Evidence law Notes Unit I to V

Unit I
1. Define Evidence? Explain the different kinds of evidence?

Definition of evidence in the Indian Evidence Act

According to Section 3 of the Evidence Act 1872, evidence means and includes:
 All such statements which the court allows or needs to be presented before it by the
witnesses in connection to matters of fact under inquiry. These statements are
termed as oral evidence.
 All such documents including any electronics record, presented before the court for
inspection. These documents are termed as documentary evidence.
The different Kinds of Evidence are -
1 Oral Evidence
Section 60 of the Indian Evidence Act, 1872 prescribed the provision of recording oral
evidence. All those statements which the court permits or expects the witnesses to make
in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence
is that evidence which the witness has personally seen or heard. Oral evidence must
always be direct or positive. Evidence is direct when it goes straight to establish the
main fact in issue.
2 Documentary Evidence -
Section 3 of The Indian Evidence Act says that all those documents which are presented
in the court for inspection such documents are called documentary evidence. In a case
like this, it is the documentary evidence that would show the actual attitude of the
parties and their consciousness regarding the custom is more important than any oral
evidence.
Case Law
In State of Maharashtra v. Dr. Praful B. Desai, the Supreme court has held that under
section 3 of the Indian Evidence Act, besides oral and documentary evidence, electronic
record can also be admitted as evidence.
3 Primary Evidence - Section 62 of The Indian Evidence Act says Primary Evidence
is the Top-Most class of evidence. It is that proof which in any possible condition gives
the vital hint in a disputed fact and establishes through documentary evidence on the
production of an original document for inspection by the court. It means the document
itself produced for the inspection of the court. In Lucas v. Williams Privy Council held

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“Primary Evidence is evidence which the law requires to be given first and secondary
evidence is the evidence which may be given in the absence of that better evidence
when a proper explanation of its absence has been given.”
4 Secondary Evidence - Section 63 says Secondary Evidence is the inferior evidence.
It is evidence that occupies a secondary position. It is such evidence that on the
presentation of which it is felt that superior evidence yet remains to be produced. It is
the evidence which is produced in the absence of the primary evidence therefore it is
known as secondary evidence. If in place of primary evidence secondary evidence is
admitted without any objection at the proper time then the parties are precluded from
raising the question that the document has not been proved by primary evidence but by
secondary evidence. But where there is no secondary evidence as contemplated by
Section 66 of
the Evidence Act then the document cannot be said to have been proved either by
primary evidence or by secondary evidence."
5 Real Evidence –
Real Evidence means real or material evidence. Real evidence of a fact is brought to
the knowledge of the court by inspection of a physical object and not by information
derived from a witness or a document. Personal evidence is that which is afforded by
human agents, either in way of disclosure or by the voluntary sign. For example,
Contempt Of Court, Conduct of the witness, the behavior of the parties, the local
inspection by the court. It can also be called as the most satisfactory witness.

6 Hearsay Evidence - Hearsay Evidence is very weak evidence. It is only the reported
evidence of a witness which he has not seen either heard. Sometimes it implies the
saying of something which a person has heard others say. In Lim Yam Yong v. Lam
Choon & Co. The Hon’ble Bombay High Court adjudged “Hearsay Evidence which
ought to have been rejected as irrelevant does not become admissible as against a party
merely because his council fails to take objection when the evidence is tendered.” So
finally we can assert that Hearsay Evidence is that evidence which the witness has
neither personally seen or heard, nor has he perceived through his senses and has come
to know about it through some third person. There is no bar to receiving hearsay
evidence provided it has reasonable nexus and credibility. When a piece of evidence is
such that there is no prima facie assurance of its credibility, it would be most dangerous
to act upon it. Hearsay evidence being evidence of that type has, therefore, to be
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excluded whether or not the case in which its use comes in for question is governed by
the Evidence Act.

7 Judicial Evidence - Evidence received by the court of justice in proof or disproof of

facts before them is called judicial evidence. The confession made by the accused in
the court is also included in judicial evidence. Statements of witnesses and documentary
evidence and facts for the examination by the court are also Judicial Evidence.

8 Non-Judicial Evidence - Any confession made by the accused outside the court in
the presence of any person or the admission of a party is called Non-Judicial Evidence
if proved in the court in the form of Judicial Evidence.

9 Direct Evidence - Evidence is either direct or indirect. Direct Evidence is that

evidence which is very important for the decision of the matter in issue. The main fact
when it is presented by witnesses, things, and witnesses are direct, evidence, whereby
main facts may be proved or established that, is the evidence of a person who had
actually seen the crime being committed and has described the offense. We need
hardly point out that in the illustration given by us, the evidence of the witness in
Court is direct evidence as opposed to the testimony to a fact suggesting guilt. The
statement before the police only is called circumstantial evidence of, complicity and
not direct evidence in the strict sense.

10 Circumstantial Evidence or Indirect Evidence - There is no difference between

circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to
prove the facts in issue by providing other facts and affords an instance as to its
existence. It is that which relates to a series of other facts than the fact in issue but by
experience have been found so associated with the fact in issue in the relation to cause
and effect that it leads to a satisfactory conclusion.
Case law
Bodh Raj v. State of Jammu &Kashmir. Court held that circumstantial evidence can be
a sole basis for conviction provided the conditions as stated below is fully satisfied.
Condition are:
1. The circumstances from which guilt is established must be fully proved.
2. That all the facts must be consistent with the hypothesis of the guilt of the accused.
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3. That the circumstances must be of a conclusive proof in nature.

2. Explain the Doctrine of Res gestae? with decided cases?

Introduction:

Under the Indian Evidence Act Section 5 to Section 55 deals with the relevancy of
fact. The law which is stated in Section 6 of the Indian Evidence Act is known as the
“rule of res gestae” or “the doctrine of res gestae”. However, in the Act, the term res
gestae is not explicitly used but the term is analyzed in section 6 and has attempted to
illustrate in sections 7, 8, 9, and 14. Facts that are supplementary to the main issues and
so are connected to the issue that it forms a part of the same transaction is called res
gestae.

Meaning of res gestae:

The word res gestae means “things done” which has been derived from a Latin
word. The word res gestae does not possess any precise definition. It has been
interpreted in various ways.

Res gestae means the facts and declarations made incidental to the main factor or
transactions. Like in the case of murder stained knife, confession of the accused, etc.
They are all incidental to the main factors which include acts, words, character, etc. Res
gestae in criminal offences means the complete criminal transaction from the beginning
to the end. The facts and declaration must be connected together and referred to by a
legal name like crime, contract, etc.

 Res gestae is defined as ” things done or literally speaking, the fact of

transaction, explanatory of the act or showing a motive for acting”[i]

 A matter instant to a main fact and explanatory of it is res gestae

The res gestae not only embraces the real fact of the transaction and the
circumstances around it but also includes the matters immediately antecedent to and
having a direct connection with the act.

Generally, any hearsay evidence is not admissible in the court of law but the
doctrine of res gestae is an exception to the evidence. The reason behind this is that the

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immediacy of the statement is believed to be a present sense impression or excited
utterance.

Essentials of res gestae:

Section 6 of the act reads as,

“Facts which, though not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the same time and place
or at different time and places“

 The act declaration of words must be collected by the time it should be

contemporaneous with the incident and should not be a prior incident.

 There must be a continuity of action and there must be a continuity of

purpose of design.

 It must be simultaneous with act. When a statement is a part of a res gestae

it must be immediately after happening of the act so that there is no chance
for the fabrication.

 It must be under the influence of the act the physical act and the worse at the
time of commission of the act must be spontaneous.

 The mandatory essential is fact must be “part a same transaction” no matter

if the act occurred in the same or different place and time.

Part of the same transaction:

The word “transaction” which is used in this section is defined by Sir James
Stephen, ‘as a group of facts so connected together as to be referred to by a single name
as a crime or contract or wrong or any other subject of enquiry which may be in issue’.

The facts which are connected with other factors form the component of the principal
fact and these facts must not be excluded. Also, there should be no interval for admitting
those facts because even a slight few minutes of an interval is enough for the fabrication
of the statement such that it is not under the part of the same transaction which will be
inadmissible.

Test to determine whether the facts form the same transaction:

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  If the facts stated are related to one another in the point of purpose or cause
and such fact constitutes to one continuous act it forms part of same
transaction

 When series of facts are stated, and they are linked together to present a
continuous whole it forms part of same transaction.

However, even if the facts have occurred at a different place and different time
they form a part of the same transaction if they are connected by the proximity of time
and place, continuity of acts, and its purpose. If the facts are not connected by proximity
of time, place, and continuity of events though the facts that occurred at the same place
and same time are irrelevant.

Case laws:

 Vasa Chandrasekhar Rao versus Puna Satyanarayana and Ors.

In this case, the accused killed his wife and his daughter. The father of the accused
made a call to the police station and said that his son has killed his daughter-in-law and
granddaughter. The question arises before The Honorable Court that whether the
statement by the father of the accused falls under the doctrine of res gestae. The court
held that the evidence is inadmissible under the principle of res gestae because it was
unable to determine the time of the call and it was unknown whether the phone call was
simultaneously done immediately after the Commission of the crime.

 Sukhar Vs State of Uttar Pradesh

In this case, the witness said that he went into the scene of occurrence immediately
when he heard the sound of firing and there he found the injured lying on the ground.
The injured said to the witness that the accused shot him. The court held that the fact is
admissible under section 6 of the Indian Evidence Act as it forms the part same
transaction.

 Sawal Das Vs State of Bihar

In this case, the husband, his father, and his mother killed his wife. As soon as she
was pushed to kill she cried out for help and screamed she is been killed by her family.
The children who were playing outside the house also explained that their mother is
being killed. The court held the statement of children is admissible as valid res gestae.

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Conclusion:

Res gestae is an exception to hearsay evidence. But not every time an exception is
available. The doctrine of res gestae in section 6 of the act is vague and the words in
the section can be interpreted in many ways wherein it varies from case to case. The
judge should examine whether the fact forms the part of the same transaction or it is
uttered spontaneously immediately after the Commission of the act. When there is a
small-time interval from the occurrence of the act it must be inadmissible. It is the
discretion of the judge either to admit or to deny.

3. Discuss the relevance of motive, preparation and conduct of the accused.

Introduction:
The word relevant has two meanings. In one sense it means “connected” in another
sense “admissible”. One fact is said to be relevant to another, when the one is
connected with the other, in any of the ways referred to in the provisions of the Evidence
Act relating to the relevancy of facts. The expression relevancy means connection
between one fact and another. Section 8 of the Indian Evidence Act lays down the
provisions relating to the relevancy of three principal facts, which are very important in
connection with every kind of civil or criminal cases. They are Motive, preparation and
conduct.

Section-8: Any fact is relevant which shows or constitutes a motive or preparation for
any act in issue of relevant fact.

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

Scope:
Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that
(1) a fact which shows or constitutes a motive for any fact in issue or relevant fact is
relevant:

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(2) a fact which constitutes or shows preparation for any fact in issue or relevant fact,
is relevant;
(3) previous or subsequent conduct of any party or of any agent to any party to any suit
or proceedings in reference to such suit or proceedings, or in reference to any fact
in issue or relevant fact are relevant provided such conduct influences or is
influenced by any fact in issue or relevant fact;
(4) previous or subsequent conduct of any person an offence against whom is the
subject of any proceeding or suit is relevant provided such conduct influences or is
influenced by any fact in issue or relevant fact;
(5) statements accompanying and explaining acts;
(6) Statements made in the presence and hearing of a person whose conduct is relevant
provided the statement affects such conduct.

