Evidence Study Material 3ydc Osmania University

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Evidence Study Material 3ydc Osmania University.

LLB LAW (Honors (Osmania University)

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EVIDENCE ACT, 1872-JH

INDIAN EVIDENCE ACT, 1872

EVIDENCE IMPORTANT QUESTIONS


SHORT ANSWER QUESTIONS
1. DEFINITION OF EVIDENCE
2. HEARSAY EVIDENCE
3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT
SHALL PRESUMPTION, IRREBUTTABLE PRESUMPTION, CONCLUSIVE PROOF
4. DOCTRINE OF RES GESTAE
5. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT'S INVALID
6. AMBIGUITY, PATENT AMBIGUITY
7. JUDICIAL NOTICE
8. ACCOMPLICE

LONG ANSWER QUESTIONS


1. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT? ILLUSTRATE
PLEA OF ALIBI
2. ADMISSION, DISCUSS THE RELEVANCY OF ADMISSIONS
3. DEFINE & DISTINGUISH ADMISSION AND CONFESSION
ALL CONFESSIONS ARE ADMISSIONS BUT ALL ADMISSIONS ARE NOT
CONFESSIONS
4. DYING DECLARATION, CONDITIONS FOR THE RELEVANCY & ADMISSIBILITY
5. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE
6. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT?
7. BURDEN OF PROOF, GENERAL RULES RELATING TO BURDEN OF PROOF
8. DEFINE ESTOPPEL? EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL
9. EXPLAIN "EXAMINATION-IN-CHIEF". CROSS-EXAMINATION &
RE-EXAMINATION
(DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF WITNESSES)

CASE LAWS
1.Sec 115 Estoppel
2.Section 30, Confession against the co-accused
3.Section 105, Burden of Proof
4.Section 11, (Alibi)
5.Section 114, Court may presume existence of certain facts
6.Section 118, Who may testify
7.Section 93, Patent Ambiguity

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EVIDENCE ACT, 1872-JH

PAPER-V:
LAW OF EVIDENCE – SYLLABUS
Unit-I:
The Indian Evidence Act, 1872 — Salient features of the Act – Meaning and kinds of
Evidence – the impact of the Information Technology Act, 2000 on the Indian Evidence Act –
Interpretation clause — May Presume, Shall presume and Conclusive proof – Fact, Fact
in issue and Relevant facts —Distinction between Relevancy and Admissibility –
Doctrine of Res gestae — Motive, preparation and conduct — Conspiracy —When Facts
not otherwise relevant become relevant — Right and custom — Facts showing the state
of mind etc.
Unit-II:
Admissions & Confessions: General Principles concerning Admissions — Differences
between “Admission” and “Confession” — Confessions obtained by inducement , threat
or promise – Confessions made to police officer – Statement made in the custody of a
police officer leading to the discovery of incriminating material — Admissibility of
Confessions made by one accused person against coaccused. Dying Declarations and
their evidentiary value — Other Statements by persons who cannot be called as
Witnesses —Admissibility of evidence of witnesses in previous judicial proceedings in
subsequent judicial proceedings.
Unit-III:
Relevancy of Judgments — Opinion of witnesses — Expert’s opinion — Opinion on
Relationship especially proof of marriage — Facts which need not be proved — Oral and
Documentary Evidence – General Principles concerning oral evidence and documentary
evidence — Primary and Secondary evidence — Modes of proof of execution of
documents — Presumptions as to documents — General Principles regarding Exclusion
of Oral by Documentary Evidence – Relevance of social media in the law of evidence
Unit-IV:
Rules relating to Burden of Proof – Presumption as to Dowry Death — Estoppels —
Kinds of estoppels — Res Judicata, Waiver and Presumption.
Unit-V:
Competency to testify — Privileged communications – Testimony of Accomplice —
Examination in Chief, Cross examination and Re-examination — Leading questions —
Lawful questions in cross examination —Compulsion to answer questions put to witness
— Hostile witness — Impeaching the credit of witness — Refreshing memory —
Questions

Suggested Readings:

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EVIDENCE ACT, 1872-JH

1. Batuk Lal: The Law of Evidence, Central Law Agency, Allahabad.


2. M. Monir: Principles and Digest of the Law of Evidence, Universal Book Agency, Allahabad.
3. Vepa P. Saradhi: Law of Evidence Eastern Book Co., Lucknow.
4. Avatar Singh: Principles of the Law of Evidence, Central Law Publications.
5. V. Krishnama Chary: The Law of Evidence, S.Gogia & Company Hyderabad.
6. V. Nageswara Rao: The Evidence Act, LexisNexis.

SHORT ANSWERS

1. DEFINITION OF EVIDENCE.
Answer: Meaning of Evidence:
 “Evidence” is a word derived from the Latin word “evidera” which means to discover
clearly, to ascertain or to prove.
 According to Blackstone, evidence “signifies that which demonstrates, makes clear
or ascertains the truth of the facts or points in issue either in one side or the other”.
 Taylor describes evidence as “all means which tent to prove or disprove any matter,
fact, the truth of which is submitted to judicial investigation.
 Section 3 of the Indian Evidence Act defines “evidence” in these words :
1. All statements which the Court permits or requires to be made before it by
witnesses in relation to matters of facts under enquiry; such statements are
called oral evidence.
2. All documents including electronic records produced for inspection of the Court,
such documents are called documentary evidence.”

The answer to the objection can be given that Section 3 is an interpretation


clause which only explains the evidence. The definition of “evidence” considered
with the definition of “proved” in the Act, will not give rise to such objection.

 “Evidence” means that which makes evident.

2. HEARSAY EVIDENCE.
Answer: Hearsay is what one hears (but does not know to be true). It means gossip.

 Hearsay evidence is the evidence learnt by witnesses not through the medium of
their own senses but through the medium of third person. It signifies the evidence
heard and said.
 It is called as second hand or an unoriginal evidence.
 Peter Murphy states that “ Hearsay evidence is given when a witness recounts a
statement made (orally, in a document or otherwise) by another person and where
the proponent of the evidence asserts that what the person, who made the
statement, said was true”

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EVIDENCE ACT, 1872-JH

 Hearsay is that of which one has heard from another without himself having any
direct knowledge thereof.
 Section 60 of the Indian Evidence Act prohibits hearsay evidence from being offered
in judicial proceedings subject to the exception provided in the Evidence Act.

Why hearsay evidence is excluded or discarded:

1. The irresponsibility of the original declarant, whose statements were made neither
on oath, not subject to cross-examination,
2. The depreciation of truth in the process of repetition,
3. The opportunities for fraud its admissions would open,
4. The tendency of such evidence to protract legal enquiries,
5. Encourages the substitution of weaker evidence in place of stronger proof,
6. The person giving such evidence does not feel any responsibility. The law requires
all evidence to be given under personal responsibility

Exceptions to the hearsay rule: A number of exceptions have been recognized to facilitate
for the admission of hearsay evidence.

1. Res gestae,
2. Admissions and Confessions,
3. Statements by persons who cannot be called as witnesses (Sec 32),
4. Evidence given in the former proceedings (sec 33),
5. Entries in books of account including those maintained in an electronic for are
relevant (Sec 34),
6. Relevancy of entry in public record or an electronic record made in performance of
duty (Sec 35),
7. Opinions of experts (Secs 45 & 46),
8. Opinion as to handwriting (Sec 47),
9. Opinion as to digital signature when relevant (sec. 47-A),
10. Opinion as to existence of right or custom (Sec. 48),
11. Opinion as to usages, tenets, etc. (Sec . 49),
12. Opinion on relationship (Sec. 50),
13. Statements incorporated in Acts and Notifications, Government maps, Charts, Plans
etc., (Secs 34 to 39),
14. Provision 1, Section 60,
15. Proviso 2, Sec 60.
16. Statements in public documents,

3. TYPES OF PRESUMPTIONS RECOGNISED BY INDIAN EVIDENCE ACT.


Answer:
 The term presumption is not defined in the Indian Evidence Act, 1872.

