Indian Evidence Act, 1872 : an exhaustive overview

Introduction
The law of evidence does not fall under substantive or procedural law, but rather under the ‘adjective law,’ which
describes the pleading and method by which substantive laws are put into operation.

In litigation, the opposing parties produce proof to disprove each other’s allegations. In legal systems, the law of
evidence governs this sphere. This is a significant piece of legislation. It applies to both civil and criminal law. The
law of evidence is a prerequisite for any criminal or civil trial. The role of evidence law is to scientifically
reconstruct the past events on which the disputing parties disagree. The goal of evidence law is to seek the truth
and to be an effective tool in the fact-finding process. The law of evidence has established two fundamental
concepts, i) relevancy, and ii) admissibility. In legal terminology, relevance and admissibility are frequently used
and both are frequently used interchangeably by legal practitioners in the court of law. Both principles are at the
essence of the law of evidence.

Concept of Evidence Law

Before diving into the concept of “evidence law,” it is necessary to first explore the definition of “evidence” in
general. The term evidence was derived from the Latin word ‘Evidera,’ which means lucidity, clarity in
presentation, and the ability to prove the facts in question.

In its original sense, the word “evidence” refers to the state of being evident, i.e. plain, obvious, or well-known.
However, it is used to describe something that tends to produce evidence or proof. The principal fact is the one that
needs to be proven, and the evidentiary fact is the one that tends to establish it. To put it another way, it can be said
that, evidence acts as the eyes and ears of the court.

According to Stephen, “It sometimes means words uttered and things exhibited by witnesses before a Court of
Justice. At other times, it means the facts proved to exist by those words or things and regarded as grand work of
inference as to other facts not so proved. Again, it is sometimes used as meaning to assert that a particular fact is
relevant to the matter under inquiry.”

Thus, evidence is defined as anything that tends to verify or deny the existence or nonexistence of a stated fact.
The party who claims the presence of a fact must prove its existence, whereas the party who denies it must disprove
its existence or establish its non-existence.

Definition of evidence under the Indian Evidence Act

As per Section 3 of the Indian Evidence Act, 1872

‘Evidence’ means and includes the following:

1. All statements made before the Court by witnesses about matters of fact under investigation, which the
Court permits or requires; such statements are referred to as oral evidence;
2. All documents (including electronic records) presented for the inspection of the Court; such materials are
referred to as documentary evidence.
In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr, AIR 2011
The Supreme Court made the following observations on evidence, the word ‘evidence’ has been used in common
parlance in three different senses: as

1. Equivalent to relevant,
2. As equivalent to proof, and
3. As equivalent to the material, based on which Courts conclude the existence or non-existence of disputed
facts.

Historical background of law of evidence in India

Hindu period
The Hindu Dharmashastras contains a piece of rich information on the law of evidence. The purpose of the trial
was to separate the true from the false in the same way that a surgeon removes an iron arrow from the body using
his tools. The Dharmashastras acknowledged four categories of evidence.

1. Lekhya, i.e. document,

2. Sakshi i.c., oral evidence,
3. Bhukti or Bhog, i.e., use in other words possession, and
4. Divya i.e., Divine tests or ordeals.

1. Lekhya, i.e. document

Sakshi, i.e. oral evidence, was chosen over Lekhya because of its flaws, and Dharmashastris, keeping in mind the
flaws of Lekhya Sakshya, created arrangements for their removal. For example, it was stated that a document
produced or attested by a corrupt person would be void. Similarly, documents written by women, minors, or
dependent people would also be deemed unlawful.

According to Narada, Vishnu Dharmashastra, and Katyayan (even Section 91 of the Indian Evidence Act, 1872
states that documentary evidence is superior to oral evidence), Lekhya-Praman (documentary evidence) is defined
as proof that is written in accordance with the rules, beyond doubt, and meaningful. Typically, the attestation by
two witnesses was necessary on the Lekhya Praman, but the most important documents required the attestation of
more than two witnesses.

Lekliya (Document).-Lekhya was further divided into three.

1. Rajya Sakshayak: It was a document written in the court by the King’s clerk. It was similar to a registered
document.
2. Sakhshyak: It was a document signed by witnesses and written by a private person.
3. Asakhshyak: It was a handwritten paper produced by the parties themselves.

2. Sakshi
The rules of Sakshi or oral evidence had a vast difference in civil and criminal matters. Ancient laws contributed
a lot to create the norms for governing the capacity of witnesses. Nyayadhish (Judges) used to interrogate the
witnesses and examine their expressions while they answered their questions before deciding their credibility.

3. Bhukti or Bhog
Bhukti or Bhog, i.e., use in other words possession. Agriculture was the primary source of income in ancient India,
and the disputes relating to the possession of the land were known as Bhuktii. Even in ancient India, the law relating
to possession was a well-established legal concept. There were two kinds of Bhukti. Bhukti Sagma (with right) and
Anagama Agam mean Udgam (origin), which refers to the source of ownership or the basis of the right, such as
whether the property was purchased, or received as a gift, or inherited.

The Agam and prescription, i.e., the use of the property, both weigh each other. According to Narada, a man who
only proves the use of the property without Agam, i.e., if the property is Anagama but underutilized, will be
punished as a thief, even though he was using the property for over 100 years. Aprask (P. 631-632), Kulluk, and
Raghunandan have stated that using a property for 20 years degrades ownership. However, according to Mitakshara
which is acknowledged by Vyavaharmayukh and Mitramishra, the usage of the property damages the outcome
rather than the ownership. If the property owner sees someone else using his property for twenty years and then
disputes it, he will receive his property but not the earnings. Some authors have mandated a relatively short period
of bhukti, or use of the property, after which ownership of the moveable and immovable property may end. The
explanation has been given that the owner should reclaim his property as quickly as possible unless there are
compelling reasons for doing so.

4. Divya i.e. Divine tests or ordeals

Divya means divine tests or ordeals. Where a man’s evidence fails to lead to a decision, Divya, or divine tests
(ordeal), assists in reaching a decision. Such tests were common in ancient India, where the appeal was made to
supernatural power to prove the guilt or innocence of a man.

For example: If a man entered a burning fire or deep water and escaped unharmed, he was either innocent in the
eyes of the law. Similarly, if a man who consumed the poison did not die, he was declared innocent. Gradually,
Divya was limited to extraordinary circumstances where common types of evidence were unavailable.

In small pecuniary disputes, ‘Kosh’ Divya was recognized. According to Yajnavalkya (2/22), Narada (2/29, 4/239),
Brahaspati, Katyayan, and Pitamah Divya should be used only when Manushya Praman i.e., Sakshi, Lekhya, Bhog,
or Paristhitijanya Praman (circumstantial evidence) are not available. Different types of Divya were also prescribed
for different Varnas. Brahmina was exempt from Vish Divya (ordeal by poison).

‘Kosh’ Divya was acknowledged In small pecuniary disputes. According to Yajnavalkya (2/22), Narada (2/29,
4/239), Brahaspati, Katyayan, and Pitamah Divya should be utilized only when Manushya Praman (circumstantial
proof) is not accessible, i.e., Sakshi, Lekhya, Bhog, or Paristhitijanya Praman. For each Varna, a different type of
Divya was prescribed. Vish Divya (ordeal by poison) did not apply to Brahmins.

Islamic period

The rules of evidence were well defined during the Islamic period. The evidence consisted of two types: oral and
documented. The oral evidence was further subdivided between direct and hearsay evidence. It indicates that oral
evidence was preferred above documentary evidence. Addressing oral evidence, the Quran enjoins as follows:

“O You who believe! Stand out firmly for Allah, as a just witness for just (and fair) dealing, and do not let the
hatred of others make you lean towards wrong and go away from Justice. Be just: That is next to Piety: And fear
Allah, because Allah is Well-Acquainted with all that You do.” (Sura 5-8).

“O You who believe! stand out firmly for justice, as a witness to Allah, even against yourselves, or your parents
or your kin, and whether it be (against) rich or poor: Allah protects you both (much) better. So follow not the
desires (of your hearts), because you may swerve and if you distort justice, or decline to do justice. Surely, Allah
is Well-Acquainted with all that you do.” (Sura 4-135)
Modern period

Introduction to English Law

The Charter of 1726 established english common law and statutory law in the Presidency Towns of Calcutta,
Madras, and Bombay. The Courts created by the Royal Charter in these Presidency towns were responsible for
enforcing English law. There was no definite law of evidence in the Mofussil territories, i.e. the areas following
outside the Presidency Towns. Customs and usages governed the laws of evidence. In terms of admitting evidence,
the courts had complete discretion. In the lack of any specific standards governing the law of evidence, the entire
administration of justice in the mofussil courts was in complete chaos.

Enactment of the Indian Evidence Act, 1872

The Governor-General established the first Act pertaining to rules of evidence in 1835. 1835 and 1855, a series of
Acts were passed to successfully incorporate the reforms proposed by Jeremy Bentham.

Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were also passed, however, the courts in India
followed English law of evidence when delivering judgment, though only a portion of English law was applicable
in the Mofussil area and Presidency Towns. As a result, the position was rather unsatisfactory, and the Judges made
comments about it in their judgments in the case of Gajju Lal v. Fattehlal, ILR 6 Cal 171

Maine Commission
The Law of Evidence was in desperate need of codification. In 1868, a commission was formed to create the Law
of Evidence under the chairmanship of Sir Henry Maine, the then-Law Member. But Maine’s bill was rejected
since it did not meet all of the requirements at the time.

Stephen Commission
The Stephen Commission was established in 1871 to write the Law of Evidence. On March 31, 1871, Stephen
delivered the Council a draft of the Bill, which was then forwarded to the local governments, High Courts, and
Advocates for their review. After receiving their feedback, the Bill was submitted to the Select Committee, which
made the required changes before presenting it to the Council, which enacted it as The Indian Evidence Act, 1872.
(Act No. 1 of 1872). The Act has been amended multiple times since it was enacted.

