Book Preview - Q and A Evidence-1

Q & A: Indian Evidence Act
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Volume 2
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Samarth Agrawal
LL.M, NET/JRF
Former Judge (U.P. Judicial Service)
Samarth Agrawal Books 1

First Edition : 2022
Published by
Samarth Agrawal Books
7R/5, Kailashpuri Colony, Tashkant Marg
Civil Lines, Prayagraj-211001
e-mail : samarthagrawalbooks@gmail.com
website : www.samarthagrawalbooks.com
For Sales and Distribution contact: - 7905723822
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 All Rights Reserved with Publisher
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ISBN : 978-81-956155-7-5
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MRP : Rs. 260 (Rupees Two Hundred Sixty Only)
Samarth Agrawal
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LL.M, NET/JRF
Former Judge (U.P. Judicial Service)
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Disclaimer
Due care has been taken while compiling, editing and printing this book to avoid any error or omissions.
Neither the author nor the publisher of the book holds any responsibility for any mistake that may have
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inadvertently crept in. They also take no responsibility for any loss or damage caused to any person on
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account of any action taken on the basis of the book. The publisher shall not be liable for any direct,
consequential or incidental damage arising out of use of this book. Any mistake or discrepancy noted
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may be brought to our notice which shall be taken care of in the next edition.
Explanations, guidance and references must not be taken as having authority or having binding nature.
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For authoritative text kindly contact the concerned department or official publication. Kindly contact
the concerned department for official papers. In case of any binding mistake, misprints or missing pages
the publisher's entire liability is limited to replacement of the book within one week of purchase by
similar edition/reprint of the book upon production of original invoice of purchase.
All disputes are subject to the courts of Prayagraj jurisdiction only.
Printed by
Amar Mudranalaya
Prayagraj
2 Samarth Agrawal Books

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This book contains Questions and Answers which have
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been previously asked in Civil Judge/HJS/APO Mains
Examinations of various States and as well as in semester
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examination of LL.B curriculum of various universities. The
questions and answers have been arranged in a chapter-wise
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format for convenience of students.
This book is extremely useful for aspirants who are preparing
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for Civil Judge/HJS/APO examinations as well as students who

are pursuing LL.B course and are preparing for semester
examinations.
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Contents
1. Preliminary .............7
2. Relevancy of facts ...........22
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3. Admissions ...........55
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4. Confessions ...........63
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5. Dying Declaration ...........87
6. Relevancy of Judgments
7. Opinion of expert
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.........103
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8. Relevancy of character ..........111
9. Facts which need not be proved ..........116
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10. Oral Evidence ..........119

11. Documentary Evidence .........123
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12. Presumptions .........134

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13. Exclusion of oral evidence by documentary evidence .........137

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14. Burden of proof .........145

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15. Estoppel .........161

16. Witnesses .........168
17. Accomplice .........171
18. Privileged communications .........174
20. Examination of Witness .........184


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1 Preliminary
Q. : Write notes on Fact in issue. Illustrate your answer
A. : Section 3 of the Act provides the definition of fact in issue. It means and
includes any fact which either by itself or in connection with other facts goes on to
prove or disprove the existence, non-existence, nature or extent of any right, liability
or disability, asserted by one party in a suit or proceeding and denied by the other.
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Thus, facts in issue are those facts which are in dispute. These are those facts
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which are asserted by one party and denied by the other. These are those facts the
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adjudication of which results in disposal of the case.
For example, A was murdered by B. In such a case the fact in issue will be, (i)
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Whether B killed A; (ii) Whether B had intention to kill A; (iii) Whether the act of B
comes under any of the General exceptions provided under Chapter IV of I.P.C.
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A sues B for breach of contract. In such a case the fact in issue will be (i) Whether
there was a contract between A and B or not; (ii) Whether B breached the terms of
the contract or not.
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Q. : What is 'fact'?
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A. : Section 3 of the Act defines fact. It means and includes:

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(i) Anything, state of things or relation of things capable of being perceived by

senses
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(ii) Any mental condition of which any person is conscious,

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Thus, according to the definition of fact under Section 3 fact is of two kinds-
physical facts and psychological facts. Physical facts are those facts which can be perceived
by senses, forexample- a man heard or saw something is a physical fact whereas
psychological facts refer to any mental condition of which any person is conscious,
for example- a man holds a certain opinion is a psychological fact. Supreme Court in
H.P. Admn. v. Om Prakash, (1972) 1 SCC 249 also held that facts include not only
physical facts but also psychological facts or mental facts.

Q. : What is 'Relevant fact'. Differentiate between 'Fact in issue” and

'Relevant Fact'
A. : According to Section 3 of the Act one fact is said to be relevant to another

when the one is connected to the other in any of the ways referred in the provisions
of this Act relating to relevancy of facts.
Section 3 does not give a clear definition of relevant fact but only states that one
fact is relevant to other when one is connected to the other in the manner provided
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under Sections 6 to 55 of the Act. In simple words, relevant facts are those facts
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which are not themselves in issue but they are so connected with fact in issue such that
they assist in getting at the truth or falsehood of the fact in issue. The most universal
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and obvious rule of evidence is that the evidence adduced should be alike directed
and confined to the matters which are in dispute.
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Section 5 of the Act clearly states that in any suit or proceedings evidence may
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be given of facts in issue and relevant facts and of no others. According to Stephen, it
has a certain degree of probative value in it.
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For example, A is tried for the murder of B. At A’s trial relevants facts are; A
borrowed Rs 10,000 from B; A invited B for dinner; A and B were last seen together;
A died by poisoning.
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Difference between fact in issue and relevant fact

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(i) A fact in issue is that fact which either by itself or through connection with
other facts goes on to prove or disprove the existence or non-existence of a
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right or liability whereas a relevant fact is that fact through which fact in issue
is proved or disproved.
(ii) A fact in issue is called the “principal fact” or factum probandum whereas a
relevant fact is called the “evidentiary fact” or factum probans.
(iii) Fact in issue is asserted by one party and denied by the other whereas relevant
facts are the basis of inferences made in respect of fact in issue.

