1. Examine the nature of Indian Evidence Act 1872.

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.

The Indian Evidence Act, 1872, is a comprehensive statute that governs the law of evidence in India.
It was enacted during the British colonial period and continues to be a crucial piece of legislation in
the Indian legal system. The Act is based on the English law of evidence but incorporates certain
modifications to suit the Indian context.

Here are some key features and aspects of the Indian Evidence Act, 1872:

1. Applicability and Scope:

 The Act applies to all judicial proceedings in or before any court, including courts-
martial, in India.
 It is not applicable to affidavits, proceedings before an arbitrator, and certain other
specific situations mentioned in the Act.
2. Relevancy of Facts:
 The Act defines what facts are relevant and which are not. Only relevant facts are
admissible as evidence in court.
 Facts forming part of the same transaction are relevant, and facts not otherwise
relevant become relevant when they are connected with the facts in issue.
3. Admissibility of Evidence:
 The Act provides rules regarding the admissibility of evidence, including oral
evidence, documentary evidence, and the examination of witnesses.
 Certain categories of evidence are considered relevant by virtue of their nature (e.g.,
admissions by parties, dying declarations).
4. Oral and Documentary Evidence:
 The Act distinguishes between oral and documentary evidence and provides rules for
their admissibility.
 Hearsay evidence is generally not admissible, but there are exceptions such as dying
declarations and statements against interest.
5. Privileged Communication:
 The Act recognizes certain communications as privileged and prohibits their
disclosure. For example, communications between husband and wife, attorney-client
privilege, and communications during marriage ceremonies are generally considered
privileged.

2 State when facts not otherwise relevant becomes relevant.

Facts not otherwise relevant are relevant --

(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any
fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where
it was committed, which would render it highly improbable, though not impossible, that he committed
it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or D. Every
fact which shows that the crime could have been committed by no one else, and that it was not
committed by either B, C or D, is relevant.

3 Critically analyse the term 'evidence' as per Indian Evidence Act 1872.
The Indian Evidence Act of 1872 defines evidence as “all statements which the Court permits or
requires witnesses to make before it in relation to matters of fact under inquiry, such statements are
called oral evidence, and all documents produced for the inspection of the Court, such documents are
called documentary evidence

The Act recognizes two types of evidence: oral evidence and documentary evidence.

Oral evidence (Sections 60-66, 118-134):

Oral evidence relates to any comments made before the court by witnesses. The Act defines the rules
and processes for collecting oral testimony, such as witness fitness, examination-in-chief, cross-
examination, and re-examination. The Act also addresses the validity of hearsay testimony and the
conditions under which it may be accepted.

Documentary evidence (Sections 65–90):

Any paper presented before the court, such as written instruments, maps, photos, or electronic
records, is considered documentary proof. The Act defines the rules for the admittance and proof of
documented evidence, including the necessity in certain cases for the original document to be
provided, the validity of duplicates, and the need for expert opinion in certain cases.

Other types of evidence recognized under the Act include:

1. Real evidence (Section 3): Tangible items brought before the court as evidence, such as
firearms or garments.
2. Opinion evidence (Sections 45–51): Proof of a witness’s point of view on a factual issue,
such as expert opinion or character evidence.
3. Earlier judgements (Sections 40–44): Earlier judicial decisions that are pertinent to the
present case.

Overall, the Indian Evidence Act recognizes numerous types of evidence and establishes the rules and
processes for their validity and use in court.
4 Describe the concept of relevant fact.

Relevant facts

Relevant facts are those which are needed to prove or disprove a fact in issue. Relevant facts are also
called evidentiary facts (factum probans). These facts are not in issue – they are not the main issue of
controversy or dispute between the parties. Rather, relevant or evidentiary facts dig deeper into the
context or circumstances of the facts in issue, and help to draw inferences about them.

Admissions and confessions, statements by those who are not witnesses, precedents from case laws,
statements made under special circumstances, facts which form a chain of logic with facts in issue,
third party opinions, and evidence as to the character of a person – all these fall under the category of
relevant facts.

Relevant facts indicate a relationship between facts, which according to a sound chain of logic and
common sense, either prove or disprove the existence of each other. Relevant facts act as
supplementary material to sway the opinion of the court in favour of the party making the argument
with respect to the facts in issue.

For example, ‘A’ is accused of committing theft. A relevant fact would be that ‘A’ has had a history
of pickpocketing and shoplifting, and has been prosecuted before. The fact in issue would be –
whether A has committed theft

State the things said or done by conspirator in reference to common design relevant or not.
 Where there is reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party to it.
 Illustration
o Reasonable ground exists for believing that A has joined in a conspiracy to wage war
against the Government of India.
o The facts that B procured arms in Europe for the purpose of the conspiracy, C
collected money in Calcutta for a like object, D persuaded persons to join the
conspiracy in Bombay, E published writings advocating the object in view at Agra,
and F transmitted from Delhi to G at Kabul the money which C had collected at
Calcutta, and the contents of a letter written by H giving an account of the conspiracy,
are each relevant, both to prove the existence of the conspiracy, and to prove A’s
complicity in it, although he may have been ignorant of all of them, and although the
persons by whom they were done were strangers to him, and although they may have
taken place before he joined the conspiracy or after he left it.

Principle of Section 10
 The provision of conspiracy acts on the principle of implied agency as its foundation i.e.
every conspirator is an agent of the parties to the agreement to carry out the object of
conspiracy.
Admissibility of Evidence Under Section 10
 Anything said, done or written by anyone of the conspirators in respect of their common
intention is admissible against all conspirators for proving:
o That the conspiracy existed.
o That the person was a part of such conspiracy

Relevancy Under Section 10

 Whether evidence is relevant under Section 10 or not is decided as per following parameters:
o That anything said, done or written by one of the conspirators at any random time is
not relevant and cannot be proved.
o That anything said, done or written by one of the conspirators at any time
before such conspiracy is entertained is not relevant and cannot be proved.
o That anything said, done or written by one of the conspirators at the time after such
intention was first entertained by any one of them is relevant.
o That anything said, done or written by one of the conspirators at the time after such
conspiracy was over is not relevant and cannot be proved.
o That anything said, done or written by one of the conspirators should be in reference
to their common intention.
 Before the court admits the evidence, it looks into the fact that whether reasonable grounds
exist to establish the fact that the concerned persons entered into a conspiracy.
 Also, any fact disclosed by the accused to the Police after his arrest and Confessional
statements made by the accused if any would not be fall under the ambit of S.10.

Differentiate between judicial and extra judicial confession.

A confession may occur in any form. It may be made to the court itself, or to anybody outside the
court. In this manner, a confession may be divided into two categories - Judicial Confession and
Extra-judicial Confession.

Judicial Confession - A judicial confession is a confession that is made in front of a magistrate or in

a court. It may be made in the course of a judicial proceeding.
Extra - Judicial Confession - An extra-judicial confession is a confession that is made by the party
elsewhere than before a magistrate or in a court. It is admissible in evidence under Section 21 and it is
proved by the witnesses who had heard the speaker's words constituting the confession.
A confession ma even consist of conversation with oneself. For example, in case of Sahoo vs State of
UP, AIR 1966, an accused who was charged with murder of his daughter in law with whom he was
always quarreling was seen on the day of the murder going out of the home saying words to the effect,
"I have finished her and with her the daily quarrels.". The statement was held to be a valid confession
because it is not necessary for the relevance of a confession that it should communicate to some other
person.

A has been arrested by the police on the accusation of committing murder of B. A made a
confession regarding the crime he has committed before the police officer during the
investigation. Critically evaluate the evidentiary value of the confession made by A before the
police officer in the present scenario.

The term ‘Confession’ has nowhere been defined under the Indian Evidence Act, 1872. To give a
simplest definition, a confession is a statement made by an accused of a crime admitting his guilt. A
confession given to a police officer under any circumstances is completely excluded from the purview
of evidence against the accused under Sec.25, Indian Evidence Act, 1872. It makes no difference
whether the individual is in police custody or not, or whether the statement was given during or before
the inquiry. To understand the principle behind this bar or exclusion, the author of this research article
shall throw light upon the objective behind such exclusion, non-admissibility of such evidence, study
different case laws in order to understand who constitutes a “ police officer” and provide a critical
analysis on its current position.

A confession is a voluntary statement made by a person accused with a crime communicated to

another person in which he accepts the commission of the crime which he believes himself to be
guilty of and discloses the circumstances of the act or the participation which he had in it. [1]The
accused's mind must be in a state of complete equanimity before he makes a confession, and it must
not have been influenced by fear, hope, or enticement. As a result, any menace, promise, or
enticement made to an accused person qualifies as a threat & hence confession is irrelevant, therefore
not considered as per as sec.24 of the Indian Evidence Act, 1872 is concerned.[2]
Sec.25of the Evidence Act specifically prohibits the admission of a confession made to a police
officer[3]given that it is generally expected of a police officer of using coercion to extract a
confession. As per as sec.26, a confession made by an accused while in custody of a police officer is
irrelevant unless it is made in the immediate presence of the Magistrate.[4]The exclusion of a
confession made by an accused in police custody is similar to that contemplated under sec.25, the
only distinction being that they function in equitably different fields, with sec.25 raising a prohibition
on proof of a confession made to a police officer and sec. 26invalidating a confession made to anyone
in the policy custody.[5]Sec.27 is an exception to the provisions discussed above, stating that even if a
statement of confession is made under coercion or threat[6], or to a police officer[7], or while in
police custody[8], if the statement is capable of leading to the discovery of an evidentiary material
object, that part of information can be proved under sec.27.

The rejection of a confession given by an accused to a police officer or while in the custody of such
officer is based on the principle that such a confession is untrustworthy. The reason for the same is to
mitigate the possibility of admitting a false confession.[9] In Empress v. Babulal[10], the Court stated
that the goal of this exclusion is to prevent police officers from extorting confessions in order to gain
credit by securing convictions, if confessions to police were allowed to be proven in evidence, the
police would torture the accused and force him to confess to a crime he may not have committed. The
Supreme Court in Raj Kumar Karwal v. U.O.I, reiterated that if confessions to police were permitted
to be established in evidence, the police would torture the accused and force him to confess a crime he
may not have done & hence such confessions cannot be made admissible.[11]Therefore, when an
accused confesses to a police official, it is inadmissible in evidence and hence during the course of the
police investigation, if a person confesses to the crime, the police frequently gets it recorded by a
magistrate under sec.164 of CrPc, 1973 which authorises the Magistrate to record the confession
statement according to the method provided in order to ensure its voluntariness as a result of which
such confession is made admissible under the Evidence Act.[12].

Explain the Miranda rule relating to confession.

The Miranda rule requires the police to tell a criminal suspect who is under arrest and before
questioning them that they have certain rights. The police must communicate the following to a
person who has been arrested:

 Right to Remain Silent: They have a right to remain silent. This means they do not have to
talk to the police. If the police ask them questions, they can respond by saying that they want
to talk to an attorney and want to assert their Miranda right to remain silent;
 Use of What Is Said: Anything they say can and will be used against them in a court of law.
This means that if a suspect says anything to law enforcement, it can be used later in a
criminal trial against them, i.e., as evidence that they committed a crime;
 Right to an Attorney: They have a right to be represented by a criminal defense attorney;
Right to an Attorney If They Cannot Afford One: They have a right to the advice of an
attorney, and if they cannot afford one, a court will appoint one for the person at the expense
of the government. This means the government pays the attorney if the arrested person cannot
afford one;
 Affirmation of Understanding: At the end of the warning statement, law enforcement asks
if the person to whom the Miranda rights have been communicated understands the rights and
then whether they wish to speak to the law enforcement representative. In some states, the
representative of law enforcement may ask the suspect to sign a declaration to the effect that
the Miranda warning has been read to them and they understand it.

If the Miranda warning is not given to a person who is under arrest and in police custody and the
person makes statements to the police in response to questioning, then the statements cannot be used
by the prosecution at the person’s trial to prove their guilt. However, courts have allowed certain other
uses, such as impeaching the defendant’s credibility at trial.