Principle: There is hardly any act without a motive. Motive is the moving power which
impels one to do an act. It is the inducement for doing the act. The absence or presence
of a motive and evidence of preparation, previous attempt, previous or subsequent
conduct of the parties are relevant as they help in proving or disproving a fact in
controversy.

Motive: - The word motive means that which moves a man to do a particular act. It also
means the reason behind the act or conduct or an act to be achieved in doing an act.
Motive may be good or bad. Motive by itself is no crime, however heinous it may be.
Motive in the correct sense is the emotion approached to have led to the act. But once
a crime has been committed, the evidence of motive becomes important. Therefore,
evidence of the existence of a motive for the crime charged is admissible.
Motive differs from intention. Intention refers to immediate consequences,
whereas motive refers to ultimate purpose with which an act is done. For an act can be
done with bad intention but with good motive.
Motive cannot always be shown directly. It has to inferred from the facts and
circumstances in evidence. Motive is a relevant factor in all criminal cases, whether
based on the testimony of eye witnesses or circumstantial evidence. Motive alone is not
sufficient evidence to establish that the crime in question has been committed by a
particular person. Where a crime is to be proved beyond reasonable doubt, it is not
necessary to consider the evidence of motive.

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Preparation: Section 8 para 1 of the Indian evidence Act, says “Any fact is relevant
which shows or constitutes a motive or preparation for any fact in issue or relevant
fact”. Preparation consists in arranging the means necessary for the commission of a
crime every crime is necessarily preceded by preparation. For Eg: A is tried for the
murder of B by poison. The fact that a day prior to the murder of B, A went to the
druggist shop and obtained a particular poison, is relevant to show that he made4
necessary preparation for committing the crime.
There are four stages in commission of a crime i.e,
1. Intention
2. Preparation
3. Attempt and
4. Accomplishment.
The first act is not punishable but the second stage I,e preparation is punishable in
certain cases. The preparation on part of the accused may be to accomplish the crime,
to prevent discovery of crime or it may be to aid the escape of the criminal and avert
suspicion.

Conduct: The second para of Section 8 deals with the relevancy of conduct. Conduct
is different from character is what a person is in the estimation of others.
Section 8 deals with the relevancy of the conduct of the following persons:
1. Parties to the suit and of their agents.
2. Person, an offence against whom is the subject of proceedings.

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

1. It must be in reference to the suit or proceedings or in reference to any fact in issue
therein or relevant thereto:
2. It must directly influence or be influenced by any fact in issue or relevant fact.

Previous conduct: - the fact that two months before his death the deceased had lodged
a complaint with the police expressing apprehension of death or injury would be
relevant as previous conduct of the deceased, such conduct being influenced by his fear
of injury.

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Subsequent conduct:- the conduct of an accused soon after an incident plays an
important role in determining the guilt of the accused and in ascertaining his state of
mind. When a person is accused of a crime the fact that after the alleged crime he
destroyed or concealed evidence or prevented the presence or procured the absence of
person who might have been witnesses is relevant.

Identification Parade: -
There was no specific provision in the Evidence Act or Code of criminal procedure
regarding identification parade of the accused till 2005, then a new section 54 A was
inserted for identification of person arrested. This provision enables the police to seek
permission of the court for identification of the accused and the court may determine
the manner of identification. The manner of identification includes identification
parade. The police is not bound to hold identification parade.
Section 9 of the Indian Evidence Act 1872 provides for “Facts necessary to explain or
introduce relevant fact these facts are establishes to identify any thing or person whose
identity is relevant, or fix the time or place at which any fact in issue or relevant fact
happened or which show the relation of parties by whom such fact was transacted.
Section 9 provides for the Identification parade of persons. The purpose of
identification parade is to test the memory and veracity of a witness and strengthen the
trust worthiness of that evidence, who claims to identify an accused person and who is
said to have participated in a crime. Section 9 of the Act deals with the facts, which are
not so connected but are necessary to introduce or explain the facts in issue or relevant
facts.
The object of conducting test identification parade is twofold. First is to enable the
witnesses to satisfy themselves that the prisoner whom they suspect is really the one
who has seen by them is in connection with the commission of the crime. Second is to
satisfy the investigating authorities that the subject is the real person whom the witness
had seen in connection with said occurrence.
Identification is an important process in the administration of justice. Where the court
has to know the identity of a thing or any person, any fact, which establishes such
identity is relevant. During the course of investigation test identification parades are
arranged by the police either in jail or at some other place. Certain persons are brought
to such place and the accused person is mixed with them .In case of property, the
property recovered is mixed with some other articles/properties of similar description.
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Then the Magistrate or the panch witnesses will ask the witness to identify the accused
person or the property in question.

4. Explain the Relevancy of Introductory or Explanatory Facts.

Definition:
Section 9: Facts necessary to explain or introduce relevant facts, or which support or
rebut an inference suggested by a fact in issue or relevant fact, or which establish the
identity of anything or person whose identity is relevant, or fix the time or place at
which any fact in issue or relevant fact happened, or which show the relation of parties
by whom any such fact was transacted, are relevant in so far as they are necessary for
that purpose.
Scope: under Section 9 the following facts are relevant: -
1. Facts which are necessary to explain a fact in issue or relevant fact.
2. Facts which are necessary to introduce a fact in issue or relevant fact.
3. Facts which support an inference suggested by a fact in issue or relevant fact.
4. Facts which rebut an inference suggested by a fact in issue or relevant fact.
5. Facts which establish the identity of anything or person whose identity is relevant.
6. Facts which fix the time or place at which the facts in issue or relevant fact
happened.
7. Facts which show the relation of parties by whom any such fact was transacted.
1. Facts which are necessary to explain a fact in issue or relevant fact:
This kind of evidence which is considered separately and alone from other
evidence would not amount to anything; but if it is taken into consideration in
connection with some other facts, proved in the case it explains and illustrates them.
Sometimes it gives strength to the evidence given by the other side. Such facts which
are necessary to explain the fact in issue or relevant are relevant under section 9. The
explanatory evidence is not relevant in itself. An explanation made equally will be
intended to diminish the force of the evidence produced by the adversary.
2.Introductory facts: In conducting a suit or proceedings we cannot jump directly to
the main fact. The judge should look out for some introductory matter and lookout for
circumstances leading up to it and the result that follows it. These facts which are

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introductory of a relevant fact are often of a great help in understanding the real nature
of the transaction, and in supplying the missing link.
3&4. Facts which support and facts which rebut an inference: there are certain facts
which are neither relevant as facts in issue nor as relevant facts. But they either support
the inference suggested by the fact in issue or relevant fact or they contradict the facts
in issue or relevant facts and for the purpose they are relevant.
5. The facts establish the identity of anything or person: in judicial proceeding, civil
or criminal, the courts have very often to determine the identity of persons or things. it
is held that identification of accused by the witness in the court is substantial piece of
evidence where the accused is known previously by the witness. However, when the
accused had been seen by the witness for quite number of times at different point of
time and places no test identification is necessary.
The object of conducting such identification parade is two fold: first is to enable the
witnesses to satisfy themselves that the prisoner whom they suspect is really the one
who was seen by them in connection with the commission of the crime. Second is to
satisfy the investigating authorities that the subject is the real person whom the
witnesses had seen in connection with said occurrence.
Apart from the identification parade, identity by voice and gait, finger print, foot
marks, identification of accused during night, family resemblance, sniffer dogs
and things.
6. Facts which fix the time or place in issue or relevant facts:
The fact of time and place become very important when the accused pleads alibi.
2. Facts showing relations: facts showing relationships of parties by whom such
facts was transacted are relevant.
Illustration:
1. The question is, whether a given document is the will of A.
The state of A’s property and of his family at the date of the alleged will may be relevant
facts.
2. A, accused of theft, is seen to give the stolen property to B, who is seen to give it to
A’s wife. B says as he delivers it- “a says you are to hid this” B’’s statement is
relevant as explanatory of a fact which is part of the transaction.
Conclusion: Section 9 is important and should not be lost in sight while applying.
Collateral facts enumerated under this section are ordinarily not admissible in evidence
unless appears that such facts are directly connected with the facts in issue. In other
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words, explanatory or introductory facts can be proved if they have a direct bearing on
the fact in issue.

5.Define admissions. State the persons whose admissions are relevant?

Introduction: Admission plays a very important part in judicial proceedings. If one

party to a suit or any other proceeding proves that the other party has admitted his case,
the work of the court becomes easier. Section 17 to 23 of the Indian Evidence Act deals
with Admissions. Admission is positive act of acknowledgement or confession. It is
conscious and deliberate act and not something which would be inferred. A party by
voluntary acknowledgement of the existence of certain facts during the judicial or quasi
judicial proceedings can concede as true or valid the allegation made in proceeding or
in notice.
Definition: Section 17 to 20 define admission. Section 21 gives as to which party to
the proceedings can use admission/ persons whose admissions are relevant. Section 22
excludes the oral evidence against the contents of documents. Section 23 deals with
relevancy in civil cases of admission made upon an expressed condition that it shall not
be given in evidence.
Section 17,18,19 and 20 together define admission. Section17 lays down that
statements, oral or documentary, which suggest any inference to any fact in issue or
relevant fact made by admissions.
The list of persons whose admissions are relevant:
Admission to parties to proceedings: Under the designation of parties the law includes
not only those who appear on the record in that capacity, but also persons who are
actually parties without so appearing. Persons who are not parties on the record but who
are interested in the subject matter of the suit are considered but the law as real parties
in interest and accordingly their admissions have the same weight as though they were
parties on record.
Admission by agent: The statements by agent are admissible against their principals
for the reasons similar to those which govern the statement of coparceners. It should be
borne in mind that admissions of the agent bind the principal only when made during
the continuance of the agency. The agents should be authorised either expressly or
impliedly to admit.
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Admission by agents in criminal cases: The rules of admissibility are, in general, the
same for the trial of civil and criminal cases. one principle in criminal jurisprudence is
that he who commands or procures a crime to be done, if he done, if it is done is guilty
of the crime and the act is jos act. Sometimes it so happens that the agent is quite
innocent and the principal is held guilty as in the cases of infants and idiots.
Admissions by pleaders, attorneys and counsels in civil cases: if the client appoints
the pleaders, attorneys and counsels in civil cases and gives him full authority to
conduct his case and gives him full information about facts, then the admission made
by such a counsel under his signature without some serious mistake is conclusively
binding upon the client and cannot afterwards be withdrawn. But an admission of law,
where it is erroneous, by the vakil is not binding on the client.
Admission by counsel in criminal cases: the law makes no provision for admission
by counsel in criminal case. No admission by counsel can relieve the prosecution of the
duty to prove the case. But when the counsel of the accused appears as witness to prove
some facts tje above principle does not apply.
Statements made4 in representative character: Where the party sues or is sued in a
representative capacity, the representative is different from the ordinary capacity and
only admissions made in former quality are receivable.
Persons having any proprietary or pecuniary interest: Where several persons are
jointly interested in the subject matter of the suit, the general rule is that the admissions
of any one these persons are receivable against himself and fellows, whether they all be
jointly suing or sued or whether an action be brought in favour of or against any one or
more of them separately, provided the admissions relate to the subject ,after in dispute
and made by the declarant in his character of a person jointly interested with the party
against whom the evidence is tendered. In general the statement of defence made by
one defendant cannot be read in evidence for or against his co-defendant.
Admissions of persons having joint interest: An admission is ordinarily in evidence
against the party making it. But admission of one party may be given in evidence against
another, when the admission is sought to be used has a joint interest with the party
making the admission, in the subject matter of the thing to which his admission relates
the statement made4 by a person who has any proprietary or pecuniary interest in the
subject matter of the proceeding or persons having derivative interest during the
continuance of the interest or admissions.

