9TH SEMESTER

LAW OF EVIDENCE
CLASS NOTES
 KEY TOPICS

Unit Topics Marks Note/Comment

INTRODUCTION -- 6 MARKS

Presumptions -- Section 4 IEA​ 6

Types of presumptions and other relevant sections
1
Section 118 and 119 -- who can testify as witness​ 6
Case: Parminder Kaur v State of Punjab​
Child witness

Fact and Fact in issue 6

Competent witness -- Sec. 118 6

RELEVANCY OF FACTS -- 6 AND 15 MARKS

Sec.10 -- Things said and done by conspirator in 6 or 15

common design

Res gestae -- Sec.6 ​ 6 examples

2
Doctrine of Res gestae and relevant sections 15

Sec. 8 -- motive, preparation, previous and subsequent 15 Illustration h

conduct Connect to s. 121 IPC

Test Identification Parade (who, how, requirements)​ 6 Illustration h

Sec. 9 -- identification of property and persons

Relevance of motive, preparation and conduct 15

3 ADMISSIONS AND CONFESSIONS -- 6 AND 10 MARKS

Admission of depositions (Sec.17 to 31) 10

Difference between Admission and Confession​ 6

Extra judicial confessions

Admission made by a party in proceeding or to his agent 6

(Sec.18)

STATEMENTS MADE BY PERSONS WHO CAN'T BE CALLED AS WITNESS -- 6 AND

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 15 MARKERS

Expert evidence 15 Relevant sections and areas​

Can come as a direct
question

Dying Declaration ​ 10 Can come as a direct

4
Rigor Mortis question
Mutiple Dy Declr.​
Case: Nirbhaya Case

Entries in books of accounts and public records 6

S.65B ​ 6
Case: Arjun Panditrao

RELEVANCY OF JUDGEMENTS -- 6 MARKS

5
Sec.40 to 44​ 6 Compare with s.11 CPC
Parallel Proceedings

CHARACTER OF WITNESS (TO DETERMINE LEVEL OF DAMAGES) -- 10 MARKS

6 Section 53(a) 10

Section 55

Relevancy of character in civil and criminal cases

COMPETENCY OF WITNESSES -- 10 MARKS

7 Child witness under s. 118 10

Privileged Communication 10
Spousal and exceptions
Attorney Client privilege

ORAL EVIDENCE -- 6 MARKS

8 Oral evidence -- Sec.59 and 60 6

Section 91 and 92 6

DOCUMENTARY EVIDENCE -- 6 MARKS

9 Documentary Evidence

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 Electronic Evidence -- Sec. 65A and 65B​
Case: Arjun Panditrao Case

Presumptions as to Documentary Evidence

BURDEN OF PROOF -- 10 AND 15 MARKS

Burden of Proof in Criminal case​ 15

Shift in burden of proof in dowry cases

Burden of Proof in Civil Cases 15

10 Sec.113B 15
Case: Kashmira Devi v State of Uttrakhand 2020 ||
Jatinder Kumar v Haryana 2020

Section 112 15

Section 114A and 115 -- absence of consent 15

Estoppel 10

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 UNIT 1

INTRODUCTION:
●​ Evidence -- means to discover clearly, to ascertain or to prove.
●​ Blackstone -- “signifies that which demonstrates, makes clear or ascertains the
truth of the facts or points in issue either in one side or the other
●​ Section 3 definition of evidence:
○​ (1) all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry; such statements
are called oral evidence;
○​ (2) [all documents including electronic records produced for the
inspection of the Court;] such documents are called documentary
evidence.

SECTION 1: EXTENT AND APPLICABILITY OF THE ACT

●​ Applicable to all Judicial Proceedings
○​ Not defined under Law of Evidence || Defined under Sec.2(i) CrPC
○​ Tests: (not for exam purpose but just in case)
■​ Objective Test → usually its done to determine jural reactions
between persons
■​ Functional Test → body conducting the proceedings is authorised
by the law to receive evidence
■​ Approach Test (or process test) → differentiates between judicial
and quasi/administrative proceedings. Administrative/quasi is
where evidence law will not apply.
●​ Applicable also to court martials
●​ Does not apply to affidavits, arbitrations, departmental proceedings
etc

FACTS:
●​ Anything that cannot be disputed.
●​ Section 3 IEA: means and includes any thing, state of things, capable of being
perceived by senses and also mental condition.
●​ Perceivable by senses is physical fact. Anything that can’t be perceived by senses
is psychological fact(mens rea, negligence, ill will, intention etc).
●​ Fact means an existing thing.
●​ Does not refer to a mental condition of which a person in conscious

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 ○​ State of mind if different from mental condition and can be evidence
●​ Can be Physical-Psychological, Positive-Negative
●​ Relevant fact is a fact that has a degree of probative force

Facts in Issue and Relevant fact

●​ Fact in issue: may be themselves or in connection with other facts constitute to
the state of things that the existence of the disputed right or liability
would be a legal inference from them.
●​ Issues that determine the culpability of the accused and decide the suit will be
called facts in issue. Establishing liability or innocence.
○​ Eg for murder → essentials under s.299/300, exceptions u/s s.76-106,
special exemptions under s.300
○​ Facts in issue is disputable
●​ Any additional facts supporting and establishing the fact in issue is the relevant
fact.
●​ Material facts: contains facts in issue and relevant fact
●​ Example: A vs B for breach of contract.
○​ Facts in issue: Validity of contract -- terms of contract -- actions resulting
to breach -- limitations -- (even frustration of contract)
○​ Relevant fact: if B telephones A stating that he is unable to perform it.
●​ Example: A vs B for theft
○​ Facts in issue -- movable property, unlawful dispossession, essentials of
theft (incase 75 IPC comes into picture, the quantum of punishment
becomes fact in issue as it decides the liability)
●​ Example: Santhosh Singh v CBI → reversal of sentence is a fact in issue
○​ Entering house was relevant fact and murder is fact in issue
●​ Fact in issue is the issue that we are trying to find the answer to.
●​ Any fact that goes on to prove the fact in issue is the relevant fact.
●​ Fact that decides liability is fact in issue and relevant fact help in proving the fact
in issue.
●​ Factum probandum → fact in issue
●​ Factum probans → relevant fact
●​ Definitions:
○​ "Fact".-"Fact" means and includes-
■​ 1) any thing, state of things, or relation of things, capable of being
perceived by the senses;
■​ 2) any mental condition of which any person is conscious.
○​ "Relevant” → One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions of
this Act relating to the relevancy of facts.

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 ○​ "Facts in issue" → The expression "facts in issue" means and includes--any
fact from which, either by itself or in connection with other facts, the
existence, nonexistence, nature or extent of any right, liability, or disability
asserted or denied in any suit or proceeding, necessarily follows.

Logical relevance and legal relevance

●​ All logically relevant fact may or may not be legally relevant.
●​ Legally relevant fact is found in sec.6 - s.14
●​ Every legally relevant fact may not be admissible
●​ Court may consider irrelevant fact as well incase it helps as
circumstantial/corroborative evidence and may not consider other relevant facts
(such as attorney client privilege, spousal privilege etc)
●​ Only those RF which are duly proved will be used as evidence

WHAT IS EVIDENCE
●​ The means to prove any statement or event is evidence
○​ To ascertain, proove
○​ Evidence is the tool to obtain the proof
○​ Evidence is the means and proof is the result
●​ Eg: A killing B and there are testimonies, fingerprints etc would be the evidence
by which we can prove A killed B
●​ Establishes certain questions of law or fact
●​ Means to achieve a conclusion

Types of evidence under English Evidence Law

●​ Documentary
●​ Oral
●​ Real or Material
○​ India has no clear mention of the material evidence
○​ Material - tangible or hard object -- the object itself
○​ Material object has to be ‘original’
●​ Eg: finger is real/material evidence, fingerprint is documentary evidence.
●​ Definition of evidence under the Act -- simplified into “if a witness presents an
evidence then that is considered to be an evidence for the case” -- eg: confession
of an accused would be evidence only if he is the witness.
●​ Numerous subheadings anyways

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 Corroborative Evidence and Substantive Evidence
●​ Substantive evidence proves the case
●​ corroborate evidence substantiates or adds up to the previous evidence
●​ Eg: in Priyadarshini Mattoo case, eyewitnesses seeing Dhananjay singh
buying ciggies is substantive evidence before entering the house along with
semen traces etc, but if he was seen roaming around randomly then its
corroborative.
●​ Confession of accomplice can be either substantive or corroborative
●​ Eg: Dacoity example in SIB -- substantive evidence here were the eyewitness,
camera,
○​ MOMO as corroborative -- as the boy can corroborate that he saw them
closeby -- statement would not make any difference nevertheless -- momo
vendor saw them and can corroborate their presence as a group near the
bank -- this will prove the presence near the vendor and not the bank, so it
cant help to charge them, but is merely corroborative and can build chain
of evidence
●​ Substantive Evidence → Fact in issue and Corroborative Evidence → RF

DEGREE OF PROOF:
●​ Preponderance of probability in civil case
○​ Degree of proof is low
○​ Probability favours you
●​ Proof beyond reasonable doubt in criminal case
○​ Degree is high due to life of a person is involved
●​ Proved:
○​ Such evidence as would induce a reasonable person to come to conclusion
○​ Anything which serves either immediately or mediately, to convince the
mind of the truth or falsehood of a fact or proposition
○​ M Narasingha Rao v AP: a fact is said to be proved when after
considering the matter before it the court either believes it to exist or
considers its existence so probable that a prudent man ought under
circumstances of the particular case to act upon supposition that it exists.
●​ Disproved:
○​ When the court believes that the fact in question does not exist and that
the court believes the non-existence of that fact from the standard of man
of ordinary prudence
●​ Not-proved :
○​ Naval Kishor Somani v Poonam Somani → not proved is when the
fact is neither proved nor disproved

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 ●​ Falsus in uno falsus in omnibus → false in one thing false in everything has
no application in India

DIRECT EVIDENCE
●​ Direct
○​ The existence of a given thing or fact is proved either by actual production
or by testimony of demonstrable declaration of someone who has
perceived it
○​ Direct evidence is that which goes expressly to the very point in question
and which, proes the point in question without any aid from interference
or reasoning
○​ If the evidence relates directly to the existence or nonexistence of a fact in
issue is direct evidence
○​ Evidence is perceived through senses
○​ Only through eye witness testimony, CCTV camera (to be asked in
s.8,9,45)
○​ Not inferred
○​ Direct evidence can be unreliable in few situations
■​ Mistake of witness
■​ Hostile witness
●​ Hearsay
○​ Word of mouth
○​ 3rd party not eyewitness
○​ Generally and presumptively non admissible
■​ Exception - dying declaration
○​ Not relied upon because it can end up misleading the court, the fact may
be true or not. Effective cross examination is not possible and accuracy
and reliability cannot be ascertained
○​ Sec.162, 32 IEA

Direct and Circumstantial evidence

●​ Sharad Birdhichand sarda v State of Maharashtra 1984
○​ Therein, while dealing with circumstantial evidence, it has been held that
the onus was on the prosecution to prove that the chain is complete and
the infirmity of lacuna in prosecution cannot be cured by false defence or
plea. The conditions precedent in the words of this court, before conviction
could be based on circumstantial evidence, must be fully established.
○​ 4 important circumstances which alone can justify the
conviction: (justice Fazal Ali)

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 ■​ Clear motive of accused (to administer poison in this case)
■​ Deceased died due to the poison
■​ Accused had poison in his possession
■​ Accused has the opportunity to administer the poison
●​ Even in the Priyadarshini mattoo case, most of them did not see it happen
directly but tried to connect their point of views.
●​ Unlike direct evidence, it has to be inferred
●​ Can be substantive or corroborative
●​ Substantial evidence and circumstantial evidences are from two different groups
●​ Circumstantial evidence is that which relates to a series of other facts than the
fact in issue
○​ Is always direct and primary
○​ Chenga reddy v AP:
■​ In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn
should be fully proved and must be conclusive in nature. No gap in
circumstances. Should be consistent with the hypothesis of the guilt
and inconsistent with the innocence of accused
○​ BoP falls on person establishing circumstantial evidence

Five golden Principles of Circumstantial evidence (Sharad Birdhichand case)

●​ The circumstances from which the conclusion is to be drawn should be fully
established
●​ The facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other
hypothesis
●​ Circumstances should be of a conclusive nature and tendency
●​ They should exclude every possible hypothesis except the one to be proved
●​ There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.