This means that if the defendant takes the stand to testify in their own defense and denies committing
the crime, the prosecution could introduce a statement the defendant made admitting guilt, even if this
admission was made after law enforcement had arrested the defendant and questioned them without
giving the defendant the Miranda warning.

9 Discuss how much of information received from accused may be proved.

Doctrine of Confirmation by Subsequent Facts
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by
subsequent events.[13]The doctrine is founded on the principle that if any fact is discovered in a
search made on the strength of any information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is true.[14]The theory of confirmation by
subsequent facts means the statements made in custody are admissible to the extent they can be
proved by the subsequent discovery of facts.[15]

It is quite possible that the content of the custodial statement could directly lead to the subsequent
discovery of relevant facts rather than their discovery through independent means. Hence, such
statements could also be described as those which furnish a link in the chain of evidence needed for
successful prosecution.[16]The information might be confessional or non-inculpatory in nature, but if
it results in discovery of a fact it becomes a reliable information.[17]
Section 27 is as follows:
How much of information received fromaccusedmay be proved.—Provided that, when any fact is
deposed to asdiscovered in consequence ofinformation receivedfrom a person accusedof any offence,
in the custody of a police officer,so much of such information, whether it amounts to a confession or
not,asrelates distinctly to the factthereby discovered, may be proved.

Section 27 has been crafted very meticulously and each and every phrase needs utmost attention and
has also been subject to various interpretation by the Apex Court. Following are the essential
ingredients of the section:

2.1 The person giving the information must be accused of any offence;
The expression accused of any offence is descriptive of the person against whom evidence relating to
information alleged to be given by him is made provable by this section.[18]It does not predicate a
formal accusation against him at the time of making the statement sought to be proved, as a condition
of its applicability.[19]

The Patna High Court has held that the statements must be of a person who was then an accused. If at
the time when the confession was made, the person making it was not an accused person; the
statement would not be admissible.[20]The Bombay high court has dissented this view and has held
that
The words information received from a person accused of any offence cannot be read to mean that he
must be an accused when he gives the information but would include a person if he becomes
subsequently an accused person, at the time when that statement is sought to be received in evidence
against him. Where a person goes to a police officer and makes a statement which shows that an
offence has been committed by him, he accuses himself and though he is formally not arrested, since
he is not free to move wherever he likes after disclosure of the information to the police he must be
deemed to be in custody of the police within this section.[21]

2.2 He must be in custody of a police officer;

This section does not apply to information given to police by an accused person who was not in
custody at the time it was given.[22]The submission of a person to the custody of a police officer
within the terms of Sec. 46(1)[23]of the Code of Criminal Procedure is ‘custody’ within the meaning
of this section.[24]The word ‘custody’ in this section does not mean physical custody by arrest.[25]As
soon as the accused or the suspected person comes into the hands of police officer, he is, in the
absence of clear evidence to the contrary, no longer at liberty, and is therefore in custody within the
meaning of Sec. 26 and 27.[26]

Custody, connotes some idea of restrain on the on the movement of person whether byword or action
and does not means custody after formal restraint.[27]Even indirect control over the movements of the
suspect by the police would amount to police custody.[28]Custody, does not necessarily mean
detention or confinement. A person who makes a statement to a police officer voluntarily confessing
that he had committed an act which the penal law regards as an offence submits himself to the custody
of the said officer is within the meaning of this section.[29]

2.3 The fact of which evidence is sought to be given must be relevant to the issue;
The ‘fact’ must be a ‘relevant fact’. The fact said to have been discovered in consequences of
information received from a person accused of an offence must be of a kind which such information
really helps to bring the light and which it would be difficult to find out otherwise before it can be
treated as of any substantial probative value.[30]

The fact discovered must be in consequences of the information received from the accused, and the
fact should not have been already within the prior knowledge of the police. The information should be
free from any element of compulsion.[31]Though the fact, of which the discovery is being done, is
relevant; but the connection between the offence and the thing discovered may be established by
evidence other than the statement leading to the discovery.[32]

2.4 Such information…as relates distinctly to the fact…discovered

The word distinctly, means indubitably, strictly and unmistakably.[33]The Apex Court has decided
that information under section 27 would be every statement made by the accused to the police officer
and the Police is precluded from proving that information or any part of that unless it fits in the
section 27.[34]If the information had already been given by the main accused in his discloser
statement the statement of the other accused persons were not admissible in evidence because at the
best they were leading to the rediscovery of a fact already disclosed and capable of discovery.[35]

The information which distinctly relates to the fact discovered is only admissible.[36]But the
statement should not be so truncated as to make it insensible.So much of the information as strictly
relates to the discovery of facts is admissible even though the confession is elicited by improper
inducement.[37]Information must be recorded and, it’s not recorded the exact information must be
adduced through evidence.[38]No such statements relating to a relevant fact is admissible under the
section if it is made after the discovery of that fact or if it does not relate distinctly to the fact
discovered.[39]

Estimate whether confession before police officer be proved.

ection 25 – confession to police officer not to be proved.
No confession made to a police officer shall be proved as against a person accused of any offence.

Reasons for exclusion of confession to police- another variety of confessions that are under the
evidence act regarded as involuntary are those made to a personnel. Section 25 expressly declares that
such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the accused
and thus force him to confess to a crime which he might not have a committed. A confession so
obtained would naturally be unreliable. It would not would be voluntary. Such a confession will be
irrelevant whatever may be its form, direct, express, implied or inferred from conduct. The reasons for
which this policy was adopted when the act was passed in 1872 are probably still valid

Examine the evidentiary value of expert opinion

an expert is essentially someone who holds an elevated level of specialized expertise, knowledge,
training, skills, or experience within a specific domain or subject area. Their expertise extends beyond
the general understanding of the average person, enabling them to provide informed opinions,
interpretations, analyses, or solutions in their area of specialization. Experts are often sought after for
their ability to provide insights, advice, and assessments that aid decision-making, problem-solving,
or understanding complex matters.
Section 45, Indian Evidence Act, 1872 - Opinion of Experts
Section 45 says that when a court needs to understand a foreign law or a difficult science or art matter,
or to know if handwriting or finger impressions match, the court can ask people who are really good
at these things. These people are called "experts." They can give their opinions to help the court
understand better. But remember, an expert's opinion is not like a strong proof; it's just their best guess
based on what they know.
Expert opinion is a rather weak type of evidence and the Courts do not generally consider it as
offering conclusive proof, and therefore do not rely solely upon it without seeking independent and
reliable corroboration.[8] It is well settled law that the opinion of a handwriting expert cannot be
considered as conclusive proof unless substantiated by corroborating evidence.[9]
The opinion of an expert witness is not considered to be conclusive in nature because there is the
danger of error or deliberate falsehood[17]; human judgment is fallible and human knowledge is
limited and imperfect[18]; and also because an expert witness, however impartial he may wish to be,
is likely to be unconsciously prejudiced in favour of the side which calls him[19].

Evidence of an expert is merely of an advisory character.[20] So, usually expert opinion cannot be the
sole basis for conviction and other corroborating evidence must be relied upon, but a conviction
cannot be set aside solely on the basis that generally expert evidence is not considered as a conclusive
proof. Thus, the Courts must analyze the circumstances of each case, and take decisions from a case
to case basis.
Write down the burden of proving fact especially within knowledge.
When any fact is specially within the knowledge of any person, the burden of proving that fact is upon
him.

Illustrations

(a) When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket
is on him.

 Section 106 of the Indian Evidence Act, 1872, deals with the burden of proof in cases
where a fact is within the special knowledge of a person.
 This section applies to civil and criminal cases alike and lays down an important principle
of evidence.
 The section states that when any fact is especially within the knowledge of any person,
the burden of proving that fact is upon that person.
 This means that if a fact is known to a particular person and not to others, it is
the responsibility of that person to prove it in court.
 For example, in a case where the ownership of a property is disputed, and the disputed
property was in the possession of the defendant, the burden of proving that he acquired the
property lawfully and has the right to possess it will be on the defendant.
 Similarly, in a criminal case where the accused is alleged to have killed someone with a knife,
the burden of proving that the accused used the knife to commit the crime will be on the
prosecution.
 The burden of proof under Section 106 is not absolute, and the person who has the special
knowledge of the fact is only required to prove it to the extent that is reasonable in the
circumstances.
 The person is not required to prove the fact beyond all doubt, but only to the extent that
a reasonable person would believe it to be true

13 Write about the concept of privileged communication.

Privileged communication in Evidence Act refers to certain confidential communications that are
protected from being disclosed in a court of law. These communications are safeguarded by privileges
recognised under the law, preventing individuals from being compelled to reveal them in legal
proceedings. The concept of privileged communication is designed to encourage trust and openness in
specific relationships, ensuring that certain sensitive information remains confidential.

The Indian Evidence Act recognises several types of privileged communication, including those
between lawyers and their clients (attorney-client privilege), communications with spouses and
communications with other professionals like doctors, clergy or counsellors. These privileges aim to
protect the privacy of conversations or information shared within these relationships, promoting
honesty and trust. However, the specifics and extent of these privileges can vary based on the legal
jurisdiction and the nature of the communication.

Provisions Dealing With Privileged Communication in Evidence Act

Section 122 specifically addresses communications during marriage. It establishes that individuals
who are or have been married are not required to disclose any communications shared with them by
their spouse during the marriage unless the communicating spouse or their legal representative
consents.

Section 123 Evidence as to Affairs of State

Regarding Section 123 on “Evidence as to affairs of State,” the law prohibits the disclosure of
information from unpublished official records related to State affairs, except with permission from the
relevant department head. This section should be read alongside Section 162, which mandates that if a
person is summoned to produce a document, they must do so, even if they object and the court will
decide on the objection. However, the court cannot inspect the document if it pertains to matters of
State.

Examine the importance of doctrine of estoppel in tenancy agreements.

The doctrine of estoppel serves as a crucial safeguard against fraud and misrepresentation. There are
several cases where someone deceives an innocent person into believing a falsehood. There are
situations where the plaintiff can have suffered significant losses. This way of thinking stays away
from them and holds the offender accountable for his inappropriate actions.

This legal theory provides an incentive to anyone who attempts to make false statements about other
people, instils faith in them to act on them, and causes them to lose money in the process.

Estoppel by Deed

It is the concept where two parties enter into an agreement by way of a deed as to certain facts. This
implies that neither he nor his representatives or any person claiming under him can deny the facts
mentioned and agreed in the deed.

For example, Mickey Shroff decided to make his will in favor of his two sons, Lion Shroff and Wolf
Shroff, and his daughter’s son Deer Shroff. Lion Shroff induced some third person to buy Deer
Shroff’s share of the property. This deed was attested by Wolf Shroff who was not aware of the facts
mentioned in the deed. Deer Shroff died without giving birth to a male child. Lion Shroff filed a suit
to recover the property from the third party. Here Lion Shroff would be estopped but not Wolf Shroff
as Wolf was not aware of the facts of the deed.

15 Determine the evidentiary value of the evidence given by an accomplice.

An accomplice was defined as someone who voluntarily co-operates with, and helps others in the
commission of the crime. He is said to be ‘particeps criminis‘ – a participator in the actual crime

Section 133 of the Indian Evidence Act categorically declares that an accomplice is a competent

witness, and the court may convict on the basis of such evidence, and the conviction will not be illegal

merely because it proceeds upon the uncorroborated testimony of an accomplice.

The other provision dealing with this matter is illustration (b) of Section 114, which says that the

court may presume that an accomplice is unworthy of credit unless corroborated in material

particulars.

Reasons Why Corroboration is Necessary

The reasons why corroboration has been considered necessary are that-

1. He has been criminal himself, and therefore his testimony should not carry the same respect as that

of a law-abiding citizen.

2. He has been faithless to his companions and may be faithless to courts.

Distinguish between estoppel and res-judicata.

Section 11 of the Civil Procedure Code, 1908 relates to the principle of res judicata. Res Judicata
which meansmatter already adjudged upon cannot be re-agitated again, or a matter in which
judgment is already pronounced. The Doctrine Res Judicata is based upon the principle that one
should not be vexed twice for the same cause and there should be finality of litigation. It helps to
prevent endless litigations. It is based on public policy.

