating B with the club
• A’s causing B’s death by such beating
• A’s intention to cause B’s death

The concerned facts in issue are to be only dealt with, during the trials and the rest are not relevant to
the court. If a suitor were to bring any new unrelated issue, it would neither be accepted nor be heard
in the later stage of the case.
In England judge accepts any evidence which is logically relevant. There are four notable exceptions,
or exclusions of fact which may be logically relevant but are not regarded as legally relevant
1. Evidence of similar facts
2. Hearsay evidence
3. Opinion evidence
4. Character evidence

In India, as per Sn 5 of Evidence Act, only those facts declared relevant by the act may be accepted as
evidence, and nothing else.
Sn 6 to 55 of Evidence Act lists facts which are relevant, and as such admissible.

Res Gestae (part of same transaction)

Relevancy of Occasion-Cause-Effect-Opportunity (OCEO)
Relevancy of Motive-Preparation-Conduct (MPC)
Relevancy of Introductiory facts – Identification Parade
Relevancy to prove conspiracy
Plea of Alibi
Relevancy of Similar Facts

Evidence may be given to prove fact-in-issue or relevant fact for all these categories.

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Res Gestae (Sn 6)

Res Gestae = facts which automatically or naturally form a part of the same transaction

Res Gesta is

“Facts

which though not in issue

are so connected with the facts in issue
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
Facts coming under Res Gestae may not be fact-in-issue, but become relevant due to their
association with main transaction.

Few Illustrations-

1. The cry of an in injured or wounded person.

2. The cry of witness on seeing a murder happening
3. The sound of a bullet being shot.
4. The cry for help by the person being attacked.
5. Gestures made by the person dying etc

Key Characteristics

The statements made or acts done has to be spontaneous and simultaneous to the main transaction.

They may be made or done before or after the main transaction, but the time gap has to be very little.
Where time gap is enough for fabrication or concoction, then statement or act shall not fall under
section 6.

The act of witness should be during the same time and same place where the offence was
committed

Ratten V. Queen (1872): Victim called the police for help but before operator could connect her to the
police, her call was disconnected. Later the police found her dead body from her house. The call
made to the police came under the purview of Res Gesate and defeated the accused husband’s
defence that he accidentally fired his wife.

Sawal Das V. State of Bihar.[1939] - The cry of the children from the house when their mother was
being killed by their father became a part of the same transaction and therefore fell under section 6
and became admissible as valid evidence.

Queen V. Abdullah.[1784]- The gesture made by the victim who was dying, that the accused had killed
her came under the purview of res gestae.

The Environment of Facts: Occasion-Cause-Effect-Opportunity (OCEO) (sn

7)

Occasion

In R v Richardson (Wills pp 225-29), the deceased girl was alone in her cottage and it was considered
to be an occasion for murder.
Cause

In Indian Airlines v Madhuri Chowdhry (AIR 1965 CAL 252), the report by an Enquiry Commission
relating to an air crash was held to be relevant as the cause of the accident.

Effects

This may include footprints or fingerprints on the crime scene or other such evidence which is left or
stays after the concerned incident.

Opportunity

In R v Donellan (1955 1 QB 388), the accused knew that the deceased take a certain medicine which
is administered by his mother, at certain intervals. The accused used this as an opportunity and
replaced the bottle of medicine with that of poison.

+Motive, Preparation and Conduct (MPC) (Sn 8)

Motive:

Facts which show a motive for any facts in issue or relevant facts are relevant. The only condition is
that the motive considered should be of the man who commits the crime.

In R v Palmer (1856): accused borrowed large sums of money from his deceased friend to pay his
dues. The deceased died because of poisoning in a hotel, after coming back from a race they both
attended. Since the accused had a strong motive to kill him, he was held liable.

Preparation:

Preparation in itself is no crime, but when accompanied with an offence committed thereof,

it becomes relevant. “A is tried for the murder of B by poison. The fact that, before the death of B, A
procured poison similar to that which was administered to B, is relevant.” Here, procuring of poison is
no crime but when the poison is administered to murder B, it becomes relevant.

Conduct

Conduct is taken as evidence because it is always guided, before or after, by what one has done. The
conduct should be such which is affected by the facts or affects the facts. It doesn’t include
statements until these statements are associated with conduct.

Identification Parade / Introductory Facts (Sn 9)

Facts will help in supporting, rebutting, explaining or introducing relevant facts are also relevant under
this chapter, for example, if a person is absconding soon after being accused of a crime, it is relevant
as conduct subsequent and affected by facts in issue.

In Sainudeen v State of Kerala (1992 Cr LJ 1644 Kerala), identification of the accused through his
voice was relevant under this section.
This section also covers test identification parades (TI parades). Its utility was explained by the
Supreme Court in Ramanathan v State of TN (AIR 1978 SC 1201) stating that the common and old
practice of lining-up suspects for identification by eye-witnesses or by the victim becomes essential
where the identity of the perpetrator is unknown.

