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.
 History of law of Evindence in India
The origin of the concept of evidence can be traced back to
the Ancient Hindu Period, for that Hindu Dharma Shastra
has to be referred. It has been laid down in the Hindu
Dharma Shastras that “the purpose of any trial is the
desire to find out the truth”. Yajnavalkya says: “Discarding
what is fraudulent; the King should give decisions in
accordance with the true facts
Three kinds of evidences has be laid down by Vasistha which
are, Likhitam Sakshino Bukhti Parmanam Trividham
Smritham i.e. Lekhya (Document), Sakshi (Witnesses) and
Bukhthi (Possession).
 History of law of Evidence
• Evidence under Muslim law is divided under the heads of oral
and documentary. The oral evidence is further sub-divided into
direct and hearsay .Furthermore, the law givers followed the
following order of merit, viz., full corroboration, testimony of a
single individual and admission including confession.
Documentary evidences were also recognised by the Ancient
Muslim law. However, Oral evidence appears to have been
preferred to documentary. Documents executed by certain
class of people were not accepted by the court like women,
children, drunkard, criminals etc. Besides, when documents
were produced, courts insisted upon examining the party
which produced them.
 History of law of Evidence
• The present enactment governing evidence’s admissibility in the court
of law is a result of British period. Before this time, the rules of
evidence were based upon the local and traditional legal systems of
different social groups residing in India. These rules were different for
almost every social group, caste, community etc which created chaos
in the legal prevalent legal system of that time. After the advent of
British East India Company in the dominion of India, it was granted
royal charter by King George I in 1726 to establish Mayor’s courts in
Bombay, Madras and Calcutta.  These courts followed the English rules
of evidence law. On the other hand, outside these towns in mufassil
courts, there were no definite law relating to evidence. Hence,
Muffasil courts were having unfettered power in relation to evidence
laws. This difference in laws resulted in chaos in the Muffasil courts
 History of law of Evidence
• There was a dire necessity for the codification of the rules of law. In 1835
the first attempt was made to codify the rules of evidence by passing the
Act, 1835. Between 1835 and 1853 about eleven enactments were
passed dealing with the law of evidence. But all these enactments were
found inadequate.
• In the year 1868, a commission was set up under the chairmanship
of Sir Henry Mayne. He submitted the draft, which was later found
unsuitable to Indian conditions. Later in the year 1870, this task of
codification of the rules of law of evidence was entrusted to Sir James Fitz
James Stephen. Stephen submitted his draft and it was referred to the
select committee and also to High Courts and members of Bar to elicit the
opinion, and, after gathering opinion, the draft was placed before the
legislature and it was enacted. And at last, “The evidence Act ” came in to
force on 1st September, 1872.
 History of law of Evidence
• The Evidence Act, identified as Act no. 1 of
1872, and called as the Indian Evidence Act,
1872, has eleven chapters and 167 sections,
and came into force on 1st September 1872
• Spread Over a period of approximately 148
years since its enactment, the Evidence Act has
predominantly retained its original form except
certain amendments from time to time. 
 Course: Law of Evidence
 

 
Syllabus
•Unit I:
•Introduction to Law of Evidence:
•Purpose of the Law of Evidence, History of the Law of Evidence, The British Principles of Evidence , Salient Features of the Indian Evidence Act, 1872 , Kinds of Evidence.
•Unit II:
•Theory of Relevancy:
•Presumptions, Facts in Issue, Relevant Facts, Admissibility and Relevancy.
•Unit III:
•Facts, Relevancy (Section 6-16):
•Doctrine of Res Gestae, Proof of Conspiracy, Problems of Relevancy of Facts not Otherwise Relevant, Proof of Custom, Facts Concerning State of Mind and Body.
•Unit IV:
•Admissions and Confessions(Section 17-31):
•General Principles Concerning Admissions, Involuntary Confessions made by “Inducement, Threat or Promise, Confession made to Police Officer , ‘Custodial’ Confessions, Statements Leading to Discovery of Facts, Confession by Co-accused.
•Unit V:
•Statements by Persons who cannot be called as Witnesses:

•Persons who cannot be called as Witnesses, Dying Declaration, Other Statements, Statements made in Judicial Proceedings, Statements made under Special Circumstances.
•Unit VI:
•Relevancy of Judgments(Section 52-55):

•Relevance of Previous Judgments, Judgments as Conclusive Proof, Judgments When Irrelevant, Fraud or Collusion in Obtaining Judgment.
•Unit VII:
•Relevancy of Opinion and Character:
•Expert Evidence, Opinion in Other Cases when Relevant, Relevance of Character.
•Unit VIII:
•Oral and Documentary Evidence:
•Primary and Secondary Evidence, Circumstances under which the secondary evidence is allowed, Oral Evidence, Documentary Evidence, Public and Private Documents, Exclusion of Oral Evidence by Documentary Evidence, Rules for Interpretation or Construction of Documents.
•Unit IX:
•Presumptions(Section 79-88 and 111-A-114-A):
•Presumption as to Documents, Presumption as to Public Documents, Presumption as to Ancient Documents.
•Unit X:
•Burden of Proof and Onus of Proof (Section 101-114-A):
•Facts which need not be proved, Principles of Burden of Proof, Standard of Proof in Civil and Criminal Proceedings, Presumptions.
•Unit XI:
•Estoppel (Section 115-117)
•Doctrine of Estoppel , Classification of Estoppel , Estoppel, Res Judicata and Waiver, Promisory Estoppel and Equitable Estoppel.
•Unit XII:
•Competency and Compellability of Witnesses (Section 133, 114):
•Competency of Witnesses, Compellability of Witnesses (Privileged Communications), Accomplice Evidence, Hostile Witness.
•Unit XIII:
•Examination of Witnesses:
•Kinds of Examination of Witnesses, Cross-examination of Witnesses, Contradictory and Corroborative Evidence, Powers of Judges regarding Witnesses, Improper Admission and Rejection of Evidence, Leading Questions, when it can/can not be asked.
• 
•Suggested Readings:
•1. Lal Batuk, The Law of Evidence, 13th Edition, Central Law Agency, Allahabad, 1998.
•2. Munir M., Principles and Digest of the Law of Evidence, 10th Edition (in 2 vols), Universal Book Agency, Allahabad, 1994.
•3. SaradhiVepa P., Law of Evidence, 4th Edn. Eastern Book Co., Lucknow, 1989.
•4. Singh Avtar, Principles of the Law of Evidence, 11th Edn. Central Law Publications.
•5. Chary V. Krishnama, The Law of Evidence, 4th Edn. S.Gogia& Company.
• 6. Woodroffe and Ali Amir, Law of Evidence, 20th Edition 4 Vol. Set,Lexis Nexis, 2017
• 7.Phipson, on evidence
• 8.Wigmore, on Evidence
Salient features of law of evidence in India

• Based on common law

• It is procedural law
• It is not exhaustive
• Applies to judicial proceedings
• Discretion of the court
• Both oral and documentary evidence
• Protection and privileges of witnesses
• The object is to find out truth
 Evindence

• Evidence Means – To show clearly or to

discover , to ascertain , to prove
• Law of evidence is a system of rules for
ascertaining the controverted questions of
facts in judicial enquiries.
• The word evidence is derived from the latin
word evident or Evidere .
 Object of Law of evidence in India

- To help the courts to ascertain the truth.

- To prevent protracted inquiries.
- To avoid confusion in the minds of judges which
may result from the admission of evidence in
access.
- To prevent indiscipline in the admission of
evidence by enacting a correct and uniform rule
of practice.
• There are 167 section and 3 parts in indian evidence
act.
• The law of evidence is the lex fori - which governs
the court – whether witness is competent or not;
whether a certain fact requries to be proved by
writing or not ; whether certain evidence proves a
fact or not ; that is to be determined by the law of
the country where question arises,where the
remedy is sought to be enforced and where the
court sits to enforce it.
 Section 3
• Interpretation clause. —In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:—
• 
• “Court”. —“Court” includes all Judges  and Magistrates,  and all persons, except arbitrators, legally authorized to take evidence.
• 
• “Fact”. —“Fact” means and includes—
• (1) any thing, state of things, or relation of things, capable of being perceived by the senses;
• (2) any mental condition of which any person is conscious.
• 
• Illustrations
• (a) That there are certain objects arranged in a certain order in a certain place, is a fact.
• (b) That a man heard or saw something, is a fact.
• (c) That a man said certain words, is a fact.
• (d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
• (e) That a man has a certain reputation, is a fact.
• 
• “Relevant”. —One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
• 
• “Facts in issue”. —The expression “facts in issue” means and includes— any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding,
necessarily follows.
• Explanation.— Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,  any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
• Illustrations
• A is accused of the murder of B. At his trial the following facts may be in issue:—
• That A caused B's death;
• That A intended to cause B's death;
• That A had received grave and sudden provocation from B;
• That A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
• 
• “Document”. —“Document”  means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations A
writing  is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document. “
• 
• Evidence” .— “ Evidence” means and includes—
• 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 documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.
• “Proved” .—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it
exists. “
• 
• Disproved”. — A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist. “
• 
• Not proved”. — A fact is said not to be proved when it is neither proved nor disproved. 
• 
• Principal facts(factum probandum)
• Evidentary facts(factum probans)

• Types of evidences

• Direct evidence – it is testimony of the witnesses as to the principal fact to be proved. It also includes production
of an original document. The fact of the marriage between certain person may be proved by producing the
wedding photograph.
• Circumstantial evidence-
• Real evidence
• Hearsay evidence
• Primary evidence
• Secondary evidence
• Oral evidence
• Documenatary evidence
• Conclusive evidence

• In Criminal case the degree of proof is beyond reasonable doubt.

• In civil case the degree of proof is preponderance of probablities .
 Section 4 - presumption
• May Presume. Shall presume .Conclusive proof
• "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.

• "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.
•
"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.