The Indian Evidence Act of 1872 is based on English evidence law, but it includes several provisions adapted to
the Indian realities and needs. Even though flaws in the Act have been pointed out from time to time, the Act’s
drafting is an example of the best draftsmanship skill. It is very important to note that the Law of Evidence, which
was enacted in 1872, continues to be applicable with the least amendments possible over more than 140 years.

Scope of Indian Evidence Act, 1872

The Indian Evidence Act of 1872 consolidates, defines, and amends the law of evidence in India. It extends to the
whole of India. The Act applies to all judicial proceedings in or before any Court in India, including Courts-martial
(except those convened under the Army Act, the Naval Discipline Act, or the Indian Navy Discipline Act, 1934,
or the Air Force Act), but not to affidavits presented to any Court or officer, or proceedings before an arbitrator.
Important provisions under the Indian Evidence Act, 1872

In nutshell, the “Law of Evidence” can be defined as a set of principles for determining disputed facts in court
proceedings

Preamble- Interpretation clause and presumptions

The first part comprises the preamble of the act and chapter one. It provides definitions for the terms used in the
Act. This section is known as Preliminary.

Relevancy of facts

The second portion of the act is titled ‘the Relevancy of facts’. This section contains 51 sections starting
from Section 5 to Section 55.

The sections that have been discussed in the second part are listed below:

1. The relevance of facts that are part of the same transaction (Section 6);
2. Facts that constitute the occasion, cause, or effect of the facts in issue (Section 7);
3. Facts showing motive, preparation, and conduct, previous and subsequent (Section 8):
4. Facts required establishing the facts in issue, etc. (Section 9);
5. Things that are said or done by conspirators in regard to a common design (Section 10);
6. Facts not otherwise relevant (Section 11);
7. Facts that allow the Court to determine damages (Section 12);
8. Facts that establish a right or custom (Section 13);
9. Facts showing the existence of the state of mind, or of the body or bodily feeling (Section 14);
10. Facts bearing on the question of whether an act was accidental or intentional (Section 15);
11. The facts illustrating the course of business (Section 16);
12. facts that amount to admission (Sections 17 to 23 and 31);
13. Facts which are confessions of the accused persons (Sections 24 to 30);
14. Facts made by people who cannot be called as witnesses in certain circumstances (Sections 32 and 33);
15. Facts are statements, under certain circumstances (Sections 34 to 38). When any statement for which
evidence is given is part of a longer statement, a conversation, or a portion of an isolated document, or is
contained in a document that is part of a book, or is contained in part of an electronic record, or is contained
in part of a connected series of letters or papers, evidence shall be given of only that portion of the statement,
conversation, document, electronic record, book, or series of letters or papers that the Court considers
necessary in that particular case. (Section 39);
16. Judgments of Courts (Sections 40 to 44);

• It is based on the following two Latin maxims:

Nemo Debet Bis Vexari Pro Una Et Eadem Causa: States that no one can be punished twice for the same offense.

Interest Republicae Sit Finis Litium : Says that it is in the best interests of the state to put an end to litigation. It is
based on public policy and ensures that lawsuits do not go on for too long.
 17. Establishes the relevance of third-party opinions, which is usually referred to in day-to-day activity as an
expert’s opinion (Sections 45 to 51);
18. Characteristics of the parties to a lawsuit (Sections 52 to 55).

Different Types of Evidence

Section 59 states that if evidence of any is to be given, it must be either oral or documentary. Section 60 requires
direct oral evidence. Section 61 specifies that the contents of a document may be proven using either primary or
secondary evidence. Sections 62 to 66 deal with primary and secondary evidence and specify that primary evidence
of documents must be provided before mentioning the cases in which secondary evidence may be given. Then
there are provisions for submitting oral evidence to prove the authenticity of a document (Sections 67, 67-
A, 68, 69, 71, and 72). Sections 73 and 73-A deal with determining the term of a deed. Section 100 forbids the
Chapter from being applied to the provisions of the Indian Succession Act dealing with the drafting of wills.

Manner of proof-Burden of proof- Presumption without calling for proof

Part II dealt with the issue of factual proof; Part III of the Act addresses how the proof is to be generated. This
section is divided into five chapters. Chapters VII-XI. Sections 101 to 114-A of Chapter VII addresses the issue of
burden of proof. They state that in certain cases, the burden of establishing a fact falls on a certain person. Sections
112 and 113 deal with cases involving conclusive evidence. Section 114 provides that the Court may presume the
existence of certain facts that should occur in the normal course of natural phenomena, human action, and public
and private business without requiring proof.

Section 111-A establishes a presumption of guilt for certain offenses. Section 113-A provides for a presumption of
suicide abetment if a married woman commits suicide within 7 years of her marriage and has been subjected to
abuse by her husband or his relatives. Section 113-B establishes a presumption of dowry death. Section 114-
A provides for a presumption of lack of consent in some rape prosecutions.

Estoppel

Sections 115 to 117 of Chapter VIII deal with the issue of estoppel, another rule of leading evidence. These
provisions prohibit a person from giving false evidence by preventing them from making contradicting statements
in a Court of Law.

Competency, comparability, examination, and cross-examination of witnesses and

impeachment of witness credibility

Chapters IX and X deal with competency, comparability, examination and cross-examination of witnesses,
impeachment of the credit of testimony of the witnesses, and the use of previous writings of witnesses for refreshing
their memory and also using their previous statements for corroboration of their statement in Court.

A witness is considered competent when there is nothing in the law that prevents him/her from appearing in Court
and presenting evidence. The capacity of a witness to understand and respond rationally to the questions posed to
him determines whether or not he is competent.

The competency of those who can testify as witnesses are covered under Sections 118, 119, 120, and 133. A
witness may be competent but not compellable, which means that the Court cannot compel him to testify. A court
cannot compel foreign ambassadors and sovereigns to appear before it to testify. A court cannot compel foreign
ambassadors or sovereigns to attend the court to testify. A witness may be competent and compellable, but the law
may not compel him to respond to specific questions. Restricted comparability, often known as a privilege, is the
term used to describe this situation. This privilege is addressed in Sections 122–132. The quantum of evidence is
covered in Section 134. The examination, cross-examination, and re-examination-in-chief of witnesses are covered
in Sections 135 to 139. Sections 140 to 153 cover the types of questions that can and cannot be asked during cross-
examination of witnesses. Evidence contradicting a witness’s cross-examination replies is not allowed
under Section 153. Under Section 154, the Court may, at its discretion, allow the person who calls a witness to ask
him any question that the other party might ask during cross-examination. Section 155 talks about the impeachment
of a witness. Section 158 of the Act deals with giving evidence to contradict, impeach, or corroborate the credibility
of someone who gave evidence under Sections 32 and 33 of the Act. Sections 159 to 161 allow a witness to recall
his memory by reviewing the previously produced record. Sections 165 and 166 define the scope of the Judges and
jury’s rights to examine witnesses.

Admissibility of evidence

There is only one section in Chapter XI, Section 167, which states that there will be no new trial for the improper
admission or rejection of evidence.

• The Act is dynamic and has evolved over the years. Three of the most recent amendments to the statute
were the Information Technology Act of 2000, the Criminal Law (Amendment) Act of 2013, and
the Criminal Law (Amendment) Act of 2018.

Judicial pronouncements with respect to the Indian Evidence Act, 1872

State Bank of India v. Om Narain Agarwal, AIR 2011

In the above case, the Court highlighted that the main feature of the rule of evidence is to limit the scope of the
dispute before the Court to those facts that have logical evidentiary value in determining a fact and to prevent
giving judgments based on illogical conclusions or prejudices, as well as to aid in the administration of justice.

Vijendra v. State (NCT of Delhi), 1997

In the light of the above case, the Hon’ble Supreme Court ruled that the prosecution cannot record the accused’s
statement since it violates the provisions of Cr. P.C., which states that a statement made before a police officer
during an investigation cannot be used for any purpose unless it falls under the provisions of section 27 of 32 (1)
of the Evidence Act.

Suresh Budharmal Kalani Alias Papppu Kalani v. State of Karnataka, AIR 1998

The Supreme Court has ruled that a confession made by an accused is inadmissible as evidence and that a
presumption can only be established from the facts, not from other presumptions, through a process of probable
and logical reasoning.

Kishore Chand v. State of H.P, AIR 1990

The burden of proof in a murder case is strict when it has to rely on circumstantial evidence, and all circumstances
from which a conclusion of guilt is to be drawn must be fully established, and any circumstance consistent with
the accused’s innocence will entitle him to the benefit of the doubt, and confessions made in violation of sections
25 to 27 of the Evidence Act cannot be relied upon.

Conclusion
The term ‘evidence’ refers to the state of being evident, i.e., plain, evident, or notorious. However, it is used to
describe something that tends to produce evidence or proof. We can define evidence as a process that deals with
both the right and the procedures.

The Indian Evidence Act contains a number of provisions governing, examination, relevancy, admissibility, and
evidence of facts. Confessions, character relevance, the burden of proof in criminal trials, dying declarations, expert
opinions and various stages in the witness examination.

General Principles of Indian Evidence Act

• IEA is mainly divided into three parts-

1. Relevancy of facts;
2. Facts that need not be proved, and types of evidence;
3. Production and effect of evidence

• Tribunals, regulatory bodies, arbitration proceedings, consumer forums, and non- judicial proceedings
(like, departmental inquiries, disciplinary proceedings, action under the laws governing any defence-
service, etc.) do not follow the rules laid down in IEA. They observe compliance with the rules of
natural justice, and may reflect some understanding of the general and basic principles of evidence.
• IEA applies to both civil and criminal proceedings.
• IEA works on the following four fundamental principles-

Best evidence rule

Deals with the assumption that the quality of the process of arriving at a decision depends upon the nature and
character of evidence that is placed before the Court (whereas ‘BRE’ deals with rules which would regulate the
process of presenting evidence in a court proceeding).

Relevance

Indicates that judges are required to consider only relevant evidence to decide whether a disputed fact can be
recorded as proved or not. (S. 5, IEA) Evidence must be confined only to the matter/s in issue.