Estoppel -

Indian Evidence Act 1872, Part III Chapter VII containing Sections 115 to Section 117 lay
down the provisions relating to the Doctrine of Estoppel. Section 116 of the said Act deals
with estoppel of tenant and of licensee of persons in possession. According to Section 115 of the
Indian Evidence Act, "When one person has by his declaration, act or omission, intentionally caused
or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing."

Distinction/Difference Between Res Judicata and Estoppel -

See some Major Differences between Res Judicata and Estoppel.

 No Res Judicata Estoppel

1) As we all know the doctrine of Res On the other hand Estoppel results
Judicata results from the decision of from the acts of the parties.
the court.

2)
It proceeds on the ground of public Estoppels proceeds upon the
policy doctrine of equity

3) Res Judicata prevent a man arriving On the other hand estoppel prevents
the same thing twice in successive him from saying one thing at one
litigation time and the opposite at another.

4) The theory of res judicata is to The rule of Estoppel prevents a

presume conclusively the truth of the person from setting up what he calls
former decision. the truth.

5) The Doctrine of Res Judicata outs the On the other hand Estoppel is only a
jurisdiction of the Court to try the case. rule of evidence.

17 Explain the presumption relating to consent in rape cases.

Section 114A of The Indian Evidence act, 1872 (henceforth the Act), states –

“In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or
clause (g) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the
accused is proved, and the question is whether it was without the consent of the woman, alleged to
have been raped, and she states in her evidence before the court that she did not consent, the court
shall presume that she did not consent.”

Section 114A was inserted into the Indian Evidence Act 1872 by the Criminal Laws Amendment Act
of 1983.
ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION 114A OF THE INDIAN
EVIDENCE ACT, 1872-

The following Conditions are to be satisfied with the application of Section 114 of the Indian
Evidence Act 1872.

 The Accused must be prosecuted for rape under Clause (a) or (b) or (c) or (d) or (e) or (g) of
Subsection (2) of Section 376. Clause (f) has been excluded because sexual intercourse with a
girl under sixteen years is rape even if she has consented.
 It must be proved that the accused had sexual intercourse with the women.
 The only question in the issue must be whether sexual intercourse was with her consent
 The woman should depose before the Court that she did not give her consent.

If the above-mentioned conditions are satisfied the Court shall presume the absence of consent and the
burden of proving consent will be on the accused. If he cannot prove consent he cannot be acquitted.
The presumption under this Section is a presumption of Law.

A presumption in law means inferences which are concluded by the court with respect to the existence
of certain facts. The inferences can either be affirmative or negative drawn from circumstance by
using a process of best probable reasoning of such circumstances.

3. STATE OF MAHARASHTRA V. CHANDRA PRAKASH KEWALCHAND JAIN,

1990 AIR 658

Bench- Justice AM Ahmadi

Date of Judgement- 18 January 1990

Facts of the Case- In this particular case one M aged fell in love with Shamimbanu, aged 19 left their
residential town and entered into marriage through a Kazi. The accused police officer found them in a
hotel room, brought them to the police station and then on the next night sent the girl to another hotel.
Having thus separated the couple and finding the girl thoroughly helpless forcibly removed her
“kurta” and threw it away. He gagged the girl’s mouth and threatened her with dire consequences if
she did not submit. He then threw the girl on the cot and forcibly removed her “salwar” and denuded
her. He then had sexual intercourse with her, notwithstanding her protestations.

After satisfying his lust, the accused left threatening that he would bury both of them alive if she
complained to anyone.

Judgement of the Case- The Supreme Court was of the opinion that “the nature of evidence required
to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is
entitled to base a conviction on her evidence unless the same is shown to be infirm and not
trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the
prosecutrix does not have a strong motive to falsely involve the person charged, the Court should
ordinarily have no hesitation in accepting her evidence. They further stated that, there should be no
doubt that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted.
The degree of proof required must not be higher than is expected of an injured witness.”

Hence the court observed that a prosecutrix of a sex-offense cannot be put on par with an accomplice.
She is in fact a victim of the crime

Evaluate the admissibility of electronic records under Sec 65 A of Indian Evidence Act 1872.
It is pertinent to mention that only after the stage of relevancy and admissibility of the evidence,
genuineness, veracity, or reliability is seen by the Court. 7 For admissibility of electronic record there
are two routes:

1. Original (without certificate) - If a party can produce the original electronic record before
the Court, which is a piece of primary evidence8, then there is no necessity to comply with
Section 65-B of the Indian Evidence Act, 1872 and the same is admissible before the Court.
2. Computer Output (with certificate) - Documents, including electronic records, must be proved
by primary evidence except in those circumstances as enumerated under Section 65 of the
Indian Evidence Act, 1872.9 Whenever an original electronic record can‘t be produced before
the Court, it can be converted into computer output, i.e., Pendrive, printout, CDs, etc. makes it
secondary evidence.10 To make this secondary evidence admissible in Court, it must have
complied with 65B of the Indian Evidence Act, 1872.11

At first, it has to be proved that computer output is documentary evidence as per Section 65B(2). Then
it should be accompanied by a certificate confirming its authenticity as per Section 65B(4). Only after
this, the party can rely on that computer output and cannot be compelled to produce the original
electronic record in the Court. But in Shafhi Mohammad v. The State Of Himachal Pradesh12 it was
held, that a party who doesn‘t have a device from which the document is produced cannot be required
to provide a certificate under Section 65B(4) of the Evidence Act, 1872. The applicability of the
requirement of certificate being procedural can be relaxed by Court wherever interest of justice so
justifies.13 This judgment was overruled by the Apex Court in Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal and Ors.14 It was held, that producing certificate is a "condition precedent" to
the admissibility of evidence by electronic record and suggested that the trial Court can summon the
certificate from the person concerned.

Summarize a note on proof of handwriting and signature

If a document is alleged to be signed or to have been written wholly or in part by any person,

the signature or the handwriting of so much of the document as is alleged to be in that person’s

handwriting must be proved to be in his handwriting.

Certainly, here's a summary of the note on the proof of handwriting and signature in evidence:

The proof of handwriting and signature is crucial in legal proceedings to establish the authenticity of
documents. Various methods can be employed to establish this proof, including the testimony of
witnesses who are familiar with the person's handwriting, expert testimony from handwriting analysts,
and the comparison of the disputed handwriting with known samples. Courts may admit documents
into evidence if the proponent can demonstrate the reliability of the methods used to establish
authenticity. The goal is to ensure that the evidence presented is credible and can be relied upon to
make informed legal decisions.
20 Distinguish between oral evidence and documentary evidence.
Documentary evidence: Documentary evidence is defined as follows in Section 3 of the Indian
Evidence Act: Documentary evidence is any material that is brought before the court to be examined,
verified, or displayed. Electronic records submitted to the court are also covered by this definition.
Documentary evidence is covered in Chapter 5 of the Indian Evidence Act. This section includes
Sections 61 through 90A. The general guidelines for proving documentary evidence in various
contexts are covered in Sections 61 to 73A of the Act. In particular, Sections 61–66 of the Act address
how the contents of a document are to be proven.

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 establishing the main fact in the issue. Section 3 of the
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 oral
evidence.” The word oral indicates something spoken or expressed by mouth, so anything which is
accepted in court about the inquiry and expressed by any witnesses who are called in the trial is called
oral evidence.

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.

BASIS ORAL EVIDENCE DOCUMENTARY EVIDENCE

It is given by the witnesses in Documentary evidence that is written evidence

MEANING the court orally that is by is submitted in the court in form of hard papers,
mouth. documents.

It is given in section 3 of the

DEFINITION It is given in section 3 of the act.
act.

It is included in section 59 Written evidence ranges from section 61-66 of

SCOPE
and 60. the act.

FORM It has to be given in direct It is proved through primary and secondary

form although few exceptions
 are there. evidences.

SUBMISSIO It is submitted orally, signs or This is submitted in writing also includes

N by gestures. electronic form.

Focus on the presumption as to dowry death.

he section 113B of the Indian Evidence Act deals with the dowry death. Section 113B states that:
Presumption as to dowry death. -When the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such woman has been subjected by such
person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall
presume that such person had caused the dowry death.

Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in section
304-B of the Indian Penal Code (45 of 1860)
This section and the section 304B of Indian Penal Code has been added by the Dowry Prohibition
(Amendment) Act No.43 of 1986 which was with effect from 19th November 1986. This was done in
order to solve the increasing problem of dowry death. The word dowry death has been defined in
304B Indian Penal Code and the term dowry has deen defined in section 2 of the Dowry Prohibition
Act 1961.

Dowry death - (1) where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called "dowry death",
and such husband or relative shall be deemed to have caused her death.
Nature of Presumption
Section 113B uses the word "shall" and not 'may' so it is a presumption of law .On proof of the
essentials mentioned above, it becomes obligatory on the court to raise a presumption that the accused
caused the "dowry death". The court has no discretion to draw the presumption under this section if
the essential ingredients are proved then they are bound to draw this presumption under s113B of the
Indian Evidence Act. The legislature has made this presumption a mandatory presumption of law, of
course, rebuttable, Though this may sound to be a violent departure from the accepted norms of
criminal law. The legislature thought that the presumption under Section 113B should be a mandatory
presumption if the evil of dowry deaths is to be eradicated from the roots of our society.

If it is proved that soon before her death, the victim was subjected to cruelty or harassment in
connection of a dowry demand, then the presumption under s 113B can be raised. If the prosecution
has failed to prove the case under s 304B, IPC, even then, no presumption can be raised under 113B
of the Indian Evidence Act. So 304B is an integral part of 113B of the Indian Evidence Act. Cruelty
need not be physical. Even mental torture in a given case would be a case of cruelty or harassment
under 304B and 498A. In Nem Chand v State of Harayana the parties were married on 24-5-1962.
After staying at the matrimonial home for two months, she returned to her parents' house and told
them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and
she left for her matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a
plot. There after the husband took his wife to her parents' home saying that he would not take her back
unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up his
demand for Rs. 25,000. Soon thereafter she left for her parents home and came back with a sum of Rs.
15,000 with a promised that the rest of the amount would be would be paid later on. She died of
strangulation in her husband's home. The trial court found accused guilty. Supreme Court held that
accused should be convicted.
22 Focus on the presumption as to abetment of suicide by a married woman
The Indian Evidence Act section 113A deals with the presumption as to the abetment of suicide by a
married woman. Section 113A states that:
Presumption of abetment of suicide by a married woman. -When the question is whether the
commission of suicide by a woman had been abetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of seven years from the date of her
marriage and that her husband and such relative of her husband had subjected her to cruelty, the curt
may presume, having regard to all other circumstances of the case, that such suicide had been abetted
by her husband or by any such relative of her husband.
explanation- For the purpose of this section, cruelty shall have same meaning as in section 498A of
the Indian Penal Cod
cruelty means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any such person related to her to meet such demand
The section 113A was inserted by Criminal Law (second amendment) Act 46 of 1983. This was
introduced because there was increasing number of dowry death, which was in fact a matter of serious
concern. This evil was commented upon the Joint Committee of the House to examine the work of
Dowry Prohibition Act, 1961. the cases of cruelty by the husband or relative of husband which would
result in suicide or murder only constituted a small fraction. In order to move this difficulty it was
proposed to amend Indian Penal Code, Indian Evidence Act and Criminal Procedure Code that could
efficiently deal with the cases of dowry death as well as cruelty to married woman by her husband or
his relatives.

This amendment was necessitated to meet the changing social conditions, which would save the
married woman from the clutches of husband or her in-laws generally demanding more dowry. If she
refused to bring more dowry she was maltreated within the four walls of her house. As the woman's
parental home was far away from the matrimonial one the prosecution had a little chance for getting
evidence in favor of them.

Explain whether a witness can be excused from answering on ground that answer will criminate
him

132. Witness not excused from answering on ground that answer will criminate.—A witness shall not
be excused from answering any question as to any matter relevant to the matter in issue in any suit or
in any civil or criminal proceeding, upon the ground that the answer to such question will criminate,
or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or
indirectly to expose, such witness to a penalty or forfeiture of any kind:
(Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall subject
him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a
prosecution for giving false evidence by such answer.

