EVIDENCE LAW

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law university 3 and 5 Years LLB.
ANIL KUMAR K T LLB COACH
Evidence Law
Most Expected questions
1. Define Evidence and Explain the different kinds of evidence?
2. Explain the doctrine of “Res gestae” with the decided cases.
3. What is dying declaration? What are the conditions for its admissibility
as evidence?
4. What is an expert? State the circumstances in which expert opinion
becomes relevant?
5. What are public documents? How they are proved?
6. Define estoppel? State the different kinds of estoppel?
7. Explain the protection given to the following circumstances under
Evidence act. A) Communication between husband-and-wife B)
Communication between client and his advocate.
8. Write a note on confession by co accused.
9. Write a note on Alibi.
10.Write a note on leading questions.
11.Define admissions? Distinguish it from confession?
12.Define secondary evidence? State the cases in which secondary evidence
relating to documents may be given.
13.What is burden proof? On whom it lies?
14.Explain the different kinds of privileged communication?
15.What is 1) Examination in chief 2) Cross examination 3) Re examination
of witness.
16.Explain the circumstances in which facts not otherwise relevant become
relevant?
17.Discuss the relevancy of character evidence.
18.Write a note on presumption as to legitimacy of child.
19.Define evidence? Distinguish between relevancy and admission of
evidence.
20.Explain the relevancy of introductory and explanatory facts.
21.Oral evidence in all cases whatever be direct explain the statement with
exceptions.
 22.Explain the presumptions in Rape and dowry death cases.
23.What are leading questions? When these can be asked?
24.Write a note on public document.
25.Write a note on hostile witness.
26.Discuss the relevant facts showing preparation, motive and conduct.
27.What is confession? Discuss the evidentiary value of confession of co
accused?
28.Explain the conditions of relevancy of dying declaration?
29.Explain the relevance of character evidence in civil and criminal cases.
30.Discuss the privileges available to communications between advocates
and clients?
31.Write a note on Identification parade.
32.Explain the circumstances in which secondary evidence relating to
documents may be given.
33.Define evidence? “ The rules of evidence are in general same in civil and
criminal cases” Explain?
34.Explain the relevancy of the facts forming the part same transaction with
illustrations?
35.Write a note on professional communications.
36.No confession made to a police officer shall be proved as against a
person accused of any offence. Comment? What are the exceptions
recognized under the Indian Evidence act?
37.Explain the scope and extent of privilege conferred on professional
communications as essential in the Indian evidence act.
38.Discuss the provisions relating to character evidence.
39.Explain “may presume” shall presume and conclusive proof?
40.Discuss the scope of cross examination and Explain the questions lawful
in cross examination.
41.Explain the circumstances in which judgement of the courts become
relevant.
42.Explain the scope of sections 113A and 114A under Indian Evidence Act.
43.Write a note on accomplice.

BY
ANIL KUMAR K T LLB COACH
1.Define Evidence and Explain the different kinds of evidence?
Introduction:
If one analyses the word ‘evidence’, it will simply mean the state of being
evident. But this meaning is applied to things that intend to provide evidence
or give proof about something.

Meaning of Evidence

Evidence comprises anything that may be used to determine the truth of the
assertion. The production and presentation of evidence depend on establishing
on whom the burden of proof lays. The judge or the jury decides if the burden
of proof has been fulfilled. After it has been established who shall carry the
burden of proof, the evidence is foremost gathered, collected and then
presented before the court to determine its admissibility.

Section 3 of the Indian Evidence Act defines evidence as:

• All the statements which the court permits or requires to be made

before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence.
• All the documents, including electronic records produced for the
inspection of the court; such documents are called documentary
evidence.

As per the above-mentioned definition of evidence under this act, the

evidence presented before the court is extracted out from two sources,
namely, a statement of witnesses and through documents and electronic
records.

The ten types of evidence under the Indian Evidence Act are:
 1. Oral Evidence
2. Documentary Evidence
3. Primary Evidence
4. Secondary Evidence
5. Real Evidence
6. Hearsay Evidence
7. Judicial Evidence
8. Non-Judicial Evidence
9. Direct Evidence
10.Circumstantial Evidence or Indirect Evidence

1. Oral Evidence

The provision of section 60 of the Indian Evidence Act, 1872 deals with the
recording of oral evidence.

All those acceptable statements which the court assumes from the witnesses
to help accomplish the direction of the truth of the facts laid before the court
are called Oral Evidence. Oral evidence is that evidence which the witness has
himself has seen or heard. It must always be direct. Evidence is direct when it
primarily establishes the main fact in an issue.

Example: A tells B that he will kill C. A’s statement is oral evidence.

2. Documentary Evidence

Section 3 of the Indian Evidence Act states that all documents presented
before the court for inspection are claimed to be documentary evidence.
Documentary evidence helps determine the attitude, intention, and
consciousness regarding the custom is viewed to be more important than oral
evidence.

Example: marriage certificate, medical records, birth certificate, written

contract, affidavits.

3. Primary Evidence

Section 62 of the Act reflects primary evidence as to the top-most class of

evidence. It is that proof which in any possible condition gives a vital hint and
appropriate direction for suitable action in a disputed fact and establishes for
inspection by the court through documentary evidence on the production of
an original document. It means that the document was itself available for the
inspection of the court.

Example: CCTV footage, audio recordings, video recordings, etc.

4. Secondary Evidence

Section 63 states it is evidence that occupies a secondary position, produced in

the absence of the primary evidence; therefore, it is known as secondary
evidence. If in place of primary evidence, secondary evidence is admitted
without any objection at the proper time, then the parties are precluded from
raising any question against the document not being proved by primary
evidence but by secondary evidence. However, where there is no secondary
evidence as contemplated by section 66 of the Evidence Act, the document
cannot be said to have been proved either by primary evidence or by
secondary evidence.
Example: Photocopy of a document.

5. Real Evidence

Any material evidence is real evidence. Real evidence of a fact is brought to the
knowledge of the court by inspection of a physical object and not just by
information derived from a witness or a document.

Example: contempt of court, the conduct of the witness, the parties’ behaviour
to a case, the local inspection by the court. It can also be called the most
satisfactory witness.

6. Hearsay Evidence

The acceptance and weightage of this evidence are very weak. It is only the
reported evidence of a witness which he has neither seen nor heard.
Sometimes it implies the witness overhearing a statement of some other
person.

Example: A is the eye witness to a murder case. He saw B killing C. However,

later during the proceedings, A develops a mental disorder. Due to mental
disability or insanity, the court will not be able to admit A’s testimony.
However, D overhears a conversation between E and F about B planning to kill
C. In such an exceptional case, the court may rather consider D’s statement as
hearsay evidence to structure its further proceedings.

7. Judicial Evidence

Evidence received by the court of Justice in proof or disproof of facts before

the court is called judicial evidence.
Example: The confession made by the accused in the court, statements of
witnesses, and documentary evidence and facts for the examination by the
court are judicial evidence.

8. Non-Judicial Evidence

Any confession made by the accused outside the court in the presence of any
person or the admission of a party is called non-judicial evidence.

9. Direct Evidence

Evidence is either direct or indirect. Direct evidence is evidence that is very

important for the decision of the matter and fact in the issue presented.

When the facts of the case are presented before the court by witnesses, it is
direct evidence.

The person who had actually seen the crime being committed can help
describe the offence, and through its statement, help serve as a direction for
the facts to be established in the case presented.

The evidence of the witness in court is direct evidence as opposed to a

testimony to a fact suggesting guilt. Moreover, in case a statement was given
before the police, it can be called circumstantial evidence of complicity and not
direct evidence in the strict sense, i.e., indirect evidence.

Example: the testimony of an eye witness.

10. Circumstantial Evidence or Indirect Evidence

There is no difference between circumstantial evidence and indirect evidence.
They are synonymous. Circumstantial evidence paves the way to prove the
facts in the issue by providing other facts and manages to pull out an instance
as to its existence. It connects to a series of other facts than the fact in the
issue. However, it is often associated with the fact in issue relative to the cause
and effect, leading to a satisfactory and meaningful conclusion.

2.Explain the doctrine of “Res gestae” with the decided cases.

Introduction:
Chapter II of the Indian Evidence Act, 1872 discusses provisions as to the
relevancy of facts from section 5 to section 55. Section 6 of the Indian Evidence
Act deals with the principle of res gestae. Res gestae is a Latin term which
means things done. Section 6 lays down that the facts that are so connected
with the facts in the issue that they form part of the same transaction are
relevant facts. For instance, a quarrel broke out between A and B in the
market. Whatever was said and done by A, B and the bystanders during,
before and after such quarrel will be res gestae.
Meaning of Res Gestae:
The term 'Res' is a Latin word which means "thing" and the expression "Res
Gestae" literally which means “the thing done, a subject matter, a transaction
or essential circumstances surrounding the subject". In the law of evidence, it
means things done including words spoken, forming part of the same
transaction. There is a fact story behind every case before the court of law. In
(fact story) contains certain acts, omissions or statements, which are not in
issue but are capable of throwing some light on the nature of the transaction
revealing its true quality and character. Such acts, omissions, or statements
from part of the same transaction in issue and are allowed to be proved.

Definition of Res Gestae:

Halsbury defines 'Res gaste' as "Facts which form part of the res gestae and
are consequently provable as facts relevant to the issue ; include acts ,
declarations and incidents which themselves constitute or accompany and
explain the facts or transaction in issue.

Res Gestae – Section 6 Evidence Act

Section 6 of the Indian Evidence Act discusses the relevancy of facts that form
part of the same transaction. Section 6 is based on the English principle res
gestae, which on translation means things said and done in the course of the
transaction. Hence res gestae includes act as well as a statement.

Section 6 of the Indian Evidence Act is as follows:

Transaction under Section 6 of the Evidence Act

The word transaction has not been defined under the Indian Evidence Act.

According to Sir James Stephen,

A transaction is a group of facts, connected together to be referred to by a single

legal name, a crime, contract, wrong or any other subject of enquiry which may
be in issue.

According to Phipson,

Transaction is the series of physical facts which also includes words spoken.

Facts forming part of the same transaction.

The transaction consists of physical acts as well as the words spoken during
such physical act, whether spoken by the person doing the physical act or any
other person.

Illustration: A is accused of murdering B by beating him. Whatever was said or

done by A or B or the bystanders at the time of the beating, or shortly before
or after it form part of the transaction, is a relevant fact.
When a transaction consists of several physical acts, to constitute the same
transaction, the acts should be so connected by the proximity of time, place,
continuity of action and community of purpose.

Illustration: A assaults B on the neck with a knife, which is seen by the

bystanders who exclaimed, “A is killing B“. The exclamation is part of the
transaction as he saw the blood gushing out.

Whose statement is relevant under res gestae?

Facts related to the

1. accused,
2. victim,
3. bystanders

are relevant only if they form part of the same transaction.

Illustration: A is accused of the murder of B by beating him. Whatever was said

or done by:

1. A (accused) or
2. B (victim) or
3. the bystanders (third party)

at the time of beating, or so shortly before or after it as to form part of the

transaction, is a relevant fact.

Do act or statement form part of the same transaction or not?

It is a very difficult task to determine whether a statement forms part of the
same transaction or not. In comparison, it is comparatively easy to determine
whether an act is part of the same transaction or not. The court must proceed
judiciously and cautiously to determine whether a statement is a part of the
same transaction or not.

In light of various judgements, it has been established that there must be

nexus (connection) between words spoken and the transaction in issue. The
statements should be spontaneous, and no opportunity for fabrication should
be available.

In Regina vs Bedingfield (1879), a woman with her throat cut came suddenly
out of a room and said to her aunt, “oh aunt see what Bedingfield has done to
me”. It was held that this statement was not admissible as she said this
statement after the act was over.

In Rattan vs the Queen (1971), it was held that there should be a close
association in place and time between the statement and act. If there is no
close association, then it cannot be part of the same transaction.

Res gestae is an exception of hearsay evidence.

The principle of res gestae is an exception to the rule that hearsay evidence is
no evidence. In R vs Foster, the witness did not see the accident but only the
speeding truck. The deceased stated to the witness what happened to him.
The statement of deceased given to the witness was admissible as evidence in
res gestae.
Conditions:
A Statement to be admissible under Section.6, the following conditions are to
be satisfied:

1) The statement must be a statement of fact and not opinion

2) The statement must have been made by a participant or witness of the

transaction.

3) The statement made by bystander is Admissible, if he was present at the

scene of the offense.

4) The statement must explain, elucidate or characterize the incident in the

same manner.

Relevant Case Law:

Supreme Court in Punjabrao v. D P Meshram, AIR 1965 SC 1179, held that the
Evidence of the conversion of a member of Scheduled Caste to Buddhism may
be Corroborated by the Evidence of his conduct subsequent to his conversion.
In Pershadi v. State , AIR 1957 SC 211, held that in a case of murder soon after
the murder the accused who had earlier held out of a threat to the victim told
the father of the victim that he had a hand in this appearance of the accused, is
Admissible u/s. 6 of the Indian Evidence Act.

Supreme Court in Chander Kala v. Ram Kishan, AIR SC 1268, held that when
the complainant narrated the incident to the relative of the deceased and he
deposed to that effect in Court, such Evidence is Admissible in Evidence.

In state of Andhra Pradesh v. Panna Satyanarayan, AIR 2000 SC 2138 , held

that when the accused murdered his wife and daughter, the statement by the
father of the deceased wife that father of the accused told him on telephone
that his son has killed the deceased. Absence of a finding as to whatever
information given by accused's father to the deceased's father that the
accused had killed the deceased was either of the time of commission of the
crime or immediately thereafter. So as to form the part of the same
transaction, the statement cannot be considered as relevant u/s. 6.
In Mahendra pal v. State, AIR 1955 All. 328, the place where a murder was
committed by number of persons apart from the deceased and witnesses.
Those came up immediately after and were informed by the eye witnesses as
to who the two culprits had been. The statements of those persons were held
to be Admissible u/s, 6.

3.What is dying declaration? What are the conditions for its admissibility as
evidence?

Section 32 of the Indian Evidence Act deals with statement of relevant fact,
which may be either in written form or said verbally by a person:

• who is dead.
• who cannot be found.
• who is incapable of giving evidence.
• whose attendance cannot be procured without an amount of delay or
expense which under the circumstance appears unreasonable to the
court.

Dying Declaration Meaning

Sub-section (1) of section 32 of the Evidence Act provides that when the
statement is made by a person as to the cause of his death or as to any
circumstances of the transaction which resulted in his death, being relevant
fact, is admissible in evidence. Such statements are commonly known as dying
declaration.

Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as

a statement written or verbal of relevant facts made by a person, who is
dead. It is the statement of a person who had died explaining the
circumstances of his death.

This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a

man will not meet his maker with a lie on his mouth.
The general rule under Section 60 of the Act is that all oral evidence must
be direct - he heard it, saw it or perceived it.
Rules for Admission of Dying Declaration:

The grounds of admission under a dying declaration have been based on

two broad rules:

The victim being generally the only principal eye-witness to the crime.
The sense of impending death, which creates a sanction equal to the
obligation of an oath in a court.
Recording Dying Declaration:
Anyone can record the dying declaration of the deceased as per law.
However, a dying declaration recorded by a Judicial or Executive
Magistrate will add an additional strength to the prosecution case.
A dying declaration may in several cases be the “primary piece of evidence
to prove the genesis of occurrence”.
The only requirement for such a declaration to be held perfectly
accountable in court is for the victim to volunteer the statement and be of
conscious mind.
The person who records the dying declaration must be satisfied that the
victim is in a fit state of mind.
Situations Where Court Does Not Accept it as a Evidence:
Though a dying declaration is entitled to great weight, the accused has no
power of cross-examination.
This is the reason the courts have always insisted that the dying
declaration be of such a nature as to inspire full confidence of the court
in its correctness.
The courts are on guard to check if the statement of the deceased was a
result of either tutoring, prompting or a product of imagination.