Admissibility

When either party proposes to present evidence before the Court, of any fact, the Judge may enquire from such
party about the manner in which the alleged fact, if proved, would be relevant. The Judge can then, admit such
evidence only if he thinks that such fact would be relevant, and not otherwise (S. 136, IEA).
Appreciation

The process which facilitates a Judge to arrive at a conclusion is called appreciation of evidence. This is a matter
left to the Judge’s wisdom and experience, as it’s very difficult to encapsulate appreciation of evidence in statutory
form.

IEA classifies evidence into the following three major types-

1. Oral and documentary evidence

2. Circumstantial and hearsay evidence
3. Primary and secondary evidence

Who has the responsibility of collecting and presenting evidence before the
Court?
In civil cases, it is the responsibility of the parties to the dispute to present evidence before the Court to establish
the facts supporting their claims.

In criminal cases, however, especially in respect of cognizable offences (i.e. where the complainant is entitled to
file an FIR), the police is responsible for conducting an investigation (and consequently collecting evidence) after
the FIR is filed, which is presented before the Court during trial of the matter.

Categories of evidence and proof

What is the necessity of providing evidence?:

Evidence must be adduced so that the Court is able to determine the disputed points in the case (called ‘facts–in-
issue’ under the Evidence Act). In addition to evidence pertaining to the facts-in-issue, other evidence may be
required by a Court to decide a case.

Usually, the facts over which parties are at dispute cannot be decided in isolation without knowledge of connecting
facts or surrounding circumstances. Such facts are known as ‘relevant facts’.

Which facts are relevant?

Ss.5 – 55, IEA explain the facts which are relevant, and pertaining to which, evidence is admissible. By way of
example, evidence of all facts which are per se not in issue but connected to the facts-in-issue and part of the same
transaction, is admissible. This includes the motive behind perpetration of a criminal act/omission, preparation
therefore, and previous or subsequent conduct; the cause or effects of the facts-in-issue, and the facts that are
necessary to explain the relevant facts. (Such facts are known as res gestae in legal jargon.Ss. 6-9, IEA)

1. 11, IEA contemplates that-

– If certain facts are inconsistent with any relevant fact, or

– If such facts make the existence or the non-existence of the relevant fact highly probable or improbable, then
such fact/s is considered relevant even if it was irrelevant otherwise.
What are the two most important types of evidence under the IEA?
1. Oral evidence
2. Documentary evidence
Statements made by witnesses is known as ‘oral evidence’, and any document (including electronic records), stone
inscriptions and engravings is known as ‘documentary evidence’.

Oral Evidence (Ss. 59-60, IEA):

IEA covers two broad rules regarding oral evidence-

1. All facts except contents of documents maybe proved by oral evidence

2. Oral evidence in all cases must be direct, and not hearsay
Generally, the evidence of a witness is given orally, and falls under ‘oral evidence’. A witness, if unable to speak,
may communicate to the Court by signs or by writing. This would also be covered under ‘oral evidence’. Oral
evidence is a much less satisfactory medium of proof than documentary evidence. But justice can never be
administered in many cases without resorting to it. The correct rule is to judge oral evidence with reference to
conduct of parties, and the presumptions and probabilities legitimately arising in the case. The real test for
accepting or rejecting such evidence is, how consistent is the story of the witness; how well does it stand the test
of cross- examination; and how far does it fit in with the rest of the evidence and the circumstances of the
case. Indian Evidence Act embodies the general English rule, that hearsay is no evidence (exceptions to this are
dealt with in Ss. 17-39, IEA) Oral evidence should be direct, and must refer to a fact that has been seen, heard
or perceived by other senses by a witness. For a person’s evidence to be admissible (as oral evidence) in Court, he
must be a competent witness (S. 118, IEA).

Documentary evidence (Ss. 61 to 65, IEA):

Includes primary and secondary evidence, wherein the primary evidence is the document itself, and secondary
evidence deals with certified copies of the original document.

Which party has the responsibility (or ‘burden’) of proving his case?
As a general principle, the party claiming relief needs to provide evidence of the facts it has alleged (S. 102 read
with S. 101). This general rule, in other words, indicates that the ‘burden of proof’ in a suit or proceeding lies on
that person who would fail if no evidence at all were given on either side.

(S. 3, IEA) When does a Court consider a fact to be:

• Proved-
A fact is considered as proven when the Court believes its existence to be so probable that a prudent man oughtto
act upon the supposition that it exists.

• Disproved-
A fact is said to be disproved when the Court considers its non-existence so probable, that a prudent man ought to
act upon the supposition that it exists.

• Not proved-
A fact is said not to be proved when it is neither proved nor disproved.
‘Fact-in-issue’- Any fact from which, either by itself, or in connection with other facts, the existence, non-
existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding,
necessarily follows.

• ‘Conclusive proof’-
When a fact is declared by this Act to be a conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

It may not be possible to establish a fact with absolute mathematical certainty. However, IEA prescribes a certain
degree to which a fact must be established; barring special circumstances (i.e., Ss. 56-58, IEA)

Which facts need not be proved?

Facts presumed by law (Ss. 86-88, IEA) [Presumptions – Regarding public documents (Ss. 79-90A), Regarding
burden of proof (Ss. 111A, 113A, 113B, 114A)] _ Facts admitted (S. 58, IEA) [Admissions (Ss. 17-23, 31, 70, 167)
and Confessions (Ss. 24-30, IEA)] Facts judicially noticeable ( Ss. 56, 57, IEA)

Presumption

A presumption is an acceptance of a fact as true or existent based upon its strong probability evident from the
circumstances. According to English Law, a presumption can be of two kinds – presumption of fact, and
presumption of law

Presumption of Fact-

Presumption of fact are those presumption about things or events that happen in day to day life, which we accept
as true, due to inference drawn logically and naturally by our mind. For example, presumption that a man with
blood stained clothes and a knife in his hands has stabbed someone. Or, if X is found in possession of Y’s credit
card, X has committed theft. Such presumptions are rebuttable from further evidence.

Presumption of Law-

Apart from presumptions of fact, there are situations under which presumptions may or must be made, as per legal
rules. Under those situations, courts will make the presumption based on the legal rule. For example, it is a
presumption of law that a child below seven years of age is not capable of committing a crime. Or that a person
who has not been heard from for seven years is dead. Such presumptions may or may not be rebuttable depending
on the law. For example, the presumption that a child below seven years of age is not capable of committing a
crime cannot be rebutted.

Law presumes the age of the child as a conclusive proof of his innocence. But the presumption that a person is
dead when he is not heard from for 7 years is rebuttable by presenting further evidence that indicates that he was
alive.

The burden of proving a particular fact is always on the party which is alleging the fact. However, there are
situations when the Court is entitled to ‘presume’ the existence of certain facts. Courts are entitled to presume facts
pertaining to natural events, natural course of human conduct or in the course of business.

In such cases, proof is not required. IEA deals with presumptions about facts and presumptions of law. Let’s
examine some presumptions for reference purposes below:
 • If a person has been accused of having committed any offence in a disturbed area wherein it can be
shown that the person had been in a place in such area at a time when firearms and explosives were
used from that place to attack or resist the forces that were working to maintain peace and order, such
a person would have been presumed to have committed an offence under Section 121, 121A, 122 or
123 of IPC, and criminal conspiracy or abetment of an offence under Section 121 or 123 of IPC.
• Section 113A indicates towards presumption of an offence with regard to the abetment of suicide of a
married woman.
• Presumption pertaining to the legitimacy of children born out of wedlock is a presumption of law.
• Law states that a person is always innocent unless proven guilty – However, in the cases of rape, if the
woman states that she did not consent to the sexual intercourse, the Court presumes an absence of
consent on the part of the woman.
Therefore, if it is proven that a person had sexual intercourse with a woman, he is considered to have done it
without consent of the woman (and hence guilty of rape), unless he proves otherwise.

Presumptions that can be made with respect to documents are discussed in Ss. 79 to 85 of the Evidence Act.

Chapter VI, IEA deals with the exclusion of oral evidence by documentary evidence – that is, where documentary
evidence is available of a particular fact, it will be preferred to oral evidence. Oral evidence will not be considered
at all with respect to that fact. When the presumption is conclusive, no further evidence is required to be provided,
but when it is rebuttable, the adverse party can present evidence to negate the presumption.

To conclude, in criminal laws, it is a generally accepted theory that a person is always innocent unless proven
guilty. Burden of proof is a concept that has been explained in various fields of law, be it in torts or in criminal
laws. However, the basic fact that lies in the foundation of this concept, is that a person who claims the happening
of an event or claims a fact, has the burden to prove it. Also, when any fact is within the knowledge of any person,
that person solely has the burden of proof upon him to prove it (S. 106, IEA).

In torts, there is a concept of Res Ipsa Loquitor; whereas, in criminal law, there is a concept of prima facie. In the
former, the plaintiff needs to prove three things which are, that the defendant owed a duty of care to the plaintiff
that he breached, due to which the plaintiff suffered damage. After proving these, the burden of proof shifts to
the defendant. However, in the latter, there is a presumption that there is enough evidence to prove the event or the
fact. S. 103, IEA deals with the provisions relating to alibi.

Domestic Violence Act has a similar provision, as that of S. 113A and S. 113B, IEA whereunder the death of a
woman under unnatural circumstances, within seven years of her marriage, is presumed to be a dowry death,
abetted by the deceased’s husband or relatives thereof.

Admissions
1. 17, IEA defines an admission as a statement that suggests any inference as to any fact in issue or relevant
fact and which is made by:
– A party to a proceeding or his agent

– Suitor in representative character

– Party interested in subject-matter

– Person from whom interest derived

The tricky part in admissions relates to the provisions describing confessions (Ss. 24-30, IEA). It basically deals
with the provisions that state as to whom can confessions be made to; what sort of confessions may be admitted;
and what happens to the confessions that are made under threat, inducement or promise. Confessions made under
such influences could be held as self-incriminatory, which is not allowed under the Constitution [Article 20 (3)].