Presumption is an inference of fact drawn from other known or proved facts

• presumption 1 --- Presumption of fact
2--- presumption of law
1- Presumption of fact or Natural presumption---
They are always permissive ,rebuttable and do not constitute a branch of jurisprudence. Inference is drawn from logic.
They are indicated in the act by the expression “may presume “ example section 6,7,8,9, 86,87,88,114
2- Presumption of law or Artificial presumption-
They are always obligatory ,may be rebuttable or irrebuttable and constitute a branch of juriprudence. There is no application of logic.
Presumption of law is of two type 1---Rebuttable presumption of law
2- Irrebuttable presumtion of law
1-Rebuttable presumption of law - They are indicated in the act by the expression “shall presume “ example section 79 to 85, 89 to 105 ,107,108,
A man is presumed innocent until he is proven guilty.
2- Irrebuttable presumption of law - They are indicated in the act by the expression
Conclusive proof example section – 41( final decree)
Section 82 of IPC – Nothing is an offence which is done by a child under seven years of age
 Section 5,6
• Section – 5 Evidence may be given of facts in issue and relevant facts
• Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
Explanation.-- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil Procedure 1.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue:--
A's beating B with the club;
A's causing Bs death by such beating;
A's intention to cause Bs death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which
he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure 1.

• Difference between adimisibility and relevancy

•  
1)Relevancy is based on logic and probability

Admissibility is not based on logic but on strict rules of law.

• 2)The rules of relevancy are described from Section 5 to Section 55 of Evidence Act, 1872.

The rules of admissibility is described after Section 56 of Evidence Act, 1872

• .3)
• The rules of relevancy declare what is relevant.
• Res gestae – things said or done in the course of transaction .
• Ratten Vs the Queen (1971)3 WLR 930
• Get me the police please she spoke in her distress by giving her address to telephone operetor.
• Sawal das v state of Bihar AIR 1974 where “ A “ assaults on “B “on the neck with a knife and
this is seen by bystanders who exclaim A is killing B. This exclamation is part of same
transaction.
• R vs Bedingfield (1879)14 Cox C.C.341
• A women with throat cut came out a room and before she died , said “ oh dear Aunt see what
bedingfield has done to me” Justice Cokeburn held it to be not admissible as res gestae because
the statement was made after the incident was over.
• Hearsay evidence and Res gestae
• R. V foster(1834) 6C&P.325 Where witness has seen only a speeding vehicle but not accident.
The injured person explained what had happened with him in the accident to witness .Court
• Held the statement of the deceased to the witness to be admissible in the evidence as res
gestae.
 Section 7 in The Indian Evidence Act, 1872

• Facts which are the occasion, cause or effect of facts in issue.

• —Facts which are the occasion, cause, or effect, immediate or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things under which
they happened, or which afforded an opportunity for their occurrence or
transaction, are relevant.
• Illustrations
• (a) The question is, whether A robbed B. The facts that, shortly before the robbery,
B went to a fair with money in his possession, and that he showed it, or mentioned
the fact that he had it, to third persons, are relevant.
• (b) The question is, whether A murdered B. Marks on the ground, produced by a
struggle at or near the place where the murder was committed, are relevant facts.
• (c) The question is, whether A poisoned B. The state of B’s health before the
symptoms ascribed to poison, and habits of B, known to A, which afforded an
opportunity for the administration of poison, are relevant facts.
 Section 8
 Motive, preparation and previous or subsequent conduct
 : 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 offence 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.
 Explanation 1. -- The word conduct in this section does not include statements, unless those statements accompany
and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any
other section of this Act
 Explanation 2. -- When the conduct of any person is relevant, any statement made to him or in his presence and
hearing, which affects such conduct, is relevant.
 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.( It is motive)
 (b) A sues B upon a bond for the 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, is relevant(it is motive)
 . (c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that
which was administered to B, is relevant. (d) The question is, whether a certain document is the will of A. The facts
that, not long before, the date of the alleged will, A made inquiry into matters to which the provisions of the alleged
will relate; that he consulted vakils in reference to making the will, and that he caused drafts of other wills to be
prepared, of which he did not approve, are relevant.(It is Preparation)
 (e) A is accused of a crime. The facts that, either before, or at the time of, or after the alleged crime, A provided
evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed
or concealed evidence, or prevented the presence or procured the absence of persons who might have been
witnesses, or suborned persons to give false evidence respecting it, are relevant.(it is conduct)
 (f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence -- "the police are
 Motive
Motive is a moving power which impels action for a definite result or to put in differently, motive is that which incites or stimulates a person to do an act
Supreme Court of India has said motive is something which prompts a man to form an intention and knowledge, is an awareness of consequences of the act.
Motive assumes an important role in cases relying solely on circumstantial evidence because, in such cases, motive itself is seen as a circumstance
In Chunni Lal v. State of U.P., AIR 2010 SC 2467.

the accused, who expected of inheriting his childless Uncle’s property, was frustrated when the Uncle got married and had a child. The uncle was murdered and the accused
was found to be struggling to get the property transferred in his name. These facts were held to be relevant since they established a motive on part of the accused to murder
the deceased.

• Preparation:
• Preparation is an inchoate Act. It means an arrangement, measures or design necessary for commission of a crime or certain thing. Preparation by itself is not a crime except
preparation to wage war against the Government of India, preparation to commit dacoity and sedition

example of preparation - the sharpening of knife before an affray in which the knife was used is relavant.
again - it is relavant to show that the accused hired or bought a revolver a few days before the murder.

Previous and subsequent conduct

• Previous conduct:
• A conduct to be relevant need not be only previous or subsequent. Both are relevant. Under section 8 previous declaration of intention, threat or attempts to commit an
offence are instances of previous or antecedent Conduct and are relevant. In antecedent conduct there is declaration of intention or threat. Such type of conduct may
influence or is likely to influence the fact in issue or any relevant fact.
• A woman and her paramour were accused of murdering her husband. She had been heard to say of her husband. “I live a most unhappy life with him. I wish his death. If he
cannot die I will kill myself.” It is relevant.
• Subsequent conduct:
• Subsequent conduct of a party or person or his agent is relevant under the section. Sudden change of life, silence on part of the accused, false statement, suppression of
evidence, running away after occurrence are instances of subsequent conduct. Illustrations (f), (h) and (i) explain the same. Presence of accused at a place where ransom
demanded was to be fulfilled and then action of fleeing on spotting the police party is a relevant circumstances and is admissible under this section
• Explanation 1 – it excludes the admissibilty of the statement distinguished from conduct.
• But it allows if the statements accompany and explain act other than statements
• For example if person is running down in street in a wounded condition calling out the name of assailant . Here
what the injured person says is accompanying and explaining the conduct and is relavant under section 8
• Explanation -2 -conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects
such conduct, is relevant.

• Queen -Empress v Abdullah (1885) 7 all 385 (F.B.)

• The accused was prosecuted for murder of young girl , a prositute. The murder took place in morning sufficient
light enable her to indentify the assailant ,who cut her throat with Razor . She was taken to police station and
then to a hospital where attempt were made to know the name of accused. But she was unable to speak .
• When the name of abdullah (accused) was mentioned she made an affirmative sigh with her hand . She died
the third day

• Majority opinion – held that section 8 is not applicable . To attract section 8 the conduct must be influenced
directly by fact in issue /relavant facts and not by the imposition of words spoken by third person.

• Dissenting opinion ( J . Mahmood ) - The conduct is relavant under section 8.

 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.
• Illustrations:
• (а) 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 В for a libel imputing disgraceful conduct to A; В affirms that the matter alleged to be libelous 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 В 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 В.
• (с) 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.
 Section 10
• Things said or done by conspirator in reference to common design:
• Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring,
as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

• Illustration:
• Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
• The facts that В procured arms in Europe for the purpose of the conspiracy, С collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings
advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which С had collected at Calcutta, and the contents of a letter written by H giving an account of the
conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom
they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

• A criminal Conspiracy is the agreement of two or more persons to do an illegal act, to do a legal act by illegal means. In other words, A joint evil intent is necessary to constitute crimes. Criminal
Conspiracy is a partnership in crime, and each conspiracy consists of a joint and mutual agency for a prosecution of a common plan. A conspiracy being an agreement, it necessarily follows that there
must be at least two persons. One person alone can not conspire.
       Section 120(A) of the Indian penal code 1860 defines 'criminal conspiracy'  and Section 10 of the Indian Evidence Act 1872 says that things said or done by conspirator in reference to common
design.

• The condition of relevancy under section 10 are –

•
1-There must be reasonable ground to believe that two or more persons have entered into consipiracy.

• 2-The act in question must have been done after the time when the intention to conspire was first entertained by any of them

• 3-The act must have been done in reference to their common intention.

• Evidence of such an act can be given for the following purpose

• 1- To prove the existence of conspiracy

• 2-To show that a particular person was a party to the conspiracy

• Section 10 - necessary evil
• sect. 10 has a potential to rope in the innocent with the guilty and to rope in people who have genuinely
abandoned and regretted. Illustration to sec 10 has been described to unnatural .
• Justice B.P. Sinha said – sec.10 is deliberately enacted to make such act/statement of a co- conspirator
admissible against the whole body of conspirators, because of nature of crime.
• A conspiracy is hatched in secrecy and executed in darkness .Naturally it is not possible for the prosecution
to connect each isolated act/statement of one accused with the act/statement of the others. (Badri Rai v
state of bihar AIR 1958)- stolen ornaments hus up case

• Keher singh v state (delhi admn. AIR 1988) – SC considered a mere act of two people isolating themselves
at the house top and subsequentely avoiding questions about the content of their conversation as enough
reason to believe that they were conspiring about some thing.