Elements of Dying Declaration

The elements of dying declaration are illustrated under section 32(1) of the
Indian Evidence Act. According to section 32(1) of the Indian Evidence Act,
dying declaration is a statement:

• Written or verbal,
• Of relevant facts,
• Made by a person who is dead.

Such statement is relevant when the statement is made by the person as to:

• The cause of his death.

• Any circumstance of the transaction that resulted in his death.

Such statements are relevant:

• Whether the person who made them was or was not at the time when
they were made under the expectation of death.
• Whatever may be the nature of the proceeding in which the cause of
death comes into question.

Admissibility of dying declaration in India

Section 32 of IEA states that statement made by a person relating

Section 32(1) in The Indian Evidence Act, 1872. 1 when it relates to the 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 in
his death, in cases in which the cause of that person’s death comes into
question.”

The present chapter will present an interpretation of Section 32(1) IEA by the
Indian Courts by understanding the different aspects and conditions of
precedents for analysing the admissibility of a dying declaration.
Statements, written or verbal, of relevant facts

The foremost component of Section 32(1) states that a dying declaration can
be recorded in writing as well as in oral form pertaining to the relevant facts.
“Verbal” refers to the words. However, it is not mandatory that such words
have to be spoken, signs and gestures of another individual like nodding or
shaking the head also account under this expression. In the case where the
deceased declarant was interrogated by several people shortly prior to her
death about the cause of her injuries inflicted on her. She didn’t have the
capability to speak but she made signs and gestures. Such evidence was held to
be admissible as the signs and gestures made by her accounted for the
answers to the questions of her own circumstances of death and came under
the expression of “verbal statements”.

Cause Of death

The phrase used under the aforementioned provision basically means that a
dying declaration will be admissible before the court only when the statements
recorded by the declarant are the cause or reasons for his own death. The
interpretation of “death” expands to both homicidal as well as suicidal death.
It is also important to note that relevancy shall also be regarded to statements
made by an individual pertaining to the reason of his/her when the reason for
death comes into question irrespective of whether that individual was not
under the expectation of death at the time of recording such statements. In
addition, general connotations of the fear or suspicion of the person or
otherwise which do not directly correlate with the cause of death are
inadmissible in the court of law. However, the kind of information given by the
deceased declarant pertaining to the circumstance of his death is admissible
under evidence law.

The statements pertaining to the cause of death are not restricted to the
mandate of a direct link between “circumstances” and death. In the case
where the deceased declarant stated prior to her death that the accused was
holding a gun who was standing in front of her and it was the reason for her
death and henceforth was admissible under Section 32(1) of IEA.

The dying declaration where an individual makes a complaint regarding his

apprehension of impending death by the person whose conduct is the root for
such apprehension and is accused with the death of the declarant, such
complaint shall be admissible in the court. In the case where the deceased wife
made a complaint to the Police against her husband that she apprehends her
own death by her husband, such statement was held to be admissible in court.

Circumstances of the transaction

The word “circumstances” has been given a restricted interpretation. It is more

limited than “circumstantial evidence” and res gestae. “Circumstances of the
transaction” under Section 32(1) means that circumstances should have some
proximity between the event of death and it must only include events that
resulted into the death of the declarant making such a statement. The
admissibility of a dying declaration is only possible if the reason or occasion of
the declarant’s death comes into question before the court. There is no
compulsion as to making the statement post the transaction or event has been
completed or the declarant making such statement shall be near death or
“circumstances” only include the acts or omissions only done at the location or
place where the death occurred.

The test of the reliability of dying declaration shall require the courts to keep
into consideration, the facts and circumstances he chance for the dying
declarant to observe such as at the time of the offence whether it was bright
or dark, whether the competency and capacity to record statement is
disturbed or not, whether there are any contradictions with respect to the
dying declarations made more than one time or not and whether there was a
motive of vengeance or tutoring from interested parties or not. In the
judgment of Munnu Raja v. State of MP the court stated that the law
pertaining to the admissibility of dying declaration should be applied and
understood with caution because the declarant making such a statement shall
not be cross-examined by the accused. In addition to this, the court also stated
the requirement of corroboration for admissibility of dying declaration is not a
rule of law but a rule of prudence.

“Proximity between the time of the statement and that of death”

The test of proximity was first questioned before the court in the case
of Sharad v. State of Maharashtra. The court held that the dying declaration
was admissible because the statements made by the declarant were not
remote in duration to lack their proximity with the circumstances of the death.
The court also went on to make several propositions: (I) A dying declaration
shall be valid when it is made by a person regarding the circumstances or
reason of his death, irrespective of whether such death is homicidal or suicidal
in nature. (II) The test of proximity cannot be moulded into a straight jacket
formula as it depends on the facts and circumstances of different cases. In the
matter, the Hon’ble Supreme Court stated, “The prosecution had not
examined the doctor who made the endorsement on the dying declaration
that “the patient was in a fit state of mind to depose”. For example, when the
death of the declarant is the result of a prolonged event, then a statement
made on the occasion of the death or while recording such declaration must be
understood and interpreted in its full context with the past events.

4.What is an expert? State the circumstances in which expert opinion

becomes relevant?
Introduction:
Commonly, the term “Expert opinion” refers to a belief or judgment about
something given by an expert on the subject. The opinion of a skilled and
experienced person may be taken when the issue is related to some
technicalities. Generally, the expert does not witness to the fact, despite that,
the opinion of an expert becomes relevant due to the circumstances. The law
relating to Expert opinion has enumerated from the Indian Evidence Act and
these provisions are covered under Section 45 to 51 in chapter II of the act.
Further, there is a general rule that evidence is to be given of the facts only which
are within the knowledge of the witness. However, the provisions stated in
Section 45 to 51 are the exception to the above-stated rule. Now the question
may arise who is to be considered as an expert and how the expert opinion is
relevant and admissible as evidence in any case in the court of law?

WHO IS EXPERT?
Lawson defines an expert as a person who has special knowledge and skill in the
particular calling to which inquiry relates[1]. Further, Expert is also defined
under Section 45 of Indian evidence act as the person who is skilled and has
special knowledge and experience in the following field:
▪ Foreign law

▪ Science & Art

▪ Identity of Handwriting

▪ Identity of finger impression

▪ Electronic evidence

Such special knowledge must be acquired by practice and observation. In the

case titled as Ramesh Chandra Agarwal v/s Regency Hospital Ltd[2]. Court has
broadly dealt and interpreted the scenario and held that an expert is a person
who devotes his time and study to a special branch of learning. However, he
might have acquired such knowledge by practice, observation, or careful study.
An expert is one who is skilled in any particular art, trade or profession being
possessed of peculiar knowledge concerning the same[3]
The expert has the duty to give an opinion on the issue and also communicate
the same with the Judge so the Judge may form his judgment in the subject
matter. In Sri Sundari v. Ganghram[4] It was held that it is the duty of an expert
to furnish the judges with the necessary criteria for testing the accuracy of his
conclusions, so as to enable the judge to form his own independent judgment
by application of the criteria to the facts provided in evidence.

QUALIFICATION OF AN EXPERT

The law requires that there should at least be a profession of special

qualification that the part of a person who comes forward to dispose to matters
lying beyond common knowledge[5].
▪ An ‘Expert’ witness is one who has devoted time and study to a
special branch of learning
▪ He must have special skill and qualifications required for his
profession
▪ The person who has made the subject upon which he speaks a
matter of particular study, practice, or observation will be
considered as an expert witness
▪ He must have experienced in the related field.

Relevancy of Opinion :

i) Opinion of examiner of Electronic Evidence (Section 45A)

When in a proceeding, the court has to form an opinion on any matter

relating to any information transmitted or stored in any computer resource or
any other electronic or digital form, the opinion of the Examiner of Electronic
Evidence referred to in section 79A of the Information Technology Act, 2000
(21 of 2000), is a relevant fact.

Explanation - For the purposes of this section, an Examiner of Electronic

Evidence shall be an expert.
ii) Facts bearing upon opinions of experts (Section 46) :
Facts, not otherwise relevant, are relevant if they support or are inconsistent
with the opinion of experts when such opinions are relevant.

Illustrations :
(a) The question is, whether A was poisoned by a certain poison. The fact that
other persons who were poisoned by that poison, exhibited certain symptoms
which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain

seawall. The fact that other harbours similarly situated in other respects, but
where there were no such sea-walls, began to be obstructed at about the same
time is relevant.
iii) Opinions as to handwriting, when relevant (Section 47)
When the Court has to form an opinion as to the person by whom document
was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that
it was or was not written or signed by that person, is a relevant fact.

Explanation –

A person is said to be acquainted with the handwriting of another person

when he has seen that person write, or when he has received document
purporting to be written by that person in answer to documents written by
himself to under his authority and addressed to that person, or when in the
ordinary course of business document purporting to be written by that person
have been habitually submitted to him.

Illustrations :

The question is whether a given letter is in the handwriting of A, a merchant in

London. B is a merchant in Calcutta, who has written letters addressed to A
and received letters purporting to be written by him. G is B’s clerk, whose duty
it was to examine and file B’s correspondence. D is B’s broker, to whom B
habitually submitted thee letters purporting to be written by A for the purpose
advising with him thereon.
The opinions of B,C and D on the question, whether the letter is in the
handwriting of A, are relevant though neither B, C or D ever saw A, write.

iv) Opinion as to digital signature when relevant (Section 47A)

When the Court has to form an opinion as to the "digital signature" of any
person, the opinion of the Certifying Authority which has issued the Digital
Signature Certificate is a relevant fact.

v) Opinion as to existence of right or custom when relevant (Section 48)

When the Court has to form an opinion as to existence of any general custom
or right, the opinions as to the existence of such custom or rights, of persons
who would be likely to know of its existence if it existed, are relevant.

Explanation –
The expression “general custom or right” includes customs or right common
The Orient Tavern any considerable class of persons.

Illustration

The right of the villagers of a particular village to use the water of a particular
well is a general right within the meaning of this section.

vi) Opinion as to usage’s, tenants, etc., when relevant (Section 49)

When the Court has to form an opinion as to - the usage’s and tenants of any
body of men or family, the constitution and government of any religious or
charitable foundation, or the meaning of words or terms used in particular
districts or by particular classes of people, the opinions of persons having
special means of knowledge thereon, are relevant facts.

vii) Opinion on relationship, when relevant (Section 50)

When the Court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of such
relationship, or any person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in
proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions
under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B were married. The fact that they were
usually received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was
always treated as such by members of the family, is relevant.

viii) Grounds of opinion when relevant (Section 51) :

Whenever the opinion of any living person is relevant, the grounds on which
such opinion is based are also relevant. Illustration An expert may give an
account of experiments performed by him for the purpose of forming his
opinion.

Case Law :

a) In S. Gopala Reddy v. State of A.P , it was held that the evidence of an

Expert is a weak type of evidence and court consider it is unsafe to relay on it
without independent and reliable corroboration.

b) In Anwar Vs.State of Haryana, 1997) SCC 766, it was held by the Court If the
medical evidences is totally inconsistent with the ocular evidence it would be
permissible for the court to reject the oral evidence though medical evidence is
opinion evidence.
5.What are public documents? How they are proved?
Section:74.
Public Documents: Public Documents are those documents which are
authenticated by a public officer and subsequently which is made available to
the public at large for reference and use. Public documents also contain
statements made by the public officer in their official capacity, which acts as
admissible evidence of the fact in civil matters. These documents are also
known as public records as these are issued or published for public knowledge.
Section 74 of the Indian Evidence Act, 1872 states that the following
documents are considered public documents:
Documents forming the acts or records of the acts:

1. Of sovereign authority
2. Of official bodies and tribunals
3. Of public officers, legislative, judiciary and executive of any part of
India or of the commonwealth, or of a foreign country.
4. The public record kept in any State of Private document

Documents forming the acts or records of acts

1. Statements which are recorded by police officers under section 161 of

Cr.P.C.
2. Records that are maintained by the revenue officers relating to land
revenue, survey and settlement of land disputes, etc are public
documents. ‘Pahanies’ and ‘faisal patties’ are public documents as
stated by the High Court of Andhra Pradesh in the case of K. Pedda
Jangaiah v. Mandal Revenue officer, Moinabad.
3. Records of the developmental authorities of the regions are public
documents as stated in the case of S L Sharma vs Delhi Development
Authority.

Published Under the Statute

Schemes which are published in the Official Gazette. Example scheme published
under the Electricity Supply Act, 1948. The scheme so published talked about
the installation of overhead transmission lines, thereby, making it a public
document.

Orders of a civil court, FIR, Charge-sheet

1. The certified copies of the orders of the civil court and FIR are Public
Documents as stated in the case of The Royal Sundaram Alliance
vs D.Gunasekaran.
2. A charge-sheet filed under Section 120-B of Indian Penal Code, 1860
against any individual is held to be a public document as stated in the
 case of The Royal Sundaram Alliance vs D.Gunasekaran and is
admissible as evidence without any proof.

Marriage register

Hindu Marriage Register is considered to be a Public Document as considered

by the judges of the Supreme Court in the case of Smt. Seema v. Ashwani Kumar
[2006 2 SCC 578]

Further, Section 78 of the Act enlists the nature in which various public
documents can be proved. They are –

Public Document Procedure followed to prove in court-

Act/
Order/Notification of Certified records by the Head of the Department/ Ministry
central/ state govt.

Proceedings of
By producing documents published by the government
legislature

Proclamation by
By copies or extracts of London Gazette
Queen/ Privy Council

Municipal Body
Original/ published in book of authority/ certified copy by authorized office
Proceedings

Documents of A certified copy by the notary or Indian diplomat certifying that the copy d
foreign countries certified as per the rules of the specific country.

6.Define estoppel? State the different kinds of estoppel?

Introduction:
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.
Estoppel is a legal bar that disallows a party to say that a certain statement of
fact is untrue, whether in reality it is true or not.
Estoppels are of seven kinds: 1. Estoppel by record; 2. Estoppel by deed; 3.
Estoppel by conduct; 4. Equitable estoppel; 5. Estoppel by negligence; 6.
Estoppel on benami transactions; and 7. Estoppel on a point of law.

1. Estoppel by record:
Under this kind of estoppel, a person is not permitted to dispute the facts upon
which a judgment against him is based. It is dealt with by (i) Ss. 11 to 14 of the
Code of Civil Procedure, and (ii) Ss. 40 to 44 of the Indian Evidence Act.

2. Estoppel by deed:
Under this kind of estoppel, where a party has entered into a solemn
engagement by deed as to certain facts, neither he, nor any one claiming
through or under him, is permitted to deny such facts.

A deed of gift by D in favour of his daughter M for life provided that the
property should go to her male issue, and in default, to D’s sons. One of D’s
two sons induced a purchaser to buy his sister’s property, and the sale deed
was attested by the other son. M died without leaving any male issue, and D’s
son filed a suit to recover the property from the purchaser. State, giving
reasons, whether the plea of estoppel would be available to the defendant
against the plaintiff.

3. Estoppel by conduct:
Sometimes called estoppel in pais, may arise from agreement,
misrepresentation, or negligence. Estoppel in pais is dealt with in Ss. 115 to
117. (Estoppel in pais means “estoppel in the country” or “estoppel before the
public.”)
If a man, either by words or by conduct, has intimated that he consents to an
act which has been done, and that he will not offer any opposition to it,
although it could not have been lawfully done without his consent, and he
thereby induces others to do that from which they otherwise might have
abstained from doing, he cannot question the legality of the act to the
prejudice of those who have so given faith to his words, or to the fair inference
to be drawn from his conduct.