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Plea of Alibi (Sn 11)

Alibi is a plea that a person charged with a crime was somewhere else when the crime was
committed.

It is used as a defence. If a person is successful in establishing a plea of alibi, he will be entitled to an

acquittal. Sn 103 places the burden of proof for alibi on the defendant, or the person making the alibi

Proof of alibi should be set up at the earliest stage of proceedings. Failure to do so would make it
unconvincing.

An uncorroborated evidence of alibi cannot be given importance/weight. Public documents generally

come to the help of defense in setting up the alibi

Surinder Grover vs State (1993): Proof that the accused was in the outpatient ward of a hospital is not
enough because there must be sufficient corroborative evidence and documentary evidence to the
satisfaction of the court.

Dudh Nath Pandey v State of UP (1981) Plea of alibi must be proved with absolute certainty, so as to
make the presence of accused at the crime scene, impossible.

Evidence to Prove Conspiracy

Whenever there is a reasonable ground to believe that two or more persons have conspired and a co-
conspirator says, does or writes something, the evidence is relevant on a condition that the act must
have a reference to their common intention. (Sn 10)

Evidence to Prove Existence of State of Mind, Boily feeling etc

Mens rea or intention forms an important ingredient of a crime and hence, plays a vital role in
determining the extent of liability of an accused. It leaves the finding out of mental or bodily feeling at
the discretion of the court since it is impossible to find out what a man is thinking. It could be found
out by other related facts and could help in proving intention, negligence or innocence. (Sn 14)

In Emperor v Wahiddin Hamiddin (1929) the Bombay high court held that tendency to commit thefts
could not prove an intention to commit dacoity or conspiring to commit dacoity. Previous convictions
are excluded as evidence under Section 54 of the act but if the same offence is repeated, again and
again, it may lay a ground for clearing the intention of the accused

Relevancy of Similar Facts (Sn 15)

The general principle is to exclude the evidence of similar facts or past prosecution. Relevancy of
similar facts is an exception in those cases where there is a striking similarity between the fact on
which the case is based and the fact of which the evidence is offered.

The clinching evidence is whether the similar event was a part of similar occurrences and in each, the
person concerned was executing the act.

R v Smith (1915): If you find an accident which benefits a person and you find that the person has
been sufficiently fortunate to have the accident happened to him a number of times, benefitting him
each time, you draw a very strong, frequently an irresistible inference, that the occurrence of so many
accidents benefitting him is such a coincidence that it cannot have happened unless it was designed.

Admissions and Confessions

Admission
'Admission' means "Voluntarily acknowledgment of the existence or truth of a particular fact"

As per Evidence Act, an admission is a statement

- in oral or documentary or contained in electronic form

- which suggests any inference as to any fact in issue or relevant fact

- which is made by the parties to a case or their agents, or any interested persons (Sn 17)

When is admission relevant?

Admission is relevant only if it is made by any of the person specified in the Act. An Admission is
relevant if it is made by:

1) A party to the proceeding;

2) An agent authorized by such party.

3) A party suing or being sued in a representative character

4) A person who has a proprietary or pecuniary interest in the subject matter of the suit

5) Other interested parties

Admission is relevant only if made in the circumstances mentioned in the Act.

1. The admission must be clear and unambiguous.

2. Only self-harming statements made during testimony constitute admissions.
3. Oral admissions as to the contents of a document are not relevant unless the party proposing
them shows that he is entitled to give secondary evidence of the contents of such document
(Sn 22)
 4. Admissions are not conclusive proof of the matters admitted, but they may operate as Estoppel
under the provision of this Act.
5. An admission is the best evidence against the party making the same. It constitutes
substantive evidence of the facts admitted by him.

Self-serving and self-harming statements

The statements made by parties during judicial proceeding are 'self regarding statements'. The self
regarding statements may be classified as either Self-serving statements or self-harming statements.

i) Self-serving Statements - Self-serving statements are those, which serve, promote or advance the
interest of the person making it. Hence they are not allowed to be proved. They enable to create
evidence for themselves.

ii) Self-harming statements- Self-harming statements are those which harm or prejudice or injure the
interest of the person making it. These self-harming statements all technically known as
“Admissions" and are allowed to be proved.

Admissions are relevant and may be proved as against the person who makes them (Sn 21)

Example: The question between A and B is, whether a certain deed is or is not forged. A affirms that it
is genuine, B affirms that it is forged. A may prove a statement by B that the deed is genuine, and B
may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that
the deed is genuine nor can B Prove a statement by himself that the deed is forged.

'A' the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was
taken out of her proper course. A produces a book kept by him in the ordinary course of his business
showing observations alleged to have been taken by him from day to day, and indicating that the ship
was not taken out of her proper course. A may prove these statement, because they would be
admissible between third parties.