• Mirza Akbar v Emperor ( AIR 1940 PC 176 )

• Mirza Akbar was tried along with the actual murderer Umar Sher, and with Mst. Mehr Taja who had been
the wife of the murdered man, Ali Askar. The guilt of Umar Sher was not really open to doubt. He was
practically caught red-handed. He was caught running away with a single barrel shot gun in his hand, the
barrel of which smelt as if freshly discharged. There was an empty cartridge jammed in the barrel. When
the appellant came up from the field in which he had been working about half a mile away from the scene
of the murder he asserted that Umar Sher was innocent and should be released. Umar Sher's main
defence seems to have been absence of motive.
 Section -11 (Alibi)
• 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.

• Sec 11 is residuary section – facts which are not relevant under sect 6 to 10 and 12 to 55 are relevant under section 11.
Sec 11 is controlled by sec 32 – section 11 of evidence act is not what a deceased person chose to predicate about a thing,but that he
mentioned it at all whether he predicated of it were true or false, then and then only it is a case outside the section 32
Full Bench decision of the Kerala High Court in C. Narayanan vs. State of Kerala 1992 Cr. LJ 2868, Thomas J (as he then was) observed on a
review of the case law. “There is nothing in sec. 11 of the Act to suggest that it is controlled by any other section.
1-Facts- inconsistent with any fact in issue or relevant fact
• 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 as they
cannot coexist.
• A is illiterate is a fact ,similarly A wrote a defamatory article damaging the fame of B , is another fact . Now these two facts are
inconsistent with each other.
• There are generally 5 classes of cases that arise for consideration under this clause
• (A) ALIBI - The Latin word ‘Alibi’ actually means ‘elsewhere’. The given terminology is put to use when the accused takes the
appeal that when the incident took place, he was at some other place. 
• (B)NO CONNECTION OF HUSBAND TO DEMONSTRATE THE ILLEGITIMACY OF THE CHILD:( NO ACCESS OF HUSBAND TO
SHOW ILLEGITIMACY OF ISSUE)
• Since the legitimacy of the child indicates a cohabitation between husband and wife. For proving false the validity, the
husband has to prove that he had no cohabitation with his wife during the probable time of begetting as he was abroad.
• (C) SURVIVAL OF THE ALLEGED DECEASED:
• Assuming that ‘A’ is accused of murdering ‘В’ on 20th August 1996 in Delhi. But ‘A’ tried to explain and led evidence to show
that ‘В’ was alive on 27th December 2004. Both of these facts are admissible under section 11 only because these are not
consistent with one another.
• (D) THE OCCURRENCE OF AN OFFENCE BY A THIRD PERSON:
• Assuming that ‘A’ is accused of the murder of ‘B’. ‘A’ leads clues for confirmation that ‘В’ was murdered by ‘C’. This is
justifiable being contradictory with fact in issue.
• (E) SELF-INFLICTION OF HARM:
• Assuming that ‘A’ is accused of the murder of ‘B’. ‘A’ can lead evidence under 11 (1) to prove that ‘В’ had committed suicide.
The evidence would be considered as admissible.

• Statement under section 161 of Cr.P.C. are wholly inadmissible .

• Munshi prasad and other Vs state of Bihar AIR 2001 – the presence of the accused at a distance of 400-500 (in panchayat
meeting) yards between place of occurrence cannot be said to be presence elsewhere.
• Fact showing highly probable –
• Kalu mirza vs emperor (1909) 37 Cal.91 – where a person is charged with cheating ,evidence
can be given of the fact that he belonged to an organization of habitual cheats as this would
make it highly probable that he committed the crime.

• Baij lal vs Ram pratap AIR 1982 - a person a part of his land to one buyer and subsequently the
other part to another buyer. Both buyer struggling to against each other for identification of their
respective area. The court held that the deed first in time should prevail. That made it highly
probable that only the remaining area was sold to other.

• Fact showing highly improbable

• Santa singh vs state of punjab AIR 1956
• the witness testifies that they saw the deceased being shot from distance of 25 feet . The
medical report showed that the nature of the wound was such that it could have been caused
only from a distance less than 3 feet. Thus expert opinion rendered the statement of the witness
highly improbable.
• .
 Section 13
Facts relevant when right or custom is in question.—
• Where the question is as to the existence of any right or custom, the following facts are relevant:—
• (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was
inconsistent with its existence;
• (b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or
departed from. Illustration
• The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a
subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right,
or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.
• Right
It is the capacity of a person to control the actions of others.
• The word “right” used in Section 13 has been the subject matter of controversy among High Courts. The Calcutta High Court held that the
word ‘right’ means public and incorporeal rights but does not include corporeal right.
• On the other hard the Allahabad, Bombay and Madras High Courts have given wider interpretation. According to these High Courts all
rights recognized by this section include right of ownership as well as incorporated rights
• Custom:
A custom is a particular rule which has existed from the time immemorial and has obtained the force of law in a particular locality. For
example- the HMA ,1955 lays down – the prohibited degree of relationship for marriage purposes.
At the same time it also provides that such marriage can be solemnised between persons in whose community there is custom to that
effect.
• It must be ancient i.e. its existence is beyond human memory—“Time whereof the memory of man runneth not to the contrary.”
• It must be continuous and conform It must be certain, define and constant.  It must be compulsory and not optional.
• It must not be against morality or public opinion. It must be reasonable. It must not be expressly forbidden by law or statute.
• A transaction- in ordinary sense of the word is some business or dealing which is carried on
or transacted between two or more persons. It must be genuine and bona fide. Under this
section ‘transaction’ also includes a contract but it is not confined to a dealing with property
between person inter vivos.
• Instance- which simply means an example, something which has already been occurred.
• A plea of res judicata being an instance in the present suit is admissible. Documents produced
in support of inter-parties suits viz., sale deeds, mortgage deeds, are admissible under this
section.
ADMISSIBLITY OF JUDGMENT
 Gujja lal vs fateh lall (1881) I.L.R. case Court took the view that former judgement was not a
transaction.
Allahabad high court came to a different conclusion in The Collector Of Gorakhpur vs Ram
Sundar Mal (1934) : that such judgment were admissible under section 13.
Supreme Court in Tirumala Tirupati Devasthanams vs K.M. Krishnaiah (1998), held that a judgement
in a dispute over the same land between two other persons could be used by a party in a
case in which the same land is in dispute though he was not a party to the earliar proceeding.
State of mind, or of Body or Bodily Feelings:sec 14

• Main part of Section 14 talks about two things:

• First part talks about facts showing the existence of state of mind which includes intention, knowledge, good faith, negligence, rashness, ill-
will or good-will towards particular person are relevant. Focus is given on particular person, which means state of mind is not towards
general person, but a particular person.
• Second part of Section 14 says, facts showing the existence of any state of body or bodily feeling are Relevant.

• existence of state of mind

• In order to prove intention-the fact of Accused previously attempted to shoot down the deceased.
•
In order to prove knowledge- The facts that the dog had previously bitten other persons and they had complained of it ,for this would
clearly prove that he had knowledge of ferocious tendency of his
• In order to prove ill will - The fact of previous publications by A respecting B, showing ill- will on the part of A towards В is relevant, as
proving A’s intention to harm B’s reputation by the particular publication in question.
• In order to prove good faith - A is accused of the dishonest misappropriation of property which he had found, and the question is whether,
when he appropriated it, he believed in good faith that the real owner could not be found

• state of body or bodily feeling

• Aveson Vs Kinnaird (lord) (1805) 6 East 188
• This was a action action upon a policy of life insurance on the life of the plantiff wife.She having died ,the question was ,whether the
statement of the good health of the accused given at the time of effecting the policy were false.At about the in question , she had received a
visitor whom she told in the course of casual conversation that she was in bad state of health . The court allowed the visitor to give evidence
of this fact.
• Section 14 are as follows:
• A is accused of receiving stolen goods knowing them to be stolen. If he is found of other stolen goods in his
possession. Here it shows his state of mind.
• Similarly, A is accused of delivering to other a counterfeit coin which, at the time of delivery, he knew it to
be counterfeit. If he is found of other counterfeit coins in his possession then, this shows state of mind of
A.
• Two Explanation under Section 14:
• Explanation-1: A fact is said to be relevant as showing state of mind only when it shows state of mind
related to particular matter (or person) and not general matter.
• Illustration related to fact showing state of mind related to particular matter:
• A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was
injured. The fact that B was habitually negligent about the carriages which he let to hire, is irrelevant.Here,
it is matter related general thing.
• The fact that B’s attention was drawn on other occasions to the defect of that particular carriage, is
relevant. It is relevant because it is related to particular carriage/matter.
• Similarly, A is tried for the murder of B by intentionally shooting him dead. The fact that A, on other
occasions shot at B is relevant, as showing his intention to shoot B. Which shows intention/state of mind
towards particular matter.
• The fact that A was in the habit of shooting at people with intent to murder them, is irrelevant. Which
shows intention/state of mind towards general matter.
• Explanation-2: Previous conviction of the person is also relevant under section 14. Read illustration:
• A is accused of delivering to other a counterfeit coin which, at the time of delivery, he knew it to be
 Admission
• Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceeding proves that the other party
has admitted his case, the work of the court becomes easier.
           An Admission may be proved by or on behalf of the person making it under certain exceptional circumstances.  The Evidence Act,
Sections 17 to 23 deals with the Admissions.  
Definition of Admission:
•
According to 17 of Indian Evidence Act, "An admission is a statement, oral or documentary or [contained in electronic form, which
suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances
hereinafter mentioned."

There are three parts of the definition:

1) It defines term "admission"

2) It says that an admission will be relevant only if it is made by any of the person specified in the Act.

3) "Admission" is Relevant only in the circumstances mentioned in the Act.

