Unit-1

58. “Evidence may be given of Fact-in-Issue and Relevant Fact”. Discuss

Acc. to Section 5 of the Indian Evidence Act, 1872 “Evidence may be given of facts in issue and relevant facts”.
It states that “Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and
of such other facts as are hereinafter declared to be relevant, and of no others.”
This means that in the absence of evidence of “facts in issue”, it can be proved by the evidence of “relevant facts”. Section
5 of the law clearly stipulates that the facts in issue can be proved either by evidence of itself (facts in issue) or by evidence
of relevant facts. The true importance of relevant facts is that when we have no evidence of facts in issue, we can provide
evidence of relevant facts to prove facts in issue. Relevant facts are also called circumstantial or indirect evidence. Indirect
evidence refers to all the evidence surrounding the facts in issue. However, the law does not use the term “circumstantial
evidence” or “indirect evidence” to describe it.

Relevancy of facts
The relevance of the facts is provided in chapter 2 of the IEA. A fact is presumed to be relevant to another when it is
relevant under the provisions of Section 6 to 55 of the Evidence Act. Facts can be logically or legally relevant. It is
commonly said that “Every legally relevant fact is also logically relevant, but every logically relevant fact is not necessarily
legally relevant or admissible”.
If a fact is connected with another fact, it is said to be logically relevant but it will only be legally relevant if the law
establishes that the fact is relevant. Otherwise, it is unacceptable as evidence in court. Logically speaking, a fact may be
related to a particular case, but there is no guarantee that the fact will be accepted by the court in law. Therefore, all the
evidence that must be presented in court must be both logically relevant and legally admissible.

59. How are facts which are occasions, cause & effects of fact-in-issue relevant? Illustrate the answer &
discuss in detail.
Acc. to Section 7 of Evidence Act “Facts which are the occasion, cause or effect of facts in issue are relevant”
Section 7 provides for the relevancy of several classes of facts. Sometimes, it is difficult to prove whether fact forms part of
the same transaction, but there are several collateral facts which are not part of the same transaction, are required to be
judicially considered for ends of justice provided they constitute the occasion, cause or effect or provide opportunity for the
happening of the facts in issue. “Evidence relating to collateral facts is admissible when such facts will, if established,
establish reasonable presumption as to the matter in dispute and when such evidence is reasonably conclusive.” The
relevancy is determined by human experience.
For example, whenever a quantity of blood is found in particular place, a man may reasonably think and infer that some
living being has been cut or it has been seriously injured at that place. So, the fact as to presence of blood is the effect of
some living being having been cut or injured at that place. The Section 7 therefore provides for admission of several classes
of facts under enquiry when they are connected in particular ways. These modes of connection are:-
1. as being the occasion of a fact;
2. as being cause of a fact
3. as being its effect;
4. as giving opportunity for its occurrence; and
1. Occasion:- Occasion means the circumstances in which an event occurred. Evidence of such circumstance is eligible to
given. For example, in the case of R vs Richardson, where a person was charged with the rape and murder of a girl, the fact
that the girl was alone in her cottage at the time of her murder is relevant because it provided the occasion in which the
crime happened.
2. Cause:- Facts that form the ‘cause’ of facts in issue are relevant. For example, A is charged of criminal misappropriation
of funds from a bank. The fact that A was hugely in debt at the time of committing the crime is a relevant fact because it
indicates a possible cause of the commission of the crime.
3. Effects – Every act causes some effect that leads to some other happening. These effects not only record the happening
of the main act but also throws light upon the nature of the act. For example, where a person is poisoned, the symptoms
produced are effects of the fact in issue and so are relevant.
4. Opportunity – Circumstances which provide an opportunity for the happening of a fact in issue are relevant. For example,
a break from the daily routine of a person may be the opportunity that is used the person to commit the crime. For
example, in R vs Richardson, the fact that Richardson left his fellow workers at about the time of murder under the pretence
of going to a smith’s shop is relevant because it provided an opportunity for the fact in issue, namely her murder, to
happen.
Imp. Note:- a fact in issue cannot be proved by similar facts which are not a part of the same transaction merely by virtue
of Section 7.

60. When facts ‘not otherwise relevant’ become relevant? Illustrate your answer.
Section 11 of the Indian Evidence Act, 1872 mentions those circumstances which are ‘not otherwise relevant’ become
relevant.

Facts not otherwise relevant, are relevant:-

1) if they are inconsistent with any fact in issue or relevant fact.
2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable.
Prof. Whigmore has described five examples of the first part (1) where fact ‘not otherwise relevant’ become relevant if it is
inconsistent with the fact in issue or relevant facts. Those 5 examples are:-
(a) Accused is present at a place other than the place of incident at the time of the incident (Plea of Alibi)
(b) The Fact regarding the legitimacy of the child that the husband did not have the access to the wife at the time when she
has begotten.
(c) Evidence regarding the life of any person for whom it has been said that he has died;
(d) That the offense has been committed by any other person and
(e) Disputed loss is caused to one by himself
Facts showing high Probability (second part)
The second part of Section 11 says that such facts, which when proved, would make the existence or non-existence of any
facts in issue or relevant fact, highly probable. Court has to take the assistance of such probability when no direct evidence
is available.
Illustration:- Where the statement of witnesses shows that the deceased was murdered by firing bullet within a distance of
20 feet and the evidence of doctor shows that the injury is due to the firing of the pistol from a distance less than 5 feet. In
such a situation, the statement of witnesses is highly improbable.