Q. : What is presumption?
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What are the different kinds of presumptions?
A. : The term ‘presumption’ has not been defined in the Indian Evidence Act.
Presumptions are inferences which are drawn by the court with respect to the existence
of certain facts. Under it the court presumes the existence of certain facts on the basis
of certain other proved facts. It is a rule of law which the courts draw inference from
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a particular fact unless and untill such inference is disproved.
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When certain facts are presumed to be in existence the party in whose favor they
are presumed is not required to prove its existence. This is an exception to the general
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rule that the party which alleges the existence of certain facts has the initial burden of
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proof to prove it but presumptions do away with this requirement.
In Pratap Singh v. Shiv Ram, (2020) 11 SCC 242, Supreme Court held that
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presumption makes a prima facie case for a party in whose favour it exists. The rules of
presumption are deduced from enlightened human knowledge and experience. They
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are drawn from connection, relation and coincidence of facts and circumstances.
Kinds of Presumption
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(i) Presumption of fact

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(ii) Presumption of law [Rebuttable and Irrebuttable]

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(iii) Mixed presumption of fact and law.

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However, the Indian Evidence Act recognizes only presumption of fact and
presumption of law.
Presumption of fact [May Presume]
Section 4 of the Act defines 'May presume'. It states that where the Act declares
that the court ‘may presume’ a fact, the court may either presume that fact unless and
until it is disproved, or may call for the proof of it.

Thus, Section 4 clarifies that presumption of fact is rebuttable in nature and the
other party may adduce evidence to disprove it. Further, by using ‘may’, the legislature
has made it clear that the court is not bound to presume a fact but this power is
discretionary.
For example, the presumption raised under Section 114 of the Act is presumption
of fact where the court may presume the existence of any fact which it thinks is likely
to have happened.
Rebuttable Presumption of law [Shall Presume]
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Section 4 defines 'shall presume'. It provides that where the Act declares that the
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court shall presume a fact the court shall presume that fact unless and until it is disproved.
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Thus, by using the word ‘shall’, no room for discretion is left to the court and it
is mandatory for the court to raise such presumption. However, such presumption
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can be rebutted by the party by adducing evidences. party.
For example, under Section 113-B of the Act where the question is whether a
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person committed dowry death of a woman, the court shall presume that such person
has caused the death if it is shown that soon before her death she had been subjected
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to cruelty or harassment for, or in connection with, any demand for dowry.
Irrebuttable Presumption of law [Conclusive Proof]

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Section 4 defines 'conclusive proof'. It provides that when one fact is declared
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by this Act to be conclusive proof of another, the court shall, on proof of the one
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fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.
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Thus, once presumption is raised, it cannot be rebutted by the other party and
the latter will be barred to adduce evidence to the contrary. For example, under Section
112 of the Act if any child is born within 280 days after dissolution of marriage
between man and wife and wife remained unmarried, it will be conclusive proof that
the child is legitimate son of the man unless non-access is shown. Thus, once the
presumption is raised, it cannot be rebutted by any evidence.

2 Relevancy of facts
Q. : Evidence must be confined to the matter in issue. Explain
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What facts are considered relevant under the Indian Evidence

Act? Illustrate.
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Of what facts evidence may be given in any suit or proceedings
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A. : Section 5 of the Act provides that in any suit or proceeding, evidence may
be given to prove the existence or non existence of :
(i)
(ii)
Fact in issue, and
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Such other facts as declared to be relevant under Sections 6 to 55 of the
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Act.
Apart from the above facts, evidence cannot be given to prove any other facts,
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even if it is essential for ascertainment of truth. Furthermore, as per Explanation to

Section 5, if some provisions in Code of Civil Procedure, 1908 disentitles the person
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to give evidence to a fact, he will not be entitled as of right to adduce that evidence in
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court.
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The object of this section is to restrict the evidences which are given in the court
within the bounds prescribed by general convenience. This section excludes eveything
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not covered by the purview of other succeeding sections.
Fact in issue
Section 3 of the Act defines fact in issue according to which it is a disputed fact
asserted by one party and denied by the other and adjudication upon which determines
the right and liabilities of the parties. For example, in a case where A killed B, the facts
whether A killed B or had intention to kill B are fact in issue.

Relevant fact
Section 5 further provides that apart from fact in issue, other facts declared as
relevant under Sections 6 to 55 of the Act may also be proved by evidence. The
following are the facts which are declared relevant under the Act :
1. Facts forming part of the same transaction [Section 6].
2. Facts which are occassion, cause or effect of facts in issue [Section 7].
3. Motive, preparation, conduct of a party [Section 8].
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4. Facts necessary to explain facts in issue [Section 9].
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5. Things said or done by conspirators [Section 10].
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6. Facts inconsistent with facts in issue [Section 11].
7.
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Facts helping in the estimation of damages [Section 12].
Transaction creating right, custom, etc. [Section 13].

