INDIAN EVIDENCE ACT, 1872 : AN EXHAUSTIVE OVERVIEW

 Introduction
 Concept of Evidence Law
o Definition of evidence under the Indian Evidence Act
 Historical background of law of evidence in India
o Hindu period
 Lekhya, i.e. document
 Sakshi
 Bhukti or Bhog
 Divya i.e. Divine tests or ordeals
o Islamic period
o Modern period
 Introduction to English Law
 Enactment of the Indian Evidence Act, 1872
 Maine Commission
 Stephen Commission
 Scope of Indian Evidence Act, 1872
 Important provisions under the Indian Evidence Act, 1872
o Preamble- Interpretation clause and presumptions
o Relevancy of facts
o Different Types of Evidence
o Manner of proof-Burden of proof- Presumption without calling for proof
o Estoppel
o Competency, comparability, examination, and cross-examination of
witnesses and impeachment of witness credibility
o Admissibility of evidence
 Judicial pronouncements with respect to the Indian Evidence Act, 1872
o State Bank of India v. Om Narain Agarwal, AIR 2011
o Vijendra v. State (NCT of Delhi), 1997
o Emperor v. Aftab Mohd. Khan, 1939
o Suresh Budharmal Kalani Alias Papppu Kalani v. State of Karnataka, AIR
1998
o Kishore Chand v. State of H.P, AIR 1990
o Adambhai Sulemanbhai Ajmeri v. State of Gujarat 2014
o SK. Yusuf v. State of West Bengal, 2011

Introduction
The term “law” is used in various ways. In its most basic sense, it refers to any rule, law,
norm, doctrine, or standard to which human beings must adhere. The entire corpus juris
(body of laws) is divided into two broad categories:

 Substantive laws,
  Adjective laws.

The law of evidence does not fall under substantive or procedural law, but rather under
the ‘adjective law,’ which describes the pleading and method by which substantive laws
are put into operation.

In litigation, the opposing parties produce proof to disprove each other’s allegations. In
legal systems, the law of evidence governs this sphere. This is a significant piece of
legislation. It applies to both civil and criminal law. The law of evidence is a prerequisite
for any criminal or civil trial. The role of evidence law is to scientifically reconstruct the
past events on which the disputing parties disagree. The goal of evidence law is to seek
the truth and to be an effective tool in the fact-finding process. The law of evidence has
established two fundamental concepts, i) relevancy, and ii) admissibility. In legal
terminology, relevance and admissibility are frequently used and both are frequently
used interchangeably by legal practitioners in the court of law. Both principles are at the
essence of the law of evidence.

Concept of Evidence Law

Before diving into the concept of “evidence law,” it is necessary to first explore the
definition of “evidence” in general. The term evidence was derived from the Latin word
‘Evidera,’ which means lucidity, clarity in presentation, and the ability to prove the facts
in question.

In its original sense, the word “evidence” refers to the state of being evident, i.e. plain,
obvious, or well-known. However, it is used to describe something that tends to produce
evidence or proof. The principal fact is the one that needs to be proven, and the
evidentiary fact is the one that tends to establish it. To put it another way, it can be said
that, evidence acts as the eyes and ears of the court

In the words of Sir William Blackstone, evidence “Signifies that which demonstrates,
makes clear or ascertains the truth of the facts or points in issue.” Faylor describes
evidence as “all means which tend to prove or disprove any matter, fact, the truth of
which is submitted to judicial investigation.”

According to Dr. Johnson’s Dictionary, the word evidence signifies “the state of being
evident, that is plain apparent or notorious”. Bentham defined “evidence” as “any matter
of fact, the effect, tendency or design of which is to produce in the mind a persuasion
affirmative or disaffirmative, of the existence of some other matter of fact.”

Wigmore defined ‘evidence’ as representing “Any knowable fact or group of facts, not a
legal or logical principle, considered with a view to its being offered before a legal
Tribunal to produce a persuasion, positive or negative, on the part of the Tribunal, as to
the truth of a proposition, not of law, or of logic, on which the determination of the
Tribunal is to be asked.”
According to Stephen, “It sometimes means words uttered and things exhibited by
witnesses before a Court of Justice. At other times, it means the facts proved to exist by
those words or things and regarded as grand work of inference as to other facts not so
proved. Again, it is sometimes used as meaning to assert that a particular fact is
relevant to the matter under inquiry.”

Thus, evidence is defined as anything that tends to verify or deny the existence or
nonexistence of a stated fact. The party who claims the presence of a fact must prove
its existence, whereas the party who denies it must disprove its existence or establish
its non-existence.

Definition of evidence under the Indian Evidence Act

As per Section 3 of the Indian Evidence Act, 1872

‘Evidence’ means and includes the following:

1. All statements made before the Court by witnesses about matters of fact under
investigation, which the Court permits or requires; such statements are referred
to as oral evidence;
2. All documents (including electronic records) presented for the inspection of the
Court; such materials are referred to as documentary evidence.

In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr, AIR 2011

The Supreme Court made the following observations on evidence, the word ‘evidence’
has been used in common parlance in three different senses: as

1. Equivalent to relevant,
2. As equivalent to proof, and
3. As equivalent to the material, based on which Courts conclude the existence or
non-existence of disputed facts.

Historical background of law of evidence in India

Hindu period
The Hindu Dharmashastras contains a piece of rich information on the law of evidence.
The purpose of the trial was to separate the true from the false in the same way that a
surgeon removes an iron arrow from the body using his tools. The Dharmashastras
acknowledged four categories of evidence.

1. Lekhya, i.e. document,

2. Sakshi i.c., oral evidence,
3. Bhukti or Bhog, i.e., use in other words possession, and
4. Divya i.e., Divine tests or ordeals.
Lekhya, i.e. document

Sakshi, i.e. oral evidence, was chosen over Lekhya because of its flaws, and
Dharmashastris, keeping in mind the flaws of Lekhya Sakshya, created arrangements
for their removal. For example, it was stated that a document produced or attested by a
corrupt person would be void. Similarly, documents written by women, minors, or
dependent people would also be deemed unlawful.

According to Narada, Vishnu Dharmashastra, and Katyayan (even Section 91 of the

Indian Evidence Act, 1872 states that documentary evidence is superior to oral
evidence), Lekhya-Praman (documentary evidence) is defined as proof that is written in
accordance with the rules, beyond doubt, and meaningful. Typically, the attestation by
two witnesses was necessary on the Lekhya Praman, but the most important
documents required the attestation of more than two witnesses.

Lekliya (Document).-Lekhya was further divided into three.

1. Rajya Sakshayak: It was a document written in the court by the King’s clerk. It
was similar to a registered document.
2. Sakhshyak: It was a document signed by witnesses and written by a private
person.
3. Asakhshyak: It was a handwritten paper produced by the parties themselves.

Sakshi

The rules of Sakshi or oral evidence had a vast difference in civil and criminal matters.
Ancient laws contributed a lot to create the norms for governing the capacity of
witnesses. Nyayadhish (Judges) used to interrogate the witnesses and examine their
expressions while they answered their questions before deciding their credibility.

Bhukti or Bhog

Bhukti or Bhog, i.e., use in other words possession. Agriculture was the primary source
of income in ancient India, and the disputes relating to the possession of the land were
known as Bhuktii. Even in ancient India, the law relating to possession was a well-
established legal concept. There were two kinds of Bhukti. Bhukti Sagma (with right)
and Anagama Agam mean Udgam (origin), which refers to the source of ownership or
the basis of the right, such as whether the property was purchased, or received as a
gift, or inherited.

The Agam and prescription, i.e., the use of the property, both weigh each other.
According to Narada, a man who only proves the use of the property without Agam, i.e.,
if the property is Anagama but underutilized, will be punished as a thief, even though he
was using the property for over 100 years. Aprask (P. 631-632), Kulluk, and
Raghunandan have stated that using a property for 20 years degrades ownership.
However, according to Mitakshara which is acknowledged by Vyavaharmayukh and
Mitramishra, the usage of the property damages the outcome rather than the ownership.
If the property owner sees someone else using his property for twenty years and then
disputes it, he will receive his property but not the earnings. Some authors have
mandated a relatively short period of bhukti, or use of the property, after which
ownership of the moveable and immovable property may end. The explanation has
been given that the owner should reclaim his property as quickly as possible unless
there are compelling reasons for doing so.

Divya i.e. Divine tests or ordeals

Divya means divine tests or ordeals. Where a man’s evidence fails to lead to a decision,
Divya, or divine tests (ordeal), assists in reaching a decision. Such tests were common
in ancient India, where the appeal was made to supernatural power to prove the guilt or
innocence of a man.

For example: If a man entered a burning fire or deep water and escaped unharmed, he
was either innocent in the eyes of the law. Similarly, if a man who consumed the poison
did not die, he was declared innocent. Gradually, Divya was limited to extraordinary
circumstances where common types of evidence were unavailable.

In small pecuniary disputes, ‘Kosh’ Divya was recognized. According to Yajnavalkya

(2/22), Narada (2/29, 4/239), Brahaspati, Katyayan, and Pitamah Divya should be used
only when Manushya Praman i.e., Sakshi, Lekhya, Bhog, or Paristhitijanya Praman
(circumstantial evidence) are not available. Different types of Divya were also
prescribed for different Varnas. Brahmina was exempt from Vish Divya (ordeal by
poison).

‘Kosh’ Divya was acknowledged In small pecuniary disputes. According to Yajnavalkya

(2/22), Narada (2/29, 4/239), Brahaspati, Katyayan, and Pitamah Divya should be
utilized only when Manushya Praman (circumstantial proof) is not accessible, i.e.,
Sakshi, Lekhya, Bhog, or Paristhitijanya Praman. For each Varna, a different type of
Divya was prescribed. Vish Divya (ordeal by poison) did not apply to Brahmins.

Islamic period
The rules of evidence were well defined during the Islamic period. The evidence
consisted of two types: oral and documented. The oral evidence was further subdivided
between direct and hearsay evidence. It indicates that oral evidence was preferred
above documentary evidence. Addressing oral evidence, the Quran enjoins.

Modern period
Introduction to English Law

The Charter of 1726 established english common law and statutory law in the
Presidency Towns of Calcutta, Madras, and Bombay. The Courts created by the Royal
Charter in these Presidency towns were responsible for enforcing English law. There
was no definite law of evidence in the Mofussil territories, i.e. the areas following outside
the Presidency Towns. Customs and usages governed the laws of evidence. In terms of
admitting evidence, the courts had complete discretion. In the lack of any specific
standards governing the law of evidence, the entire administration of justice in the
mofussil courts was in complete chaos.

Enactment of the Indian Evidence Act, 1872

The Governor-General established the first Act pertaining to rules of evidence in 1835.
1835 and 1855, a series of Acts were passed to successfully incorporate the reforms
proposed by Jeremy Bentham.
Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were also passed,
however, the courts in India followed English law of evidence when delivering judgment,
though only a portion of English law was applicable in the Mofussil area and Presidency
Towns. As a result, the position was rather unsatisfactory, and the Judges made
comments about it in their judgments in the case of Gajju Lal v. Fattehlal, ILR 6 Cal 171

In the words of Richard Garth, C.J.” The law of evidence is not just a fundamental
principle governing the process of proof rather it also has a multidimensional purpose of
governing the rules relating to the process of proof in court proceedings. So the process
of evidencing any facts or proof should be governed by a well-established law to
achieve speedy and fair justice…instead of binding the Courts of this country by the
strict rules of evidence, it would be more desirable and was in fact the intention of the
Evidence Act to render all decrees admissible in evidence “as facts” or “transactions,”
leaving it to the discretion of the Courts to attribute to each judgment its due weight. But
to my thinking this liberty of action would be extremely unsafe; and I certainly am not
surprised to find that the Legislature here was unwilling to leave to the subordinate
Courts in this country a discretion, which it has not been thought safe or right to entrust
to English Judges”.

Stephen Commission

The Stephen Commission was established in 1871 to write the Law of Evidence. On
March 31, 1871, Stephen delivered the Council a draft of the Bill, which was then
forwarded to the local governments, High Courts, and Advocates for their review. After
receiving their feedback, the Bill was submitted to the Select Committee, which made
the required changes before presenting it to the Council, which enacted it as The Indian
Evidence Act, 1872. (Act No. 1 of 1872). The Act has been amended multiple times
since it was enacted.

The Indian Evidence Act of 1872 is based on English evidence law, but it includes
several provisions adapted to the Indian realities and needs. Even though flaws in the
Act have been pointed out from time to time, the Act’s drafting is an example of the best
draftsmanship skill. It is very important to note that the Law of Evidence, which was
enacted in 1872, continues to be applicable with the least amendments possible over
more than 140 years.

Scope of Indian Evidence Act, 1872

The Indian Evidence Act of 1872 consolidates, defines, and amends the law of evidence
in India. It extends to the whole of India. The Act applies to all judicial proceedings in or
before any Court in India, including Courts-martial (except those convened under the
Army Act, the Naval Discipline Act, or the Indian Navy Discipline Act, 1934, or the Air
Force Act), but not to affidavits presented to any Court or officer, or proceedings before
an arbitrator.
 Important provisions under the Indian Evidence Act, 1872
In nutshell, the “Law of Evidence” can be defined as a set of principles for determining
disputed facts in court proceedings

Preamble- Interpretation clause and presumptions

The first part comprises the preamble of the act and chapter one. It provides definitions
for the terms used in the Act. This section is known as Preliminary.

Relevancy of facts
The second portion of the act is titled ‘the Relevancy of facts’. This section contains 51
sections starting from Section 5 to Section 55.

The sections that have been discussed in the second part are listed below:

1. The relevance of facts that are part of the same transaction (Section 6);
2. Facts that constitute the occasion, cause, or effect of the facts in issue (Section
7);
3. Facts showing motive, preparation, and conduct, previous and subsequent
(Section 8):
4. Facts required establishing the facts in issue, etc. (Section 9);
5. Things that are said or done by conspirators in regard to a common design
(Section 10);
6. Facts not otherwise relevant (Section 11);
7. Facts that allow the Court to determine damages (Section 12);
8. Facts that establish a right or custom (Section 13);
9. Facts showing the existence of the state of mind, or of the body or bodily feeling
(Section 14);
10. Facts bearing on the question of whether an act was accidental or intentional
(Section 15);
11. The facts illustrating the course of business (Section 16);
12. facts that amount to admission (Sections 17 to 23 and 31);
13. Facts which are confessions of the accused persons (Sections 24 to 30);
14. Facts made by people who cannot be called as witnesses in certain
circumstances (Sections 32 and 33);
15. Facts are statements, under certain circumstances (Sections 34 to 38). When
any statement for which evidence is given is part of a longer statement, a
conversation, or a portion of an isolated document, or is contained in a document
that is part of a book, or is contained in part of an electronic record, or is
contained in part of a connected series of letters or papers, evidence shall be
given of only that portion of the statement, conversation, document, electronic
record, book, or series of letters or papers that the Court considers necessary in
that particular case. (Section 39);
16. Judgments of Courts (Sections 40 to 44);
 It is based on the following two Latin maxims:
Nemo Debet Bis Vexari Pro Una Et Eadem Causa: States that no one can be
punished twice for the same offense.
Interest Republicae Sit Finis Litium : Says that it is in the best interests of the state to
put an end to litigation. It is based on public policy and ensures that lawsuits do not go
on for too long.
17. Establishes the relevance of third-party opinions, which is usually referred to in
day-to-day activity as an expert’s opinion (Sections 45 to 51);
18. Characteristics of the parties to a lawsuit (Sections 52 to 55).

Different Types of Evidence

Section 59 states that if evidence of any is to be given, it must be either oral or
documentary. Section 60 requires direct oral evidence. Section 61 specifies that the
contents of a document may be proven using either primary or secondary evidence.
Sections 62 to 66 deal with primary and secondary evidence and specify that primary
evidence of documents must be provided before mentioning the cases in which
secondary evidence may be given. Then there are provisions for submitting oral
evidence to prove the authenticity of a document (Sections 67, 67-A, 68, 69, 71, and
72). Sections 73 and 73-A deal with determining the term of a deed. Section 100 forbids
the Chapter from being applied to the provisions of the Indian Succession Act dealing
with the drafting of wills.

Manner of proof- Burden of proof- Presumption without

calling for proof
Part II dealt with the issue of factual proof; Part III of the Act addresses how the proof is
to be generated. This section is divided into five chapters. Chapters VII-XI. Sections 101
to 114-A of Chapter VII addresses the issue of burden of proof. They state that in
certain cases, the burden of establishing a fact falls on a certain person. Sections 112
and 113 deal with cases involving conclusive evidence. Section 114 provides that the
Court may presume the existence of certain facts that should occur in the normal course
of natural phenomena, human action, and public and private business without requiring
proof.