WITNESSES:
●​ (Cases in GCR), Bachan Singh Case (girl survived and gave detailed account
and was there as a natural witness as she was there in the natural course of
witness)
●​ Section 118 -- who may testify
●​ Evidence of interested witness cannot be disbelieved

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 ●​ Victim and prosecutrix can be witnesses
●​ Eyewitness most reliable witness -- most credible witness -- Krishna Ram
v State of Raj
○​ Conviction can be based on sole eyewitness
●​ Partisan or interested witness -- evidence should be subjected to careful
scrutiny and accepted with caution
●​ Hostile witness -- settled principle of law that the statement of a hostile
witness can be relied upon by the Court to the extent it supports the case of the
prosecution -- Shyamlal Ghosh v State of WB 2012
●​ Child witness:
○​ Competent witness provided that statements made are reliable, truthful
and are corroborated by other evidence
○​ Court should ensure that there is no likelihood of the child being tutored --
Algupandi v TN 2012
○​ Surajit Sarkar v WB 2013
■​ Deceased murdered -- son was 12/13 yrs -- testified that he was at
the place of murder when his father was attacked -- scared and hid
■​ Withstood cross examination and thus was a credible witness
●​ Chance witness:
○​ If by coincidence or chance a person happens to be at the place of
occurrence when the incident took place
○​ Incase he/she is a relative or friend of accused or related to the accused
then should be viewed carefully
○​ Eye-witness cannot be categorised as chance witness

PRESUMPTIONS -- Sec.4
●​ Presumption of fact and Presumption of law
●​ Natural Presumption → They are permissive, rebuttable and do not constitute a
branch of jurisprudence. In the act they are known as “may presume” → Ss.
86-88, 90, 113 and 113A
●​ Artificial Presumption
●​ Rebuttable Presumption of Law → “shall presume” → Ss. 70-85, 89 and
105
●​ Irrebuttable presumptions → “conclusive proof” → Ss. 41,112 and 113,
IPC s.82 and CPC s.13.
●​ Sec.4 → “may presume”, “shall presume”, “conclusive proof”
○​ Presumptions: basing something to be true/ a proposition we take to be
true/ Situations that are deemed to be existing in normal course of
circumstances/ inferences drawn by a court on basis of reasoning.

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 ○​ May presume → the court may presume a fact, it may either regard the
fact as proved unless and it is disproved or may call proof of it
○​ Shall presume → court shall regard such facts as proved unless and
until it is disproved
■​ Court is compelled to take the fact as proved but will have the
liberty to allow the opposite party to raise evidence to the contrary.
○​ Conclusive proof → court shall on proof of one fact regard the other as
proved and shall not allow evidence to be given for disproving it.
●​ Presumption of fact: drawn by the court, something likely to happen -- ‘may
presume’
●​ Presumption of law: something that the law imposes to be said is to be true.
Courts are bound to be presume -- “shall presume”
●​ Irrebuttable presumption →
○​ Conclusive presumption
○​ Legal rules which are not overcome by any evidence
○​ Eg: s.82 IPC -- nothing is an offence which is done by a child under the age
of 7yrs
○​ Also s.115-117: Estoppel
●​ Rebuttable presumption →
○​ When presumptions of law are certain legal rules, defining 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
○​ Eg: man is innocent until proven guilty
○​ Eg: s.107,108 and 112 IEA
●​ Ss.101-102:
○​ Must prove the entire case.
○​ Initial burden never shifts. Usually (for shall prove cases)
○​ Eg: murder cases, presumed to be guilty, then defences can be raised to
shift the presumption and burden || after presumption by the court the
burden of proof shifts on the defence || court “shall presume” absence of
defences so the burden falls on the defence to prove the same.
●​ Eg: “may presume” gives court discretion || “shall presume” s.118 NIA, or for
murder cases once guilt is proven and defences are not raised.
●​ Irrebuttable presumption → something that cannot be disproved
○​ Eg: child under 7yrs committing murder, then nothing can be done to
proven otherwise.
○​ If the court has to presume it, some other fact has to be established and
then it can be disproved
●​ Sec.112:

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○​ Rohit Shekar v ND Tiwari 2012 SC
■​ Once lack of access is proven the court will not raise presumptions
and will treat it conclusive. But once access is proven, then
presumption will be challenged
○​ Gautam Kundu v State of WB 1993
○​ Kamta Devi v Poshi Ram 2001 -
○​ Nandlal Basdev Badawaik v Lata Nandlal Badawaik

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 UNIT 2 -- RELEVANCY OF FACTS

Sec 6 -- RELEVANCY OF FACTS FORMING PART OF SAME

TRANSACTION --
●​ Res Gestae -- The things done (including words spoken in course of a
transaction)
●​ 19th Ce: borrowed from English law and there is an exception. Res gestae is based
on the belief that because certain statements are made naturally…?
●​ Sec. 6: Facts which, though not in issue are so connected with a fact in issue as
to form part of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places.
●​ RF connects things to FiI
●​ RF can include: last seen theory, motive, common intention, previous quarrel, etc
●​ Res gestae: Things done. Various facts are connected to the main fact.
○​ No possible definition as per English law
○​ Lawyers used it when they could not get any evidence in court. Basically of
the case was not in the lawyer's favor then he called for res gestae (things
done or things are connected) for evidences not admitted.
●​ RF would be actions that "may" be done.
●​ All facts surrounding a transaction would be examined and would be called res
gestae
●​ Section 6 IEA: relevancy of facts being part of the same transaction whether
they've occurred at the same time during the transaction at the same place or
different times at different places but related to the same transaction.
●​ S.6-10 are components of res gestae.
●​ Res gestae: all facts are related to the fact in issue -- web of actions -- things done
in an around chain of events.
●​ Circumstantial evidence is res gestae
●​ Transaction:
○​ Eg: falling of tree is event
■​ But felling of tree is an act thus a transaction
○​ Transaction means that a human being has acted in a particular matter or
when there is a human will
○​ Eg: man slipping and falling is event but someone pushing him is a
transaction
■​ So transaction needs human will
○​ Transaction is part of res gestae or facts
○​ Set of facts connected to each other
○​ Can be single incident or can be spread over multiple events

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 ○​ Transaction -- no third persons' concoction
●​ Illustration: 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 or after it
as to form part of the same transaction is a relevant fact.
○​ Whatever is said between A and B -- such as A or B were shouting or
bystanders are shouting -- all these are connected to each other.
●​ Unity of time and place -- would establish that its a transaction
●​ So when a third person intervenes, the transaction would be affected
●​ Physical fact: perceivable through senses, shouting etc
●​ Transaction is broke due to interference of 3rd party by means of fabrication etc
●​ Rameshwar, Son of Kalyan Singh v State of Rajasthan, AIR 1952 SC
54 → rape victim woke up and told the story to the parent immediately --
●​ If there is possibility of fabrication then it would be excluded from the scope of
s.6
●​ Moment of the possibility of intervention then it does not become part of the
same transaction
●​ R v Bedingfield, [1879]
○​ victim‘s throat is slashed -- tells aunt and dies
○​ Court is it res gestae??? Or dying declaration????
○​ The judge held it not to be res gestae → her outcry was rejected as she
explained the act after it happened. → outcry should have happen at the
time of event or immediately after it or before it for it to be res gestae
○​ Decision was criticized and had to be overruled.
●​ R v Andrews 1987
○​ Victim of robbery was stabbed -- people gather -- victim says that he
recognizes the assailants -- no chance or no time for fabrication as it was
immediately done (no time has lapsed as he shouted immediately after
being stabbed) -- natural course of circumstances -- people gathered the
moment he shouted --
●​ Ratten v R 1971
○​ Accused shot his wife in the kitchen -- at trial, he took the plea that gun
went off while cleaning it (but the gun was loaded) -- evidence: there was a
sobbing woman who called the telephone operator to ask for the police and
was suddenly terminated; police immediately arrive and see her in the
kitchen -- scope of the same transaction was widened
○​ Police asked two questions: who was the person who made the distress call
right before she was killed (it was the wife) || was whether she said is true
(abut her being killed) -- judge widened the scope and said it would be part
of the same transaction as the police arrived at the time immediately but
there would have been a chance of fabrication but they were all connected
together but there might have been a possibility of fabrication --

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 transaction went on in continuity and there was no chance of fabrication
from the third person.
○​ Widened (how to check) -- if it can be established that there is no
continuity of time and place
○​ call, police, killing were part of the same transaction
●​ Gentela Vijayavardhan Rao v State of Andhra Pradesh, AIR 1996 SC
2791
○​ Setting a bus on fire -- statements of victims right after the incident was
not recorded immediately but went to the magistrate immediately
○​ Prosc claimed res gestae -- statement should have been made immediately
for res gestae -- interval however slight would be sufficient enough for
fabrication and would not be part of res gestae
●​ Chhotka v State of WB, AIR 1958
○​ Victim beaten -- taken to a place -- large crowd -- mother of victim
informed -- mother learnt about it later on --
○​ Res gestae broken
●​ When facts in issue happens -- some incidents provide momentum to the facts in
issue
○​ Eg: Accused screaming and running towards the victim with a knife acts as
a momentum
■​ Fact in issue is stabbing and killing and momentum is the running
and screaming
○​ Due to the momentum certain things happen naturally (continue to
happen) with the main fact or after the main fact -- bystanders watching
the same (all happens at the same time) or might happen immediately
after (someone coming running after hearing scream and seeing the
accused fleeing) -- so all these things after the incident occurs naturally in
a momentum.
●​ Fact in issue results in a momentum that occurs before the fact in issue
●​ Momentum → Fact in issue → Transaction
●​ Because of 1 fact in issue many things happen in an unbreakable chain -- forms a
Transaction
○​ Natural persons -- Those who are automatically near the place of the
incident and are not external interferences
○​ External interferences -- people who would not be naturally involved
○​ External interference breaks the Transaction.
●​ All the facts are set in momentum by fact in issue -- these are connected together
●​ Essence: external factors should not be there for the transaction to continue. The
moment there is external factor then the transaction gets broken.
●​ Sawal Das v State of Bihar