•
Meaning of Admission:
•
            The expression 'Admission' means "Voluntarily acknowledgment of the existence or truth of a particular fact". But In the Evidence
Act, the term 'Admission' has not been used in this wider sense.  It deals with admissions by statements only oral or written or contained
in an electronic form. Admission plays a very important role in judicial proceedings. If one party to the suit or any other proceeding proves
that the other party has admitted his case, the work of court becomes easier. An Admission must be clear, precise and not vague or
ambiguous
Characteristics of Admission :  1) It may be oral or documentary
2) It is a statement to suggest any inference to any fact in issue or relevant fact.
3) It must be made by any person prescribed under the Act; and
• 4) It must be made under the circumstance prescribed under the Act.
•   5)  The admission must be clear and unambiguous
• Admissibility of Admissions
• According to Phipson the admission is relevant on the following reasons.
• 1-Admissions as waiver of proof:
• An admission of a party is a statement of fact which dispenses or waives with the necessity of proving the
fact against him.
• Under the proviso to Section 58 the court may ask some other independent evidence to support the
admitted facts. 
• 2. “Admissions as statement against interest:
• It is natural for a man to make statement in his favour. An admission, being a statement against the interest
of the maker should be supposed to be true, for it is highly improbable that a person will voluntarily make
false statement against his own interest.
3. “Admissions as evidence of contradictory statements: Where there is contraction between the statements
of the party and his case, the contradiction is relevant. For example, A sues B upon a loan. The account
book shows that the loan was given to C. The statement in his Account Book contradicts his case against B
• 4. “Admissions as evidence of truth:The statements made by the party about the facts of the case,
whether they may go in his favour or against his interest, should be relevant as representation or reflecting
the truth as against him
• Forms of Admissions:
• There as two types of admissions viz., (1) Judicial, and (2) Extra-judicial Admissions.
• A judicial admission has not been dealt with by the Evidence Act

• 1. Judicial Admission:
• The judicial or formal admission is addressed to the court and is the part of the proceeding. It is made on the record in the file of the court
• Judicial admission are subject matters of the Civil Procedure Code and the Code of Criminal Procedure. The procedures have been laid
down in civil suits in Order 12, Rule 2; Order 8, Rules 3,4 and 5; Order 10, Rule 1; Order 11, Rule 8; Order 12, Rule 4 and Order 14, Rule 3 of
the Civil Procedure Code.
• In Code of Criminal Procedure there are provisions, viz. Sections 143, 251(5), 255(2), 263(g) and 271.
• Bishwanath Prasad v Dwarka Prasad (1974)1 SCC 78- supreme court opined that“admissions, if true and clear, are by far the best proof of
the fact admitted. It is also held that an admission in an earliar suit is a relevant evidence against the plaintiff.
• 2. Extra-judicial Admissions:
• The extra-judicial or informal admission is statement of fact made by the party previously in course of life or business which is inconsistent
with the facts to be established at the trial. The extra­judicial admissions are called evidential admissions.

• Admission by conduct:
• Admissions by conduct are not included in this section. It has been dealt with under section 8 of this Act. But in some circumstances the
conduct, active or passive, becomes evidence for an admission. For example a woman went to the school for registration of her child, but
she did not enter the name of the father and his profession. On asking she kept silence. Her silence may mean that she does not know the
name of the father or she is not interested to disclose it. Whatever view is taken it may be an admission for illegitimacy of the child.
• Who can make admissions (Section 18 ,19, 20) -
•
An Admission is relevant if it is made by:

1) A party to the proceeding;

2) An agent authorized by such party.

3) A party suing or being sued in a representative character making admission while holding such
character.

4) A person who has a proprietary or pecuniary interest in the subject matter of the suit during the
continuance of such interest.
• 5) Person from whom the parties to the suit have derived their interest in the subject matter of the
suit during the continuance of such interst (Predecessors –in-title).sec.18
• 6)Person whose position and liability it is necessary to prove as against any party to the suit. sec. 19
• 7) person to whom a party to the suit has expressly refferred for information in reference to a
matter in dispute. Sec. 20
• Admission • Confession
• If a statement is made by a party in civil
If a statement made by a party charged with crime, in criminal
proceeding it will be called as admission  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.
• The expression ‘Admission’ means
• “ voluntary acknowledgement of the existence
• Confession is species hence all confessions are admissions but all
or truth of a particular fact” admissions are not confessions. 

• Confession is the term for admission of guilt 

made in the criminal side.
• An admission is genus

• The Term Admission is applicable to a

• A confession, if voluntarily and free, may in the discretion of the
statement, oral or in writing made by a party on judge or magistrate, by itself be accepted as conclusive proof of
civil side. matters confessed and is alone sufficient to warrant a conviction. 

• An admission is not conclusive proof of the

matters admitted and is always rebuttable.
• Self-serving Statements - self-serving statements are those, which
serve, promote or advance the interest of the person making it.
Hence they are not allowed to be proved. They enable to create
evidence for themselves.
• ii) Self-harming - Self-harming statements are those which harm or
prejudice or injure the interest of the person making it. These self-
harming statements all technically known as “Admissions" and are
allowed to be proved.
• An admission is an evidence against the party who has made the
admission and therefore it can not be proved against him. He himself
cannot prove his own statement, otherwise everyman if he were in
difficulty or view of one, might take declaration to suit his own case
 Section 21
• .
• Admissions are relevant and may be proved as against the person who makes them or his representative in
interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in
interest, except in the following cases—
• An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the
person making it were dead, it would be relevant as between third persons under section 32.
• An admission may by proved by or on behalf of the person making it, when it consists of a statement of the
existence of any state of mind or body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
• An admission may be proved by on behalf of the person making it, if it is relevant otherwise than as an
admission.
• 1- when the statement should have been relevant as Dying declaration or as that of a deceased person under
section 32 - Illustration b and c
• 2- statement as to bodily felling or state of mind – illustration d and e
• 3- When otherwise relevant- where immediately after a road accident , a person pulled up to the injured who
then made a statement as to the cause of the injury. This statement may be proved by or on behalf of the
injured person,
• Where A says to B ‘’ You have not paid back my money and B walks away in silence . A may prove his own
statement as it has influenced the conduct of a person whose conduct is relevant
• Section 23. – Agreed settlement to not give evidence .
• Admission in Civil cases, when relevant
• In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or
under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given
• Explanation - Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of
any matter of which he may be compelled to give evidence under Section 126.

• Maxim- Interest rei publicae ut finis litium – it is in the interest of state that there should be an end of litigation.
• communication Without Prejudice- means – I am making you an offer ,which you may or may not accept ,but ,if you do not
accept it , my having made it is to have no effect at all.
• Or I make you an offer and if you do not accept it ,this letter is not to be used against me.

• The main intention behind this section is to encourage parties to settle their difference amicably by protecting their interest
and privilege and to avoid unnecessary litigation. It is a protective rule which provides an opportunity to parties to settle their
dispute without prejudice against the right of other one and to buy peace. Lord Mansfield has detected “all men must be
permitted to buy their peace, without prejudice to them, should the offer not succeed, such offer being made to stop litigation,
without regard to the question whether anything is due or not”. The provision is founded on public policy that the interest of
the State is required a finish to litigation
•
field vs commisonner of railways
• Confession”
• The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This section comes under the
heading of Admission so it is clear that the confessions are merely one species of admission. Confession is not defined in the
Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession as “confession is an admission made at any time
by a person charged with a crime stating or suggesting the inference that he committed that crime.”

But In Pakala Narayan Swami v Emperor(AIR 1939) Lord Atkin observed

“ A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab( AIR 1952) the Supreme Court approved the Privy Council decision in Pakala
Narayan Swami case over two scores.
Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which
constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still
lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the
matter or offence, cannot amount to confession.
•
Supreme court takes notice of developments in english law
 Nishi Kant Jha v State of Bihar(AIR 1959) the Supreme Court pointed out that there was nothing wrong or relying on a part of
the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. When
there is enough evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on the
inculpatory part.
• Forms of confession
A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession
• and when it is made to anybody outside the court, in that case it will be called extra-judicial confession.
• It may even consist of conversation to oneself, which may be produced in evidence if overheard by another.

• Sahoo v. State of U.P.(AIR 1966) the accused who was charged with the murder of his daughter-in-law with whom he was always
quarreling was seen on the day of the murder going out of the house, saying words to the effect : “I have finished her and with
her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of
a confession that it should be communicated to some other person.

• Judicial confession- Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial
confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state
of mind.

• Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in court. It is not
necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a
prayer. It may be a confession to a private person. An extra-judicial confession has been defined to mean “ a free and voluntary
confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate
seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing
his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a
conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person which includes even
judicial officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164 of the
Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply.
Judicial confession
• • 1- Extra-judicial confession are those
1. Judicial confessions are those which are
made to a judicial magistrate under section
164 of Cr.P.C. or before the court during
committal proceeding or during trial.
• 2-To prove judicial confession the person to
whom judicial confession is made need not
be called as witness.
• 3-Judicial confession can be relied as proof of
guilt against the accused person if it appears
to the court to be voluntary and true
• 4-A conviction may be based on judicial
confession.
Extra-judicial confession
which are made to any person other than
those authorized by law to take
confession. It may be made to any person
or to police during investigation of an
offence.
• 2- Extra-judicial confession are proved by
calling the person as witness before whom
the extra-judicial confession is made.
• 3- Extra-judicial confession alone cannot
be relied it needs support of other
supporting evidence.
• 4-it is unsafe to base conviction on extra-
judicial confession.
• Section 24 of Indian Evidence Act - confession caused by inducement, threat or promise, when irrelevant in
criminal proceeding- A confession made by an accused person is irrelevant in a criminal proceeding, if the
making of the confession appears to the court to have been caused by any inducement, threat or promise
having reference to the charge against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him
reasonable, for supporting that by making it he would gain any advantage or avoid any evil of temporal
nature in reference to the proceeding against him.
• Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:
• That the statement in question is a confession,
• That such confession has been made by the accused,
• That it has been made to a person in authority,
• That the confession has been obtained by reason of any inducement, threat or promise, proceeding from
a person in authority,
• Such inducement, threat or promise must have reference to the charge against the accused, and
• The inducement, threat or promise must in the opinion of the court be sufficient to give the accused
ground, which would appear to him reasonable, for supporting that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
• EVIDENTIARY VALUE OF CONFESSION
A confession is substantive evidence against its maker, so that it has been duly
recorded and suffers from no legal infirmity, it would suffice to convict the
accused who made the confession, though as a matter of prudence, the Court expects   some  
corroboration   before   acting   upon   it.   Even   then   slight
corroboration would suffice. But before acting upon a confession, the Court
• 25. Confession to police officer not to be proved.—No confession made to a
police officer shall be proved as against a person accused of any offence.—
• The reason for this rule is stated in queen Empress vs Babu lal (1884) ILR- if
confession to police were allowed to be proved in evidence ,the police would
torture the accused and thus force him to confess the crime which he might not
have committed .
• Sita ram vs state (AIR 1966)– the accused left a letter recording his confession
near the dead body of the victim with the avowed object that it should be
discovered by the police. The supreme court held that confession is relevent as it
is not a confession made to police officer.
• Retracted confession - when a person having once recorded a confession which is
relevant goes back upon it ,saying either that he never confessed or that he
wrongly confessed or confessed under pressure,that is called retracted
confession.
• piyre lal vs state of rajasthan (AIR 1963)
• Confession Of An Accused In Polilice Custody To Any One Else-
Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference which could
be drawn from the circumstance of the case, is that the confession was made at the time
when the accused was in the custody of police and it could not be proved against the
accused. It could not be believed that, when a police officer has seen the accused with
deceased at last occasion, he will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25
and 26, the Police Officer has left the accused in the custody of village head man (pradhan).
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate
and to take extra-judicial confession under section 164 of Cr.P.C which has got more probable
value and it gives an opportunity to make the required warning, that this confession will be
used against the accused and after this warning he records the confession. Under section 26,
no confession made by an accused to any person while in custody of a police officer shall be
proved against him

• section 27- How Much Of Information Received From Accused May Be Proved:
• Section 29 of Evidence Act: Confession otherwise relevant not to become irrelevant
because of promise of secrecy, etc:
'If such a confession is otherwise relevant it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception
practiced on the accused person for the purpose of obtaining it, or when he was
drunk or because it was made in answer to questions he need not have answered,
whatever may have been the form of those questions, or because he was not warned
that he was not bound to make such confession, and that evidence of it might be
given against him.'

In criminal cases, the public interest lies in prosecuting criminals and not
compromising with them. Therefore, where an accused person is persuaded to
confess by assuring him of secrecy of his statements or that evidence of it shall not
be given against him, the confession is nevertheless relevant.

.
• 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence
• When more persons than one are being tried jointly for the same offence, 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 makes such confession.
• 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”.
This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

•
When more than one person is jointly tried , for one and same offence or offences they are called co –accused . Any one
of them is liberty to confess to his own guilt and confession will have the full force of evidence against him .
• But when he records a confession implicating himself as well his other co –accused ,that is called the confession of a co-
accused.

• Now question arises what is value against the other non confessing co- accused.
• Sec 30 provides that confession is relevant against all the accused person
• In the case of Kashmira Singh v. State of MP[1952 SCR 526), the accused Kashmira, Gurudayal who was
the brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw puller in this case
was being jointly accused of conspiracy and killing a child. The Supreme Court in this case issued some
conditions which needed to be fulfilled before taking into consideration the confession of one of the
accused against all others.
• Joint trial: The person who is making a confession and the other accused persons are being tried jointly.
• Same offence: All the accused are being tried for the same offence.
• Confessions: The confession must affect the confessioners as well as the other accused persons.
• 30 of the Indian Evidence Act is in the nature of empowering the Court to take into consideration a
confession made by one of the accused against the others when they are jointly tried. On one hand the
confession, if it is voluntary and is considered true and admissible by the court, of an accused is a very
strong piece of evidence against himself, however on the other hand it is a weak piece of evidence
against other co-accused.
• Acquittal of confessing co accused-
• Prakash dhawal v state of maharastra AIR 2002- the confessional statement of the accused was
recorded by the magistrate under sec 164 ,Cr.P.C. And both the accused jointly tried .thus ,the
requirement of section 30 is satisfied .The evidence became relevant and did not cease to be so
because of the acquittal.
• 32- Cases in which statement of relevant fact by person who is dead or cannot be found, etc .,
is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead,
or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which, under the
circumstances of the case, appears to the Court unreasonable, are themselves relevant facts
in the following cases
• 1- when it relates to cause of death. —When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question. Such
statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
• 2 -or is made in course of business , 3- or against interest of maker.
• 4- or gives opinion as to public right or custom, or matters of general interest.
• 5- or relates to existence of relationship. 6- or is made in will or deed relating to family
affairs . 7- or in document relating to transaction mentioned in section 13, clause (a) 8- or is
made by several persons, and expresses feelings relevant to matter in question.
• Dying declaration – means the statement of a person who has died
explaining the cause or circumstance of his death.
• NEMO MORITURUS PRESUMUNTUR MENTRI – no one when about to die
is presumed to lie . Truth sits upon the lips of dying man.
• Section 30 is a salutary provision of law and has helped in securing
conviction in dowray death cases.
• Dying declaration are admissible because
• 1 – death of declarant
• 2- Necessity- the victim being generally the only eyewitness to the crime.
• 3- sense of impending death – declation are made in extremity when the
party at the point of death , every hope of this world is gone, when every
motive to falsehood is silenced and mind induced to speak the truth.
• Proximate cause
• The statement made as dying declaration must
have a proximate relationship with the actual
occurrence and not remote as observed by the
privy council in the case of Narain
Swami v. Emperor. The statement of a person
should be regarding the cause of death or
circumstances leading to the death of the person
and it should be made by the deceased person.
Distinction between english law and indian law

English law Indian law

• Dying declaration is only • It is relevant in both civil as
relevant in criminal case. well as criminal law
• A declaration made without • The statement will be
appreciation of immediate relevant even if no cause of
or impending death would death had arisen at the time
not be admitted . of the making of the
statement .
Essential requirment of Dying declatration
• 1- To whom the statement is to be made and its form – it could be made to any person –doctor,magistrate
,friend ,relative ,police. Statement could be written ,oral or gesture.
• 2-the person making statement must have died- queen Empress v abdullah- throat of girl was cut she was unable
to speak and she indicated the name of the accused by the sign of her hand ,this held to be relevant as dying
declaration.
• 3-statement must relate to the cause of his death- Palka Narayana swami vs emperor AIR 1939 – deceased made
a statement to his wife that he going to collect the money from accused ( the accused being indebted to
deceased) letter deceased found death in a train . It held that statement made by the deceased to be his wife was
admissible.
• 4- The cause of death must be in question
• 5- the statement must be complete and consistent
• 6- declarant must be competent as a witness – R.v Pike(1829) declaration made by child aged 4 year was held to
be inadmidisible.
• kushal rao v state of bombay AIR 1958
• In this case the deceased made four separate and identical declaration before the doctor ,police ,magistrate and
to other person stating that he has been assaulted by khusal and one other person
• The question was whether accused could be convicted only on the basis of the this declaration or declaration
needed corroboration
• Bombay and calcutta high court –it is weaker type of evidence it needs corroboration.
• Madras high court and supreme court – declration can be relied without corroboration.
• Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the truth
of facts therein stated.-
• Evidence given by a witness in a judicial proceeding, or before any person authorized by law
to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding, the truth of the facts which it states, when the
witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the
way by the adverse party, or if his presence cannot be obtained without an amount of delay
or expense which, under the circumstances of the case, the Court considers unreasonable:
• Provided- that the proceeding was between the same parties or their representatives in
interest;
• that the adverse party in the first proceeding had the right and opportunity to cross-
examine;
• that the questions in issue were substantially the same in the first as in the second
proceeding.
• Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the
prosecutor and the accused within the meaning of this section.”
• The section states that such evidence is relevant in a subsequent proceeding when
• (a) the witness is dead, or (b) the witness cannot be found, or (c) the witness is
incapable of giving evidence, or (d) witness is kept out of the way by adverse party, or
(e) witness’s presence cannot be obtained without any amount of delay or expense
which, under the circumstance of the case, the Court considers unreasonable
• This is subject to 3 conditions
• 1) that the proceeding (i.e. earlier proceeding) was between the same parties or their
representatives in interest; (2) that the adverse party in the first proceeding had the
right and opportunity to cross examine; (3) that the questions in issue were
substantially the same in the first as in the second proceeding.
• Printing telegraph and construction co vs Drucker (1894)
• An evidence which does not satisfy the requirement of the proviso is not admissible.
• Pritam kumar vs Charan singh (AIR 2003) – the plaintiff in the instant case was not a
party to the earlier proceeding on the same subject matter . The judgement in that
case not binding on him.
• “S.34: Entries in books of account when relevant.- Entries in the books of account
[including those maintained in an electronic form] regularly kept in the course of business,
are relevant whenever they refer to a matter into which the court has to inquire, but such
statements shall not alone be sufficient evidence to charge any person with liability.”
• : “Illustration: A sues B for Rs.1000 and shows entries in his account books showing B to
be indebted to him to this amount. The entries are relevant, but are not sufficient,
without other evidence to prove the debt.”
• Priniciple – this section is based upon the principle that entries made regularly in the
course of business are sure to be accurate.
• In State Bank of India vs. Ramayanapu Krishna Rao: (AIR 1995 SC 244),
• Supreme Court observed that the certified copy of ledger accounts maintained in the
regular course of business is admissible under section 34 and can be used as a piece of
evidence corroborating any substantive evidence on record indicating liability if any.
• Mahasay vs. Narendra: AIR 1953 SC 431, the Supreme Court stated that loose sheets of
account have not the same probative force as books of accounts regularly kept.
• 35- Relevancy of entry in public record or an electronic record made in performance of duty:
• An entry in any public or other official book, register or record or an electronic record, stating a
fact in issue or relevant fact, and made by a public servant in the discharge of his official duty,
or by any other person in performance of a duty specially enjoined by the law of the country in
which such book, register, or record or an electronic record is kept, is itself a relevant fact.
• This section is based on principle that public records, viz., public or other official book, register
or record, maintained in performance of official duties by an officer are admissible. Such public
records or documents have got evidentiary value. Following conditions have to be satisfied
before any document is made admissible:
• 1. An entry must be contained in public or official record.
• 2. It must be made by a public servant.
• 3-It must be made by public servant in discharging of his official duties.
• 4. It must be an entry stating a fact in issue or a relevant fact.
• Rajendra kumar vs Srichandra Nararain singh (1970) – Municipal record of persons death of
birth or death is relevant to prove the date of birth or death of person concerned.
• You may type the answer on your word file and send or you may write the
answer in your notebook and take the screenshot then send it to the
• gyanendra.tripathi@iudehradun.edu.in
• Time – 30 minutes
• Maximum 150 words per answer

1-What do you understand by fact and fact in isssue.