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 Presumption means, taking a fact as true without examination or proof.


 Presumption means things taken for granted. It is an inference of fact drawn from
other known or proved facts.
 In Law of Evidence, a presumption is a conclusion or inference as to the truth of som
fact in question, drawn from some other fact judicially noticed or proved or admitted
to be true.
 Presumptions are drawn from the course of nature, the usage of the society and
transactions in business.
 Presumption is an inference drawn by a judicial officer positively or negatively about
a fact.
 Presumption is a matter of opinion.
 It is a rule of law that attaches definite probative value to specific facts or directs
that a particular inference as to existence of one fact not actually known shall be
drawn from a fact which is known and proved.
 It is an assumption of a fact and furnishes prima facie evidence of the matter to
which it relates and relives, until it is rebutted.

 It means, it holds the field in the absence of evidence but when facts appear
presumptions goes back.

Provisions of law:
 Sections 79 to 90 of the Indian Evidence Act, 1872 deal with the presumption as to
the genuineness of a certain kind of documents.
 Section 111A of the Indian Evidence Act, 1872 Act, deals with presumptions as to
certain offences.
 Section 112 deals with presumptions as to birth of a child during marriage.
 Section 113A of the Indian Evidence Act, 1872 deals with presumption as to
abetment of suicide by a married woman.
 Section 113B of the Indian Evidence Act, 1872 deals with presumption as to dowry
death.
 Section 114 deals with presumptions as to the existence of certain facts.
Types of presumption (Classification): Presumptions are of three kinds:
1. Presumption of fact (Natural Presumptions or May Presume): It is an inference
which is drawn from the observation of the human mind. Sections 86, 87, 88 and 90
of the Indian Evidence Act, 1872 deal with the presumption of fact. These
presumptions are generally rebuttable. They may be correct or they may not be
correct. The court may presume that a document or an account book or a
telegraphic message etc., are correct; but, this presumption may be disproved also.
e.g., (i) a watch of Ram is stolen and soon after it is recovered from the possession of
Shyam. There shall be a natural inference (Presumption) that Shyam either stolen
the watch himself or received it from some thief knowing it to be stolen,
(ii) From the fact that a letter has been posted, the natural inference (presumption)
would be that it reached the addressee,
2. Presumption of law (artificial presumptions): Presumptions of law are divided into
two categories.

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EVIDENCE ACT, 1872-JH

(A). Rebuttable (shall presume) presumption: Section 4 of the Evidence Act defines
‘shall presume’ “Wherever it is directed by this Act that the court shall presume a
fact, it shall regard such fact as proved unless and until it is disproved”. This kind of
presumption arises when presumptions of law are certain legal rules, defining g the
amount of evidence requisite to support a particular allegation, which facts being
proved, may be either explained away or rebutted by evidence to the contrary, but
are conclusive in absence of such evidence. Legal presumptions of this kind are
definitions of the quantity of evidence sufficient to make a prima facie case: in other
words of the circumstances under which the burden of proof lies on the opposite
party. Sections 107, 108, 112 are the examples of this presumption.
e.g., (i) Thus a man is presumed innocent until he is proved guilty; (ii) a child born in
a legal wedlock shall be presumed to be legitimate and one who questions his
legitimacy must disprove it; (iii) if a child is born during divorce he must be presumed
illegitimate unless the contrary is proved.
(B). Irrebuttable presumption: The conclusive or irrebuttable presumptions of law
are those legal rules which are not overcome by any evidence that the fact is
otherwise. A well-known instance of an irrebuttable presumption of law can be
found in Section 82 of the Indian Penal Code, wherein it is laid down that “nothing is
an offence which is done by a child under seven years of age”. In this type of
presumption there will not be any evidence to rebut them. These presumptions are
the rules deciding the quality of evidence required by law. Irrebuttable
presumptions are deemed to be correct, because of greater certainty. Irrebuttable
presumptions are normally the laws of the land, like ignorance of law is no excuse.
e.g., where a man having no title obtains possession of land under lease by a man in
possession who assumes him to give a title as a tenant he cannot deny his landlord’s
title. Thus it is clear that this kind of presumption of law is conclusive.
3. Presumption of Fact and Law (mixed presumptions): Mixed presumptions of law and
fact are chiefly confined to the English law of real property, and it is no place in India
as Evidence Act, has made provisions for the presumptions of fact (may
presumption) and the presumptions of law (shall presume). There are certain
sections in which it is said that a certain fact is conclusive proof of a certain another
fact.
Conclusive proof: Whenever it is mentioned that a fact is a “conclusive proof” of another
fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can
it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the
Evidence Act provides inter alia that a final judgement, order or decree of a competent
court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character. For
example, suppose A files a suit in a court of law for declaration that B is his legally married
wife. The court gives a decree in favour of A and declares that B is his wife. After a few
years in the lifetime of A, B files a suit against D for the property of one C, alleging that she is
a widow of C. In this case there will be an issue whether B is the wife of C. D files the copy
of the judgement of the previous case (A versus B). This judgement will prove that B is
legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the
fact that she is not the wife of C. Therefore, after the judgment mentioned above has been
filed, the court cannot allow B to adduce evidence to prove that she is wife of C and not of
A.

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EVIDENCE ACT, 1872-JH

“Conclusive proof” in Section 4 of the Evidence Act – when one fact is declared by this Act
to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other
as proved, and shall not allow evidence to be given for the purpose of disproving it.

3. DOCTRINE OF RESGASTE.
Answer: The doctrine of res gestae has been borrowed from English Law and is
incorporated in Sections 6 and 7 of the Evidence Act states that:
“Relevancy of facts part of same transaction – Facts which, though not in issue, are so
connected with a fact in issue as to form part of the same transaction, are relevant, whether
they occurred at the same time and place or at different times and places.
Illustrations: (a). ‘A’ is accused of the murder of ‘B’ by beating him. Whatever was said or
done by ‘A’ or ‘B’ or the bystanders at the beating or so shortly before or after it as to form
part of the transaction is a relevant fact.
(b). ‘A’ sues ‘B’ for a libel contained in a letter forming part of a correspondence. Letters
between the parties relating to the subject out of which the libel arose, and forming part of
the correspondence in which it is contained are relevant facts, though they do not contain
the libel itself.
©. the question is, whether certain goods ordered from ‘B’ were delivered to ‘A’. The goods
were delivered to several intermediate persons successively. Each delivery is a relevant
fact.
Same transaction: “Same Transaction” means a transaction in a group of facts, connected
together to be referred to by a single legal name as a crime, a contract, a wrong or any
other subject to enquiry which be in issue. Facts forming part of the same transaction are
relevant. All the facts which are parts of the same transaction are relevant to each other so
that when one of such facts in issue, the other are admissible.
One of the essential conditions is that, the statement must relate to the main event or
explain the main event. Res gestae must not be a product of a pre-plan; it must be a result
of deliberation instead. It must be a statement by a person who has either participated in
or witnessed the act and res-gestae is incidental to the main fact and explains its
occurrence. All acts which are part of one transaction or acts constituting a series or
showing continuing facts would be admissible as part of res-gestae. All statements which
are accompanied in explaining the facts in issue are also relevant.
Res gestae is an exception to hearsay: The res gestae is an exception to the principle that hearsay
evidence is no evidence. In R. v. Foster, the deceased had been killed in an accident by the speeding
truck. The witness had not seen incident but only the speeding truck. The deceased stated to him
what had happened with him in the accident. The court held the statement of the deceased to the
witness to be admissible in evidence as res gestae.