A dying declaration is usually held as relevant. Just like motive, intention, ill will, state of mind and body or bodily
feelings are important (according to Ss. 8 and 14, IEA); a previous good or a bad character (Ss. 52 to 55, IEA)
could be relevant. However, its submission is restricted majorly to criminal cases, and has no bearing on civil cases
as such.

Judicial Notice
The court is entitled to take notice of certain facts and occurrences around the world – for example, it may take
note of a comment pertaining to the state of the Indian economy, that is made by the Governor of the RBI in a
public speech. Judicial notice is taken of certain matters which are so clearly established, that evidence of their
existence is deemed unnecessary. If the court has taken judicial notice of a fact, it need not be proved.

1. 56 read with S. 57, IEA mean that, if a dispute arises with regard to the facts enumerated in S. 57, IEA,
the party which asserts its existence need not produce any evidence to prove the existence of such fact.
(See Sections 56 and 57, Indian Evidence Act)

Privileged Communications (Ss. 122-129, IEA)

In certain relationships communication is grounded on the basis of trust – it is assumed that such communication
will not be brought in the public or disclosed in court even if circumstances change in the future and the relationship
ceases to exist. Law considers it important to protect the sanctity of such communication. These communications
are known as ‘privileged communication’. The content of any communication which is privileged need not be
disclosed before a court. Such communications can broadly be categorised in two types-

1. Privileged from disclosure (privilege may be understood as ‘restricted compellability’ as regards

certain witnesses who are competent to depose, and may also be compelled to do so under ordinary
circumstances, but are not forced by law to do the same for specific matters which are considered
privileged.)

2. Prohibited from disclosure – This category of privileged communication cannot be disclosed at all in
court.
Section 122, IEA-

Provides that a married person shall not be compelled to disclose any communication made to him/her during
marriage by anyone to whom he/she is or was married (‘privilege of witness’). Such disclosure shall not be
permitted, except when the person who made it, or his representative-in-interest consents; or in suits between
married persons; or in proceedings where one married person is prosecuted for any crime committed against the
other (‘privilege of spouse of the witness’).

Section 126-129, IEA-

Explain the law relating to professional communications between clients and legal advisers (or their clerks).
However, when such communication is in the form of writing, and made known to others, there’s no
‘confidentiality’ for either the client or the advocate claiming privilege under S. 126, IEA.

Trial Process
How is evidence provided in a Court? What are the evidentiary procedures governing deposition in a
Court? Examination-in-chief, Cross-examination, Re-examination:

Examining witnesses follows certain rules prescribed by IEA. Cross-examinations, examination-in-chief, and re-
examination are allowed. The testimony of a witness is recorded in the form of answers to questions put to him.
This is done to confine the testimony to the facts relevant to the issue/s at hand. This is known as ‘examination’
of a witness.

To elaborate further, S. 135, IEA must be discussed. It lays down the order of examination of witnesses, and
involves two things-

1. Which party is to examine his witnesses first? (‘right to begin/reply’)

In criminal cases, the prosecution always begins, but in civil matters, the right to begin is determined by the nature
of issues which are framed from the pleadings, and contents of the documents produced by the parties.

2. In what order are the witnesses to be examined by a party?

Generally, it is the advocate who enjoys the privilege to determine the order in which witnesses should be produced
and examined. However, S. 135 gives the Court, the power to dictate the order of production of witnesses.

1. Section 137, IEA lays down the following-

• ‘Examination-in-chief’- Examination of witness by the party who calls him. Questions with a ‘yes’ or
‘no’ answer, or those which point towards a particular state of action (called ‘leading questions’) cannot
be asked.
If, however, a witness turns hostile (S. 154, IEA), that is, the witness departs from the statement that was given to
the police (the statement given to police during investigation is not admissible as evidence in Court directly, and
the witness is therefore required to depose before the court at the time of trial), then, leading questions can
be asked.

• ‘Cross-examination’- Is done by the adverse party, to test the veracity of the statement of the witness
and the credibility of the witness in general. S. 146, IEA discusses what sort of questions may be asked
during such cross-examination.

• ‘Re-examination’- Is done subsequent to cross-examination, and by the party which called the witness.
This is done only on the facts that have been dealt with in the cross-examination.
Section 138, IEA lays down an ‘order of examination’, whereunder a witness shall be first examined-in-chief (if
the adverse party so desires), then cross-examined, and then, if the party calling the witness so desires, re-
examined.

Section 138 states that examination and cross-examination must relate to relevant facts only. However, cross-
examination need not remain restricted to only those facts testified by the witness in his examination-in-chief. This
order prohibits the asking of leading questions which are such questions that suggest the answer which the
questioning party wants to receive.

If such leading questions have been objected to by the adverse party, they cannot be asked during cross-
examination or re-examination, except with the permission of the Court (S. 142, IEA). Court usually permits
leading questions in the cases where the question is in relation to undisputed or proven facts. Leading questions can
be asked during cross-examination (S. 143, IEA). Also, questions irrelevant to the issue, or tending to impeach
credit of the witness, are allowed in cross-examination (S. 146, IEA).
Types of Evidence
According to the definition given in the Indian Evidence Act, evidence can be divided into two categories:

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

Oral and documentary evidence can be divided into two categories:

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

Oral Evidence
Oral evidence renders to the evidence that is mainly words spoken by mouth. It is adequate to be proved without
the support of any documentary evidence, provided it has credibility.

Primary oral evidence is the evidence that has been personally heard or seen or gathered by the senses of a witness.
It is called direct evidence as defined by Section 60 of the Indian Evidence Act.

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

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

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

Direct or primary evidence

Direct Evidence is acknowledged as the most important evidence required for deciding the matter in issue. Direct
evidence directly proves a fact or disapproves of the fact by its virtue. In the case of direct evidence, a particular
fact is accepted directly without giving any reason to relate to the fact. One does not even need to point out the
illustration provided as the evidence given by the witness in the court of law is the direct evidence which is
sufficient enough to prove the matter as against the testimony to a fact proposing guilt.
Also, at times the rule of best evidence plays an important part in upholding direct evidence in a court of law. The
rule of the best evidence is a rule of law that only includes the primary evidence in itself. It states that if evidence
such as a document or a recording is presented in the court then only the original ones will be admissible unless
there is a reason for not using the original one in the court.

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

Direct evidence is used in two senses:

• As against hearsay evidence

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

• As against circumstantial evidence

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

For example, the evidence of the fact that a person had a motive to murder another individual and at the time of
the murder the person was seen with a dagger, going towards the place of the murdered individual and shortly
afterwards, was seen returning from that very place in blood-stained clothes, would be called as indirect or
circumstantial evidence.

Difference between direct and circumstantial evidence

As per Section 5 of the Indian Evidence Act, evidence may be presented in a court proceeding of the existence or
non-existence of facts in issue and of such other facts that are considered relevant by the Act. If the presented
evidence relates directly to the existence or non-existence of a fact in issue then the evidence will be considered
direct, but if the evidence relates to the existence or non-existence of only a relevant fact then it will be considered
as indirect or circumstantial evidence. However, direct evidence as understood by this section should not be
confused as defined in Section 60 of the Indian Evidence Act. According to Section 60, the word ‘direct evidence’
is used as opposed to ‘hearsay evidence’ and not in contradistinction to ‘circumstantial evidence’ and thus, going
by the section, circumstantial evidence should always be direct as in the facts from which the existence of the fact
in issue is to be established have to be proved by direct evidence and not by any hearsay evidence.

For establishing proof by circumstantial evidence, four things are required:

• All the facts should be consistent with the theory.

• The circumstances from which the inference for the theory was drawn, should be fully established.
• The circumstances should be of a decisive nature.
• The circumstances should serve to mean and prove only the theory proposed to be proved and should
not entertain any other theory.
It is recommended to use both the direct and circumstantial evidence to prove a theory that is in question in a court
of law and no theory prevents the use of both the rules of law in a case.

And also because using the powers of both circumstantial and direct evidence can have a considerable effect in
restricting the dishonest parties from tampering with witnesses and any other means of witness. It would have been
possible for them to distort the evidence if they had knowledge.