61. Nature, Scope (or Need) & Object of Evidence with the Fundamental Rules of Law of Evidence.
The word ‘Evidence’ is derived from Latin term ‘evidens‘ or ‘evidere‘ which means to prove, to ascertain, to make clear.
According to Bentham, evidence can be defined as any matter of fact, the effect of which is to produce a persuasion in a
mind, affirmative or disaffirmative, of existence of some other fact. The fact sought to be proved is the principal fact and the
fact which tends to establish it, is evidentiary fact.
Nature of Evidence
Evidence is “information tending to establish a fact” & “facts” are “reliable pieces of information”.
The general meaning of ‘Evidence’ is ‘a body of facts and information indicating or adjudicating the values of any facts or
evidence’.
The law of evidence doesn’t come under substantive law, rather it is a subject matter of ‘adjective law’, which defines the
pleading, evidencing and procedure with respect to substantive laws.
Scope (Or Need) of Evidence
Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence
explains that evidence is the proof of any fact in issues, so without evidence there will be no possibilities to prove any fact in
issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through
violating the basic structure of law but in the course of protecting those rights, Evidence Law comes into the picture.
Evidence Law tells the basic principles and rules regarding collection.
The law of evidence is not just a fundamental principle governing the process of proof, rather it also has a multi-dimensional
purpose of governing the rules relating to the process of proof in court proceedings. While its moral dimension is a special
asset in criminal trials as it endeavours in protecting the innocent and highlighting the guilty person to administer complete
and fair justice. On the other hand, the evidence rules also have the capability to hide & prevent the truth to be disclosed in
the public domain to protect the mass public interest.
Object of Evidence
The object of rules of evidence is to help the Courts to ascertain the truth, to prevent long inquiries and to avoid confusion
in the minds of judges, which may result from the admission of excessive or irrelevant evidence. One must realise that if
every circumstance which might tend to throw light on the matter in issue were to be let in, trials would be expanded to an
intolerable length.
Thus, the main object of the law of evidence is to restrict the investigation made by Courts within the limits prescribed by
general convenience. Therefore, evidence which tends to divert the attention of the Court and waste its time, is to be
rejected.
Fundamental Rules of Evidence
There are three main principles which underlie the law of evidence. These three principles are:-
(i) Evidence must be confined to the matters in issue.
(ii) Hearsay evidence must not be admitted.
(iii) The best evidence must be given in all cases.

62. Facts forming part of some transaction are relevant. Comment & refer to illustrations & case law.
Section 6 declares that “facts forming part of the same transaction are relevant”.
It provides:-
The facts, which though not in issue, are so connected with the fact in issue so as to form part of the same transaction, are
relevant, whether occurred at the same time and place or at different times and places.
Note:- The principle on which this section is based is the English Law doctrine of Res Gestae, though the section does not
expressly make a mention of the term res gestae.
The phrase ‘res gestae is a Latin phrase which literally means “things done” and its English equivalent is things said and
done in the course of a transaction. And the doctrine of res gestae says that when in any suit or proceeding, a transaction is
the fact in issue then in such suit or proceeding, evidence may be given of every fact which forms a part of that transaction.
Illustrations (i) & (ii) under section 6
(i) A is accused of the murder of B by beating him. Whatever was said or done by A or B or by the by-standers at the
beating, or so shortly before or after it, so as to form part of the transaction, is a relevant fact.
(ii) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the
subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts,
though they do not contain the libel itself.
Same Transaction
The term ‘transaction’ has not been defined anywhere in the Indian Evidence Act, 1872. According to J.F Stephen, a
transaction is:-
A group of facts together to be referred to by a single legal name, a crime, a contract, a wrong or any other subject of
inquiry which may be in issue.
And accordingly, the test to determine whether certain facts form part of the same transaction or not is whether they are so
related to each other in terms of purpose or as cause and effect or as to constitute one continuous action.
Case Law:- The case of Ratten v. Queen is an illustration on the point (i)
Here a man was charged with the murder of his wife. He defended himself in the court saying that the shot went off
accidentally. However, there was evidence to show that the deceased wife contacted the telephone operator and said, “Get
me the police please”. But before the operator could connect call to the police, the lady who spoke in distress gave her
address and then the call ended suddenly. Thereafter the police went to the address so given and found the dead body of a
woman i.e. the wife of the accused.
Lord Wilberforce delivering the judgement explained:-
‘The act of the deceased of calling the telephone operator and the words said by her on the call are relevant facts here as
they form part of the same transaction which is in issue before the court’.
And on the basis of these facts the accused was convicted for murder as no victim of an accident can even think of calling
the police and ask for help before the happening. Her call in distress clearly showed that the shooting in question was
intentional rather than being accidental.
Illustrations (iii) & (iv) under section 6
(iii) A is accused of waging war against the government of India by taking part in an armed insurrection in which property is
destroyed, troops are attacked and the gaols are broken open. All these occurrences form part of the same transaction
though A may not be present at all of them.
Acc. to this illustration, no restriction can be applied as to the territory within which the transaction must take place, those
like a sudden quarrel or shooting or stabbing may occur even in a room while those like a rebellion may cover an entire
country. For example, where a conspiracy is entered into by certain people to overthrow the government by force and for
this purpose funds are collected at a place B, task force is trained at a place C and the arms are collected at a place D. All
these acts are part of the same transaction though not occurring at the same places and time.
(iv) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several
intermediate persons successively. Each delivery is a relevant fact.
Here in this illustration, where the question is whether certain goods were delivered in the performance of a contract, the
fact that they were delivered to several intermediaries in the process of ultimate delivery to the buyer, is relevant, each
successive delivery being a part of the transaction.