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 ○​ Transaction -- people coming into the house, dragging the woman in,
eyewitnesses seeing the people leaving/smoke/woman screaming -- all
these are a part of the same transaction
○​ Victim screaming save me and the childrens cry that their mother was
being killed is res gestae
●​ Res gestae an exception to hearsay
○​ R v Foster → the deceased was killed by a speeding truck -- witness had
not seen the incident but only the speeding truck -- deceased stated to
victim what had happened -- statement to witness was held to be
admissible as res gestae
●​ If question answer after incident -- not res gestae -- so answers not
admissible

SECTION 7: FACT - OCCASION - FACT IN ISSUE

●​ Sec.7 Facts which are the occasion, cause or effect of facts in issue
●​ Facts which are the cause or effect of the FiL or RF are relevant
●​ Sec.7 >> Sec.6
●​ Facts which are the occasion, cause or effect, immediately or otherwise, of
relevant facts or facts in issue, or which constitute the state of things under which
they happened , or which afforded an opportunity of their occurrence or
transaction are relevant.
●​ FiL/RF
○​ Cause and effect
○​ Occasion
○​ State of things
○​ Opportunity
●​ Cause and Effect -- Santosh Singh (priyadarshini mattoo case)
○​ Cause of FiL or RF - Injury on the victim due to bearing with blunt object
on the head
○​ Effect: death of the victim
■​ External effect: ribs broken, effect of the hitting, helmet which had
the dent
■​ Struggle is the RF and the effect was the struggle marks on the
ground, scratches on the accused
○​ RF also has effects -- eg fight or struggle
●​ Occasion: currently existing circumstance that gives rise to FiL/RF or the
commission of the crime
○​ Existing setting/backdrop of the wrong being committed -- pre-existing
and not created by anyone
○​ Accused carves out the opportunity to commit the crime

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 ○​ Sawal Das Case: Occasion was mother was alone in the house, which
afforded assailants had the opportunity to commit the crime
○​ Priyadarshini Mattoo: she was alone and santosh singh carved out the
opportunity to commit the murder
○​ Occasion is the set of existing circumstances from which opportunity is
carved out.
■​ Motive is not occasion
○​ Nirbhaya Case: she being alone on the deserted road (bus stop) is the
occasion and boarded the bus alone
○​ Happens on the same day as fact in issue
○​ Set of existing circumstances on the day of fact of issue
●​ State of Things: Circumstances that exist over a period of time (repeated)
○​ Eg: Nirbhaya Case: after she boarded the bus the area is isolated at that
hour of the day -- the place is usually/always isolated or deserted at this
time and no passengers at that time (usually/repeatedly occurring)
○​ State of things happen repeatedly
○​ Occasions happen due to state of things
○​ Larger existing circumstance existing over a time || Occasion is the
immediate or current circumstances
○​ Regular fixed habits are state of things
●​ Opportunity:
○​ Carved out from occasion
○​ Nirbhaya Case: they found nirbhaya found her boarding the bus with
one person and outpowering them, opportunity of finding her on the bus
alone was carved out from her boarding the bus alone at that hour
○​ Last seen theory stems out from opportunity
○​ Event that affords a setting to commit the crime
○​ Affords immediate set-up to commit the crime
○​ Something carved out from a specific thing/event
●​ Sawal Das Case;
○​ Occasion: mother being alone with the children
○​ State of Things: she is usually alone at that time (husband goes to work
etc)
■​ Can include fiduciary relationship

Last seen together theory and Opportunity

●​ S. 106 deals with last seen together theory
●​ BoP lines on any person which is especially within the knowledge of the person
●​ Requires to be corroborated
●​ No long gap should exist

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 ●​ If A and B were found to be together before B’s death right before the fact in
issue, it would be naturally presumed that A had something to do with the death
○​ A may have done something with the death of B -- this is the opportunity
●​ Shanmughan v State of Kerala 2012 SC → husband was charged with the
murder of wife -- bedroom -- injury and poison -- burden of proof was on
husband as court raised presumption of last seen theory -- since husband was
alone and was last seen, it had afforded him the opportunity to inflict the injury
and adminster poison.
●​ The person found last had the sole opportunity to commit the crime (opportunity
is the exclusive opportunity to commit the crime)
●​ Donthula Ravindrantah @ Ravindranath Rao v State of Andhra 2014
→ husband charged with strangulation -- last seen together was not proved as
there was other people in the house -- husband did not have the exclusive
opportunity to kill as he wasn't alone
●​ LST Theory is a specie of opportunity
●​ LST Theory is used when there are lack of evidences
●​ Example: Arushi Talwar Case (State of UP through CBI v Rajesh
Talwar and Annr) →
●​ Break in transaction would not establish LST

Sec.8 MOTIVE - PREPARATION, PREVIOUS and SUBSEQUENT

CONDUCT:
●​ Lays down:
○​ A fact which shows or constitutes a motive for any FiL or RF is relevant
○​ A fact which constitutes or shows preparation to any FiL or RF is relevant
○​ Previous or subsequent conduct of party or agent to the suit/proceeding to
any FiL or RF are relevant provided that such conduct influences the FiL
and RF
○​ Previous or subsequent conduct of any person an offence against who is
the subject of any proceeding or suit is relevant provided that such is
influenced/influences the FiL or RF
○​ Statements accompanying and explaining acts are relevant
○​ Statements made in the presence and hearing of a person whose conduct is
relevant provided the statement affects such conduct.

Motive
●​ Motive -- why of a crime, ulterior objective, what drives people to do something.
●​ Cause of death and motive: can be related to an extent

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●​ Any fact is relevant which shows or constitutes a motive or preparation for any
fact in issue or relevant fact.
●​ Motive, preparation, previous conduct and subsequent conduct are relevant u/s.
8 (part of res gestae as its very wide, but not u/s6 as it might not be a
part of the same transaction )
●​ “The conduct of any party or agent to any party to a suit or a
proceeding to any fact in issue therein or a relevant fact thereto”
○​ And conduct of any person an offence against whom is subject to any
proceedings is relevant
■​ Not the conduct of the victim -- as victim is not the party to the
case as the state is a party to the case.
●​ Victim here merely is the witness -- and not a party (if they
are not complainants) -- thats why “any person” has been
added
●​ Victim as a party -- S.190 CrPC -- Complaint made, then
victim is the party as victim becomes the complainant.
■​ Offence is against the State so State is the party usually
●​ Motive -- not very important to prove the guilt per se
○​ Not punishable under law unless its manifested into the act
○​ Motive is not the justification of the crime
○​ Unless law recognizes it →
○​ Mitigating factor: S.300 Examples, or pvt defences, while sentencing,
sudden provocation (no motive to cause harm),
○​ Motive relevant: dacoity, offences against the State
○​ Slow action provocation Case , battered woman syndrome
●​ Motive is relevant, but not a sine qua non
●​ When there is no evidence, motive does not make any difference -- if motive is
still proven but no evidence, motive stops making sense
○​ It is relevant nevertheless (to a small extent)

Preparation
●​ Tends to prove motive
●​ If preparation and motive is proven, it becomes relevant under section 8
●​ State of UP v Babu Ram 2000
●​ Yunus v Karia 2003 SC
○​ Once the ocular evidence (eyewitness) has been established motive does
not play a role
○​ Held in both cases
○​ Motive plays a role if its covered under the requisite sections

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Conduct
●​ Previous and subsequent conduct
●​ Any act or any omission = conduct
●​ Whose conduct: conduct of parties, agents and victim (accused, State, victim,
eyewitness etc)
●​ When conduct: subsequent or previous
○​ Relevant u/s.8 if it falls at a certain time frame -- decided by the judge
○​ Or the impact of FiI or RF and if it can be connected
○​ Eg: Subrati v State of UP (daughter rape case -- daughter could not be
found and mother went to search upon realisation -- her conduct to search
for her becomes relevant)
○​ Should be within a certain time frame wrt FiL or RF
●​ What conduct: preparation, etc, whatever is done.
●​ Conduct of accused: relevant at two parts
○​ Establish his guilt
○​ His punishment (mitigating factors, aggravating factors)
●​ Conduct of the victim
○​ State of HP v Mango Ram → Custodial rape -- sessions court
acquitted -- acquitted saying victim did not struggle nor protest the rape --
sweeping changes to the criminal laws -- SC reversed it cases, said there is
a difference between resistance and consent -- conduct of victim becomes
important here.
●​ Subsequent conduct of accused becomes relevant
●​ Conduct should be connected to the FiL and RF, but not immediately
●​ Conduct of absconding -- very tricky (eg. meeting, harassment)

Explanations:
●​ Explanation 1. –– The word “conduct” in this section does not include
statements, unless those statements accompany and explain acts other than
statements; but this explanation is not to affect the relevancy of statements under
any other section of this Act.
○​ Making of bare statement without complaint, it would not be relevant
under s.8 (but can be relevant under s.6 and s.157 corroboration, s.32
dying declaration)
○​ Not relevant if the statement is not accompanied by an act.
●​ Explanation 2. –– When the conduct of any person is relevant, any statement
made to him or in his presence and hearing, which affects such conduct, is
relevant.