A is accused of a crime committed by him at Calcutta. He produces a letter written by him and dated
at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the
letter is admissible.

A is accused of fraudulently having in his possession counterfeit coin which he knew to be

counterfeit. He offers to prove that he asked a skillful person to examine the coins as he doubted
whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may
prove these facts

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Confession (Sn 24 to 30)
Confession is a statement made by an accused person which is sought to be proved against him in
criminal proceeding to establish the commission of an offence by him
Confession is a species of admission, but not all admissions are confessions.
A statement merely suggesting a person ay have committed the crime is not confession. Thus, an
admission the accused is owner of knife is not a confession. Only an admission the owner of the
knife used it to stab the victim is a confession.

The three essential features of a confession are:

1. It should be clear
2. It should be unambiguous
3. It should be specific.
This holds true for retracted confessions also.

The five elements that vitiate confessions are

1. Threat, inducements or promise
2. Deception
3. Drunkedness - Evidence Act does not make drunkedness an invalidating element.
4. lack of warning - if warning is not given, relevant confession becomes irrelevant confession.
5. Confessions extracted out of interrogation - when the person answers questions that need not
have been answered.

A confession can be retracted anytime. Nowhere in the Indian Evidence Act is it stated that a
confession cannot be retracted.
Any second confession (which can be a retraction) invalidates the first confession. However, for the
second confession to hold good, the judge should be convinced of the reason for the change.

The "rights based approach" in vogue with the increasing importance given to human rights means
the second confessional statement, earlier at times mostly regarded as an afterthought, is now given
its due importance.

Judicial Confessions

A confession recorded by the magistrate according to law shall be presumed to be genuine (Sn 80). It
is enough if the recorded judicial confession is filed before the court. It is not necessary to examine
the magistrate who recorded it to prove the confession.

When more than one person is being tried jointly for the same offence, and a confession made by one
person affecting himself and some other such persons is proved, the court may apply it against the
others as well. (Sn 30).

A confessional statement made voluntarily by the accused before a magistrate is a substantive piece
of evidence and the accused can be convicted on the basis of it. It is enough that the general trend of
the confession is substantiated by some evidence which would tally with the contents of the
confession. General corroboration is enough.

Extra-judicial Confession

1.Confession made to a police officer – not admissible under Section 25.

2.Confession made in police custody – not admissible under Section 26.

3.Confession Made to any third person neither to police officer, nor in custody and not to magistrate -
relevant if proved admissible. (it has evidentiary value depending upon the corroboration of it. Per se
an extra judicial confession cannot be a ground of conviction)

These confessions made by an accused person is irrelevant in a criminal proceeding, if such

confession appears to the Court to have been caused by any inducement, threat or promise (Sn 24)

To attract the prohibition enacted in Section 24 the following facts must be established:-

•That the statement in question is a confession,

•That such confession has been made by the accused,

•That it has been made to the police officer investigating the case. Customs officers, Railway
protection Force etc are not police officers and confessions to them do not attract this provision.

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

•Such inducement, threat or promise must have reference to the charge against the accused,

Confession made by any person while in custody of a police officer, unless made in the immediate
presence of a Magistrate has no evidentary value Sn 26). The TADA and POTA had given powers to
the SP of Police to record confessions. However, the Indian Evidence Act gives no scope to police
officers to record confessions.

Confessions made before a customs officer are valid confession, as customs officer are not regarded
as police officer as per Indian Evidence Act.

Confessions made before excise officer is not valid, as excise officer has power to investigate, and
hence is regarded as a police officer.

In Raja Ram v State of Bihar, the court established a litmus test that any officer who has the power to
investigate (eg: excise officer) is a police offer and hence confessions made before them are not
valid. Of an officer does not have power to investigate, he/she is not regarded as a police officer, and
hence can record confessions.

If the confession of the accused is supported by the discovery of a fact then it may be presumed to
be true and not to have been extracted. (Sn 27). Such statement made by accused while in police
custody is valid only if it satisfies the following conditions

It should be made voluntarily

It should disclose a fact relevant to the crime

The said fact should be discovered in consequence to the information so furnished

The fact so discovered should be deposed by witnesses

Extra-judicial confession is a weak piece of evidence, and must be received with great care and
caution. It can be relied upon only when it is clear, consistent and convincing.

State of MP Vs. Paltan Mallah (2005): SC opined extra judicial confession is a good piece of evidence
but it has to be pass through a stringent test of corroboration and proof. It cannot be sole basis of
conviction.

Prakashyan v State of Kerala (1989): acceptance of extra-judicial confession depends on the nature
of circumstances, time when confession was made, and credibility of witness.

R. v. Lester: Accused, while being taken in a tonga by a police constable, confessed to the tanga-
driver that he committed the crime. The police officer was absent at that time. confession was held to
be in police custody as the accused was in the custody of constable and it made no difference of his
temporary absence.

