Evidence Study Material 3ydc Osmania University
Evidence Study Material 3ydc Osmania University
Evidence Study Material 3ydc Osmania University
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
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:
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.”
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”
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.
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,
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.
(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.
“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.
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.
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.
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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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.
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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.
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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.
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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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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.
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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.
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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PART C, CASES
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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.
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.
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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.
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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.
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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.
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