4. Equitable Estoppel:
The Evidence Act is not exhaustive of the rules of estoppel. Thus, although S.
116 only deals with the estoppel that arises against a tenant or licensee, a
similar estoppel has been held to arise against a mortgagee, an executor, a
legatee, a trustee, or an assignee of property, precluding him from denying the
title of the mortgagor, the testator, the author of the trust, or the assignor, as
the case may be.

Further, S. 116 is not exhaustive of all instances of estoppel as between

landlord and tenant. Thus, there are cases of estoppel which, though not
within the terms of Ss. 115 to 117 of the Evidence Act, are recognised
instances of estoppel. Estoppels which are not covered by the Evidence Act
may be termed equitable estoppels.

5. Estoppel by Negligence:
This type of estoppel enables a party, as against some other party, to claim a
right of property which in fact he does not possess. Such estoppel is described
as estoppel by negligence or by conduct or representation or by a holding out
of ostensible authority. Such estoppel is based on the existence of a duty
which the person estopped is owing to the person led into the wrong belief or
to the general public of whom the person is one. (Mercantile Ваnk. Central
Bank, (A.I.R, 1938 Privy Council, 52)

6. Estoppel on benami transactions:

If the owner of property clothes a third person with the apparent ownership
and a right of disposition thereof, not merely by transferring it to him, but also
by acknowledging that the transferee has paid him the consideration for it, he
is estopped from asserting his title as against a person to whom such third
party has disposed of the property and who has taken it in good faith and for
value. (Li Tse Shi v Pong Tse Ching, (A.I.R. 1935 P.C. 208)
7. Estoppel on a point of law:
Estoppel refers to a belief in a fact, and not in a proposition of law. A person
cannot be estopped for a misrepresentation on a point of law. An admission on
a point of law is not an admission of a “thing” so as to make the admission
matter of estoppel. Where persons merely represent their conclusions of law
as to the validity of an assumed or admitted adoption, there is no
representation of a fact to constitute an estoppel.

The principle of estoppel cannot be invoked to defeat the plain provisions or a

statute. There is no estoppel against an Act of Legislature. Thus, if a minor
represents himself to be of the age of majority, and thereafter enters into an
agreement, the agreement is void, and the minor is not estopped from
pleading that the agreement is void ab initio, as he was, in truth, a minor at the
date of making the contract.

Estoppel only applies to a contract inter parties, and it is not open to parties to
a contract to estop themselves or anybody else in the face of an Act. The rule
of estoppel is one of evidence. It cannot prevail against a plain and mandatory
provision of law.

7.Explain the protection given to the following circumstances under Evidence

act. A) Communication between husband-and-wife B) Communication
between client and his advocate.

Communication between a Husband and Wife

Under Section 122 of the Indian Evidence Act, 1872, communications between
a husband and a wife are considered privileged communication. It is to be
noted that this section applies only to the communications made while the
marriage is subsisting and not before or after marriage.

To preserve the secrecy between the spouses and any further damage to the
familial structure, the spouses are not allowed to disclose any such information
to the third party. Moreover, the Court cannot compel either the husband or
wife to testify against each other. Under this section, any conversation
between a husband and wife is privileged whether such communication was
sensitive or confidential or not. The Court further held that such
communication would refer only to verbal or written words said by the spouse
and not their actions.
In Bhalchandra Namdeo Shinde v. The State of Maharashtra, the wife was
called in to give testimony against her husband who was being tried for
allegedly committing a murder. She was allowed to testify regarding his
conduct and actions but not the communications between them.

However, this privilege is not available when there is a dispute between the
married couples or when either of them is being prosecuted for a crime
committed against the other. If the party who made the communication gives
consent to its disclosure by waiving this privilege, then such evidence can be
testified in a court of law.

In the case of Nawab Howladar v. Emperor, a widow wanted to act as a

witness and disclose communications made by her deceased husband. The
Court held that such communication is entirely inadmissible because it’s
impossible to obtain express consent from a deceased person. The Court
further clarified that a widow cannot give her consent as a representative in
the best interest of her deceased husband.

In the case of Vishal Kaushik v. Family Court & Another, the Court held that if
the conversation between two spouses is recorded by one of the spouses
without the other spouse’s knowledge, that evidence will not be admissible in
the Court. In fact, this act will amount to a breach of privacy under Article 21 of
the Indian Constitution and the spouse who has recorded will be held liable.

Communication between a Lawyer and a Client

Any communication between an attorney and his client is protected and

remains confidential. This is commonly called professional communication.
Sections 126-129 of the Indian Evidence Act, 1872 deal with privileged
communication in a professional relationship. A registered legal practitioner in
India is not allowed to reveal such classified information that the client had
disclosed to him or any advice that the lawyer had given to his client.

This principle facilitates advocates to provide the best legal advice possible.
The Court has observed that everyone has the right to a fair trial and for
obtaining such right one can seek the help of an advocate.
In the case of P R Ramakrishnan v. Subbaramma Sastrigal, Court held that as
per Section129 of the Evidence Act both the client as well as the attorney isn’t
under any obligation to convey the privileged communication to any third
person. Only such communication can be considered privileged if the
communication happened during the existence of the legal advisor-advisee
relationship.

This also means that no privilege is attached to communication to an attorney

consulted as a friend. This obligation continues even after employment has
ceased. This section also states that the lawyer cannot disclose any contents of
the document that he became familiar with during his employment. Even after
the termination of employment, he is not expected to disclose such
information to ensure no harm to his clients.

The privilege under Section 126 is subject to certain exceptions i.e. under the
following conditions communication can be disclosed:

1. When the communication was made in furtherance of an illegal purpose;

2. When the attorney gets to know that a crime or fraud has been committed
since employment began;

3. When the client gives consent;

4. When the information falls into the hands of a third party;

5. When a lawyer sues the client for professional purposes.

In the case of Karamjit Singh v. State, the Court held that one cannot ask for
disclosure of any professional communication and documents of attorney and
client under the Right to Information.

In Municipal Corporation of Greater Bombay v. Vijay Metal Works[8], Court

held that a salaried employee who advises his employer on all legal matters
would get the same protection as others, viz., Barrister, Attorney, Pleader or
Vakil, under Section 126 and 129 of Indian Evidence Act 1872.
In India, the Attorney-Client privilege is governed by legal provisions under The
Indian Evidence Act, 1872, Bar Council of India Rules and Advocates Act,
1961. Bar Council of India (BCI) has some rules on professional standards which
every advocate has to abide by. It is believed that an advocate owes a duty
towards the Court, client, their opponent, and other advocates. Attorney-client
privilege is further strengthened by these rules.
8.Write a note on confession by co accused.
Introduction:
Section 24 to 30 of Indian Evidence Act deals with confessions. Confessions
should be voluntary. There are four kinds of Confession a) judicial confession,
b) Extra-Judicial Confession, c) Retracted Confession, d) Confession by co-
accused.

The meaning of Confession:

The expression confession means a statement made by an accused admitting
his guilt. It is an admission as to the commission of an offence. If a person
accused of an offence makes a statement against himself, it is called
confession or confessional statement. Confessions are the special form of
admissions. Thus it is popularly said that "All Confessions are admissions, but
all Admissions are not confessions."

Definition of Confession:

According to Sir James Stephen "An admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed a
crime".
The term confession no where defined in the Indian Evidence Act 1872, But the
definition of admission under section 17 of Indian evidence Act becomes
applicable to confession also. Section 17 provides " A statement, oral or
documentary which suggests any inference as to any fact in issue or relevant
fact."
If a statement made by a party in the civil proceeding, it is called as admission
while if it is made by the party charged with the crime, in a criminal
proceeding, it is called as a confession. Thus, the confession is a statement
made by the person charged with a crime suggesting an inference as to any
fact in issue or as to relevant fact. The inference that the statement should
suggest that he is guilty of a crime.
Confession, in short, is an admission by the accused charged with an offence in
the criminal proceeding.
Example :
If X is charged with the murder of Y, If X said that he has killed B, it is a
confession.
Kinds of Confession:

There are four kinds of Confession, are as follows:

1) Judicial confession

2) Extra-Judicial Confession

3) Retracted Confession

4) Confession by co-accused

1) Judicial confession:
A Judicial Confession is that which is made before Magistrate or in a court due
course of judicial proceeding. Judicial Confession is relevant and is used as an
evidence against the maker provided it is recorded in accordance with
provisions of Section 164 of Cr.P.C.The magistrate who records a confession
under Section 164, Criminal Procedure Code, must, therefore, warn the
accused who is about to confess that he may or may not be taken as an
approval. After warning the accused he must give time to think over the matter
and then only record the confession. Such a confession is called judicial
confession.

2) Extra-Judicial Confession
Extra-Judicial Confession is made not before a Magistrate or any Court in due
course of judicial proceeding but is made either to police during the
investigation or into police custody or made otherwise than to the police.
Extra-Judicial confession is not relevant. (See Detail Note on Extra-Judicial
Confession)

3) Retracted Confession
The Accused person who confessed earlier and later denied such confession
does not destroy the evidentiary value of the confession as originally recorded.
The Supreme Court has stated that a Retracted confession may form the basis
of a conviction if it receives some general corroboration from other
independent evidence. But if the court finds that the confession originally
recorded was voluntary, it should be acted upon.

4) Confession by co-accused
Section 30.Consideration of proved confession affecting person making it and
others jointly under trial for the same offense
When more persons than one are being tried jointly for the same offense, and
a confession made by one of such persons affecting himself and some other of
such persons is proved, the Court may take into consideration such confession
as against such other person as well as against the person who makes such
confession.
Explanation: “Offence” as used in this Section, includes the abetment of, or
attempt to commit, the offense.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and
I murdered C”. the court may consider the effect of this confession as against
B.

(b) A is on his trial for the murder of C. There is evidence to show that C was
murdered by A and B and that B said, “A and I murdered C”. The statement
may not be taken into consideration by the Court against A and B is not being
jointly tried.
9.Write a note on Alibi.
Introduction:
Plea of alibi means that the absence of the time when the commission of the
crime committed by the accused and the accused is convicted of the offence at
the place where the incident has happened.
The term “Alibi” is a Latin word which means – elsewhere or somewhere else.
The plea of alibi is generally used in criminal law or criminal offence by the
complainant against the commission of an alleged crime done by the accused.
When the defendant pleads in the front of the court with the plea of alibi and
the accused try to prove itself that when the crime has committed at that time
the accused is somewhere else, he has presented another place during the
offence had been done. In the simple word, we can say that the accused was
not physically present at the scene of the crime.
The fundamental rule says that the burden of proof in the criminal cases
always lies on the accused to show or prove itself that accused was not present
at the time of offence and did not involve in Section 103 of the Indian Evidence
Act, 1872.
The Plea of Alibi deals with Section 11 of the Indian Evidence Act, 1872. It talks
about that the accused will have to provide the relative evidence to prove that
accused was so for the scene of the crime any the time of the incident
happened. The accused was not committing any crime, and he is not liable for
any offences.

Essentially of the alibi-

Some of the ones to be followed, in general, are:

1. It needs to be a felony punishable by statute.
2. The one who argues the alibi must be convicted of the crime.
3. This is a defensive plea in which the defendant claims that the crime was
committed elsewhere.
4. This claim must be proven beyond reasonable doubt that at the time of the
act of the crime, and accused must to be physically present at the place of
offence/crime.
5. The petition must file by the offender and proof that supports on the behalf
of the defendant's argument.

LANDMARK JUDGEMENT

This was more elaborately explained in Binay Kumar Singh v. State of Bihar in
the following words:
"We must bear in mind that an alibi is not an exception (special or general)
envisaged in the Indian Penal Code or any other law. It is only a rule of
evidence recognised in Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant."
“Alibi” is the Latin word, which means that “elsewhere” and it is used to
convey to the court that when an accused takes the option to a defence that
he was so far away from the place of offence and it is clearly stated that its
uncertain that accused have involved in the crime”.

Mostly in criminal cases, we found that that accused caused physical injury to
another person. The burden of prove always relies on the prosecution’s side
that the accused was available at the place and he fully involve in the offence.
In the case of the burden of proof, it could not be taken into consideration on
the behalf of the mere fact that the accused has taken defence of alibi. In such
circumstances accused need to be taken consider only when the burden of
proof is completely removed by the prosecution satisfactorily.
10.Write a note on leading questions.
Introduction:
Section 141 to Section 143 of Chapter -X, Part III of the Indian Evidence Act
1872 deals with leading questions. Section 142 and Section 143 provides
circumstances under which the leading Questions may be asked or may not be
asked. Leading Questions have been defined under section 141 of the Indian
Evidence Act 1872.

Meaning:
The expression "Leading Questions" literally means a question which itself
suggest answer. As expected by the person asked the same, any questions
which leads to answer, or a question which is pregnant with the answer.
Definition:
Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as,
“Any questions suggesting the answer which the person putting it wishes or
expects to receive is called a leading question."

Bentham:
Bentham defines leading questions as," A question is a leading one, when it
indicates to the witness the real or supposed fact which the examiner expects
and desires to have confirmed by the answer.

Examples
a) Is your name so and so?
 b) Do you reside in such and such a place?

c) Are you not in service of such and such person?

d) Have you not lived with him for so many years?

e) Did you see him enter X's office and take a file?

It is clear that under this form every sort of information may be conveyed to
the witness in disguise. It may be used to prepare him to give the desired
answers to the questions about to be put to him; the examiner, while he
pretends ignorance and is asking for information is, in reality, giving instead of
receiving it.
Section 142 run as follows:
Leading questions must not, if objected to by the adverse party, be asked in
an examination-in-chief, or in re-examination, except with the permission of
the Court.
The court shall permit questions as to matters which are introductory or
undisputed or which have, in its opinion been already sufficiently proved.

When Leading Questions may be asked?

Leading questions may be asked in the following cases.

1) According to Section 143 of the Indian Act, Leading Questions may be asked
in cross-examination.
2) Under Section 142- In Examination-in-chief, Leading questions can only be
asked with the permission of Court in certain matters.
3) When the witness has defective memory, it may be agitated by a few
leading questions.
4) When the object of the leading question is to contradict another witness as
to the expressions used by him but at which denies having asked, the witness
may be asked leading questions.

Objection to Leading Questions:

Objection to leading question is not that they are illegal but only that they are
unfair. The rule excluding leading questions is intended to prevent unfairness
in the conduct of the inquiry. The Act gives absolute discretion to the court to
allow or disallow leading questions.
11.Define admissions? Distinguish it from confession?

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

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

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

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

In, Nagindas Ramdas v Dalpatram Ichharam the Supreme Court of India

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

Under the English law, the term ‘admission’ is specifically utilised in civil
proceedings, and on the other hand, the term ‘confession’ is used in criminal
proceedings.
No.
Admission
1) If a statement is made by a
party in civil proceeding it will
be called as admission
2) The expression ‘Admission’
means
“ voluntary acknowledgement
of the existence or truth of a
particular fact”
3) An admission is genius
4) The Term Admission is
applicable to a statement, oral
or in writing made by a party
on civil side.
5) An admission is not conclusive
proof of the matters admitted
and is always rebuttable.
6) An admission may be proved
by or behalf of the person
making it.
7) An admission may be made by
an agent in course of business.
8) Admission by one of the
Confession
If a statement made by a party
charged with crime, in criminal
proceeding, it is called as a
confession
The expression ‘Confession’ means “a
statement made by an accused
admitting his guilt. If a person
accused of an offense (accused)
makes a statement against himself, it
is called confession.
Confession is specie hence all
confessions are admissions but all
admissions are not confessions.
Confession is the term for admission
of guilt
made in the criminal side.
A confession, if voluntarily and free,
may in the discretion of the judge or
magistrate, by itself be accepted as
conclusive proof of matters
confessed and is alone sufficient to
warrant a conviction.
But confession always goes against
the person making it.
While an agent can never make the
confession of an offense against a co-
defendant.
Confession made by one or two or
 several defendants in suit is not more accused jointly tried for the
evidence against other same offense can be taken into
defendants. consideration against the co-accused.