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9. Facts starting of mind and body [Section 14].
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10. Facts showing whether act is intentional or accidental [Section 15].
11. Existence of course of business [Section 16].

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12. Admissions and confessions [Section 17 to 31].

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13. Statements of persons who are dead or cannot be found [Section 32 and
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33].
14. Statements made under certain cases [Section 34-39].

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15. Judgments [Section 40 to 44].
16. Opinions of experts and other [Section 45 to 51].
17. Character [Section 52 to 55].
Thus, apart from the above mentioned facts, evidence of no other fact can be
given by the parties to the suit.

Q. : Discuss ‘Relevancy and admissibility are neither co-extensive nor

inter changeable terms’.
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All admissible evidence is relevant but all relevant evidence is not
admissible Comment.
A. : The expression ‘Relevancy of a fact’ is not defined under the Indian Evidence
Act. Section 3 of the Act only defines ‘relevant fact’ as one fact is relevant to another
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when one is connected to the other in the manner provided under Sections 6 to 55
of the Act. Thus, this definition also does not clarify what are relevant facts and what
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is relevancy. In general, relevant facts are those facts which are so connected with the
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fact in issue framed between the parties which suggest an inference as to the existence
or non-existence of fact in issue.
Meaning of relevancy Pr
According to Phipson, relevancy denotes connection of two events as cause and
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effect. So, relevancy denotes connection between two facts such that the existence of
one fact renders the existence of other fact probable or improbable. This is called
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logical relevancy based on deductive reasoning. Relevancy is that attribute of the fact
that it is related to fact in issue or relevant fact in one or the other way specified in
Indian Evidence Act.
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However, the Indian Evidence Act does not recognize all facts which are logically
relevant. It allows the party to prove only those facts which are expressly declared as
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relevant under Sections 6 to 55 of the Act.

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Section 5 of the Act makes it very clear that evidence is to be given only for fact
in issue and relevant fact and of no others. So, only legally relevant facts, are allowed to
be proved and not logically relevant fact. All facts which are logically relevant may not
be legally relevant. Whatever is legally relevant is also logically relevant but not vice versa.
For example, confession made to a police office may appear to be logically relevant
but it is not legally relevant. Question of relevancy is a question of law which is
decided by the judge and it can be raised at any stage in the proceedings.

Admissibility of fact
Unlike relevancy of fact which explains what may be proved by the parties,
admissibility on the other hand, is based on strict legal rules rather than logical reasoning.
It relates to the permissibility of the evidence to prove a particular fact in any proceeding.
It provides the mode of proving fact in issue or relevant fact. It declares whether
certain types of evidences are admissible or are to be excluded for instance, Section 5
of the Act provides that evidence for proving only fact in issue and relevant fact are
allowed and for no others. This proposition is further strengthened by reading Proviso
to Section 165 which provides that the judgment of the court should be based on
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relevant facts duly proved.
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Further Section 136 of the Act provides that the court shall admit any evidence
and allow it to be duly proved if it is satisfied that the fact, if duly proved, would be
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relevant. Thus, by reading these provisions, it appears that all admissible facts are
necessarily relevant.
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Admissibility presupposes relevancy. Admissible evidence should be received by
the court unless there is a legal reason for its rejection. Facts should not be received in
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evidence unless it is both relevant and admissible.
The question of relevancy arises with the question of admissibility of evidence
i.e. if in a trial a party proposes to prove a particular evidence that would be a question
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of admissibility of evidence but answer to that question would depend upon the
question as to whether the fact sought to proved is relevant or not and later that
relevant fact will be admissible only if it has been duly proved. Thus, if we start from
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Section 5 it states that the evidence can be given only of fact in issue or relevant fact as
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given from Sections 6-55 of the Act. Thus if any person wishes to adduce any evidence
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then he has to prove that that evidence is either the fact in issue or is a relevant fact.
Relevancy and admissibility not synonymous
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The Supreme Court, in Ram Bihari Yadav v. State of Bihar, AIR 1998 SC
1850, has clarified that relevancy is different from admissibility and they cannot be
held synonymous to each other. Relevancy is a genus while admissibility is a specie.
Supreme Court in State of U.P. v. Raj Narayan, (1975) 4 SCC 428 held that
evidence is admissible and should be received by the court unless there is legal reason
for its rejecton. Facts should not be received in evidence unless they are both relevant
and admissible.

There are facts which even though relevant but are not admissible under the Act.
For example, a confession made to a police officer is relevant fact but Section 25 of
the Act makes it inadmissible. Similarly, communication between spouses, though
relevant in certain cases, but they are declared as privileged by virtue of Section 122
of the Act.
Furthermore, there are also instances under the Act where the facts, even though
irrelevant, are made admissible for example, Section 155 of the Act allows the facts
to be admitted in court in order to impeach the credibility of witness during cross-
examination even though these facts are not related to fact in issue in any manner.
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Court in this case has also held that it is a fundamental rule of law that evidence
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must be relevant in order to be admissible. But the converse is not true. Thus, relevancy
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of fact and admissibility of fact are neither co-extensive nor synonymous, the former
being based on probative force and logical reasoning while the latter is based on legal
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policy or legal rules. All admissible facts are relevant but all relevant facts are not
admissible.
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Q. : Explain and illustrate ‘res-gestae’.
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Facts which though not in issue are so connected with facts in

issue so as to form part of same transaction are relevant whether
they occur at the same time and place or different times and places.
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Explain
A. : Res gestae is a Latin phrase which means ‘things said and done in course of
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same transaction’. It may be defined as those circumstances, facts or transactions which

