Professional Documents
Culture Documents
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
• 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
• "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.
•
1)Relevancy is based on logic and probability
• 2)The rules of relevancy are described from Section 5 to Section 55 of Evidence Act, 1872.
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.
• 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.
• 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.
•
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.
• 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 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.
• 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.
• 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
2) It says that an admission will be relevant only if it is made by any of the person specified in the 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:
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
• 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.”
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 Extra-judicial confession
• • 1- Extra-judicial confession are those
1. Judicial confessions are those which are which are made to any person other than
made to a judicial magistrate under section those authorized by law to take
164 of Cr.P.C. or before the court during confession. It may be made to any person
committal proceeding or during trial. or to police during investigation of an
offence.
• 2-To prove judicial confession the person to • 2- Extra-judicial confession are proved by
whom judicial confession is made need not calling the person as witness before whom
be called as witness. the extra-judicial confession is made.
• 3- Extra-judicial confession alone cannot
• 3-Judicial confession can be relied as proof of be relied it needs support of other
guilt against the accused person if it appears supporting evidence.
to the court to be voluntary and true • 4-it is unsafe to base conviction on extra-
• 4-A conviction may be based on judicial judicial confession.
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
• 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:-
• 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
(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.
• 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 Private Documents
• It is defined under section 74 of the Indian • It is defined under section 75 of
Evidence Act, 1872
• Section 74 states that the following documents are the Indian Evidence Act, 1872
public documents. • It is defined under section 75 of
• -“(1) documents forming the acts or records of the
acts of the sovereign authority, of official bodies
the Indian Evidence Act, 1872
and Tribunals, and of public officers, legislative, • Private documents are those
judicial and executive, (of any part of India or of
the Commonwealth), or of a foreign country; documents that are prepared by a
• (2) public records kept in any State of private person in his private interest and
documents.” right.
• Public documents are prepared by public servants
while discharging their official or public duty. • Private documents are kept in the
• Public documents are available for inspection to custody of the person to whom it
the public in public office during the official time
after the prescribed fee.
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 (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 Latent Ambiguity
• When the language of the document is so • When the language of a document is certain and
uncertain and effective that no meaning can be meaningful but the document makes no relevance in
granted to the document then it is called as the present circumstance then it is latent ambiguity
Patent 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
• A agrees, in writing, to sell a horse to B for "Rs.
white cows. Evidence can be given to prove that which
1,000 or Rs. 1,500 white cow he meant in that deed
• The patent ambiguity is personal in nature and it • The latent ambiguity is of objective nature and it is
is related to the person executing the document. related to the subject matter and object of the
• Oral evidence is not allowed for the removal of document.
patent ambiguity • To remove latent ambiguity, oral evidence is allowed.
• The rule on which the patent ambiguity is based • Giving oral evidence in case of latent ambiguity is
is that the patent ambiguity makes the based on the principle the latent ambiguity does not
make a document useless
document useless.
• Latent ambiguity is not evident from prima
• A patent ambiguity is on the face of the facie inspection of the document but it becomes
document and is evident from inspection of the apparent when the language of a document is applied
document itself. 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
• 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 or (fact which
are superior to evidence)
• 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 ( means recognition without proof of
something as existing or as being rule) 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- no fact of which the court will
take judicial notice need to be prooved.
• Jai shanker Prasad V state of Bihar (AIR 1993) - Judicial notice of fact that many blind persons
have acquired great academic distinction ,can be taken by court.
• .
• 58 -This Section lays down a principle that , what is admitted need not be proved.
Fact which need not be prooved
• 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.
• THe 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 rule of the road ,on land or at sea .
Burden of proof
• The burden of proof means the obligation to prove a fact. When a person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person". The
• The phrase burden of proof has two meaning
• 1- burden of proof as matter of law and pleading- i.e. the burden of proving all the facts or establishing one’s case. This
burden rest upon the party whether plaintiff or defendant,who subtantially asserts the affirmative of the issue. It is
fixed, at the beginning of the trial,by the statement of pleading,and it is settled as question of law ,remaining
unchanged under any circumstance whatever.