Pandu Rang Kallu Patil v. State of Maharashtra: Sn 25 and 26 imposed a complete ban on
admissibility of any confession made by accused either to police or to any one while in police
custody. But as per Sn 27, the ban would be lifted if the statement is distinctly related to discovery of
facts.

Kehar Singh v State of Punjab: The provision of TADA that SP of Police could record confession was
challenged. However, SC did not allow it, saying TADA is a totally different act, for a totally different
circumstances, compared to the normal.

Sitaram v State of UP: Supreme Court held that letter admitting crime reflects involvement in a crime.
AS such, a lette is relecvant as a confession, even though it is not per se a confession statement.

Part-exculpatory and part-inculpatory

Confessional statement normally have two components:

(a) The sentences which amount to a direct confession of the guilt and

(2) Other sentences in the confession which are not a direct admission of the guilt but which are
admissions of surrounding incriminating circumstances

If a statement is made by the accused in which there are some admissions of incriminatory
circumstances in that statement coupled with some exculpatory circumstances. Then the
exculpatory part can be removed and the inculpatory may be used as an admission.

Kottaya v Emperor (1947): Part of the statement of accused which led to discovery of weapons held
as valid. The other part, which resulted in admission of guilt was not admitted, as it was self-
incriminatory and outside scope of Sn 27.
In Agnoo Nagesia case: SC held a confessional statement has to be read in totality and whole FIR will
be hit unless some portion of it is exculpatory (but Section 27 will apply and the discovery statement
will be admissible).

Retracted Confessions

A retracted confession is a statement made by an accused before a magistratye by which he admits

to have committed the offence, but which he repudiate at the trial.

Once the earlier confession has been proved to be voluntary then retraction will not work.

Pyare Lal Vs. State of Assam (1957): Retracted confession may still be used as a basis for
conviction. Its corroboration would be a matter of prudence and not of law.

Admission and confession-Difference

Confession Admission

a statement made by an accused person which is

sought to be proved against him in criminal proceeding usually relates to civil transaction
to establish the commission of an offence

Admissions are not conclusive as to

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

Admissions may be used on behalf of

Confessions always go against the person making it the person making it under the
exception of section 21

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

admission is statement oral or written

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

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Dying Declaration
A dying declaration is testimony that would normally be barred as hearsay but may be admitted as
evidence in criminal law trials because it constituted the last words of a dying person. The rationale,
accurate or not, is that someone who is dying or believes death to be imminent would have less
incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.
The principle originated in “Nemo moriturus praesumitur mentiri” — "no-one on the point of death
should be presumed to be lying".

However, dying declaration, though admissible, is not good evidence. Several factors could
undermine the reliability of dying declarations.
- Physical or mental weakness consequent upon the approach of death
- victim may be in the influence of drugs
- a desire of self-vindication
- disposition to impute the responsibility for a wrong to another
- no opportunity for cross-examination

Dying declarations are allowed as evidence in Indian courts if the dying person is conscious of his or
her danger, he or she has given up hopes of recovery, the death of the dying person is the subject of
the charge.

As per Sn 312(1), the statement given just before the death and statements given before and which
explains the cause of death are regarded as dying declaration. A person who is conscious and knows
that death is about to happen and making a statement about the reason of his/her death will be
admissible in the court.

Dying declaration should ideally be in question and answer form, but can be in a narrative way also.
Gestures and signs can form dying declaration even when the victim does not speak a word. In
Nirbhaya case 2013, SC said a dying declaration should not necessarily be made by words or in
writing and it could be through gestures.

The most reliable dying declarations made

When victim is examined to be in a fit condition to make the declaration

Recorded by the magistrate

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded. The first was recorded
by the doctor when she was admitted to the hospital, the second was by SDM during which she gave
exact details of the crime and the third one was recorded by a metropolitan magistrate and was
mostly by gestures. All these were accepted.

SC held multiple dying declarations can be relied upon without corroboration if there is consistency in
all the dying declaration. If all the dying declarations are similar to each other than it can be
admissible. But if the dying declaration is different from each other than the court will examine the
facts of the case or can examine the statement of other witnesses to ascertain the truth of the case.

In Pakala Narayan Swami v Emperor[1947], it was held that the letter given by the deceased to his
wife before going to the place where he was killed was relevant. The court said that the statement
made must be at any rate near death or the circumstances of the transaction explaining his death is
relevant under section 32

Expert Opinion (Sn 45)

Opinions of experts are relevant on

questions of foreign law,

science,
art,
identity,
handwriting or finger impressions.

Expert testimony is admissible on the principle of necessity, when the question involved is beyond the
range of common experience or common knowledge or where the special study of a subject or
special training or skill or special experience is called for.
Section 45 is an exception to the general rule that only the opinion of the judge matters.
The opinion of an expert is only of corroborative value, to the facts and circumstances of the given
case. It does not have an upper hand over eye witness or other direct evidences.