4. TEST IDENTIFICATION PARADE, UNDER WHICH CIRCUMSTANCES IT’S INVALID?


Answer: There was no specific provision in the Indian Evidence Act or Code of Criminal Procedure
regarding identification parade of the accused till 2005. By the amendment of Cr.P.C. in 2005, a new
Section 54A was inserted for identification of person arrested. Section 54A is as follows:
“Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such offence, the
court, having jurisdiction, may on the request of the officer-in-charge of police station, direct the
person so arrested to subject himself to identification by any person or persons in such manner as
the Court may deem fit”.
Necessity of test identification parade:

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EVIDENCE ACT, 1872-JH

1. Test Identification Parade is meant to test the veracity of the witness and his capacity to
identify unknown persons.
2. Test Identification Parade is not necessary where all the witnesses state that they otherwise
know accused persons and they are not strangers to them and in the moonlight and lantern,
they clearly identified them.
3. The evidence with regard to Test Identification Parade may be used by the Court for the
purpose of corroboration.
4. The purpose of test Identification Parade is to test and strengthen trustworthiness of
substantive evidence.
5. Where the eye-witness cannot give the name of the offender but claims that he can identify
him, it is necessary to hold Test Identification Parade.
Procedure of Identification Parade:
1. The Test Identification parade has to be conducted by the Magistrate or an authorised
person of Court,
2. The Magistrate has to make sure that at least 10 persons of similar appearance or build or
height are paraded with each suspect separately.
3. The Magistrate has to examine the marks likely to affect Identification of the suspect.
4. The Identification should be hold as early as possible.
5. It is not safe to place reliance on the identification of an accused for the first time in Court by
a witness after an inordinate delay.
6. If the accused is known to the witness, the need Identification Parade is not necessary.
Circumstances of invalidity of Test Identification parade: In the following circumstances, the
evidence of a witness in the Test Identification becomes invalid.
1. Most of the crimes are committed in darkness and at secluded places. In such cases light
becomes a matter of crucial importance to see the accused at the time of offence.
2. The eye-sight of the identifier has to be taken into consideration and at the time of offence
whether he is using his spectacles (if needed) or not also important.
3. If the identifier is in stirred minds, for excitement, fear or terror,
4. If the witness was in drunken position at the time of offence.
5. If the witness saw only the back side of the accused.
6. If the suspect was already shown to the witness before the Identification Parade.
7. If the precautionary steps such as bringing the accused by covering faces etc. have not been
taken.
8. If not conducted by authorised person or Court.
9. If the Identification Parade is conducted on all accused.
10. Where there are more offenders and a single eye-witness who cannot identify the features
of all the offenders with a short span of time.
11. If the accused persons muffled their faces in order to screen their identity by appearance.
12. If the photograph of the accused was shown to the identifying witness before the parade.

5. AMBIGUITY.
Answer: Meaning of Ambiguity: Doubtfulness, duplicity, indistinctness, or uncertainty of the
meaning of an expression used in a written contract. Ambiguities are of two kinds, they are
1. Patent Ambiguity: Patent means a doubt apparent on the face of an instrument or document.
Patent defect is observable by the senses. A patent ambiguity (ambiguitas patents) is one which
appears on the face of the instrument.
(i). Section 93, Exclusion of evidence to explain or amend ambiguous document
Section 93 of the Evidence Act states that “When the language used in a document is, on its face,
ambiguous or defective, evidence may not be given of facts which would show its meaning or supply
its defects.

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This is also known as ambiguous patents. Patent ambiguity can be understood through Section 93 of
the 1872 Act. If it appears to be ambiguous on the face of the document itself, then, patent
ambiguity may be due to a wrong description or due to the incompleteness of the document.
A patent ambiguity shows the defect, apparently, on the face of the document. No oral evidence
can be given to remove such patent ambiguities. The document will generally be ambiguous and
have no definite meaning. Sometimes, the patent ambiguity arises because of the ungrammatical
usage of the language. Hence, we can say that, it is the language of the document which will decide
the question of ambiguity of it. E.g. (i) ‘A’ agrees, in writing, to sell a horse to B for Rs. 1000 or Rs,
1500. Evidence cannot be given to show which price was to be given. (ii) A deed contains blanks.
Evidence cannot be given of facts which would show how they were meant to be filled.
(ii). Sec 94, Exclusion of Evidence against application of document to existing facts, Section 94 of
the Evidence Act states that “When language used in a document is plain in itself, and when it
applies accurately to existing facts, evidence may not be given to show that it was not meant to
apply to such facts”.
E.g., A sells to B, by deed “my estate at Rampur containing 100 bighas”. A has an estate at
Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be
sole was one situated at a different place and of a different size”.
Section 94 of the Evidence Act is supplement to Section 93 of the Act. When there is neither
patent nor latent ambiguity evidence cannot be given to contradict this.
2. Latent Ambiguity: This is also known as ambiguous latent. The latent ambiguity is in a hidden
form. The external circumstances do not create any difficulty or doubt as to the application of the
subject matter. However, the inherent meaning creates difficulties in the application when the
language used is clear, but, the meaning in application creates problems. The document is said to be
latent ambiguity. Latent ambiguity is based on the principle of false demonstration on necet (false
description).
Therefore, a document with latent ambiguity can be rectified by supplying the necessary facts. It
may be done by further evidence or by knowing the intention of the parties to a contract.
(A). Section 95, Evidence as to document unmeaning in reference to existing facts–
Section 95 of the Evidence Act states that “When language used in a document is plain in itself, but
is unmeaning in reference to existing facts, evidence may be given to show that it was used in a
peculiar sense”.
Illustration: A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears
that he had a house at Howrah, of which B had been in possession since the execution of the deed.
These facts may be proved to show that the deed related to the house at Howrah.
Where in a document, the intention of the parties is clear, but one of the essential facts is
described wrongly by mistake, and if the mistake is curable the document cannot be invalidated. In
such a case evidence is allowed to prove the actual existing fact as shown in illustration appended to
Sec. 95.
(B). Section 96, Evidence as to application of language which can apply to one only of several
persons. According to Section 96 of the Evidence Act, “when the facts are such that the language
used might have been meant to apply to anyone, and could not have been meant to apply to more
than one, of several persons and could not have been meant to apply to more than one, of several
persons or things, evidence may be given of facts which show which of those persons or things it
was intended to apply to”. E.g. A agrees to sell to B, for Rs.1000 “my white horse”. A has two white
horses. Evidence may be given of facts which show which of them was meant.

6. JUDICIAL NOTICE.
Answer: Judicial notice is the notice or recognition which a judge will take of a fact without proof.
Judicial notice is an acceptance by court for the purpose of a case, of the truth of certain notorious
facts without requiring proof. Judicial notice takes the place of proof and is of equal force.

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According to Stephen, “That certain facts are so notorious in themselves or are stated in so
authentic manner in well-known and accessible publications that they require no proof. The court, if
it does not know them can inform itself upon them without formally taking evidence. These facts
are said to be judicially notice”.
 Phipson states that “Judicial notice is the cognizance taken by the Court itself of certain
matters which are so notorious, or clearly established, that evidence of their existence is
deemed unnecessary.
 Judicial notice is a means of establishing facts, it is therefore superior evidence.
 The expression ‘taking judicial notice’ means recognition, without proof, of something as
existing, or as being true and the Court is duty bound to find out the law and apply it to the
facts of the case, even though the parties or their counsel fails to produce such law.
 Section 56 of the Evidence Act dispenses with proof of the facts which are capable of being
judicially noticed on account of their notoriety. These facts are of such public and universal
character, or are so well and authentically expressed in the treaties, that the Court is bound
to take notice of such facts.
Section 57 lists out the following facts that the Courts are under the obligation to take judicial notice
of the facts and the Courts cannot refuse to take judicial notice of the facts. They are:
(1). All laws in force in the territory of India
(2). Personal laws.
(3). Articles of war.
(4). Legislative proceedings.
(5). Accession and sign manual of the sovereign.
(6). Seals.
(7). Accession etc. of public officers.
(8). Recognition of foreign States and their National Flags.
(9). Division of time, world geographical divisions etc.
(10). Indian Territories.
(11). Hostilities between India and other States.
(12). Members and officers of Court.
(13). Rules of Road and Matters of Public History.