• 2- Burden of proof as a matter of adducing evidence- Either at the beginning or at any particular stage of the case .It is
always unstable and may shift constantly throughout the trial(sec102-103) .it lies at first on the party who would be
unsucceful if no evidence at all given on either side. The burden must shift as soon as he produces evidence which
prima facie gives rise presumption in his favour. It may again shift back on him,if the rebutting evidence produced by his
opponent preponderates .This being position ,the question as to the onus of proof is only a rule for deciding on whom
the obligation rests of going further if he wishes to win.
• burden of proof - lies on the person who has to prove a fact and it never shift.
• Onus of proof – it shift. Scuh a shifting of onus is a continuous process in the evaluation of evidence.. Thus in a criminal
case ,once the prosecution has satisfied the court of the fact that the accused committed the crime of which he is
charged,the onus is shifted to the accused to show as to why he should not be punished for it .
• Onus probandi- The term merely means that if a fact has to proved ,the person in whose interest it is to prove it ,should
adduce some evidence,however slight ,upon which a court could find the facts which he desires the court to find .
• When entire evidence which is possible on a subject matter has already come before the court ,from whatever sourced
it may be ,it is well settled that the question of burden of proof become immaterial .
• 101 – Burden of proof
• Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which
he asserts, must prove that those facts exist.
• When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
• Illustration
• (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
• A must prove that B has committed the crime.
• (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which
he asserts, and which B denies to be true.
• A must prove the existence of those facts.
• Corporation of city of Banglore v Zulekha Bi (2008) if a person wants to recover the possession of a land from the
occupier on the ground that he is the owner of it ,he must prove his ownership.
• Rangammal v Kuppuswami AIR 2011 - Once burden of is put on the shoulders of the wrong party ,the supreme
court held that it would vitiate the entire judgment.
• 102. On whom burden of proof lies.—The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side. Illustrations(a) A sues B for land of which B is in possession, and which, as A
asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his
possession. Therefore the burden of proof is on A.
• (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud,
which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is
not proved. Therefore the burden of proof is on B
• Burden to prove” in rape cases:
• In rape cases the burden to prove consent of the victim is on the accused. It is not for the victim to show that there was
no-consent on her part.
• Burden to prove medical negligence:
• In C.P. Sreekumar (Dr) v S. Ramanujam ’ it was held that onus of proving medical negligence lies on the complainant.
• Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged
to provide facta probanda as well as facta probantia.
• 103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes
the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular
person.
• Illustration
• A prosecuted B for theft and wishes the Court to believe that B admitted the theft to C.A must prove the admission.
• B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
• According to Section 103 whenever a party wishes the court to believe and to act upon the existence of a particular
fact, the party will have to prove the particular fact. For example, in criminal case the accused guilt must be proved
by the prosecution. But, if the accused wishes to prove a particular fact, namely, at the time of crime he was away, he
must prove it.
• State of hayana vs sher singh In law the particular fact is termed as alibi. The law requires that a party can take the
plea of alibi if he wants to take any such advantage. Plea of alibi taken by the accused, it is he who has to prove it.
• Mewa devi v Ram Prakash AIR 1990 The owner of a motor lorry killed two persons and took the defense that the
cause of accident was due to mechanical failure of brakes and the steering wheel, the burden was upon the owner to
prove the fact.
• Kamini vs Purun Chandra (AIR1987) - A married women was driven out of the matrimonial home by ill treatment
.She filed a case to recover her jewellery and other articles.Her in- laws contended that she had taken them away.
The court said that there would be no presumption that she has done so. The burden on in- laws to prove the fact.
• The rule of burden of proof in civil and criminal cases is of different nature.
• In civil proceedings the party who alleges certain things must prove his case, but proving beyond doubt is not
necessary, preponderance of probability is sufficient. In Civil cases evidence may be relaxed by consent of parties.