Prerequisites of an expert evidence

The subject is such that expert testimony is necessary.

The witness in question is really an expert. An expert is a person who is especially skilled and/or
has special knowledge in a given field, By having devoted time and study to a special branch of
learning. If a witness is not proved to be an expert, his opinion will become irrelevant
The witness must be subject to cross-examination. His credit can also be challenged by the
contrary evidence of another expert

Forest Range Officer v. P.Mohammad Ali: Expert opinion is only the opinion evidence. The mere
opinion of an expert cannot override the positive evidence of the attesting witness. Expert opinion is
not necessarily binding on the Court.

Relevancy of Character (Character Evidence)

Relevancy of Character Evidence in Civil Case

The general rule in civil cases is that a person’s character is irrelevant (Sn 52). This principle was laid
down in 1791 in Attorney General v. Bowman, where the defendant was tried in a civil case for
keeping false weights and for offering to corrupt an officer. He called a witness to testify that he was
a man of good character and conduct. The judge refused to admit the evidence as it was a civil suit.

Relevancy of Character Evidence in Criminal Cases

As per section 53 of Evidence Act, in criminal cases, the fact that the person accused is of a good
character is relevant. Thus every accused person can give evidence of the fact that he is a man of
good character.
However, evidence of character is irrelevant in rape cases. The evidence of the character of the victim
or her previous sexual experiences with any person is irrelevant to prove consent. (Sn 53A) – 2013
amendment after Nirbaya case.

Previous bad character of accused is non-conclusive proof (Sn 54). However, the exceptions to this
rule are:
1. In cases where the fact in issue is the bad character of the person (eg divorce cases, dowry
harassment cases)
2: Where a previous conviction is relevant as evidence of bad character.
3. To assess damages, especially in defamation cases (Sn 55). Evidence of bad character of the
plaintiff may be given to mitigate the extent of damages, but evidence of good character may not be
given in order to increase the extent of liability.

Bhagwan Swaroop v State of Maharashtra (1965): Character evidence cannot outweigh positive
evidence regarding guilt of a person

+Obvious Facts (Facts which need not be proved)

As a general rule, the party who wishes the Court to believe in the existence of a fact, must prove it.
However, exceptions to this general rule are provided under Chapter III (Sn 56 to 58)

Facts which the court is capable of taking judicial notice need not be proved. This includes:

1. All laws in force in the territory of India;

2. Articles of War for the Indian Army,Navy of Air force;
3. The divisions of time, the geographical divisions of the world, public festivals, facts and
holidays notified in the Official Gazette;
4. The territories under the dominion of the Government of India;
5. The names of the members and officers of the Court
6. The rule of the road, on land or at sea.

Facts Admitted need not be proved (Section - 58)

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Public and Private Document

Private Document (Sn
Public Document (Sn 74)
75)
 Documents forming the acts (i) of the sovereign authority, (ii) of All other documents are
official bodies and tribunals, and (iii) of public officers, legislative, private.
judicial and executive, of any part of India or of the Commonwealth,
or of a foreign country; (2) Public records kept in any State of private
documents.

Private documents are

Public documents kept in the custody some special authority. kept in the custody of
some private persons

It is created / prepared
out of an agreement
It is prepared by a Public Servant under authority of the state
between the parties
concerned

Certified copies of
Certified copies of the Public documents may be issued to a person Private documents may
requiring them. be issued, it can also be
confidential.

Certified copies of
Private document
Certified copies of Public Document can be received in evidence cannot be taken in
without proof. evidence without proof
of the original
document.

Ancient Document
If a private document, which is thirty years old or more, is produced from proper custody, and is, on
the face of it, free from suspicion, the Court may presume that it has been signed or written by the
person whose signature it bears or in whose handwriting it purports to be, and that it has been fully
attested and executed, if it purports so to be.

Documents are said to be in proper custody if they are in the place in which, and under the care of the
person with whom, they would naturally be.

Burden of Proof
Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of "burden of Proof".

Burden of proof is the obligation to prove a fact.

It is a fundamental principle of criminal jurisprudence that guilt of accused is to be proved by the

prosecution, and an accused should be presumed to be innocent.

Burden of Proof is on those who make the allegation

In civil proceedings the party who makes the allegation must prove his case, but proving beyond
doubt is not necessary. In criminal cases the guilt of the accused is to be proved beyond reasonable
doubts otherwise the accused gets benefit of doubt.

Jarnail Sen vs State of Punjab (1996): SC held the burden of proving of the guilt of the accused
beyond all reasonable doubt always lies upon prosecution, and therefore if it is fails to adduce the
satisfactory evidence to discharge the burden, it cannot fall back upon evidence adduced by the
accused person in support of their defence.

However, this general rule is subject to exceptions.

The burden of proof lies upon the party whose case would fail. if no evidence
is given on either side (Sn 102).