24 Analyse when opinion as to usage, tenets when relevant.

Section 49 of the Indian Evidence Act provides the opinions of certain persons are considered as
relevant when to form an opinion as to usages and tenets. The opinions of people who have special
knowledge about the particular aspect are relevant. There are certain matters the Court can ask
opinions on like:

 The usages and tenets of any body of men or family;

 The constitution and government of any religious or charitable foundation;
 The meaning of words or terms used in particular districts or by particular classes of
people.
Illustration:

 The main question was regarding the meaning of a particular term used in certain areas;
 The residents or the persons who have special knowledge in the aspect can provide
opinions regarding the meaning;
 The members of a particular class who are associated with the word can also provide
opinions regarding the meaning.
The word was “nikhalis” and it’s meaning was used in a particular trade. The word commonly means
impure but there are certain regions where the term denotes hundred per cent purity. The opinion of a
person who is well versed with the trade and the usage of the word in the trade can be considered as
relevant and proper evidence. The opinion can also be provided by a single person, there is no need
for a group of persons to provide an opinion on the particular issue.

25 Examine the statement- Oral evidence must be direct.

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence needs
to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be fulfilled. If
anyone of the following conditions is not fulfilled, then the evidence will fail to be pictured as an Oral
Evidence. Oral evidence and section 60 is a proportional equation. For acting out one, the other needs
to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is taken into regards must
be direct. The word direct does not include any category of hearsay as its main element is vested in
the word “must”. Every statement under oral evidence must be direct. Now let’s focus on some
conditions which need to be fulfilled to make oral evidence admissible;

 Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of direct
oral evidence. The word “Direct” in all matters must mean that it is administered by any person on
their own i.e through their personal knowledge and is not passed by any other person (hearsay) which
on the other hand will be inadmissible. This involves certain cases in which the word “direct” is
involved :-

1. It refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it –
It refers to evidence which has been given by the person who has actually seen or observed the matter
by their own eyes, This will be actuated as direct evidence.For example: if A saw that B is hitting C.
A will be an eyewitness to the crime scene and his testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it –
It refers to evidence which has been given by the person who was present and has actually heard the
matter by themselves, this will come under direct evidence.For example: if A overheard B’s
conversation that stated; that he is going to kill C tomorrow under the bridge, A’s testimony will be
that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner, it
must be the evidence of person who says he perceived it by that sense or manner –
Meaning such evidence that has been given by the person who has perceived it in any other manner or
by any other senses but it has been perceived by that person itself. For example: through sense of
smell or taste.

4. If it refers to an opinion or to grounds on which that opinion is held, it must be the

evidence of the person who holds that opinion on those grounds –
It means when a person holds any opinion on any matter or incident, only his testimony on the ground
of which his opinion is formed will be admissible in the court.For example A thinks that B is not a
good guy, so his testimony of that opinion will be termed under direct evidence.

26 State the features of witness protection scheme.

Witness’ has nowhere been defined in the Code of Criminal Procedure Code, 1908 or in the Indian
Evidence Act, 1872. The Black’s Law Dictionary defines it as: “In the primary sense of the word, a
witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge
of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes
a transaction.”

Further, The Witness Protection Scheme, 2018 defines ‘witness’ as: “‘Witness’ means any person,
who possesses information or document about any crime regarded by the competent authority as
being material to any Criminal proceedings and who has made a statement, or who has given or
agreed or is required to give evidence in relation to such proceedings.

It is a rule of law that no rights of the witness should be prejudiced by way of threats, intimidation or
corruption therefore, to allow him to testify for or against the case which he had been a witness to
with full liberty. In the words of Jeremy Bentham “Witnesses are eyes and ears of the Courts”, hence,
it becomes imperative on part of the State to provide adequate protection to the witness to ensure ideal
working of the wheel of justice. The need to protect witnesses has been emphasized by the Hon’ble
Supreme Court of India in Zahira Habibulla H. Sheikh and Another v. State of Gujarat[1] wherein
while defining ‘Fair Trial’, the Hon’ble Supreme Court observed that “If the witnesses get threatened
or are forced to give false evidence that also would not result in fair trial”. Further the hon’ble
Supreme Court of India also held in State of Gujarat v. Anirudh Singh[2] that: “It is the salutary duty
of every witness who has the knowledge of the commission of the crime, to assist the State in giving
evidence.”

The need for this scheme had been envisaged by various reports of the Law Commission of India and
the Malimath Committee. The 14th Law Commission Report was the first ever instance where the
issue of witness protection was brought forth. Further, the 154th Report dealt with the plight of the
witnesses. The 172nd and 178th Report laid emphasis on protection of witness from the wrath of the
accused. The 172nd Report in particular inherited a great deal from the judgement in Sakshi v.
Union of India[3] which advocated for in camera trials to keep the witness away from the accused
and to ensure her testimony is procured without any public fear. The 198th Report titled “Witness
Identity Protection and Witness Protection Programmes” emphasized that the witness protection
scheme need not be limited to cases of terrorism or sexual offences but should extend to all serious
offences, thereby increasing the ambit of its applicability and functioning.

Asses the evidentiary value of the statement given by hostile witness.

the evidence of a hostile witness cannot be treated as washed off the record altogether. Still, only the
parts of it should be accepted which are found to be reliable and credible after scrutiny. It is now well
established that the portion of evidence advantageous to both parties may be used; however, the court
before placing reliance must be very cautious. Supreme courts have held in their different decisions
that admitting a witness to be hostile does not ipso facto dismiss the evidence. Just because the
witness after stating the investigating agency regarding a criminal case, and later retracted from it
there is no need to reject their evidence in altogether. For instance, the Allahabad High Court while
deciding the criminal appeal in a case of murder held that a review of the witness's whole testimony
reveals that the next day, he was forced to say something in favour of the appellants, as he seemed to
have been won over. The later statement of the witness that there was utter darkness at the location is
completely contradicted by the fact that the night of the incident was a moonlight night, and the
occurrence took place in the open, thus there was no issue of pitch black. The assailants were likewise
well-known to the witness He had also incurred injuries, and the witness's attendance on the scene
cannot be questioned, and his later statement was influenced by the appellants; so, the witness's entire
proof can't be thrown out on this basis. It is an established legal concept that a statement of a hostile
witness can be examined to the extent that it supports the prosecution's case. Furthermore, it has been
established that if a hostile witness's testimony is backed by additional credible proof, there's no legal
restriction on using such evidence to base a conviction. It is an established legal concept that a
statement of a hostile witness can be examined to the extent that it supports the prosecution's case.
Furthermore, it has been established that if a hostile witness's testimony is backed by additional
credible proof, there's no legal restriction on using such evidence to base a conviction. But the
truthfulness of it should be taken into proper consideration. The court clarified that a witness who
provides contradictory testimony at various times shows little concern for the truth. When the witness
fails to meet the standard in his general concern for truth, even though he makes consistent allegations
about individual events, it is dangerous to rely on such testimony implicitly
The Indian law says that just because a person has turned hostile, that doesn’t mean that whole of his
statement should be turned down.[2]” In State of U.P. V.Ramesh Prasad Mishra and anr.,[3]

“It is the law that the statement of the hostile witness to be taken as the evidence would not be totally
rejected just because the person has moved away from his duty to speak the truth , or that he has not
spoken in the favor of the prosecution. However, in such a case, the court can scrutinize the statement
of the witness and can reject only the part that is inconsistent with the case or arguments of the
prosecution ”.

28 Appraise impeaching credit of witness.

S. 155 of Indian Indian Act:- Impeaching credit of witness.—The credit of a witness may be
impeached in the following ways by the adverse party, or, with the consent of the Court, by the party
who calls him—

(1) by the evidence of persons who testify that they, from their knowledge of the witness,
believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has
received any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to
be contradicted.

(4) [* * *]

Explanation.—A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination, and the answers which he gives cannot be contradicted, though, if they are false, he may
afterwards be charged with giving false evidence.
Impeaching the credibility of a witness in judicial proceedings in India is governed by the Indian
Evidence Act, 1872. The Act provides various methods for impeaching a witness's credit and
challenging their credibility. Here are some of the key provisions and methods for impeaching a
witness's credit under the Indian Evidence Act:
 1) Cross-Examination (Section 138 of Evidence Act): Cross-examination is a fundamental
method of impeaching the credibility of a witness. During cross-examination, the opposing party's
Advocate can question the witness about inconsistencies in their testimony, prior statements, or any
potential biases or motives to lie.
 2) Prior Inconsistent Statements (Section 145): Section 145 of the Indian Evidence Act
allows a witness to be questioned about prior inconsistent statements they have made. If the witness
has previously made statements that are inconsistent with their current testimony, those prior
statements can be introduced to impeach their credibility.
 3) Bias or Interest (Section 146): Section 146 of Evidence Act allows a witness to be
questioned about any potential bias or interest they may have in the case, which could affect their
credibility. This includes financial interests, personal relationships, or any other factors that may
influence their testimony.

 4) Leading Questions (Section 143 of Evidence Act): Leading questions that suggest a
particular answer can be used during cross-examination to challenge a witness's credibility.
It's important to note that while these methods are available for impeaching a witness's credit, they
must be used within the framework of the Indian Evidence Act and legal procedures. Additionally, the
weight given to such impeaching evidence is ultimately determined by the judge, who will assess the
credibility and reliability of the witness's testimony in the context of the case.

29 Assess the significance and purpose of examining a witness before the Court of Law
Witnesses are required to answer the relevant questions presented to them. A question asked to a
witness must be relevant to a fact in issue, and must help establish the same. Their answers when
recorded are called testimonies of witnesses. This questioning of the witness and recording their
answers is called witness examination.

Examination of witness

Examination of a witness is asking the witness questions regarding relevant facts in the case and
recording the statements of witnesses as evidence. There are three parts to the examination of a
witness and Section 138 of the Evidence Act states that the witness must be examined in the following
order:

 First, the party that called the witness examines him, this process is called examination-
in-chief as mentioned under Section 137 of the Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party wants to, they can
take over the witness and cross-question him about his previous answers. The opposite
party may ask him any question regarding all the relevant facts and not merely the facts
discussed during the examination-in-chief. This process has been described in Section 137
of the act as cross-examination.
 If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court for explaining matters
referred to in cross-examination. The section further states that if any new fact or issue arises during
re-examination, the opposite party can further cross-examine the witness on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and
Kashmir that- cross-examination might not be necessary if the witness testimony is prima
facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to his statements, his
testimony can be rejected and there is no need for cross-examination in that case.

The examination of a witness must be done specifically in the sequence mentioned under Section 138.
In the case of Sharadamma v. Renchamma, it was held that examination-in-chief must be done before
the cross-examination. The opposite is neither possible nor permissible.

30 Distinguish between examination in chief and cross examination and re-examination

Examination of a witness is asking the witness questions regarding relevant facts in the case and
recording the statements of witnesses as evidence. There are three parts to the examination of a
witness and Section 138 of the Evidence Act states that the witness must be examined in the following
order:

 First, the party that called the witness examines him, this process is called examination-
in-chief as mentioned under Section 137 of the Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party wants to, they can
take over the witness and cross-question him about his previous answers. The opposite
 party may ask him any question regarding all the relevant facts and not merely the facts
discussed during the examination-in-chief. This process has been described in Section 137
of the act as cross-examination.
 If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court for explaining matters
referred to in cross-examination. The section further states that if any new fact or issue arises during
re-examination, the opposite party can further cross-examine the witness on that fact or issue.

Discuss the scope and ambit of ‘introductory fact’ under Indian Evidence Act.

32 State the purpose and evidentiary value of the Test Identity parade in a criminal
proceeding.
Test Identification Parades are conducted while the cases are under investigation, after the arrest of
the accused or recovery of property. An identification parade is held to test the veracity of a witness
who professes to have seen and claims to identify an accused not already known. When the police
investigate an offence committed by unknown persons and arrest persons suspected of having
committed it, the identification proceedings are held, so that eyewitnesses can say whether suspects
committed the offence or not.