Section 111-A establishes a presumption of guilt for certain offenses. Section 113-A
provides for a presumption of suicide abetment if a married woman commits suicide
within 7 years of her marriage and has been subjected to abuse by her husband or his
relatives. Section 113-B establishes a presumption of dowry death. Section 114-A
provides for a presumption of lack of consent in some rape prosecutions.

Estoppel
Sections 115 to 117 of Chapter VIII deal with the issue of estoppel, another rule of
leading evidence. These provisions prohibit a person from giving false evidence by
preventing them from making contradicting statements in a Court of Law.

Competency, comparability, examination, and cross-

examination of witnesses and impeachment of witness
credibility
Chapters IX and X deal with competency, comparability, examination and cross-
examination of witnesses, impeachment of the credit of testimony of the witnesses, and
the use of previous writings of witnesses for refreshing their memory and also using
their previous statements for corroboration of their statement in Court.

A witness is considered competent when there is nothing in the law that prevents
him/her from appearing in Court and presenting evidence. The capacity of a witness to
understand and respond rationally to the questions posed to him determines whether or
not he is competent.

The competency of those who can testify as witnesses are covered under Sections 118,
119, 120, and 133. A witness may be competent but not compellable, which means that
the Court cannot compel him to testify. A court cannot compel foreign ambassadors and
sovereigns to appear before it to testify. A court cannot compel foreign ambassadors or
sovereigns to attend the court to testify. A witness may be competent and compellable,
but the law may not compel him to respond to specific questions. Restricted
comparability, often known as a privilege, is the term used to describe this situation.
This privilege is addressed in Sections 122–132. The quantum of evidence is covered in
Section 134. The examination, cross-examination, and re-examination-in-chief of
witnesses are covered in Sections 135 to 139. Sections 140 to 153 cover the types of
questions that can and cannot be asked during cross-examination of witnesses.
Evidence contradicting a witness’s cross-examination replies is not allowed under
Section 153. Under Section 154, the Court may, at its discretion, allow the person who
calls a witness to ask him any question that the other party might ask during cross-
examination. Section 155 talks about the impeachment of a witness. Section 158 of the
Act deals with giving evidence to contradict, impeach, or corroborate the credibility of
someone who gave evidence under Sections 32 and 33 of the Act. Sections 159 to 161
allow a witness to recall his memory by reviewing the previously produced record.
Sections 165 and 166 define the scope of the Judges and jury’s rights to examine
witnesses.

Admissibility of evidence
There is only one section in Chapter XI, Section 167, which states that there will be no
new trial for the improper admission or rejection of evidence.
  The Act is dynamic and has evolved over the years. Three of the most recent
amendments to the statute were the Information Technology Act of 2000, the
Criminal Law (Amendment) Act of 2013, and the Criminal Law (Amendment) Act
of 2018.

Judicial pronouncements with respect to the Indian

Evidence Act, 1872
State Bank of India v. Om Narain Agarwal, AIR 2011

In the above case, the Court highlighted that the main feature of the rule of evidence is
to limit the scope of the dispute before the Court to those facts that have logical
evidentiary value in determining a fact and to prevent giving judgments based on
illogical conclusions or prejudices, as well as to aid in the administration of justice.

Vijendra v. State (NCT of Delhi), 1997

In the light of the above case, the Hon’ble Supreme Court ruled that the prosecution
cannot record the accused’s statement since it violates the provisions of Cr. P.C., which
states that a statement made before a police officer during an investigation cannot be
used for any purpose unless it falls under the provisions of section 27 of 32 (1) of the
Evidence Act.

Emperor v. Aftab Mohd. Khan, 1939

In this particular case, the learned court explained the objective of Section 162 of the
Indian Evidence Act. The purpose of the provision and its proviso is to protect the
accused from false statements made by witnesses during the investigation. The Court
reasoned that the remarks provided by witnesses may have been influenced by the
police officers investigating the case and that admitting such statements as evidence
would be prejudicial to the accused.

Suresh Budharmal Kalani Alias Papppu Kalani v. State of Karnataka, AIR 1998

The Supreme Court has ruled that a confession made by an accused is inadmissible as
evidence and that a presumption can only be established from the facts, not from other
presumptions, through a process of probable and logical reasoning.

Kishore Chand v. State of H.P, AIR 1990

The burden of proof in a murder case is strict when it has to rely on circumstantial
evidence, and all circumstances from which a conclusion of guilt is to be drawn must be
fully established, and any circumstance consistent with the accused’s innocence will
entitle him to the benefit of the doubt, and confessions made in violation of sections 25
to 27 of the Evidence Act cannot be relied upon.
Adambhai Sulemanbhai Ajmeri v. State of Gujarat 2014

In the above case, the Hon’ble Supreme Court has clearly ruled that when the
prosecution relies on a subsequent statement recorded after the accused was detained,
such material cannot be considered sufficient material on record even for arresting a
person.

SK. Yusuf v. State of West Bengal, 2011

The accused was charged with murdering a girl and later burying her body – The trial
court convicted him based on his extrajudicial confession, absconding for a few days
after the occurrence, and the fact that he was last seen at the location of the incident.
While the appellant argued that his last scene at the place of occurrence and
abundance would not raise any presumption of guilt and that the extrajudicial
confession could not be trusted.

The court determined that there was no evidence that the deceased was last seen with
the accused right before her death. His sheer presence at the place of occurrence at the
likely time of occurrence would not raise any adverse presumption. Extrajudicial
confessions were also corroborated, and there were substantial discrepancies. The
mere fact of agreement could not be construed as a negative element against the
appellant. The appellant was acquitted because the chain of circumstantial evidence
was not complete.

Conclusion
The term ‘evidence’ refers to the state of being evident, i.e., plain, evident, or notorious.
However, it is used to describe something that tends to produce evidence or proof. We
can define evidence as a process that deals with both the right and the procedures.

The Indian Evidence Act contains a number of provisions governing, examination,

relevancy, admissibility, and evidence of facts. Confessions, character relevance, the
burden of proof in criminal trials, dying declarations, expert opinions and various stages
in the witness examination.

ADMISSION AND CONFESSION

Confessions under the Indian Evidence Act

 Meaning of Confession
 Difference between Confession and Admission
 Types of Confession and process of recording confession
o Formal Confession
o Informal Confession
o Retracted confession
 o Judicial confession
o Extra-judicial confession
o Retracted confession
o Confession by co-accused
 When is a confession irrelevant?
 Confession to Police, Police Custody and effect of police presence
o Confession in further discovery of facts

Meaning of Confession

According to Sir James Stephen “An admission made at any time by a

person charged with a crime stating or suggesting the inference that he
committed a crime”.

Though it an undiscovered fact that the term ‘confession’ is nowhere

defined or expressed in the Indian Evidence Act, but the inference
explained under the definition of admission in Section 17 of Indian evidence
Act also applies to confession in the same manner. Section 17 expressly
provides that any statement whether oral or in the form documentary which
put forward for the consideration of any conclusion to the fact in issue or to
the relevant facts.

Now after understanding the discovery of both the term it is very much
clear that when is put forward for the consideration of any inference to the
fact in issue or to the relevant facts in the civil proceeding then such
consideration of statements is known as confession. Thus, the confession
is something which is made by the person who is charged with any criminal
offences and such statements conferred by him shall be suggesting a
conclusion as to any fact in issue or as to relevant facts. The statements
may infer any reasoning for concluding or suggesting that he is guilty of a
crime. We may also define the confession in other words that the
admission by the accused in the criminal proceedings is a confession.

In Pakala Narayan Swami V. Emperor, Lord Atkin observed that “A

confession must either be admitted in the context of any offence or in
relation with any substantial facts which inaugurate the offence with
criminal proceedings. And an admission of serious wrongdoing, even
conclusively incriminating fact is not itself a confession”.

In, Palvinder Kaur V. State of Punjab the Supreme Court uplifted the Privy
Council decision in Pakala Narayan Swami case and substantiated their
arguments over two reasoning- Firstly, the definition of confession only
comes to exist when the statements conferring the admission that he is
either guilty of any offence or the admission is probating all the facts which
constitute the offence. Secondly, when the statement has different qualities
and contains such a mixture of confessional statements which conclude to
the acquittal of the person making the confession, then such statements
cannot be considered as a confession.

In Nishi Kant Jha v State of Bihar, the Supreme Court highlighted that there
is no wrong on relying some part of statements confessed by the accused
and neglecting the other part, the court has traced out this concept from
English Law and when court in its capacity understood that it has enough
evidence to neglect the exculpatory part of the confession, then it may rely
on the inculpatory part such confession.

Conclusively we can understand that the expression of confession means

any statements made by an accused which proves his guilt. And there is
just a thin line difference between the two terminologies of the Indian
Evidence Act that admission is no other different term than admission as a
confession only ends up in admission of guilt by the accused. So a person
accused of any offence makes any statement against him which may prove
his guilt, is called confession or confessional statement. It is observed that
confessions are upgrades of admission which makes it special, thus, it is
popularly administered that “All Confessions are admissions, but not all
Admissions are confessions.”

In Baburao Bajirao Patil v. State of Maharashtra [1] the court while deciding
the case explained the principle that “the Court before ascertaining the
facts for the purpose of deciding the facts in issues of the case, should
begin ascertaining the case facts with all other evidences possible related
to the case and then only it shall turn to the approach of confession by the
accused in order to administer complete justice to the conclusion of guilt of
the accused.

Meaning of Admission

Admission plays a vital part in judicial proceedings as if in a case either of

the parties to the suit in the judicial proceeding proves that the other party
has admitted the fact in issues or the relevant facts in the case then it
becomes easy for the Court to administer justice effectively as the court
need not take much evidence and has not to involve in the judicial
proceedings because the question of the case has already been settled by
either of the parties in the course of admission. Section 17 to 23 of the
Indian Evidence Act specifically deals with the portions related to
admission.

The word ‘Admission’ expressed in the Evidence Act means “When any
person voluntarily acknowledges the existence of any facts in issue or
facts”. Like in the case of confession we discovered that confession is not
much described in the Evidence Act in the same manner the Indian
Evidence Act also has not done much effective work on expressing, the
term ‘Admission’ in an outspread sense.

Section 17 of Indian Evidence Act, defines admission as any statement

made in either form such as oral, documentary or in electronic form which
has enough probative value to suggest or conclude any inference as to any
fact in issue or relevant fact.

Admissions have no definite pattern but still, it can either be formal or

informal. The formal admission is also called as judicial admission which is
made at the time of the judicial proceeding, while the informal admission is
those admissions which are made in during the normal day to day activity
like in the normal course of life. Formal admission or the judicial admissions
are completely admissible by the Court of law under Section 58 of the
same act and has much higher probative value into substantive any fact.
They are generally rebuttable in nature and require no further proof to
disprove the facts admitted in a court of law unless the court asks for the
same.

In, Nagindas Ramdas v Dalpatram Ichharam [2] the Supreme Court of

India explained the effects of admission, that admissions are generally true
and clear of any ambiguity, and they shall be considered as the best proof
for proving any fact in issue or relevant fact by the admission of certain
facts. On the other hand, the informal admission which is made during the
day to day activity just help in bringing the facts either by an oral or written
statement by the admission of either party.

Under the English law, the term ‘admission’ is specifically utilised in civil
proceedings, and on the other hand, the term ‘confession’ is used in
criminal proceedings. But, under the Indian statute, the Evidence Act didn’t
distinguish much between both the term rather the Indian Evidence Act
short distinguished as that- confession is a statement which is made by the
accused declaring himself guilty.

In CBI v/s V .C. Shukla the Supreme Court has lifted the concept of
admission and confession; and explained the difference that discretionary
and undeviating cognizance of guilt is confession, and the confession made
by the accused may be used as a piece of negative evidence against him.
But on the other hand, admissions acknowledged by the person admission
the fact may not be considered under the preview of Section 4 that is
conclusive proof of facts admitted, and the admitted matter or facts can
only be considered as substantive or probative evidence of admission.

Difference between Confession and Admission

The litmus test distinguishes the different terms of statements which are
confession and admission. The litmus test suggests that confession is
some statements which itself is complete in the conviction of the accused
the statements alone has the value of convicting the accused, and when
there is need of some supplementary or secondary evidence to prove the
conviction of the accused then it is an admission.

S.
Confession Admission
No.
The confession is something
which is made by the person
who is charged with any
When any person voluntarily
criminal offences and such
1. acknowledges the existence of any
statements may infer any
facts in issue or facts.
reasoning for concluding or
suggesting that he is guilty of a
crime.
The concept of confession
The concept of admission usually
usually deals with the criminal
deals with the civil proceedings and
2. proceedings and there is no
section 17 specifically deal with the
such specific section defining
definition of admission.
confession.
3. If the confessions are Admissions may be operated as
purposefully and are made on estoppels because they are not
someone’s own will then it may conclusive as to the facts admitted by
 be accepted as conclusive of
the person who in his statement admit
the facts confessed by the
some facts.
confessor.
Admissions may be used with respect
Confessions are always used to the person who has admitted any
4. or go against the confessor of facts or statements under the
the statements. exception of Section 21 of the Indian
Evidence Act.
As it is previously observed that
Confessions confessed by admission cannot be used against the
more than one person jointly person who is admitting the facts by
for the same offence can be any statements as they don’t have
5. considered against other much probative evidentiary value.
accused of the same crime Hence the admission made by the
under Section 30 of the Indian different personalities of the same suit
Evidence Act. cannot be used as evidence against
other persons.
Confession is the direct Admission gives the conclusion about
admission of matter or facts of the liability of the person who is
6.
the cases either in the form of a admitting any facts or matter either in
written or oral statement. the form of oral or written statements.

In, Sahoo v. the State of U.P, newly wedded women joined the new house
of her husband and after some time the accused murdered his daughter-in-
law, and after murdering her daughter-in-law he screamed “I have finished
her” and in the course of his statement many of his neighbours heard his
statement stating “I have finished her”. In this case, the court observed that
the statements made by the accused should be considered as confession
and they shall be regarded as confessionary in nature.

Types of Confession and process of recording confession

A confession may be of the different type according to the matter of the

cases. Broadly confession is differentiated into two different statuses like-
when the confession by the means of statements is given itself in the court
of law then such confession will be considered as judicial confession,
whereas, when the confession by the way of statements is produced at any
place other than court then such confession will lead towards extrajudicial
confession. The different sets of confession do not have the same
evidentiary values as of others and hence their values degrade and
upgrade by the circumstance that how what and where these confessions
are made. The exceptional feature of confession is that a conversation to
himself also leads toward a confession and this feature was lighted in the
case of Sahoo v. the State of U.P. where the accused has murdered his
son’s newly wedded wife as he usually has serious arguments with her,
and when the accused killed daughter-in-law it was seen and heard by
many people living there that he was uttering words while stating that “I
finished her and now I am free from any daily quarrels”. The court observed
in this case that the statement or the self conversation made by the
accused shall be considered as a confession to prove his guilt and such
confession should be recognised as a relevant in evidence in administering
justice, and just being in the case that the statements are not
communicated to any other person, other than him does not dilutes the
relevancy of a confession. Therefore confession made to himself is also
quality evidence which will be considered as relevant evidence in a court of
law.

Formal Confession

Formal confession is also known as Judicial Confession and those

statements which are made before an office of magistrate or in the court of
law during any criminal proceedings are known as formal or judicial
confession. A judicial confession not much other than a “plea of guilty” as
per the provision explained under Article 20(3) if Indian Constitution
otherwise any confession made against the person who is making the
confession will have no evidentiary value and he cannot be concluded
guilty of any offence on the behalf of such confession.

Judicial confessions should not be mixed up with informal confession

though being a part of the same branch but both have different values and
relevancy in determining the accused’s guilt. There may be some
arguments stating that a conviction can be arranged even on the basis of
an extra-judicial confession but on the other hand we must also see that
there is no reason in neglecting the arrangement of conviction solely based
on the judicial confession. So a confession made by the accused where his
statements are leading himself to the bar is probative evidence to prove his
guilt but all such confession shall be made in the presence of a magistrate
or in a court of law. On the other side the court must take care of all the
necessary steps to check if the confession made by the accused which
may prove his guilt must be voluntary and true, so that no innocent can be
charged for wrongful act of others as provided in Article 20(3) of the Indian
Constitution which talks about ‘self incrimination’.

Informal Confession

Informal confession is also known as extrajudicial confession and those

statements which are made at any place other than the place where there
is an absence of magistrate or at any place other than the court is
considered as an extra-judicial confession. It is not necessary that the
statements should have been addressed to any definite individual. Just like
in the principle of judicial confession, informal confession can also be made
in the form of prayer, the informal confession is in any private room or a self
conversation. But the court has to take care that no matter judicial or
extrajudicial confession, the confession by the accused must be consistent
with Article 20(3) of Indian Constitution which say ‘No one should be
compelled to give evidence against himself’ that means the confession
should be on the will of the confessor and must be true, then only a person
can be charged for any criminal offence.