• In criminal cases however the guilt of the accused is to be proved beyond reasonable doubts otherwise the accused
gets benefits of doubt. In case of reasonable doubt as to the guilt of the accused the benefit of doubt should always
be given to the accused. There must be clear proof of corpus delicti i.e. the fact of commission of crime.
• Indian Evidence Act Section 105. Burden of proving that case of accused comes within exceptions
• Indian Evidence Act Section 106. Burden of proving fact specially within knowledge
•
Indian Evidence Act Section 107. Burden of proving death of person known to have been alive within thirty
years
•
Indian Evidence Act Section 108. Burden of proving that person is alive who has not been heard of for seven
years
•
Indian Evidence Act Section 109. Burden of proof as to relationship in the case of partners, landlord and ten
ant, principal and agent
• Indian Evidence Act Section 110. Burden of proof as to ownership
•
Indian Evidence Act Section 111. Proof of good faith in transactions where one party is in relation of active c
onfidence. –
• Indian Evidence Act Section 111A. Presumption as to certain offences
• Indian Evidence Act Section 112. Birth during marriage, conclusive proof of legitimacy
• Indian Evidence Act Section 113. Proof of cession of territory
• Indian Evidence Act Section 113A. Presumption as to abatement of suicide by a married women
• Indian Evidence Act Section 113B. Presumption as to dowry death
• Indian Evidence Act Section 114. Court may presume existence of certain facts
•
• Estoppel is based on the maxim, Allegan’s contraria non est audients (a person alleging contradictory facts should not be
heard)
• and is that kind of presumption juris et de jure, where the fact presumed is taken to be true, not as against all the world, but
as against a particular party, and that only by reason of some act done, it is in truth a kind of argumentum ad hominem.
• Hence it appears that estoppels' must not be understood as synonymous with "conclusive evidences‖—the former being
conclusions drawn by law against parties from particular facts,while by the latter is meant some piece or mass of evidence
• The doctrine of estoppel is based on the principle of equity. The word ‘estoppel’ is derived from the French word ‘estoupe’
which means ‘stopped’. Section 115-117 of the Indian Evidence Act, 1872, deals with the provisions of the doctrine of
estoppels
• 115 Estoppel. —When one person has, by his declaration, act or omission, intentionally caused or permitted another person to
believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or
proceeding between himself and such person or his representative, to deny the truth of that thing.
• Illustration
• A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The
land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he
had no title. He must not be allowed to prove his want of title.( this illustration is based on facts of Pickard vs Sears (1837)6
Ad &El. 469
• The section says that when one person has by his, (a) declaration, (b) act or (c) omission, intentionally caused or permitted
another person,
• to believe a thing to be true and
• to act upon such belief, then neither he nor his representative shall be allowed to deny the truth of that thing in any suit or
proceeding between himself and such person or his representative.
• To invoke the doctrine of estoppel three conditions must be satisfied;
• (1) representation by a person to another
• (2) the other shall have acted upon (plaintiff altered his position on the basis of the representation ) the said
representation and
• (3) such action shall have been detrimental to the interests of the person to whom the representation has been made.
• Even where the first two conditions are satisfied but the third is not, there is no scope to invoke the doctrine of
estoppel
• Representation- representation of the existence of a fact may arise in any way = a declaration ,act or ommission.
• Surat chunder dey Vs Gopal chander Laha (1892) 19 IA 203
• Person who makes representation may not have intention to decieve and may himself be acting under mistake or
apprehension.The estoppel will nonethless operate in such cases also.
• Vinod kumar vs surjit kumar AIR 1987- where a tenat stated in his written statement that he had taken the hall for
running his medical practice and not for residence , he was bound by his declaration.
• Reliance and detriment –the second condition neccessory to create estoppel is that the plaintiff altered his position on
the basis of the representation .
• Yakubhai v imammuddin (AIR1991)- Where the plea for fixation of standard rent was withdrawn ,a subsequent
proceeding for having standard rent fixed was held to be barred by estoppel.