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Persons from whom the parties derive interest: a former owner of a land is so
identified in interest with a subsequent owner, holding under the same title, that his
respecting the title, made while in possession and vested with the title, are receivable in
evidence. This evidence is based on the theory that the self interest involved in the
ownership of the title is sufficient guarantee for the truthfulness of the statement against
an interest made by the owner. It must be borne in mind that the statement of one person
is binding upon the other only when the latter derives his title through the former.
Admissions by person whose position must be proved as against a party to a suit:
when two parties are litigating, statement of any one of them made prior to the litigation
may be proved at the trial if it amounts to admission. Ordinarily statements by
statements to a suit or proceeding are not relevant as against the parties.
Admission by persons expressly referred by party to a suit: This is another class of
admission of persons other than the parties when a party refers to a third person for
some information or an opinion on matter in dispute, the statement made by third person
are receivable as admission against the person referring.

Problems
1. A sues b as libel contained in a letter forming part of a correspondence. letters
between the parties relating to the subject out of which the libel arose, and forming
part of the correspondence in which it is contained, are these facts relevant.
Section 6 of Indian Evidence Act: State that Relevancy of facts forming part of the
same transaction. In this case even though the facts which, though not in issue, are so
connected with fact in issue as to form part of the same transaction are relevant, whether
they occurred at the same time and place or at different times and places.
In this, instant case even though the letters were not depicting the libel it is still relevant
because the letters between the parties were related to the subject out of which the libel
arose and correspondence of this letters could be considered as relevant facts in this
instant case.

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 UNIT-II
1.Explain confessions. when can they be proved and not proved?

Introduction: Section 24 of the Indian Evidence Act. This section comes under the heading of
Admission, so it is clear that the confessions are merely species of Admission. Section 24 to
26 deals with confessions which are irrelevant and section 27 to 30 deals with confessions
which the courts will take into account.
Meaning and definition:
The word confession has not been defined in the Act. Mr. Justice Stephen in his Digest of the
Law of Evidence has defined 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”. According to this definition a statement of an accused will amount to a confession if
it fulfills any of the following tow conditions:
1. If he states that he committed the crime he is charged with or
2. If he makes a statement by which he does not clearly admit the guilt yet from the
statement some inference may be drawn that he might have committed the crime.

Evidentiary Value of Confession:

A confession, if voluntarily and truthfully made is an efficacious proof of guilt. It is an important
piece of evidence and therefore it would be necessary to examine whether or not the
confession made by the appellant was voluntary, true and trustworthy.
Confessions are of two kinds namely judicial and extra judicial. Confessions made during the
course of judicial proceedings are called as judicial confessions. Confessions made outside the
course of judicial proceedings are called Extra Judicial confessions. The judicial confession of
an accused is good evidence and he can be convicted on the strength of it. However it is the
duty of the court to decide whether it believes a confession or not. The court must apply
double test: 1. Whether the confession was perfectly voluntary or not? 2. If so, whether it is
true and trust worthy. The court should carefully examine the confession and compare it with
the rest of the evidence, in the light of the surrounding circumstances and probabilities of the
case the confession statement should be accepted by the courts.

Section 24: A confession is admissible in evidence if it is free and voluntary. A confession made
be an accused in a criminal proceeding is irrelevant, if it is caused by any inducement, threat
or promise. Under this section a confession would be irrelevant if the following conditions
were satisfied:
1. It should appear to the court to have been caused by any inducement, threat or promise
2. The said threat, inducement or promise must have reference to the charge against the
accused person
3. It shall proceed from a person in authority and
4. The court shall be of the opinion that the said inducement, threat or promise is sufficient
to give the accused person grounds which would appear to his reasonable in reference to
the proceedings against him.

Section 25 Confession to police office: According to this section, a Confession made to the
Police officer is inadmissible. Whether orally or in writing or indirectly. The reasons is Police
office in India resort to malpractices and third rate methods to extort Confession. Hence the
legislature has laid down stringent rules, and regarded the evidence of police officers as
untrustworthy, and the object of the rules was to put a stop to the extortion of confession, by
taking away from the police officers the advantage of proving such extorted confessions
during the trial of accused persons.

16
Section26: Confessions made by an accused in police custody shall not be proved against the
accused.

Section 27: When an information, given by the accused in police custody leads to the
discovery of an incriminating material object, like jewellery, weapons, etc then that portion of
the information can be proved. The reason is such discovery guarantees truth of the
information. The following conditions have to be fulfilled to satisify section 27:
1. The accused in police custody has given some information in his confessional statement.
2. Such information must relate to the discovery of certain fact relating to the commission
of some offence.
3. In pursuance of such information, the police discovered certain facts.
4. The facts discovered must be connected with the offence.
When the above conditions are satisfied only that portion of the information, which
directly relates to the fact discovered, shall be relevant. However this section was
challenged on the ground that it violates Article 20(3) of the Indian constitution. The above
conflict was resolved by the supreme court , that such information obtained does not give
rise to a presumption that the information was given under compulsion. it is for the
prosecution to find out whether the accused gave the information voluntarily or by
compulsion.

Section 30: Consideration of proved confession affecting person making it and others jointly
under trial for same offence. The court may take into consideration such confession as against
such other person as well as against the person who makes such confession.

Distinction Between Admission And Confession

ADMISSION Confession

It means voluntary acknowledgement as to A confession is a statement made by an

the truth of a fact. accused admitting his guilty

Admission is defined under section 17, 18, Confession is not defined under this act as
19, 20 it is the part

All admissions are not confessions Judicial confession is a conclusive proof.

Admissions are made in both civil as well as
criminal case.

Admissions are made in both civil as well as Confessions are only made in criminal
criminal case. cases.

Admission by one of the several defendants Confession must be made by the accused
in suit is no evidence against other himself.
defendants
Admission may be used on behalf of the Confessions made by one or two or more
person making it under the exceptions accused jointly
provided in section 21 of Evidence Act.

Admission is statement oral or written . Confession is statement written or oral

which gives inference about the liability of which is direct admission of suit.
person making admission.

17
2.What is meant by dying declaration? Explain its evidentiary value.
Meaning and definition: Under Section 32, statements written or verbal, of relevant
facts when made by a person:
i. who is dead
ii. who cannot be found
iii. who has become incapable of giving evidence or,
iv. whose attendance cannot be procured without an amount of delay or expenses
which under circumstances of the cases, appears to the court unreasonable and
inadmissible.
1. when it relates to the cause of his death, or to any of the circumstances of the
transaction which resulted in his death, or
2. when it is made in course of business, or
3. it is made against the interest of the maker, or
4. when it gives its opinion as to public right or custom or matters of general interest,
or,
5. when it relates to existence of relationship, or
6. when it is made in will or deed relating to family affairs, or
7. when it is made in document relating to transactions relating to section 13.
Meaning of dying declaration: “ a dying declaration is a declaration written or verbal
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.
Illustration: A has been attacked by B. If A, shortly before death, makes a declaration
holding B, responsible for his injuries, it is called dying declaration.
Reasons for admissibility of dying declaration:
Dying declaration is admissible for the following two reasons:
1. As the victim is sole eye witness, exclusion of his evidence defeats the ends of
justice.
2. Declarations made by a person under expectation of death are presumed to be true.
Conditions: For admissibility of dying declaration, the following conditions are to be
satisfied:
1. The person making the statement must have died
2. Injuries must have caused the death.

18
3. Statement must have been made as to cause of his death or as to circumstances of
the transaction resulting in his death.
4. The cause of his death must be in question.
5. The person making statement must be in a fit condition to make the statement.
6. The statement must be complete.
7. Declaration must be competent.
Evidentiary value of dying declaration: the evidentiary value of the dying declaration
will vary according to the circumstances of a particular case in which it is made. While
considering the value of dying declaration, the courts take into account the whole but
not a part of it. It cannot be allowed as sole basis for conviction for the following
reasons:
1. The declarant is not subject to cross-examination.
2. The declarant may be in a state of confusion.
3. The declarant may take last opportunity to take revenge against his enemies.
Conclusion: Pakala Narayana Swamy Vs. King Emperor is a leading case. In this
case the court (Privy Council) made it clear, that the evidence of any such circumstances
must be proximately related to the actual occurrence only then it shall be admissible in
evidence as dying declaration.

3.“oral evidence in all the cases be direct” explain and state the exceptions if any.

Introduction:
Relevancy and admissibility are not the same thing. “ strictly speaking
admissibility is a quality standing between relevancy or probative value on one hand
and proof or weight of evidence on the other hand. Section 6 to 55 give the definition
or rather a list of relevant facts. Under the Evidence Act the terms relevant or “ the facts
that may be proved” are synonyms and the term irrelevant is a synonym of the term “
the fact that shall not be proved”. Evidence given by the witness may be oral or
documentary.
Section 60 lays down that oral evidence must be direct. By direct it is meant that :
1. If evidence is to be led about a fact which can be heard, a witness must be produced
to say that he heard it;

19
2. If the evidence is to be led about the fact which can be seen the witness produced
must say that he himself saw it;
3. If the evidence is to be given about a fact which can be perceived by any other sense
or in any other manner the witness produced must say that he perceived it himself
by that sense or in that manner; and
4. If the evidence is to be given about an opinion or as to the found on which opinion
is to be held the witness produced must say that he holds that opinion and on those
grounds.

Scope:
If oral evidence refers to the existence or condition of any material thing other than
a document, the court may if it thinks fit, require the production of such material thing
for its inspection. The fundamental principle of law of Evidence is Hearsay Evidence
must not be admitted. Hearsay Evidence is also known as derivative or second hand or
unoriginal evidence. It is the evidence of facts, which the witness has not learnt through
his own bodily senses, but learnt through the medium of others. It is regarded as
unambiguous and misleading and hence inadmissible. Hearsay evidence is that
evidence which comes indirectly that is to say which comes not from the knowledge of
the person who deposes it but through some other person.

Evidentiary value :
Hearsay evidence are excluded in evidence and there is no single reason for its
exclusion. Some of the reasons are state below:
1. The Evidence is not given on oath or under personal responsibility by the original
declarant.
2. It cannot be tested by cross-examination.
3. It supposes some better evidence and encourages substitution of weaker for stronger
evidence.
4. It has a tendency to protract legal investigation.
5. It greatly increases expenses.
6. Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of
the facts and frauds which may be practiced under its cover.
7. As truth deprecates in the process of repetition it is not reliable.
8. Its repetition will increase opportunities for fabrication.
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Exceptions To Hearsay Rule:
The Indian Evidence Act provides for certain exceptions to this general rule,
hearsay evidence is no evidence, but is admissible under the following circumstances:
1. Res gestae
2. Admission and confessions
3. Statements by a person who cannot be called as witness. (Dying declaration)
4. Evidence given in the former proceedings
5. Entries in the books of accounts kept in the ordinary course of business
6. Statements in public documents.
7. Opinions of experts.
8. Statements contained in public documents.
9. Learned treatises.