INTRODUCTION (Sections)
Evidence law is supported by three main pillars: 1) Evidence should only consist of matters in issue; 2)
Hearsay evidence does not have evidentiary value; 3) There should be an effort to provide the best evidence
in all cases.
Section 3 of the Indian Evidence Act, 1872 is an important clause that provides the definition of important
terms that appear throughout the Act. Section 3 clearly defines what constitutes a court i.e., who is authorised
by this Act to collect evidence and reach a decision. Section 3 also states what is a fact, what is relevant, the
different types of evidence, documents, how a fact is proved, disproved and not proved. The significance of
Section 3 lies in how it sets up the reading of the rest of the Act, and the interpretation of evidence law
according to it.
Section 3 of the Indian Evidence Act, 1872
Interpretation clause
Section 3 of the Indian Evidence Act, 1872 contains details on the interpretation of the terms – Court, Fact,
Relevant, Facts in issue, Document, Evidence, Proved, Disproved, Not Proved, India – unless the context
implies a contrary intention.
Court
‘Court’ consists of all judges and magistrates, and any person who is legally authorised to take evidence, with
the exception of arbitrators and tribunals. Arbitrators and tribunals function on the basis of natural justice and
are authorised to collect evidence, however, they do not come under the definition of “Court” within the
meaning of this Act.
In C.I.T v. East Court Commercial Co. Ltd. (1967), it was held that income tax authorities do not fall under
the definition of “Court.”
In Brajnandan Sinha v. Jyoti Narain (1956), the Supreme Court delved into the definition of “Court” and came
to the conclusion, that such a body or forum must be capable of making a decision or judgement which is final
and authoritative in nature. This is the basic quality of a judicial pronouncement, and a salient characteristic
of a “Court.”
Fact
‘Fact’ may be defined as:
Any thing, state of things, relation of things, that can be sensed (external fact).
For instance –
• When certain things are placed in a certain way/pattern, it is a fact.
• When a person sees or hears something, it is a fact.
• The words spoken by a person, is a fact.
Any mental condition of which any person is conscious (internal fact).
For instance–
 • The opinion of a person.
• The intentions of a person.
• A person acting in good faith/fraudulently.
• The deliberate choice of a person’s words.
• Feeling a certain sensation at a certain time.
• A person’s reputation.
Physical and psychological facts
Physical facts are those that can be discovered through the use of a person’s senses. For instance, observing
the arrangement of certain objects, hearing the distinct sound of a horn, etc. However, the law of evidence is
not restricted to physical facts “only”. Beyond, physical facts lie psychological facts which are based on the
mental condition of a person. For instance, when a person commits fraud, his intention to deceive the other
party is also a fact.
Positive and negative facts
When the existence of a situation or state of things can be confirmed, it is a positive fact. For instance, in a
property dispute case, the deceased left a will to bequeath his property. The existence of the will is a positive
fact. On the other hand, the non-existence of a situation or state of things is a negative fact. For instance, the
lack of a weapon at the scene of a murder.
Facts in issue
Facts in issue are those facts that are sought to be proved and are also called “principal facts” or factum
probandum. When the rights and liabilities of the parties are dependent on a fact that is in dispute or
controversy, that fact is in issue.
For example, ‘X’ is accused of defaming ‘Y’ through libel. The possible facts may be in issue: that ‘X’ caused
damage to ‘Y’s reputation; ‘Y’s business suffered losses due to ‘X’s defamation; ‘X’ wrote and published
defamatory statements about ‘Y’ out of malice, etc.
Facts in issue determine the arguments of both the plaintiffs and defendants. The parties must prove that the
facts in issue lean toward their pleadings in order to sway the court’s decision in their favour. The substantive
law applicable to the offence determines what constitutes the facts in issue. In criminal cases, facts in issue
depend on the contents of the charge-sheet, whereas, in civil cases the framing of issues takes place.
Facts in issue form the foundation upon which the parties argue their case, and when these facts are proved to
the satisfaction of the court, a decision can be made.
Relevant facts
Relevant facts are those which are needed to prove or disprove a fact in issue. Relevant facts are also called
evidentiary facts (factum probans). These facts are not in issue – they are not the main issue of controversy or
dispute between the parties. Rather, relevant or evidentiary facts dig deeper into the context or circumstances
of the facts in issue, and help to draw inferences about them.
Admissions and confessions, statements by those who are not witnesses, precedents from case laws, statements
made under special circumstances, facts which form a chain of logic with facts in issue, third party opinions,
and evidence as to the character of a person – all these fall under the category of relevant facts.
Relevant facts indicate a relationship between facts, which according to a sound chain of logic and common
sense, either prove or disprove the existence of each other. Relevant facts act as supplementary material to
sway the opinion of the court in favour of the party making the argument with respect to the facts in issue.
For example, ‘A’ is accused of committing theft. A relevant fact would be that ‘A’ has had a history of
pickpocketing and shoplifting, and has been prosecuted before. The fact in issue would be – whether A has
committed theft.
Document
A document within the meaning of this Act, is any writing, marks, figures inscribed on a surface for the purpose
of recording a matter. In R v. Daye (1908) the Court observed that the notches made by bakers and milkmen
on wood to indicate the amount of bread or milk supplied are also documents. The surface upon which the
writing or marks are inscribed is not restricted to paper. Writings, words in photographs, maps, plans,
inscriptions on metallic surfaces – all these fall within the category of document.
Evidence
The origin of the term ‘evidence’ can be traced to the Latin words “evident” or “evidere” – meaning to
discover, determine or arrive at the truth. Evidence also implies – to make clear, certain, notorious. Evidence
plays a key role in the judicial process by supporting or building an argument before the court, with respect to
proving or disproving a matter of fact or controversy, between the parties.
Oral evidence
Covered in detail under Section 59 and 60 of the Act, oral evidence can be defined as the statements made by
witnesses which are allowed or needed by the court. These statements by witnesses help determine the matter
in issue or controversy between the parties. When a witness orally makes a statement it is regarded as oral
evidence. Witness testimony has also been called ‘living proof.’ However, in the cases where a witness is
unable to speak, then communication through signs or writing is also admissible as oral evidence.
Usually, all evidence that is not written in documents is oral evidence and is sufficient to prove a fact or title.
However, according to Section 60, in the presence of both documentary evidence and oral evidence, the former
takes precedence.
Oral evidence must be direct i.e., the witness making the statement must have seen or heard, or experienced
the event first-hand.
Hearsay evidence
Whenever information passes through indirect channels, such as rumours or gossip, it can be termed as
‘hearsay.’ Hearsay evidence is that information which has not been obtained through direct means, and has
not been experienced by the witness firsthand. Hearsay evidence is not admissible in court and does not hold
evidentiary value.
However, hearsay evidence is admissible in the case of the following exceptions:
• A statement made by someone other than a witness becomes admissible when it is part of the
transaction in question according to the principle of res gestae in Section 6. For example, an hour
before a murder took place, ‘A’ heard ‘B’ making death threats to the victim inside the victim’s house.
B’s death threats before the murder were part of the transaction in question as the murder took place
an hour later.
• The testimony of a witness to whom a confession or admission was made outside the court.
• Dying declaration made under Section 32(1) of the Indian Evidence Act, 1872.
• Entries in books of account in the course of business under Section 34; entries in public registers
under Section 35.
• Under Section 60, in the absence or death of experts, their thoughts and words expressed in their
treatises and books can be counted as evidence.
 • When a slanderous statement is made in the presence of a witness, the witness can testify as to the fact
that the statement was made.
Documentary evidence
Documentary evidence is covered by Section 61-90 of the Act. All documents submitted to the court for
scrutiny fall under the umbrella of documentary evidence. Documentary evidence holds precedence as
compared to oral evidence, in terms of both credibility and permanence. Documentary evidence is also called
‘dead proof.’ Due to the improvement in technology and the coming up of legislation such as the IT Act, 2000,
electronic evidence has also been included within the purview of documentary evidence.
Documentary evidence can be of two types: 1) primary evidence, and 2) secondary evidence.
Primary evidence
Primary evidence includes the original document; a document executed in separate parts; a document that has
been manufactured or produced by one uniform, mass process (for example, photographs, lithographs, etc).
Secondary evidence
Secondary evidence includes certified copies of the original document. Also, when original documents are
used to make a large number of copies through a mechanical process, for example, by printing, photocopying,
etc.
Conclusion
The law of evidence is a key tool to aid the judiciary in weaving and sorting through the vast information each
case presents. Only evidence which falls under the Indian Evidence Act, 1872 is admissible and has
evidentiary value. This prevents the court from wasting its time and helps the court in quickly gaining access
to the relevant and correct evidence needed to determine the outcome of a case. Section 3 of the Indian
Evidence Act, 1872, is an interpretation and definitions clause that describes key terms and concepts used in
the Act, and in deciphering evidence law.

Sec. 4 - Difference between May Presume Shall Presume and Conclusive proof
May presume is a condition when the court enjoys its discretion power to presume any/ certain/ few facts and
recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by
the court in its discretion. Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be
regarded as proved, until and unless they are disapproved. The concept is defined under Section 4 of this act that
‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.

Whereas, shall presume denotes a strong assertion or intention to determine any fact.Section 4 of Indian evidence
Act explains the principle of ‘Shall Presume’ that the court does not have any discretionary power in the course of
presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they
are proved until they are disproved by the other party. Section 4 of the Indian Evidence Act explains that the
concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory
Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.

While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest presumptions a court
may assume but at the same time the presumptions are not completely based on logic rather court believes that
such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has
absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under
conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence.
This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the Evidence Act
and S. 82 of the Indian Penal Code are one of the most important provisions related to the irrebuttable form of
presumptions or Conclusive Presumption.
The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or
conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard
all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other
facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other
facts which are presumed as conclusive proofs.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered
that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his
wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of
marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out
of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to
the conclusive proof even if he provides probative evidence.

Section 5 - Relevancy
Relevant Evidence is evidence that makes a reality practically obligated to be legitimate than it would be without
confirmation. Relevant proof might be rejected for unreasonable partiality, perplexity, or a waste of time. The
relevant proof is commonly permissible and irrelevant proof is never acceptable. Two main fundamental standards
on relevance:

1. Nothing is to be received which is logically not verified regarding the matters which are required to be
proved.
2. Unless and until the clear ground of law or policies excludes it, everything which is verified or probative
should come in. Relevancy act as a link between a statement of proof and a statement that needs to be
proved.
One fact is said to apply to one another when one is associated with the other in any of the ways alluded to in the
provisions of The Indian Evidence Act relating to the relevancy of fact.

Indian Evidence Act does not give a particular meaning of relevancy or relevant fact. It essentially depicts when
one fact become applicable to another one.

Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact might be associated with another
fact and in this way the idea of relevant fact can be distributed. One fact is pertinent to another fact if they are
associated with one another in any of the ways as portrayed in Section 5 to Section 55. In the event, if a fact isn’t
so associated, then the fact is irrelevant.

A court may bar important proof when the probative estimation of the proof is significantly exceeded by the peril
of at least one of the accompanying: out of line bias; confounding the issues; misdirecting the jury; undue
postponement; unnecessarily exhibiting aggregate proof.

Admissibility
All the relevant facts which are admissible by the court are called admissibility.

As per the Section 136 of the Evidence Act, the final discretion of the admissibility of evidence of the case lies
with the judge. Section 136 of the Evidence Act states that exactly when either assembling proposes to give proof
of any reality or actuality, the Lord justice may ask the social event proposing to give the proof how the alleged
truth, at whatever point illustrated, would be huge; and the judge will surrender the verification if he envisions that
the truth, at whatever point appeared, would be relevant, and not something different.
Essential ingredients of Admissibility

1. The judge is the only person who determines relevancy and admissibility.

2. When an individual proposes to show proof of any fact, the judge may ask an individual to explain ‘in
what way’ the fact is relevant.