A person expressing the guilt of the offence he committed to any private

person like any friend or his related persons than such commission of a
crime will cover the aspects of extrajudicial confession. Though both
judicial and extrajudicial confession can be accepted in the court but both
have different evidentiary value or different probative value so as to
establish any fact. Which means a conviction will not solely be based on
the confession rather the court will test the extrajudicial confession to make
any person guilty of any offence committed by him. What makes the extra-
judicial confession different from judicial confession is that extrajudicial
confession can be made to any private person which also includes a
judicial officer in his private capacity. The extra-judicial confession in some
cases also restricts a magistrate to record confession which he is not
empowered under Section 164 of the Cr.P.C.

In, State of Punjab v. Bhagwan Singh [3] the Supreme Court in this case
held that an extra-judicial confession’s value only increases when it is
clearly consistent and convincing to the conclusion of the case otherwise
the accused cannot be held liable for the conviction solely on the basis of
the confession made by him.
In, Balwinder Singh v. State [4] the Supreme Court has mentioned some
guidelines in the form of deciding the case that in the case of extrajudicial
confession it the court must check for the credibility of the person making
the confession and all of his statements shall be tested by the court to
conclude whether the person who made the confession is trustworthy or
not, otherwise a person who is not so trustworthy then his statements
cannot be used for making any inference to prove the guilt of the accused.

In, Sahadevan v. State of Tamil Nadu [5] the Supreme Court while deciding
the case has made few principles in the form of guidelines where the court
has to check such principles before admitting the confession of the
accused, The following principles mentioned by the Supreme Court are:

 Extrajudicial confessions are generally a very weak kind of evidence

by itself and the court must examine such statements efficiently.
 Extrajudicial confession should be made by the person’s own will and
such statements must be true.
 The evidentiary value of extra-judicial confession instantly increases
when it is supported by other such evidence.
 The statements of the confessor must prove his guilt like any other
fact in issue is proven in the judicial proceedings.

Retracted confession

The English meaning of retraction is ‘the action of drawing back something’

retraction confession is a type of confession which is previously voluntarily
made by the confessor but afterwards it is revoked or retracted by the
same confessor. Retracted confession can be utilised against the person
who is confessing some retracted statements if it is substantiated by
another independent and corroborative evidence.

In Pyare Lal v. State of Rajasthan [6] the Supreme Court, in this case, lifted
that a retracted confession has enough values to form any other legal
grounds to establish any conviction only if the Court satisfies that it was
true and was on someone’s own will. But the Court has to testify that the
conviction cannot be solely be made on such confession until and unless
they are corroborated.

Confession by co-accused: When there are more than one accused in a

case and they are jointly prosecuted for the same offence, and when any of
them confesses any statements against himself in such a way that he may
be proved guilty of that offence then the court on such believes may
prosecute other accused also who are jointly persecuted in the same
offence.

Illustration- If three persons Aman, Vinod and Vijay are charged jointly for
the same offence and they are prosecuted for the murder of Harsh. And
during the judicial proceedings, Aman gives confessions that he along with
Vinod and Vijay killed Harsh and if the statements of the Aman are
recognised as true statements then the court may use the confession of
Aman against all the accused and can prove the guilt of Vinod and Vijay
also. Evidentiary value of different types of confessions

Judicial confession

Section 80 of the Indian Evidence Act give the evidentiary value to the
judicial confession and expresses that a confession made in the presence
of magistrate or in the court which is recorded by the magistrate as
prescribed by the law then such confession shall be presumed to be true
and genuine confession and the accused can be tried with the offence.
Section 164 of CrPC empowers magistrate to record confession so it is not
necessary that which magistrate recorded the confession unless he is
restricted to record the confession. Hence, for raising the presumption the
identity of the accused must be clear and proved in the confession to
persecute him for the guilt of the offence he committed.

Extra-judicial confession
Though extra-judicial confession don’t have much evidentiary value as
compared to judicial confession but in the case of a written confession the
writing of the accused itself is one of the best evidence available to the
court to charge the accused of the offence. And if the confession is not
available in the form of written statements then the court may test the oral
confession of the accused which was made to any other person. On the
court’s discretion and satisfaction, the statements of the accused to any
other person may be admissible and thereafter the accused may be
prosecuted for the offence on which he is charged.

Retracted confession
Retracted confession has circumstantial evidentiary that the cognizance of
any offence the police investigate the case on the basis of their
investigation they examine the witnesses, fact in issues, accused and many
more things. If in the opinion of investigation, police found that the accused
is guilty of a particular offence then they submit a report to the concerned
magistrate or the court. During the court proceeding, the magistrate has to
take pieces of evidence and examines the accused and if on the behalf of
investigation report the courts find someone guilty of any particular offence
then the court shall direct the accused to confess the statements again.
When the trial begins the magistrate has to ask the accused that if he is
guilty of an offence or not and if the accused don’t plead guilty then he may
retract all the confession made to the police during the police investigation
and must substantiate his retracted confession. So the value of retracted
evidence has circumstantial evidentiary value, therefore, the court has to
make any inference very cautiously.

Confession by co-accused

The Supreme Court in the case of Pancho v. State of Haryana [7], held that
the confessions made by the co-accused do not have much evidentiary
value and they cannot be considered as a substantive piece of evidence.
Therefore the confession made by the co-accused can only be used to
corroborate the conclusion drawn out by other probative evidence.

When is a confession irrelevant?

Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence
Act, 1872 deals with condition that when can confession be irrelevant.

Section 24 of the same Act describes different instances when a

confession on the basis of such instances becomes irrelevant. Section 24
of Indian Evidence Act provides that a confession made by a person who is
accused of some offence is irrelevant if such confession comes out of any
inducement, threat or promise and such instances have proceeded from a
person in authority like police, magistrate, court etc., the other condition of
this section is that inducement, threat or promise should be in reference to
charge of any offence and all such inducements, threat or promise should
give benefit of temporal nature.

For better understanding, we may divide the complete structure into 4

different essentials that are:
  The confession must be out of inducement, threat or promise,
inducement, etc.
 Such confession should proceed from a person in authority.
 It should relate to the charge in question.
 It should have the benefit of temporal nature or disadvantage.

Thus, when these conditions are fulfilled then the confession becomes
irrelevant.

Confession to Police, Police Custody and effect of police presence

The essence of commission can be found in different statutes but Section

24 to 30 of Evidence Act and section 162 to 164 of CrPC specifically deals
with a confession.

Section 25 provides that “No statements made to a Police Officer shall be

considered as a confession for the purpose of proving that confession
against that person who is accused to the case”. The terms explained
under Section 25 of this Act has vital importance which makes sure that
any confession made by the accused to the police officer under any
circumstances until provided, is totally not admissible as evidence in a
court of law against the accused to prove his guilt.

Section 26 prohibits the judicial bodies to prove the guilt of accused by his
confession which is made to police in police custody. Section 26 imposes a
partial ban on provisions stated in Section 25 that confession made to the
police officer in police custody may be admissible if the confession
recorded in the immediate presence of a magistrate.

Confession in further discovery of facts

Section 27 lift the concept of the relevance of information received from the
accused by irrelevant confess made to police or in police custody which
may help in further discovery of facts of the cases. Section 27 provides that
whenever a fact is forcefully discovered in the course of receiving
information from accused during a police investigation or in the police
custody and whenever such information leads to the discovery of other
relevant facts they may be distinctly be proved.

In Pandu Rang Kallu Patil v. State of Maharashtra, while deciding the case
stated that Section 27 of the Indian Evidence Act was enacted as to lift and
to remove the ban provided in section 25 and 26 of the Act in such a way
that- Section 25 and 26, absolutely bans the admission of any confession
made to the police or in police custody but the objects of Section 27
provides the admission of statements made by an accused even to the
Police Officer and the objective explained by the Supreme Court was that
such confession may help in further discovery of facts which may help the
court to prove other facts related to the case.

RELEVANCY AND ADMISSIBILITY OF ADMISSIONS

 Introduction
 Definition of admission
 Principles of admission
 The relevancy and admissibility of admission
 Conditions required for the admissibility of evidence in Court
 Admissibility of evidence in the Courts
o Admissibility of evidence in the criminal proceeding
o Admissibility of evidence in the civil proceeding
 Case laws
o Lakshmandas Chaganlal Bhatia v. State
o Ambica Charan Kundu And Ors. v. Kumud Mohun Chaudhury And Ors.
o The state of Gujarat v. Ashulal Nanji Bismol
 Conclusion
 References

Introduction

According to the Due Process Model, the burden of proof lies on the parties to prove
their case. The common method of discovering the truth plays an important role in the
modernisation of evidence. If the allegations of one party are not disputed or contested
by the other, then no proof is required. Therefore, the evidence is introduced to the
judge to prove the required and important facts of the case.

As per the law, evidence helps in establishing the guilt or innocence of a person.
Section 3 of the Indian Evidence Act, 1872 defines the “Evidence.” The definition states
that any statements through which the court sanctions or requires to be presented
before it by witnesses, concerning matters of fact under inquiry, such statements or
documents are oral evidence. Whereas any documents including any electronic
evidence which the court permits or requires, concerning matters of fact under inquiry,
such documents are documentary evidence. There is no exact distinction between
admissibility and receivability under this Code. Evidence may be described as
inadmissible irrelevant evidence or an immaterial fact as evidence.

Definition of admission

According to Section 17 of the Indian Evidence Act, 1872, admission is defined as any
statement made by any of the persons, which suggests any inference as to any fact in
issue or relevant fact, and under certain circumstances. Admissibility simply means the
power to approach. Admission can be oral or documentary or contained in electronic
form. Thus, the admissibility of evidence means any evidence or document used in the
court of law to prove or disprove alleged matters of fact.

“Admissions are considered primary evidence and they are admissible to prove even
the contents of written documents, without notice to produce, or accounting for the
absence of, the originals.” In Bishwanath Prasad v. Dwarka Prasad, the court said
“Admissibility is substantive evidence of the fact which is admitted when any previous
statement made by the party used to contradict a witness does not become substantive
evidence. The Admissibility of evidence serves the purpose of throwing doubt on the
veracity of the witness.”

Principles of admission

In Basant Singh v. Janki Singh, the High Court mentioned some principles regarding
admissions:

 Any kind of statement in the plaint is admissible in evidence.

 No obligation on the Court to accept all the statements as correct and the court
may accept some of the statements as relevant and reject the rest.
 There is no distinction between an admission made by a party in a pleading and
other admissions.
 An admission made by a party in a plaint signed and verified by him may be used
as evidence against him in other suits.
 Admissions are always examined as a whole, hence they cannot be divided into
parts.
 Any admission cannot be regarded as conclusive and it is open to both parties to
show whether it’s true or not.
 Admissibility of a plea of guilt can be determined only if the plea is recorded by
the accused in his own words.
 An admission to have a substantive evidence effect should be voluntary in
nature.
 Admissions do not carry a conclusive value, it is only limited to being prima facie
proof.
  Admissions that are clear in the words of the accused are considered as good
evidence of the facts submitted.

The relevancy and admissibility of admission

The admission is said to be relevant when the facts are so related as to render the
existence or non-existence of other facts probable according to a common course of
events or human conduct. Nothing which is not relevant may be adduced as evidence
as per the law. In the common-law countries, the evidence is both ascertained and
simultaneously restricted by the assertions of the parties.

The Supreme Court in Ram Bihari Yadav vs. State of Bihar observed that the terms
‘Relevancy’ and ‘Admissibility’ are not interchangeable though sometimes they may be
taken as synonymous. However, all relevant evidence may not be admissible but all
admissible evidence is relevant. The legal implications of the relevancy and admissibility
are distinct. It is determined by the ruler of the Act that the relevancy is the test of
admissibility.

As mentioned in Amir Ali and Woodroffe’s Commentaries the word ” relevant” as used in
the Act, is equivalent to “having probative force” and the effect of the Section is to make
the evidence admissible in the circumstances specified independently of the consent of
the parties.

Relevancy has been stated in Section 5 to Section 55 of the Indian Evidence Act, 1872.
The concept of relevancy is based on logic and human experience. Relevancy merely
implies the relevant facts and signifies what facts are necessary to prove or disprove a
fact in an issue.

Admissibility is the concept in the law of evidence that determines whether or not the
evidence can be received by the court. Under the Indian Evidence Act, 1872, when any
fact has been declared to be legally relevant then they become admissible. All
admissible facts are relevant but, all relevant facts are not admissible. Admissibility is a
decisive factor between relevance and proof and only legally relevant facts are
admissible.

According to Section 136 of the Indian Evidence Act, 1872, the final discretion on the
admissibility of evidence lies with the judge. It states that when either party proposes to
give evidence of any fact, the judge may ask the proposing party to give the evidence in
what manner the facts were alleged, then the judge shall admit that, if he thinks that a
relevant fact and if the facts were proved relevant, then it would be considered,
otherwise not. The evidence is admissible only upon proof of some other fact until the
party undertakes to give proof of such fact, and the court is satisfied with such an
undertaking.

Conditions required for the admissibility of evidence in Court

Section 20 of the Indian Evidence Act, 1872 states the admissions made by any person
expressly referred to by party to suit. The section states, any statements made by a
person to whom a party to the suit has expressly referred for facts in respect to a matter
in dispute are referred to as admissions. This section also brings an exception to the
general principle of admissions which are made by strangers.

The admissibility of evidence depends upon the relevance and reliability of the fact. The
evidence is not related to the particular case, it is considered irrelevant and is
inadmissible in the court. Whereas, reliability refers to the credibility of a source that is
being used as evidence.

In K.M Singh v. Secretary Indian University Association, the court held that the
statement of the nominees under Section 20 of the Evidence Act would be treated as an
admission of the parties. The court said that a third person’s opinion shall be taken into
consideration when the third person is referred to by one party in reference to a matter
of dispute.

Admissibility of evidence in the Courts

Admissibility of evidence in the criminal proceeding

In criminal proceedings, evidence can only be produced when it is considered

admissible and relevant to the facts or issues. Here, the evidence is used to prove
whether the defendant in a disputed matter is guilty or not beyond a reasonable doubt.
The general rule is that the burden of proof always lies with the prosecution to prove the
guilt of the defendant. The substantive law in the criminal proceedings defines what the
appellant has to prove to convict the defendant. In criminal proceedings, the prosecution
must prove all the necessary elements of the offence laid out in the Criminal Code
against the defendant.

Admissibility of evidence in the civil proceeding

In civil proceedings, the evidence is generally produced in the form of government

documents such as leases, sale deeds, rent agreements, gift deeds, etc. The general
rule in a civil proceeding is that the burden of proof lies on “the person who claims must
prove”. In a civil trial, the legal burden of proving a fact lies on the party who claims that
fact. If the defendant denies the allegations and finds a positive default such as
“counterclaim”, then in that case the burden of proof shifts towards the defendant.
However, at first, the burden of proof lies on the plaintiff in civil proceedings, after that it
will shift to the defendant.

Case laws

Lakshmandas Chaganlal Bhatia v. State

In this case, the court laid down some “relevant facts” under Section 9 of the Indian
Evidence Act, 1876. The Court held that a fact in an issue became relevant if it is
necessary to explain or introduce, or facts which support or rebut an inference, facts
which establish the identity of anything or person, facts which fix the time and place at
which any fact in issue has happened and any facts which show the relation of parties
by whom any fact in issue was transacted.
Ambica Charan Kundu And Ors. v. Kumud Mohun Chaudhury And Ors.
In the case of Ambica Charan v. Kumud Mohun, a general rule of Section 11 is
controlled by Section 32, “when evidence consists of a statement of persons who are
dead and further tests the relevance of such a statement under Section 11. Though it is
not relevant and admissible under Section 32, it is admissible or relevant under Section
11. It states that it is admissible even if it is altogether immaterial, but it is highly material
that it was said whether it was true or false.”
The state of Gujarat v. Ashulal Nanji Bismol
The Court held that the expression means “admissible and relevant”, there is no implied
or explicit provision set out in this Act, which laid down the evidence “admissible and
relevant”, in respect to the consideration of the judge to pronounce the judgment.
However, it cannot be determined that any statements or documents which are not
admissible or relevant can be put on record or not. Hence, the Act does not guarantee
that the information which is insignificant or inadmissible cannot be recorded and put on
a record of facts if the judge’s found it unfit. Any Evidence or information that may be
inappropriate or admissible cannot be avoided or precluded from the record.