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are in continuity of main transaction. It includes everything which can be considered

to be fairly connected with the main event. The essence of doctrine is that a fact which
though not in issue, is so connected with the fact in issue as to form part of same
transaction becomes relevant by itself.
The underlying principle behind the doctrine of res gestae is that when any transaction
is a fact in issue, then evidence can be given of every fact which forms part of the
same transaction. The doctrine of res gestae enables the court to take into account all the

essential details of the transaction. It serves the purpose of completing the missing
link. The rationale behind making certain statements or fact admissible under Section
6 of the Act is on account of the spontaneity and immediacy of such statement or
fact in relation to the fact in issue.
Res gestae under Indian Evidence Act

Section 6 of the Act is a direct manifestation of the doctrine of res gestae as
followed in England. This section provides that facts, though not in issue, but are so
connected with fact in issue as to form part of the same transaction are relevant. They
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may occur at same time or place or at different times and places. The rational in
making certain statements or facts relevant under Section 6 is on account of spontaneity
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and immediacy of such statement or fact in relation to the fact in issue.
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Supreme Court in Javed Alam v. State of Chhattisgarh, (2009) 6 SCC 450
held that the test for applying the rule of res gestae is that statement or fact should be
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spontaneous and should form part of same transaction ruling out any possibility of
concoction.
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Same transaction: The term 'same transaction' has not been defined in the Act.
According to Stephen, a transaction is a group of facts connected together to be referred
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to by a single legal name, a crime, a wrong, a contract or any other subject of enquiry
which may be in issue. In G. Vijayvardhan Rao v. State of Andhra Pradesh, AIR
1996 SC 2971, Supreme Court held that for a statement to be part of transaction it
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must be spontaneous and must be contemporaneous with the fact. If the statement is
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made after the act is over and its maker has time to think and reflect then it is not
relevant.
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In R v. Foster, (1834)6 C & C 325, the deceased has been killed by a speeding
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truck, the witness had not seen the incident but the speeding truck. The deceased
stated to him what had happened with him in the accident. The court held that the
statement of the deceased to the witness to be admissible as res gestae. In Sawal Das v.
State of Bihar, AIR 1974 SC 778 where A assaulted B on the neck with a knife and
this is seen by bystanders who exclaimed ‘A’ is killing ‘B’. The exclamation is as much
part of the transaction of murder as the gushing out of the blood from the wound
inflicted on the neck.

Q. : Doctrine of res gestae is an exception to principle of hearsay

evidence. Explain
A. : Doctrine of res gestae is an exception to principle of hearsay evidence. Hearsay

evidence simply means that the person has not seen the actual happening of the incident
but he has heard it from others. As a general rule evidence must be direct and hearsay
evidence is not admissible in the court. Supreme Court in Gentela Vyayavardhan
Rao v. State of A.P., AIR 1996 SC 2791 held that rule embodied in Section 6 is an
exception to general rule that hearsay evidence is not admissible. However, if such
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evidence forms the part of same transaction so as to qualify as res gestae then the
evidence may be given.
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In R v. Foster, the witnesses had only seen speeding vehicle and not the incident.
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The injured person explained to him the nature of the accident. The witness was
allowed to give evidence of what the deceased said because it formed the part of
same transaction i.e. res gestae. Pr
Supreme Court in Sukhar v. State of U.P., 1999 (7) JT 537 held that for bringing
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hearsay evidence within the provision of Section 6, what is required to be established
is that it must be almost contemporaneous with the acts. There should not be an
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interval which will allow fabrication.
Q. : Are the remarks of the spectators made at the time when A beat B
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in their presence relevant?

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A. : The present problem is based on illustration (a) of Section 6. According

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to Section 6 a fact is relevant even if it is not in issue but so connected with the fact in
issue as to form part of the same transaction. This is a principle of res gestae. It means
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‘things said and done in course of same transaction’. It may be defined as those
circumstances, facts or transactions which are in continuity of main transaction. It
includes everything which can be considered to be fairly connected with the main
event.
In the present case, remarks made by spectators while A beats B in their
presence is though not fact-in-issue, yet is so connected with fact-in-issue as to form
part of same transaction and thus relevant under Section 6.

Q. : The question is, whether certain goods ordered from B were

delivered to A. The goods were delivered to several intermediate
person successively. Is it relevant?
A. : The present problem is based on illustration (d) of Section 6. It is a direct

manifestation of the doctrine of res gestae as followed in England. This section provides
that facts, though not in issue, but are so connected with fact in issue as to form part
of the same transaction are relevant. They may occur at same time or place or at
different times and places. The rational in making certain statements or facts relevant
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under Section 6 is on account of spontaneity and immediacy of such statement or fact
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in relation to the fact in issue.
A transaction may constitute a single incident or it may be spread over a variety
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of acts. In order that different acts may constitute the same transaction they must be
connected by proximity of time, unity or proximity of place, continuity of action and
community of purpose or design. Pr
For applying the rule of res gestae is that statement or fact should be spontaneous
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and should form part of same transaction ruling out any possibility of concoction. In
this problem since the successive deliveries form part of same transaction hence they
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all will be a relevant fact under Section 6.
Q. : Are facts which are occasions, cause or effect of facts in issue

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relevant? Illustrate your answer.

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A. : According to Section 7 of the Act facts which are the occasion, cause, or
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effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute

the state of things under which they happened, or which afforded an opportunity for
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their occurrence or transaction, are relevant.