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side. (Sn 102)

For eg,

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of
C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession.
Therefore, the burden of proof is on A.

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

Triro vs Dev raj (1993): There was a delay in filing the suit, and the defendant took a plea of limitation
period. The burden of proving that the case was within prescribed limit was on the plaintiff.

Burden of proof as to particular fact (Sn 103)

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its
existence.

Eg: A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must
prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere
(albi). He must prove it.

The burden of proving any fact necessary to be proved in order to enable any person to give evidence
of any other fact is on the person who wishes to give such evidence. (Sn 104). Eg: A wishes to prove
a dying declaration by B .A must prove B’s death; B wishes to prove, by secondary evidence, the
contents of a lost document. A must prove that the document has been lost.

Other exceptions

When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the General Exceptions in the Indian Penal Code is upon the
 accused. Eg: If A, accused of murder, alleges that, by reason of unsoundness of mind, he did not
know the nature of the act, the burden of proof is on A. (Sn 105)
When any fact is specially within the knowledge of any person, the burden of proving that fact is
upon him (Sn 106). Eshwarai vs Karnataka (1994): Where a man and woman were found hiding
under the bed in a bedroom of the person who was lying dead of injuries the of proof lies upon
them to explain their presence and also the circumstances in which the deceased met his death.
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty
years, the burden of proving that he is dead is on the person who affirms it (Sn 107)
When the question is whether a man is alive or dead, and it is proved that he has not been heard of
for seven years by those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it. (Sn 108)
Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent
is on the one who affirms it (Sn 109)
Whether any person is owner of anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who affirms that he is not the owner (Sn 110)
If a married women commits suicide within seven years from the date of her marriage, and if it is
proved her husband or relative had subjected her to cruelty, the court may presume such suicide
had been abetted by her husband or by such relative of her husband. The burden of proof shifts to
husband to prove otherwise. (Sn 113A)

Presumption of Certain facts

The Court may presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct and public and private business,
in their relation to the facts of the particular case. (Sn 114)

For eg,

a man who is in possession of stolen goods after the theft is either the thief or has received the
goods knowing them to be stolen
That the common course of business had been followed in particular cases;
Under Environmental Law, under the precautionary principle, the burden is on the hazardous
industry to prove that it has not violated any environmental norms when it undertakes a project.
A women in a rape case making an accusation of rape is a victim of rape

The onus is on the accused to prove otherwise in these cases.

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Estoppel (Sn 115, 116, 117)

Estoppel means stopped, or a person not allowed or permitted to speak contrary to his earlier
statement. The objective is to prevent commission of fraud against another. The doctrine of Estoppel
is based on the principle of equity. It would be most inequitable and unjust if one person is allowed to
speak contrary to his earlier statement

As per Sn 115, when one person has by his declaration, act or omission intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, he shall not be
allowed to deny such thing.
The principle of estoppel is a rule which prevents a person from taking up the inconsistent position
from what he has pleaded or asserted earlier.
Eg: A leads 'B' to believe (falsely) that certain land belongs to A, and thereby induces B to buy and pay
for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground
that, at the time of the sale, he had no title. He must not be allowed to prove his want of title

Conditions for Application of Doctrine of Estoppel -

For the application of the doctrine following conditions have to be satisfied -

1) There must be a representation made by one person to another person.

2) The representation must have been made as to fact and not as to law.

3) The representation must be as to an existing fact.

4) The representation must be intended to cause a belief in another.

5) The person to whom the representation is made must have acted upon that belief and must have
suffered a loss.

Estoppel of tenant:
No tenant / licensee of immovable property shall be permitted to deny that the landlord had a title to
such immovable property at the beginning of the tenure. (Sn 116)

Rajesh Wadhwa vs Dr.(Mrs) Sushma Goyal (198): Lease deed executed by land lady's father on behalf
of the landlady. Eviction petition by father under power of attorney of the landlady. The tenant was
estopped from taking the plea that the land lady's father was not duly constituted attorney to file the
eviction petition.

If a person gives rights under a statute, and he gives them up at one stage voluntarily and, later on,
tries to enforce those rights, no estoppel can be invoked against him. For example, under the rent
control act, the landlord can demand from his tenant only a fair/standard rent. If a tenant agreed to
pay a high rent and thereafter files a petition for fixing the fair rent, he wouldn’t be estopped.

Estoppel of acceptor of bill of exchange, bailee or licensee (Sn 117)

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw
such bill or to endorse it. A bailee shall not be allowed to deny his bailor or licensor had authority to
make such bailment or grant such license.
Ambika Prasad Mohanty Vs Orissa Engineering College (1989): Plea was against cancellation of
admission of student admitted in private Engineering College after the selection. The cancellation of
his admission was on the ground that he had not secured minimum marks in the qualifying
examination as prescribed in college prospectus. The university regulation does not prescribe any
minimum marks for eligibility for admission to the engineering college, and hence college estopped
from canceling the admission.
Univ. of Madras v. Sundara Shetti (1965) the university was estopped from claiming that a student
had not actually passed, but that his mark sheet contained a mistake.