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 ○​ Eg: if A states there has been a theft and the police is on the way to pick up
a thief and B runs away, this shows that if statement influences conduct to
the action of a person in the case, then the statement becomes relevant
●​ R v Abdulla
○​ Victim was killed by a razor slit -- taken to hospital, identified the accused
-- she was conscious but could not speak -- used verbal signs and indicated
with yes or no -- when abdulla’s name came up she said yes -- abdulla was
convicted of nurder -- appeal’s majority held that statement was held to be
relevant u/s.32 and also said that the conduct was not relevant under s.8
but under s.32 as dying declaration -- this was not conduct that was
influenced by FiL or RF
○​ Similar to s.8 illustration f
■​ The question is, whether A robbed B. → The facts that, after B was
robbed, C said in A’s presence –– “the police are coming to look for
the man who robbed B,” and that immediately afterwards A ran
away, are relevant. (conduct of accused)
○​ Conduct of the accused is relevant under s.8 illustration (f) but the
conduct of the victim was not considered in this case
○​ Just. Mehmood said that victim’s conduct should be u/s 8
○​ Logic of majority: conduct was of the victim, statement made (as question)
which she answered but there was no complaint but here there was no
conduct post the action (she just made statement and no complaint-- if the
complaint was made before the magistrate then it would be considered)
○​ Statement made by the victim was not complaint as she was merely
answering questions
●​ Expln 2 : 2 persons
○​ One who makes the statement
○​ Second the person whose conduct is influenced by the statement
○​ Here there has to be an accused present
●​ Emperor v Moti Ram 1936 → Bom HC -- same facts as R v. Abdulla -- was
admissible as conduct was influenced by FiL and RF -- conduct held to be
relevant under s.8

Illustration:
●​ (a) A is tried for the murder of B. → The facts that A murdered C, that B knew
that A had murdered C, and that B had tried to extort money from A by
threatening to make his knowledge public, are relevant.
○​ How it is relevant: if he knew A had murdered C and B was trying to extort
money and A was trying to hide it, then A had the motive to kill B

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 ●​ (b) A sues B upon a bond for the payment of money, B denies the making of the
bond. → The fact that, at the time when the bond was alleged to be made, B
required money for a particular purpose, is relevant.
●​ (c) A is tried for the murder of B by poison. → The fact that, before the death of
B, A procured poison similar to that which was administered to B, is relevant.
(Preparation)
●​ (h) The question is whether A committed a crime
○​ The fact that A absconded after receiving a letter warning him
that inquiry was being made for the criminal and the contents of
the letter are relevant.
●​ (j) The question is, whether A was ravished. → The facts that, shortly after the
alleged rape, she made a complaint relating to the crime, the circumstances
under which, and the terms in which, the complaint was made, are relevant.
○​ She made a statement but her statement was accompanied by an act
(explanation 1)
○​ Conduct and statement accompany each other and a mere statement is not
enough for s.8
○​ Can be dying declaration u/s32 or corroborative u/s.157
Section 121 of IPC -- waging war and attempting to wage war
Section 121A of IPC -- conspiracy to wage war
Section 120A IPC -- crim conspiracy

SEC.9 RELEVANCY -- Facts necessary to explain or introduce

relevant facts
●​ Facts necessary to explain or introduce a fact in issue or relevant fact, or
which support or rebut an inference suggested by a fact in issue or relevant
fact, or which establish the identity of any thing or person whose
identity is relevant, or fix the time or place at which any fact in issue or
relevant fact happened, or which show the relation of parties by whom any
such fact was transacted, are relevant in so far as they are necessary for
that purpose.
●​ What's relevant:
○​ Any fact which explains or introduces a RF or FiL
○​ Or any fact that supports or rebuts inferences
○​ Establishes the identity of person and thing related to the issue
○​ Fixes time or place of FiL or RF
○​ Shows the relation between the parties through which its transacted
●​ Eg: Will → contents, death intestate or testamentary -- we try and introduce fact
in the cour that provides an ‘introduction’ to the case (parties, history, etc)

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●​ anything that provides a background to the case is an introductory
fact.
○​ There might be certain irrelevant statements (such as relation or liking of a
party) but are used to explain/introduce facts of the case (eg: why the will
was made)
■​ Eg: A kills B and absconds on the ground that his mother was ill.
Mother’s ill health though irrelevant to the murder is helpful to
explain A’s alibi
○​ Illustration (c) : (c) A is accused of a crime → The fact that, soon after
the commission of the crime, A absconded from his house, is relevant,
under section 8, as conduct subsequent to and affected by facts in issue.
The fact that, at the time when he left home, he had sudden and urgent
business at the place to which he went, is relevant, as tending to explain
the fact that he left home suddenly. The details of the business on which he
left are not relevant, except in so far as they are necessary to show that the
business was sudden and urgent.
●​ Illustration (e) : (e) A, accused of theft, is seen to give the stolen property to B,
who is seen to give it to A’s wife. B says as he delivers it––“A says you are to hide
this.” B’s statement is relevant as explanatory of a fact which is part of the
transaction.
○​ B’s statement is not hearsay and is relevant under section 9.
○​ Statement is used merely in an explanatory statement
●​ Anything that supports or rebuts inference is relevant u/s.9
○​ Eg: Eyewitnesses see the murder but the accused is able to prove his pvt
defence which rebuts the court’s presumption is relevant
●​ Time or place
○​ Eg: murder slashing someone -- found in a room -- but no blood in the
room where hes found -- but another room has blood -- infernece of his
body being shifted from one place to another
○​ Eg: postmortem, inquest reports establishes time is relevant
●​ Relation
○​ ND Tiwari Case -- DNA showed relation between ND Tiwari and Rohit
○​ Or even in cases of will, relationship between the parties
○​ Relationship through which transactions happen is relevant
○​ Eg: bigamy -- then we show marriage 1st and then we establish the 2nd
wife’s position
●​ Identification
○​ Noor Mhd v Emperor
○​ Identity of a person or a thing
○​ Test Identification Parade (TIP), DNA, Post Mortem report or an inquest

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 ○​ How are identities established: identification marks, forensic, TIPs,
audio-video recordings
○​ Either testimonial identification (doc identification)-- disposed on the
court

TIP -- circumstantial identification

○​ Sec.54A CrPC -- police can seek permission of the Magistrate/Court for the
identification of the accused and the Court may determine the manner of
identification
○​ It is a means to test the veracity of the witness and his capacity to
identify unknown persons
○​ It has only a corroborative value -- Amit v State of UP 2012
○​ Heera v Rajasthan 2007 → TIP’s purpose is to test and strengthen the
trustworthiness of that evidence. Has to be corroborated
○​ Is TIP substantial evidence??? → No. Its just a corroborative evidence u/s 157
■​ Done in front of PO
■​ Done during investigation
■​ Witnesses do not know the accused but can identify them
○​ Types of TIP
■​ By police -- inadmissible (s.162 CrPC)
■​ By Magistrate -- admissible as done u/s.9
●​ Objective of TIP → Ankush Maruti Shinde v Maharashtra 2009 SC
○​ Enables witness to satisfy themselves that the prisoner whom they
suspected is really the one who was seen by them wrt the commission of
the crime
○​ Satisfy the investigating authority that the subject is a real person whom
the witness had seen
○​ Manu Sharma Case (jessica lal murder case) -- court held TIP is of a very
weak character
○​ Failure to hold TIP does not weaken the evidence of identification in court
○​ Malkhan Singh v State of MP 2003
○​ Why is TIP done:
■​ Incase trial starts after a few months/years
■​ To ensure evidence is not lost -- prudent for PO to conduct TIP asap
(pretrial) -- when actual trial happens, it gives weightage to substantial
evidence to the court
■​ If TIP is done before and the witness turns hostile, the magistrate can
debunk the stance taken and rely on the TIP
■​ Done to ensure that good evidence is not lost even if its corroborate

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 ■​ Can be used to refresh the memory of the witness and provide
corroborative value to the proceedings
○​ Is TIP absolutely essential
■​ No
■​ Eg: in the parliament attack case, the TIP was not done -- prosecution
stated that TIP was not done and accused has to be identified -- SC held
TIP is not essential at all in all cases
○​ Malkhan singh case -- no TIP and girl identified the accused in the court --
pitch dark and how accused can be identified -- court held that due to the
proximity was enough
○​ Machhi Singh Case: Dacoity in village -- lantern light -- court held that
villagers developed eyesight -- TIP was not done initially but were later
recognized and court held the TIP
●​ Noor Mhd v Emperor (for sec.9)
(DNA, Inquest, PMR is self study and will be dealt in s.45)

SECTION 10: ROLE OF CONSPIRATOR → Things said or done by

conspirator in reference to common design.–
●​ Conspiracy and Common Intention
●​ Sec. 34 v s. 120B Differences
○​ 120B -- non participating accused
○​ Kehar Singh Case (v CBI) -- non participating accused
●​ Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference
to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person
was a party to it.
●​ Mirza Akbar v King Emperor 1914 PC --
●​ Rajiv gandhi, Indira gandhi assasination cases
●​ To attract s.10 -- first requirement is there should be a reason to
believe that there has been a conspiracy.
○​ Eg: bomb going off at 2 places -- conspiracy of waging war against the
country
●​ Liability starts from the day the idea was entertained (for conspiracy)
○​ Anything done or said before a person joins can be held as relevant
●​ Illustration:

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 ○​ Reasonable ground exists for believing that A has joined in a conspiracy to
wage war against the 1 [Government of India].
○​ The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Calcutta for a like object, D persuaded
persons to join the conspiracy in Bombay, E published writings advocating
the object in view at Agra, and F transmitted from Delhi to G at Kabul the
money which C had collected at Calcutta, and the contents of a letter
written by H giving an account of the conspiracy, are each relevant, both to
prove the existence of the conspiracy, and to prove A’s complicity in it,
although he may have been ignorant of all of them, and although the
persons by whom they were done were strangers to him, and although they
may have taken place before he joined the conspiracy or after he left it.
●​ Kehar Singh Case (indira Gandhi assasination)
○​ St through Superint of police CBI v Nalini
●​ Afzal Guru case
●​ No overt participation needed for conspiracy
●​ S.10 gives wide powers to Police Officers
●​ Damo Gopinath Shinde Case
●​ Mirza Akbar Case
○​ Statement made by wife of deceased who had plotted to kill her husband
against Mirza Akbar before the magistrate. These statements were held
admissible → at the final stage it was held such statements are not
admissible under s.10
○​ Held that words of s.10 are not capable of being construed wide enough so
as to include a statement made by one conspirator in the absence of the
othe with reference to past acts done in the actual course of carrying on the
conspiratory after it has been completed
○​ Past and future things said, done or written are not relevant under s.10
●​ Ammani v Kerala → if there were reasonable grounds to believe that the other
accused had conspired together in committing murder, the confession made
by accused could be used against the other accused.
●​ Narratives between co-conspirators from past wont be considered under s.10 →
Emperor v Ganesh Raghunath 1932

SEC.11 WHEN FACTS NOT OTHERWISE RELEVANT BECOMES

RELEVANT (AND PLEA OF ALIBI)
●​ Controlled by s.32
○​ Subjected to the fact that the statement of the person who is dead and/or
cant be found is relevant u/s.11 though not admissible under s.32

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●​ Two parts of s.11
○​ Facts which are inconsistent with the facts in issue or RF are relevant
■​ Alibi, non-access of husband, survival of alleged deceased,
commission of offence by 3rd person, self infliction of
hard
■​ These facts are relevant only because they cannot co-exist with the
relevant facts in issue
■​ If their existence is proved then the existence of the RF or FiI is
negavated.
○​ Facts which by themselves or in connection with other facts make their
existence or non existence of any FiL or RF highly probable or imporbable
are relevant
●​ Accused presents court with an alibi
●​ The accused’s presence/absence (alibi) would be highly improbable but not
impossible and the commission of the act becomes relevant
●​ Fact -- res gestae (quite vague) -- IEA came to tackle the issue (s.8-10) and s.11
covers the legally irrelevant fact to a legally relevant fact.
●​ Every statement which has some probative force would be included under s.11
even if its not admitted in the other sections -- admit any logically relevant fact
which was not covered otherwise
●​ S.11 is controlled by other sections (s.32,9,8,7,6, etc) -- if its relevant in other
sections it would be relevant under s.11 as well
●​ Alibi -- main aspect of s.11
●​ Eg: Arushi Talwar Murder case -- to reach from the doctors’ house to the friends
house is 30 mins but evidence showed that the servant was there before
●​ Court looks into the plea of alibi with a lot of suspicion -- especially where there
is other strong corroborate evidence -- then the court exercises power under s.311
CrPC and s. 165 CrPC
●​ Plea of alibi if strongly proven is a very powerful evidence -- but the court still
thinks its majorly sus
●​ Plea of alibi cant be claimed for co-accused if for one accused its considered
●​ Case: Dudhnath Pandey v State of UP 1981 SC
○​ “In order to establish the plea of alibi the accused must lead evidence to
show that he was so far off at the moment of the crime from the place of
occurrence that he could not have committed the offence”
●​ The moment there is a slight doubt on plea of alibi -- court immediately negates it
●​ 11 covers everything that makes the RF or FIL highly probable or improbable
●​ The plea of absence of a person, charged with an offence from the place of
occurrence at the time of the commission of the offence is called the plea of alibi
●​ Case: Rajindra Singh v State of UP 2007 SC

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 ●​ No finding of plea of alibi can be record by the HC for the first time in a petition
under section 482 CrPC
●​ S.161 CrPC -- statement recorded inadmissible.
●​ Case: Binay Kumar and Oth v State of Bihar 1997
○​ It was held by the SC that it is basic law in the criminal case in which the
accused is alleged to have inflicted physical injury to another person, the
burden is on the prosecution to prove that the accused was present at the
scene and has participated in the crime.