Conclusion
Hence, evidence is significant and crucial in both civil and criminal proceedings. It is the
most integral and indispensable element of any proceedings. The evidence should
always be admissible in court if the facts are relevant and reliable. The evidence shall
satisfy all the specific provisions under the code. Both logical and legal relevance
should be considered during admission. Hence, the courts should let in only those facts
which have a high degree of probative value that would help the courts.

The law relating to evidence is not suitable for the present age and it must be amended
for better functioning. The law is supreme and no man should be given the discretionary
power to bend it. There must be a distinction between the law and the discretionary
power of the judge. However, a new mechanism must be developed to admit or not
admit a particular evidence.

ORAL AND DOCUMENTARY EVIDENCE

Evidence is a very important element in any case. A piece of strong

evidence has the power to influence the case and have a huge impact on
the judgement. The origins of evidence as a concept in India can be traced
back to the Ancient Hindu Period. Before the enactment of codified law in
India, the principles of evidence were based upon the local and traditional
legal systems of different social groups residing in India at that time. The
term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ which
means ‘to show clearly, to discover, to ascertain or to prove.’ Evidence
means a certain, reliable and relevant set of facts that proves or abstains
from proving any matter. It includes everything that is used to determine or
demonstrate the truth.

The term “evidence” in its original sense signifies a state of obviousness,

that is, simple or obvious. But it applies to things that tend to provide or
produce evidence. In English law, the term “evidence” refers to what the
witnesses in the court said and displayed. The parts of a legal case that are
undisputed or not in controversy are known as the “facts of the case.”
Beyond any facts (disputed ones), a judge or jury is tasked with being a
trier of such facts. Evidence and rules are used to decide questions of fact
that are disputed.

In the year 1872 Indian Evidence Act was introduced by the Britishers. Sir
Henry Maine is named as the founding father of this Act. The Act was a
path-breaking judicial measure that changed the entire system of the Indian
judiciary.

In the Indian Evidence Act, 1872 the word “evidence” is used in different
phrases, i.e. best evidence, direct evidence, circumstantial evidence,
documentary evidence, substantive evidence, corroborative evidence,
derivative evidence, hearsay evidence, indirect evidence, oral evidence,
original evidence, presumptive evidence, real evidence, primary evidence
and secondary evidence.

In a Landmark case the Hon’ble Supreme Court in Kalyan Kumar Gogoi

v. Ashutosh Agnihotri and Anr. [AIR 2011 SC 760], held that the word
“evidence” is used in common parlance in three different senses: (a) as
equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to
the material, based on which Courts conclude the existence or non-
existence of disputed facts.

However, oral and documentary evidence are the two main kinds of
evidence.

 Oral Evidence
o Section 59 and Section 60 deal with Oral evidence.
 Section 59 Proof of facts by oral evidence
 Section 60 Oral evidence must be direct
 o Case law of Oral Evidence
 Documentary evidence
o Public Documents (Section 74)
o Private Documents (Section 75)
o Section 65 A and B
 Difference Between Oral And Documentary Evidence
o Definition
o Scope
o Form
o Submission
o Importance
 Exclusion of Oral Evidence from Documentary evidence
o Section 91
o Section 92
 Important Caselaw
 Documentary evidence outweighs oral testimony

Oral Evidence

Evidence that is restricted to spoken words, gestures or motion is known as

Oral evidence. It is evidence that has been personally heard or seen by the
witness. Oral evidence must always be direct or positive which means it
goes straight to establish the main fact in the issue. Section 3 of Evidence
Act 1872 defines evidence as “All statements which the court permits or
requires to be made before it by witnesses, about matters of fact under
inquiry, such statements are called as oral evidence”. The word oral
indicates something spoken or expressed by mouth; so anything which is
accepted in the court about the inquiry and expressed by any witnesses
who are called in the trial is called oral evidence.

The importance of Oral evidence has been explained by the Bombay High
Court in one of the cases that “if the oral evidence is proved beyond
reasonable doubt it can also be enough for passing conviction”.

Section 59 and Section 60 deal with Oral evidence.

Section 59 Proof of facts by oral evidence

This section enacts that all facts except that of the contents of a document
can be proved as oral evidence. In a landmark case of Bhima Tima
Dhotre v. The pioneer chemical co. It was held that “Documentary
evidence becomes meaningless if the writer has to be called in every case
to give oral evidence of its contents. If that were the position, it means that,
in the ultimate analysis, all evidence must be oral and oral evidence would
virtually be the only kind of evidence recognised by law. This provision
would indicate that to prove the contents of a document utilizing oral
evidence would be a violation of this section.”

Section 60 Oral evidence must be direct

There are 4 main principles of this section to be satisfied.
It refers to a fact that is ‘Seen’ by the witness.

This deals with the directness of oral evidence. Oral evidence can only be
given by such witnesses who have seen the crime/ issue themselves.

For example, A is present at the time B was murdered by C. A will be the

witness and give oral evidence.

If it refers to a fact that is ‘heard’ by a witness.

Oral evidence can only be given by such a witness who has heard the
crime/ issue themselves. For example, A has heard the conversation of C
over the phone to kill B. A will be the witness and give oral Evidence.

If it refers to a fact which could be perceived by any other sense or in any

other manner, by a witness.

Oral evidence can only be given by such a witness who has sensed the
crime/ issue themselves. For Example, A finds the behaviour of B very odd
around C who is B’s wife. Later C is found dead.

If it refers to an opinion or to the grounds on which that opinion is held by

the witness.

It means that if a person has an opinion on an incident, it should be solely

his opinion based on some grounds then only his testimony will be
considered. For Example, If A thinks C is a wicked person and responsible
for the incident, then C’s personal opinion shall be considered on those
grounds.
Case law of Oral Evidence

Amar Singh v.s Chhaju Singh and another

In this case, it was held that a relationship between section 50 and 60 of

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

State v. Rajal Anand

It was held in this case that section 60 of the Indian Evidence Act only
includes the word “direct” hence it excludes hearsay evidence. Any
evidence given must be direct and the hearsay evidence doesn’t have any
area under oral evidence since it’s not direct. But the doctrine of Res-
gestae has been observed as an exception to this rule of hearsay and has
explained that any person who has experienced any series of relevant
facts, this testimony by him/her after the incident even if he has not seen
the crime being committed will be accepted.

Documentary evidence

Section 3 of the Indian Evidence Act defines documentary evidence – All

documents presented before the court for inspection, to demonstrate or
show a reality are called documentary evidence. This definition also
includes electronic records produced before the court. Chapter 5 of the
Indian Evidence Act deals with documentary evidence. Section 61 to 90A
falls under this chapter. Sections 61 to 73A deal with the general rules for
proving documentary evidence in various cases, specifically Sections 61-66
of the Act, which gives answers to the questions that how the contents of a
document are to be proved. The content of documentary evidence can be
separated into three sections that are:

 How can the subject matter of a document be demonstrated?

 How the record is to be proved to be authentic?
 How far and in what instance oral evidence is excluded by
documentary evidence?

Sections 74 to 78 deal with public documents and Section 79 to 90-A deal

with presumptions as to documents.
There is an ancient Roman proverb that is “Vox Audita Perit, Littera Scripta
Manet” which means that Spoken Word will Vanish, but the Written Word
Remains. Hence the law of evidence recognises the superiority and
credibility of documentary evidence as against oral evidence. There are two
kinds of documentary evidence:

Public Documents (Section 74)

A public document is a reproduction of an entry contained in some kind of

public register, book or record relating to relevant facts or a certified copy
issued by an authority. Documents such as a birth certificate, marriage
certificate, a bill of a public water utility, an FIR filed before the police
station etc are some examples of public documents.

Private Documents (Section 75)

Documents like letters, agreements, emails, etc. which are exchanged

between contesting parties to a litigation are private documents.

Courts generally lean in favour of accepting public documents more readily

than private documents as the presumption is that the risk of tampering
with public documents is far less. Additionally, public documents have
genesis to some reliable source that can be traced back to for verification if
necessary.

Section 61 provides that the contents in documentary evidence can

be proved by

a) Primary Evidence (Section 62)

These are the “original documents” that are produced in the court for
inspection. There are 2 special circumstances explained under this section:

 When a document is executed in parts. In such cases, each part is

the primary evidence of the document.
 Where several documents are made by one uniform process such as
printing, lithography or photography, each is the primary evidence for
the contents of the rest.

b) Secondary Evidence (Section 63)

Section 63 of the Act provides Secondary Evidence.

Secondary evidence means and includes:

 Certified copies.
 Copies made from the original using a mechanical process while
ensuring the accuracy of the copy.
 Copies made from and compared with the original.
 Oral accounts of the contents of a document given by some person
who has seen it.

When the contents of a document are to be verified by oral evidence then

such document becomes secondary evidence.

Meaning, Role and Functions of Public Prosecutor

With the advancement of technology there came up new devices and

modes by which evidence could be collected. One of these forms was
electronic recordings. But since the Act was enacted in the year 1872,
these new developments were not a part of its definition for evidence.
Hence after an amendment to the same, these new forms of evidence were
made admissible in the court.

Section 65 A and B

Section 65 A and B provide the rules about the admissibility of Electronic

records.

Section 65 A -This section merely provides that the contents of electronic

records are admissible in the court of law and are to be proved following
the provisions of Section 65B.

Section 65 B – This section provides the various conditions to be fulfilled

for an Electronic record to become admissible.

With this amendment, electronic records became admissible as evidence in

criminal cases. But their use was still not permitted in civil cases until the
case of Amitabh Bagchi v. Ena Bagchi where the court allowed recording
the statements of the husband through video conferencing while
maintaining the usual safeguards. In this case, the court said that there was
no problem with using an electronic method for recording the statements of
a witness. In the case of Bodala Murali Krishna v. Bodala Prathima the
court explicitly held that during recording evidence through video
conferencing the usual safeguards has to be maintained.

Case law of Section 65

In a landmark case of State (NCT of Delhi) v. Navjot Sindhu the accused

was convicted under various provisions of IPC and POTA. One of the main
pieces of evidence produced in the court against the accused was the call
records of the accused’s phone. The court, in this case, said that Cellular
phone records are secondary evidence since the primary evidence will be
the records maintained by the telecom servers. However, the court said
that although the provision for the requirement of certification under section
65B (4) is not complied with still it would not be a bar to produce the
evidence which is otherwise admissible under sections 63 and 65 of the
Indian Evidence Act.

This case became the precedent and due to this in many cases,
certification was not done. At last in the case of Anvar P.V. v. P.K.
Basheer the court made certification compulsory stating that section 65B is
a special provision and thus it has to be complied with.

Difference Between Oral And Documentary Evidence

The distinction between oral and documentary evidence can be known on

the following bases:

Definition

Oral Evidence means the statements which are given by a witness before
the court, this includes all statements which the Court requires, or permits,
to be made before it, by witnesses concerning matters of fact under inquiry.

Documentary evidence means “when a document is produced before the

court then such document is considered as documentary evidence”.

Scope

The oral evidence is discussed under section 59 and section 60 of the

Indian Evidence Act.
The provisions of the documentary evidence have been discussed under
section 61 to section 66 of the Indian Evidence Act.

Form

The oral evidence is required to be direct and it becomes doubtful if the

statement contradicts the previous statement.

Documentary evidence requires that the contents of the documentary

evidence need to be supported by primary or secondary evidence.

Submission

Oral Evidence is the statement of a witness in oral form. Oral Evidence is

stated through voice, speech or symbols for its recording before the court.

Documentary Evidence is a statement submitted through the documents

and is composed of words, signs, letters, figures and remarks and
submitted before the court.

Importance

Documents are denominated as dead proof, this is distinguished from

witnesses who are said to be living proofs. Documentary evidence is
considered superior to oral evidence in aspects such as permanence,
trustworthiness etc.

There are many ways of trying the genuineness of documentary evidence

than there can be of oral evidence. In many cases, the existence of
documentary evidence excludes the production of oral evidence.

Exclusion of Oral Evidence from Documentary evidence

In India, the “Best Evidence Rule” has been regarded as a fundamental

principle on which evidence law depends, although it is not specifically
mentioned anywhere it’s the basis of sections 91 and 92 of the Indian
Evidence Act 1872.

Section 91
The provision of S 91 states that when evidence is reduced to a document,
then no evidence is required to be given for proof of those matters except
the document itself. Here are documents such as contract, or of a grant, or
any other disposition of property, and in all cases in which any matter is
required by law to be reduced to the form of a document.

There are two exceptions to these provisions:

(1) When a public officer is required by law to be appointed in writing; and

any officer has acted as such, the writing need not be proved;

(2) Will admitted to probate in India may be proved by the probate.

Tulsi v. Chandrika Prasad [AIR 2006 SC 3359]

In this case, Section 91 of the Evidence Act mainly says that we should
produce the original document for proving the contents of the same but it
does not prohibit the parties to adduce some evidence in case the deed is
capable of being construed differently for proving the way they understood.

Section 92

The provision of S 92 states that “When the terms of any such contract,
grant, etc required by law to be reduced to a document have been proved
accordingly as per section 91, no evidence of any oral agreement or
statement shall be admitted, as between the parties to any such instrument
or their representatives in interest, to contradict, vary, adding to, or
subtracting such instrument.

There are six provisos to this Section, namely:

Proviso (1): The facts which invalidate the document.

Proviso (2): Separate oral arguments.

Proviso (3): Separate oral arguments as a condition precedent.

Proviso (4): Distinct oral agreements made subsequently to renew or

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

Proviso (6): Extrinsic evidence of surrounding circumstances.

Important Caselaw

Bhawanbhai Premabhai v. Bai Vahali [AIR 1955 Bombay 320]

The Court held that Section 91 and 92 supplement each other. The
judgment further went on to hold that one necessary pre-requisite for the
application of Sections 91 and 92 is the presence of a contract between the
two transacting parties and when this is absent, the provisions lose
significance.

The evidence law of India regards the “Best Evidence Rule” as a principle
guiding the Indian Evidence Act 1872. By Best Evidence Rule we mean
that the secondary evidence won’t be applicable when primary evidence
exists. An essential component of the evidence law is that the best proof or
the best evidence ought to be given importance in all cases. Where the
demonstration of proof is shown by way of a record, this record is the best
evidence of reality. Oral evidence has less value than documentary
evidence because oral evidence requires corroboration for its acceptance.

Documentary evidence outweighs oral testimony

Shri Partap Singh v Shiv Ram

In a recent judgment, the Supreme Court held that revenue recorded

entries have statutory presumption attached to them, and oral evidence, on
the contrary, will not be sufficient, since witnesses may lie but documents
do not.

While allowing the appeal in this case the Supreme Court held that the
defendant had failed to rebut the presumption of truth based on reliable,
trustworthy and cogent documentary evidence to prove the relationship of a
tenant, and it would not be proper to rely on the oral evidence, as its
credibility in comparison to documentary evidence is much weaker.

Conclusion
Oral evidence, with its increasing approach, can be appropriate for passing
judgement if proved beyond a reasonable doubt. It is seen to be weak
evidence but its need has been growing in modern times. Incidents and
facts can be better understood through oral ways as the person who has
administered the incident itself can explain it in a more clear way rather
than the documentary form of evidence. Despite this, documentary
evidence has more value and courts are bound to accept the documentary
evidence more. Yet oral evidence has its consideration. It needed
corroboration. In brief, it can be submitted that two types of evidence are
given by the parties: oral and documentary evidence. In courts, the value of
oral evidence is less than documentary evidence. Because the law always
requires “Best Evidence Rule” as a principle guiding the India Evidence Act
1872.

On the other side, documentary evidence is of two types. Primary evidence

is more reliable and the best evidence considered by the court. In the
absence of primary evidence, secondary evidence is that which the
witnesses are giving based on their own perception. Direct evidence is the
best type of oral evidence since it can be proved. The person giving direct
evidence is available for cross-examination for testing its veracity. But
primary evidence is the best evidence in all circumstances.

Exclusion of Oral Evidence by Documentary Evidence

The term evidence has come from the Latin word “evident” which means
“to show clearly” or to prove. Evidence contains everything that is used to
reveal the truth or facts. In law the person on whom the burden of proof lies
has to produce the evidence before the court of law. It is also important that
the evidence which is produced before the court should be true.

Types of Evidence

The types of evidence are as follows:

 Direct evidence- It refers to the evidence directly about the real point
in the issue. It is the declaration of the observer as to key certainty to
be demonstrated. Example- The proof of an individual who says that
he saw the commission of the demonstration that comprises of
affirmed wrongdoing. The original document is also included in the
indirect evidence. Direct evidence is generally clear and convincing. It
is simply the hypothetical verification when the truth of the matter is
 demonstrated by direct declaration or facts. Direct evidence also
means that the person has heard, seen, perceived, form opinion and
after that revealed the facts.
 Circumstantial evidence- “Proof does not mean hard mathematical
formula since it is impossible”. It was told by Justice Fletcher
Moulton in regard to circumstantial event. He also said that these
proofs are strong but sometimes it leaves a gap through which the
accused escapes.