• 2- Explain the doctrine of Res geaste.
• 3- When the conduct of any person is relevant ,any statement made to him or
in his presence
• and hearing ,which affects such conduct,is relevant. Explain this statement.
 Section 45. Opinions of experts

• When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of
handwriting, or finger impressions, the opinions upon that point of persons specially skilled in such foreign law,
science or art,  or in questions as to identity of handwriting  or finger impressions are relevant facts.
Such persons are called experts.
• Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are
relevant. 
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing
the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are
relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is
proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by
different persons, are relevant.
• The term opinion means something more than gossip or of hearsay, it means judgement or belief ,that is a
belief or conviction resulting from what one thinks on a particular question
• sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons,
which is commonly called in our day to day practice as expert’s opinion. These provisions are exceptional
in nature to the general rule that evidence is to be given of the facts only which are within the knowledge
of a witness. The exception is based on the principle that the court can’t form opinion on the matters,
which are technically complicated and professionally sophisticated, without assistance of the persons who
have acquired special knowledge and skill on those matters. Conditions for admitting an expert opinion are
following:-

a)      That the dispute can’t be resolved without expert opinion and

b)      That the witness expressing the opinion is really an expert.
 
Who is an expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence Act that
an ‘Expert’ means a person who has special knowledge, skill or experience in any of the following----
1)      foreign law,
2)      science
3)      art
4)      handwriting or
5)      finger impression

and such knowledge has been gathered by him—

a)      by practice,
b)      observation or
c)      proper studies.
• Murari Lal v. State of M.P.AIR 1980 SC531
• Is it necessary to corroborate Expert Evidence
• Supreme Court appears to have settled the issue by stating that on the facts of a
particular case, a court may require corroboration of a varying degree. There can be no
hard and fast rule, but nothing will justify the rejection of the opinion of an expert
supported by unchallenged reasons on the sole ground that it is not corroborated. The
approach of a court while dealing with the opinion of a handwriting expert should be to
proceed cautiously, probe the reasons for the opinion, consider all other relevant
evidence and decide finally to accept or reject it.
• Evidence of handwriting expert
• In the case of State of Maharashtra v. Sukhdeo Singh[AIR 1992], the Apex Court
opined that before a Court can act on the opinion evidence of a handwriting expert two
things must be proved beyond any manner of doubt, namely, (i) the genuineness of the
specimen/admitted handwriting of the concerned accused and (ii) the handwriting
expert is a competent, reliable and dependable witness whose evidence inspires
confidence.
 Sec.45A:-Opinion of Examiner of Electronic
Evidence
Provision
• In a proceeding when 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 or Electronic
Evidence referred to in Sec.79A of
I.T.Act, 2000 is a relevant fact.
 
The examiner of electronic record is
also treated as an expert.
• Sec 45 A is inserted by I .T.
(amendment ) Act 2008.
Illustration/Example
• a)   Expert opinion in respect of a particular
hardware or software in issue are relevant.
 
b)   The copyright of a computer
programme of the plaintiff is infringed. The
plaintiff shows that there is chain of
similarities between his programme and
defendant’s programme. The defendant
replied that the area of the alleged
similarity are mere coincidence and
generally this path is used by many
programmers in such circumstances. Here
an appropriately qualified expert can give
evidence about the nature of the routine
and code in question.
 Section 46

•  Facts bearing upon opinions of experts - 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.

• The effect of the provision is that when the opinion of an expert is relavant and has been cited ,any fact which will support
his opinion or contradict it will also become relavant.
• Mohd jahid vs state of tamil nadu AIR 1999 SC 2416- in this case doctor opinion conducting post mortem and statement
found in text book was compared . Prosecution made suggestion to doctor on the basis of statement found in
authoritative text book . Doctor disagreed with the text book without giving any reason. Court held that doctor opinion
can not be relied .
• Sec 47 -
• Opinion as to handwriting, when relevant: When the Court has to form an opinion as to the person by whom any
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.
• Opinion as to handwriting, when relevant:
• When the Court has to form an opinion as to the person by whom any 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 documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or when, in the ordinary course of
business, documents purporting to be written by that person have been habitually submitted to him.
• Illustrations:
• The question is, whether a given letter is in the underwriting of A, a merchant in London.

• В is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be
written by him. С is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to
whom В habitually submitted the letters purporting to be written by A for the purpose of advising him
thereon.
• The opinions of В, С and D on the question whether the letter is in the handwriting of A are relevant, though
neither В, С nor D ever saw A write
• Section 47 deals with the opinion of persons who are not experts but the opinion of such person is made
admissible. When the court has to determine the question as to particular handwriting of any person, it can
admit the opinion of an expert, but at the same time it may also admit the opinion of a person who is
acquainted with the handwriting of that person. The opinion evidence of non-expert is relevant only if the
condition laid down in Section 47 is proved. In what manner a person may be acquainted with handwriting of
other person has been given in the explanation appended to the section.
• The explanation gives a list of persons who may be said to be acquainted with the handwriting of another. The
person is he:
• 1. Who has seen the person write, or
• 2. Who has received documents purporting to have been written by that person in answer to document written
by the witness, or
• 3. Who has in ordinary course of business received documents purporting to have been written by that person
or such documents have been habitually submitted to him.

• Sections 45, 47, 67 and 73 jointly prescribe the following methods of proving handwriting, viz.:
• 1. By evidence of the writer himself (Section 67).
• 2. By expert opinion (Section 45).
• 3. By evidence of person who is acquainted with handwriting (Section 47).
• 4. By comparison of the handwriting in question with the handwriting of an alleged writer (Section 73).
• 47A. Opinion as to digital signature when relevant:
• 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.
• Comments:
• This section deals with the relevancy of expert opinion as to genuineness of digital signature. “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

• Section 48 of the Indian Evidence Act provides whose opinion is relevant regarding the existence of
customs. According to this Section, when there is a need to form an opinion about the existence of a
general custom or right, the court can ask the persons who are well aware of the existence of the customs.
The term general custom is defined as “rights or customs common to a considerable class of persons”
• Illustration:
• The main issue was to decide whether a particular custom is followed in the place. The custom was
regarding a drawing of water from a well. 
• The opinions can be asked by the residents of the place or the elders who are aware of the customs. 

• In the case of Radha Krishna Kandolkar vs Tukaram, AIR 1991 the issue was similar to the issue provided in
the illustration. The main question of the issue was the right of a person to draw water from a certain pond
that they have been drawing water from for more than thirty years. In this case, it was held that the mere
fact that the person is allowed to draw water does not make it a custom. Recognition of right by the
community is necessary, even though one person is benefited out of the particular custom.
• Opinions as to usages and tenets
• Section 49 of the Indian Evidence Act provides the opinions of certain persons are considered as relevant
when to form an opinion as to usages and tenets. The opinions of people who have special knowledge about
the particular aspect are relevant. There are certain matters the Court can ask opinions on like:
• The usages and tenets of any body of men or family;
• The constitution and government of any religious or charitable foundation;
• The meaning of words or terms used in particular districts or by particular classes of people.
• Illustration:
• The main question was regarding the meaning of a particular term used in certain areas;
• The residents or the persons who have special knowledge in the aspect can provide opinions regarding the
meaning;
• The members of a particular class who are associated with the word can also provide opinions regarding the
meaning. 

• The word was “nikhalis” and it’s meaning was used in a particular trade. The word commonly means impure
but there are certain regions where the term denotes hundred per cent purity. The opinion of a person who
is well versed with the trade and the usage of the word in the trade can be considered as relevant and proper
evidence. The opinion can also be provided by a single person, there is no need for a group of persons to
provide an opinion on the particular issue.
• Opinion as to the relationship
• Section 50 of the Indian Evidence Act provides when the opinions as to relationship are considered as valid. When there is a
doubt regarding the existence of a relationship between the two persons, the Court can ask opinions from family members or any
persons who have special knowledge about the fact. There is also a proviso to this Section, that these opinions are not sufficient
to prove a marriage in proceedings under the Indian Divorce Act. The opinions are also not relevant for prosecutions under:
• Section 494 of the Indian Penal Code which deals with the offence of bigamy;
• Section 495 of the Indian Penal Code which deals with the punishment for bigamy;
• Section 497 of the Indian Penal Code which deals with the offence of adultery;
• Section 498 of the Indian Penal Code which deals with the enticing of married women.
•
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.

•
In the case of Shriram Didwani vs Gouri Shanker, is an important case in the opinions regarding the relationship. It was held that
the opinions expressed by the persons who are not the members of the family are also considered as a relevant opinion. The
person needs to have knowledge about the family. The opinions can be provided by various persons like grocers, doctors,
teachers or any friends who are aware of the relationship
• Sec 52 In civil cases character to prove conduct imputed, irrelevant:
• In civil cases, the fact that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts
otherwise relevant.
• This section lays down as a general rule that in civil cases the evidence of charcter of any person concerned
(a party to the suit ) is not admissible
• The reason is that the court has to try the case on the basis of fact of the case and not on the basis of
good or bad charater of parties.