7. ACCOMPLICE.
Answer: An accomplice is not defined in the Indian Evidence, Act, 1872. Accomplice means a guilty
associate or a partner in crime. The accomplice is called “particeps criminis” (Participant in a crime).
The Participation may be before or after the crime. If the accomplice participated before the crime,
he is a participant in the preparation. After the crime, means harbouring or concealing the crime. A
reference is made in this regard under Section 133.
Categories of accomplices: An accomplice is of three kinds:
(A). Principals of the first and second degree.
(B). Accessories before the act.
©. Accessories after the crime.
Admissibility of accomplice evidence: It is to be noted that every person who is competent witness
is not a reliable witness and the test of reliability is to be satisfied through corroboration. A
reasonable suspicion of mens rea is the test of accomplice.
Section 133 Accomplice: An accomplice shall be a competent witness against an accused person;
and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice.
According to the illustration to Section 114, an accomplice is unworthy of credit unless he is
corroborated in material particulars.

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However, it is to be noted that the conviction based on uncorroborated evidence of an


accomplice is not illegal under Section 133, the courts, generally should not convict a person on the
basis of his uncorroborated evidence.
The evidence of accomplice is held to be untrustworthy for three reasons:
(1) Accomplice is likely to speak false in order to shift the guilt.
(2) Accomplice, being a guilty associate is likely to disregard oath,
(3) The hope of pardon would lead him to favour the prosecution.

LONG ANSWER QUESTIONS

8. WHEN FACTS NOT OTHERWISE RELEVANT BECOME RELEVANT? ILLUSTRATE (PLEA OF


ALIBI).
Answer:
General theory of relevancy: The object of any trial is to establish or disprove a particular claim or
charge by evidence. Hence, any fact which either proves or tends to disprove the claim of charge is
relevant.
The general theory of relevancy is that any fact which either disproves or tends to disprove the
particular claim or charge is relevant.
Section 11 of the Evidence Act attempts to state in popular language the general theory of
relevancy thus:
“When facts not otherwise relevant become relevant” –
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts they make the existence or non-existence
of any fact in issue or relevant fact highly probable or improbable.
Illustrations:
(a). The question is, whether ‘A’ committed a crime at Calcutta on a certain day.
The fact that, on that day, ‘A’ was at Lahore is relevant.
The fact that, near the time when the crime was committed, ‘A’ was at a distance from the place
where it was committed, which would render it highly improbable, though not impossible, that he
committed it, is relevant.
(b). the question is, whether ‘A’ committed a crime. The circumstances are such that the crime must
have been committed either by ‘A’, ‘B’, ‘C’ or ‘D’. Every fact which shows that the crime could have
been committed by no one else and that it was not committed by either ‘B’, ‘C’ or ‘D’ is relevant.
Alibi: Alibi is a Latin term which means elsewhere, Alibi is a claim or piece of evidence that one was
elsewhere when an alleged act took place; an excuse.
The term alibi is used to express that defence in a criminal prosecution, where the party accused,
in order to prove that he could not have committed the crime charged against him, offers evidence
that he was in a different place at the time.
Strict proof is required to prove the plea of alibi and the burden was on the accused.
Some more alibis:

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 Non-access (the absence of the husband), in disproving legitimacy.


 Survival of the alleged deceased.
 Commission of the crime by a third person.

2. ADMISSION, DISCUSS THE RELEVANCY OF ADMISSIONS.


Answer:
Definition:
According to Section 17 of Indian Evidence Act … -“an admission is a statement, oral or
documentary or contained in electronic form, which suggests any inference as to any fact
in issue or relevant fact, and which is made by any of the persons, and under the
circumstances, hereinafter mentioned”-

According to Black Law Dictionary – “It is voluntary acknowledgement made by a party of


the existence of certain facts which are inconsistent with his claim in an action”

Who can make admission: As per Section 18 of the Evidence Act, the following persons can make
admission:
1. Party to the proceedings in Criminal or Civil.
2. By his agent, authorised.
3. Parties to the suit, suing or sued in a representative character.
4. The persons having proprietary or pecuniary interest in the subject-matter.
5. Person from whom the party to the suit has derived his interest.

Essentials of admission.
It must be ….
 Clear, certain and definite
 Voluntary acknowledgment of a fact
 Related to question of fact only
 A statement either oral or documentary
 Made by the persons prescribed by the Act
 Made under the circumstances prescribed by the Act
 Taken as whole and not in part
 In the nature of self-harming form

Classification of admissions
Admissions can be broadly classified into two categories. They are;
a. Judicial or Formal admissions
A judicial admission is a formal statement made either by a party in the course of judicial
proceeding. It is a voluntary statement of fact. An admission in open Court is a judicial
admission.
b. Extra Judicial or Informal admissions
Extra-judicial admission is an informal statement made by the parties out-side the court.
These admissions do not appear on the record of the case. They are usually made in the
course of casual conversation. Extra-judicial admissions are binding on the party against
whom they are setup.

9. DEFINE CONFESSION. DISTINGUISH ADMISSION AND CONFESSION.


Answer:

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Definition of Confession: Confession is admitting or acknowledging a fault, wrong doing,


and crime. The word ‘confession’ appears for the first time in Section 24 of the Evidence
Act, but it has not been defined in the Act.
 As defined in Tomlins Law Dictionary, confession is a direct admission or
acknowledgement of his guilty by a person who has committed a crime.
 According to filz James Stephen, “A confession is an admission made at any time by a
person charged with the crime stating or suggesting an inference that he committed
the crime.” According to this definition a statement of an accused will amount to a
confession if it fulfils the following two conditions:
i). If he states that he committed the crime he is charged with, or
ii). If he makes a statement by which he does not clearly admit the guilt, yet from the
statement some inference may be drawn that he might have committed the crime.
Essentials of Confessions:
1. Confessions must be voluntary.
2. Confessions are declarations against the interest of the person making them,
3. Confession must be clear, definite and unequivocal, whether it is a judicial or extra-
judicial confession.
4. Confession must either admit in terms the offence, or at any rate substantially all the
acts which constitute the offence.
5. The reason or motive for confession and the person in whom confidence is reposed
by the accused are essential for the truthfulness of thee confession.
6. Confession must be related to the guilt of criminal nature.
7. Confessions should contain the admissions of incriminating facts relevant to the
offence such as motive, preparation, absence of provocation, concealment of
weapon and subsequent conduct which throw light upon the gravity of the offence
and the intention of knowledge of the accused.
8. Confession may be written or oral.
The distinction between ‘admission’ and ‘confession’:
1. Statement is genus, admission is species and confession is sub-species.
2. The word ‘admission’ is defined by Section 17 of the Evidence Act but the word
‘confession’ has not been defined in the Evidence Act.
3. An admission is a general term which suggests and inference as to any fact in issue
or any relevant fact while a confession is a statement made by an accused person
admitting that he has committed an offence or all the facts which constitute the
offence.
4. Admissions though generally are used in civil proceedings yet they may also be used
in criminal proceedings, whereas confessions are used only in criminal proceedings
to establish the commission of an offence by him.
5. The term ‘admission’ refers to every statement whether it runs in favour of or
against the party making it, but, a confession is the admission of the guilt in
reference to a crime and therefore necessarily runs against the interests of the
accused.
6. An admission may be used on behalf of the person making it whereas a confession
always goes against the party making it except under Section 30.
7. An admission need not be voluntary to be relevant, though it may affect its weight;
but a confession to be relevant, must be voluntary.