63. Difference between fact in issue and relevant facts.

Following are the difference between fact in issue and relevant facts:-
1) A fact-in-issue is the ultimate fact in dispute, i.e., “principal facts” or “factum probandum”. Whereas a relevant fact is
which helps to prove/disprove the facts-in-issue, i.e., “evidentiary fact” or “Factum probans”.
2) Facts-in-issue are significant in nature whereas relevant facts are non-significant.
3) The facts-in-issue are the basis of the “law of evidence”. Whereas relevant facts are part of the law of evidence.
4) Facts-in-issue are confirmed by one party but denied by the other party. Whereas the relevant facts are the foundation of
the inferences made.

64. Define & distinguish between Proved, disproved & not proved.
Section 3 of IEA defines proved, disproved and Not Proved as follows:-
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 presumption 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 presumption that it does not exist.
Not proved:- A fact is said to be ‘not proved’ when it is neither proved nor disproved.
A fact is said to be ‘not proved’ when neither its existence nor its non-existence is proved. It also indicates a state of mind
in between the two i.e. one cannot say whether a fact is proved or disproved. It negatives both proof and disproof.

Distinction between Proved, Disproved and Not Proved

No     Proved      Disproved   Not Proved 

1 The term ‘proved’ is positive The term ‘disproved’ is The term ‘Not Proved’ is a
negative. mean between the terms
proved and disproved

2 When fact is proved the court When a fact is disproved no When a fact is not proved, it
gives judgment in favour of further question arises as to its indicates for further
the person, who has proved proof. evidence either to prove or
it.   disprove the fact.

Unit-2

65. Define Dying Declaration. Discuss the Law relating to Relevancy of Dying declaration in India. Refer to case
law.
Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as ‘a statement written or verbal of relevant facts
made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death’.
This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie on his
mouth.
The general rule under Section 60 of the Act is that all oral evidence must be direct - he heard it, saw it or perceived it.
Rules for Admission of Dying Declaration (Or Relevancy of Dying Declaration)
The grounds of admission under a dying declaration have been based on two broad rules:-
(i) The victim being generally the only principal eye-witness to the crime.
(ii) The sense of impending death, which creates a sanction equal to the obligation of an oath in a court.
Recording of Dying Declaration
Anyone can record the dying declaration of the deceased as per law. However, a dying declaration recorded by a Judicial or
Executive Magistrate will add an additional strength to the prosecution case.
A dying declaration may in several cases be the “primary piece of evidence to prove the genesis of occurrence”.
Note:- The only requirement for such a declaration to be held perfectly accountable in court is for the victim to volunteer
the statement and be of conscious mind & the person who records the dying declaration must be satisfied that the victim is
in a fit state of mind.
Case Law:-In the “Nirbhaya’s Rape Case,Dying Declaration was made by her in the form of sign and gesture were recorded
The first declaration was recorded by the doctor when she was admitted in the hospital on the night of December 16, 2012.
The second on December 21 by the sub-divisional magistrate during which she gave exact details of the mishappening.
The third declaration was recorded by the metropolitan magistrate on December 25 and was mostly by gestures. The bench
said that as far as the third dying declaration is concerned, this court has already held that the dying declaration made
through signs, gestures or by nods are admissible as evidence.
Situations Where Court Does Not accept it as an Evidence
Though a dying declaration is entitled to great weight, the accused has no power of cross-examination.
This is the reason the courts have always insisted that the dying declaration be of such a nature as to inspire full confidence
of the court in its correctness.
The courts are on guard to check if the statement of the deceased was a result of either tutoring, prompting or a product of
imagination.
Need of Corroboration (Supporting Evidence)
Several judgments have noted that it is neither rule of law nor of prudence that dying declaration can’t be acted upon
without corroboration. If the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it,
without corroboration.
Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence because a dying
declaration does not contain the details as to the occurrence.
It is not to be rejected, equally merely because it is a brief statement. On the contrary, the shortness of the statement itself
guarantees truth.
Validity of Medical Opinion
Normally the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, can
look up the medical opinion.
But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the
medical opinion can’t prevail.

66. Distinction between the English Law and Indian Law on Dying Declaration.
Under the English law, it is essential/ to the admissibility of dying declaration that the declarant must have entertained a
settled hopeless expectation of death, but he need not have been expecting immediate death.
On the other hand, Indian law does not put any such restrictions. It is not required under Indian law that the maker should
be under an expectation of imminent death, nor it is restricted to the case of homicide only. Before a dying declaration may
be admitted, it must be proved that its maker is dead. If the maker survives, it may be used to corroborate or contradict his
statement in the court.