SECTION 12 -- Suit for Damages facts tending to enable the court

to determine amounts are relevant
●​ In suits for damages, facts tending to enable the court to determine
amounts are relevant.
●​ Purely civil nature (dealt under s.12)
●​ Suits -- deals with contracts, torts etc and not criminal matters
●​ Does not deal with character in awarding damages under s.12, its merely fact and
circumstances
●​ Any fact (and/or circumstance) which will help the court to determine the
amount for fixing damages
●​ Eg: If A promises to marry B and does not -- facts and circumstances that would
be used to determine the damages would be mental agony, harassment, expenses
incurred -- based on these grounds damages can be determined.
●​ Eg: A is walking and a branch of B’s tree falls on A and kills him -- negligence --
the extent of the branch’s size (BUT) if contributory negligence the amount of
damages gets reduced
○​ If the person who had the tree is very poor -- his income would also decide
the amount of damages
●​ Income also decides the degree of damage.
●​ Doesn't talk about character

Sec.52 to 55: Character of persons and quantum of damages

●​ Does not talk about character u/s.12, but is dealt under s.52 and 55
●​ Sec. 55 -- character as affecting damages
○​ S.12 does not deal with character -- only facts and circumstances
○​ Person being poor is not character
○​ Character is very generic in nature -- can be reputations, dispositions etc.
○​ In civil cases -- character of victim (plaintiff) relevant in determining the
quantum of damages

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●​ Character is not given for a particular instance -- should be a general disposition
-- either good or bad -- not any instance that has affected the opinion about the
person.
●​ Would the character of the victim/accused play a key role? -- sec.52 and 55
●​ Sec. 52 -- character of any person in civil cases is irrelevant
●​ Sec.53 -- previous character in criminal cases is relevant
●​ Sec.55 -- character as affecting damages -- general disposition of his
character and not his particular instance
○​ Section 55 in The Indian Evidence Act, 1872. 55. Character as affecting
damages. —In civil cases, the fact that the character of any person is such
as to affect the amount of damages which he ought to receive, is relevant.

●​ S.12 it might look like they're discussing about character (eg. adultery) however
Ss.52-55 provides for express provisions -- character of P is relevant but that of
Def would not be relevant under s. 55
●​ S.52 to 55 -- express provisions for character --
●​ Character of Def is not relevant under s. 55 -- reason: def is already on trial for his
misconduct
●​ Plaintiff’s good character won't increase the quantum of damages but bad
character might reduce the quantum of damages
●​ S.55 is a special provision when compared to s.52 and would prevail
●​ S.52 -- there is a general bar that character of plaintiff of def is irrelevant for
quantum of damages -- s.12 also by implication deals with the facts and
circumstances to be relevant and does not deal with the character --
●​ Bad character of accused is irrelevant -- becomes relevant when its shown in
defence that he’s of good character (prosecution can deal with character only
when defendant side begins with establishing good character)

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 ●​ Bad character is Relevant if its shown during defence that the def had a good
character -- prosecution can't do it -- doctrine of opening the gate -- the mom def
starts giving good character then prosecution begins with opening with the bad
character of the def.
●​ S.54 previous bad character is not relevant except in reply
○​ Criminal trial -- person having bad character is irrelevant unless its shown
that the accused has a good character

SECTION 13 -- FACTS RELEVANT WHEN RIGHT OR CUSTOM IS

IN QUESTION
●​ 13. Facts relevant when right or custom is in question.––
○​ Where the question is as to the existence of any right or custom, the
following facts are relevant:––
■​ (a) any transaction by which the right or custom in question was
created, claimed, modified, recognised, asserted or denied, or
which was inconsistent with its existence;
■​ (b) particular instances in which the right or custom was claimed,
recognised or exercised, or in which its exercise was disputed,
asserted or departed from

PERSON STATE OF MIND -- SEC.14

●​ State of mind includes intention, knowledge, good faith, negligence, rashness,
ill-will or good-will
●​ Shows the existence of any state of body or bodily feeling are relevant
●​ Mens rea becomes relevant u/s.14 but is admissible in other sections -- motive is
not necessary and it depends on policy.
●​ Section 8 deals with motive -- Sec.14 and 15 is much wider in ambit
●​ Explanation 1:
○​ Illustration A and B
○​ Illustration a -- A knew that the articles were stolen -- had prior knowledge
-- but have to be proven through other independent facts to establish that
such items are stolen -- state of mind here is that A had the knowledge
which establishes guilty mind (even if 40 of 50 articles are stolen then it
should be presumed that A knew that the articles were stolen)
■​ The fact that at the same time he was in possession of many pitcher
stolen articles is relevant as tending to show that he knew each and
all the articles off which he was in possession to be stolen
○​ Illustration b -- counterfeit coin example -- state of mind here is that A
knew about the counterfeit coins -- his previous conviction for the same

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 act is relevant -- this is not to establish character but to show his guilty
mind for committing the same act again and again
●​ Explanation 2:
○​ Previous conviction shall be a relevant fact
■​ Previous conviction is not to show character but is used to show his
previous state of mind
●​ Illustration n:
○​ A sues B for negligence in providing him with a carriage for hire not
reasonably fit for use, whereby A was injured. The fact that B’s attention
was drawn on other occasions to the defect of that particular carriage, is
relevant. The fact that B was habitually negligent about the carriages
which he let to hire, is irrelevant.
○​ Shows state of mind wrt something specific (negligent about the particular
carriage is what matters and him being negligent about other carriages is
irrelevant)
●​ Any fact which shows guilty mind (or absence) will become relevant and should
be connected with the RF and FIL
●​ State of mind and bodily feeling is relevant if it connects to FIL and RF
●​ State of mind and negligence should be established for the particular matter in
question and not generally (refer to illustration n)
●​ Illustration o:
○​ Explain 1 -- state of mind is with reference to particular matter in question
●​ General state of mind is irrelevant
●​ Eg: If accidentally shot and previously shot others previously then it would be
proven that A shooting B is not accidental -- not relevant under s.14 but would be
relevant under s.15
●​ S.14 also deals with absence of guilty state of mind
●​ Illustration L
○​ Statement made during symptoms in hospital is RF
○​ Bodily feeling due to poison is RF

Sec.15 -- Act being accidental or intentional

●​ Raman Raghav Case: Insanity case
●​ Rules as to admissibility of evidence in cases where the question is whether a
particular act was accidental or was done with a particular intention or
knowledge

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 ADMISSIONS AND CONFESSIONS
REASONS FOR ADMISSIBILITY OF ADMISSIONS
●​ An admission is relevant evidence. Admissions are admitted because the conduct
of a party to a proceeding, in respect of the matter in dispute, whether by acts,
speech or writing, which is clearly inconsistent with the truth of his contention, is
a fact relevant to the issue. Several reasons have been suggested for receiving
admissions in evidence:-
○​ (i) Admissions a waiver of proof - If a party has admitted a fact, it
dispenses with the necessity of proving that fact against him. It operates as
a waiver of proof. However, admissions constitute a very weak kind of
evidence, and the court may reject an admission wholly or in part or may
require further proof. Waiver of proof, thus, cannot be an exclusive reason
for the relevancy of an admission.
○​ (ii) Admissions as statement against interest - An admission, being
a statement against the interest of the maker, should be supposed to be
true, for it is highly improbable that a person will voluntarily make a false
statement against his own interest. However, Sec. 17 does not require that
a statement should be a self-harming statement, the definition also
includes self- serving statements.
○​ (iii) Admissions as evidence of contradictory statements -
Another reason that partly accounts for the relevancy of an admission is
that there is a contradiction between the party’s statement and his case.
This kind of contradiction discredits his case. However, a party can prove
all his opponent’s statements about the facts of the case and it is not
necessary that they should be inconsistent with his case.
○​ (iv) Admissions as evidence of truth - The most widely accepted
reason that accounts for relevancy of admission is that whatever
statements a party makes about the fact of case, whether they be for or
against his interest, should be relevant as representation or reflecting the
truth against him.

FORMS OF ADMISSIONS
●​ Every written or oral statement by a party about the facts of the case is an
admission.
●​ Admissions are broadly classified into two categories: (a) judicial or formal
admissions, and (b) extra-judicial or informal admissions. It is generally

32
 immaterial to whom an admission is made. An admission made to a stranger is
relevant.
●​ Judicial admissions are made by a party to the proceeding of the case prior to the
trial. Such admissions, being made in the case, are fully binding on the party who
makes them. They constitute a waiver of proof. They can be made the foundation
of the rights of the parties. In comparison, the evidentiary admissions which are
receivable at the trial as evidence, can be shown to be wrong.
●​ Informal or casual, i.e., extra-judicial admissions are those which do not appear
on the record of the case, and may occur in the ordinary course of life, or in the
course of business, or in casual conversation. The admission may be in writing
(letters, account books, etc.) or oral. However, unlike judicial admissions, they
are binding on the party only partially and not fully, except in cases where they
operate as or have the effect of estoppel.

ADMISSIONS - AN EXCEPTION TO HEARSAY RULE

●​ Admissions constitute an exception to the hearsay rule. This is so because an
admission, though a hearsay, is nevertheless the best evidence. What is said by a
party to the suit is not open to the objection 'that a party is going to offer
worse evidence than the nature of the case admits; (the supposition on which rule
of best evidence is founded).
●​ Thus, if A sues B on a loan, which B denies and B makes a statement to C, a third
person, that he had taken the loan, B’s statement is an admission and C may give
evidence of it although C was not present at the time of the loan and had only
heard B admit the fact of the loan.