5.Who is Expert? State the circumstances in which expert opinion become

relevant?
Introduction:
The general rule is that opinion of a witness on a question, whether of fact or law
is irrelevant. Opinion of expert (third person) is relevant under section 45 as an
exception to this general rule. These are the parties not directly or indirectly
connected in any manner to the suit or proceeding which is pending in the court, but
they are called by the Court to assist the Court, when the Court cannot form the
judgement himself. Section 45 to 51 of Indian Evidence Act 1872 lays down the
provisions relating to "opinion of experts/ third person when relevant. Section 45
deals with facts bearing upon opinions of experts, Section 47 deals with opinion as to
handwriting when relevant. Section 47A provides for opinion as to digital signature ,
when relevant. (It is inserted by IT Act 2000) Section 48 deals with opinion as to
existence of right or custom when relevant. Section 49 deals with opinions as to
usages , tenets etc., when relevant Section 50 deals with opinion on relationship, when
relevant. and Section 50 provides for grounds of opinion, when relevant.
An expert is a skilful professional in a particular field capable of possessing
specialized knowledge concerning the matter in issue, which a common man cannot
possess.

21
Meaning of opinion of Expert
Section 45 of Indian Evidence Act defines Opinions of experts as, "When the
Court has to form an opinion upon a point of foreign law, or of science, or art, or as to
identity of hand writing 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 person 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, in capable 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 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 opinion of
experts on the question whether the two documents were written by the same person
or by different persons are relevant.
The expert witnesses are the persons who have not seen a commission of a
particular act and they are not personally interested in the suit or proceeding but they
are called upon to help the Court pf law. According to Section 45 of the Indian
Evidence Act, the Court refers to the opinions of the persons specially skilled in
foreign law, Science, Art or as to the Identity of handwriting or finger impressions,
and the opinions are relevant and admissible. Thus the opinion of expert witness plays
an important role in the matter of evidence and enables the Court to arrive at proper
conclusion. The experts opinion is only a piece of evidence and cannot be taken as
substantive piece of evidence since it is to be judged along with other evidence.
Mohd. Zaid v. State of Tamil Nadu 1999 Cr LJ 3699
In this case Supreme Court held that the Evidence of a doctor conducting post
mortem without proceeding any authority in support of his opinion is not sufficient to
grant conviction to an accused.
22
4) Relevancy of Opinion :
i) Opinion of examiner of Electronic Evidence (Section 45A)
When in a proceeding, the court has to form an opinion on any matter relating to
any information transmitted or stored in any computer resource or any other electronic
or digital form, the opinion of the Examiner of Electronic Evidence referred to in
section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
Explanation - For the purposes of this section, an Examiner of Electronic Evidence
shall be an expert.
ii) Facts bearing upon opinions of experts (Section 46) :
Facts, not otherwise relevant, are relevant if they support or are inconsistent with
the opinion of experts when such opinions are relevant.
Illustrations :
(a) The question is, whether A was poisoned by a certain poison. The fact that other
persons who were poisoned by that poison, exhibited certain symptoms which experts
affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.
The fact that other harbours similarly situated in other respects, but where there were
no such sea-walls, began to be obstructed at about the same time is relevant.
iii) Opinions as to handwriting, when relevant (Section 47)
when the Court has to form an opinion as to the person by whom document was
written or signed, the opinion of any person acquainted with the handwriting of the
person by whom it is supposed to be written or signed that it was or was not written or
signed by that person, is a relevant fact.
Explanation –
A person is said to be acquainted with the handwriting of another person when he
has seen that person write, or when he has received document purporting to be written
by that person in answer to documents written by himself to under his authority and
addressed to that person, or when in the ordinary course of business document
purporting to be written by that person have been habitually submitted to him.
Illustrations :
The question is whether a given letter is in the handwriting of A, a merchant in
London. B is a merchant in Calcutta, who has written letters addressed to A and
received letters purporting to be written by him. G is B’s clerk, whose duty it was to
examine and file B’s correspondence. D is B’s broker, to whom B habitually
23
submitted thee letters purporting to be written by A for the purpose advising with him
thereon.
The opinions of B,C and D on the question, whether the letter is in the handwriting of
A, are relevant though neither B, C or D ever saw A, write.
iv) Opinion as to digital signature when relevant (Section 47A)
When the Court has to form an opinion as to the "digital signature" of any person, the
opinion of the Certifying Authority which has issued the Digital Signature Certificate
is a relevant fact.
v) Opinion as to existence of right or custom when relevant (Section 48)
when the Court has to form an opinion as to existence of any general custom or right,
the opinions as to the existence of such custom or rights, of persons who would be
likely to know of its existence if it existed, are relevant.
Explanation –
The expression “general custom or right” includes customs or right common The
Orient Tavern any considerable class of persons.
Illustration
The right of the villagers of a particular village to use the water of a particular well is
a general right within the meaning of this section.
vi) Opinion as to usage’s, tenants, etc., when relevant (Section 49)
When the Court has to form an opinion as to - the usage’s and tenants of any body of
men or family, the constitution and government of any religious or charitable
foundation, or the meaning of words or terms used in particular districts or by
particular classes of people, the opinions of persons having special means of
knowledge thereon, are relevant facts.
vii) Opinion on relationship, when relevant (Section 50)
When the Court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of such relationship, or
any person who, as a member of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in
proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under
section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations

24
(a) The question is, whether A and B were married. The fact that they were usually
received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was
always treated as such by members of the family, is relevant.
viii) Grounds of opinion when relevant (Section 51) :
whenever the opinion of any living person is relevant, the grounds on which such
opinion is based are also relevant. Illustration An expert may give an account of
experiments performed by him for the purpose of forming his opinion.
5) Evidentiary Value of Expert Opinion/ Admissibility of Expert :
According to Section 45 of Indian Evidence Act, 1872 before a person
characterized as an expert, it is necessary that there must be some material on record
to show that he is skilled in particular science and is possessed of a particular
knowledge concerning the same. He must have special study of the subject or
acquired special experience therein. Thus testimony of witness
becomes admissible, his competency of an expert must be shown, may be, by
showing that he was possessed of necessary qualification or that he has acquired
special skilled therein by experience, It is for judge his expertisation of the particular
subject.
6) Case Law :
a) In S. Gopala Reddy v. State of A.P , it was held that the evidence of an Expert is a
weak type of evidence and court consider it is unsafe to relay on it without
independent and reliable corroboration.

b) In Anwar Vs.State of Haryana, 1997) SCC 766, it was held by the Court If the
medical evidenceis totally inconsistent with the occular evidence it would be
permissible for the court to reject the oral evidence thougghbmedical evidence is
opinion evidence.
Conclusion
Unlike an ordinary witness, expert witnesses have a separate standing as a
witness in a court. It is interesting to note that an expert’s report cannot be questioned
in the court. The report is questioned when the ability and knowledge of the expert to
make that report is in question. The experts are judged with a different eye by the
court since they are just giving an opinion and are not aware of the facts of the case.
But still, an expert’s opinion matters as the court has no knowledge of that particular
25
field of expertise and they will not be able to impart justice without seeing the other
side of the coin.

Problems:
1.A was called to police station for interrogation. During interrogation ‘a’
complained of severe stomach pain. He was taken to hospital in a police van, while
in hospital, he confessed to a doctor that the committed robbery. is the confession
admissible?
Section 32 (1) of the Evidence Act states that the dying declaration is that the statement
made by a person to the cause of his death or as to any of the circumstances of the
transaction which resulted in his death and such details which fall outside the ambit of
this are not strictly within the permissible limits as laid down in the section.
The section is clear that such statements are relevant whether the person who made
them was or was not at the time when he made the statements was under the expectation
of death.
In this instant case the declarant was neither in contemplation of death nor was the death
due to the injuries. Hence the confession made by A could not be considered as dying
declaration.
2.A sues b for trespass on his land. B alleges the existence of a public right of way
over the land, which a denies.
SECTION-42- Relevancy and effect of judgments, orders or decrees, other than those
mentioned in Section 41, are relevant if they relate to matters of a public nature relevant
to the enquiry, but such judgments, orders or decrees are not conclusive proof of that
which they state.
In this case the existence of a decree in favour of the defendant, in a suit by A against
C for a trespass on the same land, in which C alleged the existence of the same right of
way, is relevant, but it is not conclusive proof that the right of way exists.

UNIT-III
1.What are public documents? State how public documents are proved?

Introduction: in Evidence Act, the Documents have been divided into two groups:
1. Private Documents; and
26
2. Public documents.
Public documents has been defined under section 74 and section 75 defines
private documents.
Section 74: Public Documents: the following documents are public documents:
1. Documents forming the acts, or records of the acts,
(i) Of the sovereign authority.
(ii) Of official bodies and tribunals, and
(iii) Of public officers, legislative, judicial and executive, of any part of India or of
the Commonwealth, or of a foreign country.
2. Public records kept in any state of private documents.
The mere fact that its copy is in office does not lead to the inference that it is a public
document. It must be prepared by the public servant in his official duty.
Eg: An electoral roll, records maintained by revenue officers, documents issued by the
concerned Government Department, public records, original will, registered
documents, memorandum of Association and Articles of Association of a company are
public documents.
Section 76: Certified copies of public document: Every public officer having custody
of a public document can give any person on demand a copy of it together with a
certificate that it is a true copy of such document. Such certificate should be dated and
subscribed by such officer with his name and his official title. It should also be sealed,
if such officer is authorised by law to make use of a seal. Such copies so certified shall
be called certified copies.
Section 78: Proof of official documents: the following public documents may be
proved as follows:
1. Acts, orders or notifications of the Central Government in any of its departments,
or of the Crown Representative or of any of its state government or any departments
any state Government, by records of the departments, certified by the heads of those
departments respectively, or by any document purporting to be printed by order of
any such government or; as the case may be, of the Crown Representative:
2. The proceedings of the Legislatures, by the journals of those bodies respectively,
or by published Acts or abstracts, or by copies purporting to be printed by order of
the Government concerned.

27
3. Proclamations, orders or regulations issued by Her Majesty or by Privy Council, or
by any department of Her Majesty’s Government, , or by copies or extracts
contained in the London Gazette, or purporting to be printed by the Queen’s Printer.
4. The Acts of the Executive or the proceedings of the Legislature of a foreign country,
by journals published by their authority, or commonly received in that country as
such or by copy certified under the seal of the country or sovereign, or by a
recognition thereof in some Central Act.
5. The proceedings of a municipal body in a State, by a copy of such proceedings,
certified by the legal keeper thereof, or by printed book purporting to be published
by the authority of such body.
6. Public documents of any other class in a foreign country, by the original, or by a
copy certified by the legal keeper thereof, with a certificate under the seal of a
Notary Public, or of an Indian Council, or diplomatic agent that the copy is duly
certified by the officer having a legal custody of the original, and upon proof of the
character of the document according to the law of the foreign country.
Conclusion: This section gives the method of proof of the document mentioned in the
section. A newspaper is not one of the documents referred in section 78,(2) by which
an allegation can be proved.

2.Explain the rule of exclusion of hearsay evidence and state exceptions.