67. What are the essentials of Dying Declaration & Precautions to be taken by a Magistrate while recording the
Dying Declaration?
Essentials (Requirements) of dying declaration
According to section 32 clause (1) of Indian Evidence Act, the essentials of dying declaration are as follows:-
1. The statement made by the deceased may be oral or written. But in some cases it can be made with sign and gesture
depends on the condition of the deceased
2. The statement must be as:-
 Cause of death:- when the statement is made by the person as to the cause of his death i.e the reason for his death in
order to determine the cause.
 Circumstances of the transaction:- the statement made by the deceased, which is only related to the circumstances of the
transaction, will result in the death of the deceased. Remoteness or having no nexus which can’t be connected with the
transaction, have no value.
 Resulted in the death:- The declarant who gave dying declaration should die, otherwise it will not be considered as dying
declaration
Precautions to be taken by a Magistrate while recording the Dying Declaration
Rule 33 of Criminal Rules of Practice itself says about the precautions to be taken by the Magistrate while recording the
Dying declarations. They are as follows
1. The Magistrate shall disclose his identity to the declarant first.
2. He shall ask the declarant whether he is mentally capable of making a declaration.
3. He shall ask simple questions to elicit answers from the declarant to know his state of mind.
4. Magistrate shall record questions and answers, signs and gestures together with his own conclusion.
5. He should also obtain, whenever possible, a certificate from the Medical Officer as to the mental condition of the
declarant.
6. The declaration should be taken down in the words of the declarant as far as possible.
7. The Magistrate should try to obtain from the declarant the particulars necessary for identification of the accused.
8. Every question put to the declarant and every answer or sign or gesture made by declarant in reply, shall be recorded.
9. After recording statement, it shall be read over to the declarant and his signature should be obtained thereon, if
possible.

68. How Dying declaration is proved?

Following are the methods to prove a dying declaration:-
1. Statements relating to the declaration of death, whether oral or written, must be duly proved.
2. If the declaration is oral, the person who heard the declaration should record what was heard in writing.
3. If the declaration is written, evidence from the person who recorded the declaration must be proved.
4. If a judge makes the death declaration beforehand, the judge must be called to prove it. In the case of a death
statement made to a magistrate, section 80 of the Indian Evidence Act of 1872 does not apply.
5. A dying declaration must be corroborated by other necessary document or evidence.

69. What is the principle on which Dying declaration is admissible (assumpted) in Evidence?
The statement made by the deceased person will be treated as Evidence and Admissible in a Court of law. The principle or
reason behind this can be followed by Latin maxim ‘Nemo Mariturus Presumuntur Mentri’ which means that “a man will not
meet his maker with a lie on his mouth’. More precisely in our Indian law, it is the fact that the dying man can never lie or
Truth sits on the lips of dying man. Hence, the Dying Declaration is admissible and considered as an evidence in Court and
can be used as a weapon to punish the culprit.

70. When the opinion of expert is relevant? Examine its evidentiary value? Can it be challenged?
When the opinion of expert is relevant
Expert opinion becomes admissible only when the expert is examined as a witness in the court. The report of an expert is
not admissible unless the expert gives reasons for forming the opinion and his evidence is tested by cross-examination by
the adverse party. But in order to curtail the delay and expenses involved in securing assistance of experts, the law has
dispensed with examination of some scientific experts.
For example, Sec.293 CrPC provides a list of some Govt. Scientific Experts as following:-
a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central Govt.
The report of any of the above Govt. Scientific Experts is admissible in evidence in any inquiry, trial or other proceeding and
the court may, if it thinks fit, summon and examine any of these experts. But his personal appearance in the court for
examination as witnesses may be exempted unless the court expressly directs him to appear personally. He may depute
any responsible officer to attend the court who is working with him and conversant with the facts of the case and can
depose in the court satisfactorily on his behalf.
Evidentiary Value of Expert opinion
Expert opinion is a rather weak type of evidence and the Courts do not generally consider it as offering conclusive proof and
therefore don’t rely solely upon it without seeking independent and reliable corroboration. It is well settled law that the
opinion of a handwriting expert can’t be considered as conclusive proof unless substantiated by corroborating evidence.
Case law:- In the case of Ram Chandra v. State of U.P (1957), it was held by the Supreme Court that it would be unsafe to
treat the opinion of the handwriting expert as sufficient basis for conviction but it can be relied upon when supported by
other items of internal and external evidence.
This was again reiterated in Ishwari Prasad Misra v. Mohd. Isa (1963) because expert evidence is, after all, only opinion
evidence. Hence, it was again upheld by the Apex Court that expert evidence, being only opinion evidence, cannot be
substantive and conclusive evidence and cannot be the sole basis of conviction but it can be relied upon if it is corroborated
by other evidence, whether direct or circumstantial.
Can expert opinion be challenged?
Generally, NO. It is interesting to note that an expert’s report can’t be questioned in the court. The report can be
questioned only when the ability and knowledge of the expert to make that report is in question. The experts are judged
with a different eye by the court since they are just giving an opinion and are not aware of the facts of the case. Therefore
their opinion can’t be, generally, challenged.

Unit-3

71. On whom the burden of proof lies in the following:- (i) Ownership (ii) Dowry Death
(i) Ownership
Section 110 of Indian Evidence Act talks about the Burden of proof as to ownership.
Section 110 of the Act states:-
When the question is 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.
So in this case the burden of proof lies on the party who is claiming that the person having possession of something is not
the owner of that thing.
(ii) Dowry Death
Section 113B of IEA talks about Presumption as to dowry death.
The presumption of culpability against an accused in a dowry death case under the Evidence Act would be "activated" only
when there is a proof that a deceased woman had been subjected to cruelty for demand of dowry.
The provision to secure convictions in dowry death cases was inserted in the Evidence Act, which provides that instead of
presumption of innocence, the accused would be presumed prima facie guilty in such homicides if a woman dies within
seven years of marriage and there is proof of cruelty.
If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused
of either of the above referred offences, cannot be held guilty by taking refuge only of the presumption to cover up the
shortfall in proof.
So burden of proof lies on the prosecution.