Test Identification Parades are held both in criminal and civil cases to identify firstly, the persons
living or dead, known or unknown, secondly, articles including fire arms, and thirdly, handwritings,
photographs, finger and footprints etc. Mostly test identification parades are held in criminal cases to
prove or disprove the guilt or innocence of the accused. Whether it is held in respect of persons or
articles, test identification parades are held while the cases are under investigation.

Objectives of Test Identification Parade

Test Identification Parade is one way to find out the identity of the accused. The purpose of the Test
Identification Parade is to allow an eyewitness to the event to identify the accused in front of a
judicial magistrate. Test identification is absolutely necessary in some cases. The purpose of the
identification test is to evaluate the memory of the eyewitness and for the prosecution to find out who
can be called an eyewitness. The object is to test the evidence given by the witnesses and to know
whether they could really identify the accused as claimed by them.

The object of T.I. Parade is to test the witness's ability to select from a group of persons, those whom
the witness stated he had previously seen at the time of commission of crime.
Evidentiary Value
The Test Identification Parade is not important or key evidence; it only ensures that the investigation
is moving in the right direction. A test identification parade conducted in the course of an
investigation cannot be considered primary evidence, and guilt cannot be based solely on the results
of test identification; the witness must be identified in court to convict. And since the same person
who is identified in the test identification parade is also identified in the court, it is no added value; it
is merely a corroboration of the testimony presented in court and has secondary value. Identification
made during trial is not of much value unless it is corroborated by prior identification.

In the case of State of Andhra Pradesh v. K. Venkata Reddy, the Supreme Court ruled that the
testimony of a witness in court is substantive testimony, while the identification of a witness in a Test
Identification Parade is merely a corroboration of testimony presented in court. The result of an
identification test conducted at the investigative stage is not substantial evidence and cannot in itself
be the basis of a conviction. The evidence against the accused must be the evidence given by the
witness who identifies him in the witness box.

Evaluate the constitutionality of the concept of Test Identity Parade in a criminal proceeding
Describe the different kinds of evidence those are being appreciated in the Indian Evidence Act
1872.

Definition of evidence in the Indian Evidence Act

According to Section 3 of the Evidence Act 1872, evidence means and includes:

 All such statements which the court allows or needs to be presented before it by the
witnesses in connection to matters of fact under inquiry. These statements are termed as
oral evidence.
 All such documents including any electronics record, presented before the court for
inspection. These documents are termed as documentary evidence.

Types of Evidence

According to the definition given in the Indian Evidence Act, evidence can be divided into two
categories:

 Oral Evidence;
 Documentary Evidence.
It should be noted that evidence can be both oral and documentary and also, electronic records can be
presented in the court as evidence, which means that even in criminal cases, evidence can be
presented by way of electronic records. This shall include video-conferencing.

Oral and documentary evidence can be divided into two categories:

 Direct or primary;
 Indirect or hearsay or secondary.
There is also a category of real or material evidence, which is supplied by material objects for
inspection of the Court such as a stolen good or the weapon of offense.

Oral Evidence

Oral evidence renders to the evidence that is mainly words spoken by mouth. It is adequate to be
proved without the support of any documentary evidence, provided it has credibility.
Primary oral evidence is the evidence that has been personally heard or seen or gathered by the senses
of a witness. It is called direct evidence as defined by Section 60 of the Indian Evidence Act.

Indirect or hearsay evidence is generally not admissible in a court of law as the person reporting the
facts is not the actual witness of the facts in issues. However, there are some exceptions made in the
case of hearsay evidence where it is admissible in a court of law. Section 32 and Section 33 of the
Indian Evidence Act, states the exceptional cases of hearsay evidence.

Documentary Evidence

Documentary evidence is the evidence that mentions any issue described or expressed upon any
material by way of letters, figures or marks or by more than one of the ways which can be used for
recording the issue. Such evidence is presented in the form of a document to prove a disputed fact in
court.

Primary documentary evidence includes the evidence that shows the original documents as mentioned
in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence is the evidence
that includes copies of documents that can be presented in the court under certain circumstances or as
mentioned in Section 63 and Section 65 of the Indian Evidence Act.

Direct or primary evidence

Direct Evidence is acknowledged as the most important evidence required for deciding the matter in
issue. Direct evidence directly proves a fact or disapproves of the fact by its virtue. In the case of
direct evidence, a particular fact is accepted directly without giving any reason to relate to the fact.
One does not even need to point out the illustration provided as the evidence given by the witness in
the court of law is the direct evidence which is sufficient enough to prove the matter as against the
testimony to a fact proposing guilt.

Also, at times the rule of best evidence plays an important part in upholding direct evidence in a court
of law. The rule of the best evidence is a rule of law that only includes the primary evidence in itself.
It states that if evidence such as a document or a recording is presented in the court then only the
original ones will be admissible unless there is a reason for not using the original one in the court.

Indirect evidence

Indirect evidence is that evidence which proves the facts in question by giving other facts that are
indirect evidence and afterwards, proving their relevance to the issue. The deduction that can be
drawn is from such evidence by connecting a series of other facts to the facts in question. These
indirect facts must have been related to the facts in question and have a cause and effect connection.

Direct evidence is used in two senses:

 As against hearsay evidence

According to this opposition, direct evidence is the evidence given by a fact that is sensed by a
witness with his senses or an opinion held by the witness whereas hearsay evidence is the evidence
that what some other person has told the witness to have seen or heard by the other person. This
differentiation can be noticed in Section 60 of the Indian Evidence Act, where the word ‘direct’ is
used in contradistinction with the term ‘hearsay’ evidence.

 As against circumstantial evidence

Direct evidence is that evidence which goes expressly to the very issue in question and which, if
believed will prove the fact in question without needing any help from any reasoning for example
evidence such as the testimony of an eye-witness to murder, whereas circumstantial evidence will not
prove the issue in question but it ascertains the point only by inference or reasoning.

35 Decide whether circumstantial evidence can be the sole basis of the conviction.
Circumstantial evidence is unrelated facts that, when considered together, can be used to infer a
conclusion about something unknown. Information and testimony presented by a party in a civil or
criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact
or event that the party seeks to prove.

An example of circumstantial evidence is the behavior of a person around the time of an alleged
offense. If someone were charged with theft of money, and were then seen in a shopping spree
purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the
individual's guilt. Similarly if a witness arrives at a crime scene seconds after hearing a gunshot to
find someone standing over a corpse and holding a smoking pistol, the evidence is circumstantial,
since the person may merely be a bystander who picked up the weapon after the killer dropped it. The
popular notion that one cannot be convicted on circumstantial evidence is false. Most criminal
convictions are based, at least in part, on circumstantial evidence that sufficiently links criminal and
crime

State the circumstances when oral evidence is being excluded from the documentary evidence.
ection 91 of the Indian Evidence Act, 1872 speaks about, “Evidence of terms of contracts, grant and
other dispositions of property reduced to form of documents”. This section says that whenever there is
a question regarding a document then the documents shall be given in prove by producing the original
copy of the documents before the court. The rule expressed in Section 91 is an exclusive rule as it
excludes the use of oral evidence for the proof of the contents of the documents except in cases where
secondary evidence is applicable for the proof of the documents.

This principle is made so strict and inflexible because the main essence of written documents is that in
time of dispute the written documents can be produced as evidence. But if secondary evidence or oral
evidence is made admissible in case of the original documents then the whole purpose of the written
document is destroyed. So, the best evidence rule imbibed in Section 91 of the evidence act is said to
be the most inflexible. However, one important thing to note is that Section 91 applies only to
contracts, grants and dispositions.

Section 91 of Evidence Act contains following 2 exceptions:

1. Where the appointment of a public officer is required by law to be made by writing and
the question is whether an appointment was made, if it is shown that a particular person
has acted as such officer, that will be sufficient proof and the writing need not be proved.
When the question is whether X is a High Court Judge, the warrant of appointment need
not be proved, the only fact that he is working as a High Court Judge will be proved.
Similar is the case when X appears before the court as a witness and says that he is a civil
surgeon.
 2. Wills admitted to probate in India may be proved by the probate. The document
containing the will need not be produced. The word ‘probate’ means the copy of a will
certified under the seal of the court of competent jurisdiction with a grant of
administration to the estate of the testator.
The first explanation in this section says that where there is more than one document to prove a
contract, grant or disposition then each and every document needs to be proved and the proof must be
with the original document i.e. primary evidence or by secondary evidence where secondary evidence
will be applicable.

The second explanation says that if there is more than one original for a single contract, grant or
disposition then proving only one document will be sufficient. An example is the bills of exchange of
which three are usually exchanged and also the bills of lading which are usually executed in
duplicates and sometimes in triplicates. Where the document listed is in several parts each part is the
primary evidence of the document.

The third explanation to the section says that when there is a question of evidence other than that of
(i) contract, grant and disposition of property and (ii) matters required by law to be reduced to writing
then the rule will not apply and any kind of evidence will be admissible. For example, the contract of
marriage is not signed by either of the contracting parties but it is in the nature of a memorandum
prepared by nikah khwan, then it is open to one of the parties to prove by other evidence, oral or
documentary, that he or she has been married and also the terms.

37 Discuss the constitutionality of expert opinion with special reference to Narco-analysis

38 Examine the scope and nature of the doctrine of Res Gestae.

Res Gestae has been derived from Latin words meaning ‘’things done’’. It is mainly an exception to
the hearsay rule of evidence which refers to ‘’an assertion other than one made by a person while
giving oral evidence is inadmissible’’.

As per the stated words of the Indian Evidence Act, under section 6, facts which though not in issue,
are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they
occurred at the same time and place or at different times and places. This comes under the ambit of
res gestae.

Nature and scope of Section 6 of the Indian Evidence Act,1872

As mentioned in Section 6, the facts must form a part of the same transaction, but what is meant by
transaction in legal terms?

Transaction: it is defined as a crime, contract, error or any other subject of enquiry that may be in
question by a single name, which includes both the immediate cause and effect of an act or event and
also its collection of relevant circumstances, the other necessary antecedents of its occurrence,
connected with it, at a reasonable distance of the time, pace and cause and effect. To resolve what
forms a transaction, the following points need to be taken into consideration:

 Unity or proximity of the place

 Proximity of time
 Continuity of actions
 Community of purpose
Mainly it is the test of continuity of actions and community of purpose that make it admissible in
nature. If the human declaration is spontaneous but detached from the concerned issue, it wouldn’t be
admissible.

The transaction can confine a singular act or a series of acts, which may be done at a different place,
or at a different time, but it must be concurrent with the act. In the above-mentioned case of Ratten v
R, the victim dialled on the telephone 5 minutes prior to the shooting, however, that act was related to
the act of shooting that followed after 5 minutes. Her mental and physical expressions showed the
continuity of actions and declared the fear that she had against the accused for murdering her. All of
these constitute instances, which supplement, explain or qualify the fact and issues raised in the court
of law. However, these facts would only be relevant if they can be in sync with the proximity of time,
continuity of actions and community of purpose.

Contemporaneous act: In the case of Kailash Chandrakar and another Versus State of Madhya
Pradesh[8], the rationale was to form a particular declaration as a part of the same transaction or of
the same incident or just contemporary to the incident so as to make reasonably certain that the
speaker is still under the stress of excitement in respect of the transaction are facts to be considered.

Such acts and statements can come under the doctrine of res gestae that are contemporaneous in
nature, meaning, must be simultaneous or spontaneously done, during or immediately, before or after
the act, but not after the act is over. Here the value of time is of significance. Res Gestae supports not
only actual facts of the transaction and circumstantial evidence surrounding it but also the matters
immediately preceding to and having a direct causal connection with it, as well as acts immediately
following it and so closely connected with it as to form in reality a part of the occurrence, as
explained by J.McKnight, State v. Fouquette.

39 Examine the evidentiary value of dying declaration.

A dying declaration is a statement made by a person while they are dying, explaining the reason for
their death. This statement can be either indirect or direct, revealing the cause of their death.
Therefore, the only statement given shortly before a person’s death is called a dying declaration.

If a person is mentally sound and aware that they are about to die, they can make a declaration stating
the cause of their death. This statement will be accepted as evidence in a court of law. The declaration
can be made orally, in writing, or through actions. The term “dying declaration” is self-explanatory, as
it describes the statement given by someone who is dying.