Introduction:
The Evidence given by the witness may be oral or documentary. All facts except
the contents of documents may be proved by oral evidence. Thus oral evidence is the
evidence which is confined to words spoken by mouth. Oral evidence if worthy of credit
is sufficient without documentary evidence to prove a fact or title. In simple words, the
evidence of witnesses given oral is called oral evidence. Oral evidence includes
statements of witnesses before the court and with the permission of the court.
Section 60: Oral evidence must be direct- Oral evidence must, in all cases whatever, be
direct, that is to say-
It refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;

28
If it refers to a fact which could be perceived by any other sense or in any other manner,
it must be the evidence of a witness who says he be perceived by any other sense or in
any other manner,
If it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
Hearsay evidence: the word hearsay is used in various senses. Sometimes it means
whatever a person is heard to say; sometimes it means whatever a person declares on
information given by someone else.
Generally Hearsay evidence is no evidence at all. Hearsay evidence is that evidence
which is not based upon personal vision or hearing, but based on the learning of the
news through the medium of a third person.
For eg: if A says something to B and B comes and gives evidence in a court, then it is
hearsay evidence. Since hearsay evidence may lack truth, veracity and is subject to
rumours etc., it cannot be relied on.
Reasons for Exclusion of Hearsay evidence:
No single reason can be assigned for its exclusion. The following are the reasons for
exclusion:
1. The evidence is not given on oath or under personal responsibility by the original
declarant.
2. It cannot be tested by cross-examination.
3. It supposes some better evidence and encourages substitution of weaker for stronger
evidence.
4. It has a tendency to prolong legal investigation.
5. It a weak type of evidence
6. As truth depreciates in the process of repetition, it is not reliable.
7. Its reception will increase opportunities for fabrication.
Exceptions :
Hearsay evidence is no evidence except for certain exceptions. In other words hearsay
evidence is admissible under the following circumstances:
1. Res Gestae (statements which form part of the same transaction Sec 6).
2. Admissions and Confessions (Section 17-23 and 24-30)
3. Statement by a person who cannot be called as witness (Section 32 Dying
declaration)
4. Evidence given in the former proceedings (Sec 33)
29
5. Entries in the books of accounts kept in the ordinary course of business (Sec-34)
6. Statements in public Documents (Sec-35).
7. Opinions of Experts (Sec-45)
8. Statements contained in public documents (Sec-77)
9. Learned treatises.
10. Visual display of video-recording
11. Observation report of the investigating officer.

3. relevancy of character in civil and criminal cases?

Meaning of Character: “Character is the combination of quality distinguishing a
person, the individuality of which is the product of nature, habits and environment”.
Section 55 defines character as includes both reputation and general disposition which
are the inherent qualities of the person. Reputation means what is thought of a person
by others or otherwise called public opinion. Disposition refers to the whole
personality.
In evidence the good character of the person is always relevant whereas the bad
character is also relevant perhaps not admissible. It is only to prove the good character
of the person the bad character of a person is allowed.
Relevancy of Character in civil case and criminal case:
In civil cases, character of any person concerned is not admissible. There are certainly
cases in which character is a fact in issue or a relevant fact. Eg: defamation, character
of female chastity for an action for breach of promise for marriage.
The good character of an accused is always relevant and admissible in criminal cases.
But the bad character of the accused is not considered. There are two exceptions:
Firstly, if the accused gives evidence of his good character, and then the prosecution
can disprove it by giving evidence of his bad character.
Secondly when the fact in issue is the bad character of the offender, then the character
of the person is admissible. For Eg; A previous conviction of the accused is an evidence
of his bad character.
Conclusion: By way of evidence one can prove the bad character of the complainant.
Eg: when a man is accused of rape, then, he can show evidence for the immoral
character of the women.

30
4.Explain the circumstances in which Secondary evidence relating to the
documents may be given?

Introduction

Evidence forms an integral part of the justice delivery system. It is with the help of the
evidence that the alleged facts are proved in a court of law and the right decision is
taken. Evidence has been dealt with in detail in the Indian Evidence Act,1872. One of
the important forms of evidence mentioned in the Act is secondary evidence which
plays a significant role in proving the alleged facts in cases wherein the original
document, i.e. the primary evidence is not available due to exceptional circumstances.
The Act contains elaborate elements of secondary evidence that outline what forms of
documents can fall in this category.

The contents of the document can be proved generally by two methods:

1. Primary evidence
2. secondary evidence
1. Primary evidence: Primary evidence means the original document itself produced
for the inspection of the court. Eg: where a judgement originally written in English
was translated into Urdu and the judge signed the translation. It was held that it was
a primary evidence of its contents.
2. Secondary evidence: secondary evidence means and includes-
i. Certified copies given under the provisions hereinafter contained;
ii. Copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies.
iii. Copies made form or compared with the original;
iv. Counterparts of documents as against the parties who did not execute them;
v. Oral accounts of the contents of a document given by some person who has
himself seen it.
Secondary evidence may be given of the existence, condition or contents of a document
in the following cases-
a. When the original is in the possession or power
b. When the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his representative,
then written admission is admissible.

31
c. When the original has been destroyed or lost or cannot produce within reasonable
time.
d. When the original is of such a nature as not be easily movable.
e. When the original is a public document within the meaning of section 74, then
certified copies of the same can be produced.
f. When the original is a document of which a certified copy is permitted by this Act,
or any other law.
g. When the originals consists of numerous accounts of other documents which cannot
conveniently be examined in court.
Types of Secondary Evidence
Under section 76 the certified copies are defined. The correctness of certified copies
will be presumed under section 79, but that of other copies will have to be
proved. This proof might be managed by calling a witness who can swear that he had
contrasted the copy offered in evidence and the original, or with some other person
read as the contents of the original and that such is right. Copies are arranged by a
mechanical process.

The copies arranged by mechanical process and copies contrasted and such copies as
referenced in clause 2 of this section. In the previous case, as the duplicate is
produced using the original it guarantees precision. To this classification have place
copies by photography, lithography, cyclostyle, and carbon copies. Section 62 (2)
expresses that, where some of the document is made by one uniform process, as on
account of printing, lithography, or photography, each is primary evidence of the
substance of the rest, yet where they are on the whole copies of a typical original, they
are not primary evidence of the substance of the original.

HALSBURY states:
Photographs properly verified on oath by a person able to speak to their accuracy are
generally admissible to prove the identity of persons, or the configuration of land as it
existed at a particular moment, or the contents of a lost document.
The counterfoils of rent receipts being admissible for the property manager are not
admissible against the occupant.
A Photostat copy of a letter is a piece of secondary evidence, and it tends to be
conceded in case the original is demonstrated to have been lost or not promptly
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accessible, for a given reason, it isn't convincing proof in itself of the honesty of the
contents contained in that.
A carbon copy of a signature is a piece of secondary evidence within the meaning of
section 63 (2) of this Act, being a copy made by a mechanical process that ensures its
correctness.
A typed copy of a supposed parcel deed without charging that the archive falls under
one of the classes identified in section 63 of this Act, couldn't be held to be secondary
evidence.

Conclusion
Evidence is a basic piece of each case, regardless of whether it is a criminal case or a
civil suit as it approves a fact. The facts can be utilized in evidence for choosing just
as proving the disputed facts. Evidence appends weight to the facts cited as evidence.
In this way, different kinds of evidence can be utilized for proving and disproving
facts. Besides, evidence helps in checking down the time devoted to a specific case. In
this manner, it tends to be presumed that the evidence is for judicial conduct like the
reasoning for logic.

UNIT IV

1.What are presumptions? explain presumption in rape cases?

Introduction:

A presumption is a rule of law that attaches definite probative value of specific

facts or directs that a particular inference as to the existence of one fact not actually
known shall be drawn from a fact which is known and proved. It furnishes prima facie
evidence of the matter to which it relates and relieves the party of the duty of presenting
evidence until his opponent has introduced evidence to rebut the presumption. It raises
high degree pr probability in its favour that it must prevail unless clearly met and
explained. Presumptions may be either of law or fact and when of law may be either

33
conclusive or rebuttable but when of fact are always rebuttable. Mixed presumptions
are those which are partly of law and partly of fact.
If a fact is likely to have happened in the common course of natural events, according
to general human conduct, according to public and private business, in their relation to
the facts of particular case the court may presume the existence of such fact.

Meaning of Presumption:
Section 114: the court may presume the existence of any fact which it thinks likely to
have happened. Regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of particular case.
Eg: that a man who is in possession of stolen goods soon after the theft is either the
thief or has received the goods knowing them to be stolen unless he can account for his
possession.

Section 114-A: presumptions as to absence of consent in certain prosecutions for rape.

Section 114 A has been inserted by the criminal Laws amendment Laws of 1983. The
amendment became necessary partly because the growing incidence of rape and partly
because of the sensation; acquittal in Mathura Rape case.
In case of rape, direct evidence is not possible, since the offence takes place at the
secluded place. The statement made by the victim can be offered as material evidence.
In most of the cases of rape, the accused pleads consent as defence and gets acquittal.
This section provides for the courts to presume that, no consent was given by the victim.
Prior top the amendment, the prosecution was to prove the absence of consent of victim.
This amendment shifted the burden of proving consent from victim to the accused.

In order to constitute an offence of rape under Indian penal code two facts have to be
proved:
1. the accused had sexual intercourse with a women.
2. The rape was committed without her consent.

In order to punish the accused for rape the prosecution has to prove that the sexual
intercourse was committed without consent, because rape with pre-consent on an major
girl is no offence.

34
 When courts may presume the existence of certain facts:
To raise an adverse presumption against the accused, the following conditions
are to be satisfied:
1. The fact of sexual intercourse between the accused and the victim must be proved.
2. The question before the court was whether such intercourse was with or without
the consent of the victim and
3. The statement of the victim before the court but she had not consented.

CONCLUSION; For application of section114-A of the Indian Evidence Act. The

following condition must be satisfied:
1. The accused must be prosecurted for rape under clause (a) or (b) or (c) or(d) or (e)
or (g) of sub section (2) of section 376. Clause (f) has been excluded because sexual
intercourse with a girl under sixteen years is rape even if consent has been given.
2. It must be proved that accused had sexual intercourse with the woman
3. The only question in issue must be whether sexual intercourse was with her consent.
4. The woman should depose before the court that she did not give her consent.
If these consitions are satisfied the court shall presume the absence of consent and
the burden of proving consent will be on the accused. If he cannot prove consent he
cannot be acquitted. The presumption under this section is presumption of law.

2. what are presumptions? explain presumptions in dowry death cases.

Meaning of presumptions: presumption is an inference, which takes place in the
absence of absolute certainty as to truth or falsehood of a fact. In other words,
presumption is an inference drawn by the court as to the truth of a particular fact, forms
other known or proved facts.
Classifications of presumptions: presumptions may be classified as follows;
1. Presumption of fact or natural presumption or May presume.
2. Presumptions of law or Artificial presumptions-
a. Rebuttable presumptions of law or shall presume.
b. Irrebutable presumptions of law or Conclusive proof.
3. Presumptions of mixed law and fact

Section 113-B Presumptions as to dowry death: Section 133-B- when the question
is whether a person had committed the Dowry Death of a woman and it is shown that
35
soon before her death such woman had been subjected by such person to cruelty or
harassment for or in connection with, any demand for dowry, the court shall presume
that such person had caused the dowry death.
The presumption can be raised only on proof of the following essentials:
i. The presumption can be raised only if the accused has committed the dowry
death of a woman. If the accused is being tried for the offence under section
304-B of I.P.C.
ii. The woman was subjected to cruelty or harassment by her husband or his
relatives.
iii. Such cruelty or harassment was for or in connection with, any demand for
dowry.
iv. Such cruelty or harassment must have taken place immediately before her death.

In Kans Raj Vs. State of Punjab, the Supreme Court explained the term soon before
which occurs in Section 113-B. It is held that the term soon before is a relative term
which is required to be considered under specific circumstances of each case, and no
strait jacket formula can be laid down by fixing any time. This expression is with the
idea of proximity bar.
Soon before her death implies not much interval between cruelty or harassment and
death. There must be a proximate and live link between the effect of cruelty based on
dowry demand and the concerned death

3. write a short note on burden of proof

Section 101 to 114 A deals with the Burden of proof. When a fact is to e given in
evidence, the first quest5ion, which arises, is ‘Who has a duty to prove the fact”. In
other words, on whom does the burden of proof lies?
Meaning: The expression ‘burden of proof’ means an obligation to prove a fact. Every
party has to establish facts, which go in his favour or against his opponent. In other
words, “he who asserts must prove”. The reason is one who drags another into the court
must bear the burden of proving the facts which he asserts.
Definition: Section 101: “ whoever desires any court to give judgement as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that
these facts exists.