72. Examine rules of burden of proof in criminal cases including the circumstances general exception given in
chapter IV of IPC.
Every offence is not absolute, they have certain exceptions. When IPC was drafted, it was assumed that there were no
exceptions in criminal cases which were a major loophole. So a separate Chapter IV was introduced by the makers of the
Code applicable to the entire concept.
In short, the object of Chapter IV includes:-
(a) Exceptional circumstances in which an individual can escape liability.
(b) Making Code construction simpler by removing the repetition of criminal exceptions.

Burden of Proof
Generally, Prosecution has to prove its case beyond reasonable doubt against the accused.
Before the enforcement of the Indian Evidence Act 1882, the prosecution had to prove that the case does not fall under any
exception, but section 105 of Evidence act shifted the burden on the claimant.
But in exceptions, as per Section 105 of Evidence Act, a claimant has to prove the existence of general exception in crimes.
The General Exceptions are divided into 2 categories:-
(i) Excusable Acts:- An Excusable Act is the one in which though the person had caused harm, yet that person should be
excused because he cannot be blamed for the act. For example, if a person of unsound mind commits a crime, he cannot be
held responsible for that because he was not having mens rea.
(ii) Judicially Justifiable Acts:- A justified act is one which would have been wrongful under normal conditions but the
circumstances under which the act was committed makes it tolerable and acceptable.

Excusable Acts Justifiable Act

A mistake of Fact under section 76 and 79.
77 and 78.
Accident under Section 80.
Infancy – Section 82 and 83.
Insanity – Section 84.
Intoxication – Section 85 and 86.
An act of Judge and Act performed in pursuance of an order under Section
The necessity under 81.
Consent under Section 87 – 89 and Section 90 and 92.
Communication under Section 93.
Duress under Section 94.
Trifles under Section 95.
Private Defence under Section 96 – 106.

73. Distinguish between Public and Private Documents.

Basis Public Documents Private Documents
Public Documents are made by a public Private Documents are made by an individual for
Prepared by servant in discharge of his/her public his/her personal interest under his/her individual
duties. right.
Public Document is available for Private Document is in the hands of the
inspection to the public in public office individual to whom the document belongs to and
Availability
during the appointed time after is not available for inspection to the general
payment of fixed fees. public.
Public Documents are proved by Private Documents are proved by original i.e.
Proved By
Secondary Evidence. Primary Evidence.
The certified copy of a public document
Secondary The secondary evidence of the original document
is to be admitted in judicial
Evidence is not to be admitted in judicial proceedings.
proceedings.
No presumption is made about the genuineness
The court is bound to presume the
of the original document from secondary
Genuineness genuineness of a public document from
evidence of private document except in some
the duly certified secondary copy.
exceptional circumstances.
Certified copies of public documents
Issuance of Certified copies of the private document can’t be
may be issued to a person requiring
Certified Copy issued.
them.
 

74. How Public Document & Private Document be proved/admitted?

Proving Public Documents
Section 77 says that contents of public documents can be proved/admitted by filing certified copies of such documents.
Proving Private Documents
The most essential information to consider here is that private documents can only be proved as primary evidence; hence
only original private documents are admissible in the court of law. Neither photocopies nor other different copies of private
documents are enough to prove the genuineness of it and cannot be presented in a judicial proceeding apart from few
exceptions.

75. Discuss by giving suitable examples, the facts which need not to be proved in civil or criminal matters.
Section 56 to Section 58 of the Indian Evidence Act contains the provisions related to non-imperativeness of admission of
evidence by the parties to the suit before the Court to endorse the credulity of their statements.
Following are the facts which need not to be proved in civil or criminal matters:-
(1) Facts judicially noticeable need not be proved (Section 56)
(2) Facts of which Court must take judicial notice (Section 57)
(3) Facts admitted need not be proved (Section 58)
(1) Facts judicially noticeable need not be proved (Section 56)
Section 56 declares that “no fact of which the court will take judicial notice need be proved”. Thus, if the court is bound to
take notice of a particular fact the parties are spared of the burden of proving that fact. For example, the court is bound to
know the law of the land.
Case Law:- In Managing Committee of Raja Sidheshwar High School v. State of Bihar (1996), it was held that the court can
take judicial notice of the fact that the system of education in the State has virtually crumbled and serious allegations are
made frequently about the manner in which the system is being worked.
(2) Facts of which Court must take judicial notice (Section 57)
The Provision is supplemented by two declarations at the end of the section. One of them says that in all these matters, and
also on matters of public history, literature, science or art, the court may consult the appropriate books or documents of
reference. The second declaration is that if a party calls upon the court to take judicial notice of any fact, it may refuse to do
so unless and until such person produces any such book or document as the court may consider necessary to enable it to
take judicial notice. It means that the party who desires the court to take judicial notice of a fact has to produce before the
court the reference material. Where, for example, a party request the court to take judicial notice of the proceedings of the
legislatures, he should produce before the court the journal of those bodies, or their published acts or abstracts, or copies
purported to be printed by order of the government concerned.
(3) Facts admitted need not be proved (Section 58)
Another set of facts which need not be proved are facts which have been admitted. “Facts admitted need not be proved”.
Section 58 lays down this principle. Averments made in a petition which have not been controverted by the respondent
carry the effect of a fact admitted.
Case Law:- In Thimmappa Rai v. Ramanna Rai (2007), an admission made by a party to a suit in an earlier proceeding is
admissible against him in a subsequent suit also. Once a party to a suit makes an admission, it can be taken in aid for the
determination of issues having regard to the provision of Section 58.