Admissions by conduct
●​ Active or passive conduct may in circumstances become evidence of an
admission. In an Australian case, a woman registered the birth of the child but
did not enter the name of father, his rank or profession. The court said: “That
must mean either that she did not know who the father was and therefore was
unable to give those particulars, or else that she was admitting that the child was
illegitimate. Whichever view is taken, there is an admission of adultery and an
admissible evidence of adulter” [Mayo v Mayo (1949) P. 172].
●​ Silence may amount to admission in certain situations [See illustration) to Sec.
8]. When a statement is made to a person in his presence and airing affecting his
position seriously and he does not deny it, he thereby limits the truth of the
statement. But silence will amount to admissibility if it is natural to expect a
denial or reply. Just as a denial is not ways a negation of liability, failure to deny
is not necessarily an admission of liability.

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SEC.17 -- ADMISSION DEFINED
●​ An admission is a statement, 1 [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.
●​ Statements which suggest any inference of any fact thats in question in court of
law is admission (can be in favour or go against)
○​ Self serving and self harming
●​ Can be document as well
○​ Order 12 CPC
○​ Suggest an inference

●​
○​ Everything that we say is a statement -- but every statement may not
suggest something -- (Statement is a genre)
○​ Everything statement that we say and it suggests an inference wrt FiL or
RF would be a admission (self harming or self serving)
○​ Then comes confessions when guilt is being admitted
●​ Statement would be an admission only if there is a suit or proceeding
○​ Every statement is not an admission.
○​ Only those statements that shows inference to FiL or RF
●​ Admission can be made in any court of law (criminal proceedings, civil or quasi
crim)
●​ Judicial admission (s.58 IEA) and extra judicial admission
●​ Admission is a subjective concept
●​ Eg: A was in Avon on 1st Sept all night and tells it in class -- 3rd news breaks out
that there was a murder in avon on the night of 1st sept -- PO asks A about his
whereabouts on 1st and A says he was sleeping -- statement made by A in class is
admission (extra-judicial) only if the case goes to court.
○​ Denial to police officer suggests an inference (of lying to students or PO) to
RF or FiL

34
 ●​ S.17 -- suggests inference to FiL or RF and only then a statement is an admission.
●​ Oral, documentary, electronic form
○​ What about conduct???? → when conduct points at something related to
RF or FiL -- conduct as admission (s.8) → is not always conclusive and has
to be proven → conduct influenced by FiL or RF
●​ Self serving -- any admission that helps || self harming -- going against
○​ Self harming is generally taken to be true unless the court rejects the
admission
○​ S.58 -- if party has admitted certain fact, court can accept the admission or
can ask for additional proof for the fact by other evidence
■​ S.229 241 252 CrPC -- accused admits -- court may agree/consider
the guilt or may not
●​ Admission is decisive of the matter successfully
●​ Who can make admissions -- s.18
●​ S.19,20 -- non related parties’ statement as admissions

S.18 -- Who can make admissions -- Party to proceedings or his

agent
●​ Those persons who are related to the person in the suit
●​ Party to the proceedings, Agents to any such parties (representative character),
Proprietary/Pecuniary (property) interest in subject matter, person from whom
such interest is derived.
○​ Rep Character -- LR, Trustee, Guardians, administrators of wills,
○​ Prop/Peci -- Landlord-tenant, POA-Agent, CoDefs, Karta
●​ Party to Proceedings -- Ptiff, Def, Complainant
●​ Karta is party interested in subject matter, person from whom the interest is
derived from, agent (of coparcenary prop) as well and party to the proceedings
(so all 4 types)
●​ Agent -- formal, casual, temporary agent -- admission should have been made in
representative capacity if made only while holding the position as agent
●​ Person interested in subject matter
○​ Landlord-tenant -- suit is wrt LL’s property and is between 3rd person A
and LL -- T makes a statement to N that LL has no good title as LL sold the
property to A made in July -- Case is in Aug -- the statement of T in July
shall be taken as admission in the suit in Aug
○​ T becomes person interested in subject matter as he has a proprietary
interest in the property as tenant
●​ Person from whom interest is derived
○​ Eg: LRs (easementary rights) or guardian of minor -- A gives easementary
right to B to pass over land -- A dies and F has the property -- suit between

35
 F and B to stop B from moving -- B can prove in the court of law that A has
on one instance granted B the passage/easementary right that F cannot
deny B

S.19 and 20 -- 3rd Party making admissions

●​ Those persons who are not related to the party/property/suit but their statement
is taken to be admissions but due to some reasons their statements are relevant.
●​ Includes expert witnesses (usually makes judicial admissions) only if he makes
extra judicial admission in this case under s.19 and 20.
●​ Sec.19 -- Statements made by persons whose position or liability it is necessary
to prove as against any party to the suit, are admissions, if such statements would
be relevant as against such persons in relation to such position or liability in a
suit brought by or against them, and if they are made whilst the person' making
them occupies such position or is subject to such liability.
●​ Sec.20 -- Persons to whom a party to the suit has expressly referred for
information in reference to a matter in dispute.
●​ According to the definitions of admission it can be said that statement of parties
the suits for proceedings and also of persons were not parties to suits of
proceedings that i.e. of strangers are admissions if they are made under the
circumstances mentioned from section 17 to 20 suggest any inference as to any
fact in issue or relevant fact.
●​ Statement of one party to a suit made prior to the litigation may be proved at trial
if it amounts to admissions.
●​ Ordinarily, statements by strangers to a suit or proceeding are not relevant as
against the parties
○​ It is relevant when -->When in a suit aur party to wait in order to achieve
success in litigation as to prove the position of liability of a stranger to the
preceding the statement of such changes would be relevant against the
party to the proceeding admission is a statement is of such a nature that if
a suit is brought against him in relation to that position or liability against
or by that person who made the statement it would be relevant provided
when the statement was made the person making the statement occupies
that position of subject to such liability about which the statement was
made.
●​ Under section 19 the party to a suit can use a statement of even a third party to
the statement of that third person contained an admission against the interest of
the third person and could have been used against the third person if he sued or
was issued in connection with the matter involving the position or liability
affected by that admission.

36
 ●​ Section 20 deals with another class of admission of persons other than the parties
when a party refers to a third person for some information or an opinion on a
matter in dispute, the statement made by the third person are received as
admission against the person referring.
●​ For example: A says to B “ I will pay you a sum of rupees 200 if C says I owe it to
you”, on reference C says “A owes Rs.200 to B” → This statement of C will be
proved against A as his admission under s.20.
●​ The declarations of the persons referred to will be admissible only when they
relate strictly to the subject matter in relation to which the reference is made.
●​ S.20 is the second exception to the general rule laid down in section 18. it deals
with one class of vicarious admission that demand of persons other than the
parties.

Sec.21 -- Proof of admissions against persons making them and

by or on their behalf
●​ "Admissions are relevant and may be proved as against the person who makes
them, or his representatives in interest".
●​ Self serving character -- in favour of person -- usually inadmissible but there are
self circumstances where it can be done.
●​ Self harming admissions need not be confessions always
○​ Pakala Narayan Swamy v Emperor
●​ Self serving admissions are excluded usually and self harming admissions are
accepted usually
●​ Courts have the liberty to reject the self harming admission and go ahead with the
trial
●​ S.21 -- Admissions are relevant and may be proved as against the person who
makes them, or his representative in interest; but they cannot be proved by
or on behalf of the person who makes them or by his representative
in interest, except in the following cases:
○​ (1) An admission may be proved by or on behalf of the person making it,
when it is of such a nature that, if the person making it were dead, it would
be relevant as between third persons under section 32.
■​ S.32 deals with dying declaration and statement of persons who
cannot be found or cant be bought to court etc…
■​ Previous statement, conducts are taken to be relevant.
■​ Eg: A shoots B and B makes a statement to C that A has shot him --
B dies -- this statement of B would be relevant under s.32(1) as
dying declaration || But lets say B survives, then not a dying
declaration -- goes to trial -- B says A tried to kill him -- B wants to
prove self serving admission made to C -- since its not dying

37
 declaration its not relevant under s.32 but is relevant under s.157
for corroboration || but as per s.21 if the statement as dying
declaration was relevant under s.32 then it would be relevant under
s.21(1) as self serving admission.
■​ Deals with the statement and not the person.
■​ If person was not dead then relevant under s.157 and if dead under
s.32(2) but in both cases it would be self serving admission u/s.
21(1).
○​ (2) An admission may be proved by or on behalf of the person making it,
when it consists of a statement of the existence of any state of mind or
body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.
■​ S.8 , s.14 -- statement made without conduct not relevant and
statement is relevant if followed by the conduct
■​ Conduct would be relevant under s.8 and statement (self serving)
would be relevant under s. 21(2)
■​ State of mind, body and bodily feeling is relevant u/s.14 and the self
serving statement would be relevant under s.21(2)
○​ (3) An admission may be proved by or on behalf of the person making it, if
it is relevant otherwise than as an admission.
■​ If a statement is made and is relevant otherwise also (eg. statement
res gestae)
■​ S.34 -- entry in books of accounts -- regular course of business --
●​ Illustration B -- ‘proper course’ relevant under sec.16 -- evidence is given that the
captain took the ship out of the proper course -- (read it with s.32(2)) -- A
produces a book kept by him in the ordinary course of business (ledger) and
shows the daily log in the book/ledger and it indicates that the ship has not been
taken out of the ordinary course -- supposing he’s dead and a suit arises between
the owner of the ship and the person whose goods were being transported on the
ship and claims compensation for the loss of the goods -- if its a separate suit
after the captain’s death it would be relevant in which the captain is a party as
well (i.e his entry in the books would be considered as statement made prior to
his death u/s. 32(2)

Sec.23 -- Admission in civil cases relevant

●​ Eg: A claims 10L and wants to file case but B wants to settle it out of court in 5L --
A counter offer of 7L and B agrees -- would show that B has admitted to his guilt
as hes ready to pay -- B admitting to his negligence, A should not then take it to
the court of law

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Admissions How Far Relevant (Sees. 22-23)
●​ When oral admissions as to contents of documents are relevant (Sec. 22)
○​ Oral admissions as to the contents of a document are not relevant, unless
and until the party proposing to prove them shows that he is entitled to
give secondary evidence of the contents of such document under Sec. 65,
or unless the genuineness of the document produced is in question.
○​ When the question is whether a document is genuine or forged, oral
admissions about this fact are relevant. A document can be proved by the
primary evidence (original document) or secondary evidence (attested
copies or oral account).
●​ When oral admissions as to contents of electronic records are
relevant (Sec. 22A)
○​ "Oral admissions as to the contents of electronic records are not relevant
unless the genuineness of the electronic record produced is in question."