36
 Example: Suppose A desires a court to punish B for commission of a crime, the burden
lies on A to prove the case.
Burden of proof in Civil and Criminal cases:
In criminal cases, there is a presumption in favour of innocence of the accused and the
burden rests on the prosecution to establish his guilt beyond reasonable doubt. He is not
required to rebut the case made out against him until the evidence is sufficient to
establish his guilt beyond reasonable doubt and even in such case it would be enough
for him to introduce only such evidence as will again create a reasonable doubt as to
his guilt. It is only where the accused relies upon some independent matters of defence
or general exceptions that he has to offer evidence in support of such defence or
exceptions.
In civil cases the plaintiff is required prove his case by preponderance of evidence. The
reasons for this relaxed rule in civil cases are:
1. In criminal cases there is a presumption of innocence in favour of the accused, but there
is no such presumption in civil cases.
In civil cases proof may result in a judgement for pecuniary damages or establishing a
right, but in criminal cases reputation, freedom, future livelihood, career and even life
are involved

4.write a note on presumption of legitimacy of a child:

Section 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 eight days after its dissolution, the
mother remaining unmarried, shall e 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.
Maternity admits of positive proof, but paternity is matter of inferences. The
connection of a child with his father is secret but it may be ascertained by the subsisting
facts. Section 112 lays down the rule for the proof of the paternity of an individual. This
section lays down that if child is born during the continuance of valid marriage between
the mother and a man or within 280 days after the dissolution of the marriage, the
mother remaining unmarried it shall be presumed that the child is a legitimate son of
that man unless and until it is shown that the parties to the marriage had no access to
each other any time when the child would have been begotten.
37
 Essential conditions:
To establish legitimacy under section 112, the following conditions must be satisfied:
1. The child must have born during the subsistence of a valid marriage.
2. The child must have born within 280 days of the dissolution of marriage.
3. When a child is born within 280 days of the dissolution of the marriage, the mother
must have remained unmarried; and
4. It should be shown that the husband and wife had no access to each other.
In Thimmakku Vs. Rangappa’s case A child was born after 280 days after the
dissolution of the marriage the court held that the child is illegitimate.
Conclusion: In Kamti Devi Vs. Poshi Ram, the supreme court held that Section 112
of Evidence Act was enacted at the time when modern scientific advancement with
Dioxy Nucleic Acid (DNA) as well as Ribo Nucleic Acid (RNA) was not even in
contemplation of the Legislature. Even though the result is genuine DNA test is said to
be scientifically accurate but even that is not enough to escape from the conclusiveness
of Section 112. If the husband and wife were living together during the time of
conception but if the DNA test reveals that the child was not born to the husband the
conclusiveness in law would remain unrebuttable. However this hard point from view
of the husband who would e compelled to bear the fatherhood of the child of which he
may be innocent. But even such case the law leans in favour of the innocent child from
being a bastard.

5.define estoppel and explain its kinds

Introduction: The expression Estoppel is derived from the French word ‘Estoup’
which means shut your mouth. Generally we hear what ever a person says. If he says
something and then contradicts then we should not ber hearing any more. The doctrine
of Estoppel applies in cases affecting rights. Estoppels can be described as rule of
creating or defeating rights. Estoppel is described as merely a rule of evidence it may
have the effect of creating substantive rights as against person stopped. Estoppel may
itself be foundation of right as against the person stopped.

Meaning: Estoppel may be defined as a disability whereby a party is precluded from

alleging or proving legal proceedings that a fact is otherwise than it has been made to
appear by the matter giving rise to that disability.

38
Section 115 defines estoppels that when one person by making false representation
either in words or conduct has intentionally caused a person to believe to a thing to be
true and to act upon such belief, neither he nor his representatives in a subsequent
proceedings will be allowed to say that the representation was false.

The principle of estoppels is that when a person by his words, whether written or spoken
or by his conduct makes a representation that a certain state of things is true and the
other person relying upon the truth of representation alter his position, the person
making the representation will be stopped from denying the truth of it.
Essential elements:
To constitute estoppels the following conditions are to be satisfied:
1. There must be a declaration (act or omission) on the part of one person, intentionally
causing or permitting another person to believe a thing to be true.
2. The other person (to whom the declaration is made) must believe that thing to be
true.
3. There must be some act in pursuance of that belief.

Kinds Of Estoppel: Estoppel is of three kinds namely:

1. Estoppels by matter of record or quasi record
2. Estoppels by deed and
3. Estoppels in pais or estoppels by conduct.

Estoppel of record or quasi-order:- This refers to judgments or public records, which

are believed to be true. A person who acts in pursuance of judgement or records cannot
be stopped.
This estoppels arises :
1. Where an issue of fact has been judicially determined, in a final manner between
the parties by a tribunal having jurisdiction concurrent or exclusive in the matter
and same issue comes directly in question in subsequent proceedings between the
same parties;
2. Where the first determination was by a court having exclusive jurisdiction to
determination final manner as a substantive part of the judgment in rem of a
39
 tribunal having jurisdiction to determine that status, and the same issue comes
directly in question in subsequent civil proceedings between any party whatever.

Estoppel by Deed:
It means estoppels by an agreement. When a person enters into an agreement and his
statements is furnished therein, he shall not be permitted to deny his statement. Where,
in a deed made between two parties and verified by their seals, there is a statement of
fact, an estoppels results and it is called estoppels by deed. If upon the true construction
of the deed the statement is that of both or all the parties, the estoppel is binding on each
party, if otherwise it is binding on each party. If a deed is void on the ground that it was
obtained by fraud, force or other foul practice, or forgery, no estoppels can arise.

Estoppel by matter in pias: when a person, by acts or words or deeds induces another
person to believe the existence of a thing and make him to act upon it, he is estopped
from denying the existence of such facts. The estoppel in pias is now known as estoppel
by conduct or representation. This estoppels though not exists as a matter of record or
solemnity of deed may nevertheless under the circumstances conclude equally with the
higher species of averments. A compromise may work as an estoppels and applied
widely infinite varieties of cases.

CASE LAW: Udai Pratap v. Krishna Pradha, in this case the continuance of tenancy
was defined as a period during which the tenant enjoys the possession of the property
and is seeking benefits from it.

Moti Lal v. Yar Md, in this case the judge said that the tenant cannot say that the
landlord has no more interest in the property when the landlord filed a suit for default
payment and ejectment. It is only after leaving the possession can the holding of title
by the landlord be questioned.

Sri S.K. Sharma v. Mahesh Kumar Verma, in this case defendant upon attaining a
higher post was allotted a premise by the railway company. In the case, it was said that
even when it was not known whether the land belonged to the railway company or not,
the officer will have to evacuate the premises after retirement.

Section 117
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The section states that the acceptor of the bills of exchange cannot deny the person who
is supposed to draw the bills, from drawing it or endorsing it. Also no bailee or licensee
can deny the fact that at the time when the bailment and license began, the bailor and
the licensor had the authority to make bailment or to give license. The person accepting
the bills of exchange can deny that the bills of exchange were really drawn by the very
person who showed to have drawn it. If the bailor mistakenly delivers the goods to some
third party instead of the bailee, he can prove that a third party has the right over the
goods bailed against the bailor.

Scope

This section demarcates that the person who accepts the bills of exchange although
cannot deny that the person drawing the bills has the authority to draw or to endorse it
but can deny that the bills were actually drawn by the person by whom it appeared to
have been drawn.

The bailee or the licensor cannot deny the fact that at the beginning of bailment or grant,
the bailor or the licensor had the authority to perform it. But a bailee can prove that the
third party to whom the goods were delivered instead of the bailor had the right against
the bailee.

Conclusion

The Doctrine of estoppel is an important principle which protects people against fraud
or misrepresentation. There are several instances where an innocent person becomes a
prey to false representations made to them by some party. Sometimes the case may be
such that the plaintiff suffered huge losses. This doctrine avoids such situations and
charges the person for his wrongful conduct.

This legal principle gives an incentive to every one of those people who tries to make
false representations to other and induces them to act upon it by planting their faith in
them, and incur losses as a result of such false representations, by not performing such
acts, else they would be held liable.

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 UNIT-V
1.explain the order of examination of witnesses.

Introduction:
This topic gives manner of leading of the evidence of the competent witnesses. This
topic further deals with examination of the witnesses in chief , their cross examination,
the method of impeaching the credit of the witnesses and so on. The order in which
witnesses are to be produced shall be regulated by the law of practice for the time being
relating to civil and criminal procedure respectively.

Related sections:
Chapter –X containing section 135 to 166 of the Indian Evidence Act lays down the
provisions relating to Examination of witnesses. These section covers the order an
production and examination of witness, stages in examination of witness, leading
questions, Exclusion of evidence, hostile witness, impeaching credit of witness and
refreshing memory.

ORDER OF EXAMINATION OF WITNESSES:

Primarily it is the lawyer’s privilege to determine the order in which the witnesses
should be produced and examined. The arrangement of witnesses is a matter of
experience and skill. Though the counsel has discretion to produce his witnesses in the
order he likes, however the court has a power to dictate the order in which the witnesses
may be produced.
The order in which witnesses are to be produced and examined before the court. The
order shall be regulated by :
1. The law and practice relating to civil and criminal procedure and
2. In the absence of such law by the discretion of the court.
The right to begin is considered as an advantage to a party, particularly for one who has
a strong case for he gets the privilege of making the first impression. If the evidence is
tendered by the opponent, it gives his a right to reply, this gives him an opportunity to
create final impression in the mind of the court. When the evidence of party begins the
witnesses must be kept out of the court room. They should be examined one by one and
when witness is being examined other witnesses to be examined afterwards must not
be allowed to remain in the court room.
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Different stages in examination of witnesses:
Examination of witnesses consists of the following stages:
a. Examination in chief or chief examination
b. Cross examination and
c. Re-examination.

Examination In Chief: The examination in chief is the examination of witness by a

person calling him.
The object of this examination is to elicit from the witness all the material facts in order
to prove the case of the party calling him. It is not a very easy task as very often
imagined. It is the duty of the counsel to bring out clearly and in pro[per chronological
order every relevant fact in support of his client’s case to which the witness can depose.
Every question is to be framed with some definite object in view. Much depends on
examination in chief and the success of a case. For this case the examiner should not
only make himself thoroughly acquainted with the entire facts of the case. No leading
questions may be asked in examination in chief without the permission of the court.
Questions on introductory and undisputed or sufficiently established matter can be put
in examination in chief. We should be careful not to put your question in such a shape
that if opposed for informality, you cannot sustain it . Lastly never begin before you are
ready, and always finish when have done. Do not question for question’s sake, but for
an answer.

Cross examination:- The examination of a witness by the adverse party is called Cross
examination. The cross examinat6ion is the second in order. The object of cross
examination is two fold I,e to weaken, quantify or destroy the case of the opponent and
to establish the party’s own case of the opponent and to establish the party’s own case
by means of his opponent’s witnesses, to sift the facts already state by the witnesses,
to detect and expose discrepancies, or to elicit suppressed facts which will support the
case of the cross examining party. Leading questions may freely be asked in cross
examination.