It was said by Justice Coleridge, that circumstantial evidence is like a

grassamer thread, light and visionary like air that easily vanishes with a
touch. If a witness gives evidence in a court that he saw a defendant while
firing a bullet to a a person and the person dies, then this is direct
evidence. In this case, the only that question arises is whether the person
is telling the truth or not. However if the witness while giving evidence says
that he is only able to recognize that he heard the shot, then arrived on the
scenes after some time and saw the gun in hands of the defendant with
fumes coming out, the proof is circumstantial as the circumstances may be
different from what he perceived.

 Real evidence- Real evidence means any tangible object which is

presented before the court as proof. It means the evidence of any
class or object which can be treated as proof, persons are also
included in this. Real evidence may be a weapon found at a place
where crime is committed or any dispute arising in a contract. Any
object, person or material that is used at the time of proceeding in a
court to make other parties feel guilty or to make him liable is real
evidence.
 Expert evidence- The law of evidence is drafted to make sure that,
the court only considers the proof that allows them to reach a valid
conclusion. When an issue arises such as a medical issue, then the
court needs expert advice to settle it. The logical inquiries included
are assumed not to be within the knowledge of the court. The cases
in which scientists and specialists are involved, there the role of
experts cannot be argued.
 Hearsay evidence- This evidence is also called as indirect,
derivative or second- hand evidence. In this type of evidence, the
witness tells the court about what he had heard from somebody but
has not seen anything. Thus it can be said that the witness does not
 tell about the circumstances with his knowledge but with the
knowledge of other person and what the other person told him. The
court does not take such type of proof seriously.
 Primary oral evidence- Oral evidence means that any
announcement which is made by an observer in the court, who has
personally seen the act, heard it and was present there. This
evidence is also called direct evidence contrary to hearsay. These
types of evidences are taken seriously by the court.
 Secondary evidence- The evidence which is given in the absence of
primary proof is called secondary evidence. Secondary evidence is
the evidence which is extracted from the original ones such as a
photocopy of an original document. At the point when the first archive
has been crushed or lost, and when the party has made a persistent
scan for it and depleted all sources and means accessible for its
generation then the optional proof is allowable.
 Oral evidence- When the proof is restricted to spoken words or by
gestures or motion then it is termed as oral evidence. Oral evidence,
when reliable, is adequate without narration or written proof to
demonstrate a reality or fact. Where a reality can be demonstrated by
oral proof, it isn’t essential that the announcement of the observer
ought to be oral. Accordingly, a speechless individual may give
evidence by signs or by composing. The reality can likewise be
demonstrated or shown by oral proof.
 Documentary evidence- Any evidence which is present as a
document before the court in order to demonstrate or show a
reality. The content of documentary evidence can be separated
into three sections:

1. How the subject matter of document can be demonstrated?

2. How the record is to be proved to be authentic? and
3. How far and in what instance oral evidence is excluded by
documentary evidence?

 Positive and negative evidence- By positive evidence the existence

of reality can be proved and by negative evidence non-existence of
reality can be proved. The people and the court should keep in mind
that negative evidence does not act as a good evidence.
 Substantive and Non-substantive evidence- Substantive evidence
are those evidences on which the court is dependent for the decision
of a case. The non-substantive proof is which either strengthens or
 validates the substantive proof to increase its worthiness of belief or
which disproves substantive evidence in order to impair the credibility
of a person.
 Prima facie and conclusive evidence- Prima facie evidence is
accepted valid at a first instance and demonstrates a fact in the
absence of contradictory evidence. Conclusive evidence is that
evidence which is not opposed by any other evidence. It is very
strong that it can bear any other evidence. It is of such a nature that it
compels the person who finds the fact to come to a certain
conclusion.
 Pre-appointed and casual evidence- The law prescribes this type of
evidence in advance which is necessary for the demonstration of
certain facts or for the formation of certain instruments. The evidence
which isn’t pre-appointed is called casual evidence. The casual
evidence grows naturally with the surrounding situations.
 Scientific evidence- Scientific proof is proof which serves to either
support or counters a logical hypothesis or speculation. Such proof is
required to be exact proof and translation as per logical strategy.
 Digital evidence- Digital evidence was recognized in Commissioner
of Customs, New Delhi v. M/s. C-Net Communication India Pvt. Ltd.,
AIR 2007 SC (Supp) 957. In this case, the Supreme Court held that
“digital electronic” would mean that decoder is multiple outputs, input
and logical circuits that changes coded input into a coded output. It
was additionally held that a decoder is a gadget which does the
opposite of an encoder, fixing the encoding so that the first data can
be recovered.
 Electronic evidence- This proof can likewise be as electronic record
delivered in court. The proof, even in criminal issues, can likewise be,
by method for electronic records. This would incorporate or comprise
of video conferencing.
 Tape record evidence- The tape itself acts as direct evidence, what
the person has said can be recorded and can be presented before
the court. Any previous statement made by a person can be tape-
recorded and if in the end, the person changes his statement before
the court then the tape-recorded statement can be presented before
the court in order to test the veracity of the witness. Tape recorded
evidence is more authentic than documentary evidence.

Difference between Oral and Documentary Evidence

 Oral evidence
Oral evidence means and
includes all statements which
are made by a witness in the
court.
It is a statement by a witness.
In oral evidence, the witness
tells about the facts by speaking
or with gestures.
Oral evidence is provided under
Section 59 and 60 of Indian
Evidence Act, 1872.
Section 59 of the evidence says like duplicate copies or as counterpart like
that it considers all facts as oral those which is signed by the parties or
evidence except electronic
evidence and documentary
evidence. Section 60 says that certified copies, that have been made by
oral evidence must be direct.
For example- any crime has
been committed by a Ram and
there is a person available at the
movement then whatever he
heard, sees, perceive, or forms
an opinion all this is considered
as oral evidence.
Documentary evidence
Documentary evidence means producing
a document before the court of law and
inspection is done by the court in order to
know the facts.
It is a statement of documents.
In documentary evidence, the facts are
told and it is recorded in writing.
Documentary evidence is provided under
Section 61 to 66 of the Indian Evidence
Act.
Primary evidence is considered as the
evidence which is given in several parts
photocopy of the document
whereas, Secondary evidence contains
the same mechanical process and also
contain counterparts of the document
against the parties.
For example- a photocopy of a document
or photograph.

Exclusion of Oral and 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. 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.

Exceptions

There are two exceptions mentioned under this rule:

 The general guidelines are that when some content of a document is

to be proved in writing, the writing itself must be produced before the
court and if it is not produced then secondary evidence should be
given. Exception- when any public officer is appointed for writing and
it is seen that a particular person has acted like such an officer then
in such situations, the writing by which he has been appointed need
not be proved. Example- Suresh appears as a witness before the
court, to prove that he is a civil surgeon there is no need to show the
appointment order. The surgeon only needs to show that he is
working as a civil surgeon.
 To the general guidelines of content of writing there is one more
exception mentioned under this- At the point when a probate (the
copy of will which is required to be certified by the court) has got
based on a will and subsequently question emerges about the
presence of that will, the mere presence of the probate will
demonstrate the presence of the will and the original will require not
to be produced.

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:

1-If any third party gives then it is admissible.

2-If any oral evidence is given which do not contradict the contract then it is
admissible.

Exceptions

 Validity of document

If any contract or grant is made between the parties and fraud is done by
other party or there is a mistake of fact, or mistake of law, or the party is not
competent to contract then in such circumstances oral evidence can be
given and it is admissible.

 Matters on which document is silent

Oral evidence can be given when the documents are silent but subject to
these two conditions are there:

1- The oral evidence should not contradict the document. Illustration – A

sells his horse to B and told about the price but the soundness of horse is
not told but oral evidence can be given that horse is of sound mind
because the document is silent here.

2- In allowing the proof of oral understanding the court is to have respect

the level of the custom of the record. On the off chance that the report is
formal, proof of oral understanding will not be permitted even on issues on
which the record is silent.

 Separate oral agreement as condition precedent

In this situation, it is provided that if there is any condition precedent is

constituted to the existing separate oral agreement to attaching of any
obligations under a document , then it needs to be proved.
  Recession or modification

This provision permits the proof of oral agreement by which the document
was either revoked or altered. When documents are executed then parties
orally agree to treat it as canceled or alter some of its terms, such oral
agreement is admissible.

 Usages or customs

If there is the existence of any particular usage or customs by which

incidents are attached to a contract then it can be proved.

 Relation of language to facts

If any document is written then oral evidence can be given of such a

document that what is mentioned in and in what circumstances it was
mentioned and how to interpret it but it should not exclusively contradict the
document.

Section 93- Exclusion of evidence to explain or amend an ambiguous

document. If the language used in the document is defective or
ambiguous, evidence cannot be given of facts which would show it’s
meaning. Illustration- A agrees to sell his cow to B in writing for Rs. 1500 or
Rs. 2000. Evidence cannot be given to show which price wast to be given.

Section 94- Exclusion of evidence against the application of

document to existing facts. When the language used in the document is
correct and when it applies correctly to the facts mentioned, evidence
cannot be given that it is to be proved that it was not meant to apply on
such facts.

Section 95- Evidence as to the document unmeaning in reference to

existing facts. When language used in a document is plain in itself,
however, is unmeaning in reference to existing facts, reality or situations,
proof might be given to demonstrate that it was used in an unusual or
different way.

Section 96- Evidence as to the application of the language which can

apply to one of several persons. At the point when the facts are with the
end goal that the language utilized may have been intended to apply to
anyone, and couldn’t have been intended to apply to multiple, of a few
people or things, proof might be given of certainties which shows the
people or things, it was planned to apply to.

Section 97- Evidence as to the application of language to one of two

sets of facts, to neither of which the whole correctly applies. When the
language used is applied partially to other existing facts and partially to
other existing facts but the whole does not apply to either of the facts
mentioned. Evidence can be given to show that which of the two it was
meant to apply.

Section 98- Evidence as to the meaning of illegible characters,

etc. Proof might be given to demonstrate the significance of obscured or
not ordinarily clear characters, of remote, out of date, specialized, and
provincial expressions, of abbreviations and of words utilized in an
exceptional sense.

Canadian-General Electric W. v. Fatda Radio Ltd held that for the

explanation of artistic words and symbols used in the record oral evidence
is admissible and can be used for that purpose.

Section 99- Who may give evidence of an agreement varying term of

the document? The person who is not a party to a contract or their
representative may give evidence of any fact which do not contradict with
the documents.

Conclusion

The value of documentary evidence is more than oral evidence. The court
mainly accepts documentary evidence but takes oral evidence into
consideration. Briefly, we can say that there are two types of documents-
oral and documentary evidence. In court, documentary evidence has more
value. Court wants best evidence and documentary evidence is the best
evidence and it consists of two parts primary evidence and secondary
evidence. Primary evidence is the best evidence recognized by the court.
In the absence of primary evidence, secondary evidence is given to the
Court. On the other hand, oral evidence is evidence given by words and
gestures and are not permanent it can be changed. Hence Section 91 and
92 exclude oral evidence by documentary evidence. Proof in the form of a
document can be submitted instead of giving orally.
Opinion of Third Person under the Indian
Evidence Act
Chapter II of the Indian Evidence Act talks about the relevancy of opinion of the third person. It
is also termed as an expert’s opinion which is broadly provided under Section 45- 51 of the act.
The provisions under this section are exceptional to natural rule of law of evidence where the
evidence is only that fact which is given by the witness on the basis of his knowledge and belief.
This exception states that the court cannot draw its opinion on the technical matters as well as
complicated matters which require the special knowledge of the person having acquired expertise
on the relative field. The conditions for the demand of the expertise include the situation where
the case cannot be solved without the help of the expert. The witness who is expressing its
opinion is an expert of the particular field.

Table of Contents

Expert explanation

 Duty of the expert

 Expert opinion Value
 Evidence of expert witness v evidence of ordinary witness
 Handwriting expert opinion
 Opinion for electronic evidence
 Opinion for foreign law
 Opinion for fingerprint
 Opinion for Science and art
 Opinion of medical expert
 Opinion of ballistic expert
 Conclusion

Expert explanation
Section 45 of the Indian Evidence Act provides information about the definition of expert. An
expert is said to be a person having knowledge or expertise in any of the field like foreign law,
science, art, identity of handwriting or finger expression and where such knowledge has been
gathered by him by practice, observation, studies. For example- Medical Practitioner, technical
experts, chemical and explosive experts, ballistic expert and fingerprint expert. The evidence of
points is admissible when he takes the court into complete belief. The opinion of the expert has
to be given orally only, certificate as well as report is not accepted as evidence. However, the
definition of expert under section 45 is not only extended to the five fields as mentioned in the
section. There are also other certain fields where the courts may seek the opinion of the expert.

Duty of the expert

The primary obligation of the expert witness is to assist the court on the cases which fall under
the ambit of their expertise. They are not bound to compel the parties to pay their fees who have
appointed them. There is a common perception that the clients who appoint the expertise make
their expert lean towards themselves hence making their cases favourable. The compromise with
the independence of the expert may turn down the appointment.

Expert opinion Value

There are two aspects of the expert evidence. Data evidence and Opinion evidence, generally
data evidence, are accepted until they vary the oral evidence. The second one opinion evidence is
drawn from the data and it would not get precedence over the direct eyewitness testimony unless
the inconsistency between the two is so great as to falsify the oral evidence. In S. Gopal Reddy
vs State of Andhra Pradesh the Hon’ble Supreme Court held that the evidence given without any
independent corroboration is rather difficult to accept.

Expert evidence is opinion evidence and it cannot replace the substantive evidence. It is the rule
of the procedure that the expert witness must be corroborated either by direct evidence or by
circumstantial evidence. It is always safe to rely upon such evidence with an independent and
reliable corroboration.

Evidence of expert witness v evidence of ordinary witness

The expert witness only provides opinion regarding the handwriting, fingerprinting, nature of
injury technical inquiry whereas an ordinary witness states the fact relating to the incident
happened. The nature of the expert witness is advisory whereas the witness states the facts to the
court. The opinion of the witness is not admissible in the court. The accountability of ordinary
witnesses is always considered more over the expertise witness.

Handwriting expert opinion

When the court is of opinion to take the handwriting of any person, or the opinion of any person
having expertise of handwriting admissible as evidence the person himself shall have to give the
opinion that if the handwriting has been written by him or not.

The handwriting of a person may be proved in the below given ways:

1. Evidence provided by the writer himself.

2. Evidence provided by a person who has seen the person, whose handwriting is in
question in writing.
3. A person who has received any document which is written by the person whose
handwriting is in question or under the authority of such person addressed to that person.
4. A person who is expert in comparing handwriting.
5. A person who is acquainted with the signatures and writing of that person.
6. A certifying authority who has issued the signature when the court has formed an opinion
to the digital signature of the person as mentioned under section 47-A of the Act.
 7. When the Court compares the documents in question with the other documents which are
proved genuine in the court as mentioned in section 73.
8. In the case of doubtfulness the court may ask the person to write something in the face of
court to compare it with the document.

Opinion for electronic evidence

When in a proceeding the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any electronic resource or any other electronic
or digital form, the opinion of the person taken in such cases is known as examiner of electronic
evidence. The examiner of electronic evidence is known as the expert in such cases. For this
section, electronic evidence includes any information transmitted or stored in any computer
resource or any other electronic or digital form, the opinion of the examiner of the electronic
evidence referred to in section 79A of the Information and Technology Act, 2000(21 of 2000), is
a relevant fact.

Opinion for foreign law

When it is necessary to form an opinion as to the law of the country, statements of such law
published in a book published under the authority of the Government of that country and the
reports of the cases decided by the courts of that country and contained in the books purporting
to be reports of such rulings, are relevant, that is may be referred to by the court. A statement
contained in an unauthorized translation of the Code Napoleon as to what the French law is on a
particular matter. The opinion of such experts can be taken under Section 4 of the Act. However,
the other reports of the ruling of the court can also be taken as relevant which are given in such
books of foreign law.

Foreign law in India is always considered as the question of fact. There have been the cases
where the court has interpreted personal laws as Indian Laws and thus are the laws of the land.
Therefore, the court does not require a person to interpret the laws as the courts can do tasks on
their own.

Opinion for fingerprint

The evidence given by a fingerprint expert need not necessarily be corroborated; but the courts
must satisfy itself as to the value of the other evidence. Generally, a finger impression expert’s
opinion is given more weightage because it remains the same from his birth to his death and no
other fingerprint can match with the one. Where the Court has to determine the credibility of the
fingerprint expert the court can review his past credential records as well as work records. In
case of being found suspicious the court can deny to entertain such evidence.