• Exceptions to the general rule:

• There are exceptions to the rule that character is irrelevant unless it is in issue.
• 1. When character is in issue. Evidence can be given when a party’s character is itself a fact in issue. For
example, a suit for libel or a divorce suit..
• 2. Character as to affect damages. When the character of any person is such as to affect the amount of
damages which he ought to receive, is relevant. In mitigating damages the evidence of character is
relevant.
• 3-When character became issue from other relevant fact. The facts which are otherwise relevant, are
relevant (Section 11) can be taken into account if the court forms an opinion that the character of the
party might have been guilty of conduct imported to him or he might not be worthy of credit.

• 53. In criminal cases, previous good character relevant.

• In criminal proceedings the fact that the person accused is of good character, is relevant.
• 54. Previous bad character not relevant except in reply.
• 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.
Oral Evidence  Documentary Evidence
• Oral evidence means the statements • When a document is produced before the
which are given by a witness before the court then such document is considered as
court. documentary evidence.
• It is the statement of a witness in oral • It is a statement submitted through the
form documents.
• In the oral evidence are stated through • The documents are composed of words,
signs, letters, figures and remarks and
voice, speech or symbols for its recording
submitted before the court.
before the court
• The provisions related to the documentary
• The oral evidence is discussed under 
evidence has been discussed under 
section 59 and  section 61 to 
section 60 of the Indian Evidence Act. section 66 of the Indian Evidence Act.
• The oral evidence is required to be direct • The contents of the documentary evidence
and it becomes doubtful if the statement need to be supported by primary or
contradicts with the previous statement. secondary evidence.
Primary Evidence
Sec 62
Primary Evidence is original document which is
presented to the court for its inspection.
• It is the main source of Evidence.
• Section 62 of the Evidence Act defines Primary
Evidence
•
Primary Evidence is the best Evidence
• Giving Primary Evidence is general rule
• Primary Evidence itself is admissible.
• No notice required before giving Primary Evidence.  • Notice is required to be given before giving Secondary
• The value of Primary Evidence is highest.
Secondary Evidence
Sec 63
• Secondary Evidence is the document which is not original
document but those documents which are mentioned in
Section.63. 
•
It is an alternative source of Evidence
• Section 63 of the Indian Evidence Act defines Secondary
Evidence 
Secondary Evidence is not best evidence but is evidence of
secondary nature and is admitted in exceptional
circumstances mentioned in Section 65
• Giving Secondary Evidence is exception to the general rule.
• Secondary Evidence is admissible in the absence of the
Primary Evidence.
Evidence
• The value of Secondary Evidence is not that of Primary
Evidence
 Circumstances under which secondary
evidence is allowed
• Section 65 in The Indian Evidence Act, 1872
• 65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents
of a document in the following cases:
• —1- When the original is shown or appears to be in the possession or power—
• (a) of the person against whom the document is sought to be proved, or
• Rajesh kumar Bhati vs ADJ jabalpur AIR2009- in this case original will was in possession of plantiff ,he was not producing it., the defendant sought
permission for producing photocopy ,held, permission should not be refused because of doubt about veracity of the document ,but opportunity to be
heared should have been given to other party.
• (b) of any person out of reach of, or not subject to, the process of the Court, or
• (c) of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
•
• 2- 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;
• 3- 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;
• 4- when the original is of such a nature as not to be easily movable;
• Mertimer Vs M.Challan (1840) 4 Jur. – the court did not consider it necessary to move the stock register of the bank of england for the purpose of
proving whether the defandant had signed his acceptance of certain stock in register.
• 5- when the original is a public document within the meaning of section 74;
• 6- when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; "
• 7- when the originals consists 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 collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document 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.
 Public documents
• sec 74 - Public documents.—The following documents are public documents :—(1) Documents forming
the acts, or records of the acts—(i) of the sovereign authority,
• (ii) of official bodies and tribunals, and
• (iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or
of a foreign country; [of any part of India or of the Commonwealth], or of a foreign country;"
• (2) Public records kept (in any State] of private documents.

• Documents forming the records of the acts and the acts of sovereign authority.
• Documents forming the records of the acts and the acts of tribunals and official bodies.
• Documents forming the records of the acts and the acts of legislative, public officers, executive, and
judiciary of any part of India or the commonwealth, or a foreign country.
• Documents forming the records of the acts and the acts of the public record which is kept in any State of
Private document.

The Statements under section 161 of Cr.P.C. which are recorded by police officers

• The Records which are dealt with by the revenue officers who are related to land revenue, settlement of
land disputes and survey, etc. are public documents
• K. Pedda Jangaiah v. Mandal Revenue officer, Moinabad- Faisal patties’ and ‘Pahanies’ are the public
documents which are stated by the High Court of Andhra Pradesh
Public Documents
• It is defined under section 74 of the Indian
Evidence Act, 1872
• Section 74 states that the following documents are
public documents.
• -“(1) documents forming the acts or records of the
acts of the sovereign authority, of official bodies
and Tribunals, and of public officers, legislative,
judicial and executive, (of any part of India or of
the Commonwealth), or of a foreign country;
• (2) public records kept in any State of private
documents.”
• Public documents are prepared by public servants
while discharging their official or public duty.
• Public documents are available for inspection to
the public in public office during the official time
after the prescribed fee.
Private Documents
• It is defined under section 75 of
the Indian Evidence Act, 1872
• It is defined under section 75 of
the Indian Evidence Act, 1872
• Private documents are those
documents that are prepared by a
person in his private interest and
right.
• Private documents are kept in the
custody of the person to whom it
belongs, and it is not available for
inspection to the publi
 Exclusion of oral evidence by documentary
evidence
• One of the fundamental principal of the law of evidence is that in all cases the best evidence should be
given. Where the fact to be proved is embodied in a document , the document is best evidence of the fact.
• Such fact should ,therefore be proved by the document itself i.e. by primary or secondary evidence.
• The Best Evidence rule,  often called a “cardinal principle” . 

• Section 91 of the Evidence Act, lays down the provision for the situation when the terms of the contract,
grant or depositions of properties have been reduced in the document even though it is required under
law to be reduced into the document. In this condition, if the proof is required, the document itself is
required to be produced or if the secondary evidence is admissible then the secondary evidence can be
used
• Exception 1: Appointment of a public officer by the way of writing
• As per the general rule, to prove the content of a writing, the writing itself is required to be produced
before the court and in case of its absence, secondary evidence may be given. But, there is an exception to
this rule. When a public officer is appointed and the appointment is required to be made in writing and if it
is shown before the court that some person has acted as the officer by whom the person has been
appointed, then the writing by which he has been appointed needs not to be prove
. Illustration
• A question arises whether A is a judge of the High Court, then the warrant of appointment is not required
to be proved. The fact that he is working as a judge of the High Court will be proved.
• The fact that a person is working in the due capacity of his office is also evidence of that person’s
appointment in the office.
• Evidence of oral agreement excluded
• Section 92 of the Indian Evidence Act lays down the provision that when as laid down under
section 91 the documents which are required to be in writing such as the terms of the
contract, grant or other deposition of property or any other matter required by the law in
writing then the court cannot allow being lead by oral evidence to the party contract or legal
representative for the purpose of contradicting, varying, addition or subtraction from the
contract.
The principle of the section applies only to such contracts etc, as are required by law to be
reduced to the form of a document. The principle laid down is that when the terms of any
such documents have been proved by the primary or secondary evidence of the
document,no evidence of any oral agreement or statement shall be admitted as between
parties to the agreement or their representative ,for the purpose of contradicting ,varying
,adding to ,or substracting from the terms of the document..
• In other words ,no oral evidence can be given to qualify the terms of the document. The
section precluded only the parties to the document and their representative -in –interest
from giving oral evidence concerning the content of document.
• Vishwa Nathan vs Abdul Wajid AIR 1986 – It was held that other parties are left free to give
such evidence.
Veeraswami Vs Narayan AIR1949 – it was held that evidence can be given of any oral agreement
which does not contradict ,vary, add to or substract from the terms of the documents
• Proviso(1): The facts which invalidate the document
• If a fact will invalidate the contract then no man is debarred from proving that fact. According to the laws
of contract, any contract which is created by fraud or undue influence, it is not enforceable and considered
invalid. So, such facts are easy to prove in the circumstances when the contract has been reduced into
written form.

• Proviso(2): Separate oral arguments( matters on which document is silent)

• The term separate oral arguments in this context refer to the oral agreements made before entering into
the documents. The contemporaneous or prior oral agreements are referred to under Proviso (2) of
section 92.  
• Anjali das vs Bidyut shanker AIR 1992 Where a room is hired in a lodging on a fixed rent per month by a
written agreement, but the agreement does not make it clear whether the amount reserved was for
lodging only or included boarding also . If there was any oral understanding on the point the same may be
proved.
• When there is a prior oral agreement on a matter about which the document is silent, then it can be
proved only when such terms of oral agreements are not in contradiction with the terms of the contract.
• So, as held in the case of Bal Ram v. Ramesh Chandra, the requirements of this proviso are:
• On the matter on which the document is silent, a separate oral agreement should be related to it.
• Such oral agreement should not be inconsistent with the terms of the document

•
• Proviso (3): Separate Oral Argument as a condition precedent
 Rules for interpretation or construction of
documents.
• Latent and Patent Ambiguity
• The rule about admission or exclusion of extrinsic evidence(Facts or information not embodied in a written
agreement such as a will, trust, or contract. Extrinsic evidence is similar to extraneous evidence,) has been
laid down under section 93 to 98 of the Indian Evidence Act
• Section 93 of Evidence Act "Exclusion of evidence to explain or amend ambiguous document"
• When the language used in a document is, on its face, ambiguous or defective, evidence may not be given
of facts which would show its meaning or supply its defects.
• Illustrations

(a) A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500".
Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to
be filled.
•
Section 94 of Evidence Act "Exclusion of evidence against application of document to existing facts"
• When language used in a document is plain in itself, and when it applies accurately to existing facts,
evidence may not be given to show that it was not meant to apply to such facts.