Thus, Section 7 embraces larger area than Section 6 which is limited to facts
forming part of the same transaction. For example, the question is whether A robbed
B. The facts that shortly before the robbery, B went to a fair with money in his
possession and that he showed it and mentioned the fact that he had it, to third
person, are relevant as they are the occasion of robbery and also opportunity for its
commission.

3 Admissions
Q. : What are admissions? Who can make them?
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Write short note on adimission.
A. : Section 17 of the Act provides the definition of admission. It defines

admission as follows:-
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 Admission is a statement in oral, documentary or electronic form;
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 Which suggests an inference as to any fact in issue or relevant fact; and
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 Which is made by any of the person refered to in Sections 18 to 20 of
Indian Evidence Act; and

Indian Evidence Act.
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Which is made under the circumstances mentioned in Sections 18 to 30 of
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So in simple words, admission is a statement which suggests an inference as to
the existence of any fact in issue or relevant fact. Section 17 was amended in 2001 to
include statements recorded in electronic form.
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Admission is a positive act of acknowledgment. This formal act of

acknowledgment during the proceedings dispenses with the production of evidence
by conceeding for the purpose of litigation that proposition of facts as true. For
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example if ‘A’ sues ‘B’ for recovery of money and there is an entry in account books
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of ‘B’ that he owes certain amount of money to ‘A’ then it is an admission on the part
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of ‘B’ relating to his liability towards ‘A’.

In Sita Ram Bhan Patil v. Ram Chandra Nag Patil, (1977) 2 SCC 49 Supreme
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Court held that a statement in relation to a fact or a circumstances which is not in issue
or relevant is not an admission. For a statement to qualify as ‘admission’ it is sufficient
that statement admits a fact which suggests an inference as to his liability.
When and by whom admission can be made
All the statements made by the persons are not admission unless they are made
by following persons in following circumstances as provided under Section 18 to 20
of the Evidence Act:
1. Party or his agent: According to Section 18, a party to the proceeding or his
agent whom the court regards, under the circumstances of the case, as expressly
or impliedly authorized to make admission may make them. The agent must act
within the scope of his authority and the court must be satisfied that the agent was
so authorized. The phrase 'the party to the proceeding' in Section 18 includes not
merely the plaintiff and defendant in a civil case, but it also includes accused in a
criminal case.
2. Person suing or sued in representative capacity: Section 18 even allows
parties to suits, suing or sued in representative capacity to make admission if the
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party making the statement is holding that representative capacity while making
the statement. Statements made by person in his personal capacity cannot affect
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him in representative capacity. Representative character means that a person is
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representing other and not acting in his personal capacity.
3. Person having proprietary or pecuniary interest: Section 18 further provides
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that persons who have proprietary or pecuniary interest in the subject matter of
the proceeding can make admissions if they make the statement in their character
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of person so interested and during the continuance of the interest. Thus, statements
of persons who, though not are parties to the proceedings are also held to be
admission if the above condition is satisfied.
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For example certain goods are consigned for carriage. In this case the consignor
as well as consignee have an interest in the subject matter. If the goods are lost and
the consignee sues carrier then a statement by consignor that the goods were
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properly stowed can be received in evidence, though consignor was not the party
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to the proceedings.
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4. Persons from whom interest is derived: Under Section 18, persons from
whom the parties to the suit have derived their interest in the subject matter of the
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suit can make admission if the statements are made during the continuance of the
interest of the persons making the statement. This kind of person is known as
‘predecessor-in-title’. A statement made by him about the property when he was
holding such title is relevant against the parties who have acquired title from him.
For example, if the question is about the tenancy of the property the statement
made by former owner of the property regarding tenancy is relevant as against
present owner.

5. Person whose position and liability is necessary to prove: Section 19 provides

the statement of persons whose position and liability it is necessary to prove as
against any party to the suit may be admitted as admission. The principle upon
which this section is based is that if the right or liability of a party to a suit depends
upon the liability of a third person then any statement made by the third person
about his liability would be admission against the parties.
For example ‘B’ employed ‘A’ as his agent to collect rent. ‘A’ fails to collect rent
from ‘C’. ‘B’ filed suit against ‘A’ for breach of contractual obligation. Such
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contractual obligation depends on whether ‘C’ is liable to pay rent to ‘B’ or not. In
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such a case, the statement made by ‘C’ that he owed rent to ‘B’ will amount to
admission against ‘A’ because if ‘B’ had filed a separate suit against ‘C’ for arrears
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of rent, then in that suit, the statement of ‘C’ that he owed rent to ‘B’ would have
amounted to admission.
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6. Person referred by party to the suit: Section 20 of the Act provides that
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persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute may make admission against the person referring.
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For example the question is whether a horse sold by ‘A’ to ‘B’ is sound. ‘A’ says
to ‘B’ - ‘Go ask ‘C’, ‘C’ knows all about it’. C’s statement in such a case is an
admission against ‘A’.
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Q. : Admissions cannot be proved in favour of the persons making

them. What are the exceptions to this general rule?
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or
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When a person can prove admission in his favour? Explain with

example.
A. : Section 21 of the Act provides that admissions are relevant if made against
the interest of the maker or anyone acting on his behalf. The principle behind this
section is that the admission is evidence against the party who has made the admission
and therefore, it can be proved against him.