3. The judge would concede the particular demonstrated reality just if he is content with the suitable
reaction of the individual that it is, to be sure, significant under either provision of S. 6 to 55. Hence the
thought of relevancy begins first and of admissibility later and the judge will concede the reality only
if it is relevant.

What is Relevant Evidence?

All reality is relevant which is equipped for bearing any reasonable assumption as to facts in issue or principal
matter in dispute. Sir “Stephen,” said that relevancy means a connection of event as cause and effect. By and large,
the realities significant to an issue are those actualities that are important for evidence or disproof of reality in the
issue. Such realities might be given in proof legitimately or inferentially.

What is truly implied by ‘relevancy of fact’ is a fact that has a specific level of probative power. They are not
certainties in issue but rather may influence the probability of reality in the issue.

Relevant evidence is auxiliary or collateral in nature, yet appropriate or likely in offering ascend to a derivation of
right or risk by a procedure of thinking.

A fact will be relevant only when it has a link with the facts in issue, but it is not admissible. For example-
communication between spouses during the marriage or any professional communication or communication which
is made regarding the affairs of the state these all are not admissible but they are relevant. A particular fact is
reasonably connected to the main issue it can be easily ascertained by logic and not by law. Therefore logical
relevancy signifies a reasonable link between the facts. Basically, it is a question of fact in which lawyer duty arises
and they have to decide whether to tender the proof in the court or not. The Relevant fact is given in evidence to
act from Section 5 to 55 and they are admissible in court.

Case – Knapp v. state

In the American case of Knapp v. state, the standard of law expressed by the court was that “the assurance of the
determination of a particular thing of evidence lays on whether verification of that evidence would sensible in
general assistance settle the essential issue at trial.

Essential ingredients of relevance

1. Relevancy is not totally dependent on law.

2. Relevancy is determined on the basis of practical experience, logic, common sense, human experience
and basic knowledge of affairs.

Difference between relevance and admissibility

 Relevance Admissibility

At the point when certainties are so related as to render the

At the point when facts have been
presence or non-presence of different facts likely as indicated by
announced to be lawfully significant under
the normal course of occasions or human conduct, they are called
I.E.Act, they become admissible.
relevancy.

It is established on law, not on the

It is found on the basis of the rationale and human experience.
rationale.

The provision regarding admissibility is

The provision regarding relevancy is discussed under Section 5 to
discussed under Section 56 of the Indian
55 of the Evidence Act.
Evidence Act.

It mainly emphasis on what facts are necessary to prove before the Between relevancy and proof, it acts as a
court and not? decisive factor.

It mainly focuses on what facts are

It basically implies the relevant facts. admissible and what facts are not
admissible.

Relevancy is basically a cause. It is mainly an effect.

The discretion cannot be applied by the

The court has the power to apply discretion in relevancy.
court in admissibility.

Relevant facts are not admissible. Legal

Admissible facts can be relevant.
relevant facts are admissible.

Case- Ram Bihari v State of Bihar

In this case, the supreme court observed that relevance and admissibility are synonyms to each other but their legal
implications are different from each other, and the admissible facts may not be relevant.

Section 6

RES GESTAE UNDER SECTION 6 OF INDIAN EVIDENCE ACT,1872

Definition of res gestae
Res Gestae has been derived from Latin words meaning ‘’things done’’. It is mainly an exception to the hearsay
rule of evidence which refers to ‘’an assertion other than one made by a person while giving oral evidence is
inadmissible’’.
As per the stated words of the Indian Evidence Act, under section 6, facts which though not in issue, are so
connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at
the same time and place or at different times and places. This comes under the ambit of res gestae.
Evolution of doctrine of res gestae
The doctrine of Res gestae doesn’t have a precise definition. It has been interpreted and applied in diverse
ways and it has been said that the difficulty of formulating a description of Res Gestae, which will serve all
circumstances seem unsurmountable.[1] It was the Romans who put light on the concept of res gestae which
meant acts that are done.[2] In the case of Thompson v Trevanion, Lord Holton may have used this exception
before the phrase ’res gesture’ has come to light.[3]It was in the middle of the 1800s that this exception has
been firmly established.
In Babulal v W.I.T Ltd[4], it was discerned that the statement of law in section 6 of the Indian Evidence Act is
usually known as Res Gestae. There is a diverse range of opinions when it comes to the understanding of res
gestae, where, for some, it is seen as an advantage to complicated cases, while for others, this exception is
denigrating and vague.
In the case of Ratten v R.[6], the privy council took the exception of hearsay, where a telephone
communication on the telephone took place 5 minutes before the woman was shot at the accused’s home,
where she hysterically yelped “Get me the police, please”. The privy council held the evidence admissible, as
it was part of the same transaction.
Nature and scope of Section 6 of the Indian Evidence Act,1872
As mentioned in Section 6, the facts must form a part of the same transaction, but what is meant by transaction
in legal terms?
Transaction: it is defined as a crime, contract, error or any other subject of enquiry that may be in question
by a single name, which includes both the immediate cause and effect of an act or event and also its collection
of relevant circumstances, the other necessary antecedents of its occurrence, connected with it, at a reasonable
distance of the time, pace and cause and effect. To resolve what forms a transaction, the following points need
to be taken into consideration:
• Unity or proximity of the place
• Proximity of time
• Continuity of actions
• Community of purpose
Mainly it is the test of continuity of actions and community of purpose that make it admissible in nature. If
the human declaration is spontaneous but detached from the concerned issue, it wouldn’t be admissible.
The transaction can confine a singular act or a series of acts, which may be done at a different place, or at a
different time, but it must be concurrent with the act. In the above-mentioned case of Ratten v R, the victim
dialled on the telephone 5 minutes prior to the shooting, however, that act was related to the act of shooting
that followed after 5 minutes. Her mental and physical expressions showed the continuity of actions and
declared the fear that she had against the accused for murdering her. All of these constitute instances, which
supplement, explain or qualify the fact and issues raised in the court of law. However, these facts would only
be relevant if they can be in sync with the proximity of time, continuity of actions and community of purpose.
Contemporaneous act: In the case of Kailash Chandrakar and another Versus State of Madhya Pradesh[8],
the rationale was to form a particular declaration as a part of the same transaction or of the same incident or
just contemporary to the incident so as to make reasonably certain that the speaker is still under the stress of
excitement in respect of the transaction are facts to be considered.
Such acts and statements can come under the doctrine of res gestae that are contemporaneous in nature,
meaning, must be simultaneous or spontaneously done, during or immediately, before or after the act, but not
after the act is over. Here the value of time is of significance. Res Gestae supports not only actual facts of the
transaction and circumstantial evidence surrounding it but also the matters immediately preceding to and
having a direct causal connection with it, as well as acts immediately following it and so closely connected
with it as to form in reality a part of the occurrence, as explained by J.McKnight, State v. Fouquette.
Even the statements declared by a person to a third party soon after the incident, with not much difference in
time are similar to contemporaneous utterances and are admissible as evidence under this principle through
the deposition of the one who heard the utterance.[9]
It was also held that requirement of section 6 is that the statement or act must have been contemporaneous
with the act or immediately after it and not at such space of time so as to make it a narrative of past events or
to allow time for fabrication.[10]
Relevance of evidence:
Any evidence, which is relating to the main issue raised, is deemed to be relevant unless proven otherwise.
Distinct offences may be linked so much that one offence is proof that the other offence followed right after
it.
Other conjoining offences by the accused would be pertinent and admissible if there is a relation between the
offence charged and the other offences or whether the two acts form part of the same transaction to fall within
Section 6. If the offences are so distinct, that they can barely form part of the same transaction, wouldn’t be
relevant evidence and would be inadmissible.
Relevance of facts:
Facts, preceding or succeeding the fact in issue, which constitute the state of circumstances under which they
have occurred, or which provided an opportunity for their occurrence or transaction, are relevant. Facts,
forming part of the same transaction will be admissible under the previous section.
Evidence to corroborate where such facts have occurred, where reasonable presumption to the disputed matter
has been established and where such evidence is reasonably conclusive can be admissible.
Showing similar facts, which aren’t even forming part of the same transaction, can’t be a relevant fact. When
some facts are alleged, they need to be proven with enough nexus with the offence to held admissible.
This section provides categories of facts which are connected with the transaction under inquiry in particular
modes, which are as follows:
1. As being the occasion or cause of a fact;
2. As being its effect;
3. As giving an opportunity for its occurrence; and
4. As constituting the state of things under which it happened
Test for admissibility of evidence under res gestae
There are a few questions that the judge of the respective of court needs to take heed of, for making such
evidence admissible under the res gestae doctrine. They also need to comprehend certain circumstances,
whether they were so sudden, surprising or startling to affect the immediate thoughts and actions of the victim,
that his/her declaration was an instinctive response to that circumstances.
For the supplementary evidence to be contemporaneous, it has to be adduced that the consciousness of the
declaring party has been immediately dominated by the event. Therefore, it has to be closely associated with
the main event.
Put it in brief, the test to be applied in deciding whether a hearsay statement made by a third party or the victim
indicating the identity of the attacker is admissible can be framed on the basis of these aspects:[11]
1. Relevancy of identification
 2. The spontaneity of the declaration
3. Possible opportunity for the concoction
4. The real possibility of error
5.
Landmark judgements relating to the doctrine of res gestae under Section 6, the Indian Evidence
Act,1872
The following judgements help to filter out the res gestae from such facts that actually have concurrence with
the main issue and determine whether these statements have occurred in the spur of the moment or fabricated
or narrated in a later period, to be admissible or not
1. Vasa Chandrasekhar Rao vs. Ponna Satyanarayan and Ors[12]
In this case, the offender had killed his wife and daughter. The deposition was made by the father of the
accused that who made a phone call to the accused and said over the call that his son had killed the deceased.
The contention raised before the court was, whether this statement of the accused’s father can be recognised
under the doctrine of res gestae. Unable to determine the time of the phone call, where this same information
was relayed, and whether it was done simultaneously with the commission of the crime or immediately after,
this evidence was held inadmissible under the said principle.
• Gentela Vijayavardhan Rao and Ors vs. State of Andhra Pradesh[13]
Here, the considerable interval between the act of carnage and the recording by the magistrate of the statement,
made the evidence inadmissible.
• Bishna and Ors vs. State of West Bengal[14]
In this case, two witnesses arrived at the place of occurrence right after the incident has taken place and found
the body of the deceased named Prankrishna and injured Nepal in an unconscious state. One of the witnesses
heard the mother of Prankrishna and Nepal sobbing and heard the entire scenario from an eyewitness and the
role played by each of the appellants. However, their testimony was inadmissible as it was recognised under
the doctrine of hearsay evidence.
Expansion of the doctrine of res gestae
Courts have gradually increased the ambit of the section, extending to cases like domestic violence, child
witness, etc.
Often, cases of domestic violence, and sexual and physical assault involve some form of startling event, also
including the issue of excited utterances, wherein most victims can only identify the alleged offender. So many
testimonies ought to be admitted.
In cases of rape or sexual offences, women are generally under trauma for having been victimised in a
gruesome way, so they might take a day or two to get over the trauma and respond. these responses must be
taken into the ambit of res gestae as well. If proven that the victim was in a state of shock, then such a statement
can be admitted. It is difficult to find eyewitnesses for rape as these cases happen in isolation.
An excited utterance is generally observed in the testimonies given by children. In the case of children, the
spontaneity of the declaration is given relief. the rationale behind this is that children take time to cope with
stress and their statements are made well after events occur at the first safe opportunity to speak.
In the case of Uttam Singh v State of Madhya Pradesh, the child of the deceased witnessed the death of his
father, when the offender hit the deceased with an axe by his neck and yelled in fear calling his mother for
help. Even though the child couldn’t give the statement on the spot, later his statement was held admissible
under section 6.
Exception to hearsay
A killed B, where C was the sole eye witness. C shared this news with D. If D testified whatever C saw in the
court, it would be held inadmissible because he wasn’t part of the event nor did form part of the same
transaction. He just heard it from C and said it. This is called hearsay evidence and is held inadmissible.
It’s admissible when a person testifies about what he or she has seen or heard if it’s relevant to the issue.
However, it’s not admissible if the truth of the statement needs to be weighed down. Hearsay isn’t the best
evidence because of the following reasons i.e., the witness isn’t available for cross-examination; he isn’t put
on oath or affirmation; it carries an inherent danger of unreliability through repetition of facts stated in the
chain of communication and possibility of fabrication.[15]
Res gestae is an exception to this doctrine because it includes the element of contemporaneity and forms part
of the same transaction.
Conclusion
It is now evident that the involvement of the speaker in the pressure of the drama or the concatenation of
events leading up to the crisis needs to be established. As long as the statement isn’t made by the mere narration
of a detached prior event to show the disengagement of the speaker from the main issue, it can be made
admissible.[16]
The statements, either oral or written, must be made with concurrence to the main issue and not merely
accompany the act. They must be descriptive about the immediacy of the statements relating to the occurrence
of such incidents. Besides, they can’t be independent facts or subsequent facts after the act is over.
The declaration may be made by the same person, party to the offence, or any third party. Due to the vague
nature of the doctrine, the courts have taken up the “test of continuity of transaction”. Even if certain
statements haven’t been uttered spontaneously, and had a gap of time from the occurrence of the incident, they
can be rendered admissible if it’s proved that the speaker was in a state of shock or excitement during the
incident.