Difference between legal estoppel and promissory (equitable) estoppel

Promissory estoppel, also known as “equitable estoppel’ differs from the estoppel as described in Sn
115 in that sn 115 is for an existing fact, while promissory estoppel relates to a representation of
future intention. But it has been accepted by the Supreme Court as “advancing the cause of justice. if
the promise is made in circumstances involving legal rights and obligations it is only proper that the
parties should be enforced to do what they promised.

There was news in the papers that the State of U.P. would grant exemptions from sales tax for 3
years to new industrial units. The Petitioner wanted to set up a Vanaspati Plant. He applied to the
director of industries and the chief secretary, and both confirmed the availability of the exemption.
The petitioner contended that the government should be estopped from going back upon the
declared exemption. The Supreme Court allowed the petition, holding that the government was bound
by its declared intention or promise.

However, a mere promise to make a gift will not create an estoppel. It would require a clear and
unequivocal promise to import the doctrine into a matter.

Estoppel is no bar to law

The Supreme Court has laid down that it is well settled that there cannot be any estoppel against the
Government in the exercise of its sovereign, legislative and executive functions.

Where a local development authority announced a housing scheme and accepted applications under
it, subsequently finding that the scheme was in violation of the Master Plan cancelled it. It was held
that to be free to do so without any shackles of promissory estoppel.

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Examination
Chapter X of Evidence Act, 1872 (Sn 136 to 166) deals with examination and cross examination of
witnesses.

The Magistrate has to take all witnesses produced by the prosecution. He cannot acquit the accused
after taking only a part of prosecution witness.
However, the prosecution need not examine all witnesses interrogated by the investigating officer
during investigation and included in FIR.
Dharmarajan v State of Kerala (2002) (Suryanelli vase): Only 12 out of the 42 witnesses were
examined. This was challenged in HC, who opined it was not necessary to examine all witnesses
listed in the schedule given by the defense, if the court is convinced examining everyone will only
unnecessarily delay the case.

Examination of witness in court takes place in three stages

1. Examination-in-chief: The examination of a witness who calls him.
2. Cross-Examination: Examination of the witness by an opposite party
3. Re-Examination: Examination of a witness subsequent to Cross- examination

EXAMINATION-IN-CHIEF
The examiner tries to gather all material evidence known to the witness, pertaining to the case

As a general rule leading question are not allowed. But this is subject to exemptionat the discretion of
the presiding judge. Leading questions may especially be asked to put the witness at ease or to
clarify a known and undispitable fact (eg: isn’t your name X)

Leading question=Any question suggesting a answer which the person putting it wishes or expects to
receive (Sec. 141).

CROSS EXAMINATION
Objective of cross-examination is to

- impeach the accuracy, credibility and general value of the witness

- detect and expose discrepencies, errors, omissions, contradictions and improbabilities

- elicit suppressed fact which suipport case of cross-examining partty

In cross examination, the truthfulness of the witness is challenged by asking questions about his
status in life, his previous conduct, his previous conduct of conviction etc. There are no fix questions
for cross-examination. Questions to cross examine a witness varies from case to case. Everything,
including age, position, status, expression in court, experience, qualification and expertise etc. are the
subject to cross examination. A smart cross-examiner changes the questionsas per the response of
the witness on the spot.

If such points are not raised at this stage, there is no furrther opportunity to do so.

P Ghosh v Asim Kumar Gupta (2003): If witness refuses to appear for cross examination, the
evidence loses its credibility. However, if the opportunity for cross-examination is noty used, it does
not damage credibility.

The Magistrate may at his discretion

- not allow irrelevant questions

- permit for cross-examination to be deferred until any other witness or witnesses have been
examined
- Leading questions may be asked in cross-examination
- Omission to state a fact amounts to contradiction. It is the courts discretion to admit or disprove
such statement
- Objective of cross-examination is not to create discomfiture or humiliate the witness. However, if
such questions are relevant to the case, the witness may be compelled to answer (Sn 147)

Dilbhagan Singh v State of Punjab (2004): It is not permissible to put questions to a prosecutrix
pertaining to her general character when the petitioners requested to screen blue film of the
prosecuterix indulging in sexual acts (Cross-examination in a raper case; Sn 146)

The prosecution can cross-examine his own witness when he turns hostile (Section 154) and makes
a statement against the party who calls him. During such cross-examination, leading questions may
be asked. Such cross-examination can be held only with permission of the court.

RE-EXAMINATION
During re-examination it is not possible to put any additional or new questions, without the court’s
consent. Only clarifications on questions asked during chief examination and cross-examination are
allowed.

The re-examination can be made to explain a matter stated in Examination-in-chief and if some new
matter is narrated in Re-examination the adverse party can again cross examine about new matters.