Thus, only self-harming admissions are relevant under the Act. The reason behind
this rule of law is that if a man makes certain statement against his own interest, it
means that statement must be true. In Bryce v. Bryce, the court held that statements
of a living person cannot be received unless they are against their interests. Supreme
Court in CBI v. V.C. Shukla, (1998) 3 SCC 410 held that admission is not an evidence
against others. It is evidence against the person who makes it. Admission may become
evidence against others only when it amounts to confession, then it may be used either
under Section 10 or 30.
For example the question between ‘A’ and ‘B’ is whether a certain deed is or is not
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forged, ‘A’ affirms that it is genuine and ‘B’ that it is forged. ‘A’ may prove a statement
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by ‘B’ that the deed is genuine and ‘B’ may prove a statement by ‘A’ that deed is forged.
Exception to the general rule
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Section 21 further states that admissions cannot be proved by or on behalf of
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the person who makes it except in the conditions given under that section. As stated
above, only self-harming admissions are relevant under Section 21 of the Evidence
Act and not self-serving ones. Section 21 lays down three circumstances where self-
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serving statements can be proved:-
1. If the statement made by the person would be admissible under Section 32 of the
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Act as against the third person if the maker were dead, such statements may be
proved in favour of such person.
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For example, ship-owner sued captain of the ship for casting the ship away. It
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was contended on behalf of ship-owner that the ship was taken out of course. Captain
maintained a diary in regular course of duty and made an entry in his favour. Now, in
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any litigation if there is a question whether the ship was lost due to negligence or
otherwise and the captain was dead or cannot be found then the entries in the diary
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will be relevant.
2. Where the statement relates to any state of mind or body and it was made when
such state of mind or body existed, accompanied by the conduct which renders
its falsehood improbable. It enables the person to prove his statement as to state
of mind or body. It must be noted that mere statements are not admissible. Such
statements must be accompanied by conduct rendering the falsehood of the
statement improbable.

For example, ‘A’ is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he refused to sell them below their value. ‘A’ may prove these
statements, though they are admissions, because they are explanatory of conduct
influenced by fact in issue. [Illustration (d) to Section 21]
3. Where admission is otherwise relevant than as admission. For example, where the
statement forms part of same transaction, it will be relevant under Section 6 and
thus admissible.
Q. : ‘A’ a captain of a ship, is tried for casting her away. Evidence is
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shown that the ship was taken out of her proper course. ‘A’ produces
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a book kept by him in the ordinary course of business showing
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observations alleged to have been made by him from day to day
and indicating that the ship was not taken out of her proper course.
Pr
Whether ‘A’ may be allowed to prove the aforesaid, statement
recorded by him in his favour?
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A. : Section 21 of the Act deals with relevancy of admissions and provides that
they may be proved as against the person who makes them or his representative in
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interest, i.e., self-harming admissions are allowed to be proved against the maker.
However, proviso to Section 21 lays down certain instances when admission can be
proved on behalf of the person who makes them.
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pl
Proviso (1) to Section 21 says that an admission may be proved by or on

behalf of the person making it when it is of such a nature that, if the person making
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it were dead, it would be relevant as between third persons under Section 32.
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In the given problem, ‘A’ a captain of a ship, is tried for casting her away. He
produces a book kept by him in the ordinary course of business showing observations
alleged to have been taken by him day to day indicating that the ship was not taken
out of her proper course. Generally, such statement being in A’s favour, cannot be
proved by him. However, Proviso (1) to Section 21 will be applicable in such case
and A’s statement will be admissible under Section 21 because it would be admissible
between third parties if A were dead under Section 32 (2) of the Act.

Q. : What is the evidentiary value of admission?
A. : An admission is not conclusive as to the truth of the matter stated therein. It

is only a piece of evidence, the weight to be attached to it must depend on the
circumstances in which it was made.
Section 31 of the Act provides that admissions are not conclusive proof of
matters admitted against any part but it may operate as estoppel. However, it does not
mean that admission of a party is of little value. Section 58 provides that facts admitted
need not be proved. Admission acts as waiver of proof. What a party himself has
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admitted to be true is certainly presumed to be true, unless it is disproved.
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In Bharat Singh v. Bhagirathi, AIR 1966 SC 405 Supreme Court held that
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admission is substantive evidence of the fact admitted and admission duly proved are
admissible irrespective of whether the party making them appears as a witness or not.
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Supreme Court in Thiru John v. Returning Officer, AIR 1977 SC 1724 held that it
is well settled that party's admission fulfilling the requirements of Section 21 is substantive
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evidence. An admission, if clearly and unequivocally made, is the best evidence against
the party making it though not conclusive, shifts the onus on the maker on the principle
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that 'what party himself admits to be true may reasonably be presumed to be so and
until the presumption is rebutted the fact admitted must be taken to be established'.
Admission can only be made as to point of fact and not point of law. Admission
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by pleader as to point of law in court does not bind the party. In Ram Bharose
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Sharma v. Mahant Ram Swaroop, (2001) 9 SCC 471, Supreme Court held that a
statement which is of nature of admission on a mixed question of fact and law
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cannot be treated as an admission under Section 17. Only admission on question of

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fact binds the maker and not an admission on question of law.
Q. : Silence may sometimes amount to an admission. Explain.
A. : Section 17 of the Act provides that admission is any statement made in oral,
or in documentary or in electronic form suggesting an inference as to fact in issue or
relevant fact. It is an acknowledgment of any fact admitted by the parties which is
generally against his interest.