Section 7 of Indian Evidence Act 1872

Facts which are the occasion, cause or effect of Fact-in-Issue
Facts, which are the occasion, cause or effect , immediate or otherwise , of relevant facts, or fact in issue or
which constitute the state of things under which they happened or which afford an opportunity for their
occurrence or transaction are relevant
Section 7 leaves the transaction itself, and provides for the admission of several classes of facts under the
umbrella of the same transaction which though not possible forming part of transaction, are yet connected
with it proper modes, and so are relevant when the transaction itself is under inquiry.
Section 7 of Indian Evidence Act 1872 provides for the admission of several classes of facts which are
completed with the transaction under inquiry in particular mode

• As being the occasion or cause of facts

• As bing its effect
• As giving opportunity for its occurrence
• As constituting the state of things under which happened
Levis vs Jones ITLR 152 In this case , some footprints were found near the scene of occurrence. The
prosecution led the evidence of a tracker to prove those footprints were that of accused. The evidence are held
admissible.
Kasam vs Firm of Haji Jamal 76 IC 327 In this case, plaintiff claimed certain sum of money from defendant.
Of that sum certain items were not recorded in the regular kept account book of the defendant. It was held that
the absence of entry is admissible to prove want of payment under section 7 of the Indian Evidence Act 1872.

Section 8
Facts and proof are the two things that combine to form evidence, which the court may or may not accept as
showing the merit or otherwise of a party’s case. Where the court believes the facts shown by a party in any
proceeding exist or when it is convinced that a reasonable person would see them as existing, the fact is said
to be proved. If the court is not satisfied that those facts exist or is convinced that a reasonable person would
not see them as existing, the fact is said to be “disproved”. Thus ‘Facts’ are important in any case. In last
article we have discussed ‘Facts in Issue’. In this article let us discuss Section 8 Indian Evidence Act about
facts showing or constituting motive, preparation and conduct.
Section 8 Indian Evidence Act, 1872 deals with the relevancy of motive, preparation, previous conduct
(conduct of accused before the commission of offence) and subsequent conduct (conduct of accused after the
commission of offence).
n Chandra Prakash Shahi v. state of U. P., AIR 2000 SC 1706 case, the Supreme Court observed: “Motive
is exertion of human will and, hence an ‘internal act’. Motive by definition, ‘is moving power which impels
action for definite result, or to put it differently motive is that which incites or stimulates a person to do an
act’.
In State of Punjab v. Bittu AIR 2016 SC146 case, the Supreme Court observed that the proof of motive alone
cannot be sufficient to convict the accused as it is not substantive evidence but only corroborative in nature.
In R v Palmer, May 14 to May 26, 1856. George Hebert, 89 Cheapside, London case, the accused
borrowed large sums of money from his deceased friend to pay his dues. The deceased died because of
poisoning in a hotel, after coming back from a race they both attended. Since the accused had a strong motive
to kill him, he was held liable. If a certain motive can be assigned, its adequacy is not questioned, only its
existence is enough to prove concerned facts.

Section 9 - The following are the facts that are necessary to explain or present significant facts in the matter
before the court, as stated in Section 9 of the Indian Evidence Act of 1872 :

• Facts that are required to be explained, or

• Introducing a fact in the dispute, or
• Relevant facts to be produced in regard to the matter before the court, or
• The facts that can be supported, or
• The facts that are rebutted as a result of an inference drawn from a fact at controversy, or
• The fact that establishes the identity of anything or anyone whose identity is relevant, or
• The facts that fix the time or place at which any fact in an issue or relevant fact occurred, or
• The fact that shows the relationship of parties by whom any such fact was transacted, is relevant to the
extent that it is required for that purpose.

Conditions for the applicability of Section 9 of the Indian Evidence Act,1972

The Section’s applicability is either due to the fact that it is explanatory or introductory in nature. The following
are the conditions in which this Section should be applied in a case:

1. The facts must necessarily explain the facts in the issue or relevant facts; or
 2. The facts must necessarily introduce the facts in the issue or relevant facts; or
3. The facts must necessarily support an inference or rebut the fact in issue or relevant fact; or
4. The facts must prove the identity of anything or anybody whose identity is important or significant; or
5. The facts must necessarily specify the time or place of the facts in issue; or
6. The facts must always show the relation of persons involved in the transaction.

Test Identification Parade (TIP)

The ‘Test Identification Parade’ is one of the ways of determining the identity of the accused. The purpose of the
tests is to allow an eyewitness to the occurrence to identify the accused before the Magistrate. The identification
of the test is absolutely required. The goal of test identification is to evaluate an eyewitness’ recollection and for
the prosecution to determine who can be called an eyewitness. The court may consider identification or supporting
evidence in some situations. It would be impossible to accept the identification of an accused by a minor witness
without confirmation in court, or the identification of an accused by a witness for the first time without
confirmation.

Relevant case laws pertaining to TIP

Heera v. State of Rajasthan (2007)

This specific case involves dacoity in relation to a parade test identification. Seven dacoits broke the door of a
Petrol pump office to steal money in the middle of the night while workers were sleeping in the office. The three
dacoits who entered the office battered the workers with lathis. Hearing the worker’s cries, a nearby neighbour
came to the scene and was thrashed by the dacoits as well. The criminals stole money from the cash box and
escaped. During the trial, thirty-seven witnesses were questioned. The suspects were identified using a Test
Identification of Parade.

The following principles are established for holding the Test Identification of Parade (TIP):

• The Test Identification of Parade (TIP) is not considered significant evidence. These are used to verify
the information.
• The major goal is to put the witness’s memory to the test during the inquiry stage.
• The Test Identification of Parade (TIP) procedure begins as soon as the accused is arrested.
• Appreciation will be based on the authenticity of the eyewitnesses.