GENERAL PROVISIONS
All witnesses take oath
The testimony is in question-answer form
The evidence of each witness, during examination is to be recorded by the Magistrate in writing or
by his dictation in open court. The magistrate may record the evidences in a manner of his choice.
The evidence shall also be signed by the Magistrate which also forms an essential part of the
record
The testimony of the child witness is normally not believed without corroboration because he can
be tutored. But testimony of an adult man , if reliable, is sufficient to convict an accused.

Use of character evidence is allowed to establish a character of a party. Such witness is subject to
cross-examination and re-examination (Sn 140)

Any witness about to make a statement regarding content of a document, the adverse party may
raise an objection to stop evidence from being given until such document is produced (Sn 144).

HOSTILE WITNESS
A hostile witness ss a witness who is not desirous of telling the truth at the instance of the party who
calls him/her.
When a witness gives evidence against the party who calls him/her, the party may ask the court to
declare him/her as a hostile witness. The party can then cross-examine such witnesses.

Kehar Singh v State (1988): The testimony of a hostile witness need not be washed off entirely. The
court can still rely on parts of his/her testimony which supports the prosecution case.

D Dipu v State of Gujarat (2013): The testimony of a hostile witness, if found dependable on scrutiny,
may be relied upon by prosecution as well as by the defence.

Law of Evidence Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19, GOVT
LAW COLLEGE, EKM(KOCHI)

Competency of Witness
Competence is the legal ability to give evidence. For a person to be called as witness he must be
someone considered in law as fit and proper. This is a condition precedent for giving tetsimony in
court.
The general rule is that in criminal and civil proceedings, every person is presumed to be competent
to give evidence.

Sn 118 of Evidence Act describes who is a competent witness. A competent witness is someone who
can understand questions put forth to them and give rational answers

A witness may not be competent when

1.The witness is unable to express himself in any way which the court can be made to understand
(child and elderly)
2.The witness is incapable of telling the truth, on grounds of being mentally unsound.
3. The witness suffers from some disease

The key considerations to determine competency when such objections arise is

1. Can the witness understand the question put before them
2. Can the witness comprehend and give pragmatic and rational answers to the same
3. Can the witness make the “Voir dire Test”: ‘Oath to tell the truth’
It is the discretion of the court to prevent any person from testifying as a witness based on these
considerations. Children and lunatics are competent witness if they pass these tests. Children under
12 years are also not required to make oath under Oaths Act.

Suresh v. the State of U.P established that a testimony from a 5-year-old child shall also be
admissible, so long as the child is able to comprehend and understand the question of the given
issue.

Compellability
Compellability is the obligation imposed on a competent person to attend the court as a witness and
give answers to the question raised.
While every man is a competent witness not every man is a compellable witness (everyone cannot be
forced to answer all questions). Also, while every compellable witness is competent not every
competent witness is compellable.

Any compellable witness who refuses to answer lawful questions can be punished for contempt of
court.

As per Sn 147, every witness shall be compelled to answer any question relating to the case. AS per
Sn 148, if any question is not relevant to the suit or proceeding, (but affects the credit or injures the
character of the witness ) court has the power to decide when a question is to be asked, and whether
a witness is compelled to answer such question. In effect, Sn 148 protects the witness against
improper cross-examination. Sn 149 forbade asking witness any questions without reasonable
grounds.
As per Sn 151, the court may prohibit indecent and scandalous questions unless it relates to fact-in-
issue, and witnesses may not be compelled to answer such questions. Likewise questions intendef
tyo insult or annoy may noty be answered (Sn 152).
The rule of self-incrimination, where no man needs to be a witness against himself also applies.
However, this is not an excuse to withhold facts which occur in the normal course of transaction.

Privileged Communication
The privilege of a witness means the right of a witness to withhold evidence to disclose certain
matters.

There are certain circumstances in which certain persons are not compelled to testify (to give
evidence). Sn Section 122 to Section 132 of Indian Evidence Act 1872 provide for privileged
Communications.

Judicial conduct: No Judge or Magistrate shall be compelled to answer any questions as to his
own conduct in Court (except without a special order of superior court) but he may be examined
as to other matters which occurred in his presence whilst he was so acting.(Sn 121). For eg, A, on
trail before the Court of Session, cannot compel B, the magistrate to say if a deposition was
improperly taken.
Communication between Spouses: Married persons shall not be compelled to disclose any
communication made between spouses (Sn 122).

This privilege continues even after they are divorced The privilege ends if the communication reaches
the hands of a third-party.

Affairs of state
Official communications
Professional communication

Notes on Evidence Act, 1872

compiled by Nayab Naseer

A project of Excellency Club, SFI & Students Union 2018-19, Govt. Law
College, Ernakulam
page revision: 6, last edited: 16 Sep 2019, 00:00 (1082 days ago)

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