Illustrations

A sells to B, by deed, "my estate at Rampur containing 100 bighas". A has an estate at Rampur containing
100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a
Patent Ambiguity
• When the language of the document is so
uncertain and effective that no meaning can be
granted to the document then it is called as
Patent Ambiguity
• A agrees, in writing, to sell a horse to B for "Rs.
1,000 or Rs. 1,500
• The patent ambiguity is personal in nature and it
is related to the person executing the document.
• Oral evidence is not allowed for the removal of
patent ambiguity
• The rule on which the patent ambiguity is based
is that the patent ambiguity makes the
document useless.
• A patent ambiguity is on the face of the
document and is evident from inspection of the
document itself.
Latent Ambiguity
• When the language of a document is certain and
meaningful but the document makes no relevance in
the present circumstance then it is latent ambiguity
• A  agrees to sell his white cow to B for Rs. 2000 and in
the deed he has mentioned “my white cow”. A has two
white cows. Evidence can be given to prove that which
white cow he meant in that deed
• The latent ambiguity is of objective nature and it is
related to the subject matter and object of the
document.
• To remove latent ambiguity, oral evidence is allowed.
• Giving oral evidence in case of latent ambiguity is
based on the principle the latent ambiguity does not
make a document useless
• Latent ambiguity is not evident from prima
facie inspection of the document but it becomes
apparent when the language of a document is applied
to existing circumstances
• When extrinsic evidence can be given  (latent ambiguity)
• Section 95: Evidence allowed to be given when the document is plain in itself
• Section 95 of the Indian Evidence Act deals with latent ambiguity and oral evidence can be given for
removing latent ambiguity. When the language which has been used in the document is simple and plain
but it is not in the meaning to existing facts due to the mistakes in the descriptive evidence and such
mistake can be shown that it was used in a peculiar sense.
• Illustration
• A sold his house to B stating in the deed as “my house in Lucknow”.
• But, A has no house in Lucknow but he has a house in Kanpur in which B is living since the deed was
executed. Then the evidence can be used to prove the fact the deed was related to the house in Kanpur.
• Section 96: Evidence allowed when the application of the language which is meant to apply on only one,
applies to several persons
• When the language of the facts is such that, which is meant to apply on only one person applies on several
persons, then the evidence may be given under section 96 of the Indian Evidence Act to clarify that which
of those persons or things, that fact is intended to apply on.
• Illustration
• A  agrees to sell his white cow to B for Rs. 2000 and in the deed he has mentioned “my white cow”. A has
two white cows. Evidence can be given to prove that which white cow he meant in that deed.
• 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole
correctly applies.—When the language used applies partly to one set existing facts, and partly to another
set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show
to which of the two it was meant to apply
 Presumption as to Documents
sec 79-90
• This section are founded on maxim OMINO PROSUMUNTUR RITE ESSE ACTA - which means all acts are pr
esumed to be rightly done.
Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the documents. There
are certain presumptions regarding the documentary evidence in this act. Like may presume ,shall
presume
• S. 79
• Presumption as to genuineness of certified copies
• The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or
other document, which is by law declared to be admissible as evidence of any particular fact and which
purports to be duly certified by an officer of the Central Government or of a State Government, or by any
officer in the Slate of Jammu and Kashmir who is duly authorized thereto by the Central Government;
Provided that such document is substantially in the form and purports to be executed in the manner
directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or
certified held when he signed it, the official character which he claims in such paper.
• 80. Presumption as to documents produced as record of evidence-Court shall presume— that the
document is genuine; that any statements as to the circumstances under which it was taken, purporting to
be made by the person signing it, are true, and that such evidence, statement or confession was duly taken
• Section 81 provides that the Court shall presume the genuineness of every document purporting to be the
Official Gazette or to be a newspaper or journal or every document purported to be a document directed
by any law to be kept by any person, if such document is kept substantially in the form required by law
• [81A. Presumption as to Gazettes in electronic forms.—The Court shall presume the
genuineness of every electronic record
• 82-   Presumption as to document admissible in england
• 83- Presumption of map and plan by authority of government
• 84- Presumption as collection of laws and reports of decision
• 85- Presumption as to power of attorney
• 85A – Presumption as to electronic agreement, 85 B – Presumption as to electronic
records and electronic signature
• 85C – Presumption as electronic signature certificate
• 86 – Presumption as to certified copy of foreigh judicial records
• 87 – presusmption as to books ,map and charts
• 88- Presumption as to telegraphic message
• 88A – Presumption as to electronic message
• 89 - presumption as to due execution
• 111 A – presumption as to certain offences committed in disturbed area
• 112 – presumption of legitmacy of child -112. Birth during marriage, conclusive proof of legitimacy.—The fact that any
person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and
eighty 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.
•
• 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
• NON ACCESS implies non existence of opportunity for physical intercourse .
• Maxim -SAMPER PRAESUMITER PRO LEGITIMAIONATE PUERORUM – It is always to be presumed that children are
legitimate.

• DNA Test
• ; Shaik Fakruddin v. Shaik Mohammed Hasan,AIR 2006 AP 48.
• The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The
parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof
• Conclusive evidence` and `conclusive proof` not different
• ; Somwanti v. State of Punjab, AIR 1963 SC 151
• There is no difference between `conclusive evidence` and `conclusive proof`, the aim of both being to give finality to the
establishment of the existence of a fact from the proof of another.
• 113A- Presumption as to abetment of suicide by a married woman -the Court may
presume, having regard to all the other circumstances of the case, that such suicide had
been abetted by her husband or by such relative of her husband within a period of
seven years from the date of her marriage

• 113B. Presumption as to dowry death.—When the question is whether a person has

committed the dowry death of a woman and it is shown that soon before her death
such woman has been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume that such person had
caused the dowry death.
• 114 - Court may presume existence of certain facts. —The Court may presume 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 account for his
possession.
• 114A – presumption as to absence of consent in certain prosecution for rape – court
shall presume that she did consent.
Presumption as to Documents Thirty years old(Ancient document)

• A document which is 30 years old is presumed to be genuine.but

this presumption is in the discretion of the court.

• Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty years
old. The Court presumes that any document which is produced for investigation is from proper custody
and the signature corresponds to the signature of the person whose custody the document was in. The
Court also presumes that any handwriting in the document is the handwriting of the person who has the
custody of the document. It is also presumed by the Court that in case if the document attested or
executed, that it was duly executed and attested by the persons by whom it professes to be executed and
attested. The term proper custody means that the document is with the care of the person and in a place
where it would naturally be.
• For example, ‘A’ has been in possession of a certain property for a long time. He produces from his
custody deeds the various documents relating to the land showing his titles to it and the custody is held to
be proper.
• Darshan singh vs Prabhu Singh AIR1987- A deed relating to the affair of family produced from custody of
the mother presumed to be genuine.
• In mohamad bhai Rasul Bhai Malik Vs Amir Bhai Rahimbhai ( AIR 2001 Gujrat Highcourt) – presumption
permissible under section 90 only relates to the signature ,execution, or allegation of documents i.e. its
genuineness. 30 year old custom cannot be presumed under this section.
• Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty years
old. The Court presumes that any document which is produced for investigation is from proper custody
and the signature corresponds to the signature of the person whose custody the document was in. The
Court also presumes that any handwriting in the document is the handwriting of the person who has the
 Fact which need not be proved
• As a general rule of law, the party to a suit is required to establish his cause before the Court by adducing either oral or documentary evidence which includes
electronic evidence. However, under certain scenarios, provided under the Indian Evidence Act, 1872, where the parties to a suit are not required to provide evidence
in favor of their assertions.
• Section 56 to Section 58 of the Indian Evidence Act contains the provisions related to non-imperativeness of admission of evidence by the parties to the suit
• facts of which the Court will take judicial notice need not be proved.
• Judicial notice is the acknowledgement by the Court on certain matters which are so infamous or transparently established that their existential evidence is deemed
inessential
• SECTION 56: Fact judicially noticeable need not be proved
• SECTION 57: Facts of which court must take judicial notice
• All laws that are effective within the territory of India:-
• Any public Act that is either passed or yet to be passed by the Parliament of the United Kingdom (UK),
•  Articles of war for the Indian Army, Indian Navy or the Indian Air Force.
• The proceedings of the Parliament of the UK and India, along with all other legislatures established in India.
• The accession and the signed document of the Sovereign  (King, Prime Minister, President or any other head of the state) of the Uk, Great Britain, and Ireland:- The
signed manual or document of the Sovereign of the aforementioned countries need not be proved. These countries have been incorporated, for the time being, other
countries may be added later.
• All seals that English Courts will take judicial notice of, the seals of every Court in India including the court of Admiralty and maritime jurisdiction, seals of notaries, and
seals of any person who is authorized to use by the Constitution or an Act of Parliament of both UK and India.
• He accession to office, names, titles, functions, and the signatures of people acquiring a post in any public office on an ad hoc basis.
• The existence of any country and its flag that is recognized by the Government of India.
• The division of time, geographical locations of the world, and cultural festivals, fasts and holidays notified in the Official Gazette:- With ‘division of time’, the Section
refers not to longitudinal divisions but means divisions of eras like Bengali, Hijri etc.
• The entirety of territories that come under the dominion of the Government of India.
• Any act of war or hostilities between the Government of India and any other state or organization, or persons.
• The names of the officers and members of the Court including their deputies and subordinate officers and assistants, along with all advocates that appear before the
court.
• The law of the road at land and sea.
• 58 -This Section lays down a principle that , what is admitted need not be proved.