76. “Oral Evidence in all cases must be direct" Explain this Rule with illustration and exceptions?
Section 59 of Indian Evidence Act says "All facts except the contents of document may be proved by oral evidence".
It means that where a written document exists, then evidence as to contents of such document can be proved by proving
that document, apart from it all facts can be proved by Oral Evidence.
Oral Evidence is one of the form of `Evidence' as defined under Section 3 of Evidence Act which means all statements which
the court permits or requires to be made before it by witness in relation to matters of fact in question.
Section 60 of Indian Evidence Act then provide that Whenever Oral evidence is to be led it must be direct. Evidence Act
does not accept `Hearsay' or `Indirect Evidence. Section 60 lays down that oral evidence must be direct. By direct it is
meant that:-
(i) If evidence is to be led about a fact which can be heard, witness must be produced who says that he heard it.
(ii) If evidence is to be led about the fact which can be seen, the witness produced must say he himself saw it.
(iii) If evidence is to be given about a fact which can be perceived by any other sense or in any other manner the witness
produced must say that he perceived it himself by that sense or in that manner.
(iv) If evidence is to be given about an opinion or as to the ground on which the opinion is to be held, the witness produced
must say that he holds that opinion and on those ground.
So as a general Rule of Evidence, the oral evidence must be direct. Law does not allow hearsay or indirect evidence because
it is second hand evidence based on information given by other people & it can’t be properly subjected to test a cross
examination.
So court require the proof of any fact, must be given by most reliable and probable evidence, this can be done by insisting
upon only direct oral Evidence. However, Indian Evidence Act has recognised certain exceptions to general Rule requiring
direct oral evidence.
Exception to the Rule of Hearsay Evidence
(i) Statements which are part of Res Gestae, whether actually constituting a fact in issue or accompanying and explaining a
fact in issue (Section 6 of Evidence act).
(ii) Admissions and Confessions. [Section 18 to 31]
(iii) Statements of person who is dead or who cannot be found or who cannot attend the court in circumstances as are
provided in Sections 32 and 33 of Evidence Act.
(iv) Statements in books of accounts, government chart and public record. [Section 34 to 38]
(v) Opinion of experts expressed in any thesis commonly offered for sale and the grounds on which are held, may be proved
by indirect evidence. [Proviso to Section 60]

77. Examine the Principle of Exclusion of Oral Evidence by Documentary Evidence.

One of the essential standards of the law of proof is that in all cases the best proof ought to be given. Where the
demonstration is exemplified in a record, the record is the best proof of the reality. The maxim of law is “whatever is
recorded as a hard copy must be demonstrated in the form of hard copy only“.
Section 91 of the Evidence Act- Evidence in the form of contracts, grants and other dispositions of property should be in the
form of a document. This Section applies similarly to cases in which the agreement, stipends or disposition of property
alluded are contained in one document or has one record, and cases in which they are contained in a greater number of
reports that one.
If there are more than one original documents, then only one original needs to be proved.
Note:- The statement in any document of whatever facts are mentioned under this Section, shall not prevent the admission
of oral evidence as to the same fact mentioned.
Section 92- Exclusion of evidence of an oral agreement.
If any contract, grants or disposition of property which is required by law to be in writing in form of document and if it has
been proved according to Section 91, then for the purpose of varying it, contradicting it or subtracting it parties or their
representative is not required to give oral evidence and it is not admissible. Two points are proved from this Section:-
(i) If any third party gives then it is admissible.
(ii) If any oral evidence is given which do not contradict the contract then it is admissible.

78. Differentiate between Primary & Secondary Evidence.

Following are the differences between Primary and Secondary Evidence:-
1. Primary Evidence implies the first-hand and most reliable copy of the document which is presented to the court for the
purpose of inspection. Conversely, secondary evidence is less relevant evidence in comparison to Primary Evidence,
which is used only when the primary evidence is unavailable for proof.
2. Section 62 of the Indian Evidences Act, 1872 deals with primary evidence, whereas Section 63 of the Indian Evidences
Act, 1872 deals with secondary evidence.
3. The general rule is to provide the primary evidence to the court, whereas the provision of secondary evidence to the
court is the exception to the general rule, permissible only in special circumstances, discussed in Section 65 of the Act.
4. No prior notice is required to be served for producing primary evidence to the court. However, prior notice is required to
be served for producing secondary evidence, for which rules are prescribed under Section 66, of the Act.
5. When it comes to the source of evidence, primary evidence is the fundamental or original source while secondary
evidence is the alternative source.
6. While primary evidence is by itself acceptable to the court, secondary evidence is acceptable only when primary evidence
is non-existent, unavailable, or cannot be provided.

79. Under what circumstances & condition secondary evidence relating to documents can be given?
There are certain circumstances in which secondary evidence can be produced in place of primary evidence, provided
certain conditions are satisfied which are as follows:-
 When the document is possessed by the person against whom it has to be proved, or by any person who is beyond reach,
or any person who is legally obligated to produce the same but does not produce it, even after issuance of notice.
 When the existence of the original document, its condition and contents have been proven in written form by the one,
against whom it has to be proved, or by his/her representative.
 In case the original document is destroyed or lost or the party providing the evidence is not able to produce it, due to any
reason, except in case of negligence or default.
 In case the original document is of such kind which is difficult to move.
 When the original copy of the evidence is a public document
 When the original copy is a document whose certified copy is admissible.
 Where original copy comprises of multiple accounts and it cannot be examined easily.