Evidentiary Value of Dying Declaration in India

A dying declaration carries significant weight in legal proceedings and can serve as the sole basis for
a conviction without the need for additional corroborating evidence. It is considered a piece of
evidence and can be relied upon if found to be genuine and reliable. However, the court must be
satisfied that the dying declaration instils complete confidence in its accuracy.

The court must ensure that the statement of the deceased was not influenced, coached, or a result of
imagination. It must also ascertain that the deceased was of sound mind and had a clear opportunity to
observe and identify the assailants. Once the court is convinced that the statement is truthful and
voluntary, it can base a conviction solely on the dying declaration without requiring further
corroboration. Hence, this adds up an evidentiary value of a dying declaration

40 Explain the evidentiary value of judicial confession.

Judicial Confession
Judicial confession appears in Section 80 of the Indian Evidence Act. Section 80 talks about –
Presumption as to documents produced as record of evidence.

It further states that —Whenever any document is produced before any Court, purporting to be a
record or memorandum of the evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to take such evidence, or to be a
statement or confession by any prisoner or accused person, taken in accordance with law, and
purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court
shall presume— that the document is genuine; that any statements as to the circumstances under
which it was taken, purporting to be made by the person signing it, are true, and that such evidence,
statement or confession was duly taken.

So basically, the evidentiary value of the judicial confession is provided by Section 80 of the Indian
Evidence Act and states that a confession made in the presence of a magistrate or in the court
registered by the magistrate as specified by the law is considered to be valid and legitimate confession
and the suspect may be tried with the offence.

Further, Section 164 of the CrPC authorises the magistrate to record confession, hence the confession
is recorded by the magistrate regardless of the fact that which magistrate it is, unless he is barred to
record the confession.

Therefore, the identity of the perpetrator must be clear and proven in the confession to victimise him
for the guilt of the crime he committed in order to lift the presumption.

To sum up, judicial confessions Are those rendered in due course of legal proceedings before a judge
or in court if made voluntarily by a person in a sound state of mind, a judicial confession has been
defined as “plea of guilty on arrangement (made before a court)”

41 Evaluate the evidentiary value of extra --judicial confession.

Extra Judicial Confession

Extra-judicial confessions- These are those rendered anywhere by the accused than before a judge or
in custody. It is not necessary for the statements to be addressed to any particular person. It could
have arisen in the form of a plea. It could be a confidential person’s confession.

An extra-judicial confession has been described as “a free and willing confession of guilt by a person
charged with a crime in the course of a communication with persons other than the judge or
magistrate seized of the charge against himself.”

A man may write a letter to his father or acquaintance after the commission of a crime expressing his
sorrow about the matter. This could be a confession. Extra-judicial confession can be recognised and
if it passes the legitimacy test, it may be the foundation of a prosecution.

In principle, extra-judicial confession is made before a private person that also involves a judicial
officer in his personal capacity. It also involves a magistrate not authorised under section 164 of the
Cr.P.C. to record confessions or a magistrate so empowered, but at a stage where section 164 does not
apply, obtaining the confession.

Although extra-judicial confession does not have much evidentiary value contrary to judicial
confession, the documentation of the accused itself is one of the best proof accessible to the court for
accusing the accused of the crime in the case of a written confession.

If the confession is not accessible in the form of written evidence the court may test the defendant’s
oral confession made to some other person. The remarks of the accused to any other person may be
permissible at the judgment and compliance of the court, and the accused may consequently be
convicted for the crime for which he is sued.

42 explain the conceptof 'falsus in uno omnibus'.

Falsus in Uno-Falsus in Omnibus” as a Legal Doctrine that literally means “false in one thing,
false in all.” In earlier times, this Maxim postulated that “if the jury believes that a witness’s
testimony on a material issue is intentionally deceitful, the jury may disregard all of that witness’s
testimony.”

Basically, this maxim explains that if a witness states a false fact that is material to the case, then his
entire testimony may be discarded by the Court. Usually, this maxim does not have much utility in
present times as today, the judges have ample discretion to even take into account the testimony of a
hostile witness. But be that as it may, let us understand this maxim with the help of the observations
of the Court.

43 Explain the evidentiary value of hostile witness.

the evidence of a hostile witness cannot be treated as washed off the record altogether. Still, only the
parts of it should be accepted which are found to be reliable and credible after scrutiny. It is now well
established that the portion of evidence advantageous to both parties may be used; however, the court
before placing reliance must be very cautious. Supreme courts have held in their different decisions
that admitting a witness to be hostile does not ipso facto dismiss the evidence. Just because the
witness after stating the investigating agency regarding a criminal case, and later retracted from it
there is no need to reject their evidence in altogether. For instance, the Allahabad High Court while
deciding the criminal appeal in a case of murder held that a review of the witness's whole testimony
reveals that the next day, he was forced to say something in favour of the appellants, as he seemed to
have been won over. The later statement of the witness that there was utter darkness at the location is
completely contradicted by the fact that the night of the incident was a moonlight night, and the
occurrence took place in the open, thus there was no issue of pitch black. The assailants were likewise
well-known to the witness He had also incurred injuries, and the witness's attendance on the scene
cannot be questioned, and his later statement was influenced by the appellants; so, the witness's entire
proof can't be thrown out on this basis. It is an established legal concept that a statement of a hostile
witness can be examined to the extent that it supports the prosecution's case. Furthermore, it has been
established that if a hostile witness's testimony is backed by additional credible proof, there's no legal
restriction on using such evidence to base a conviction. It is an established legal concept that a
statement of a hostile witness can be examined to the extent that it supports the prosecution's case.
Furthermore, it has been established that if a hostile witness's testimony is backed by additional
credible proof, there's no legal restriction on using such evidence to base a conviction. But the
truthfulness of it should be taken into proper consideration. The court clarified that a witness who
provides contradictory testimony at various times shows little concern for the truth. When the witness
fails to meet the standard in his general concern for truth, even though he makes consistent allegations
about individual events, it is dangerous to rely on such testimony implicitly.
44 Evaluate the statement: No new trial for improper admission or rejection of evidence
Evidence must be legally relevant in order to be admissible. The admission must be made and
received in compliance with the Evidence Act.
Section 167 of the Indian Evidence Act talks about ‘no new trial for improper admission or
rejection of evidence’. It says:

 Improper admission or rejection of evidence is not a ground for initiating a new trial or
reversal of any decision;
 If there were enough evidence to justify the decision; or
 If the evidence that has been rejected had been received;
 The evidence rejected or improperly submitted should not be so significant that the
decision could have been different if it was admitted.
Therefore, if an appeal is filed on the ground of improper exclusion of evidence or admission of
evidence, the appellant must be able to prove that:

 There was improper admission or exclusion of evidence, and

 There has been a mockery of justice.
This section is applicable to both criminal and civil cases.

In civil cases, it is pretty obvious that where there is enough evidence to justify a decision it is
immaterial whether the evidence has been admitted or rejected, initiating a new trial all together is not
required.

Section 167 uses the phrase “reversal of judgment”, and judgments can only be reversed by an
appellate court. It means that this section is applicable to appeals as well.

In the case of Abdul Rahim v. King-Emperor, it was laid down that:

 Acceptance of inadmissible evidence is not an ipso facto ground for a new trial.
 Acceptance of inadmissible evidence is not a ground to set aside a judgment.
 Provided that there is other evidence to support the findings and reach the same decision.

Effects of improper admission or rejection of evidence in criminal cases

This section will be applicable to criminal cases also, as held by The High Court of Bombay in the
case of Abdul Rahim v. King-Emperor.

 It was laid down that if evidence has been wrongly admitted in a criminal case at the trial
stage,
 The High Court on appeal should try to exclude that inadmissible evidence and still keep
the decision the same.
 Provided that the evidence already available was enough to clearly establish the case and
reach the same decision.
It means that:
  In case the High Court on appeal is unsure if a fact was missing the opinion or decision of
a certain authority would be the same or not.
 The High Court interferes but only if it is totally certain that there would have been no
other decision.
 In that case, the irrelevant circumstances above would totally wreck the order, as observed
in Madan Lal v. Principal, H.B.T. Institute.
The court in the case of Abdul Rahim v. King-Emperor said that it may be misdirection, and it is not
sufficient ground to change the verdict.

Therefore, if the evidence is improperly admitted and there was already enough evidence to establish
the case. Such improperly admitted evidence can be ignored and the decision would still remain the
same. Or else there has to be a new trial.

45. Explain the rules governing the examination of witnesses-in-chief, cross-examination, and
re-examination under the Indian Evidence Act.
Witnesses are required to answer the relevant questions presented to them. A question asked to a
witness must be relevant to a fact in issue, and must help establish the same. Their answers when
recorded are called testimonies of witnesses. This questioning of the witness and recording their
answers is called witness examination.

Examination of witness

Examination of a witness is asking the witness questions regarding relevant facts in the case and
recording the statements of witnesses as evidence. There are three parts to the examination of a
witness and Section 138 of the Evidence Act states that the witness must be examined in the following
order:

 First, the party that called the witness examines him, this process is called examination-
in-chief as mentioned under Section 137 of the Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party wants to, they can
take over the witness and cross-question him about his previous answers. The opposite
party may ask him any question regarding all the relevant facts and not merely the facts
discussed during the examination-in-chief. This process has been described in Section 137
of the act as cross-examination.
 If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court for explaining matters
referred to in cross-examination. The section further states that if any new fact or issue arises during
re-examination, the opposite party can further cross-examine the witness on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and
Kashmir that- cross-examination might not be necessary if the witness testimony is prima
facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to his statements, his
testimony can be rejected and there is no need for cross-examination in that case.
The examination of a witness must be done specifically in the sequence mentioned under Section 138.
In the case of Sharadamma v. Renchamma, it was held that examination-in-chief must be done before
the cross-examination. The opposite is neither possible nor permissible.

46 Distinguish between admissibility and relevancy under Indian Evidence Act 1872

No.
Relevancy Admissibility
1) Relevancy is based on logic and Admissibility is not based on logic but on strict
probability rules of law.

2) The rules of relevancy are described The rules of admissibility is described after
from Section 5 to Section 55 of Section 56 of Evidence Act, 1872.
Evidence Act, 1872.

3) The rules of relevancy declare what is The rule of admissibility declares whether certain
relevant. type of relevant evidence are admissible or are to
be excluded.

4) Under Evidence Act the rules of Admissibility is means and of modes for
relevancy means where evidence are admissibility of relevant Evidence.
admissible.

5) The facts which are relevant may not The facts which are admissible are necessarily
be necessarily admissible. relevant

48 Explain the term Hearsay evidence along with its exception.

Hearsay evidence refers to a testimony that is provided by a witness and is not based on any personal
communication. It could be something that the witness overheard, or was told about from a third
party, making it second-hand information.[iv] It is a very weak form of evidence since it is neither
based on the experience of the witness nor their personal knowledge.

Usually, hearsay evidence is not admissible before the courts, this is due to the fact that the person
who is providing such evidence bears no personal responsibility towards the factual accuracy of the
statement, and there is plenty of scope for the truth to get diluted in such a statement

While direct evidence is always considered to be more reliable than hearsay evidence, there are some
exceptional circumstances in which the courts could allow hearsay evidence under the Indian
Evidence Act.

The main circumstances in which hearsay evidence is admissible include Res Gestae, Admissions and
confessions, dying declarations, and evidence is given in prior hearings. Each of these exceptions will
be looked at in this section.
Res Gestae

The principle of Res Gestae is covered under Section 6 of the Indian Evidence Act. It states that
“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times and
places.”[viii] Thus, in order for a fact to be shown as a part of res gestae must be linked to the facts in
the issue but should not be the facts in the issue themselves.

Section 6 creates an exception to the general rules of evidence since it allows hearsay evidence to be
admissible before the courts so long as it forms a part of the same transaction of the act and is
contemporaneous with no time lag in which fabrication could take place.[ix]

The same was also upheld in the case of Pratap Singh[x] when the court referred to the judgment in
the case of Chhotka V. State[xi] and reiterated the view that “the requirement of Sec. 6 is that the
statement must have been made contemporaneously with the act or immediately after it and not at
such an interval of time as to make it a narrative of past events or to allow time for fabrication.”