12.Define secondary evidence? State the cases in which secondary evidence

relating to documents may be given.
Introduction:
Section 61 of the Indian Evidence Act, 1872 deals with proof of contents
of documents. It provides that the contents of documents may be proved
either by primary evidence or secondary evidence. Secondary evidence also
known as "inferior of substituted evidence". Section 63 of Indian Evidence Act
defines Secondary Evidence.

Secondary Evidence

According to Section 63 of Indian Evidence Act, Secondary evidence means

and includes :

1. Certified copies given under the provisions hereinafter contained;

2. Copies made from the original by mechanical processes which in

themselves insure the accuracy of the copy and copies compared with such
copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute

them;

5. Oral accounts of the contents of a document given by some person

who has himself seen it.
Examples
(a) A photograph of an original is secondary evidence of its contents, though
the two have not been compared, if it is proved that the thing photographed
was the original.
(b) A copy compared with a copy of a letter made by copying machine
is secondary evidence of the contents of the letter, if it is shown that the copy
made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original,
is secondary evidence, but the copy not so compared is not secondary
evidence of the original, although the copy from which it was transcribed was
compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral
account of a photo graph or machine copy of the original, is secondary
evidence of the original.

According to Section 65.of the Indian Evidence Act, 1872 Secondary

evidence may be given of the existence, condition or contents of a document
in the following cases:

a) When the original is shown or appears to be in the possession or power of

the person against whom the document is sought to be proved, or of any
person out of reach of, or not subject to, the process of the Court, or of any
person legally bound to produce it, and when, after the notice mentioned in
Section 66, such person does not produce it;

b) When the existence, condition or contents of the original have been proved
to be admitted in writing by the person against whom it is proved or by his
representative in interest;

c) When the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;

d) When the original is of such a nature as not to be easily movable;

e) When the original is a public document within the meaning of Section 74;

f) When the original is a document of which a certified copy is permitted by

Evidence Act, or by any other law in force in India to be given in evidence;

g) When the originals consist of numerous accounts or other documents which

cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collections. In cases (a), (c) and (d), any secondary
evidence of the contents of the documents is admissible. In case (b), the
written admission is admissible. In case (e) or (f), a certified copy of the
document, but no other kind of secondary evidence, is admissible. In case (g),
evidence may be given as to the general result of the documents by any person
who has examined them, and who is skilled in the examination of such
documents.
13.What is burden proof? On whom it lies?
Introduction:
Generally, burden of proof means- the burden on any party to prove any
particular fact.
The principle of Burden of proof is based on the concept of onus probandi
(burden of proof) and factum probans (proving a fact). While the burden of
proof remains constant, the onus for the same shifts from one party to
another.
The term ‘Burden of Proof’ means when a person states something and
considers it to be fact he or she needs to prove the statement made by him.
This is an important concept integrated in the Indian Evidence Act, 1872. The
concept of burden of proof is explained in Chapter VII of the Indian Evidence
Act, 1872.

Section 101 of Indian Evidence Act, 1872 propounds the general principal
regarding burden of proof.
From the point of view of the burden of proof, the facts can be placed in two
categories: those which affirm a fact and those which deny it. According to
section 101 of the Indian Evidence act 1872, the party who asserts the
affirmative of an issue, to make the court give a judgment on the basis of those
facts, carries the burden of proof to prove them; it is easier to prove the
affirmative than the negative. The affirmative in issue should not be in form or
grammar but in substance.
Illustration -
(a) A desires a court to give judgement that b shall be punished for a crime
which A says B has committed. A must prove that B has committed the crime.
In the simplest words, it can be said that – burden of proof means the liability
or binding of a person to prove any fact. Generally this liability lies over the
person who makes a statement and expects the court to decide according to
it.
In the case of Daulatram VS Sodha it was held by Supreme Court that if any
person says that the will is made by fraud, undue influence or coercion then
the burden of proof shall be on that person.
Burden of proof is briefly describe from section 102 to Section 112

1 On whom burden of proof lies

Section 102. On whom burden of proof lies.—The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given
on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B’s father. If no evidence were given on either side, B
would be entitled to retain his possession. Therefore the burden of proof is on
A.
(b) A sues B for money due on a bond. The execution of the bond is admitted,
but B says that it was obtained by fraud, which A denies. If no evidence were
given on either side, A would succeed, as the bond is not disputed and the
fraud is not proved. Therefore the burden of proof is on B.

On Whom the Burden of Proof Lies – Section 102 Evidence Act – Explanation

Section 102 of the Indian Evidence Act deals with the burden of proof during a
suit or proceeding that supports the evidence of the entire case, i.e. section
101.

Under section 101 of the Indian Evidence Act, the burden of proof lies on the
party who brings the case. Now, it is the burden on the other party to prove
their side as to the non-existence of such fact asserted by the party under
section 101. If it fails to produce the adducing evidence in its favour, then the
case would settle against the party.

Now let us understand sections 101 and 102 with an illustration:

A desires a court to give judgement that B has committed murder and punish
him under section 302 of the Indian Penal Code, 1860. For this, A says that B
has committed C’s murder, who is A’s brother. Now, as per section 101 of the
Indian Evidence Act, the burden of proof is on A that B has committed the
murder of C, and he must prove it.

Moving further and applying section 102, the burden is now shifted on B, and if
no adducing evidence were given by B, B would be punished for the murder of
C.

Therefore, the burden of proof is on B.

14.Explain the different kinds of privileged communication?

What are privileged communications?

Privileged legal communications are confidential conversations that a witness

cannot be compelled to disclose, even though the communication is related to
relevant facts. The court cannot force a witness to disclose such interactions.

Examples of privileged communications

Following are the examples of privileged communications under the Indian

Evidence Act, 1872:

1. Communications during the marriage – Section 122

This section bars the husband or wife from disclosing the communication
between them during their marriage’s subsistence. But it does not bar the
communication to be proved through any other means.
In ‘Ram Bharose vs State of UP‘, the court affirmed that any communication
between husband and wife during the wedlock by the husband to his wife or
by his wife to her husband is prevented from being proved in the court of law.

Exceptions to section 122 of the Indian Evidence Act:

1. An extra act or conduct can be proved.

2. Evidence by a third party can be disclosed.
3. Waiver of privilege: A wife may testify against the husband if her
husband consents to it or vice versa.
4. The suit between husband and wife.

2. Evidence as to affair of state – Section 123

This section prohibits a person from giving a document as evidence that is:

1. An unpublished official record, or

2. Related to the affairs of the state.

However, it may be given with permission of the concerned department’s

head, who may give or withhold such permission.

Section 123 read with section 162 of the Evidence Act – the final authority to
decide whether the unpublished document can be adduced as evidence or not
rests with the court.

3. Official communication – Section 124

This section prohibits a public officer from disclosing communication made to
them in official confidence, where public interest would suffer by its disclosure.
In both cases, the public interest is paramount.

4. Information as to the commission of offences – Section 125

This section prohibits magistrates, police officers from disclosing any

information received by them regarding the commission of an offence.
Similarly, a revenue officer cannot be compelled to reveal any information as
to when he got the information regarding the commission of offence related to
public revenue.

5. Professional communication – Section 126

This section prohibits barrister, attorney, pleader or vakil from disclosing any
information:

• made to him, or
• on behalf of his client, or
• any advice given by him to his client,

in the course and for purpose of his employment.

Further, it bars the barrister, attorney, pleader or vakil to state the contents or
conditions of any document with which he became acquainted in course or for
the purpose of his employment.

Exceptions to section 126 of the Indian Evidence Act:

 1. Communications made in furtherance of illegal purpose are not
protected.
2. Any fact observed by the barrister, attorney, pleader or vakil in the
course of employment to be fraud or crime being committed since the
commencement of employment is not protected.
3. Barrister, attorney, pleader or vakil can disclose the communication if
the client gives express consent.

Section 127 states that the provisions of section 126 apply to interpleader,
clerks or servants of barrister, attorney, pleader or vakil.

6. Privilege not waived by volunteering evidence – Section 128

This section lays down that if there is some secret communication between the
client and lawyer and the lawyer appears as a witness, he does not waive the
privilege afforded by section 126. But if the client questions the lawyer
regarding the secret communication in the court of law, his consent may be
deemed to be given.

7. Confidential communication with the legal advisor – Section 129

This section applies where the client is being interrogated. He cannot be

compelled to disclose any secret communication between him and his legal
advisor unless he offers himself as a witness.

15.What is 1) Examination in chief 2) Cross examination 3) Re examination of

witness.
There are three stages in examination of a witness are as follows -

1) Examination-In-Chief :

2) Cross-Examination
3) Re-Examination

1) Examination-in-Chief :

According to Section 137 of the Indian Evidence Act,1872 the examination of a

witness, by the party who calls him, shall be called his examination-in-chief.
This is also called as examination.

Every witness is first examined by the party who has called him, this process
called his examination-in-chief. Section 138 provides Witnesses shall be first
examined-in-chief then, if the adverse party so desires cross-examined and
then if the party calling him so desires. re-examined.

Object / Purpose of Examination-in-chief :

The object / purpose behind conducting the examination-in-chief is to make

the witness depose to what he has been called by the party calling him to
prove. In other words, the object of his examination is to get him from the
witness all material facts within his knowledge relating to the party's case. It
must be confined to the relevant fact and no leading questions can be asked.
except with the permission of the Court.
The court shall permit leading questions to be asked as to matters which are
introductory or undisputed,or which have in its opinion, been already
sufficiently proved.

Limit :
In Examination-in chief no leading questions can be put except in certain
special cases. Leading question is one , which suggests the answer. only
relevant questions should be asked.
It should be noted that in examination-in-chief, the lawyer conducting the
examination of the witness, the lawyer should understand the nature and
temperament of the witness and ask such questions which do not irritate the
witness. The witness should be asked to answer calmly ans comfortably, and in
his own manner as he likes to express in his own words.
2) Cross-examination -
According to Section 137, para 2 of the Indian Evidence Act,1872 : The
examination of a witness by the adverse party shall be called his cross-
examination . Cross-examination considered most powerful weapon.
According to Philip Wendell, "Cross-Examination is double-edged weapon, if
you know how to wield, it helps to cut enemy's neck Otherwise, it cuts own
hands"
Limit-
It should be remembered that the witnesses must speak to facts and not to
opinions inference or beliefs. A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing. Leading questions
may be asked.
Object-
The object of the cross examination is to test the truth of statement made by
witness, to see how far is memory is reliable or what powers of observation
possesses whether he is partial or impartial, etc ; in short it is an attempt to
break down a witness or to show that his statement can not be relied upon.
The object and scope of cross-examination is twofold to weaken qualify or
destroy the case of the opponent; and to establish the party's own case by
means of his opponents witnesses . With this view the witness may be asked
not only as facts in issue or directly relevant thereto , but all question

(1) tending to test his means of knowledge,

(2) tending to expose the error, of omission, contradictions

and improbabilities in the testimony or

(3) tending to impeach his credit.

The object of cross examination are to a impeach the accuracy, credibility and
general value of the evidence given in chief ; to sift the facts already stated by
the witness, to detect and and expose discrepancies or to elicit suppressed
facts which will support the case of cross examination of party.
Sukhawant Singh v. State of U.P AIR 1995 SC 1601
In this case the Supreme Court has held that a witness cannot be thrown open
to cross-examination unless he is first examined-in-chief. Where the
prosecution did not examine its witness and offered him to be cross examined,
it was held that this amounted to abandoning one's own witness, there cannot
be any cross-examination without the foundation of examine-in-chief.

3) Re-Examination :
According to Section 137, para 3 of the India evidence Act 1827 :The
examination of a witness, subsequent to the cross examination by the party
who called him , shall be called his re-examination.
Purpose / Object of re-examination :
The purpose / object of re-examination is to afford to the party calling a
witness an opportunity of filing in lacuna or explaining the consistencies which
the cross-examination has observed. in the examination-in-chief of the
witness. It is accordingly confined to the explanation of matter refereed to in
cross-examination. It should not introduce any new matter unless the court
permits; and if such permission is given, the adverse party may further cross
examine upon that matter.
Limit :
The re-examination shall be directed to the explanation of matters referred to
in cross-examination, and if new matter by permission of the Court, introduced
in re-examination, the adverse party may further cross-examine upon that
matter
Leading Questions should not be asked in re-examination :
According to Section 142 of the Indian Evidence Act , leading questions should
not be asked in examination-in-chief or in re-examination, if they are objected
by the opposite party. In case the opposite party objects, the court can decide
the matter and may, in its direction either permits or disallow it.
The Court that that it shall permit leading questions as to the matters which
are introductory or undisputed, or which have, in the opinion of the Court,
been already sufficiently proved to the satisfaction of the court.
16.Explain the circumstances in which facts not otherwise relevant become
relevant?

When facts not otherwise relevant become relevant

Section 11 of the Indian Evidence Act, 1872 deals with facts which ordinarily
have nothing to do with that of a case are not in themself , but they have become
to the relevant only by virtue of fact that they are either inconsistent with any
fact in issue or relevant fact or they make the existence of a fact in issue or
relevant fact either highly probable or improbable.
Section 11: When facts not otherwise relevant become relevant.–– Facts not
otherwise relevant are relevant ––
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence
or non-existence of any fact in issue or relevant fact highly probable or
improbable.

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.

Inconsistent Facts: Plea Alibi

This section enables a person charged with a crime to take what is commonly
called the plea of alibi which means his presence elsewhere at the time of crime.
His present elsewhere is consistent with the facts that he should be present at
place of the crime.
Where, for example, a person with charged with murder which took place at
calcutta, he can take the defence that on the day in question he was in Bombay.
In order to prove his presence in Bombay he may show his attendance at some
place, for example the fact that he visited a doctor or a vakil and he noted his
visit in a professional diary or that he posted a letter written by himself on that
day from Bomaby, or that he encashed a cheque at Bombay.
In Munshi Prasad v. State of Bihar (2001) A distance of 400-500 yards between
the place of occurrence and the place where the accused was claimed to be
present (present in g panchkula meeting) was held to be not amounting to
present elsewhere. It could not be an impossibility that one could be present at
both the place or less simultaneously.
The fact that the accused advanced a false plea of alibi cannot by itself be a
proof of the fact that he was responsible for the offence.[Govind v. State of M.P.
(2005)]

Facts showing probabilities

Evidence can be given of every fact which by itself or in connection with other
facts makes the existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.
For example there are five persons in a room and one of them is murdered in
circumstances which show that it is the handiwork of any one or more of them.
Evidence will be allowed of every fact which makes it probable which one of
them caused the death or which one of them was probably not connected with
it.
Where a person is charged with cheating, evidence can be given of the fact that
he belong to an organisation of habitual cheats as this would make it probable
that the committed the crime- [Kalu Mirza v. Emperor (1909)]

Facts which makes thing highly improbable are also relevant

In Santa Singh v. State of Punjab (1956) The witnesses testified that they saw
the deceased being shot from a distance of twenty-five feet. The medical report
showed that the nature of the wound was such that it could have been caused
only from distance less than a yard. Thus, the expert opinion rendered the
statement of witnesses highly probable.
This section is too wide in its import. It does not place any restriction upon the
range of facts that can be admitted as showing inconsistencies or probabilities.
It leaves the whole thing at the discretion of the court.
In Reg. v. Prabhudas (1874) where to prove the offence of forgery by the
accused, evidence was offered of other forged documents found in his
possession, as this would make it probable that he committed the forgery.
In Umashanker v. State of Chattisgarh (2001) in a charge of passing a fake
currency note, the relevancy of possession of other fake note proved mens rea
or guilty state of mind or knowledge.