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8. The admissions made by an agent or even a stranger are relevant, but a confession
to be relevant must be made by the accused himself.
9. An admission by one of several defendants in a suit is no evidence against another
defendant whereas the confessions of one of two or more against another
defendant whereas the confessions of one of two or more accused jointly tried for
the same offence can be taken into consideration against the co-accused (Section
30).
10. Admission is not a conclusive proof of the matters admitted though it may operate
as on 14stoppels. However, a confession is deliberately and voluntarily made be
accepted as evidence in itself of the matters confessed though as a rule of prudence
the courts may require corroborative evidence.
11. An admission made to any person whether he be a policeman or a person in
authority or whether it was the result of an inducement, or promise is relevant, but,
in case of confession, it is not relevant unless such confession is free and voluntary.
12. As per Section 23 of the Evidence Act, admission made upon an understanding that
evidence of it would not be given is irrelevant but under Section 29 of the Evidence
Act, a confession made under a promise of secrecy is relevant.
13. Statements made by certain persons, who are not parties to the case are regarded as
admissions against the parties under Sections 18-20 of the Evidence Act, but a
confession always proceeds from a person who has committed an offence or is
accused of an offence.
14. All admissions are not confessions but all confessions are admissions.
15. The acid test which distinguishes a confession from an admission is that where
conviction can be based on the statement alone, it is a confession and where some
supplementary evidence is needed to authorise a conviction, then it is admission.
And another test is that if the prosecution relies on the statement as being true it is
confession and if the statement is relied on because it is false it is admission.

10. WHAT IS DYING DECLARATION? ALSO EXPLAIN WHEN IS IT RELEVANT AND ADMISSIBLE?
Answer:
What is dying Declaration: A dying declaration is a declaration or statement written or verbal or by
gestures made by a person as to the cause of his/her death, or as to any of the circumstances of that
transaction which resulted in his/her death. It is a statement, which must have been made by the
deceased before his death. Dying declaration is admissible both in civil and criminal cases.
Dying declaration are statements made by a dying person as to the injuries which culminated in
his death or the circumstances under which the injuries were inflicted. For example, ‘A’ has been
assaulted by B, or has been attacked by B, and dies. A shortly before his death makes a declaration
holding B responsible for the injuries inflicted on him with spear. This statement of A is admissible
as it relates to the cause of his death as a dying declaration at the trial against B. Statements made
by a deceased long period to the occurrences resulting in death are not dying declarations and not
admissible under the Section 32(1) of the Evidence Act. Section 32 makes admissible, the statement
of a person who dies, whether the death is homicide or a suicide, provided the statement relates to
the cause of death or deals with circumstances leading to death.
Law relating to Dying Declaration: Section 32 of the Evidence Act states: Cases in which statement
of relevant fact by person who is dead or cannot be found, etc., is relevant – Statements, written or
verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become

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incapable of giving evidence, or whose attendance cannot be procured without an amount of delay
or expense which, under the circumstances of the case, appears to the Court unreasonable, are
themselves relevant facts in the following cases:-
Section 32(1): When it relates to cause of death, when the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his death,
in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time
when they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
Illustration: The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question
is, whether she was ravished by S; or the question is, whether A was killed by S under such
circumstances that a suit would lie against them by A’s widower.
Essentials or conditions for the relevancy and admissibility of dying declaration: In order to admit
a statement under Section 32(1) the following conditions must be fulfilled.
1. The declarant must have died.
2. The dying declaration must be a statement, written or oral or by gestures.
3. Injuries are the cause of his death.
4. Circumstances of the transaction which resulted in his death.
5. The cause of the death of the declarant must be in question.
6. The declaration must be complete.
7. Declaration must be taken as a whole.
8. Declaration should be precise.
9. The declarant must be competent.
10. The declarant must be in a fit condition.
11. The statement recorded by a disinterested person e.g. Magistrate.
12. The declarant should give the statement voluntarily.
Pakala Narayana Swami v. King Emperor (1939).
Reasons or justification for the admissibility and validity of dying declaration: The admissibility of
dying declaration is based on the maxim “Nemo mortiturus prasumutur entire” which means “A man
will not meet his Maker with a lie in his mouth. The presumption is that when a person is conscious
of his impending death, when he is confident of his fast dissolution or when he has resigned from
the hope of survival, then in such cases he would not lie because, A man will not meet his Maker
with a lie in his mouth”.
The dead person cannot come and be a witness. The reasons for admitting the evidence of dying
declaration are:
(a) That it is the best evidence available,
(b) The occasion is solemn, and the dying man has to face his Maker without any motive for
telling a lie.
(c) He is the best eye witness.

11. EXPERT OPINION, KINDS & THEIR ADMISSIBILITY AS EVIDENCE.


Answer:
Opinions of third persons, when relevant (Section 45 – 51): As a general rule, the Courts always see
towards the direct evidence and tend to accept the evidence of witness, who saw or hear the fact.
The Courts weigh only on direct and circumstantial evidence. They do not consider the opinions of
third parties when they are irrelevant.
The Court is not an expert in every field. The rule of exclusion of opinion evidence is relaxed and
expert opinion is admitted to enable a court to come to a proper decision. Again, it is the duty of the
Court to weigh the strength of the opinion.

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Section 45 to 51 of the Evidence Act lay down the general principles and procedures about
‘opinion of third persons when relevant’.
The expert’s opinion, Section 45: “When the court has to form as opinion upon a point of foreign
law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in such a foreign law; science or art, or in questions as to
identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
Illustrations:
(A) The question is, whether the death of A was caused by poison.
The opinion of experts as to the symptoms produced by the poison by which A is supposed
to have died, are relevant.
(B) The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the
same person or by different persons, are relevant”.
Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject. In a general
sense, an expert is a person of peculiar knowledge or skill; one who has peculiar knowledge or skill
as to some particular subject, such as any art or science, or particular trade, or profession, or any
special branch of learning; and is professionally or peculiarly acquainted with its practices and
usages.
 An ‘expert’ is a person who made special study of the subject or acquired special experience
therein.
 An expert is a person who has special knowledge or skill in the particular calling to which the
enquiry relates.
 The person possessing superior knowledge and practical experience in a particular field.
 Every expert need not have academic qualifications.
 Some of the experts who are authorised to give opinion are: chemical examiner, public
analyst, motor vehicle inspector, coal expert, geological expert, surveyor, valuer, crop
valuation expert, an agricultural officer, a goldsmith etc.,
Examples:
A. A goldsmith possessing technical work of gold, and having more years of experience is an
expert. He can tell how much percentage of gold and copper are in an ornament. No
academic qualification is required for it.
B. A photographer having longstanding experience in the photography and have reputation as
good photographer in certain locality is an expert in the field of photography.
C. A doctor, having qualifications, and experience is an expert. When a person died with the
poison, the doctor can give a report after post-mortem. He can estimate how much quantity
of poison was and what type of poison consumed by the deceased, and when consumed by
the deceased, etc., such type of analysis can be done only by an export.
Admissibility of Expert Evidence: In Ramesh Chandra Agrawal v. Regency Hospitals Ltd., it has been
held that:
1. The subject-matter of the case requires the opinion of the expert,
2. The expert must be within a recognised field of experience.
3. The witness called must be a real expert in that technical field,
4. The evidence must be based upon reliable principles.
5. It must be shown that the expert has made a special study or acquired a special experience
in the subject.
6. The expert must place before the Court all the materials, together with his reasons for
coming to the particular conclusion.
7. Expert evidence is really of an advisory character.

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8. The duty of an expert is to furnish the judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to form his independent
judgement by the application of these criteria with facts proved by evidence of the case.