Further, in the case of Bhaskaran v. State of Kerala, the courts held that “While no doubt the
spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under
Section 6 is that it is a part of the transaction and not merely because it is spontaneous. The statement
is relevant only if it is that of a person who has seen the actual occurrence and who uttered it
simultaneously with the incident or so soon thereafter as to make it reasonably certain that the
speaker is still under the stress of the excitement caused by his having seen the incident.”[xii]

Section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) relates to the
legitimacy of a child born during wedlock. The law presumes that if a child is “born during the
continuance of a valid marriage between his mother and any man, or within two hundred and eighty
(280) days after its dissolution, the mother remaining unmarried…”[1], it is conclusive proof of its
legitimacy unless it can be proven that the parties to the marriage did not have any access to one
another. The legislative spirit behind this section seeks to establish that any child born during a valid
marriage must be legitimate. The law does not presume dishonourable or immoral actions unless
conclusive proof can be produced for the same.
The establishment of paternity under both, civil and criminal law, is extremely important. The law
presumes the legitimacy of a child born during a valid marriage as conclusive. The only exception
under the law is non-access between the parties. This “non-access” refers to the non-existence of
opportunities for sexual intercourse. This creates a legal lacuna with respect to cases where paternity
may be disputed even when the parties had “access” to each other, for example, in cases of adultery.
In such a case, due to the standard of “conclusive proof”, a party with a legitimate case trying to
dispute paternity will find themselves without remedy due to the inability to produce evidence. The
exception to this law, i.e. “non-access” is not wide enough to cover all possible situations under the
ambit of this law. Thus, the law is a draconian law based on morality with no relevance in the modern
era.

“CONCLUSIVE PROOF”

Section 4 of the Act, lays down three degrees of presumption – ‘May presume’, ‘Shall presume’, and
‘Conclusive proof’. It must be noted that section 112 of the Act uses ‘conclusive proof’ and
thus section 4 and section 112 must be read together. Therefore, if the two requirements of section
112 are proven, it shall be considered as conclusive proof of legitimacy, which means that further
evidence to disprove said fact may not be given[3]. The legitimacy of such a child cannot be rebutted
unless non-access can be proved. This creates problems for the party disputing the paternity of the
child.

The section is based on the presumption of morality and may, in certain circumstances, hold the party
disputing paternity unjustly accountable. Since the question of legitimacy is an extremely important
one in cases of custody, maintenance etc., it is impractical for the section to provide such a limited
exception.

EXCEPTION OF “NON-ACCESS”

Section 112 of the Act provides a very limited exception to the presumption of legitimacy. A valid
marriage may not be conclusive proof if it can be shown that the parties to the marriage had no access
to each other during time of conception. This has to be proved beyond reasonable doubt and not just
mere balance of probabilities[4].

As previously stated, the section is based on a presumption of moral behavior. However, one cannot
completely disregard the possibility of such behavior, in which case the party disputing the paternity
is being held unjustly accountable. The purpose of law is to provide justice in a fair and efficient
manner. When moral principles become the basis for a law, it defeats this basic purpose.

This can be illustrated with the help of an example. When two people are getting a divorce, one of the
parties may be unjustly compelled to pay child support even though there is no biological relation
between the party and the child. Thus, the scope of this exception is too restrictive and limited for the
proper implementation of law.

51 Discuss the circumstances where the secondary evidence is admissible.

Difference between primary and secondary evidence

Primary evidence Secondary evidence

It is defined under Section 62 of the Indian It is defined under Section 63 of the Indian
Evidence Act. Evidence Act.

It consists of documents other than the

It consists of the original document that is
original like the copy or others, as enlisted
presented in the court for inspection.
in Section 63.

It is considered the best form of evidence. It is not the best form of evidence and is
usually presented in exceptional
circumstances such as, the absence of
 primary evidence.

Presenting primary evidence is the general Presenting secondary evidence is the

rule to prove a particular fact. exception to the general rule.

No notice is required to be served before the A notice must be served before presenting
presentation of primary evidence. secondary evidence.

It is the main source of evidence. It is the alternate source of evidence.

Circumstances in which secondary evidence is admissible in place of primary evidence

Section 65 of the Indian Evidence Act enlists the circumstances under which secondary evidence is
admissible in place of primary evidence. They are as follows:

1. In the instance where the original document is shown or appears to be in the possession of
or power of-

1. The person against whom the document is sought to be proved; or

2. The person who is out of reach or not subject to the process of the court; and
3. The person who is legally bound to produce it but has not done so despite a notice being
served under Section 66.
B. In the case where the contents, existence, or contents of the original document have already been
proved to be admitted in writing by the person against whom it is proved or his representative interest.

For example, in the case of Sharda Talkies (Firm) and Anr. v. Smt. Madhulata Vyas and Ors.
(1995), it was held that in a case where the defendant himself had admitted to having made the
payment under the cheque, the absence of the cheque as primary evidence can be dispensed with and
this would not vitiate the suit.

C. In a situation, wherein the original has been lost or destroyed, or the party who is presenting the
evidence cannot present it in reasonable time due to any reason other than his default or neglect;

D. In case where the original document is not of such nature that it is not movable so as to be
presented before the court for inspection;

E. In an instance where the original document is a public document within the meaning of Section 74;

F. In a situation where the original is a certified copy that is permitted by this Act or any other law in
force in India to be given in evidence;

G. In the case where the original consists of numerous accounts or documents which cannot be
conveniently all examined by the court, or the fact which is to be proved is the general result of the
whole collection.
In cases ‘A’, ‘C’, and ‘D’, secondary evidence of the contents of the document is admissible. In the
case of ‘B’, only the written evidence is admissible. In the case of ‘E’ or ‘F’, only the certified copy of
the document shall be admissible as secondary evidence. Lastly, in the case of ‘G’, evidence to be
presented as the general result of the documents collectively must be given by a person who has
examined them and is skilled in the examination of such documents.

52 Discuss the concept related to doctrine of estoppel and its kinds.

Meaning of Estoppel

Section 115 of the Indian Evidence Act, 1872 incorporates the meaning of estoppel as when one
person either by his act or omission, or by declaration, has made another person believe something to
be true and persuaded that person to act upon it, then in no case can he or his representative deny the
truth of that thing later in the suit or in the proceedings. In simple words, estoppel means one cannot
contradict, deny or declare to be false the previous statement made by him in the Court.

Conditions for application of Doctrine of Estoppel

The following conditions are to be satisfied in order to apply the doctrine of estoppel:

 The representation must be made by one person to another person.

 The representation made must be as to facts and not as to the law.
 The representation must be made as to an existing fact.
 The representation must be made in a manner which makes the other person believe that it
is true.
 The person to whom the representation is being made must act upon that belief.
 The person to whom the representation would be made should suffer a loss by such
representation.

Types of Estoppel

Estoppel by a matter of Record or Quasi-record

Alike res judicata once a court has given the judgement, the parties, their representatives, their
executors, etc. all are bound by that decision. This doctrine stops the parties to a case, from raising
another suit in the same matter or to dispute the facts of the case after the decision has been made by
the court.

Situations where estoppel by record or quasi record arises are as follows:

 1. Where the dispute between the parties on the facts have been decided upon by the tribunal
which was entitled to take decision in the particular case, and when the same dispute
arises again in the matter subsequent to the first one, between the same parties;
2. Where the issue raised between the parties which has been resolved by the judiciary,
incidently comes again into question in the subsequent proceedings between the same
party.
3. Where an issue raised on the facts, affecting the status of the person or thing, has been
willing determined in a manner that in the final decision it be included as a substantive
part of the judgment in rem of the tribunal that has been setup to decide the particular
case. This should take place when the same issue comes directly in question in subsequent
civil proceedings between any party whatever.
For example, if Nano has been held guilty in a murder case, then neither he, nor his representative,
Mantro, nor his executor Berna, would be allowed to raise a suit again in the same matter. Parties are
stopped from doing so under this doctrine.

Estoppel by Deed

It is the concept where two parties enter into an agreement by way of a deed as to certain facts. This
implies that neither he nor his representatives or any person claiming under him can deny the facts
mentioned and agreed in the deed.

For example, Mickey Shroff decided to make his will in favor of his two sons, Lion Shroff and Wolf
Shroff, and his daughter’s son Deer Shroff. Lion Shroff induced some third person to buy Deer
Shroff’s share of the property. This deed was attested by Wolf Shroff who was not aware of the facts
mentioned in the deed. Deer Shroff died without giving birth to a male child. Lion Shroff filed a suit
to recover the property from the third party. Here Lion Shroff would be estopped but not Wolf Shroff
as Wolf was not aware of the facts of the deed.

Estoppel by Pais or Estoppel by Conduct

The elucidated meaning of ‘Estoppel by Pias’ is ‘Estoppel in the Country’ or ‘Estoppel before the
public’. It has been discussed in Ss. 115 to 117.

Estoppel by conduct means when a person through agreement, misrepresentation or negligence makes
the other person believe in certain things upon which the other person had taken some action causing
a change in their current situation, then the first person cannot deny the veracity of the statements
given by him in the latter stages.

Estoppel by election

Kantabai offers his maid Meena Malhotra her second-hand car. Meena out of generosity says that she
would not take it for free. Kantabai says to Meena that she has the freedom to take it as a gift or to
make a payment as per her willingness. Meena has the option to either take it as a gift or claim a right
over it by purchasing the car. Now, Meena makes the payment and takes the car in her possession.
After a year, Meena becomes bankrupt and asks Kantabai to return the money which she had given to
her as the payment for buying the car, as she now wants it as a gift.
According to the doctrine of estoppel by election the person receiving the gift or claiming the right
can enjoy one of them and not both of them. So Meena cannot now go back upon it and take the other
option

53 Discuss the case Khushal Rao v. State of Bombay.

Facts of the Case:
This appeal is being made in The Honourable Supreme Court Of India against the concurrent
judgement of the Nagpur High Court under Article 134(1)(c) of the Constitution. The courts below
have given an order to convict the appellant Khushal rao and sentencing him to death under Section
302 of The Indian Penal Code for murdering Baboolal.
This case is of the two rival factions in the mill area of Nagpur. The Highcourt acquitted the appealant
and Tukaram who were the leaders of one of the faction. And Ramgopal(PW4) and Tantu(PW5) were
said to be the leaders of the other faction. There had been a number of incidents between the two rival
factions before this occurrence. The prosecution alleged that Khushal was having bad terms with
Baboolal who was having friendly terms with the leaders of the opposite faction. Tukaram, Khushal,
Sampat and Mahadeo suddenly attacked Baboolal with Swords and Spears and inflicted injuries on
the various parts of his body by being enraged by the conduct of Baboolal in associating with the
party of the accused. This incident took place at about 9:00 p.m. Then at about 9:25 p.m. Baboolal
was taken to the Mayo Hospital by his father and other persons. On reaching the Hospital, Dr
Kanikdale(PW14) was the attending doctor, who questioned Baboolal about the happening of the
incident, on which he made a statement that he had been assaulted by Khushal and Tukaram with
swords and spears, which the doctor noted in the bed-head ticket. After it, the doctor informed the
Ganeshpeth Police Station by telephone where the information was noted at 9:45 p.m. Inspector
A.K.Khan registered and recorded an offence under Section 307 of The Indian Penal Code after
receiving this information he immediately went to the Mayo Hospital along with several constables
and a head constable. He was suspecting that Baboolal might not servive by seing his critical
condition and apprehending that he thought it might take time for the Magistrate to arrive on the spot,
to record the Dying Declaration, so he consulted Dr. Ingle about the fit condition of Baboolal so that
he can make a statement. Doctor advised him to have the dying declaration recorded by the Magistrate
but the Sub Inspector decided that the dying declaration should be recorded by him without any delay.
Hence he recorded the statement of Baboolal in answer to the questions put by him at 10:15 p.m.
Meanwhile, a Magistrate, First class was called in and he recorded the dying declaration between
11:15 and 11:35 p.m. in presence of Dr. Ingle who certified the mentally fit condition of Baboolal to
make his dying declaration. Baboolal has said to made oral declaration to a number of persons apart
from these three successive dying declarations made to responsible public servants. But these oral
dying declaration is set aside because High court has not acted upon such oral declarations. Baboolal
died in the next morning at about 10 a.m. in the hospital.
Issues of the Case:
1. Whether the accused could be convicted only on the basis of those Dying Declarations or the
declarations needed corroboration?
2. Whether it is settled law that a Dying Declaration by itself, can, in no circumstances, be the basis of
a conviction?
Contention of the Appellant:
The appellant contended that it is not safe to convict an accused person merely on the evidence,
furnished by a dying a declaration without any further corroboration because such a statement is not
on oath and is not subject to cross-examination. And also the person making such dying declaration
might be drawing upon his imagination at the time when he was making the declaration or he might
be mentally and physically in a state of confusion.
Contention of the Defendat:
The prosecution contended that the appellant was on bad terms with Baboolal and Baboolal was on
friendly terms with leaders of the opposite rival faction. Khushal, being enraged by this conduct of
Baboolal in connecting with the group of the enimies of the party of accussed Mahadeo, Sampat,
Tukaram and Khushal all of asudden attacked Baboolal with swords and spears and inflicted injuries
on different parts of his body, which resulted in the death of Baboolal. So the accussed should be
convicted on the basis of the Dying Declaration giving by Baboolal in the hospital to the doctor, Sub-
Inspector and Magistrate for the offence of murder.
Also the prosecution contended that these Tukaram and Khushal were absconding and keeping out of
the way of the police as they could not be found at their respective houses by the Police. Khushal was
arrested by the police after four days later of the incident in a bungalow, and Tukaram was arrested
much later.
Legal Provisions used:
Let us first have a look on section 32(1) of The Indian Evidence Act, 1872 which basically talks about
the dying declaration. The contents of the section is as follows:
“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is
relevant.- statements, written or verbal, of relevant facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances of the case, appears
to the court unreasonable, are themselves relevant facts in the following cases:-
1. When it relates to cause of Death.- When the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction which resulted into the his death, in cases in
which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.”
Basically dying declaration is based on the maxim- “Nemo mariturus presumunter mentri”
Meaning a man will not meet his maker(God) with a lie in his mouth. And also Leterem mortem
(i.e., words said before the death) will not be a lie by a person knowing that he will pass away soon.