The evidence of the fingerprint expert is not substantive evidence. It can only be used to
corroborate some items of substantive evidence, which are otherwise on record. Fingerprint
studies have been given a higher importance these days but the court has been reluctant to accept
that as a piece of evidence. A person who is a fingerprint expert is said to match two fingerprints
thereafter the opinion of such expert is relevant and admissible in court.

Opinion for Science and art

The aforementioned words include all subjects on a course where special study and experience is
needed to make an opinion. The word science is very broad in practical use and they are not only
limited to the higher sciences similarly the term art is also not limited to the fine arts but also it
extends to the person having skills of handicraft, trade, profession and skill in work which, with
the advance of culture has been carried beyond the sphere of common pursuits of life into that of
artistic and scientific action.

To construe that if any expertise comes under the ambit of ‘art’ and ‘science’ the following tests
can be applied.

The subject matter of injury such that inexperienced people are not capable of forming a correct
judgement without the assistance of the experts.

The character of the science or art is such that it requires a course or a study to obtain a
competent knowledge or skill in the field.

The study of certain customs and manners of tribes and castes, of the areas occupied by them and
of other connected matter comes under the ambit of the science or art under this section. The
tests which may be applied in determining whether a particular question is one of the scientific
nature and consequently whether skilled witnesses may pass their opinion upon it are: Is the
subject matter of enquiry such that inexperienced men are unlikely to prove capable of forming a
correct judgement upon it without the assistance of the experts; that is does it so far partake of
the character of a science or art as to require a course of previous habit or study in order to obtain
a competent knowledge of its nature, Books dealing with customs and manners of different
castes and tribes are admissible in evidence to prove them.

Every science has its own technical terms, which are so much Greek or Hebrew to the average
juryman. What would the normal person can answer to the question whether a certain dose of a
prescription containing choral would have been dangerous.

Opinion of medical expert

In the medical cases the opinion of the medical expert is required. In criminal matters the victim
as well as the accused is examined. When the court requires the opinion of a medical expert in
the cases which involve medical technicalities it asks the medical expert to express its opinion on
the cases. The medical opinion may involve the physical condition of the person, his age, cause
of death of the person, nature and effect of disease, time of death, nature of instrument used for
causing death, symptoms and time of death, future consequences of the death. In the case of rape
the medical evidence possess a great importance as if the opposite counsel thinks that the rape
was consensual the skin cells and scratches on the body may prove an important aspect in the
decision of the case. But there is a problem with these experts is that they are always called by a
party who are having the evidence in their favour. That is why the court has to rely upon the
opinion of the expert though they have to consider being impartial while expressing their
opinion.

The Evidentiary value of medical cases is only corroborative and not conclusive and hence in the
case of conflict between oral evidence and medical evidence the former is to be preferred unless
the medical evidence completely rules out the oral evidence.

Opinion of ballistic expert

Ballistic experts, also known as firearms experts are people who are experts in the study of
projectiles and firearms. The Ballistic expert may trace the bullet or cartridge to a particular
weapon from which it was fired. The opinion of the ballistic expert is only taken into
consideration when he furnishes the report before the court.

Conclusion
The expert witness is totally different from the ordinary witness. The expert’s opinion can never
be questioned in the courtroom. In the case of question over the ability and knowledge of the
expert the opinion or report is brought into question. The expert opinion is judged from a
different view as he is unaware about the facts of the case and the court is unaware about the
field of expertise the case is related to.

Judicial Notice under the Indian Evidence

Act, 1872
Introduction
Facts need to be proved by way of adducing evidence in the Court of law. Evidence must be
produced in accordance with the procedures mentioned in The Indian Evidence Act, 1872 for
being admissible. The doctrine of judicial notice is an exception to this rule.

The doctrine of judicial notice is that certain facts do not need to be proved as the Court is
deemed to have knowledge of those facts. These facts are very general and well known by
everyone and proving them would be dishonour of the Court. It is stated in Section 56 of the Act
that facts that are judicially noticeable need not be proved.

Rationale
The doctrine of judicial notice flows from the English common law and has been incorporated in
the Indian Evidence Act during the colonial era by the British. Judicial notice is taken regarding
issues of both fact and law.

Regarding the domestic laws, the judge is presumed to have knowledge of the law or is capable
of acquiring it, which is a part of duties and responsibilities. This theory is an essential part of the
administration of our system of justice.

Other than the question of law, the matters of fact that must be judicially noticeable are so
general that anyone would have knowledge of such matters. For example:

 Ron was in Japan this weekend.

It is essential to prove whether or not Ron was actually in Japan this weekend, but the Court
knows that Japan is a real country that really exists, thus, there is no need to prove the existence
of Japan.

Such simple facts are to be judicially noticed in order to save time and effort of both the Court
and the parties.

Therefore, judicial notice occurs when the Court accepts certain facts to be true without either
party requiring to produce evidence for their support. The Court must take judicial notice of the
facts given under Section 57 of the Act.

Judicially Noticeable Facts

Section 57 of the Indian Evidence Act says that the Court shall take judicial notice of these
following facts:

1. All laws that are effective within the territory of India.

The Court is expected to know the law of the land. Any law that is in force in the territory of the
country must be known by the Court, and either of the parties is not required to prove the
existence of any such law.

2. Any public Act that is either passed or yet to be passed by the Parliament of the United
Kingdom (UK), and all local and personal Acts directed by the Parliament of the UK.

Even though India has become an independent country, we are still bound to take judicial notice
of all Acts of the British Parliament.

3. Articles of war for the Indian Army, Indian Navy or the Indian Air Force.
Articles of war as provided under The Army Act, (46 of 1950).

4. The proceedings of the Parliament of the UK and India, along with all other legislatures
established in India.

5. The accession and the signed document of the Sovereign (King, Prime Minister, President or
any other head of the state) of the Uk, Great Britain, and Ireland.

The signed manual or document of the Sovereign of the aforementioned countries need not be
proved. These countries have been incorporated, for the time being, other countries may be
added later.

6. All seals that English Courts will take judicial notice of, the seals of every Court in India
including the court of Admiralty and maritime jurisdiction, seals of notaries, and seals of any
person who is authorized to use by the Constitution or an Act of Parliament of both UK and
India.

7. he accession to office, names, titles, functions, and the signatures of people acquiring a post in
any public office on an ad hoc basis.

8. The existence of any country and its flag that is recognized by the Government of India.

9. The division of time, geographical locations of the world, and cultural festivals, fasts and
holidays notified in the Official Gazette.

With ‘division of time’, the Section refers not to longitudinal divisions but means divisions of
eras like Bengali, Hijri etc.

10. The entirety of territories that come under the dominion of the Government of India.

11. Any act of war or hostilities between the Government of India and any other state or
organization, or persons.

12. The names of the officers and members of the Court including their deputies and subordinate
officers and assistants, along with all advocates that appear before the court.

13. The law of the road at land and sea.

The law of the road at land means traffic rules. Vehicles should keep on the left side of the road
while driving is the rule of the road in India.

The law of the road at sea are the navigation rules, i.e:

a. That ships and steamboats on meeting should pass on the left side of each other to avoid
the risk of collision.
b. Small boats must stay away from big ships.
 c. Every ship overtaking another must keep a safe distance.

The section further prescribes that the judge is also expected to have knowledge regarding
matters of public history, literature, art or science. The judge may refer to books and documents.
If a person asks the Court to take judicial notice of any fact, the Court can refuse to do so unless
such person produces any book or document regarding that fact.

It is clear upon reading Section 57 that the Court has no other option but is obligated to take
judicial notice of such facts mentioned in the Section as it uses the word “shall” and not “may”,
apart from the facts mentioned in the provision.

Apart from the list of facts mentioned in the provision, the Court may take judicial notice of the
passing away of eminent personalities, date, and result of election polls or an event so famous
that the whole nation is aware of it.

These facts are widely known by every person and everyone knows them to be true, hence,
proving these facts is a waste of time and effort. The same was held by the Supreme Court in
Onkar Nath & ors v. The Delhi Administration.

Judicial notice allows a well-known or authoritatively attested fact to be produced as evidence

without having to prove them, as they cannot reasonably be doubted. Judicial notice is taken
upon the request of a party that submits the fact.

Relevant facts that are admitted under judicial notice are accepted by the Court even without
producing a witness. This rule is often used for the simplest and obvious facts that are considered
to be common sense and need not be proved.

Such as the approximate time of sunrise and sunset, or, which day of the week was a certain date
etc.

When customs are to be judicially noticed

Customs are very important in Indian culture and most personal laws have been legislated around
them, in the case of Ass Kaur v. Kartar Singh the Court observed that when a custom is
repeatedly brought to the Court’s notice, it need not be proved for every individual case.

Further, in the case of Jadu Lal Sahu v. Maharani Janki Koer, the Court held that the existence
of a certain custom that is generally known does not have to be proved by adducing evidence.
However, sometimes the details of rites and rituals that happen in a certain custom might have to
be proved by way of adducing evidence when the Court might need to know what really goes on.
The same was held in the case of Bhagwan Singh v. Bhagwan Singh.

Facts admitted need not be proved

Section 58 of the Indian Evidence Act says that if the parties or their agents have agreed to admit
a fact during the court proceeding, or in writing before the hearing then such fact need not be
proved, unless the court believes that the said fact needs to be proved.

It is obvious that when parties have agreed to admit a fact, it becomes an undisputed one and no
proof is required in its support.

Admission of a fact can either be expressed or implied. It is expressed when words are used to
convey the admission, and if the statements or conduct of the parties can be used to infer
admission then it is said to be implied. Admission can be made anytime from the institution of
the suit, till its disposal.

However, the evidentiary value of admissions made in pleadings is not very high. The Supreme
Court in the case of Gautam Sarup v. Leela Jetly observed that the admissions made during the
proceedings must not be treated like an admission made in a document. An admission made by a
party to a case is admissible against themselves.

But, later in the case of Ahmedasaheb & ors v. Sayed Ismail it was realized that admissions made
during the proceedings do not need any corroboration and hence is the best evidence. Once
parties make an admission, it cannot be taken back. Admissions once made will act as an
estoppel against the party admitting and that party cannot claim the admission to be untrue at a
later stage.

Admission may not be conclusive evidence but is the best piece of substantive evidence that a
party can rely on unless proved to be wrong. But it is not yet clear as to how much importance
should be given to admission, to determine the importance of admission, its clarity and relevance
as a piece of evidence must be determined.

A person under cross-examination should give his reasonable explanations and clear any
ambiguity of an admission. The same was held in the case of Union of India v. Ibrahim Uddin.

Admissions by counsel
A counsel is an agent of the party that represents the party itself in the court. An admission made
by a counsel is binding on his client unless he makes a wrongful admission regarding a point of
law.

The reason behind this is that an admission of fact by a party of his agent will act as an estoppel
against him at the later stage of the trial, but a wrong admission on a point of law will not.

In the case of Rangappa Goundan v. Emperor, the Court held that counsel can only make
admissions in civil cases and is not authorized to do so in criminal cases that might lead to
prosecution not having to adduce evidence in order to prove his case.

In a criminal case, the accused is considered to be innocent unless proven guilty and it is upon
the prosecution to prove the accused’s guilt beyond any reasonable doubts. Admission made by
counsel on behalf of the accused might relieve the prosecution of his responsibility of proving its
case.

Further, in the case of Nagindas Ramdas v. Dalpatram Ichharam, it was held by the Apex Court
that any admission of a fact made by a counsel is not considered to be conclusive proof and the
same may be proved to be wrong.

Admission in Criminal Cases

Section 58 was not initially applicable in criminal cases but it has been made applicable by the
High Court of Bombay in the case of Emperor v. Bansilal Gangaram Vani.

The burden of proof in criminal cases lies upon the prosecution, he is obligated to prove the guilt
of the accused beyond all reasonable doubts and even after the admission of guilt by the accused,
the prosecution is still obligated to prove the guilt of the accused beyond reasonable doubts.

Conclusion
Sections 56 to 58 of the Indian Evidence Act, 1872 give power to the court to exempt the parties
from their obligation to prove certain facts. These provisions rely on judicial wisdom and
integrity to further the object of speedy justice.

Judicial notice has been divided into three categories. Section 56 prescribes the Court as to when
it may judicially notice certain facts. However, under this Section, the Court is not obligated to
take judicial notice and it is totally upon its discretion.

Section 57 talks about what facts the court is obligated to take into judicial notice, and through
Section 58 the Court has been vested with the power to take judicial admissions into account
which need not be proven during the trial.

The intent behind these provisions is to save the time of the Court and not humiliate the wisdom
of the Court by having to prove unnecessary facts that are known to everyone.

DYING DECLARATION

 Introduction
 Definition
 Types of Dying Declaration
o Gesture and Signs
o Oral and written
o Incomplete Dying Declaration
o Question- Answer form
  Reason for admitting dying declarations in evidence
 Fitness of the declarant should be examined
 Who should record the dying declaration?
o Recorded by a normal person
o Recorded by the doctor or a police officer
o Recorded by the magistrate
 Language of the statements
o Statements made in different languages
o Points to remember
 Multiple dying declarations
 Expectations of death is not necessary
 F.I.R as a dying declaration
 If the declarant does not die
 Criticism of dying declaration doctrine
 Dying Declaration in India
 Distinction between Indian and English law
 Requirements of dying declaration
 Pakala Narain Swami v. Emperor Case
 Dying declaration Case laws and landmark Judgments
 Dying deposition
o Illustrations
 Comparison Between Dyeing & deposition declaration
 Identification through dying declaration
 Absence of medical statement of fitness
 Statement is not relevant to the cause of the death
 Medical report
 Doctor statement
 Dowry death, wife burning
 Evidentiary value of dying declaration
 Exception of dying declaration
 Dying Declaration should be free and spontaneous
 Conclusion
 References

Introduction
Whenever any offence has been committed, there is always the two persons, who voraciously
knew what actually happened i.e. the Accused, who commit the offence and the other one is
Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give Statements to judge
but their story one can not rely on the veracity of statements which they made to support their
stories, as it may be prejudiced or untrue so generally, the role of Witness becomes crucial to
determine the truth.
But there is a condition when the statement made by the person to be treated as true evidence in
spite of the fact that he made the statement in his own favour and hardly any doubt behind the
reason for that statement. That condition is Dying Declaration.

Dying Declaration is a statement made by the person while he was dying and states the reason
for his death. The statement given by the dying person can be circumstantial or tells the cause for
his death. Hence, the only statement given just before the death of a person is called Dying
Declaration. The person who is conscious of Compos Mentis and knows that death is about to
happen can make a declaration and state the cause of his death and that statement will be
Admissible and treated as Evidence in the Court. Declaration made by the deceased person can
be in oral, written and by conduct. The word Dying Declaration explain the word itself.

Definition
In Section 32 (1) of Indian Evidence Act defines when the statement is made by the person as the
cause of his death, or as any of the circumstances of the transaction which resulted in his loss of
life, in cases in which the cause of that person’s death comes into question. Such statements
made by the person are relevant whether the person who made them was alive or was not, at the
time when they were made, under the expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into question.

The statement made by the deceased person will be treated as Evidence and Admissible in a
Court of law. The reason behind this can be followed by Latin maxim Nemo Mariturus
Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying 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
Evidence in Court, and can be used as a weapon to punish the culprit.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be Oral,
Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the form of
Question Answer. However, there must be a distinct and definite assertion on the part of the
person who produces the statement. Possibly the declaration should be in written form in the
exact words stated by the person who made the statement. When a magistrate records the dying
declaration, then it should be in Question-Answer form as the magistrate will opt the maximum
information rightly, as in some cases dying declaration becomes the sole way to help in the
conviction of the accused.

Let us discuss some of the types in the elaborative form:

Gesture and Signs
In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the offence of
murder before the court of session. That he had murdered one DULARI, a prostitute by cutting
her throat through RAZOR. It seems that one-morning dulari with her throat cut was taken to the
police station and from there to the dispensary. She was alive till the morning. The post-mortem
report shows that the windpipe and the anterior wall of the gullet had been cut through. When
Dulari was taken to the police station, she was questioned by her mother in the presence of a sub-
inspector. She was again questioned by the sub-inspector, deputy magistrate and subsequently by
the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs. Magistrate asked
dulari, as who had wounded her, but due to the injured condition dulari was unable to speak.
After that, The magistrate mentioned several names one by one and asked if they had wounded
her. Dulari moves her hand forward and backwards and made negative and affirmative signs.
Subsequently, the magistrate asked whether Abdullah had wounded her, for that dulari waved
her hand made the sign in the affirmative, the magistrate recorded the statement. After that
question was put to her that if she been wounded with a knife or sword. In this regard, dulari
makes a negative sign, again magistrate asked her if she had been wounded with the RAZOR.
She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same was accepted as
evidence to prosecute Abdullah.

Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by her in the form
of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the hospital on the
night of December 16, 2012 and 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.

Oral and written

When the person gives the name of the murderer to a person present and written by any of them
then it is a relevant dying declaration. However, people may dispose of the name of the mugger
orally.
An oral dying declaration is admissible in evidence as an exception to the general rule of
evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration made
before his wife, father-in-law and other near relatives were made in the conscious state.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and brother gave the
evidence, that the deceased made the statement month prior to the incident of suicide by her that
the appellant, her husband used to taunt the deceased saying that she had come from a hunger
house and the appellant himself go to the house of deceased and asked for 10.000/-. It was held
that the dying declaration and appellant were convicted under section 304B and 498A of IPC.
The Court referred to Pakala Narain Swamy v. Emperor[3]. in which Lord Atkin: held that the
circumstances of the transaction which resulted in the death of the declarant will be
admissible if such transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be admissible as
evidence. When the condition of the deceased is grave and at his own request a statement made
by him in the presence of the doctor was later taken by the police but could not be completed as
the deceased fell into a coma from which he could not recover. It was held that the dying
declaration was not admissible in court as the declaration appears to be incomplete on the face of
it. But the statement, though it is incomplete in the sense but conveys the declarant all necessary
information or what he wanted to state, yet stated as complete in respect of certain fact then the
statement would not be excluded on the ground of its being incomplete.

The deceased stated, “I was going home when I came near the house of Abdul Majid, Sohail shot
me from the bush. He ran away. I saw.” this was the dying declaration made by the deceased and
further was unable to answer the questions. It was held that there is no question of
incompleteness so far as the context of the case is concerned. In the case of Muniappan v. State
of Madras[4]. The deceased made the dying declaration as follows :

“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of kamnav-
kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he was dead.
This declaration against Muniappan was complete and admissible.

Question- Answer form

Dying Declaration can be made in the form of Question-answer. the deceased, in some of her
statement, did not state the actual part played by the appellant. She merely answered the
questions put to her. The court held that when questions are put differently then the answer will
also appear to be different. At first glance, the detailed description of the offence may appear to
be missing but the statement of the deceased construed reasonably. However, when the
magistrate records the dying declaration, it must be preferred to be recorded in the form of a
question-answer must be preferred. If there is nothing to doubt that the person who records the
statement made by the deceased exact word to word, would not make any difference merely
because the same was not recorded in the form of question and answer.

Reason for admitting dying declarations in

evidence
A dying declaration is admitted in evidence that is truly based on the principle of “Nemo
moriturns proesumitur mentiri (man will not meet his maker with a lie in his mouth). Dying
declaration does not require any corroboration as long as it creates confidence in the mind of the
Court and free from any form of tutoring. In case Uka Ram v. State of Rajasthan[5]. Court held
that dying declaration is admitted upon consideration is made in extremity; when the maker of
the statement is at his bed end, every hope of this world is gone; and every motive of falsehood is
silenced and mind induced to speak only truth. Indian law recognises this fact that “a dying man
seldom lies”.

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement must be in a fit state
of mind. If the court has the slightest doubt about the mental soundness of the maker of dying
declaration, it is unsafe and unfair for the base on such a statement.

The mere fact that the victim in his dying declaration did not make any reference to injuries
received by the accused is not a genuine ground that decides the merit of dying declaration.
Where the dying declaration was recorded by the doctor who himself certified that the patient
was in a fit condition for giving the statement, his non-mentioning that the patient was in a fit
mental condition and throughout remained conscious would be of no consequence. In case State
of M.P. v. Dhirendra kumar[6]. The mother-in-law of the deceased was in the position to reach
the upstair within 5 to 6 minutes after hearing the cry of the deceased. According to the opinion
of the autopsy surgeon, the deceased was able to speak about 10-15 minutes. The Supreme Court
did not agree with the view of the High Court that the deceased is not in a position to make the
dying declaration, as it was reaffirmed by the autopsy report and circumstances of the case that
the deceased was in a fit state of mind to talk when her mother-in-law reached the place where
the deceased was dying.

Whereas in the case State of Orissa v. Parasuram Naik[7]. The accused, the husband was alleged
that he poured petrol on the body of his wife and lit a fire. Whereof extensive burn injuries were
sustained by the deceased wife. It was held that the oral dying declaration to her mother can not
be accepted because there was no certificate by medical officer certifying that the deceased was
medically fit to make a statement.
It is improper to reject the dying declaration on the ground that the fitness of the maker depends
solely on the certificate of the doctor and the magistrate himself did not require independently as
to whether the deceased was in a fit state to make a dying declaration.

As in the case of Arvind Kumar v. State of Rajasthan[8]. The accused is charged with an offence
under Sections 304B and 498A of IPC. The dying declaration was recorded by Naib-Tahsildar
but did not take any certificate from the doctor regarding the fit state of mind of the deceased nor
there was any endorsement by the doctor. The doctor testified that the dying declaration was
recorded by the reader of Naib-Tahsildar. No preliminary questions were asked from the
deceased before recording his statement. The naib-Tahsildar also stated that he did not seal the
recorded statement of the deceased and carbon copies provide instead of the original copy of
dying declaration of the deceased during cross-examination. The mother of deceased
categorically refused to put a signature or thumb impression on dying declaration which showed
that the dying declaration made in the hospital room was a lie. All these facts created doubt and
truthfulness of dying declaration and held that the alleged dying declaration could not be
admissible and reliable document as it suffered from a number of infirmities. However, the
accused were convicted on the basis of entire evidence.

In case Dhanraj and other v. State of Maharashtra[9]. The dying declaration was challenged on
the ground that no medical certificate was attached to the condition of the deceased. However,
the deceased went to the hospital all alone by changing different vehicle in the way. The
statement of doctor and magistrate was on record to indicate that the deceased was in a fit state
of mind to give a statement. Such circumstances can be used as supporting evidence about the
mental condition of the deceased.

When the deceased made a dying declaration and while stating that fell into a coma before
completing the statement, it would have a serious effect on his capacity to make such a
statement. Certificate of fitness given by the doctor with regard to this condition of the deceased.
Such an opinion should be accepted by the court. If the circumstances so demand, such opinion
must be carefully balanced with all other surrounding facts and circumstances.

In a case Rajeev Kumar v. State of Haryana[10] medical opinion shows that the deceased larynx
and trachea were charred by heat. It was clarified that when larynx and trachea are charred, the
person can not speak but when they are in the process of being charred, he can speak. The second
medical opinion was if the vocal cords or larynx is charred of a person, he may be able to speak
but not clearly and it will be difficult to understand. The medical report of two is not in variance
with the ocular evidence that the deceased was in a position to speak when dying declaration was
recorded and the court can rely on such dying declaration.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person who is
recording the dying declaration must have some nexus with the deceased either circumstantially
or by some fact. However, the doctor or police officer hold more value as compared to the
normal person. As far as the dying declaration is concerned the magistrate entrusted to record the
dying declaration, as the statement recorded by him is considered more evidential rather than
statement recorded by the doctor, police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the person dies of
burn injuries. Court hold the opinion that “The law on the issue can be summarized to the effect
that law does not give any direction that who can record a dying declaration but just provided
that magistrate is above all the person in subject for recording the statement, nor is there any
definite form, format or procedure for the same,” said a bench of Justices B S Chauhan and
Dipak Misra while quashing the high court order in the case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in a fit state of
mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police officer, but if it
is recorded by the judicial magistrate that it will have more credential value and reliability.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some circumstances where the
judicial magistrate, police officer and doctor is not available, the Court can not reject the dying
solely statement made before the normal person. But the person who records the statement must
show that the deceased was in a fit state of mind and conscious while making the statement no
matter if the statement is not recorded by Judicial Magistrate, doctor and police officer. The
statement is admissible in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated condition of the
declarant, the statement can be recorded by the doctor or by a police officer. But one condition
must be coupled with it that while recording the statement there shall one or two-person present
there as a witness otherwise the Court may find the statement to be suspicious. Moreover, the
statement record by the doctor, later endorses that the declarant was not in a stable condition and
his statement would not be considered as evidence, rectify by the witness that the deceased was
in a fit state of mind and conscious to make the declaration. It was held in the case of N. Ram v.
State[11] that the medical opinion can not wipe out the direct testimony of an eye witness which
states that the deceased was in a fit mental condition and able to make a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has deemed to be considered
as reliable and attracts the evidentiary value as he presumed to know how the dying declaration
should be recorded and he is a neutral person. Moreover, the magistrate has empowered to record
the dying declaration under 164 of Cr.P.C.
Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to record the
statement of the dying person, no matter whether he has jurisdiction over that case or not, and in
case where the statement recorded by the magistrate who has no jurisdiction in that case
subsection (6) will apply. Here the word “statement” does not confine to only the statement by
the deceased and witness but also include a statement of the accused, in order to satisfy himself,
but the accused statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall have the
power to record the dying statement made by the dying person, whether the magistrate has
jurisdiction in that particular case or not, he will be able to record the state provided under this
chapter or by any other law for the time being enforced, or at the time before the commencement
of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who record the statement
should tell the accused that he has to made only statement which shall not be amount to
confession, but if he did so, then the confession can be used against him for the purpose of
conviction. This is the sine qua non for recording confession. The other important requirement is
that the Magistrate must raised questions from the wrongdoer to satisfy himself that the
confession made by the accused was voluntary so as to enable him to give the requisite
certificate under subsection(4) of this chapter. The judicial magistrate here tell the accused that
he is not bound to make a confession, but he did not ask the question from the accused in order
to satisfy in question, whether the statement made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the Magistrate did not clear
the rule that the statement made by the accused should not be amount to confession, if he does so
then it will be used as evidence against him, can not be considered. The Magistrate must satisfy
himself that the statement made by the accused voluntary, no pressure or force was used on the
accused while making the confession. Any mark of the person of the accused to vitiate the
voluntary character of the confession. When was held not only inadmissible under the section but
it could not be used under the other provision of Indian Evidence Act such as sections 21 & 29.

Language of the statements

As far as the language of the statement is concerned, it should be recorded in the language of the
deceased in which he is fluent or may possible than in Court language. The court cannot reject
the dying statement on the basis of the language in which it was made. It can be recorded in any
language. Even if the dying declaration is made by the deceased in Urdu, Hindi, Punjabi
languages, it was considered that statement could not be denied on the ground of language in
which it was made solely or on the ground that it was recorded in Urdu. When the statement was
given by the deceased in Urdu and the magistrate recorded it in English than in that case
precaution should be taken while in explaining every statement to the deceased by another
person, it was declared that the statement was the valid dying declaration.

Statements made in different languages

When two dying declaration was recorded in two different languages on is in Marathi and the
other is in Hindi and the deceased were proficient in both the language the statement could be the
basis of conviction as it was held in the case of Amar Singh Munna Singh Suryavanshi v. State
of Maharastra[13].

Points to remember
1. Dying declaration made by the deceased can be recorded in any language.
2. If the statement was recorded in another language than the one which magistrate
recorded, then precautions should be taken to explain each and every aspect and phrase.
3. The court cannot deny or discard the dying declaration only on the ground of language.

In Biju Joseph v. State Of Kerala[14] it was observed by the court that only ground that the
statement of the deceased made was in her own language can not reduce it value of the dying
declaration. It was given by the High Court Of Kerala:

“Presumed that the statement made by the deceased when he was dying recorded in his language
in which he has command or fluent, does not vitiate it value and court can not denied or rejected
on that basis. Judicial magistrate entrusted with the duty to convert the statement in court
language. And such translation process would not affect the credibility that dying declaration”.

Multiple dying declarations

Supreme Court Of India in concern to multiple dying declarations, it can be considered upon
without corroboration if there is no breakdown of fact in all the dying declaration. If all the dying
declarations are similar to each other and state correctly the cause of death, and there is no
contradiction between the statement it can be admissible But if the dying declaration is different
from each other and there is a contradiction between them, then court will cross-examine the
facts of the case or can examine the statements of other witnesses to determine the truth and
sanctity of statement regarding the case.

The statement of the deceased should match the facts and circumstances of the case. It is very
important to understand the character of multiple dying declarations. Points to be considered in
multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the court will examine the
facts of the case with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay[15] that case Court set the importance rules for dying
declaration and what is the right process or manner to record it. In this case, if the dying
statement made by the deceased. That it should be recorded in the form of question answer form,
shall be endorsed/supported by the doctor that the deceased was in good mental state, can be
recorded by the person who is legally entitled to record, if there are multiple dying declarations
than it should be consistent, so that the court can rely on it.
The Supreme Court has held that multiple dying declarations can be reliable when it made
without corroboration if consistency is maintained throughout the statement. Otherwise, the
courts would have to cross-examine the statements of other witnesses to determine the truth in a
criminal trial.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has
taken this law from English law. If the statement has been made even when no cause of death
had arisen then also the statement will be relevant. It is not important at all that the statement
recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor[16], it was held that the letter given by the deceased to his
wife before going to the place where he was killed was relevant. The court said that the statement
made must be at any rate near death or the circumstances of the transaction explaining his death
is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration
can be any statement that explains the cause of death or the circumstances of the transaction
explaining his death. Hence, statements as to any of the circumstances of the transaction which
resulted in the death would be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and stating that his life was in
danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court Of India observed
that statement made by injured person recorded as FIR can be deemed as dying declaration and
such declaration is admissible under Section 32 of Indian Evidence Act. It was also observed by
the court that dying declaration must not shows the whole incident or narrate the case history.
Corroboration is not necessary in this situation, Dying declaration can be declared as the
exclusive evidence for the purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the question arises that after
the dying declaration was recorded and the deceased is still alive, was the statement holds the
same effect. In that situation, the deceased now turned to be a witness against the accused to
narrate what the actual story was. As the dying declaration itself mentioned the word dying, so it
is necessary that there must be an expectation of death on the part of the declarant.

Criticism of dying declaration doctrine

Since the nineteenth century, critics have questioned the credibility of dying declarations. In a
state court case, the Wisconsin Supreme Court considered the issue of a dying declaration. The
defense pointed out that “this kind of evidence is not regarded with favor.” The defense argued
that several factors could undermine the reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire of self-vindication,
or a disposition to impute the responsibility for a wrong to another, as well as the fact that the
declarations are made in the absence of the accused, and often in response to leading questions
and direct suggestions, and with no opportunity for cross-examination: all these considerations
conspire to render such declarations a dangerous kind of evidence.

Dying Declaration in India

Dying declarations are admissible as evidence in Indian courts if the dying person is conscious of
his or her danger, he or she has given up some hope of recovery, the death of the dying person is
the subject for the changing nature of the dying declaration, and if the dying person was capable
of to justify a sense of accountability to his or her Maker.

Distinction between Indian and English law

The distinction between English law and Indian law on the subject of dying declaration has been
elaborately dealt in the case of Rajindra Kumara v. State[17] Under English law, the essentials of
a dying declaration are as follows:

1. The declarant should have been in actual danger of death at the time when they were
made the dying declaration.
2. He should have had a full apprehension of his death is near.
3. Death should have ensued.

These conditions must be proved for the satisfaction of the judge before considered it as a dying
declaration than it can be received. Both in England and America, dying declaration is not
admissible as evidence whether any civil cases or in criminal cases; it is not admissible upon
charges other than homicide, or as to homicides other than that of the declarant.

However, these conditions are not provided in Section-32 Of the Indian Evidence Act. It is not
required for a declarant to be in expectation of actual death while making such a declaration nor
is it restricted in the cases of homicide. Because of this structure, it becomes increasingly
necessary to know that the dying person speaks the truth because if he does not die than still
declaration can be used as evidence against the accused. Moreover, dying declaration can be
considered as relevant evidence in both criminal and civil proceedings, whenever the cause of his
or her death comes into question.

Requirements of dying declaration

According to section 32 clause (1) of Indian Evidence Act, the requirement of dying declaration
is 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 or
as to any of the circumstances of the transaction which was the reason for his death not
cover all the incident which are not relevant in order to determine the cause
 Circumstances of the transaction- the statement made by the deceased is only related to
the circumstances of the transaction will result in the death of the deceased, remoteness
or having no nexus which can not be connected with the transaction have no value.
 Resulted in the death- the deceased statement should have the cause and circumstances
that will clearly reason for his death or ultimately result in his death.