• Estoppel - it is to an existing fact
• Promissory estoppel – it relates to a representation of future intention( supreme court says – that it is advancing the
cause justice)
Estoppel Promissory Estoppel
• Representation is made to • Representation of a future
an existing fact. intention is made
• It is supported by party’s • It is supported by party’s future
consideration. conduct and not a
consideration.
• Estoppel has been dealt in
• There exists no provision in the
section 115 to 117 of the Indian Evidence Act, 1872
Indian Evidence Act, 1872 which defines promissory
• It is only available as a estoppel.
defence • It can be used as a cause for
action to obtain damages
• KINDS OF ESTOPPELS —
• There are different kinds of estoppels:
• (1) Estoppel by matter of record- —A matter of record is something part of the records of a Court. It is at once the
narrative and the proof of its proceedings. Estoppel by records results from the judgment of a competent Court. The
law allows a party ample opportunity, by way of appeal and otherwise, of upsetting a wrong decision. And if he takes
the opportunity and fails, or does not choose to avail himself of it, he cannot subsequently re-open or dispute that
decision. And not only the parties themselves, but also the heir, executor, administrator and assign of each of them
are bound by the decision, for they are “privy to the estoppel”.
• (2) Estoppel by deed- —Where a party has entered into a solemn engagement by deed as to certain facts, neither
he nor any claiming through or under him is permitted to deny such facts. This rule, however, is subject to certain,
qualifications:
• The rule applies only between parties and privies, and only in actions on the deed.
• No estoppel arises upon recitals or descriptions which are either immaterial or not intended to bind.
• No estoppel arises where the deed is tainted by fraud or illegality.
• A deed which can take effect by interest shall not be construed to take effect by estoppel.
• Thus if a party leases premises to another for a longer-term than he possesses, it only ensures to the extent of his
own interest and no further.
• (3) Estoppel in pais in conduct- Estoppel by conduct arises when a person takes a particular position by his conduct.
• Estoppel in pais (i.e. “in the country”, or “before the public”), or more fully “estoppel in pais (i.e. concerning matters
outside a record or deed)
• Prakash Alumal Kalandari v J.P.kalandari AIR2011 – During pendency of divorce
proceeding the parties decided to invite decree for divorce by mutual consent.
Consent terms were agreed and signed by both parties. The wife acted to her
detriment on consent terms by withdrawing criminal and civil proceeding against the
man. The husband was not allowed subsequentley to withdraw his consent .The court
become duty bound to dissolve the marriage on consent terms.
• Under section 120 the husband and wife may give evidence against each other. In civil proceeding the parties to the suit are
competent witnesses. Rule is also applicable in criminal proceeding as well.
• In maintenance proceeding under section 125 of the Criminal Procedure Code the wife is competent witness. Both husband
and wife is competent witnesses to give evidence in order to prove non-access against each other.
• 121 Judges and Magistrates:
• No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer
any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in
Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was
so acting.
• Under this section a judge or a magistrate is a competent witness. A judge or a magistrate cannot be compelled to answer
questions except: (i) upon the special order of the court to which he is subordinate or (ii) as to his conduct in court as such
judge or magistrate in relation to a case tried by him.
privileged communication(compellability of
witness) sections 122-129
• Communications during marriage:
• No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by
any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the
person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other
• Object:
• Basic objective of enactment of the Section 122 is to promote family peace and at the same time husband-wife solace
relation from being disturbed. So long the wed-lock continues both the husband and wife are under solemn responsibility
to maintain the dignity of married life. Anything said or made by the husband to wife or vice-versa is treated to be
privileged communication founded on law and ethic. “This protective provision is based on the wholesome principle of
preserving domestic peace and conjugal confidence between the spouses.” The communications between husband and
wife cannot be permitted to be disclosed unless the spouse other than one in witness box has consented to such
disclosure
• Principle:
• Section 122 lays down that no married person shall be compelled to disclose any communication made to him during
marriage by any person to whom he is married. But, this section further lays down that such person may be permitted to
disclose any such communication provided
• (i) When the person who made it or his representative-in-interest consents; or
• (ii) In suits between married persons; or
• (iii) The proceeding in which one married person is prosecuted for any crime committed against the other.