17.Discuss the relevancy of character evidence.

Introduction:
The word 'Character' denotes "the collective qualities or characteristics
especially mental and moral, that distinguish a person or thing. Character is
differs from conduct Conduct is a stray act. it is single act , done on one
occasion while character is continuous act and there is repetition of the same
act.
Character is a combination of quality distinguishing a person, the individuality
of which is the product of nature, habits and environment. " Is a man honest, is
he good-natured, is he of a violent temper, is he modest and retiring or
imprudent and forward. These all constitute traits of character."
2. Relevancy of Character :

i) In civil cases -
In civil cases character to prove conduct imputed, irrelevant (Section
52)- Section 52 of the Indian Evidence Act is itself in issue. In civil proceedings,
the evidence of good character or bad character is not going to help the court
in deciding the matters in issue.
Section 52 runs as follows :
In civil cases, the fact that the character of any person concerned is such as to
render probable or improbably any conduct imputed to him, is irrelevant
except in so far as such character appears from facts otherwise relevant.

In civil proceeding good or bad character is not relevant. e.g. In a suit filed by
landlord against a tenant for recovery of the premises on ground of default of
payment of rent, if tenant argued that he is religious person and hence the suit
be dismissed. His character is irrelevant and the Court will pass eviction order
against him, on the ground of default.

Thus the general principle is that a party that cannot give evidence of his good
character for the purpose of showing that it is improbable that he should be
guilty of the conduct imputed to him. e.g. if a person is charged with negligent
driving, he cannot give evidence of fact of his character and conduct has been
such that he could not have been guilty of negligence. Similarly, his opposite
party cannot give evidence of the fact that his character and conduct had been
so bad that he must have been negligent. The reason is that the Court has to
try the case on the basis of its fact for the purpose of determining whether the
defendant should be liable or not. the court has not to try the character of the
parties.

Thus, it may be laid down as a general rule that in civil action evidence of
character of any person is not admissible for the purpose of raising an
interference as to its conduct.
 ii) In criminal cases -
In criminal cases previous good character relevant. Section.53 - According to
section 53 of the Evidence Act, in criminal proceedings, the fact that the
person accused is, of a good character, is relevant. The innocence or criminality
of an accused can easily be judged by basing on his character.

Every accused person is at liberty to give evidence of the fact that he is man of
good character. The expression, "Good Character" has of course is known
significance in relation to evidence upon criminal trials for it denote a
description of evidence in disproof of the guilt which an accused person may
adduce.

Supreme Court In Habib Mohammad v. State of Hyderabad, AIR 1954 SC

59, that in criminal proceeding a character of a man is often a matter of
importance in explaining his conduct and in judging his innocence or
criminality.

Evidence of character or previous sexual experience not relevant in certain

cases. Section 53A -

In a prosecution for an offence under section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376B, section
376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for
attempt to commit any such offence, where the question of consent is in issue,
evidence of the character of the victim or of such person's previous sexual
experience with any person shall not be relevant on the issue of such consent
or the quality of consent.

3. Previous bad character :

In criminal proceedings, the fact that the accused person had a bad character is
irrelevant unless evidence has been given that he has a character in which case
it becomes relevant.

Explanation 1 – This section does not apply to cases in which the bad character
of any person is itself a fact in issue.

Explanation 2 – A previous conviction is relevant as evidence of bad character

As per this section previous bad character is not relevant but in criminal cases
to decide the quantum past bad character is relevant.When it is proved that
he had committed an offence of the same nature in the past, then maximum
punishment can be awarded to him, unless evidence is given of his good
character.

The previous bad character of the accused in criminal cases is relevant in the
following circumstances -

1) When the accused has adduced evidence that he has been of good
character, the prosecution can lead evidence to the effect that he has been a
bad character.

2) Where the bad character of accused itself is a fact in issue, the evidence of
bad character of the accused may be given. e.g. under section 110 of Cr.P.C.
habitual offender includes offender who id by habit a robber, house-breaker,
or is so desperate and dangerous to the society then the very character of the
accused is in question and evidence to that effect is admissible;

3) where the previous conviction is relevant as evidence of bad character,

evidence of bad character is relevant.

4) Character affecting damages

In civil cases, the fact that the character of any person is such as to affect the
amount of damages which he ought to receive is relevant.

It should be noted that it is only in civil cases that a question of amount of

damages to be awarded to the plaintiff is concerned and his character
becomes relevant.

Explanation – In Section 52,53,54 and 55, the word “character” includes both
reputation and disposition; but except as provided in Section 54, evidence may
be given only a general reputation and general disposition and not of particular
acts by which reputation or disposition was shown.
from the above provisions following principles are laid down -

1) to prove good or bad character , evidence can be given both of reputation

and disposition.
2) evidence can be given of previous conviction in proof of bad characters, and
3) evidence can not be given of particular fact, but only of general reputation
and general disposition were shown.
Relevant Case law

i) Bhagvan Sawarup V. State of Maharashtra, AIR 1965 SC 682.

Supreme court held that character evidence is very weak evidence, it cannot
outweigh positive evidence in regard to the guilt of the person. Character will
necessarily vary according to circumstances of each case.

ii) D.Shastri Vs. K.B.Sahay 1953.

Patana High Court held that in civil cases, where the question of amount of
damages to be awarded to the plaintiff is concerned, that a character of a
plaintiff becomes relevant.

18.Write a note on presumption as to legitimacy of child.

Introduction:
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, 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. Therefore, section 112
is based on the presumption of public morality and public policy

Section 112 of the Indian Evidence Act

Section 112 of the Indian Evidence Act lays down that:

• the fact that a child was born during the subsistence of a valid marriage
between his mother and a man, or
• within 280 days after the dissolution of marriage and the mother
remains unmarried,

this shall be conclusive proof that it is the legitimate child of that man.
Important: This provision is subject to the exception that the man and woman
had no access to each other.

In SPS Balasubramanayam vs Surattoyan, the court held that a marriage could

be presumed from the long cohabitation between a man and woman within
the meaning for giving rise to this presumption of conclusive proof.

Conclusive Proof

The presumption raised under section 112 of the Indian Evidence Act is the
conclusive proof under section 4 of the Indian Evidence act. When a fact is
declared conclusive proof of another, the court shall not allow further
evidence to disprove the fact. This case generally occurs when it is in the
interest of society or against the government’s policy.

Access under Indian Evidence Act

The terms access and non-access refer to the existence and non-existence of
opportunity for sexual contact.

In other words: The term access used in section 112 of the Indian Evidence Act
refers to the existence of opportunity of marital intercourse. However, non-
access can be established if it is proved that the husband was physically
incapable of procreating.

Is a DNA test admissible under section 112 of the Indian Evidence Act?

Generally, a DNA test is not permissible by the court in India as it results in the
violation of the right to privacy.
The Supreme Court in Goutam Kundu vs State of West Bengal has laid down
the following rules for blood test to prove paternity:

1. The courts in India cannot order for the blood test as a matter of course.

2. The application for blood tests cannot be entertained.

3. There must be a strong prima facie case that the husband should establish
non-access to dispel the presumption under section 112 of the Indian Evidence
Act.

4. The court must examine the consequence of ordering a blood test, whether
it will have the effect of branding the child as a bastard and the mother as
unchaste.

5. No one can be compelled to give blood samples for analysis.

Refusal of wife to comply with a DNA test.

In Dipanwita Roy vs Ronobroto Roy, the Supreme Court held that it would not
be incorrect to issue direction to the wife to undergo a DNA test to determine
the parentage regarding the case challenging her infidelity. And if the wife
refuses to undergo the test of the child to determine parentage, an adverse
presumption can be drawn against the wife.

19.Define evidence? Distinguish between relevancy and admission of

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

2) The rules of relevancy are The rules of admissibility is described

described from Section 5 to
Section 55 of Evidence Act,
1872.
3) The rules of relevancy declare
what is relevant.
4) Under Evidence Act the rules
of relevancy means where
evidence are admissible.
after Section 56 of Evidence Act, 1872.
The rule of admissibility declares
whether certain type of relevant
evidence are admissible or are to be
excluded.
Admissibility is means and of modes
for admissibility of relevant Evidence.

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

20.Explain the relevancy of introductory and explanatory facts.

Section -9
Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or
which establish the identity of any thing or person whose identity is relevant,
or fix the time or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.

• Facts necessary to explain or introduce a fact in issue or relevant fact,

• which support or rebut an inference suggested by a fact in issue or
relevant fact,
• which establish the identity of any thing or person whose identity is
relevant,
 • fix the time or place at which any fact in issue or relevant fact happened,
• which show the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary for that purpose.

Illustration:

(a) The question is, whether a given document is the will of A.

The state of A's property and of his family at the date of the alleged will may
be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the
matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was
published may be relevant facts as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with
the alleged libel are irrelevant, though the fact that there was a dispute may be
relevant if it affected the relations between A and B.
(c) A is accused of a crime.
The fact that, soon after the commission of the crime, A absconded from his
house, is relevant, under section 8, as conduct subsequent to and affected by
facts in issue.
The fact that, at the time when he left home, he had sudden and urgent
business at the place to which he went, is relevant, as tending to explain the
fact that he left home suddenly.
The details of the business on which he left are not relevant, except in so far as
they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with A,
C, on leaving A's service, says to A -- "I am leaving you because B has made me
a better offer." This statement is a relevant fact as explanatory of C's conduct,
which is relevant as a fact in issue.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to
give it to A's wife. B says as he delivers it-- "A says your are to hide this." B's
statement is relevant as explanatory of a fact which is part of the transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob. The
cries of the mob are relevant as explanatory of the nature of the transaction.
Facts will help in supporting, rebutting, explaining or introducing relevant facts
are also relevant under this chapter, for example, if a person is absconding
soon after being accused of a crime, it is relevant as conduct subsequent and
affected by facts in issue. In Sainudeen v. State of Kerala (1992 Cr LJ 1644
Kerala), the identification of the accused through his voice was relevant under
this section.

This section also covers test identification parades (TI parades). Its utility was
explained by the Supreme Court in Ramanathan v. State of TN (AIR 1978 SC
1201) stating that the common and old practice of lining up suspects for
identification by eye-witnesses or by the victim becomes essential where the
identity of the perpetrator is unknown.

21.Oral evidence in all cases whatever be direct explain the statement with
exceptions.
Section 59 of Indian Evidence Act says "All facts except the contents of
document may be proved by oral evidence". It means that where a written
document exists, then evidence as to contents of such document can be
proved by proving that document, apart from it all facts can be proved by Oral
Evidence.
Oral Evidence is one of the form of `Evidence' as defined under Section 3 of
Evidence Act which means all statements which the court permits or requires
to be made before it by witness in relation to matters of fact in question.
Section 60 of Indian Evidence Act then provide that Whenever Oral evidence is
to be led it must be direct.
Evidence Act does not accept `Hearsay' or `Indirect Evidence. Section 60 lays
down that oral evidence must be direct. By direct it is meant that:
(i) If evidence is to be led about a fact which can be heard, witness must be
produced who says that he heard it.
(ii) If evidence is to be led about the fact which can be seen, the witness
produced must say he himself saw it.
(iii) If evidence is to be given about a fact which can be perceived by any other
sense or in any other manner the witness produced must say that he perceived
it himself by that sense or in that manner.
(iv) If evidence is to be given about an opinion or as to the ground on which the
opinion is to be held, the witness produced must say that he holds that opinion
and on those ground.
So as a general Rule of Evidence, the oral evidence must be direct. Law does
not allow hearsay or indirect evidence because:
(i) Hearsay evidence being second hand evidence based on information given
by other people is considered to be susceptible piece of evidence will not lead
the court to any concrete logical conclusion.
(ii) Hearsay Evidence can not properly be subjected to test a cross examination,
because, witness giving hearsay evidence having no first hand and direct
knowledge of fact relevant, will escape by replying only i has so heard only.
(iii) Admission of Hearsay evidence will open the doors of fraud.
(iv) Admission of Hearsay or Indirect evidence would encourage tendency to
lead weaker proof of a fact than a strong and more reliable proof.
So court require the proof of any fact, must be given by most reliable and
probable evidence, this can be done by insisting upon only direct oral
Evidence. However, Indian Evidence Act has recognised certain exceptions to
general Rule requiring direct oral evidence.

Exception to the Rule of Hearsay Evidence

(i) Statements which are part of Res Gestae, Whether actually constituting a
fact in issue or accompanying and explaining a fact in issue ( Section 6 of
Evidence act).
(ii) Admissions and Confessions. [Section 18 to 31]
(iii) Statements of person who is dead or who cannot be found or who cannot
attend the court in circumstances as are provided in Sections 32 and 33 of
Evidence Act.
(iv) Statements in books of accounts, government chart and public record.
[Section 34 to 38]
(v) Opinion of experts expressed in any treatise commonly offered for sale and
the grounds on which are held, may be proved by indirect evidence. [Proviso to
Section 60]

22.Explain the presumptions in Rape and dowry death cases.

Section 113B of Evidence Act "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 had 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 304B of the Indian Penal Code(45 of 1860).]

Section 114 of Evidence Act "Court may presume existence of certain acts"

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

Illustrations

The Court may presume –

(a) That a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen, unless he
can accounts for his possession.

(b) That an accomplice is unworthy of credit, unless he is corroborated in

material particulars;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed

for good consideration.

(d) That a thing or state of things which has been shown to be in existence
within a period shorter than that within which such things or states of things
usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced, be
unfavorable to the person withholds it.

(h) That if a man refuses to answer a question which he is not compelled to

answer by law, the answer, if given would be unfavorable to him;

(i) That when a document creating and obligation is in the hands of the obligor,
the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case
before it.

Section 114-A
Section 114-A of the Indian Evidence Act lays down that there will be a
presumption of absence of consent in certain instances of rape cases. It says
that if rape has been committed under any of the clauses of sub-section (2) of
Section 376 of the Indian Penal Code, and the woman states in her evidence
that she had not given consent, the court shall presume that the woman did
not consent.

History of Section 114-A

The Mathura Rape case was the reason behind the insertion of this section.
The decision of the Supreme Court, in this case, was widely ridiculed in the
country. Thus, the government decided to revamp the laws and it passed the
Criminal Amendment Act, 1983. Let’s delve further into this case.

Herein, a girl named Mathura fled with her boyfriend Ashoka. Her family
registered a complaint against her boyfriend. The girl, her boyfriend, her
brother Gama and other relatives were called to the police station to settle the
matter. The investigation was completed and everybody was asked to go back.
But Mathura was asked to stay back. It was alleged that a police constable
Ganpat took Mathura to a chhapri and raped her. After he had satisfied his
lust, another policeman Tukaram came there and fondled her private parts.
The case went to the Sessions Court which held that the policemen were not
guilty. They said that Mathura might have invented the story. The High Court
took a different stance on the case. It said that mere passive surrender of the
body would not amount to consent on the part of the plaintiff. The Court
commented that the overtures might have come from the policemen
themselves and not from Mathura. Further, on appeal, the Supreme Court
overturned the decision of the High Court. It held that she submitted her body
to the policemen as she did not resist. The Hon’ble Court said that the “onus is
always on the prosecution to prove affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts.” The judgment was criticized
and there was an uproar in the country. Gender-based violence came to the
forefront and it was at that time Section 114-A was inserted in the Indian
Evidence Act. It was substituted by the Amendment Act of 2013 and then
recently by the Amendment Act of 2018.