80. State the facts, issues & principles of law laid down in State of Punjab vs. Sodhi Sukhdev Singh AIR 1961
SC 493.
Name of the case:- The State Of Punjab vs Sodhi Sukhdev Singh, 1961 AIR 493
Petitioner: The State of Punjab Vs. Respondent: Sodhi Sukhdev Singh
Date of Judgement: 15/11/1960
Facts of the Case: The respondent was removed from his post when the state was under President’s rule. He made a
representation before the council of ministers and on a representation made by him, was restored on his position. He filed a
suit seeking that his removal was illegal, void and inoperative and prayed for recovery of Rs 62,700 as arrears in salary. He
filed an application for the production of certain documents. In reply, the Chief Secretary made an affidavit claiming
privilege under Section 123 of the Indian Evidence Act, for production of these certain documents and gave reasons.
Issue raised: Whether HC was incorrect in upholding the claim of privilege raised by appellant in respect of the documents
in question?
Judgement in the case: It was held that Section 123 is indeed an exception to the ordinary rule of evidence by
withholding documents from being produced. However, it must also be held that the section is justified as it aims to protect
public interests. It was also held in the judgment that while construing Sections 123 and 162, it would be irrelevant to
consider why the inquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a
matter of policy on which the Court does not and should not generally express any opinion. The case was concluded by
holding that documents in question are indeed protected by Section 123 and therefore, the court cannot compel the state to
produce them. Further, Section 124 states that no public officer shall be compelled to disclose communications made to him
in official confidence when he considers that the public interest would suffer by the disclosure. There is no doubt that in a
democracy however the interests of the public which prevails must be protected, along with the interests of the state at
large with regards to diplomatic relations, etc. These Sections are not rigid to the point where unpublished documents
cannot be produced at all, there is still leeway to where the head of the department can produce them provided it is not
accompanied by serious harm to the public interest.
Unit-4

81. Examination of Witnesses & Provisions relating to ‘Examination of Witnesses’ under Evidence law.
The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence
because the person giving the statements has personally witnessed the event happen.
Provisions relating to ‘Examination of Witnesses’ under Evidence law
Section 135–165 of the Evidence Act, 1872 deals with examination and cross-examination of witnesses.
Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements
of witnesses as evidence. There are three parts to the examination of a witness and Section 138 of the Evidence Act states
that the witness must be examined in the following order:-
 First, the party that called the witness examines him, this process is called examination-in-chief as mentioned under
Section 137 of the Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-
question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts
and not merely the facts discussed during the examination-in-chief. This process has been described in Section 137 of the
act as cross-examination.
 If the party that called the witness sees the need to examine the witness again after cross-examination, they may
examine the witness one more time. This has been laid down as re-examination in Section 137 of the Indian Evidence Act,
1872.
Section 138 states that the re-examination must be directed by the Court for explaining matters referred to in cross-
examination. The section further states that if any new fact or issue arises during re-examination, the opposite party can
further cross-examine the witness on that fact or issue.

82. What are ‘Privileged Communications’? Under what circumstances this privilege can be claimed?
Privileged Communication refers to the confidential conversations or interactions between two parties who are in a legally
recognized protected relationship. The information cannot be leaked to any third party, not even in the Court. Law can
never force an individual or a corporation to disclose the contents of privileged communications.
Privileged Communications under Evidence Act
Following are the privileged communications under the Indian Evidence Act, 1872:-
1. Communications during the marriage – Section 122
In ‘Ram Bharose vs State of UP‘, the court affirmed that any communication between husband and wife during the wedlock
by the husband to his wife or by his wife to her husband is prevented from being proved in the court of law.
Exceptions to section 122 of the Indian Evidence Act:-
 An extra act or conduct can be proved.
 Evidence by a third party can be disclosed.
 Waiver of privilege: A wife may testify against the husband if her husband consents to it or vice versa.
 The suit between husband and wife.
2. Evidence as to affair of state – Section 123
This section prohibits a person from giving a document as evidence that is:-
 An unpublished official record, or
 Related to the affairs of the state.
However, it may be given with permission of the concerned department’s head, who may give or withhold such permission.
3. Official communication – Section 124
This section prohibits a public officer from disclosing communication made to them in official confidence, where public
interest would suffer by its disclosure. In both cases, the public interest is paramount.
4. Information as to the commission of offences – Section 125
This section prohibits magistrates, police officers, revenue officer from disclosing any information received by them
regarding the commission of an offence.
5. Professional communication – Section 126
This section prohibits barrister, attorney, pleader or vakil from disclosing any information:-
 made to him, or
 on behalf of his client, or
 any advice given by him to his client,
 in the course and for purpose of his employment.
Exceptions to section 126 of the Indian Evidence Act:-
 Communications made in furtherance of illegal purpose are not protected.
 Any fact observed by the barrister, attorney, pleader or vakil in the course of employment to be fraud or crime
being committed since the commencement of employment is not protected.
 Barrister, attorney, pleader or vakil can disclose the communication if the client gives express consent.
Section 127 states that the provisions of section 126 apply to interpleader, clerks or servants of barrister, attorney, pleader
or vakil.
6. Privilege not waived by volunteering evidence – Section 128
This section lays down that if there is some secret communication between the client and lawyer and the lawyer appears as
a witness, he does not waive the privilege afforded by section 126. But if the client questions the lawyer regarding the
secret communication in the court of law, his consent may be deemed to be given.
7. Confidential communication with the legal advisor – Section 129
This section applies where the client is being interrogated. He cannot be compelled to disclose any secret communication
between him and his legal advisor unless he offers himself as a witness.