4 Confession
Q. : What is a confession? Discuss Judicial and Extra Judicial confession

and differentiate between them.
A. : The word ‘confession’ is not defined under the Act. The term ‘confession’
was defined by Lord Atkin in Pakla Narayan Swami v. Emperor, AIR 1949 PC 47.
The definition given by Privy Council was approved by Indian Supreme Court in
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Palvinder Kaur v. State of Punjab., 1953 SCR 64. The court held that ‘a confession
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must either admit in terms the offence, or at any rate substantially all the facts which
constitute the offence’. A statement made by the accused is not a confession if it does
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not contain a direct admission in terms of commission of offence.
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In State of Maharashtra v. Kamal Ad Md Vakil Ansari, AIR 2013 SC 1441
Supreme Court held that a confession is a statement made by the person charged with
a crime suggesting an inference as to any facts in issue or relevant facts. This inference
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should suggest that the person is guilty of crime.
Types of Confession
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(a) Judicial Confession: Judicial confessions are those which are made before
the Magistrate or in Court in due course of legal proceedings. These confessions are
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presumed to be true and correct record of what is stated in it and is a substantive

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piece of evidence.
(b) Extra judicial confession: It is made by the accused admitting his guilt to
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any person other than the Court or a Magistrate. Thus, it is a confession made outside
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the Court or judicial proceeding. An extra-judicial confession can be proved by either-

(i) Examining the person to whom confession is made orally, or
(ii) Inspecting the document in which the confession is recorded if confession is
made in writing.
Thus, extra judicial confession is required to be proved before the court to the
extent that not only confession was made to such person but that it is true and correct
record of what is stated therein.

Difference between judicial and extra- judicial confession
Judicial Confessions Extra Judicial Confession

1. Judicial confessions are those which 1. Extra-judicial confession are those
are made to a judicial magistrate which are made to any person other
under Section 164 of Code of than those authorized by law to take
Criminal Procedure or before the confession. It may be made to any
court during committal proceeding person or to police during
or during trial. investigation of an offence.
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2. To prove judicial confession the 2. Extra-judicial confession are proved
person to whom judicial confession by calling the person as witness
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is made need not be called as witness. before whom the extra-judicial
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confession is made.
3. Judicial confession can be relied as 3. Extra-judicial confession alone
proof of guilt against the accused
person if it appears to the court to
be voluntary and true.
Prcannot be relied it needs support of
other supporting evidence.
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4. A conviction may be based on 4. It is unsafe to base conviction on
judicial confession.
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extra judicial confession.
Q. : Write brief note on evidentiary value of extra-judicial confession.

e
pl
A. : With repsect to evidentiary value of extra - judicial confession, in State of

M.P. v. Paltan Mallah, (2005) 3 SCC 169, the Supreme Court held that it is a good
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piece of evidence and there is no harm in relying on such confession if found

trustworthy. However, as a rule of prudence, since extra judicial confession is not
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made after taking due precautions, it is desirous that such confession should be
corroborated with other independent evidences.
Supreme Court in Pancho v. State of Haryana, AIR 2012 SC 523 held that
extra-judicial confession is a weak kind of evidence and it is prudent for the court to
first ascertain whether it inspires confidence and then find out whether there are cogent
circumstances to support it.

In Devi Lal v. State of Rajasthan, AIR 2019 SC 688 Supreme Court held that
it is advisable for the court to look for corroboration with other evidence on record.
Extra judicial confession has lesser evidentiary value than judicial confessions.
In Kushal Toppo v. State of Jharkhand, (2019) 13 SCC 676, Supreme Court

observed that an extra judicial confession is a weak piece of evidence. Generally, it
should not be relied in absence of corroborative evidence. An extra judicial confession
cannot be treated as substantive piece of evidence against co-accused.
Supreme Court in State of Karnataka v. P. Ravikumar, (2018) 9 SCC 614
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held that extra judicial confession made by accused can be relied upon and conviction
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can be recorded only when the following conditions are fulfilled:-
ev
1. The witness proving extra judicial confession must state in his testimony exact
words used by the accused or in words nearly as possible in making extra
2.
judicial confession to such witness.
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Prosecution should prove the motive, occasion or reason for making extra
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judicial confession by the accused.
3. The testimony of the witness deposing about the confession should be credible.
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4. The circumstances under which extra-judicial confession was made by the

accused must be established.
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5. It must be proved that extra-judicial confession was made voluntarily.

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6. It should be proved as to why the accused reposed confidence in the witness

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proving extra judicial confession.

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Q. : When does a confession become irrelevant? Explain
A. : Confession is a species of admission and is relevant under Section 21 of the

Act because it is a statement made by the accused against his own interest. However,
under certain circumstances a confession becomes irrelevant and cannot be taken in
evidence. Under the following circumstances, a confession becomes irrelevant and
cannot be proved against the accused-

1. Confession obtained by threat, inducement or promise- Section 24 of

the Act clearly provides where the confession of an accused is obtained by practicing
any inducement, threat or promise in reference to any charge or proceeding against
him and such threat or promise or inducement emanates from the person in authority
which causes a reasonable apprehension in the mind of the accused that he will gain
certain advantage or avoid evil of temporal nature in reference to charge against him,
then such confession cannot be proved against him.
For example, where a police officer says to the accused, “I will drop certain
charges against you if you tell the truth” and the accused makes a confession upon
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such inducement, it will be inadmissible.
The threat, promise or inducement shall emanate from person in authority, i.e.,
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the person who has the power to affect the charge or proceedings against the accused
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such as a police officer, a mukhiya of a village or a president of village vigilance
committee, etc. Thus if confession is made upon the inducement of a friend of
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accused, it will not be hit by Section 24. However, Section 28 further provides that if
such threat, promise or inducement ceases to operate, confession made by the accused
thereafter can be proved.
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2. Confession made to a police officer - Section 25 of the Act clearly provides
that confession made to a police officer cannot be proved against the accused. It
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provides a healthy protection against torture in the hands of police officers in order to
extort confession. This section is thus, interpreted widely and is extended to every
police officer who not only possess the power to make investigation of crime but
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also to file a report against the criminal and to prosecute him in trial.
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3. Confession made in police custody - Section 26 of the Act clearly provides