CONFESSION TO POLICE

SEC.25 -- CONFESSION TO POLICE OFFICER NOT TO BE

PROVED
●​ Why are confessions usually inadmissible in india??? -- malpractices, torture,
coercion, lack of professional maturity, lack of awareness about miranda rights
●​ Confession should be “arrived at” -- should be done towards the end ideally (not
the scenario in India)
●​ //s.26A (Law commission report) -- anything above ACP, DIG, etc can take
confession -- but the shortfall was seen in cases of TADA, POTA, etc -- nullified
●​ Total negation of confessions (but there are some exceptions)
●​ Circumstances where the PO comes to know the confession (eg. writing letters to
PO)
●​ Confession to Forest Officers, Excise officers are admissible as these are not PO
(extra-judicial confession)
●​ PO is a person (under the Police act and CrPC) who has investigating powers
●​ Eg: A makes a confession for murder but was being investigated for dacoity --
inadmissible (as any confession is
●​ If confession is made for an act that one is not an accused -- then rationale is that
there would have been some form of pressure
●​ Admissibility of confessions to police is a matter of policy
●​ Eg: Confessional FIR -- investigation has not started -- not hit by s.162 CrPC
○​ Faddi v MP, AIR 1964 SC 1850

39
 ○​ Aghnoo Nagesia v Bihar, AIR 1966 SC 119
■​ Accused killed his aunt, daughter and son-in-law of the fam -- goes
to the police and makes the confessional statement -- gives all deets
(yeet) -- police found the weapons to be hidden -- accused was
dictating the FIR -- nothing was found on accused -- only thing that
was found was the discovery statement (not enough to hold one
liable)-- was acquitted during appeal
●​ Exception:
○​ If there is a magistrate who records u/s.164 CrPC, or
○​ leads to discovery of something (then the something is only considered) --
discovery becomes relevant and not the confession

●​
●​ Sahadevan case -- extra judicial confession guidelines

Sec.26 -- Confession by accused while in custody of police not to

be proved against him
●​ Not only by accused but by any person who is in the custody of PO
●​ Police custody vs Judicial custody
○​ PC is lockup and JC is jail
○​ PC can be constructive -- eg: accused taken to hosp from PS and Accused
makes confession to doc -- held to be constructive police custody --
Emperor v Mallengowda 18 CRLJ 1981
●​ If made in front of the JM to the PO then admissible and relevant
●​ Custody need not mean arrest
○​ Arrest is formal
○​ Both are not synonymous
●​ UP v Deoman Upadhyay, AIR 1960 SC 1125
●​ Emperor v Lester, (1895) ILR 20 Bom 165

Sec.27 -- How much of information received from accused may

be proved.
●​ Provided that, when any fact is deposed to as discovered inconsequence of
information received from a person accused of any offence, in the custody of a

40
 police-officer, so much of such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby discovered, may be proved.
●​ Seems to be an exception to s.26 -- but Devman Upadhay case held it to be an
exception to s.24 and 25 as well
●​ Requirement -- accused, accused should give information, statement provides for
discovery of object or fact = would be relevant upto the point of discovery
●​ Doctrine of Confirmation
●​ Eg: A tells Cops that there's a gun found somewhere
○​ Till its an information (until object is found) -- its called as a disclosure
statement -- once object is found then its called discovery statement →
discovery memo
●​ Aghnoo Nagesia Case
●​ Mohd. Inayatullah v State of Maharashtra 1975 sc
○​ Object should be found from someplace of finding where the accused had
the idea of the object and should not be discovered from an open place
○​ Case of theft - 3 drums stolen -- lying in a courtyard behind a lodge -- SC
held cant be held to be ‘discovered’
●​ State of maharashtra v siraj ahmed nisar ahmad and ors 2007 sc
○​ Accused was arrested -- weapon -- disclosure statement -- taken to the
house -- rings doorbell -- other person brings it -- gives it to PO -- SC held
that 27 wombat apply as someone else had the knowledge of it as well
●​ nisar khand alias guddu and ors v uttaranchal 2006 sc
○​ Arrested -- riverside -- gun discovered under sand -- SC held discovery was
made
●​ pulkuri kottaya v emperor 1947
●​ Chinnaswami v AP, AIR 1962 SC 1788
○​ 27 is an exception to 25 and 26
●​ Discovery has to be made by the accused and not someone else

SEC.30 -- CONSIDERATION OF PROVED CONFESSION

AFFECTING PERSON MAKING IT AND OTHERS JOINTLY
UNDER TRIAL FOR SAME OFFENCE
●​ Essentials:
○​ Joint trial
○​ Confession to be made
○​ Person making the confession, the confession is to be proved against him

41
●​ Eg: Trial is ongoing (joint trial) -- joinder of charges and trial -- A makes a
confession that would implicate B as well -- court may take into
consideration --
●​ If there is a separate trial due to certain reasons
●​ Confession made would not be hit by ss.24,25,26
●​ Confession should have been proved in trial stage to implicate the other and
himself
●​ Eg: what if A dies before cross examination, trial begins etc OR what if A is
granted pardon -- then he makes a confession → them confession would not be
proved against him
●​ kashmira singh v MP 1952 -- evidentiary value of confession made by
co-accused is very weak against the other (so for A its strong but for B is its very
weak) -- only used as an indicative evidence -- can be used as a ‘missing link’
●​ Court can reject it at all times -- “may” take into consideration
●​ Bhoboni Sahu v The King, AIR 1947 PC -- confession may be considered by
the court -- but wont be considered to be proved against the other co-accused --
there must be other evidences -- confession is only one evidence
●​ Accomplice -- S.133 IEA -- An accomplice shall be a competent witness
against an accused person; and conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.
○​ Accomplice: person who participates in a crime (particpes crimins)--
○​ Eg: A kills B who stands at guard at a place and helps A to steal, C provides
weapon and D helps to escape --
○​ Co-accused cant be a competent witness for prosecution
■​ // remove tag of co-accused: ???? -- drop the charges
●​ Grant pardon under s.306, or 321, 224 CrPC

42
 STATEMENTS MADE BY PERSONS WHO
CAN'T BE CALLED AS WITNESS
SECTION 32 -- Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is relevant
●​ Person who is :
○​ Dead
○​ Cannot be found
○​ Incapable of giving evidence
○​ Delay -- attendance cant be procured
○​ Him not being present and making a statement becomes relevant in the
following cases -- as well as statement related to a RF becomes relevant
●​ Can be written or verbal -- statement of RF

DYING DECLARATION -- S.32(1)

●​ Relates to cause of death
○​ Used for corroboration if he dies
○​ If he doesn't die then not DyDec
○​ Ex: D (Deceased) tells it to B that A had killed D and B has not seen it --
hearsay but would be an exception
○​ Reasons for court to consider hearsay evidence as a proper
evidence (exception is DyDec)
■​ Doctrine of necessity: no cross examination possible -- necessity
for the court to take his evidence as the best evidence
■​ nemo moriturus praesumitur mentire -- no person would
meet his maker with a lie on his lip (philosophical)
■​ Because no one would die on their deathbed
■​ no other witness who would reveal evidence to the crime
■​ Last person to give evidence
■​ Best person to know what happened
○​ Court won't take DyDec prima facie -- has to be proven that it's true,
coherent, free of anomility -- if proven then its a strong evidence
○​ Ex: A rapes B and B tries to commit suicide and fails and goes to coma -- B
makes a statement about the transaction of her death and then commits
suicide but doesnt die -- states that A has raped then DyDec
○​ There has to be an event/circumstance/transaction
○​ DyDec is not a conclusive proof
●​ Suicide note as dying dec →

43
●​ Or narrates the circumstances of the transactions that has resulted in
his death
○​ Circumstance of transaction that did not result in death wont be covered --
or if there’s no transaction itself
●​ Best method is to take it as Q&A -- simple, specific, leading
●​ Ex: B invites A -- B sends his car --A goes to B’s house for lunch -- A tells his wife
-- B hits A with the car and kills him -- B throws the dead body somewhere
○​ All these circumstances are part of the transaction
■​ Circ 1 -- B invites A
■​ Circ 2 -- B sending car
■​ Circ 3 -- B poisons A
○​ Statement made to wife and the circumstances would be relevant as DyDec
○​ (but if A merely states that he thinks B might kill -- not DyDec as there's
no transaction)
●​ Pakala Narayan Swami v King Emperor 1939 → Privy Council 5 bench
Lord Atkin
○​ Victim A gave a loan to W and W was not returning the loan -- A was
married to B -- transaction was that W writes a letter to A stating that hes
willing to repay and asks A to come to his house -- A shows his letter to his
wife stating hes going to get his money back -- 2 days later his body was
found in the station
○​ Transaction: received letter → shows letter → boards train → dead
■​ Circumstances in which he was killed
○​ Statement made to wife -- pre-injury statement
■​ This would fall under the 2nd part of DyDec (circumstance that
would result in cause of death)
●​ Transactions resulting in death
○​ Transaction -- series of event
■​ Every event is a circumstance
○​ Transaction or something must happen
○​ Eg: A goes to his house everyday for lunch at 12pm -- gets a call from B
calling him for lunch -- B sends car and invites for lunch -- A goes to B’s
house -- B poisons A and kills him -- before going to B;s house A tells his
wife not to wait for lunch as A is going to B’s house for lunch -- B throws
dead body on a rly track
■​ All these form a series of transaction
■​ Statement made to wife would be a
●​ Nature of proceeding
○​ Criminal and civil
○​ Civil → Partition suits

44
 ○​ Eg: s.25 Hindu Succession Act -- kills father -- s.25 bars son from
inheriting the property -- father’s statement (dyDec) is used in criminal
matter -- in civil matter, the other parties should show that the son should
not claim inheritance for killing his father -- it can be used, because there
is no such bar that section 32 is not applicable to civil proceedings
○​ chatinder pal singh
●​ Leading questions can be asked
●​ Dying declaration has 2 things:
○​ Cause of death
○​ Circumstances of transactions resulting in death (pre-injury statement as
well)
●​ Mere suspicion is not a transaction so not a [Link]
●​ Verbal includes oral statements, gestures, signs, expressions, words can be
enacted as well
○​ Queen Empress v Abdullah 1885 → victim -- throat was cut -- made
gestures -- were the statements verbal??? (same case for s.8 -- action of
pointing out was not taken as a conduct -- conduct not accompanying her
statement -- transaction was broken when question asked -- but was taken
as DyDec) -- in appeal it was held that Dulari’s statement was not relevant
under s.8 but under s.32.
■​ ‘Verbal’ also means gestures and signs
○​ Chandrasekhara @ Alisandiri v King → woman’s throat was half
slit -- made signs and gestures for answers -- held it to be ‘verbal
statement’
○​ Laxman v Maharashtra, 2002 SCC (Cri) 1491 → DyDec would be
oral, writing or in other modes that are sufficient and positive (adequate
methods of communication) -- provided the indication was positive
and definite
○​ Eg: Nirbahaya Case -- DyDec made partly in writing and partly in signs
and gestures
●​ If person does not die -- statement would be relevant under s.157 and
s.145