Re examination:- After cross examination is over, the party who called the witness
feels necessary, may at one again be examined as the witness. Re examination is
43
examination of witness to remove inconsistency which may have arisen during
examination in chief and cross examination. Leading questions cannot be asked in re
examination and no new matter should introduced in re examination without the
permission of the court. If a material question has been omitted in the examination in
chief it cannot be asked as of right in re examination but the court has discretion to
allow such questions subject to conditions that the opposite party is then allowed to
cross examine the witness on any new matte4r.it then becomes re-cross-examination.

CONCLUSION; every Advocate becomes full pleged when he learns the art of
examining the witness and while he learns he is supposed to follow this procedure.

2.what are leading questions? when they can be asked?

Introduction: Section 141 to 143 of the Indian Evidence Act deals with ‘Leading
Questions’. Section 141 defines leading questions. Section 142 and 143 prescribe the
circumstances under which the leading questions may or may not be asked.
Meaning and definition: the expression ‘Leading Question’ literally means a question
which by itself suggest an answer which the person putting the question wishes to
receive it is a leading question. The question is a leading one when it indicates to the
witness the real or supposed fact which the examiner expects and desires to be
confirmed by the answer.
Examples:
1. Is the plaintiff your brother?
2. Have you not lived for 10 years with him?
3. Is this boy 10 years of age?
4. Is your name Sharath?
5. Do you reside at Allahabad.
In these questions, the examiner clearly suggests the answer. In such questions the
person putting the question is really giving the answer instead of receiving if from the
witness. Generally, the answers to the leading questions are given by “yes” or “no”.
When leading questions must not be asked/ exceptions:
Under section 142 lays down that leading questions should not e put in examination-in-
chief or re-examination if they are objected to.

44
Exceptions to this rule: this section provides exceptions to the general rule stated
above. Leading questions may be put in examination-in-chief or re-examination by the
order of the court.
1. As to matters which are introductory;
2. Which are undisputed; or
3. Which in the opinion of the court have already been proved
4. Besides these exceptions under Section 154, a court can allow a party examining
his own witness to put leading questions by way of cross-examination.
5. Objection to leading questions:
One should borne in mind that if the opposite side makes any objection, leading
questions may not be put in examination-in-chief or re-examination but such questions
may be put in examination-in-chief or re-examination if the court overrules the
objection. Objection to leading question is not that they are illegal but only that they
are unfair. The Act gives absolute discretion to court to allow or disallow leading
questions.
When leading questions may be asked:
Section 143 of the Evidence Act lays down that leading questions may be put in cross-
examination. But the counsel cannot put a question in cross-examination assuming that
some facts have been proved or admitted though they can put leading questions.

3.What are privileged communications? Explain.

Or
Explain the protection given to the following communications under Indian
evidence Act.
(a) Communication between Husband and wife
(b) Communication between client and his Advocate.

Introduction: Public interest demands for evidence which is withheld. The public
interest in the administration of justice demands the courts should have fullest possible
access to all relevant materials. When public interest outweighs the latter, evidence
cannot be admitted. It is not that the document should contain the material which it

45
 would be damaging to the national interest to disclose but rather than the documents
would be of class which demand protection.
Example: documents related to cabinet papers, foreign office dispatches, papers
regarding the security of the State and high level inter departmental minutes.
In the ultimate analysis the contents of documents so described that it could be seen at
once that in public interest document is to be withheld.
Section 123:
No one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of State, except with the permission of the officer as the
head of the department concerned, who shall give or withhold such permission as he
thinks fit.
Object:
Section 123 is based on the legal maxim Salus populist suprema lex which means
Public welfare is the highest law. This principle is justified or overriding and of
paramount character of public interest. The theory is based on the question of
production of document as it would cause injury to public interest and would lead rise
to conflict between public interest and private interest.
When to claim privilege:
 The discretion power to claim privilege is been left to the responsible Government
official to look at the document to consider it and to decide for himself whether the
document falls in the category of document of state referred to in Section 123.
 This privilege can be taken in respect of any document only if it applies to unpublished
official records relating to any affairs of state.
 Before the privilege can be claimed there must be an adjudication that the documents
in respect of which privilege is claimed, are official records relating to affairs of state.
 The privilege relating to official records can be claimed only if the disclosure of which
would result in an injury cause to public interest.
 If there is a conflict between public interest and private interest, the public interest shall
prevail over.
 The privilege should be claimed generally by the minister-in-charge who is the political
head of the department concerned.
 The claim should always be made in the form of an affidavit.

46
 Each document in question has been carefully read and considered, only after it is
satisfied that its disclosure would lead to public injury then only the privilege shall be
granted.
 The affidavit should also indicate briefly within permissible limits the reason why it is
apprehended that their disclosure would lead to injury to public interest.
 If the affidavit produced in support of the claim for privilege is found to be
unsatisfactory a further affidavit may be called, and improper case the person making
the affidavit whether he is a Minister or the Secretary should be summoned to face
cross-examination on the relevant points.
Who is supposed to decide about the privilege:
The final authority to decide as to whether a document is privileged, rests with
the head of the department concerned. According to the Act Section 162 reads that the
court is the final authority.

Examples of privileged communications

Following are the examples of privileged communications under the Indian Evidence
Act, 1872:

Professional communication between a lawyer and a client

It is a statutory obligation under Section 126 of the Indian Evidence Act for an advocate
to not disclose without the consent of the client any-
1. communication to him by the client or vice versa,
2. contents or conditions of a document, and
3. the advice given to the client,
which was obtained or given in the course and for the ‘purpose of such employment’.
This phrase means that no privilege attaches to communication to an attorney consulted
as a friend. This obligation continues even after employment has ceased. This
encapsulates the rule of “once privileged always privileged”.
The privilege under Section 126 is subject to certain exceptions i.e. under the following
conditions communication can be disclosed:
1. When the communication was made in furtherance of an illegal purpose;

47
2. When the attorney gets to know that a crime or fraud has been committed since
employment began;
3. When the client gives consent;
4. When the information falls into the hands of a third party;
5. When a lawyer sues the client for professional purpose.
Section 127 of the Evidence Act states that Section 126 applies to-
 Interpreters
 Clerks or servants of barristers
 Pleaders
 Attorneys
 Vakils
In the case of Court in its own motion vs. State, Delhi High Court answered the
question, whether a child victim should be permitted to waive the privilege of the
counsellor? Court held that it can be done if the child does it knowingly and voluntarily
and waiver is in the interest of the child provided the reasons for a waiver should be
recorded in writing in the order.
In the case of Karamjit Singh v. State, the Court held that one cannot ask for
disclosure of any professional communication and documents of attorney and client
under the Right to Information.
In the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett, the Court observed
that in a defamation case where the evidence in question is proved to be privileged then
the burden to prove not just normal malice but express malice lies on the plaintiff. The
Court stated that if the occasion is privileged then the publication by a person
‘exercising the privilege to third persons’ if it is reasonable and in the ordinary course
of business, where communication wasn’t possible except in the presence of
uninterested people, it is protected. The privilege can’t be destroyed merely because
third-persons(clerks, typists or copyists, etc.) do not have a legitimate interest in the
subject matter.
Privileged communication between a married couple
Trust between the spouses is the foundation of a marriage. It is very crucial to protect
the privacy of the confidential communication between the spouses during the marital
relationship to maintain the peace of families. Both the spouses are obliged
under Section 122 of the Indian Evidence Act not to disclose any communication which

48
has happened during their marriage. It is important to note that the protection applies to
all sorts of communications between husband and wife.
Exceptions to this clause
 Acts or conducts apart from the communication can be disclosed.
In the case of Ram Bharose v. State of U.P., the husband was accused of theft of
jewellery which he had gifted to her wife. He told his wife that he had obtained it
from her previous home. The wife in the Court discloses the conduct of the accused
that he had seen her husband coming down from the roof and after taking a bath
gifted it to her. Court held that the wife could testify as to the conduct but not the
conversation.
 If the party who made the communication consents to its disclosure i.e. waives the
privilege, then the evidence of privileged communication can be given.
 In Suits or criminal proceedings between the two spouses.
 Communications made before marriage or after dissolution of marriage.
The landmark judgement of Nagraj Alias Kumar v. State of karnataka, the Court
observed that even though Section 120 of the Evidence Act permits a spouse to tender
evidence against the other spouse except in suits or criminal proceedings between the
two spouses. Section122 makes it clear that privilege extends to all communications,
the said communication does not need to be confidential. Only spouses who made the
communication can waive it and not the witness as the privilege doesn’t extend to them.
Even the Court cannot permit the witness to disclose even if he/she is willing to share.
It is incumbent to ask for the consent of the party against who the evidence is being
given under Section122 of the Evidence Act.
In another landmark case of M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme
Court held that only communications that took place during the marriage are protected
under the privilege mentioned in Section 122 of the Evidence Act. The protection
continues even after the dissolution of marriage or the death of one of the spouses.
Communication before the marriage or after the dissolution of a marriage doesn’t come
under the purview of sec 122.
Privileged communication between a doctor and the patient
In India, The Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 regulate the conduct of medical professionals.

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Rule 7.14 of these regulations provides that the secrets of a patient that the registered
medical practitioner has learned during the exercise of his/her profession cannot be
disclosed. Few exceptions to this rule are:
1. When a presiding judge in a court orders to disclose the privileged communication
2. When there exists a serious risk to a specific person and/or community
3. In case of a notifiable disease concerned public authorities should be immediately
informed
Rule 7.17 states that “A registered medical practitioner shall not publish photographs
or case reports of his / her patients without their permission, in any medical or other
journal in a manner by which their identity could be made out.” It is to be noted that if
the identity is not to be disclosed then no consent is needed.
Chapter 8 of the Rules states that if any medical practitioner violates the Physician-
patient privilege then the Medical Council of India(MCI) can take any action as it deems
fit against the registered medical practitioner in question, once he/she is held guilty after
the inquiry. MCI can also “direct the removal altogether or for a specified period”.
The power to formulate these rules is enshrined in MCI under Section 20A of Indian
Medical Council Act.
In the landmark judgment of Mr. X Vs. Hospital Z, the Supreme Court held that a rule
of confidentiality has certain exceptions, one of which is the disclosure of privileged
communication between the doctor and client if it poses a serious risk to a person in
case of non-disclosure. Public interest can override the right to confidentiality. For
instance, in the given case it was necessary to disclose to the wife that the husband has
HIV-AIDS.
Right to privacy and Privileged Communication
Article 21 of the Constitution of India states, “No person shall be deprived of his life
or personal liberty except according to the procedure established by law”, it has an
encyclopedic ambit. It covers all aspects of life, one of which is Privacy. Right to
privacy isn’t expressly written in the Indian Constitution but overtime judicial
proceedings have shown that it comes under the ambit of Article 21.
The law safeguards the right to privacy by protecting from the disclosure of privileged
communication. It takes away the evidentiary value of confidential communication.
Section 122 of the Indian Evidence Act interdicts married couples from disclosing any
confidential communication which happens during the marriage. Similarly, sections

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126 to 129 of the Evidence Act deal with attorney-client privilege. The concept of
privileged communication strengthens the fundamental right to privacy.
Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for
attorneys and Rule 4.14 and 4.17 of The Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 for medical practitioners bars the
disclosure of privileged communication. Violation of any of these laws is an automatic
violation of the right to privacy under Article 21 of the Indian Constitution.
In the case of Vishal Kaushik v. Family Court, the Court held that if the conversation
between two spouses is recorded by one of the spouses without the knowledge of the
other spouse, that evidence will not be admissible in the Court. In fact, this act will
amount to a breach of privacy under Article 21 of the Indian Constitution and the spouse
who has recorded will be held liable.

3.Explain professional communications. state the exceptions to them?