Case laws

The courts have tried to define ‘consent’ and have also tried to explain that if
there is evidence, the presumption cannot negate that evidence outrightly. Let
us discuss some important rape cases to understand these concepts.

Rachna Singh v. NCT of Delhi, (2020)

This was a recent judgment by the Delhi High Court. Herein the accused of
raping a woman was acquitted by the Trial Court. Aggrieved by this decision of
the Trial Court, the victim knocked at the doors of the Delhi High Court saying
that there is a presumption of guilt under Section 114-A of the Indian Evidence
Act. The High Court rejected this averment and said to prove the presumption
of guilt under Section 114-A one needs to first prove that there was sexual
intercourse. As the conduct of the woman was itself tainted in this act as she
refused to undergo an internal examination as well as she made a number of
calls to the accused from time to time. The Court held that as her conduct did
not match her allegations, and no sexual intercourse could be proved
therefore the accused cannot be held guilty.

Mohd. Eqbal v. State of Jharkhand, (2013)

This was a gang rape case. A girl was forcibly kidnapped from the vegetable
market and then raped by two boys. The Court in this case held that there is a
presumption as to the absence of consent in case of gang rape as there can be
no consent in such cases as no one would give consent to two persons at the
same time. Thus, specifically in gang rape cases, no consent can be presumed
and Section 114-A would directly apply.
State of Rajasthan v. Roshan Khan, (1947)

This case is a good example of ‘presumption of guilt’ under this Section. In this
case, a girl was kidnapped by six boys and then was raped. She said that she
did not consent to sexual intercourse. As the sexual intercourse was proved in
this case, the Court applied the presumption of guilt factor and the boys were
jailed.

23.What are leading questions? When these can be asked?

Introduction:
Section 141 to Section 143 of Chapter -X, Part III of the Indian Evidence Act
1872 deals with leading questions. Section 142 and Section 143 provides
circumstances under which the leading Questions may be asked or may not be
asked. Leading Questions have been defined under section 141 of the Indian
Evidence Act 1872.

Meaning:
The expression "Leading Questions" literally means a question which itself
suggest answer. As expected by the person asked the same, any questions
which leads to answer, or a question which is pregnant with the answer.
Definition:
Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as,
“Any questions suggesting the answer which the person putting it wishes or
expects to receive is called a leading question."

Bentham:
Bentham defines leading questions as," A question is a leading one, when it
indicates to the witness the real or supposed fact which the examiner expects
and desires to have confirmed by the answer.

Examples
a) Is your name so and so?

b) Do you reside in such and such a place?

c) Are you not in service of such and such person?

 d) Have you not lived with him for so many years?

e) Did you see him enter X's office and take a file?

It is clear that under this form every sort of information may be conveyed to
the witness in disguise. It may be used to prepare him to give the desired
answers to the questions about to be put to him; the examiner, while he
pretends ignorance and is asking for information is, in reality, giving instead of
receiving it.
When leading Questions must not be asked?
According to Section 142 of Indian Evidence Act, leading questions may not be
asked in Examination-in-chief, or in a Re-examination, except with the
permission of the Court.

Section 142 run as follows:

Leading questions must not, if objected to by the adverse party, be asked in

an examination-in-chief, or in re-examination, except with the permission of
the Court.
The court shall permit questions as to matters which are introductory or
undisputed or which have, in its opinion been already sufficiently proved.

When Leading Questions may be asked?

Leading questions may be asked in the following cases.

1) According to Section 143 of the Indian Act, Leading Questions may be asked
in cross-examination.
2) Under Section 142- In Examination-in-chief, Leading questions can only be
asked with the permission of Court in certain matters.

3) When the witness has defective memory, it may be agitated by a few

leading questions.

4) When the object of the leading question is to contradict another witness as

to the expressions used by him but at which denies having asked, the witness
may be asked leading questions.
24.Write a note on public document.
Refer Q.no. 5.
25.Write a note on hostile witness.

Who is Hostile Witness?

A witness becomes hostile when he makes a statement against the interests of

the party who called him. When the party’s own witness denies to give a
statement in his favour before the court, then it is said that the witness has
become hostile.

There can be many reasons for becoming a hostile witness. It may be the
reason that the other party is threatening the witness. Or he is in fear that if he
gives a statement against the accused, his life will be in danger or any other
reason.

Can a party cross-examine its own witness?

Section 154 of the Indian Evidence Act talks about the hostile witness. This
section enables the court to permit the party to cross-examine his own
witness, who has become hostile.

The general rule is that a party can cross-examine opposite party witnesses,
but it is an exception to this rule. If the witness becomes hostile, then the party
may cross-examine its own witness with the permission of the court.
It’s the discretionary power of the court to permit the party for cross-
examining its own witness. If the court is satisfied with the fact that, in the
interest of justice and fair hearing, the party must be allowed to cross-
examine, then only the court permits.

What can be asked in cross examination of hostile witness?

If the witness of the party turns hostile, he may be asked:

1. Leading questions under section 143 of the Evidence Act to testify his
truthfulness.

2. Questions related to previous statements given in writing under section 145

of the Evidence Act. This section permits contradiction as to former statements
in writing.

3. Questions which tend to test the veracity of witness and his status in life
under section 146 of the Evidence Act.

Evidentiary Value of Hostile Witness

If the witness turns hostile and gives a statement against the party who calls
him, then what would be the credibility of such a statement which is made by
the hostile witness in the court?

Satpal vs. Delhi Administration, 1976

In this case, the Supreme Court said that merely because the prosecution has
chosen to treat his witness as a hostile witness, cannot make the evidence of
such witness totally null.
The court said that if the witness proves to be an unfavourable witness, who
has failed in proving a fact, then the evidence of such witness can’t be effaced.
The court can still rely on and appreciate the statement made by the hostile
witness. It can be accepted as evidence to the extent that the statement is
found to be credible or authentic and inspires credit.

Atmaram and ors vs. State of M.P

The Supreme Court, in this case, very clearly stated that inconsistency in the
statement of the prosecution’s witness case can not make the whole
statement invalid. If the judge feels that the character of the witness has not
been completely shaken or that his credit is still worthy of trust, then with due
care and caution, such statement or evidence may be accepted by the court.

But if the whole of the testimony of hostile witness stands in contradiction to

every statement made earlier and is impugned, then such statement can’t be
treated as evidence in the court of law. The judge may, in his opinion, discard
the evidence in toto.

26.Discuss the relevant facts showing preparation, motive and conduct.

Section.8 of the Indian Evidence Act, 1872 lays down the provisions relating to
the relevancy of three principal facts, which are very important in connection
with every kind of civil or criminal cases...they are as follows :

1) Motive
2) Preparation
3) Conduct

What is meant by motive? When it becomes?

Section 8 runs as follows:

"Any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any fact
in issue therein or relevant thereto, and the conduct of any person an offense
against whom is the subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto.

Illustrations

(a) A is tried for the murder of B.

The facts that, A murdered C, that B knew that A had murdered C, and that B
had tried to extort money from A by threatening to make his knowledge
public, are relevant.

(b) A sues B upon a bond for payment of money. B denies the making of the
bond.
The fact that, at the time when the bond was alleged to be made, B required
money for a particular purpose, it relevant.

1) Motive:
The word 'motive' means “the reason behind the act or conduct or an act to be
achieved in doing an act."
Salmond describes motive as " the ulterior intent". It may be good or bad.

Motive is the moving power, which impels one to do an act. In other words, a
motive is that which moves a man to do a particular act. It is an emotion or
State of Mind, which leads a man to do an act. Motive by itself is no crime,
however heinous it may be. Once a crime has been committed, the evidence of
motive becomes important. Therefore, evidence of the existence of a motive
for the crime charged is Admissible.

Motive differs from intention. Intention refers to immediate consequences,

whereas, motive refers to ultimate purpose with which an act is done. An act
may be done with bad intention but good motive.
Example:
A thief steals money and helps the poor.

Proof of Motive:
Motive cannot always shown directly. It has to be inferred from the facts and
circumstantial in evidence.

E.g.: A is tried for murder of B, The fact that B was present at the scene of the
offence, while A was murdering C, B tried to extort money from A, by
threatening him to reveal in the public that A murdered C are relevant.

Importance of Evidence of motive:

Motive is a relevant factor in all criminal cases, whether based on the
testimony of eye witnesses or circumstantial evidence. Motive alone is not
sufficient evidence to establish that the crime in question has been committed
by a particular person. Where a crime is to be proved beyond reasonable
doubt, it is not necessary to consider the evidence of motive. Inadequacy of
motive does not affect the cogent evidence but is important, whether
evidence is doubtful.

Relevant Case Law:

It has been held in Udaipal Singh vs. State, AIR1972 SC 54, that Evidence of
motive is relevant under section 9 of the Indian Evidence Act.
Supreme Court also held in Kundula Bala vs. State 1993, Court held that in a
case based on circumstantial evidence, motive assumes a great significance as
its Evidence in an enlightening factor in a process of presumptive reasoning.

In State of M.P. Vs. Dhiredra Kumar AIR 1997 SC 318, Munnibai was killed.
Respondent Dhiredra Kumar had en evil eye on her. Respondent was tenant in
the house of father-in-law of deceased (Munnibai) Munnibai reported the
matter to her mother in law who in turn told to her husband; who told vacate
the house. This may be taken as motive of murder.

In State of Haryana v. Sher Singh.AIR 1981 SC 1021, held that if the

prosecution proves motive, Court has to consider it and see whether it is
adequate.
When there is direct evidence, the evidence of motive is not of so much
significance. The evidence of

Motive becomes important to Corroborate the circumstantial

evidence in Sakharam v. State AIR 1992 SC 758, held, that absence of Motive
may not be relevant when Evidence is overwhelming but it is a plus point in
case where the Evidence against the accused is only Circumstantial.

2) Preparation:
Section 8, Para I of the Indian Evidence Act, 1872 says, “Any fact is relevant
which shows or constitutes a motive or preparation for any fact in issue or
relevant fact."
Preparation consists in arranging the means necessary for the commission of a
crime. Every crime is necessarily preceded by preparation.

Illustration

"A is tried for the murder of B, by poison. The fact that, before the death of B,
A produced poison similar to that which was administered to B is relevant."

The fact that a day prior to the murder of B, A went to the druggist shop and
obtained a particular poison, is relevant to show that he made necessary
preparation for committing the crime.

There are four stages in Commission of Crime

1) Intention
2) Preparation
3) Attempt
4) Accomplishment / complete act.
The first, intention is not punishable. The second stage in commission of a
crime is preparation, is punishable in certain cases. The third stage attempt is
exempted from criminal liability in rare cases in respect of minor offences.
Preparation in devising or arranging means necessary for commission of an
offence.
Mohanlal vs Emperor, AIR 1937, Sindh 293.
In this case, the accused was charged with cheating for importing goods
without paying proper custom duty by deceiving customs authorities. The
evidence of his previous visit to the port trying to make certain arrangements
whereby he could import goods without paying duty was
held Admissible under the Section.
The preparation on the part of the accused may be, to accomplish the crime, to
prevent discovery of crime or it may be to aid the escape of the criminal and
avert suspicion.

3) Conduct:

The conduct is the expression in outward behavior of the quality or conduct

operating to produce those effects.

The second paragraph of Section 8 deals with the relevancy of conduct it says
that , " The conduct of any party, or of any agent to any party, to any suit or
proceeding, in reference to such suit or proceeding, or in reference to any fact
in issue therein or relevant thereto, and the conduct of any person an offense
against whom is the subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto."

Conduct is differ from the character. Conduct is what a person is in the

estimation of others.

Paragraph 2 of Section 8 deals with the relevancy of the conduct of the

following persons

1) Parties to the suit and of their agents.

2) Person, an offense against whom is the subject of a proceeding.

Against whom admissible :

The conduct of any person, is relevant under section 8, is admissible only
against himself and not against any other person. The conduct of an accused is
not, therefore, Admissible, against a co-accused.

Conditions of admissibility:

The conduct is admissible only if the following conditions are satisfied:

1) It must be in reference to the suit or proceeding or in reference to any fact
in issue therein or relevant thereto.

2) It must directly influence or be influenced by any fact in issue or relevant

fact.
The conduct remains inadmissible if any one of the other two conditions is not
satisfied.
In Nagesha V. State of Bihar, AIR, 1996 SC119, it was held by the Court if the
first information is given by the accused himself, the fact of his giving
information is admissible against him as an evidence of his conduct.
27.What is confession? Discuss the evidentiary value of confession of co
accused?
Introduction:
The term Confession is defined in Section 25 of the Indian Evidence Act. It says
that no person has to confess his offence in front of the police.

Under the Indian Evidence Act, confession comes under the heading of
admission, and that implies that confessions are a subset of admissions.
However, surprisingly, the term “confession” has not been defined in the Act.
Justice Stephen in defined confession as “an admission which is being made by
a person who has been charged with any crime and such admission suggests
the inference that he had committed the crime”. In the case of Palvinder Kaur
v. the State of Punjab the Supreme Court stated that, for any admission to be a
confession, the person in such statement must either admit the guilt in terms
or admit substantially all the facts which constitute the offence. The court
further stated that a mixed up statement which contains some confessional
statement will still lead to the acquittal of accused and hence isn’t a
confession.

However, in the case of Nishi Kant Jha v. the State of Bihar, the Supreme Court
held that there was nothing wrong or relying on a part of the confessional
statement and rejecting the rest. The court further stated that when there is
enough evidence to reject the exculpatory part of the accused person’s
statements, the Court may rely on the inculpatory part.

Evidentiary value of a confession U/S 30 of IEA

The Supreme Court in the case of Pancho v. State of Haryana held that
confessions of a co-accused aren’t the substantive piece of evidence and that it
can only be used to confirm the conclusion drawn from other evidence in a
criminal trial.

The court further stated that the trial court cannot begin on the basis of the
confession of the co-accused to form its opinion in a case. Rather, the courts
must analyse all the evidence which are being adduced, and on being satisfied
with the guilt of accused, might turn to the confession in order to receive
assurance to the conclusion of guilt which the court has reached on the said
evidence. Referring to previous apex court verdicts, the court said it is not
obligatory to take the confession into account and that it is the discretion of
the court. Conclusion

On the whole, Section 30 has introduced an innovation of a serious nature and

is capable of causing a miscarriage of justice, unless it is properly understood
and applied. The Apex Court has in various cases held that this provision must
be very strictly construed so as to avoid doing injustice. Justice Reilly once said,
that the discretion which the courts have been empowered with by this
provision must be exercised very cautiously and with the greatest caution and
with care, so as to make sure that its real intent is observed, and the
probability of doing injustice can be removed.

28.Explain the conditions of relevancy of dying declaration?

According to section 32 clause (1) of Indian Evidence Act, the requirement of
dying declaration is as follows:

1. The statement made by the deceased may be oral or written. But in

some cases it can be made with sign and gesture depends on the
condition of the deceased
2. The statement must be as:

• Cause of death- when the statement is made by the person as to the

cause of his death or as to any of the circumstances of the transaction
which was the reason for his death not cover all the incident which are
not relevant in order to determine the cause
• Circumstances of the transaction- the statement made by the
deceased is only related to the circumstances of the transaction will
result in the death of the deceased, remoteness or having no nexus
which can not be connected with the transaction have no value.
 • Resulted in the death- the deceased statement should have the cause
and circumstances that will clearly reason for his death or ultimately
result in his death.