12. WHO IS AN EXPERT? WHEN ARE OPINIONS OF EXPERTS RELEVANT?


Answer:
Who is an expert: An ‘expert’ is a person specially skilled or practiced on any subject. In a general
sense, an expert is a person of peculiar knowledge or skill; one who has peculiar knowledge or skill
as to some particular subject, such as any art or science, or particular trade, or profession, or any
special branch of learning; and is professionally or peculiarly acquainted with its practices and
usages, a person who has technical and peculiar knowledge in relation to matters with which the
mass of mankind are supposed not to be acquainted, he who has some special, particular or
practical knowledge in relation to some special department of the affairs of men as would qualify
him to stand as an expert.
 An ‘expert’ is a person who made special study of the subject or acquired special experience
therein.
 An expert is a person who has special knowledge or skill in the particular calling to which the
enquiry relates.
 The person possessing superior knowledge and practical experience in a particular field.
 Every expert need not have academic qualifications.
 Some of the experts who are authorised to give opinion are: chemical examiner, public
analyst, motor vehicle inspector, coal expert, geological expert, surveyor, valuer, crop
valuation expert, an agricultural officer, a goldsmith etc.,
Examples:
D. A goldsmith possessing technical work of gold, and having more years of experience is an
expert. He can tell how much percentage of gold and copper are in an ornament. No
academic qualification is required for it.
E. A photographer having longstanding experience in the photography and have reputation as
good photographer in certain locality is an expert in the field of photography.
F. A doctor, having qualifications, and experience is an expert. When a person died with the
poison, the doctor can give a report after post-mortem. He can estimate how much quantity
of poison was and what type of poison consumed by the deceased, and when consumed by
the deceased, etc., such type of analysis can be done only by an export.
Relevancy of expert’s opinion: As a general rule, the opinion of the third persons is not allowed in
the courts. But there are some exceptions to the rule. The judge is an expert in the legal field. But
he may not be expert in other fields like photography, medicine, architecture, art, science,
handwriting, etc. When the particular case requires the assistance of an expert in that field.
The opinion of the expert is admissible, to enable the court to come to a satisfactory conclusion.
The opinion the expert is only opinion evidence. It does not help the court in interpretation. The
court is not bound to follow it blindly. The expert cannot act as a judge or jury and the final decision
is to be made by the judge.
As per Section 45 of the Evidence Act, the fields of expert are the foreign law, science, art, identity
of handwriting, and finger impressions.
The pre-requisites of expert evidence are:
1. The subject-matter of the case requires the opinion of the expert,
2. The witness called must be a real expert in that technical field,
3. The expert witness must be a truthful person,
4. Besides experience and special knowledge, the expert witness must possess the required
academic qualification in some cases, every expert need not have academic qualifications.
The expert witness must be subjected to cross-examination in the court. Mere submission of his
opinion on paper or certificates is not sufficient.

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The expert opinion is only corroborative evidence. It need not be sole basis for the conclusive
proof.

13. BURDEN OF PROOF (ONUS PROBANDI). GENERAL RULES RELATING TO BURDEN PROOF.
Answer:
Burden of Proof Introduction: Whenever any person goes to a court of law in order to seek
redressal of any injustice caused to him, he has to establish his case under certain statute or case
law. But the rule of law applies only when certain other circumstances and facts exist. Certain facts
require no proof. All other relevant facts, however, must be proved by evidence that is by the
statement of the witness, admission or confession of the parties and the production of the
document. The parties have to prove the existence of some facts or prove the non-existence of facts
and the responsibility of proving the facts is considered as the burden of proof.
General rules relating to Burden of Proof:
14. Burden Proof, Section 101 of the Evidence Act states that “whoever desires any Court to
give judgment as to any legal right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies
on that person.
Illustrations:
a. A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed.
A must prove that B has committed the crime.
b. A desires a court to give judgment that he is entitled to certain land in the possession of B,
by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts”.
2. On whom burden of proof lies, Section 102 of the Evidence Act states 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.
Illustrations:
a. A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will
of C, B’s father.
If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
b. A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A
denies. If no evidence were given on either side, A would succeed as the bond is not
disputed and fraud is not proved. Therefore the burden of proof is on B”.
15. Burden of proof as to particular fact, Section 103 of the Evidence Act states that “the
burden of proof as to any particular fact lies on that person who wishes the court to believe
in its existence, unless it is provided by any law that the proof of that fact shall lie on any
particular person.
This rule is known as the he who wish to prove a particular fact must prove rule.
Illustration: A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C.
A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher Singh.
16. Burden of proving fact to be proved to make evidence admissible, Section 104 of the
Evidence Act states that “the burden of proving any fact necessary to be proved in order to
enable any person to give evidence of any other fact is on the person who wishes to give
such evidence.
Illustrations:

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a. ‘A’ wishes to prove a dying declaration by B. A must prove B’s death.


b. ‘A’ wishes to prove, by secondary evidence, the contents of a lost document. A must prove
that the document has been lost.

17. Burden of proving that case of accused comes within exceptions, Section 105 of the
Evidence Act states that “when a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions in the
Indian Penal Code, or within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence, is upon him, and the Court shall presume
the absence of such circumstances.
Illustrations:
a. A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the
nature of the act.
The burden of proof is on A.
b. A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the
power of self-control. The burden of proof is on A.
c. A is charged with voluntarily causing grievous hurt under Section 325. The burden of
proving the circumstances bringing the case under Section 335 lies on A.
Plea of self-defence, the burden of establishing the plea of self-defence is on the accused.
And describe remaining Sections 106 to 114A pertaining to Burden of proof.

18. DEFINE ESTOPPEL. EXPLAIN THE DIFFERENT KINDS OF ESTOPPEL.


Answer: Meaning: There is said to be an estoppels where a party is not allowed to say that a certain
statement of facts is untrue, whether in reality it is true or not. Estoppel, or “conclusion” as it is
frequently called by the elder authorities, may therefore be defined as a disability whereby a party is
precluded from alleging or proving legal proceeding that a fact is otherwise than it has been made to
appear by the matter giving rise to that disability”.
 Estoppel is preclusion in law which prevents a man alleging or denying a fact in
consequence of his own previous act, allegation, or denial of a contrary tenor.
 Estoppel is the preclusion of a person from ascertaining a fact, by previous
conduct/inconsistent therewith, on his own part, or on the part of those under whom he
claims.
 According to Tamlin’s law Dictionary “Estoppel is an impediment or bar to a right action
arising from a man’s own act; or where he is forbidden by law to speak against his own
deed, for by his act or acceptance he may be stopped to allege or speak the truth.
 An 19stoppels arises where a man “has done some act which the policy of the law will not
permit him to gainsay or deny”.
Rule of 19stoppels: The rule of 19stoppels is based on the maxim “Allegans contraria non est
audiendus”, which means “A person alleging contradictory facts should not be heard”. It is based on
the principle that it would be most inequitable and unjust that if one person, by a representation
made or by conduct amounting to a representation has induced another to act, the person who
made the representation should not be allowed to deny or repudiate the effect of his former
statements, to the loss and injury of the person who acted on it.
The principle of 19stoppels says that a man cannot approbate and reprobate, or that a man
cannot below hot and cold, or, again that a man shall not say one thing at one time and later on say
a different thing.
Section 115 of the Indian Evidence Act, states “when one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a thing to be true and to act
upon such believe neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person on his representative to deny the truth of that thing.

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Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby
induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground
that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
The elements of 20stoppels: As per Section 115 of Evidence Act,
1. Representation or declaration.
2. With the intention of inducing another person.
3. The other person of has believed and acted upon it.
4. Prevention of denial.
Kinds of 20stoppels: they are
1. Estoppel by record.
2. Estoppel by deed, and
3. Estoppel by conduct (20stoppels in pais).
Case laws on rule of 20stoppels:
Pratima Das v. The State of Orissa.
Smt. Gita Mishra v. Utkal University.

19. DISCUSS THE DIFFERENT STAGES IN THE EXAMINATION OF WITNESSES.


Answer:
The purpose of the examination of witnesses:
a. To formally interrogate witness or an accused person.
b. To test critically the facts.
c. To investigate in order to form a judgment.
Various stages or steps of Examination to which a witness can be subjected:
1. Chief-examination.
2. Cross-examination.
3. Re-examination.
4. Re-cross examination.