Rajnath Singh, Mahatim Singh, Ram Manam, Munnu Alias Monu v. State of Uttar Pradesh
(1978)
This case involves dacoity in relation to a Test Identification of Parade. At night, four dacoits break into Sheo
Shanker Tiwari’s residence in Sakkapur village. They barged into the house carrying weapons such as a gun, a
knife and lathis. They also carried torches. These dacoits tied the family to their beds while they were asleep. They
were being threatened with weapons by the daicots. They took items and escaped from home. They discovered one
of the dacoits names and filed a complaint against him. The names of the others were unknown, but the family
recognized them. They were identified by the parade test. The eyewitness tracked down the others, who were
arrested and punished.
Section 10 - Things said or done by conspirator in reference to common design – Where
there is reasonable ground to believe that two or more persons have conspired together to commit an offence
or an actionable wrong, anything said, done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that any such person was a party to it.
Principle of Section 10
▪ The provision of conspiracy acts on the principle of implied agency as its foundation i.e. every
conspirator is an agent of the parties to the agreement to carry out the object of conspiracy.
Admissibility of Evidence Under Section 10
▪ Anything said, done or written by anyone of the conspirators in respect of their common intention is
admissible against all conspirators for proving:
o That the conspiracy existed.
o That the person was a part of such conspiracy
Relevancy Under Section 10
▪ Whether evidence is relevant under Section 10 or not is decided as per following parameters:
o That anything said, done or written by one of the conspirators at any random time is not
relevant and cannot be proved.
o That anything said, done or written by one of the conspirators at any time before such
conspiracy is entertained is not relevant and cannot be proved.
o That anything said, done or written by one of the conspirators at the time after such
intention was first entertained by any one of them is relevant.
o That anything said, done or written by one of the conspirators at the time after such conspiracy
was over is not relevant and cannot be proved.
o That anything said, done or written by one of the conspirators should be in reference to their
common intention.
▪ Before the court admits the evidence, it looks into the fact that whether reasonable grounds exist to
establish the fact that the concerned persons entered into a conspiracy.
▪ Also, any fact disclosed by the accused to the Police after his arrest and Confessional statements made
by the accused if any would not be fall under the ambit of S.10.
Important Case Laws
▪ Mirza Akbar v. Emperor AIR (1940):
o FACTS – This English case revolves around a married couple, Mehr Taja and Ali Askar. Mehr
Taja was in an extramarital union with Mirza Akbar. They both intended to marry each other
and for that they wanted to get rid of Ali Askar. For the purpose of murdering Ali Askar, they
hired Umer Sher. Ali Askar was in turn shot by Umer Sher and Mehr Taja was arrested on
charge of conspiracy.
o VERDICT – Lord Wright said that the provision specifically takes only those facts into
consideration which were said, written or done during the conspiracy. The admission made
Mehr Taja to the Examiner Magistrate was therefore not considered admissible under the
provision although the exchange of letters was within the ambit and hence were admissible.
 ▪ Badri Rai v. State of Bihar (1958)
The SC in this case has held that Section 10 is intentionally enacted to render the acts and statements of a co-
conspirator admissible as evidence against the entire group of conspirators, given the nature of the crime.

Section 11

Essentials of the Alib in Evidence Act

To establish the defence of plea of alibi, certain requirements must be met, including:

• A crime must have been committed that is punishable by law.

• The accused must be charged with committing the crime.
• The accused must prove that they were not present at the crime scene when the crime was committed.
• The accused must demonstrate that they were at a different location which would have made it
impossible for them to be present at the crime scene.
• The defence of plea of alibi must be raised as early as possible in the legal proceedings.

Who Can Use the Plea of Alibi?

The accused typically takes the plea of alibi in a criminal case. The accused must assert that they were
physically present somewhere else at the time of the alleged offence.

When to Raise the Plea of Alibi in Evidence Act?

To be effective, the plea of alibi should be raised as early as possible in the legal proceedings. It is
recommended to raise the defence at the initial stages of the case, such as during the framing of charges or at
the preliminary hearing.

Failure to Establish the Plea of Alibi

If the accused fails to establish the plea of alibi, it does not automatically imply that they were present at the
scene of the crime. The prosecution still needs to provide positive evidence to prove the accused’s presence
at the crime scene. Simply failing to establish the plea of alibi cannot be considered evidence of guilt.

Sections of Evidence Act Relevant to Plea of Alibi

The plea of alibi is recognized under Section 11 and Section 103 of the Indian Evidence Act, 1872.

Section 11: When Facts Not Otherwise Relevant Become Relevant

Section 11 of the Indian Evidence Act, 1872 provides for the rule of evidence regarding the relevance of facts
that are not otherwise relevant. According to this section, such facts become relevant if they are inconsistent
with any fact or relevant fact or if they make the existence or non-existence of any fact in an issue or relevant
fact highly probable or improbable.

Example of the Plea of Alibi: If the question is whether A committed a crime at Calcutta on a certain day, the
fact that A was in Lahore on that day is relevant. Additionally, the fact that A was at a distance from the place
where the crime was committed, making it highly improbable (but not impossible) that he committed the
crime, is also relevant.

Section 103: Burden of Proof as to Particular Fact

Section 103 of the Indian Evidence Act, 1872 deals with the burden of proof as to any particular fact.
According to this section, the burden of proof lies on the person who wishes the court to believe in the
existence of that fact unless a law specifies otherwise.

Example: If the question is whether A committed a crime at Calcutta on a certain day, the fact that A was in
New Delhi on that day is relevant. The burden of proving this fact lies on the person who asserts it.

Examples of Plea of Alibi in Evidence Act

A defence of a plea of alibi can be used in various criminal cases. For instance, if a man named Bill is accused
of selling drugs to a minor two blocks from a school, he can present evidence that he was at work at a
construction site at the time of the sale.

He can call witnesses, including his boss, co-workers, or the property owner, to testify that he was at the site
and did not leave around the time of the crime. Video footage or photographs taken at the time of the crime
can also be used to support the defence. In some cases, records of the card swipes can help prove the
defendant’s presence at a particular location.

Case Laws on Plea of Alibi

Munshi Prasad v State of Bihar 2001 (SC)

The Supreme Court held in this case that the accused’s presence at a reasonable distance from the place of
occurrence is necessary to prove a defence of plea of alibi, and the distance should be at least 500 meters.

Mukesh v. State of N.C.T. of Delhi, AIR 2017 SC 2161

In this case, the accused claimed that he was attending a musical program with his family at a park at the time
of the incident. However, the court rejected the plea of alibi, considering the contradictory evidence, such as
the dying declaration of the victim, DNA analysis, and fingerprint analysis. The evidence from the authorities
of the park also revealed that no permission was granted for any musical program on the date of the incident.

Lakhan Singh @ Pappu v. The State of NCT of Delhi

In this case, the court emphasized that a defence of plea of alibi should be raised at the earliest opportunity
and not belatedly at the stage of defence evidence. The accused failed to provide any reason or explanation
for not raising the defence earlier.

Binay Kumar Singh v. The State of Bihar

The court held that alibi is not an exception under the Indian Penal Code or any other law; it is only a rule of
evidence recognized under Section 11 of the Evidence Act. The defence argues that facts inconsistent with
the fact in the issue are relevant.

Conclusion
The plea of alibi is a crucial defence in criminal cases, which can help an accused person establish their
innocence. It is recognized under Section 11 of the Indian Evidence Act, 1872, and can be raised at the earliest
stage of the case. The burden of proof lies on the accused to establish their presence elsewhere at the time of
the commission of the alleged offence, and the prosecution must prove the accused’s guilt beyond a reasonable
doubt.
Section 12 of the Evidence Act provides for determination of damages when suits for the damages are
claimed by the party. Under this section the court can determine the amount of damages in an action based on
contract or tort. In a suit for damages, the amount of damages must be a fact in issue. Thus the section lays
down that evidence tending to determine, i.e., to increase or diminish damages is admissible. Section 55 of
this Act lays down the conditions under which evidence of character may be given in civil cases to affect the
amount of damages. Similarly Section 73 of the Indian Contract Act also lays down the rule governing
damages in actions in contract. In a suit for damages for a breach of contract of marriage, the evidence as to
status of the defendant may be given for determination of the amount of damages. Section 73 is based on
principles laid down in Hadley v Baxendala.

According to Section 13 of the Indian Evidence Act, the following kinds of facts are deemed to be
relevant if the question is as to the existence of any custom or right:-
1. Any such transaction by which the right or custom in question was created, claimed, modified,
recognized, asserted or denied, or which was inconsistent with its existence.
2. Particular instances in which the right or custom was claimed, recognized or exercised, or in which its
exercise was disputed, asserted or departed from.

Section 13 lays down as to what facts are relevant and may be proved when the question at issue is that whether
any right or custom exists. It deals with the proof of existence of any custom or right, so before discussing the
section itself, we will have to know that what actually a custom or a right is.
Validity of a custom
Rajendra Ram v. Devendradas AIR 1973 SC 268– A custom to be valid in India must have the following
attributes:
• It must be immemorial
• It must be reasonable
• It must have continued without interruption since its immemorial origin
• It must be certain in respect of its nature generally, as well as in respect of the locality where it is
alleged to obtain and the persons to whom it is alleged to effect.
Section 13 makes the instances and transactions relevant to prove or disprove a custom; it has
nothing to do with the mode of proof. A custom is a mixed question of law and fact. First certain
facts are to be proved and from those facts the inference of existence of a valid custom is drawn.
Where a custom is pleaded by one party and denied by other, the onus is on the party pleading it
to show its existence.

Section 14 of the Indian Evidence Act, 1872

The main part of Section 14 talks about two things:
The first part talks about facts showing the existence of the state of mind which includes intention,
knowledge, good faith, negligence, rashness, ill-will, or good-will towards particular person
are relevant. Focus is given to a particular person, which means a state of mind is not towards a
general person, but a particular person.
The second part of Section 14 says facts showing the existence of any state of body or bodily
feeling are Relevant.

• R vs. Prabhudas (1874): This case explains, Explanation-1 of Section 14. In this case,
accused was found of documents apparently forged. It was held not relevant in prosecution
for forging a promissory note as it shows the tendency of committing an offence of that
class and not an intention to commit that particular offence (i.e., committing of forgery of
the promissory note) It was not found relevant under section 14.
 • Aveson vs Kinnaird (English case): The Lady made the statement as to the state of her
health to the insurance company that her health is good. However the Insurance company
claimed that she made false statements to them as when the visitor visited her, she told him
that she was in a bad state of health. These statements of the visitor were allowed by the
court and held to be relevant as they show her state of mind (which includes intention, ill-
will, good faith, etc.). This case is similar to Illustration (m).

Sec 15. Facts bearing on question whether act was accidental or intentional.
When there is a question whether an act was accidental or intentional, or done with a particular
knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each
of which the person doing the act was concerned, is relevant.