INTRODUCTION:
Section 122 to 132 of the Indian Evidence Act provide for privileged communications.
The expression privilege means a peculiar advantage or some special benefit conferred
by virtue of sex or one’s position. There are certain circumstances or occasions in which
a person is free to express his views or publish any statement without any fear of being
subjected to civil and criminal liability. Any statement made by such person is said to
be a privileged communication. Some of the instances of privilege communications are
as follows:
1. Communication during marriage
2. Evidence as to affairs of state.
3. Official communications
4. Information as to commission of offences and
5. Professional communication.

MEANING OF PROFESSIONAL COMMUNICATIONS:

According to section 126, no barrister or attorney or pleader or vakil shall be permitted
to disclose any communication of his clients. This privilege continues even after the
relationship ends. By reason of the complexity of law, litigation can only be properly
conducted by professional men. A litigant, in order to get a correct legal opinion and to
make his vakil or pleader fully conversant with the facts of the case, has to make a clean
beast.
A man of legal profession, is forbidden from disclosing without his client’s consent
under the following circumstances:

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1. Any communication made to him in course of an for the purpose of his employment
2. Any such communication made in furtherance of any illegal purpose.
3. The contents of conditions of any document of any document which came to his
knowledge in the course of and for the purpose of his employment or
4. Any advice by him to his client in the course of and for the purpose of such
employment.

EXCEPTIONS:
The communications would not be privileged under the following circumstances:
1 when such communications are for an unlawful purpose having for their object the
commission of a crime.
When after the employment of the lawyer he observes that some crime has been
committed.
This section has been enacted for the protection of the client and not of the lawyer. The
lawyer is therefore bound to claim the privilege unless it is waived by his client.
Illustration: the obligation stated in this section continues after the employment has
ceased.
(a) A, a client says to B, an attorney- I have committed forgery and I wish you to
defend me.
As a defence a man known to be guilty is not a criminal purpose, this
communication is protected from disclosure.
(b) A, a client, says to B, an attorney- I wish to obtain possession of property by the
use of a forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not
protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the
course of proceedings, B observes that an entry has been made in A’s account
book, charging A with the sum said to have been embezzled, which entry was not
in the book at the commencement of his employment.
This being a fact observed by B in course of his employment, showing that a fraud
has been committed since the commencement of the proceedings, it is not protected
from disclosure.

CONCLUSION:
The privilege given by this section can be waived by the client and not by the legal
adviser. The waiver consists in the express consent of the client. If the client gives his
consent the communication so made may be disclosed by the vakil otherwise not.

4. Accomplice witness.

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Section 133: An accomplice shall be a competent witness against an accused, and
conviction is not illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice.
The term accomplice has not been defined under the Act, the term accomplice may
include all particeps criminis. An accomplice is a person who is guilty associate in
crime or who sustains such a relation to the criminal act that he can be jointly indicted
with the principal criminal. In general sense an accomplice means a guilty associate or
partner in crime, or in some way or other is connected with the offence in question or
who makes admissions of facts showing that he had a conscious hand in the offence.
Kinds/categories of accomplice:
An accomplice may come under any one of the following categories:
 Principal offender of First degree or Second degree.
 Accessories before the fact and
 Accessories after the Crime/fact.
I) Principal offender of First degree or Second degree: Principal offender of
first degree is a person, who actually commits the crime, while principal
offender of second degree is a person who abets or aids the commission of a
crime.
Eg: A administers poison through B to kill C. A is the principal offender in first
degree, and B is the principal offender in second degree.
ii) Accessories before the fact: Those persons, who abet or incite the commission
of a crime are called ‘Accessories before the fact’. They do not participate in
commission of crime but make necessary arrangements.
Eg: A gives financial aid or provides necessary facilities to B to commit murder of
C. Here, A is accessory before the fact.
iii) Accessories after the Crime/fact : Accessories after the fact, are thos3e , who
receive or protect or comfort the person who committed the crime. In other
words they help the accused in escaping from punishment.
Eg: a commits murder of B. If C knowing that A committed the murder and gives shelter
to A, C is called accessory after the crime/fact.
Testimony of an accomplice: under section 133 an accomplice is a competent witness
and a conviction based on the sole testimony of a accomplice is not illegal. The
established rule of law relating to the evidence of an accomplice, is whilst is not illegal

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to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence to be
universally followed as to amount to a rule of law that the courts ought not to pay any
respect to the testimony of an accomplice unless he is corroborated in material
particulars.

5.Hostile witness:

Section 154 of the Indian Evidence speaks about Hostile witness. The word hostile
literally means “unfriendly”. A witness is generally expected to give evidence in favor
of the party to whom he is called. But, in certain cases such witness may unexpectedly
turn hostile and gives evidence/ makes statements against the interests of the party, who
has called him. Such a witness is called hostile witness. He is also known as adverse
witness or unfavorable witness Under this section the party calling a witness may with
the permission of the court put leading questions and cross examine him. It frequently
happens that a witness who has been called in expectation that he will speak to the
existence of a particular state of facts, pretends that he does not remember those facts
or deposes entirely different to what he was expected to depose. In such cases the
question arises whether by conduct of the witness the party producing him is entitled to
cross- examine.

Value of the evidence of hostile witness: The evidence of such a witness is not to
be rejected either in whole or in part. It is not also to be rejected so far as it is in favour
of the opposite party. The correct rule is that either side may rely upon his evidence and
that the whole of the evidence so far as it affects both parties favourably or unfavourably
must go to the jury for what is worth. It is settled law that the evidence of a hostile
witness cannot be discarded and it can be used to corroborate other reliable evidence if
such evidence exists on the record.

6.a prosecution witness turned hostile during examination in chief. the public
prosecutor wants to cross examine him, can he do so?

Hostile Witness: A witness who has been called in expectation that he will speak to
the existence of a particular state of facts, pretends that he does not remember those

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facts or deposes entirely different to what he was expected to depose. Such witness is
called adverse, unfavourable or hostile witness.
Yes, the public prosecutor wants to cross examine him. If the prosecution witness turns
hostile during examination-in-chief then the prosecution can cross examine him. But,
before calling the witness can cross-examine him, he must obtain the permission of the
court. The granting of permission is entirely the discretion of the court. The discretion
has to be exercised with caution. It should not be exercised without sufficient reason.
The court ought not to exercise its discretion unless during the examination in chief of
the witness something happens which makes it necessary for the fact to be got from the
witness by means of cross examination. The permission must be in explicit words.

7.Who are competent to testify under Indian Evidence Act? Examine the
competence of the following persons as witnesses?

Competency of witnesses: A witness is said to be competent when there is nothing in law to

prevent him from appearing in court and giving evidence. Whether a witness is competent,
depends on his capacity to understand the question put to him and the capacity to give rational
answers thereto. Sections 118 to 121 and Section 133 deal with the competency of the persons
who can appear as witnesses.
Section 118 of the Indian Evidence Act provides “Who may testify”—All persons shall be
competent to testify unless the Court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those questions, by tender years,
extreme old age, disease whether of body or mind or any other cause of the same kind.
Explanation.—A lunatic is not incompetent to testify unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.
Section 118 makes it clear about the test of the competency of the witness. Under this section,
all persons are competent to testify unless they are incapable of giving evidence or
understanding the questions put to them because of tender years, extreme old age, disease or
any other cause of the same kind.
Even a lunatic is a competent witness provided he is capable of understanding the questions put
to him and giving rational answers. In determining the question of competency the court has
not to enter into enquiries as to witnesses religious belief, or as to the knowledge of the
consequences of falsehood in this world or the next.

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It has to ascertain in the best way possible whether, from the extent of his intellectual capacity
and understanding, the witness is able to give a rational account of what he has seen or heard
or done on a particular occasion.
Child witness
A child even of 6 or 7 years of age may be allowed to testify if the court is satisfied that they
have the capacity to give rational testimony. A child of tender years is a competent witness
when such child is intellectually sufficiently developed to understand what he or she had seen
and afterwards to inform the court about it.
Before the evidence of a child may be, recorded the court must, by preliminary examination
test his capacity to understand and to give rational answers and must form an opinion as to the
competency of the witness. It is very desirable that a trial Judge, who has a child witness before
him, should preserve on the record, apart from the child witness’s evidence in the case some
other questions and answers which could help the court of appeal to come to a conclusion
whether the trial Judge’s decision in regard to the competency of the child witnesses was right
or erroneous
In Dhan Raj and others v. State of Maharashtra [AIR 2002 SC 3302], it was held by Supreme
Court that the statement of child witness studying in 8th standard was a good testimony because
a student of 8th standard these days acquire sufficient understanding to perceive the fact and
narrate the same.
In State of Himachal Pradesh v. Prem Chand [AIR 2003 SC 708], the child witness
clearly saw the accused on two occasions whom he knew to be his uncle. Holding an
identification parade is not of much significance in these cases. Sketch map of the site prepared
by investigating officer though admissible in evidence not hit by Section 163 Cr.P.C. would
not be of much use in absence of evidence adduced with reference to the same by the witness.
Evidence of child witness cannot be doubted on the ground of such sketch/map. Acquittal of
the accused was set aside.
Preliminary examination to test the capacity of a child witness: Before the evidence of child
witness is recorded, the court must by preliminary examination test his capacity to understand
and give rational answers and must form his opinion as to the competency of the witness.
It is desirable that a trial court, which has a child witness before him must preserve on the record
some question and answer given by the witness which would help the court of appeal to come
to the conclusion whether the trial court’s decision, in regard to the competency of the child
witness was right or erroneous.
Section 119 of the act deals with Dumb Witness
“A person who by reasons of dumbness or otherwise is unable to speak may give evidence by
any means by which he can make himself intelligible, such as, by writing or by signs. The
evidence so recorded shall be regarded as oral evidence.”

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The section applies to the cases of persons who are unable to speak due to physical deformity
and also to the cases of witnesses who have taken a vow of silence.
When a deaf-mute is a witness the court will ascertain before he is examined that he possesses
the requisite amount of intelligence and that he understands the nature of an oath.
A deaf-mute’s evidence may be taken—
by written questions to which he may reply in writing, or
by means of signs.
Section 120 Parties to Suit or Proceeding/ Husband or Wife as witness
In the older days, it was a favourite doctrine that husband and wife were one person in law.
Consequently when one of the spouses was a party to a judicial proceeding the other was
supposed to be a party and, therefore, he or she was not allowed to appear as a witness for or
against. Section 120 removes this bar and the husband and wife are competent witnesses for
and against the other.
Section 120, Evidence Act has laid down that husband or wife of any party to the suit shall be
a competent witness. It has also laid down that in a criminal case against any person, the wife
(if the accused is husband) or the husband (if the accused is wife) of such person shall be
competent witnesses.
Thus according to Section 120, the wife or husband of a party to a proceeding is a competent
witness and capable to testimony. However, this section must be read with Section 122 which
lays down that a wife or husband may not be compelled to divulge the communication of
husband to wife and vice versa in a court of law against each other.
The landmark case is of In Ram Bharose v. State of U.P [AIR 1954 SC 704] the wife’s statement
was that on the early hours of day of the murder, while it was still dark she saw her husband
coming down from the roof of his house and then going to Bhusa Kothari and coming again
and having a naked bath and thereafter wore the same clothes. She also stated that her husband
presented her ornaments.
Thereupon, she asked as to the place from where he got them. He told that he had gone to a
house to get the ornaments. It was the house where the deceased lived. Justice Venkataramma
Iyyer held that the wife could testify the conduct of the husband but not what he said to her
because section 122 prohibits the wife or the husband from disclosing the communication
between them but doesn’t prohibit communication to be proved by some other means.

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