• Protection when not available (exceptions)
• 1- Acts apart from communication
• Ram bharose v state of up AIR 1954 -The Supreme Court held that a wife can testify to the deed of her
husband or what her husband said to her about his deed. These are not admissible, but the wife can
testify the conduct (it is apart from communication)of the husband.
• 2- Waiver of privilege – evidence of privileged communication can be given by a spouse with the
consent of party who made communication.This is known as waiver of privilege.
• 3- suit or criminal proceeding between two spouses- As the basis of section 122is to preserve mutual
confidence ,it is obvious that the section does not apply when the spouses are ranged on opposite side.
In the case of Venkatachalam v. Govindan Chettiar AIR2010 it was held that section 126 which is meant to keep some information
undisclosed to thepublic is not ruled by the RTI act, 2005. The RTI Act, 2005 can not undermine the section.
In the case of Council of the I.C.A.I. v. Mani S. Abraham[20] a chartered accountant gained some confidential information about his
client and disclosed them without the consent of the client bank or third parties he was held to have done professional misconduct.
• Confidential Communications with Legal Advisors
• This topic is dealt in section 129 of the evidence act which says that “No one shall be compelled to disclose to
the Court any confidential communication which has taken place between him and his legal professional
advisor, unless he offers himself as a witness, in which case he may be compelled to disclose any such
communications as may appear to the Court necessary to be known in order to explain any evidence which
he has given, but no others.”
section 126 provides that the legal advisors and advocates can’t be compelled to disclose information about
their client unless the client consents.
• Here in section 129 of the Indian evidence act, the privilege is given to the client himself. The privilege,
however, is subjected to a condition
• i.e. unless the person offers himself as a witness. As soon as the person in question offers himself as a
witness the privilege goes away but only to the extent of that information which may appear to the court as
necessary to understand evidence given by him. The protection to the client is necessary because if there is
no protection to the client then the protection given to the advocate under professional communication will
become illusory
Section 133- Accomplice
• An accomplice is a person who has taken part in the commission of a crime .When an offence is committed
by more than one person in concert ,every one participating in its commission is an accomplice.
• An accomplice is called as APPROVER if he is granted pardon under section 306 of Cr.P.C. 1973
• S.133 Accomplice — An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
S.114. Illustration (B) —The court may presume that an accomplice is unowrthy of credit, unless he is
corroborated in material particulars
The apparent contradiction between these two declarations should first be resolved. Section 133 is a clear
authorisation to the courts to convict on the uncorroborated testimony of an accomplice, but since such a
witness, being criminal himself, may not always be trustworthy, the court are guided by the illustration
appended to Section 114 that, if it is necessary the court should presume that he is unreliable unless his
statement are supported or verified by some independent evidence
• The reasons why corroboration has been considered necessary are that :-
(1) he has been criminal himself, and, therefore, his testimony should not carry the same respect as
that of a law-abiding citizen
• 2) he has been faithless to his companions and may be faithless to the court because he has motive to
shift the guilt from himself to his former companions, and
• 3) if he is an approver, he has been favoured by the State and is therefore, likely to favour the state.
• These reasons dictate the necessity for corroboration.
• In Bhuboni Sahu v. The Emp., eight persons were prosecuted for a murder; four of them were
acquitted. Of the remaining, one appealed to the Privy Council. The evidence against the appellant
consisted of
• (a) evidence of an accomplice who had taken part in the murder and had become an approver,
• (b) the confession of another accused person implicating himself and the appellant, and
© the recovery of a cloth which the deceased was wearing and a Khantibadi(instrument for cutting
grass) in circumstances which were taken to verify the evidence of the accomplice
• The appellant was acquitted by the court. The Court Observed : The
combine effect of Section 133 and 114, Illustration (b) may be stated
as follow:
• According to the sec 133 which is a rule of law an accomplice is
competent to give evidence and according to the sec 114 illus(b)
which is a rule of practice is almost always unsafe to convict upon
his testimony alone. Therefore though the conviction of an accused
on the testimony of an accomplice cannot be said to be illegal yet
the court will, as a matter of practice, not accept the evidence of
such a witness without corroboration in material particular.