This provision under section 32(1) has been made by the legislature as a matter of absolute necessity
by way of an exception to the general rule that hearsay is not the evidence and also the fact that an
evidence which has not been tested by the cross-examination is not admissible. The sole purpose of
the cross-examination is to check the truthfulness of the statements made by witnesses. But in the
view of the legislature, at the time when person making the statement is in danger of losing his life,
this test is supplied by the only occasion when it was made. At such serious and earnest moment,
when that person is not expected to tell lies, the test of cross-examination would not be available. And
the necessity of oath in such a case has also been dispensed with for the same reasons. Therefore, a
statement made by a dying person with respect to the cause of his death, has been granted by the
legislature, a special sanctity which should be respected, unless there are clear circumstances given
out in the evidence to show that the person was not in expectation of death who is giving the
statement, and not that the circumstances would affect the admissibility of the statement, but only its
weight.

In the opinion of the court, there is no rule of prudence and also there is no absolute rule of law, which
has developed into a rule of law, that an uncorroborated dying declaration by other independent
evidence, is not fit to be acted upon and made the basis of a conviction.
On the other hand various high courts have different conflicting decisions regarding the dying
declaration that such declaration cannot become a sole basis of conviction of a accussed. Like in the
case of Emperor v. Akbarali Karimbhai [ILR (1932) 58 Bom 31] , a division bench of Bombay
High Court held that a statement which is covered under section 32(1) of The Evidence Act is a
weaker type of evidence as such a statement is not made on oath and is not subject to cross-
examination. Therefore, it will not be safe to rely upon a part of dying declaration, if a part of such
declaration is deliberately false. But the bench also put the emphasis on the fact that it is not correct to
assume that because some part of the dying declaration is false, the whole declaration must
necessarily be disregarded. Therefore, the Bombay High Court did not agree with the observation of
the Calcutta High Court in Emperor v. Premananda Dutt [ILR (1925) 52 Cal 987] that it is not
acceptable that a dying declaration should be accepted in part and reject the other part.
Observations of The Supreme Court:
After reviewing of the relevant provisions of the Evidence Act and having a view on the decided
cases, the Court has given certain guidelines as to the validity or admissibility of dying declarations
(DD). These are:
1. It can not be said as an absolute rule of law or as a rule of prudence that a Dying Declaration can
not form the only basis of the conviction of the accussed unless such DD is corroborated.
2. In keeping in view the facts of the each case, it should be decided by examining the circumstances
in which the DD was made.
3. DD is a weaker kind of evidence – it cannot be laid down as a general principal.
4. A DD has to be judged in the context of surrounding circumstances and also with the reference to
the principles governing the of the weighing of evidence and also it rests on the same basis as any
other chunk of evidence.
5. Where a DD has been recorded in the proper manner that is in question and answers form and as far
as realistic in the own words of the maker of a declaration by a competent Magistrate, rests on a much
higher basis than that of a DD which depends upon oral statement which can also suffer from various
weaknesses of the human character and his memory.
6. The Court has to keep in view various circumstances in checking the reliability of a DD, like the
opportunity for the observation of the dying man. E.g.
a) That whether there was enough light for the deceased to see his assailants, if the crime was
committed at night.
b) That whether the ability of the man to remember the facts said, had not been harmed at the time
when he was making the statement, by state of affairs far away from his power.
c) That if he had separate opportunities to make a dying declaration, his statement has been consistent
throughout.
d) And that the statement was not the result of tutoring by interested parties and had been at the
earliest opportunity.
To pass the test of reliability, a DD has to be subjected to a very close scrutiny, keeping in view the
fact that the statement has been made in the absence of the accussed who had no opportunity of
testing the veracity of the statement by cross-examination. But once the court has come to the
conclusion that the DD was the truthful version as to the circumstances of the death and the assailants
of the victim, there is no question of further corroboration.
If, on the other hand,the court, after examining the DD in all its aspects and testing its veracity, has
come to the conclusion that it is not reliable by itself, and that it suffers from infirmity, then, without
corroboration, it cannot form the basis of a conviction. Thus, the necessity for corroboration, does not
arises from any inherent weakness of a DD as a piece of evidence, but from the fact that the court, in a
given case, has come to the conclusion that particular DD was not free from the infirmities referred to
above or from such other infirmities as may be disclosed in evidence in that case.
Judgement:
Having made the general observations Bearing on the question of legality of basing a conviction on a
DD alone, and keeping in view the tests set out above, the Court examined the DD in question before
them. The most remarkable fact which emerges from an examination of the three successive DDs
made in the Court in about two hours, by the deceased, is that he steadily was naming Tukaram and
Khushal that they have assaulted him with sword and spears. The injuries found on his person who
had assaulted him with sword and spear. The injuries found on his person, namely, the punctured
wounds and the incised wounds on different parts of his body, are entirely consistent with his
statements that he was being attacked by several persons with dangerous cutting and drilling weapons.
No part of his DD has been shown to be false.
The courts below also agreed in holding that Baboolal was in a condition to see his assailants and to
recognize them in the light of the electric lamp. Courts have also indicated that there was no
‘tutoring’. There is no doubt that the deceased had been consistent throughout in naming of the
appellant accused as one of his assailants and he named him within less than half an hour of the
occurrence and as soon as he reached the hospital. Thus, there was, no such opportunity or time to
tutor the dying man to tell a lie. At all important times, he was in a proper state of mind in spite of
multiple injuries on his person, to remember the names of the assailants. Hence, the Court had no
reasons to doubt the truth of DDs and their Reliability. The Court also had no doubt that from the
legal and from practical points of view, DD of Baboolal are sufficient to sustain the appellant’s
conviction for Murder. This appeal was, accordingly, Dismissed.

54 Discuss the law relating to communication during marriage is concerned.

Privileged communication is a kind of information which cannot be admitted in a court of law as
evidence due to the nature of the relationship the two persons involved in the communication share.
There are three types of privileged communications, namely, spousal privilege, attorney-client
privilege and state privilege. This paper will analyse spousal privilege which is protected under
section 122 of the Indian Evidence Act, 1872, and the position of the same in the USA.

Section 122 of the Indian Evidence Act reads as follows-

“Communications during marriage. — No person who is or has been married, shall be compelled
to disclose any communication made to him during marriage by any person to whom he is or has been
married; nor shall he be permitted to disclose any such communication, unless the person who made
it, or his representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other.”[1]

Section 122 of the Indian Evidence Act protects every communication between the spouses, during
the time of marriage, and prevents it from being brought to court as evidence. Although, section 122
of the Indian Evidence Act may seem to be very rigid at a first look, but it has some exceptions to it,
such as not protecting the spouse if the spouse is accused of an offence against the other spouse. The
Supreme Court has also held that section 122 will be applied to every communication made during the
life of marriage and the same privilege will continue even after separation or divorce or dissolution of
the marital relation, but only for the communication which was made during the existence of
marriage.[6] It also allows the conduct influenced by the communication, or the spouse witnessing
the other spouse doing a criminal act, to be admitted as evidence in the courts, i.e. an effect of the
communication can be brought to court but not the communication itself.[7] Therefore, the conclusion
that can be reached to, is that marital privilege exists because of the relationship of marriage being
considered the foundation of the society and it is vital to protect the intimate relationship of a husband
and wife.

Certain matters which a person cannot be compelled to disclose or even if the witness is willing to
disclose, he will not be permitted to do so as a matter of public policy or because interest of the state
is supreme and overrides that of an individual.

Section 122
Communication during marriage
Communications during marriage.:No person who is or has been married, shall be compelled to
disclose any communication made to him during marriage by any person to whom he is or has been
married; nor shall he be permitted to disclose any such communication, unless the person who made
it, or his representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other.

Exceptions:

 Acts apart from communication : Ram Bharose V State of UP 1954

 Waiver of privileges
 Suit Or criminal proceedings between the two spouses
 Communication made before marriage or after it's dissolution
 55 Evaluate the statement -All confessions are admissions but all admissions are not confessions.

The statement "All confessions are admissions, but all admissions are not confessions" reflects a
distinction often made in legal contexts, particularly in the field of evidence law. Let's break down the
statement to understand its meaning:

1. Confessions:
 A confession is a statement made by an individual admitting to the commission of a
crime. It is a formal acknowledgment of guilt or wrongdoing.
 In the legal context, a confession is typically a more explicit and incriminating
statement, often admitting to the essential elements of the alleged crime.
2. Admissions:
 Admissions are broader than confessions and encompass any statement or
acknowledgment that tends to establish the truth or validity of a fact.
 An admission may include statements that are not necessarily an acknowledgment of
guilt but still provide evidence against the person making the statement.

Now, let's evaluate the statement:

 "All confessions are admissions": This part of the statement suggests that a confession is a
type of admission. It emphasizes that when a person confesses to a crime, they are also
making an admission. This is generally true, as a confession is a specific subset of
admissions.
 "But all admissions are not confessions": This part highlights that while all confessions fall
under the category of admissions, not all admissions rise to the level of confessions. In other
words, there are statements that may be admissions of certain facts but do not necessarily
admit to the commission of a crime.

In a legal context, the distinction is important because confessions carry significant weight as
evidence, often being viewed as particularly probative of guilt. Admissions, on the other hand, may be
relevant in establishing various facts but might not have the same level of incriminating impact as a
confession.

56 Explain the evidentiary value of CCTV footage.

57 Describe the facts which need not to be proved before the court of law.
Facts admitted need not be proved
According to Section 58, no fact requires to be proved in any suit which the parties to the suit, or their
agents agree of admission at the hearing, or which they agree to admit in writing, prior to the hearing
or which they under any existing rule of pleading are deemed to have been admitted through their
pleadings.

However, the Court by exercising its discretionary potency may require the admission of such facts in
some other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the hearing.
2. Facts which the parties to the suit or their agents agree to admit, prior to the hearing, in
writing.
3. Facts deemed to be already admitted by the parties to the suit through pleadings.