Pakala Narain Swami v. Emperor Case

The deceased was a man of about 40. He had been a peon in the dewan of Pithapur. Pakala
Narain Swami, the accused, was married to one of the daughters of dewan of pithapur. After
marriage pakalana narain swami and his wife went to live at Berhampur about 250miles away
from pithapur. In the year of 1993, they came back to pithapur and where they stayed with the
dewan. They seemed at that time to have been in need of money, and during 1936 the wife of the
accused borrowed money from the deceased at various times an amount of Rs. 3,000. On
Saturday 18th March 1937, the deceased received a letter from the accused inviting him to come
that day or the next day to Berhampur. The deceased left his house in order to go there and catch
the train of Berhampur. He did not come back. On 23rd March 1937, the body of the deceased
was found in steel trunk in the third class compartment at puri. The body has been cut into seven
portions. The body of the deceased was identified by his widow. The accused was tried and
convicted for murder and was sentenced to death.

During the trial, the widow of the deceased stated before the court that on the day her husband
showed her a letter and said that he was going to Berhampur as the appellant’s wife had written
to him to come and receive payment of his dues.

The lordship of the privy council held that the statement related to the circumstances of the
transaction which resulted in the death of the deceased so it was relevant. They also held that the
statement made by the deceased that he was proceeding to the spot where he was killed or as to
his reason for proceeding or that he was going to meet him would each of them be circumstances
of the transaction. However, circumstances must have some proximate relation to the actual
cause and must be related to the transaction which resulted in death. For instance, in case of
prolonged poisoning, they may be related to date at the considerable distance from the date of the
actual fatal date. It is not necessary that there should be a known transaction other than the death
of the declarant has ultimately been caused comes into question. In the present case the cause of
death comes into question, the transaction is one in which the deceased was murdered on 21th
march or22nd march, the statement that he was setting out the place where the accused lived and
to meet a person, the wife of the accused, who lived together with the accused’s appears to be
clear statement as of some transaction which resulted in his death.

Note: This case is important to be discussed here, as earlier in the article it was stated that
the deceased can make a statement by sign and gesture or there are some circumstances
that reflect the cause of the death and transaction of the situation collateral to it. In that
case, the statement made by the deceased hold strong basis for conviction.

Dying declaration Case laws and landmark

Judgments
1. Lakhan v. State of M.P.[18] in this case supreme court provides that, when the
condition is satisfied that the dying declaration made by the deceased is true and can be
relied upon, as the declarant is found to be conscious and mentally fit while making the
statement, and the statement made by him proven to be voluntarily and no compulsion
was there while making the statement and can be put for the sole basis of conviction. In
that situation there is no need for corroboration is necessary.

In case of multiple dying declarations consists which consist in the form of irregular interval and
contradict each other, dying declaration recorded by the person who is entitled to record like
magistrate then there is no doubt and can be found to be reliable. But in circumstances where it
was observed that the statement made by the deceased is not voluntarily but due to some force or
compulsion, then the court raised suspicion on that dying declaration and Court should re-
examine the statement of witness and other facts in order to determine the truth.

2. In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court set forth some
measure to test the veracity in the case when there is more than one dying statement. The
court provides that there must be a series of examinations in order to determine the truth.
If the statements provide different versions and do not couple with given facts, then the
court must opt for other evidence in their record to clarify the things so that truth can be
inferred.
3. In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme Court while
deciding the issue of multiple dying declarations, which varying from other statements
and have no series related to each other, this will raise a doubt in the eyes of court to
whether the statement should be believed or not, in order to clear the issue the Court has
given some directions which help to guide while exercise the judgment by court in such
matters, examined.

The Court put forward the point that when multiple dying declarations made by the declarant, if
found either contradictory or are at variance and having no nexus to each other to a large extent
and narrate another version of the story, then the test of common reasonableness would be
applied while examining which dying declaration is corroborated by circumstantial evidence.
Further, when the dying declaration was made the condition of the deceased at the time of
making of each declaration concerned, medical report of the deceased, truthfulness of statements
made by deceased, possibility of deceased being tutored, are some of the points which would
guide while exercise of judicial function by court in such matters.

The Supreme Court also observed that the dying declaration is the statement made when a
person is at there bed end, as the word dying declaration itself signifies its meaning. A
person having a serious apprehension of death and there shall be no chances for his
survival. At this point, the court assumed that whatever the statement made by the
declarant is purely true as the man will never meet his maker with a lie on his lips and
person will speak only truth.

4. Natha Shankar Mahajan v. State of Maharashtra [21] in this case the supreme court
ruled that if there is a doubt about the statement made by the deceased, in that case, the
gain will transfer to the accused. As this is the correct Law preposition. Moreover on the
other was round if the statement found to be true and reliable ten it can be used solely as
the purpose of the convection.
5. The Supreme Court in the case of Surajdeo Oza v. State of Bihar[22] does not give an
affirmative answer to the question and held that merely because the dying declaration is a
brief statement it is not to be discarded. On the contrary, the length of the statement itself
guarantees the truth.

The Court has to scrutinize the dying declaration carefully and examine each and every sort of
situation and must ensure that the declaration is not the result of tottering prompting of
imagination and the deceased had the opportunity to observe and identify the accused and was in
a fit state while making the dying declaration.

Dying deposition
Dying deposition is almost a dying declaration. The main difference between both is that the
dying deposition is always recorded in the presence of a magistrate. Whereas dying declaration
can be recorded even by a normal person, doctor and by a police officer.

A deposition is recorded when the lawyer of the accused is present and magistrate record the
dying declaration. But dying declaration has no such conditions, but the evidentiary value will be
more if the statement is recorded by the magistrate. However, it can be recorded by the doctor or
police officer also.

Illustrations
1. A case where the deceased was given the statement to his father that I inhale the poison
because of my heartbreak and the same was conveyed to the police and father of the
deceased also said that the deceased was conscious and in a fit state of mind and the same
was endorsed by the autopsy report. After that when the police investigate the matter it
was found to be true that the cause of his suicide is the girl who used to aid and abet him
 to commit the suicide. Hence the statement recorded by the normal person(father) has
admissible in a court of law. This is the example of dying declaration.
2. In a case where a woman is burnt by his father-in-law. And the woman was admitted to
the hospital by the neighbour and when the police were informed about the matter they
came to rely on the statement of the deceased but the doctor tells them that the deceased
is not in a position to answer the question. After 2nd and 3rd day when the woman is in
better condition and subsequently magistrate was available to record the dying statement
and the accused lawyer was also there. The statement is recorded and this is called dying
deposition.

Comparison Between Dyeing & deposition

declaration
Basis Dying declaration Dying deposition
While here, administering oath is
Oath Here, the oath is not administered.
important.
Cross- But here, the witness can be cross-
Here, cross-examination is not allowed.
examination examined by the lawyer.
The dying declaration can be recorded by Whereas, it can be recorded by the
Recorded by
a normal person, doctor, police officer magistrate in the presence of accused
whom
and by the magistrate. or by his lawyer.
There is no such provision of dying
Applicability It is applicable in India.
deposition.
It superior and has more value than
Value It has less value.
the dying declaration.

Identification through dying declaration

The conviction can be based on the statement made by the deceased, and the identity of the
accused must be established by it. It should contain the same parentage and address of the
accused. But if there is no corroborative evidence to prove identity, the conviction is possible
and this was established by the Court in the case of Pritam Singh v. State of U.P[23]. However,
there is no particular form which is dying declaration identified and admissible as evidence in a
court of law in a case the Supreme Court held that only the Crux is important or relevant to
determine what actually happened. For instance, if someone stabbed a deceased then the crux of
this is, who stabbed him and why, and the rest are the complementary things.

Absence of medical statement of fitness

It is only a rule of caution. Normally, the Court places reliance on the medical evidence for
reaching the conclusion whether the person making the dying declaration was in a fit state of
mind but where the person recording the statement of the deceased stated that the deceased was
in a fit state of mind and conscious, the medical opinion will not prevail nor can it be said that
there being no certificate of the doctor as to the fitness of the mind of the declarant, the dying
declaration is not acceptable. A certificate from the doctor is essentially the rule of caution.
Where the testimony of the magistrate is to the effect that the declarant was fit to make the
statement, it can be acted upon without there being a certificate of the doctor provided that the
court ultimately held the same to be voluntary and truthful.

When there was no certificate of doctor about the fitness of the deceased making dying
declaration before the investigating officer but the doctor was present at the time of making
dying declaration and thumb-impression of the deceased was attested by him, holding that there
could not have been any attestation of such document was technically held to be too wrong.

Where the eye-witnesses stated that the deceased was in a fit and conscious state to make the
declaration, the medical opinion will not prevail, nor can it be said that since there is no
certification of the doctor as to the mind of the declarant, the dying declaration is not acceptable.
A dying declaration may be reliable without obtaining a certificate of endorsement by the
doctor.

Statement is not relevant to the cause of the

death
The dying declaration is a statement made by a person to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death and such details which fall
outside the ambit of this are not strictly within the permissible limits laid down by section 32(1)
of the evidence act and unless absolutely necessary to make the statement coherent or complete
should not be included in the statement. Where the dying declaration is set to be a long written
document and tell about the number of incidents in a narrative form and talk about what
happened before the actual resort, such long statement being more in the nature of first
information reports than recitals of the cause of death or circumstances resulting in it, are likely
to give the impression of their being not genuine or not having made unaided without prompting.

When the dying declaration made by the deceased is not coupled with the transaction of
consequences which results in the death of the deceased or the statement made regarding the fact
which has no nexus or connection with it or in other words having no remote reference to the
death of the deceased, it would not be admissible under Indian evidence act.

In the case of Bhairon Singh v. State of M.P.[24] the body of the deceased lady was found in a
well of the village. The cause of the death asphyxia due to drowning. She was married to accused
about 10 years before the death of the incident take place. The trial court held that the incident
took place accidentally. And the presumption of her dying declaration does not attract section
113-A and 113-B of Indian evidence act and the accused set free under section 304-B and 306 of
the IPC.
But later on, the trial court held the accused guilty under section 498-A of IPC and section 3 of
the dowry prohibition act,1961 and gives the punishment to accused of rigorous imprisonment
for three years along with the fine of Rs. 15000.

Again high court made changes in the judgment and accused convicted under section 498-A of
IPC, the changes were the cause of the statement given by her brother that his sister(deceased)
told him that the accused used him to force her as he wanted that her brother arranged a job for
him and also demanded for dowry for her of Rs 1lakh. On the deposition brother of the deceased
stated that the accused by putting a cloth in her mouth(deceased) beating him for dowry.

Medical report
Medical reports are those reports which are provided by the doctor usually in criminal cases, they
are admitted as evidence in a court of law when a doctor provides oral evidence while taking the
oath. The report includes the mental condition, fitness of the disease whether he is able to give
the statement or not. And sometimes forensic and autopsy reports also clarify that the deceased
was saying right in his dying declaration. For example, there was a case in which the mother of
the deceased, when hearing the cry of her son immediately reached to their room, where the
deceased made the dying declaration in front of his mother that he was in love with some girl and
she left her and due to this he commits the suicide. The time to reach in his room was estimated
by the police in their investigation was about 2 minutes.

Here the question comes that if the mother was really saying the truth about the declaration as
there was no one when the deceased was making the statement, the absence of medical fitness
will remain in the dark. But the autopsy report conferred that decrease is the condition to survive
for 6-8 minutes. So that the mother statement can be admissible in a court of law. In that
perspective the role of medical report become crucial and if sometimes, if there is a plotting in
dying declaration (which rarely happens as the law presumed that no one meet his maker with a
lie on his lips) the report may contract the statement which creates the sense of suspicion and the
statement made by the deceased can not be regarded as the sole base for the conviction. But the
medical report did not discard the statement on the basis of the report in which it was stated that
the nature of injuries sustained by the deceased. Moreover, if the medical report states the fitness
of the deceased while taking the statement of the deceased by magistrate then there is no need for
a separate test of fitness by the magistrate.

Doctor statement
It is necessary that the dying declaration recorded by a magistrate should be endorsed by the
doctor, as it gains more evidentiary value. But there are many situations when the statement is
recorded by the doctor as due to circumstantial reasons and unavailability of magistrate. So the
statement of doctor is regarded to be true and being a doctor, he understands about the condition
of the deceased whether the deceased is able to make dying declaration or not. In the case where
a burnt wife had been admitted in the hospital and the doctor who operates her, disclose the fact
that the husband of her pour kerosene oil and set ablaze to her. At this point, the doctor records
the statement point by point. Later on, it was found that records are also in favour and did not
contradict the statement made by the deceased. The court held that the doctor has no other
motive to make a false statement and the value of statement recorded by the doctor is admissible.
But the statement made by the doctor is proven more relevant when there is an eye witness in
order to endorse that particular dying declaration.

Dowry death, wife burning

When there is a situation after the three or four months of the marriage, where the wife is burnt
by her husband or husband relatives for dowry purposes or for monetary gain. And in relation to
this, she expressing the danger and threat to her life is somehow the expression which depicts the
circumstance which leads to the death of the deceased. But when there is a contradiction found in
the statement by the deceased, it would raise the presumption of suspicion and decrease its value
as evidence. In case where wife by way of plotting set ablaze to her and when she was admitted
to hospital, where she made the statement that her husband set on fire to her after some point of
time it was discovered in the police investigation that the children of the deceased state that their
father will never do this kind of act, moreover they also said that the deceased was tried for
committing suicide earlier. And police also found that the relation between the husband and wife
is not good. And deceased also think that her husband had some extramarital affair. All the facts
show that there was a motive to lie. So the court held the dying declaration to be falsehood and
set aside the conviction. And the court has reason to believe, as the person who took the
deceased to the hospital was none other than her husband.

Evidentiary value of dying declaration

In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the court that the
evidentiary value of dying declaration made by the deceased:

There is no doubt that the dying declaration is admissible in court under section 32(1) of the
Indian Evidence Act. and there is no compulsion while making of dying declaration to take an
oath, but the truth of the statement can be determined by the cross-examination. The court has to
ascertain necessary measures to check the sanctity of the statement made by the deceased. As in
India law, it was presumed that the man who is going to die, not meet his maker with a lie on his
lips this is because, when the person is at his bed end all the desire and greed of person come to
an end so probably there is no motive to lie. After that, the court must be satisfied with the
condition that the deceased must be in a fit state of mind while making the statement. After all
the measures assured by the court and satisfied that the statement is made voluntarily and true
then it will be sufficient to accept the statement to finding conviction even without the
corroboration.

In Khushal Rao v. State of Bombay[26] Apex Court laid down the following principles related to
dying declaration :
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which
the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be
judged in the light of surrounding circumstances & with reference to the principle governing the
weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, as far as practicable in the words
of the maker of the declaration stands on a much higher footing than a dying declaration which
depends upon oral testimony which may suffer from all the infirmities of human memory &
human character.

Exception of dying declaration

There are many circumstances in which the statement made by the dying person is not
admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death of the deceased. For
example, if a person in his declaration state anything which is not remote or having a
connection with the cause of death than the statement is not relevant and hence not be
admissible.
2. The declarant must be competent to give a dying declaration, if the declaration is made
by the child then the statement will not be admissible in court as it was observed in case
of Amar Singh v. State of M.P[27] that without the proof of mental fitness and physical
fitness the statement would not be considered reliable.
3. The statement which is inconsistent has no value and can not be considered as evidentiary
in nature.
4. The statement made by the deceased should be free from any influential pressure and
should be made spontaneous.
5. It is perfectly allowed to the court if they reject any untrue statement which contradicting
in nature.
6. If the statement is incomplete in the sense which means it can not answer the relevant
questions which are necessary to found guilty, and on the counterpart, statement deliver
nothing so it will not be deemed to consider.
7. Doctor’s opinion and the medical certificate should with the statement and support that
the deceased is capable of understanding what statement he makes.
8. If the statement is not according to the prosecution. In this regard, the following points
should be taken into consideration by the apex court.
  While making the statement deceased must be in fit mind of the state.
 Should be recorded by the magistrate or by a police officer and person in a case when
deceased was so precarious
 A dying declaration should be recorded in question-answer form and written in words of
the persons exactly who gives the statement.

Dying Declaration should be free and

spontaneous
Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration
free from any biased relied upon. As it was held in the case of Krishna Lal v. Jagun Nath that
the wife was burnt by the husbands-in-law and in her dying declaration she held that she was not
burnt by her husbands-in-law and she was believed.

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1) of IPC.
it is the statement made by the person who is going to die, and that statement will be considered
as evidence in court, how his death caused and who is the mugger. There are many conditions
that relied upon the dying declaration that it should be in an adequate manner as dying
declaration is the weapon who convicted the accused and stood as strong evidence. The
admissibility of dying declaration accepted in our Indian court because the law presumes that in
Leterm Mortem i.e in his last parting words the man will never lie as anyone will meet his maker
with a lie on his lips. This is because a man who is going to die, end with all his needs and wants
and his interest is no more passionate for self deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the right to
reject the statement. Or there are other situations and circumstances which coupled with dying
declaration for its admissibility which discussed above.