Pakala Narain Swami v. Emperor Case

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

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

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

Dying declaration Case laws and landmark Judgments

Lakhan v. State of M.P.[18] in this case supreme court provides that, when the
condition is satisfied that the dying declaration made by the deceased is true
and can be relied upon, as the declarant is found to be conscious and mentally
fit while making the statement, and the statement made by him proven to be
voluntarily and no compulsion was there while making the statement and can
be put for the sole basis of conviction. In that situation there is no need for
corroboration is necessary.
In case of multiple dying declarations consists which consist in the form of
irregular interval and contradict each other, dying declaration recorded by the
person who is entitled to record like magistrate then there is no doubt and can
be found to be reliable. But in circumstances where it was observed that the
statement made by the deceased is not voluntarily but due to some force or
compulsion, then the court raised suspicion on that dying declaration and Court
should re-examine the statement of witness and other facts in order to
determine the truth.

In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court set
forth some measure to test the veracity in the case when there is more than one
dying statement. The court provides that there must be a series of examinations
in order to determine the truth. If the statements provide different versions and
do not couple with given facts, then the court must opt for other evidence in
their record to clarify the things so that truth can be inferred.

In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme Court

while deciding the issue of multiple dying declarations, which varying from other
statements and have no series related to each other, this will raise a doubt in
the eyes of court to whether the statement should be believed or not, in order
to clear the issue the Court has given some directions which help to guide while
exercise the judgment by court in such matters, examined.
The Court put forward the point that when multiple dying declarations made by
the declarant, if found either contradictory or are at variance and having no
nexus to each other to a large extent and narrate another version of the story,
then the test of common reasonableness would be applied while examining
which dying declaration is corroborated by circumstantial evidence. Further,
when the dying declaration was made the condition of the deceased at the time
of making of each declaration concerned, medical report of the deceased,
truthfulness of statements made by deceased, possibility of deceased being
tutored, are some of the points which would guide while exercise of judicial
function by court in such matters.

29.Explain the relevance of character evidence in civil and criminal cases.

Refer Q.No.17.

30.Discuss the privileges available to communications between advocates

and clients?
Refer Q.no.7
31.Write a note on Identification parade.
Introduction:
Identification is an important process in the administration of justice. Where
the Court has to know the identity of anything or any person, any fact, which
establishes such identity, is relevant. The identity of person can be established
by the evidence of persons, who know him. Identification parades are held for
the purpose of identifying the persons concerned in an offense or the
properties, which are subject matter of an offense.
During the course of investigation test identification parades are arranged by
the police either in jail or at some other place. Certain persons are brought to
such a place and the accused person mixed with them. In case of Property, the
property recovered is mixed with some other properties / articles of similar
description. Then the Magistrate or the Panch witnesses will ask the witness to
identify the property in question or the accused person. Under Section 9 the
evidence given by such witness is relevant.
Section 9 Provides for the Identification "parade of persons" The purpose of
Identification test is to test the memory and veracity of a witness, who claims
to identify an accused person, who is said to have participated in a crime.

Section 9. Facts necessary to explain or introduce relevant facts

Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or
which establish the identity of anything or person whose identity is relevant, or
fix the time or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.

Precautions to be taken for carrying identification parade:

Following precautions to be taken for carrying identification parade
1) It should be fair and seems to be fair and every precaution must be taken to
exclude any suspicion of unfairness or risk of erroneous identification to
through the witness.
2) The investigation officer concerned with the case against the suspect, if
present, must not take part in conducting the parade.
3) The parade should be arranged by an officer who is not a police officer.
4) All unauthorized persons should be strictly excluded from the place of
identification parade.
5) The witnesses should be prevented from sitting with the suspect before he
is paraded with other persons, and witnesses who have previously seen a
photograph or description of the suspect should not be led in identifying the
suspect by reason of their collection of the photograph or description, as for
instance by being shown the photograph or description before the parade.
6) The suspect should be placed among the persons who are as far as possible
of the same age, height, general appearance (including standard or dress and
grooming) and position in life. Two suspects of roughly of similar appearance
should be paraded with at least twelve other persons. Where, however, the
two suspects are not similar in appearance or where there are more than two
suspects, separate parades should be held using different persons on each
parade.
Relevant Case law:
1) Vijayan v. State of Kerala. (1999) 3 SCC 54: 1999 SCC (Cri) 378
In this case where the photograph of the accused was shown to the identifying
witness and also the same was published in local newspapers, the
identification parade was worthless. When the witness, identifying at a parade,
failed to identify in court, the TI Parade identification lost its important.
32.Explain the circumstances in which secondary evidence relating to
documents may be given.
Refer Q.No.12
33.Define evidence? “ The rules of evidence are in general same in civil and
criminal cases” Explain?
Something will be accepted as evidence by the court if it is admissible as
evidence in legal proceedings to use the term of Montrose, only when the
following three basic conditions are met:

• Relevance
• Materiality
• Admissibility

1- Relevance

Legal Significance of Relevance

The concept of relevance plays a key role in finding legal facts. The two basic
principles of evidence law are:

• Without exception, the court may receive anything that is not relevant
as evidence.
• Whatever is relevant is admissible as evidence by the court, subject to
many exceptions and qualifications.
Conceptions of Logical Relevance

In legal proceedings, evidence may be adduced to prove a fact only if the fact is
relevant. Relevance is a concept of relationships. No fact in itself is relevant; it is
only relevant in relation to a different fact.

Evidence is relevant if the probability ratio is different from 1:1. However,

evidence may also be relevant for other reasons, such as providing for a richer
narrative or helping the court understand other evidence. For these reasons,
witnesses are routinely permitted to give their names, and at the trial, parties
may present charts, diagrams, and floor plans.

2.Materiality and Facts-in-issue

That fact A is relevant to fact B is not enough to prove fact A in court.
Furthermore, B must be a fact of “material.” The materiality of facts is
determined in a particular case by the law applicable to that case. It depends on
the law defining the offense charged against the accused in a criminal
prosecution and the law setting out the elements of the legal claim brought
against the accused in a civil trial.

The law does not permit the abduction of evidence to prove facts that are
immaterial or are not in question. In the broader sense that encompasses the
concepts under discussion, relevance is often used. Evidence is sometimes
described as irrelevant, not because there is no logical inference that can be
drawn to the proposal being sought to prove, but because it is not material or
uncontroversial.

3- Admissibility

Admissibility and Relevance

Another condition for receiving evidence in legal proceedings must be met. Legal
rules prohibit the presentation of evidence in a trial even though it is relevant to
a factual proposition of material and subject-matter. These rules render
inadmissible the evidence they apply to and require that the judge exclude it.

Examples- Rule against hearsay evidence, the rule against character evidence.

There is no clear distinction between admissibility and receivability. It is

common to describe as inadmissible irrelevant evidence or evidence of an
immaterial fact. What this means is that if it is meaningless or immaterial, the
tribunal will refuse to obtain proof. But, importantly, for reasons other than
irrelevance and immateriality, the court also excludes evidence. It is also
necessary to keep apart the concepts of admissibility and materiality. This is
because admissibility or exclusionary rules serve purposes and rationales other
than the law defining the crime or civil claim before the court, and it is this law
that determines the materiality of the facts in the dispute.

Burden of Proof in criminal and civil proceedings

In criminal cases, the general rule is that the prosecution bears the burden of
proving the guilt of the defendant and the substantive law defines what the
prosecution has to prove to convict the defendant. This will usually include
elements of the mens rea and actus real, for example, the prosecution must
prove all the elements of the offense set out in the Criminal Code when pursuing
a conviction for theft.

While the rules of civil proof do not incorporate the same principles enshrined
in criminal proceedings (i.e., the accused in criminal proceedings is presumed
innocent until proven guilty by the prosecution), the well-established general
rule on the incidence of the legal burden of proof in civil proceedings is that” he
who claims must prove.” The legal burden of proving a fact in a civil trial is, to
put it simply, on the party that claims that fact. Hence, in civil cases, the
plaintiff’s first burden of proof lies. This burden of proof, however, will shift to
the defendant if the defendant denies the allegations and finds a positive default
such as “counterclaim.” The burden of proof in such a case lies with the
defendant.

Judicial Admissions not conclusive in Criminal Cases

The issue may be life and death in criminal cases. So the court will take due care
not to be convicted and punished by an innocent person. So it is expected that
the courts will critically examine the reasons behind the confession. Because
sometimes innocent people may admit the commission of the crime to cover up
another person, for fame, or by his criminal act to be known throughout the
world.

Admission shall be made without reservation in criminal cases. When we say the
accused admitted, we say he admitted that every and every criminal element of
the alleged offense usually includes mens rea and actus reus elements.
However, the party may admit the truth of the whole or any part of the other
party’s case in civil proceedings.

Illustration: The plaintiff lodged a lawsuit against the defendant for breach of
the amount of 10,000 contracts. Here, half of the complainant may be admitted
by the defendant and the rest may be denied. In such a case, the issue (the point
of disagreement) rests solely on the complainant’s unadmitted claims, and the
court shall give judgments on the admitted amount.

34.Explain the relevancy of the facts forming the part same transaction with
illustrations?
Section 6.

Evolution of Res Gestae

Originally the Romans used Res gestae to mean acts are done or actus. It was
described by the English and American writers as facts forming the same
transaction. Res gestae are the facts that form a part of the same transaction
automatically or naturally. They are the acts that speak for themselves. Due to
their association with the main transaction, these facts become relevant in the
nature of the fact in question. Circumstantial facts are admitted to be part of res
gestae, i.e. it is part of the original evidence of what happened. Statements can
also accompany physical events such as gestures. Things said or acts done in
course of transaction amounts to res gestae.

Facts that are so linked to a fact in question that they form part of the same
transaction, although not in question, are relevant, whether they occurred at
different times and places at the same time.

The principle embodied in law in Section 6, is usually referred to as the res

gestae doctrine. The facts that can be proved as a part of res gestae must be
facts other than those in question but must be linked to them. Although hearsay
evidence is not admissible, it may be admissible in a court of law when it is res
gestae and may be reliable proof. The reason behind this is the spontaneity and
immediacy of such a statement that for concoction there is hardly any time. Such
a statement must, therefore, be concurrent with the acts that constitute the
offense or at least immediately thereafter.

Res gestae contains facts that are part of the same transaction. It is, therefore,
appropriate to examine what a transaction is, when it begins and when it ends.
If any fact does not connect to the main transaction, it is not a res gestae and
therefore inadmissible. Res gestae includes elements that completely fall
outside the definition of modern hearsay, such as circumstantial evidence of a
state of mind, so-called “verbal acts“, verbal parts of acts, and certain non-
verbal behavior.
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.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done
by A or B or the by-standers at the beating, or so shortly before or after it as to
form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the 1Government of India by taking part
in an armed insurrection in which property is destroyed, troops are attacked
and gaols are broken open. The occurrence of these facts is relevant, as
forming part of the general transaction, though A may not have been present
at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence.
Letters between the parties relating to the subject out of which the libel arose,
and forming part of the correspondence in which it is contained, are relevant
facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A.
The goods were delivered to several intermediate persons successively. Each
delivery is a relevant fact.
35.Write a note on professional communications.
Section126.

No barrister, attorney, pleader or vakil shall at any time be permitted, unless

with his client’s express consent, to disclose any communication made to him
in the course and for the purpose of his employment as such barrister, pleader,
attorney or vakil, by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment, or to disclose any
advice given by him to his client in the course and for the purpose of such
employment:

Provided that nothing in this section shall protect from disclosure -

(1) Any such communication made in furtherance of any 87[illegal] purpose.

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course
of his employment as such, showing that any crime or fraud has been
committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, 88[pleader], attorney or

vakil was or was not directed to such fact by or on behalf on his client.

Explanation - The obligation stated in this section continues after the

employment has ceased.
Illustrations

(a) A, a client says to B, an attorney-"I have committed forgery and I wish you
to defend me".

As the defence of a man known to be guilty is not a criminal purpose, this

communication is protected from disclosure.

(b) A, a client, says to, B, an attorney-"I wish to obtain possession of [property

by the use] of forged deed on which I request you to sue".

This communication, being made in furtherance of a criminal purpose, is not

protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, " to defend

him. In the course of the proceedings B observes that an entry has been made
in A’s account book, charging A with the sum said to have been embezzled,
which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment, showing that
a fraud has been committed since the commencement of the proceedings, it is
not protected from disclosure.

36.No confession made to a police officer shall be proved as against a person

accused of any offence. Comment? What are the exceptions recognized
under the Indian Evidence act?

Confession to Police, Police Custody and effect of police presence

The essence of commission can be found in different statutes but Section 24 to
30 of Evidence Act and section 162 to 164 of CrPC specifically deals with a
confession.

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

considered as a confession for the purpose of proving that confession against
that person who is accused to the case”. The terms explained under Section 25
of this Act has vital importance which makes sure that any confession made by
the accused to the police officer under any circumstances until provided, is
totally not admissible as evidence in a court of law against the accused to prove
his guilt.
Section 26 prohibits the judicial bodies to prove the guilt of accused by his
confession which is made to police in police custody. Section 26 imposes a
partial ban on provisions stated in Section 25 that confession made to the police
officer in police custody may be admissible if the confession recorded in the
immediate presence of a magistrate.

Confession in further discovery of facts

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

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

Exceptions:

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

Section 24 of the same Act describes different instances when a confession on

the basis of such instances becomes irrelevant. Section 24 of Indian Evidence Act
provides that a confession made by a person who is accused of some offence is
irrelevant if such confession comes out of any inducement, threat or promise
and such instances have proceeded from a person in authority like police,
magistrate, court etc., the other condition of this section is that inducement,
threat or promise should be in reference to charge of any offence and all such
inducements, threat or promise should give benefit of temporal nature.
For better understanding, we may divide the complete structure into 4 different
essentials that are:

• The confession must be out of inducement, threat or promise,

inducement, etc.
• Such confession should proceed from a person in authority.
• It should relate to the charge in question.
• It should have the benefit of temporal nature or disadvantage.
Thus, when these conditions are fulfilled then the confession becomes
irrelevant.

37.Explain the scope and extent of privilege conferred on professional

communications as essential in the Indian evidence act.
Refer Q.No.35
38.Discuss the provisions relating to character evidence.
Refer Q.No.17.
39.Explain “may presume” shall presume and conclusive proof?
Introduction:
The presumption has an important place in evidence law.
According to the evidence act we need evidence in court to prove the fact. But,
sometimes there are few such facts which are deemed to be proved on the
grounds of presumption.

Section 4 May presume

Whenever it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved or may call for
proof of it.
A court has the discretion to presume a fact as proved or to call for
confirmatory evidence as the circumstances require. In such cases, the
presumption is not a hard and fast rule. The presumption is Juris et de jure.
The court is free to presume any fact or not as the presumptions are about the
question of facts. It may regard such fact as proved, unless and until it is
disproved or may call for the proof of it.
If in a case the court has an option to raise the presumption and raises the
presumption, the distinction between two categories of presumptions ceases
and the fact is presumed, unless and until it is disproved. It is open to the Court
upon proof of a marriage on a certain date, either to regard as proved the
subsistence of the marriage on a subsequent date unless and until it should be
disproved or else to call for proof of it.
Example – When a man has not been heard for seven years by those who
would have naturally heard of him if he had been alive, his death shall be
presumed. Such death is called “Civil Death’

Shall presume
Whenever it is directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.
The court is bound to presume a fact as proved. The presumption is an
irrebuttable presumption as it is the presumption of law. Whenever there is a
provision to the effect, “that the court shall presume a fact,” the court cannot
exercise its discretion, but in such circumstances, the court shall have the
liberty to allow the opposite party to adduce evidence to disprove the fact so
presumed. If the party is successful in disproving it the court shall not presume
the fact.
Example:
Under section 89 of the Evidence Act, “the court shall presume that every
document, called for and not produced after notice to produce attested,
stamped and executed in the manner required by law.”