20. Section 137 of the Evidence Act states that “Examination-in-chief:- The examination of a
witness by the party who calls him shall be called his examination-in-chief.
Examination-in-chief means the party who comes to the court himself as a witness.
Where he comes as a witness he is given an oath in the witness box. His name and address
are taken down by the court. Then the advocate of the plaintiff or defendant will be under a
duty to elicit or explain the fact stated in the plaint or written statement. Examination of the
party by his own advocate is called chief examination. The purpose of chief examination is
to give the party a chance to place the facts before the court and explain all facts, which
require proof. The party will be placing his version with personal knowledge. There are
three rules about examination-in-chief:
(a). The chief examination must be confined to the facts in issue or relevant facts alone.
And, they must be made in a bonafide manner, where personal opinion is irrelevant.
(b). In chief examination no leading questions are to be asked.
©. Questions which cause discredit to a witness should not be asked. The witness can give
evidence of facts only and not of law.
21. Cross-examination:- The examination of a witness by the adverse party shall be called his
cross-examination. After the party calling the witness has finished thee chief examination,
the opposite party has a right to cross examine the witness. Cross examination is an
opportunity available to the opposite party. It is one of the most useful methods of
discovering the truth. It is a powerful and valuable weapon to test the veracity (correctness)
of the witness. Cross examination need not be confined to matters proved in the chief
examination.

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Main objects of the cross-examination:


(a). To weaken the witness.
(b). To destroy the case of opponent.
©. To establish one’s own case, by means of the opponents’ witness. If a fact is stated in a
chief examination and the witness is cross examined on that point it leads to the inference
that the party accepted the statement. But, there are exceptions to this rule. They are:
(i). The witness had notice before hand.
(ii). Whether the story is incredible.
(iii). Non-cross examination due to delicacy of the matter.
Rules of cross-examination:
(a). The question must relate to facts in issue and relevant facts.
(b). Leading questions can be asked.
©. A witness can be questioned of his previously recorded statements.
(d). A witness may be questioned on such fact which causes discredit to the testimony of a
witness.
22. Re-examination:- “The examination of a witness, subsequent to the cross- examination by
the party who called him, shall be called his re-examination”. After the witness is cross
examined by the opposite party or the party calling him again, then, this examination for the
second time is called re-examination. The purpose of re-examination is:
(a). To remove any suspicion that cross examination has caused.
(b). To enable the witness to reconcile any contradiction.
©. To enable the witness to state the whole truth.
Rules regarding re-examination:
(a). Leading questions must not be asked.
(b). Only such ambiguity arising out of cross-examination must be explained.
©. All the rules followed in examination-in-chief.
4. Re-cross examination: In re-examination, new matters can also be introduced with the
Permission of the court. If any new matters are introduced in re-examination, again the
Adverse party has a right to cross-examination the witness again.

*****

PART C, CASES

1. SECTION 115, ESTOPPEL.


A intentionally and falsely leads B to believe that land belongs to A, and thereby
induces B to buy and pay for it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that at the time of the sale, he had no title.
Decide. (Sep 2018, May 2017, Jul 2012)
‘A’ OWNS A PIECE OF LAND OVER WHICH ‘B’ HAS NO RIGHT. BUT ‘B’ BUILDS A HOUSE
ON IT ‘A’ KEEPS QUIET AND AFTER THE BUILDING IS COMPLETED SUES FOR ITS
DEMOLITION. DISCUSS WHETHER ‘A’ CAN BE ESTOPPED FROM ASSERTING HIS RIGHT.
(SEP 2017, Aug 2015).
Answer:
Issue: Whether the sale by A is correct? Yes
Whether the claim by A, regarding the title is maintainable? NO
Whether “A” is stopped by Rule of Estoppel? Yes
Rule: Section 115 of The Indian Evidence Act, 1872 stats that:
Estoppel – When one person has, by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon such

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belief, neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to A,
and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on
the ground that, at the time of the sale, he had not title. He must not be allowed to
prove his want of title.
Application: The problem is related to Rule of Estoppel, this rule prevents a person from
taking up inconsistent position from what he has pleaded or asserted earlier. The rule of
estoppels is based on the principle that it would be most inequitable and unjust.
Section 115 is based on the decision in Pickard v. Sears, in which it was stated, “where
a person by his words or conduct wilfully causes another to believe in the existence of a
certain state of things and induces him to act on the belief so as to alter his own
previous position, the former is precluded from averring against the latter a different
state of things as existing at the same time.
Conclusion: In the instant problem, purchase of land by B is in good faith and valid,
whereas ‘A’ as induced the B to purchase the land. Hence A cannot set aside the sale on
the ground that, at the time of sale he had no title. Even though at the time of the sale
he was not having the title, but subsequently he purchased the land. Now he is bound
by the rule estoppel. And the land belongs to B.
In the second problem, the land and the house belong to ‘B’. The Silence of the A is
amounting to believe ‘B’ that the piece of plot belongs to B, and based on the omission
of the duty to stop the construction by ‘B’, he has constructed the house. In the Section
115, the word omission is there “act or omission, intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing” with this provision in the
Section, A has lost the right.

2. SECTION 30, CONFESSION AGAINST THE CO-ACCUSED.

A. ‘A’ an accused person admitted that he along with ‘B’, the fellow accused committed
robbery. What is the admissible value of confession made by one accused person against
the co-accused? (September 2017).
B. X and Y are jointly tried for the murder of Z. X made a statement that “I myself and Y
murdered Z”. The prosecution intends to use this statement against Y. Is it permissible?
Discuss. (May 2017), (August 2015).
C. A and B are jointly tried for the murder of C. A said before the Court that B and I
murdered C. Can the court consider this confession against B? (August 2016).
Issue:
Whether it’s joint trial? Yes.
Whether one accused can make confession? Yes.
Whether one accused can make confession regarding the involvement of co-Accused? Yes.
Rule:
Section 30 of the Evidence Act states that:
“Consideration of proved confession affecting person making it and otherwise jointly under trial for
same offence: - When more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some other of such persons is proved,
the court may take into consideration such confession as against such other person as well as
against the person who makes such confession.

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Illustration: A and B are jointly tried for the murder of C. It is proved that A said: ‘B’ and I murdered
C. The court may consider the effect of this confession as against ‘B’.
Conditions for the application of Section 30:
1. There must be joint trial.
2. The joint trial must be permissible under the law.
3. The joint trial must be for the same offence.
4. The statement must amount to a confession.
5. The court may take such confession into consideration.
Section 30 of the Evidence Act applies to confessions, and not to statements which do not admit
the guilt of the confession party.
Application:
The courts may consider the confession of the accused against himself and the co-accused.
Section 30 is an exception to the rule that the confession of one person is entirely inadmissible
against another, where more persons than one are jointly tried for the same offence.
In the instance case, the conditions laid down by the Section 30 are followed, and the confession
is admissible.
Conclusion:
The admission is admissible against the all accused.

3. Section 105, Burden of proof in case of claiming exceptions.


A. A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the
nature of the act. Decide. (Sep 2018), (July 2012), (May 2011).
B. ‘A’ is charged for committing murder. A alleges that by reason of unsoundness of mind, he
did not know the nature of the act. On whom the burden of proof lies? Discuss (Sep 2017)
Issue:
Whether the accused can claim exception? Yes
Whether exception is available under IPC for unsoundness of mind? Yes
Rule:
The Section 84 of Indian Penal Code states that “Act of a person of unsound mind – Nothing is an
offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to
law.
The 105, or Evidence Act, 1872 states that “Burden of proving that case of accused comes within
exceptions, - When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, 1860,
or within any special exception or proviso contained in any other part of the same Code, or in any
law defining the offence, is upon him, and the Court shall presume the absence of such
circumstances.
Application:
Section 105 of the Evidence Act contains two kinds of burden on the accused who sets up an
exception:
(i). the onus of proving the existence of circumstances bringing the case within any of the general or
special exceptions in the IPC or in any other law; and
(ii). The burden of introducing or showing evidence, which results from the last part of the provision
which says that the Court shall presume the absence of such circumstances..
Under Section 105, the burden of proving the existence of circumstances bringing the case within
the exception lies on the accused and the Court shall presume the absence of such circumstances.
In A.K.Choudhary v. State of Gujarat, it has been held that in view of Section 105 of the Evidence
Act the burden would be upon the accused to prove that the case is falling under general exceptions.
Conclusion:

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In the given case the accused can claim the general exception available under Section 84 of IPC
and the burden of proof (onus probandi) is on him, he has to prove his unsoundness of mind.