• Examination, in law, means the interrogation of a witness by attorneys or by a judge
136-Judge to decide as to admissibility of evidence"
• When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the
evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if
he thinks that the fact, if proved, would be relevant, and not otherwise.
• Section 137 of Evidence Act "Examination in chief"
• The examination of a witness by the party who calls him shall be called his examination in-chief.
• Cross-examination- The examination of a witness by the adverse party shall be called his cross-examination.
• Re-examination- The examination of a witness, subsequent to the cross-examination by the party who called him,
shall be called his re-examination.
• Section 138 of Evidence Act "Order of examinations"
Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross -examined, then (if the party
calling him so desires) re-examined.
The examination and cross - examination must relate to relevant facts but the cross -examination need not be
confined to the facts to which the witness testified on his examination -in-Chief.
Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in
cross-examination ; and , if new matter is, by permission of the Court, introduced in-re-examination, the adverse
party may further cross-examine upon that matter.
Difference between Examination-in
chief/Cross-examination/Re-examination
• 1-Examination-in-chief is an examination of a witness which is done by the party who filed the suit or case in the court.
• It is the first step in the examination process
• The purpose of examination-in-chief is to bring out the facts, and is generally done with statements under oath of a
witness in the court
• No leading questions may be asked without permission of the court in examination-in-chief.
• It is a part and package of a judicial proceeding.
• 1.Cross-examination is an examination of a witness which is done by the adverse party after the examination-in-chief
• 2. It is the second Step and is led by the opposing counsel.
• 3. The purpose of cross-examinations is to test the truth of witness.
• 4. Freely asked leading questions in the cross-examination
• 5. It is essential to pull out the truth and also an essential part of a judicial proceeding.
• 1. Re-examination is an examination of a witness which is done by the parties to remove incompatibility which arises
during the examination-in-chief and cross-examination.
• 2. It is the last step in the process of examination and is led by the counsel whose party brought in the witness.
• 3. The purpose of re-examination is the examination of a witness which is done by the parties to remove incompatibility
which arises during the examination-in-chief and cross-examination. And to clarify the point so raised during the cross
examination.
• 4. No leading questions may be asked in the examination and cannot introduce new matter without permission of the
court.
• 5. It is not necessary in the examination of witnesses and it is not an essential part of a judicial proceeding.
• Section 141 of Indian Evidence Act defines “leading question”.
• 141-Any question suggesting the answer which the person putting it wishes or expects to receive is called a
leading question
• Any question which suggests to the witness the answer which he is expected to make it known as a leading
question
• The circumstances in which the question arises determined whether a question is leading or not. Is the plaintiff
your father? Have you not lived for 8 years with him? Is this man 55 years of age? Is not your name RAM? Do
you reside at Gwalior? Are you not in service of RAM? Have you not lived for nine years with RAM? Are the
example of leading questions. The examiner clearly suggests the answer to these questions. In such questions
the examiner putting the questions is really giving answer rather of receiving it from the witness. In leading
questions while the examiner believe the lack of knowledge and is asking for information but he really gives the
answer himself rather of receiving it. Generally, the answers of leading questions are given by yes or no. But it
cannot be said that in order to stamp a question leading the answer to it must be as yes or no.A leading
question is that which signals to the witnesses the real or obligated fact which the prosecutor expects and
desires to have confirmed by the answers leading to questions.
• Section 142 of Evidence Act lays down that leading questions must not be put in examination in chief and re
examination without the permission of the Court. It also lays down that the court should permit leading
questions in examination in chief or re examination only as to the matters which are begin, which are
unchallenged or which are already been sufficiently proved in the opinion of the Court.