“Conclusive proof”:
When one fact is declared by this Act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it.
Section 112 of the Indian Evidence Act, 1872 is a good example of conclusive
proof. It has been said in the section 112 that – “The fact that any person was
born during the continuance of a valid marriage between his mother and any
man, or within 280 days after its dissolution, the mother remaining unmarried
shall be conclusive proof that he is the legitimate son of that man unless it can
be shown that the parties to the marriage had no access to each other at any
time when he could have been begotten”
40.Discuss the scope of cross examination and Explain the questions lawful in
cross examination.
Introduction:
In general, the purpose of cross-examination is discrediting a witness or expert's
credibility. International arbitral tribunals have sustained that the evidence of a
witness who has been cross-examined may carry greater weight than the
evidence of a witness who has not since it is a "powerful tool for getting at the
truth. The value of this method of ascertaining the truth lies in the personal
contact between the witness, who has no idea of what questions may be asked
him, and the personality of the advocate who puts the questions to him.
In addition, cross-examination complements the witness statement with
information that has not been provided, allows to amend vagueness or
falsehood in the declaration, to check facts are set in their proper contexts, and
to reveal contradictions.
Moreover, cross-examination has a persuasive function, giving counsel a chance,
through the choice of questions, to focus the arbitral tribunal's attention on
relevant issues of the case, as well as to events or key evidence to support that
party's case. One of the best tools to be rhetorical is using leading questions, a
type of questioning in that the form of the question suggests the answer. The
tribunal will exercise discretion as to the probative weight to give to a cross-
examination as opposed to written evidence and may draw adverse
inferences in case the witness is not available for cross-examination.
Nevertheless, in international arbitration these rhetorical advantages might
involve higher information and credibility risks than in jurisdictions where
witness statements do not substitute direct oral testimony. Calling a witness for
cross-examination turns a name on a statement into a person more likely to be
remembered by the tribunal, and gives the tribunal the chance to assess their
credibility and to seek information through their own questions. In short, cross-
examination gives a platform to an opposing witness.
Questions lawful in cross-examination Section 146
When a witness is cross-examined, he may, in addition to the questions herein
before referred to be asked any questions which tend-

1. to test his veracity.

2. to discover who he is and what is his position in life, or
3. to shake his credit, by injuring his character, although the answer to such
questions might tend directly or indirectly to criminate him or might
expose or tend directly or indirectly t expose him to a penalty or
forfeiture.

41.Explain the circumstances in which judgement of the courts become

relevant.
It includes sections regarding the judgment of court of justice when relevant
from Section 40 to Section 44 which talks for the same.

Section 40– The existing judgment will be relevant even in a second suit trial.

Section 41– The certain judgments in probate, matrimonial, admilarity, and insolvency
jurisdiction are relevant.

Section 42– The effect of judgement, order, or decree is relevant, other than those which
are given in section 41.

Section 43– Judgment, order or decree are irrelevant, other than those mentioned in
section 40-42.

Section 44– If the previous judgment may proved fraud, collusion or incompetency of a
court then such judgment does not have the effect of res judicata.

Section 40- Previous judgments relevant to bar a second suit or trail

Under the Indian Evidence Act, 1872, Section 40 defines that, the existence of
any judgment, will be relevant even in a second trial. Here the rule of ‘res
judicata’ applies. It simply means that if any judgement which prevents the court
from giving attention to such a suit or petition then it will be a relevant
fact.

The question arises: what is “res judicata”?

Many of you may have heard about this word. “Res” means “subject matter”
and “judicate” means “already decided”. So, it says that the matter is already
decided. It is defined under Section 11 of Cr.P.C.

Shrinivas Krishnarao Kango v. Narayan Devji Kango And Others (1954)

This case belongs to a member of a joint undivided family. Both Siddopant and
Krishnarao were members of the Kulkarni family. Krishnarao died in 1897 and
left behind a widow (Rukminibai) who was the sixth defendant. Siddopant died
in 1899 leaving his son Gundo. Gundo died in 1901 leaving behind his widow
(Lakshmibai) who was the fifth defendant. Lakshmibai adopted a son Devji, who
died in 1935 leaving his three sons. The three sons and a widow (Akkubai) who
was the fourth defendant. In 1944, Rukmanibai adopted the plaintiff and now
that adopted son was the Petitioner in this case and the Respondent was Devji.
So, the Plaintiff was claiming for the half share from the family property. But the
Defendant denied the truth and validity of the plaintiff’s adoption. They further
said that the only ancestral property belongs to the family of Watan’s Land. In
this case, the court held that the adoption of the plaintiff was valid or true and
also said that this question was no longer in dispute. The trial court held that the
plaintiff was entitled to the share.

Section 41- Relevancy of certain judgment in probate, etc, jurisdiction

The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling
of a court exercising probate (relating to will), matrimonial (marriage, divorce),
admiralty (war claims) or insolvency jurisdiction is relevant.

This section consist of two parts:

1. It deals with judgement in rem i.e. a kind of declaration about the

status of a person and is effective to the entire world whether he was
a party or not.
2. A judgement in personam is when a judgment is given to the parties
(e.g. a tort or a contract action) which binds only the parties and is not
relevant in any subsequent case.
Such judgment is conclusive proof. It refers to a presumption of a particular set
of facts which cannot be overruled or changed by additional evidence or
argument.

Syed Askari Hadi Ali Augustine v. State (Delhi Administration) & Anr (2009)

In this case, Shamim Amna Imam was a Testatrix (a person who made a will or
gave a legacy). She was the owner of the properties in question. She executed a
will in favour of the appellant i.e Syed Askari Hadi Ali on 3.5.1998 and after that,
she died on 23.5.1998. Syed Askari Hadi Ali filed an application regarding the
will. He also applies for a grant of mutation in respect of the property but the
request for mutation could not be accepted due to certain reasons:-
 1. The appellant could not produce the original copy of the will.
2. The property which was in question was under possession.
3. And the Title Suit which was filed by the Testatrix against the appellant
was pending in the civil court.
So, after this many appeals were made and due to lack of proof which was
essential in this case; finally the court said that it is not a fit case where we
should exercise our discretionary power or jurisdiction under Article 136 of the
Indian Constitution have regard to the facts of the case and the circumstances
regarding the same.

Section 42- Relevancy and effect of judgments, orders, decrees, other than
those mentioned in Section 41 of the Indian Evidence Act

The effect of judgment or order will be relevant, except those which are
mentioned in section 42.

• Judgements are relevant if they are related to matters of public nature.

• But such judgment, order or proclamation is not conclusive proof of
which they state.
Illustration: – X sues Y for the murder of his brother i.e. Z. Y alleges the existence
of a public right of a licensed gun which he used for his protection against Z. The
existence of an order in favour of the defendant. Similarly in a suit by B against
A for the murder of C in which A alleged the existence of the same right of way,
is relevant but it is not conclusive proof that the right way of existence.

Vishnu Dutt Sharma v. Daya Sapra on 5 May, 2009

In this case, the Respondent who was Daya Sapra had borrowed a sum of rupees
1.5 lakhs from the Appellant Vishnu Dutt Sharma on 10-August,1999. After
reminder by appellant to respondent, the respondent issued a cheque on 20-
October,1999, but the cheque received by the appellant with remark of
insufficient funds. Then he filed a petition against the respondent. Earlier it was
said that it was the matter of ‘Res Judicata’ but the final judgement was given
that it was not the matter of ‘Res Judicata’. So the appeal is allowed however
the facts, issues and circumstances of this case, there shall be no order as to
costs.
Section 43- Judgment, order etc, other than those mentioned in Section 40 to
42, when relevant

Judgment, order or decree are irrelevant other than those mentioned in section
40, 41 and 42. In this, the previous judgments are not relevant with concern with
the subsequent proceeding.

Let us understand with an illustration. ‘X’ prosecutes ‘Y’ for stealing his horse
from him. ‘Y’ is convicted. Afterwards ‘X’ sues to ‘Z’ for the horse which ‘Y’ had
sold to ‘Z’ before his conviction. As between ‘X’ and ‘Z’, the judgment which was
against ‘Y’ is irrelevant.

In the case of The Duchess of Kingston’s Case, it was held that the Dowager
Duchess of Kingston, Countess of Bristol, was tried and found guilty of the charge
of bigamy by her peers, the members of the House of Lords.

Admissibility of judgments in civil and criminal matters

Admissibility of judgments means that the quality of being acceptable or valid,

especially as evidence in a court of law. So here is some admissibility of judgment
in civil and criminal matters: –

• The principle of ‘Res Judicata’ may apply between the parties in civil
suits.
• If the proceedings of civil and criminal cases are for the same cause or
reason, then the judgment of the civil court would be relevant if the
conditions of any sections regarding 40 to 43 are satisfied, but it cannot
be said that the same would be conclusive except as provided in
section 41.
• In a criminal case, section 300 of C.r.P.C, it is said that once a person is
convicted, he may not be examined again for the same offence if the
conditions which are mentioned there are satisfied.

Emperor vs Bhagwandas Tulsidas on 20 August, 1945

In this case, it was held that the accused murdered Dharamsey and Mr. Haji, and
he says that the matter will come under Section 42 of the Indian Evidence Act
under matters related to public policy. But it was held that the matter related to
such an unnatural death will not come under public concern. Hence, the
examination of certain facts is not relevant under any provision related to the
Indian Evidence Act and therefore unacceptable in evidence.

Section 44- Fraud or collusion in obtaining judgment, or incompetency of

court, may be proved

Section 44 of Indian Evidence Act says that if the previous judgment is proved
fraud, collusion (secret or illegal cooperation) or incompetency of court then
such judgement does not have the effect of res judicata.

• There are at least 2 parties to a suit or proceeding.

• If any party may show a judgment, order, or decree which is relevant
under section 40, 41, or 42.
• The act only provides that the value of a judgment may be ineffective
if these three things are present in that case that are: –

1. Incompetency of the court

2. If there is fraud
3. If there is collusion

Asharfi Lal vs Smt. Koili (Dead) By L.Rs. (1995)

This case is related to the land reform dispute and Zamindari abolition as in this
case, Raja Ram was the brother of Smt. Koili and husband of Smt. Nanki. And
here the Asharfi Lal who was an appellant and he said that he was the only heir
of Raja Ram and said for the possession of agricultural land of Raja Ram but the
Smt. Koili denied that the Asharfi lal was the son of Raja Ram. Earlier the
judgment was in the favour of Smt. lal but afterwards the evidence of record
which were produced in the consolidation proceedings the Deputy Director has
found that Ashrafi lal was the son of Raja Ram and the only heir.

42.Explain the scope of sections 113A and 114A under Indian Evidence Act.
Abetment as to Suicide by a Married Women- Section 113A deals with the
presumptions of abetment of suicide of a married woman either by her
husband or any of his relatives. The court has mentioned few essentials to
check that whether a suicide executed by married women is inconsistent with
the essentials mentioned under the provision, and if they are consistent to it
then the court in such cases will presume that such suicide has been abetted
either by the husband or his relative. The essentials of this provision are:

(i) The incident of suicide was committed within a period of seven years from
the date of her marriage; and

(ii) Her husband, or his relative, has subjected her to cruelty as according to the
Section 498A of IPC.

In Chhagan Singh v State of Madhya Pradesh, the victim was badly beaten by
the accused at some place and for such guilty act the accused explains the
reasons that the victim was stealing rice and because of it, he has beaten the
victim. But just after the few days of the incident victim committed suicide. The
court in this matter acquitted the accused or discharged the accused of offence
mentioned under Section 113A of Indian Evidence Act as the court didn’t find
any evidence subject to cruelty and also mentioned that the essentials of Section
113A are not fulfilled with the facts of the cases, hence in the case of murder
legal presumptions of Section 113A is not a part of it. Because the death of the
person is caused due to other reasons and the legal principles of 113A cannot
be just applied blindly as one has to see the nexus of it. The advantage of the
presumption of Section 113A can only be granted if either her husband or any
of his relative has treated the women with cruelty in any sense.

Abetment of Suicide to married Women for the purpose of

Dowry- Section 114B of Indian Evidence Act deals with the principles of
presumption related to abetment of suicide to married women for the purpose
of dowry. This Section empowers the court to presume that the husband and his
relative are the abettors of suicide and the wife was subjected to cruelty or any
torture related to demand of dowry. While explaining the concept of Section
113B the court explains certain essentials which are to be fulfilled for raising any
presumption related to abetment of dowry death. The essentials of Section
113B are completely the same as of essentials of Section 113A of Indian
Evidence Act.
But a thin line difference between Section 113A & 114B is that the presumption
of Section 114B only comes to the picture if the prosecution has certain proofs
that the cause of death was cruelty or maltreatment or harassment for dowry
demand. Hence, under this Section, the presumption is carried only when the
prosecution proves the case.
In, Hem Chand v State of Haryana the couple married on 24 May of 1962. The
wife left her husband’s home just after 2 months of her marriage and explained
the reason to her parents that her husband is demanding for a TV and a
refrigerator. After listening to such demands her father out of his hard money
gave her around Rs. 6,000 and she left for her matrimonial home. But the
husband’s desire was not finishing and he again asked her to get twenty-five
thousand rupees from her home as he is willing to buy some real estate
property. Thereafter the accused took his wife to her parents’ home and said
that he’ll take back her only if he will be paid Rs. 25,000. One year after she came
back to her matrimonial home with Rs. 15,000 and promised the balance
amount will be paid soon. But on the same day, she died of strangulation in her
husband’s home. The trial court and both Supreme Court found accused to be
guilty and convicted on carrying the presumptions that her husband has
performed cruelty against her and the reason for her death could be the
husband’s cruelty for the purpose of dowry.

43.Write a note on accomplice.

Introduction:
Section 133 of the Indian Evidence Act deals with Accomplice. The word
Accomplice has not been defined in the Indian Evidence Act Act., therefore be
presumed to have been used in its ordinary sense.

1) Who is an accomplice?

An Accomplice is a person who along with others has take part in the
commission of crime, a partner in wrongdoing.

2) Definition of Accomplice:

The word accomplice has not been defined in the Evidence Act. According to
Judicial decisions, an accomplice is one of the guilty associates or partners in
the commission of crime or who in some way or the other is connected with
the commission of crime or who admits that he has a conscious hand in the
commission of a crime principles criminals

3) Competency of an Accomplice as a Witness

According to Section 133 of Indian Evidence Act, "An accomplice shall be a
competent witness against an accused person; and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an
accomplice." The evidence of an accomplice, though it is uncorroborated, may
form the basis for conviction. The Court may presume that an accomplice is
unworthy of credit unless the corroborated in material particulars. The rule of
law says that an accomplice is competent to give evidence and the rule of
practice says that it is almost always unsafe to convict upon his testimony
alone. Under the English Law, the evidence of an accomplice against accused is
no evidence at all.

4) Kinds / Categories of Accomplice

There are Three kinds of Accomplice. An accomplice many come under any one
of the following categories.

i) Principle Offender first degree or second degree

ii) Accessories Before the Crime

iii) Accessories after the crime

i) Principal Offender first degree or second degree

Principal offender of first degree is a person, who actually commits the crime,
while principal offender of second degree is a person who abets or aids the
commission of crime.

Example - A administers poison through B to kill C. Ais the principle offender in

first degree, and B is the principal offender in the second degree.

ii) Accessories Before the Fact /Crime

Accessories before the Fact, those persons, who abet the commission of a
crime, are called "Accessories Before the Crime" They do not participate in
commission of crime but make necessary arrangements.

Example: A provides facilities or gives financial aid to B to commit Murder of

'D' Here A is Necessary before the fact
iii) Accessories after the crime / Crime
Who receive or protect or comfort the person who committed the crime. In
simple words, person who help the accused in escaping from punishment.

Example

X commits murder of Y, If Z is knowing that X committed the murder and gives

shelter to X, Z is called accessory after the crime/ fact

BY
ANIL KUMAR K T LLB COACH