4. Section 11, Alibi.


A. ‘X’ is charged for committing a crime at Hyderabad on a certain day. He wants to prove
the fact that the he was at Delhi on that day. Is it a relevant fact? If so which provision of
the Evidence Act deals with it? (May 2017), (May 2011).
B. ‘A’ is charged for committing an offence at Warangal on a certain day. He wants to prove
that he was at Hyderabad on that day. Is it relevant? Discuss the relevant provision of the
Evidence Act. (August 2015).
Issue:
Whether the accused can take the plea of Section 11 of Evidence Act? Yes
Whether the plea of accused is relevant to the fact in issue? Yes.
Rule:
As per the Section 11 of the Indian Evidence Act, 1872, “when facts not otherwise relevant
become relevant. - Facts otherwise relevant are relevant are relevant –
(i). if they are inconsistent with any fact in issue or relevant fact;
(ii). If by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable of improbable.
Illustrations:
a. The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on
that day. A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the
place where it was committed, which would render it highly improbable, though not
impossible, that he committed it, is relevant.
b. The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or
D, every fact which shows that the crime could have been committed by no one else and
that it was not committed by either B, C, or D, is relevant.
Application:
The given case is similar to illustration (a) of Section 11. Under sub-clause (1) of Section11, facts
are relevant because they are inconsistent with any facts in issue or relevant fact. They are so
diametrically opposed to the facts in issue that the existence of those facts makes the existence of
those facts in issue or relevant fact impossible. Under Sub-clause (1) of Section 11 the facts are
relevant because if they are proved to exist the fact in issue or relevant facts can in no case exist.
Alibi is a claim or piece of evidence that one was elsewhere when an alleged act took place; an
excuse.
The term alibi is used to express that defence in a criminal prosecution, where the party accused,
in order to prove that he could not have committed the crime charged against him, offers evidence
that he was in a different place at the time.
Conclusion:
The accused can plead his case under Section 11 of Indian Evidence Act; this defence is available
to him. By proving that, at the time of the crime he was elsewhere, he can be discharged from the
case.

5. Section 114, Court may presume existence of certain facts.


A. Soon after commission of theft, stolen goods are found in possession of ‘X’. What type of
presumption can be raised by the court in the trial of ‘X’? Refer to relevant provisions of
the Indian Evidence Act. (Sep 2017), (Sep 2012).
Issue:
Whether the above case comes under presumptions? Yes

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Rule:
Section 114, Court may presume existence of certain facts. - The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their relation to the
facts of the particular case.
Illustrations:
That a man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his possession.
The given case is same that of illustration (a) to Section 114.
Application:
Illustration (a) under Section 114 states that “The Court may presume that a man who is in the
possession of stolen goods soon after the theft is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession”.
Illustration (a) under Section 114 itself shows that the presumption will not arise until two
conditions are fulfilled, namely, the accused is in possession of the goods soon after the theft and is
unable to account for his possession.
In Virumal Mulchand v. State of Gujarat, accused was found in possession of stolen goods within
two days of theft. He failed to furnish any explanation for his possession. Held that, the
presumption under illustration (a) of Section 114 can be drawn and the accused can be convicted
under Section 411 of IPC as received of stolen property.
Conclusion:
In the given case, X is found with the stolen goods, and the Court may presume, under Section
114, that he has committed the theft.

6. Section 118, who may testify.


A. To prove that, A murdered Y, C a child of 5 years was brought in as an eye witness is it
relevant? (Aug 2016).
B. ‘X’ was charged for killing his wife with an axe. Their son a child of four years was beside
them. The prosecution produced the child as a witness. There was no other evidence.
The Court convicted ‘X’ on the basis of evidence of the child. Is the conviction valid? What
is the legal position? (July 2012).
C. To prove that A murdered Y, evidence of C, a child of 5 years was brought in as an
eyewitness. Is it relevant? (Aug 2013).
Issue:
Whether the child witness is competent to give witness? Yes.
Whether the conviction based on child witness is valid? Yes.
Whether the testimony of child witness is relevant? Yes.
Rule:
The Section 118 of Evidence Act, 1872 states about the persons, who may testify:
All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease, whether of body or mind, or any other cause of the same
kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.
Comments: Evidence of child witness
(i). The deposition of a child witness may require corroboration, but in case his deposition inspires
the confidence of the court and there is not embellishment or improvement therein, the court may
rely upon his evidence. Only in case there is evidence on record to show that a child has been
tutored, the court can reject his statement partly or fully.

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(ii). Evidence of child witness is not required to be rejected per se; but Court as a rule of prudence
considers such evidence with close scrutiny and only on being convinced about the quality thereof
and reliability can record conviction, based thereon.
Application:
In criminal cases, with respect to children, a child of tender age may be allowed to testify, if the
court is satisfied that the child is capable of understanding the question put to him and give rational
answers to the court. No precise age is fixed by law within which they are absolutely excluded from
giving evidence on the presumption that they have not sufficient understanding.
Competency of a child witness cannot be questioned if his evidence is otherwise probable and
true. A child witness is not an incompetent witness whose evidence may have been always
discarded.
The child witness who is below 12 years need not be administered oath.
Conclusion:
In the given case, the child witness is competent.

7. Patent ambiguity, Section 93.


A. ‘A’ agrees in writing to sell his car to ‘B’ for Rs.400000/- or 500000/-. A tries to produce
oral evidence to show which price was to be given. Is it permissible? Discuss (May 2017).
B. ‘A’ agrees, in writing, to sell his car to ‘B’ for Rs. 100000/- or Rs. 150000/- ‘A’ tries to
produce oral evidence to show which price was to be given. Is permissible? Discuss (Sep
2012).
Issue:
Whether oral evidence can be given? No
Is it patent ambiguity? Yes
Rule:
Section 93: Exclusion of evidence to explain or amend ambiguous document. – When the
language used in a document is, on its face, ambiguous or defective, evidence may not be given of
facts which would show its meaning or supply its evidence may not be given of facts which would
show its meaning or supply its defects.
Illustration: A agrees, in writing, to sell a horse to B for Rs. 1000 or Rs. 1500. Evidence cannot be
given to show which price was to be given.
Application:
Section 93 of the Evidence Act deals with patent ambiguity – No oral evidence can be given to
remove a patent ambiguity. Under Section 93 when the language used in the document is on its
face ambiguous or defective, no evidence is permissible to show its meaning or supply its defects.
That is to say when the language used in a document is ambiguous on its very face and no definite
meaning can be given to it, no evidence can be given to facts which would make its meaning clear.
In Keshaulal Lallubhai Patel v. Lalbhai T. Mills Ltd. The Supreme Court observed that Section 93 is
clear on the point that if on a fair construction the condition mentioned in the document is held to
be vague or uncertain, no evidence would be admitted to remove the vagueness or uncertainty. It is
the language of the document alone that will decide the question. It would not be open to the
parties to the court to attempt to remove the defect of vagueness or uncertainty by relying upon
any extrinsic evidence.
Conclusion:
In the given case, the document is not clear and having patent ambiguity. The oral evidence is not
permissible under Section 93.

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