• Leading questions may be put in cross examination under Section 143 of Indian Evidence Act.
Section 154 –hostile witness
• Question by party to his own witness:
• (1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might
be put in cross-examination by the adverse party.
• (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the
evidence of such witness.
• Where a witness makes statement against the interest of the party who has called him, he is known as hostile
witness.
• It is very often found that the witness who has been called by the party, does not depose in favour of the party.
Rather the deposion given by him becomes favourable to the adverse party. In such type of cases the question
about conduct of witness arises. The witness seems to be interested to speak something which is only favourable
to the opposite party.
• If it happens it is the duty of the prosecution to bring contradiction on record by cross-examination which might
be put by the adverse party only. In such case the party calling the witness is given permission to test his veracity
and impeach his credit.
• It is a useful exercise for the court to consider whether the witness shall be called back again for the purpose of
putting cross questions to him. When witnesses turn hostile due to threats, coercion, lure and money
considerations, the protection of witnesses is necessary. It is not sufficient to treat the witness as hostile witness.
If the witness is declared hostile there is no automatic rejection of evidence.
• Nature of questions:
• When the permission is granted to the party, although it is absolute discretion of the court to give it
or not to cross-examination its own witness alike the adverse party the witness may be asked (a)
leading questions (Section 143) or (b) question as to his previous statements in writing (Section
145) or (c) question under section 146 in order to injure his character or (c) question impeaching
his credit (Section 155).
• Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210.
• It is settled law that evidence of hostile witness also can be relied upon to the extent to which it
supports the prosecution version evidence of such witness cannot be treated as washed off the
record. It remains admissible in the trial and there is no legal bar to base conviction upon his
testimony if corroborated by other reliable evidence
• Sat paul vs delhi administrator AIR 1976
• The granting of permission under sec 148 for asking leading question and under section 154 for
cross examination a party own witness , have been left wholly to the discretion of the court.
• State of Rajsthan vs Bhera 1997 – where a witness become hostile , it is the duty of prosecution to
bring the contradiction on record by confronting him with his previous statement. Where a
prosecution fails to such questions ,it would be duty of the court to do so for ascertaining the truth.
Refreshing memory (sec 159)
• When witness may use copy of document to refresh memory:
• Whenever a witness may refresh his memory by reference to any document, he may, with
the permission of the Court, refer to a copy of such document:
• Provided the Court be satisfied that there is sufficient reason for the non-production of the
original.
• An expert may refresh his memory by reference to professional treatise.
• Section 159 enables a witness that he may refresh memory during examination by referring
to the following documents:
• 1. Any writing made by himself at the time of transaction concerning which he is
questioned or soon afterwards that the court considers it likely that transaction was fresh
in his memory;
• 2. Any such writing made by any other person and read by witness within the time
aforesaid;
• 3. Professional treatise, if the witness is an expert.
• In order to avail the opportunity of the section for purpose of refreshing memory it has to be
proved that:
• (i) The writing must have been made by the witness himself at the time of transaction or soon
afterwards that the facts were fresh in his memory. A witness can refresh memory regarding the
facts stated by him if the writing was made either at the time of the transaction or shortly after
the transaction. The contents of panchanama can be used by the witness for refreshing his
memory under section 159 and can be used to corroborate the version of the person prepamig
the panchanama. Records made by officers are contemporaneous entries and, therefore, they
are always available for refreshing memory. It is also advisable to look at such records before
answering questions.
• (ii) If the writing was made by someone else, it must have been read by the witness, he will be
permitted to refer any such writing within proper time enabling him to know it to be correct. “A
document not produced in court within proper time and in consequence, rejected, may be
referred to, to refresh memory if it comes within the preview of this section.”
• (iii) The expert witnesses are permitted to refresh memory by consulting professional books. An
investigating officer was allowed to refresh his memory by looking at the contemporaneous
records made by him. An objection to check records or entries by him is not legal and liable to be
rejected.