that any confession made by any person (to any person) in the custody of police
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officer will not be proved unless it is made in the immediate presence of the Magistrate.
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Police custody has to be understood in context of police control. As long as the

accused is under the control of the police officer he will be considered being in police
custody. Actual physical presence of police officer is not needed as long as the accused
is in effective police control.
In Raj Kumar v. Union of India, AIR 1991 SC 45, Supreme Court observed
that the ban imposed by Sections 25 and 26 is designed to prevent the practice of
securing confessional statements of persons in police custody by means of threat,
inducement, tortue, coercion etc.

Q. : Can a confession made to police officer be proved against the

accused person? What is the position in English law in this regard?
or
What is the object behind Section 25?
A. : Section 25 of the Act provides that confession made to a police officer

cannot be proved against the accused.
Object and principle
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Confessions to police officers are made inadmissible to prevent the torture of
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the accused at the hands of police in order to extract confessions. Confession obtained
by torture and by using third degree methods would be involuntary.
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Section 25 makes no distinction between a confession made before an
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investigation and confession made after the investigation. If a confession is made to
the police officer it will be hit by Section 25 straightaway .
Section 25 makes only confessional statements made to a police officer as irrelevant.
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Other non-confessional statements are not hit by Section 25 even if made to a police
officer. If such statements are made during the course of investigation, then Section
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162 of Cr.P.C. will come into play and it can only be used for the purpose of
contradiction under Section 145 of the Indian Evidence Act or under Section 27 and
32 of the Evidence Act.
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In Dipakbhai Jagdishchadra Patel v. State of Gujarat, (2019) 16 SCC 547,

Supreme Court held that confessions made to police officer cannot be proved against
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the accused but such confession may still be used as admission of any fact under
Section 21 subject to the bar of admissibility under Section 162 Cr.P.C.
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Statements made before investigation
As regards statements made before investigation, as in case of F.I.R., such

statements, if confessional in nature, will be hit by Section 25 and if they are non-
confessional in nature and only an admission of certain facts having a bearing on
question to be determined by the court, they will not be hit by Section 25 and will be
admissible in court [Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119].

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Q & A: Indian Evidence Act

Samarth Agrawal Books 1

First Edition : 2022

For Sales and Distribution contact: - 7905723822

2 Samarth Agrawal Books

for Civil Judge/HJS/APO examinations as well as students who

Samarth Agrawal Books 3

10. Oral Evidence ..........119

12. Presumptions .........134

13. Exclusion of oral evidence by documentary evidence .........137

14. Burden of proof .........145

15. Estoppel .........161

4 Samarth Agrawal Books

Samarth Agrawal Books 5

6 Samarth Agrawal Books

A. : Section 3 of the Act defines fact. It means and includes:

(i) Anything, state of things or relation of things capable of being perceived by

(ii) Any mental condition of which any person is conscious,

Samarth Agrawal Books 7

Q. : What is 'Relevant fact'. Differentiate between 'Fact in issue” and

A. : According to Section 3 of the Act one fact is said to be relevant to another

Difference between fact in issue and relevant fact

8 Samarth Agrawal Books

(i) Presumption of fact

(ii) Presumption of law [Rebuttable and Irrebuttable]

(iii) Mixed presumption of fact and law.

Presumption of fact [May Presume]

Samarth Agrawal Books 9

Rebuttable Presumption of law [Shall Presume]

to cruelty or harassment for, or in connection with, any demand for dowry.

Irrebuttable Presumption of law [Conclusive Proof]

10 Samarth Agrawal Books

What facts are considered relevant under the Indian Evidence

even if it is essential for ascertainment of truth. Furthermore, as per Explanation to

not covered by the purview of other succeeding sections.

22 Samarth Agrawal Books

1. Facts forming part of the same transaction [Section 6].

3. Motive, preparation, conduct of a party [Section 8].

Transaction creating right, custom, etc. [Section 13].

10. Facts showing whether act is intentional or accidental [Section 15].

11. Existence of course of business [Section 16].

12. Admissions and confessions [Section 17 to 31].

14. Statements made under certain cases [Section 34-39].

15. Judgments [Section 40 to 44].

16. Opinions of experts and other [Section 45 to 51].

17. Character [Section 52 to 55].

Samarth Agrawal Books 23

Q. : Discuss ‘Relevancy and admissibility are neither co-extensive nor

relevant under Sections 6 to 55 of the Act.

24 Samarth Agrawal Books

Samarth Agrawal Books 25

Facts which though not in issue are so connected with facts in

same transaction’. It may be defined as those circumstances, facts or transactions which

are in continuity of main transaction. It includes everything which can be considered

26 Samarth Agrawal Books

Res gestae under Indian Evidence Act

Samarth Agrawal Books 27

Q. : Doctrine of res gestae is an exception to principle of hearsay

A. : Doctrine of res gestae is an exception to principle of hearsay evidence. Hearsay

interval which will allow fabrication.

in their presence relevant?

A. : The present problem is based on illustration (a) of Section 6. According

28 Samarth Agrawal Books