83. Can a Wife be compelled to be witness against her husband in Civil or Criminal Case? If so, when?
No, a wife can’t be compelled to be witness against her husband in Civil or Criminal Case
The communications between a husband and a wife have been given the status of privileged communication under Section
122 of the Evidence Act. It states that a married person:-
 Shall not be compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse.
 They are not permitted to disclose anything without their spouse’s or ex-spouse’s consent even if they are willing to.
Case Law:- In the case of S.J Choudhary v. The State (1984), the Court held that compelling spouses to disclose their
private communications is far worse than not getting any information at all. Therefore, such communications must be
privileged.

84. “Cross examination is a double edged weapon, it has to be handled carefully, otherwise it may cut the
hands of the user”. Explain
Introduction:- The examination of witness by the adverse party shall be called his Cross-Examination. In law, cross-
examination is the interrogation of a witness called by one’s opponent. The purpose of cross-examination is not simply to
attack an adversary, but to strengthen your own case. Every party has a right to cross-examine a witness produced by his
antagonist, in order to test whether the witness has the knowledge of the things he testifies and if, is found that the witness
had the means and ability to ascertain the facts about which he testifies, then his memory, his motives, everything may be
scrutinized by the cross-examination.
Cross-examination- A Double edged Weapon
According to Section 137, para 2 of the Indian Evidence Act, 1872:-The examination of a witness by the adverse party shall
be called his cross-examination.
Cross-examination considered most powerful weapon.
According to Philip Wendell, “Cross-Examination is a double-edged weapon, if you recognize the way to wield, it helps to
chop enemy’s neck otherwise, it cuts own hands”.
It should be remembered that the witnesses must speak to facts and to not opinions inference or beliefs. A witness could
also be cross-examined on previous statements made by him in writing or reduced into writing. Leading questions may be
asked.
The object of cross-examination is to a impeach the accuracy, credibility and general value of the evidence given in chief; to
sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will
support the case of cross-examination of the party.
Case Law:- In Sukhawant Singh v. State of U.P(1995), the Supreme Court has held that a witness cannot be thrown open
to cross-examination unless he is first examined-in-chief. Where the prosecution didn’t examine its witness and offered him
to be cross-examined, it had been held that this amounted to abandoning one’s witness, there can’t be any cross-
examination without the inspiration of examination in chief.
Conclusion:-
Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the
procedural law explain the examination of witnesses. Section 135 to 166 of Indian Evidence Act explain the examination of
witnesses in which act cover all the things, like who can first examine the witnesses during the examination of witnesses
and what are the relevant facts that are accepted during the examination of witnesses and what are the questions asked by
an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination and
also tells the power of judges during the examination of witnesses.
Effective cross-examination can make the difference between winning and losing a trial. Although cross-examination can be
the part of trial that is the most fun for experienced trial lawyers because preparing good cross-examination takes a lot of
thought and hard work.

85. Explain the Condition in which leading questions can be asked or can't be asked?
When leading questions can be asked
Section 143 talks about the leading questions When they may be asked:-
This section states that Leading questions may be asked in cross-examination.
A leading question can be put in the examination-in-chief or re-examination with the permission of the court. The court shall
permit leading questions to be asked in the examination-in-chief or re-examination in respect of matters which are of
introductory or undisputed nature or which matters in the opinion of the court have already been sufficiently proved. It can
be asked where it is not objected to by the adverse party. A leading question may also be put when the adverse party
objects to it, but the court over rules the objection, if it is in the opinion of the court that question pertains to matters which
are introductory or undisputed or which have been sufficiently proved.
Case Law:- In Barindra v. R, it was held that the court has to determine, and not the counsel, whether a leading question
should be permitted and the responsibility for the permission rests with the court.
When leading questions can't be asked
Section 142 enjoins that the leading questions should not be asked in examination-in-chief or in re-examination if they are
objected to by the opposite party. In case the opposite party objects, the court can decide the matter and may in its
discretion either permit a leading question or disallow it. The section also enjoins the court that it shall permit leading
questions as to matters which are introductory or undisputed, or which have, in the opinion of the court, been already
sufficiently proved.
Case Law:- In Varkey Joseph v. State of Kerela (1995), the Supreme Court held that the prosecutor ought not to be allowed
to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to enable him to elicit such
answers, which he expects or desires. It also held that allowing such leading questions would offend the right of the accused
to fair trial enshrined in Article 21 of the Constitution of India.

86. Differentiate between Estoppel & Waiver.

Sl.
No. Estoppel Waiver

Estoppel cannot be the cause of Since waiver is contractual, that is, it is

action although it can facilitate
or aid the enforcing of a cause of
1.
action by preventing the
defendant from not denying
what was earlier said by him.
In this, the injured party will
2. have to prove that injury, loss or
harm occurred. 
It is not necessary for the parties
3. to know the truth or have the
knowledge of the reality.
There might be situations where
4. acquiescence would amount to
estoppel.
Parties use the doctrine of
estoppel as a defence in a court
5.
of law and not as a cause of
action. 
an agreement to release somebody out
of an agreement by waving the
previous set policy or to assert a right.
Therefore, a waiver can be a cause of
action.
No such requirement is there in the
waiver.
In the case of waiver the parties
involved have the knowledge of the
real facts and they know the truth. 
In case of waiver, along with
acquiescence, some act or conduct is
also necessary. 
Waiver can be used as a cause of
action for claiming damages.