Circumstance resulting to death

●​ Mere suspicion won’t be a circumstance to amount for DyDec

Suicide Note
●​ Can be held to be dying declaration

45
●​ Eg: A is raped and makes a statement to the police about it and then commits
suicide -- courts have held this not to be dying declaration as the girld died cuz of
suicide and not because of being raped. -- rape would implicate would accused
and not the direct cause of the death and suicide wont implicate the accused
●​ State of Punjab v Chattinder Pal Singh 2008
○​ Girl raped in hotel -- commits suicide -- makes DyDec to Police -- multiple
DyDec made (police officer and SDM) -- SC rejetced the DyDec due to
inconsistencies and acquitted accused
○​ Victims death was caused by suicide and not death does not lead to
disqualification
○​ Transaction resulting to death here was the rape -- so would be considered
if there werent any inherent inconsistencies.
●​ Bhairo Singh v State of MP 2009 SC -- girl jumping or falling in well??? If
suicide or not
●​ Joginder Singh Case-- Suicide note can be DD
●​ Injury based statements can be DD -- bust has to be estbalished
○​ Pre injury -- Pakala Narayan Swamy
○​ Post injury -- Nirbhaya Case

Multiple DyDec.
●​ Sayrabano @ Sultana begum v state of maha 2007 → woman was burnt
in demand of dowry -- 3 DyDec made -- 1st DyDecl was made to the doctor
treating (woman said it was due to accident) -- 2nd DyDecl was made to the
police officer (woman said it was the inlaws who dragged her to the courtyard and
burnt her) -- 3rd DyDecl was made to the JM (woman added that husband had
not done anything -- wrt to the 2nd statement)
○​ Facts and circumstances would have to be proven
○​ Usually courts take the 1st one, but in this case the 3rd DyDecl was taken
into consideration
■​ 1st one is instantaneous and later ones are usually presumed to be
tutored
○​ Kerosene found in the courtyard by the police during seizure report
●​ “this Court had an occasion to consider the cases where there are multiple dying
declarations. In the aforesaid decisions, it is held that each dying declaration has
to be considered independently on its own merit as to its evidentiary value and
one cannot be rejected because of the contents of the other- Nagabhushan V.
State of Karnataka- S.C(2020)
●​ Court can accept any DyDec in isolation and reject the others but has to scrutinise
the same

46
 ●​ Kushal Rao v St of Bombay 1958 →
○​ Guidelines on DyDec
○​ Convict on basis of uncorroborated DyDec
●​ Role of s.162(1) and (2)

bhagwan 2019 SC case

vijay pal v 2015
lakshman v maha 2002

Sec.33 -- Relevancy of certain evidence for proving in subsequent

proceeding, the truth of facts therein stated
●​ Judicial proceeding -- evidence is taken on oath and cross examination is possible
●​ Evidence given by witness is judicial proceeding (where oath is administered,
cross examination etc)
●​ Or any person authorized by law to take evidence:
○​ Not a judicial proceeding but person is authorised to collect evidence.
■​ Eg: Disciplinary proceedings, registration of wills (registrar
administers oaths, issues summons to witnesses)
●​ Eg: P dies intestate and has property -- S son claims property
to go to him intestate -- R takes care of P and claims it based
on a will -- so here evidence would be taken on behalf of R
and S. (so here commissioner is here authorised to take
evidence
●​ Jist: such evidence and statements taken can be used in subsequent
proceedings. -- such becomes relevant
●​ Subsequent judicial proceeding:
○​ Eg: WILL would itself would be needed for the subsequent proceeding
when the suit arises.
●​ Conditions for person:
○​ when the witness is dead or cannot be found, or
○​ is incapable of giving evidence, or
○​ is kept out of the way by the adverse party, or
○​ if his presence cannot be obtained without an amount of delay or expense
which, under the circumstances of the case, the Court considers
unreasonable
●​ Difference between s.32 and s.33:
○​ 32 is statement made by person out of the court (before anyone) and s.33
is done in a judicial proceeding (in the court or in front of any authority)

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 ○​ S.33 has an additional point of person being kept out of the way by the
adverse party (which s.32 does not have)
■​ Eg is person is to be re-examined and is kept out of the way by the
adverse party then in this case the section is applicable.
○​ Q: what if the magistrate goes and records statement u/s.32, would it
qualify as 33?? -- No as its a pre-investigation statement -- in this situation
the inquiry begins before the investigation → s.33 is when the proceeding
commences.
●​ Applicable in civil and criminal proceedings
●​ “Later stages of same judicial proceedings:”
○​ Issues should be substantially the same
○​ Eg: statements made in a civil defamation suit can be used in a criminal
defamation suit among the same parties.
○​ Parties are the same (or their reps)
○​ Eg: Committal proceedings to sessions court (s.323 CrPC) -- even s.209
deals with committal -- difference here is 323 lower court was authorised
to deal with the case but chose not to and commits it to the sessions court
-- so sessions court can again examine witnesses and take evidences
○​ Committal proceeding when examination is done →
■​ To sessions court -- s.323 and sec 209 CrPC
●​ 323 lower court must authorise but did nit
●​ 209 only sessions court
■​ Take evidence → examine → sent to sessions court after committed
■​ Sessions court can now again examine witnesses and take evidence
●​ Statement in civil defamation suit can be used in criminal defamation -- as the
issues remains the same
●​ Proviso
○​ Adverse party in the prior case had the right to perform cross examination
and had done it -- i.e person who is dead/missing was cross examined
■​ Right + opportunity to cross examine
■​ If not done then statements cant be used under s.33
○​ Cross examination → If not complied with then statement cant be used
under s.33.
○​ Proceedings were between the same parties/reps

Section that bypasses s.33

●​ Eg: if FIR is filed and accused absconds → Magistrate → issuance of summons
→ warrants (bailable and non bailable) → attachment 0f property → sale
○​ Magistrate starts taking evidence without the absconding accused being
present

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 ○​ If trial starts -- accused returns and witness is dead
○​ Accused did not get a chance to cross examine -- then what???? (no
solution yet) -- as of now it can be used as evidence
●​ Principle: examine evidence/witness in presence of accused
●​ S.299 CrPC → Record of evidence in absence of accused.
○​ If accused absconds → Magistrate or IO brings witness → waits for
accused → summons, warrants → attach and sale of property
■​ Magistrate begins taking evidence of witnesses without the
presence of accused
■​ Eg: Evidence taken in committal proceedings -- accused comes back
-- witness is dead -- did accused get a chance to cross-examine (no)
-- here lies the problem -- if the person is dead evidence can be used
→ Bypassed s.33 IEA
○​ S.299 CrPC bypasses s.33 of IEA
■​ S.33 says no evidence can be taken w/o cross examination
●​ Jayendra Vishnu Thakur v Maharashtra, 2009 (7) SCC 104 (1) --
○​ s.299 CrPC to bypass s.33 IEA
○​ The principle is not a fundamental right but an inherent right -- but --
court must be satisfied that accused has absconded and there is no way of
arresting him.
●​ Sec.33 landmark case: Jainab Bibi Saheb v Hyderally Saheba, (1920)
38 MAd
○​ Privy Council → S.33 to be strictly adhered to
Q: Would statements made in an ex parte hearing be irrelevant in
subsequent hearing as cross examination did not take place or will it be
considered as the right was waived?
●​ Right was waived (civil) but for criminal the court would have to look into s.33
and 299
●​ In reality there is no ex parte taken through by the court.

OPINION OF 3rd PERSONS (EXPERTS) WHEN RELEVANT

Introduction:
●​ Law requires that witnesses should have seen/perceived the fact and ought not
to consider opinions as its the job of the court to infer and opinionate
from the opinions.
●​ Opinions are subjective and are inherently unreliable
●​ But expert opinions are need of the hour
●​ Expert evidence is hearsay
●​ Judges may not have the knowledge of such technical deets

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●​ Thats why expert evidence -- s.45 to 51
●​ These are opinions and are not conclusive always

Sec.45 -- Opinion of experts

●​ When court has to form an opinion upon …
○​ 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….are
relevant facts.
●​ Who is an expert → Expert in the field of and has knowledge on and
specially skilled
○​ Foreign law (similar to s.13 CPC)
○​ Science and Technology
○​ Finger impressions (handprints, handwriting, fingerprints etc)
●​ Have to prove that the expert is specially skilled
○​ Degree is not the criteria
○​ Eg: blacksmith is an expert even without a degree
○​ More reliance is placed on experience
○​ Satisfaction of court is necessary for it to treat the expert as
authentic and genuine
●​ Not conclusive evidence -- conviction based on expert opinion is extremely rate
●​ Ocular evidence is preferred over opinion of experts
○​ Why: despite technology advancement -- if eyewitness testimony is
unimpeachable then can't be questioned
■​ If eyewitness testimony is contradictory to case then disregarded
○​ Karia v State of Raj 2013 → eyewitness >> any other witness
○​ (exception) State of Punjab v Bittu -- doctors report prevailed over
ocular testimony
○​ Mahavir Singh v State of MP 2017
○​ Eg: A was killed by many (B who shot, C who stabbed, D who abused, E
threw stones and F shot point blank) -- eyewitness just saw the stabbing
and runs away and the person shoots point plank -- autopsy reports that
the B was the killer -- in court witness testifies that he saw C stabbing;
autopsy report indicates towards B -- here it comes in handy as
eyewitnesses testimony is impeached as its half true
●​ Usually eyewitness testimony and expert opinion are corroborative.
●​ Expert need not give opinion based on scientific experiment, can happen based
on sheer observation

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Constitutionality and relevancy of evidence given by medical experts
●​ Blood sample, hair, semen etc are all physical evidence which is a direct evidence
-- IEA and CrPC treat it as direct evidence and supports it
●​ Nacro/audiovideo/postmortem/inquest/brain mapping/polygraph etc????
○​ Selvi v state of Karnataka 2010 -- constitutionality of narco art.20(3)
and other tests under compulsion is constitutional or not -- self
incriminating and freedom of choice -- violative of FRs
○​ Abu salem and dawood ibrahim caught -- narco analysis -- sodium
pentathol -- subconscious -- cant resist and freedom of choice is restricted
○​ Freedom of choice is lost
●​ Violation of fair trial -- no chance to take legal advice as well
●​ Sec.161(2) CrPC as well -- no one can compel
●​ Voluntary is permissible -- be used under s.27 IEA
●​ Audio-video -- RM Malkhani case
○​ Relevant under s.6
○​ Effect of the same RF
○​ Video happened due to the murder

Sec.46 -- Facts bearing upon opinion of experts

●​ Facts, not otherwise relevant, are relevant if they support or are inconsistent with
the opinions of experts, when such opinions are relevant.
○​ Whatever facts are consistent with and are affecting the opinions with the
testimony of the expert then these facts become relevant
●​ Anything consistent or inconsistent with opinion of expert is relevant
●​ Illustration A: The question is, whether A was poisoned by a certain poison. →
The fact that other persons, who were poisoned by that poison, exhibited certain
symptoms which experts affirm or deny to be the symptoms of that poison, is
relevant
○​ A was killed due to poison -- symptoms matched with poison recovered
from B -- expert told A died of same poison recovered from B
○​ Symptoms are relevant
○​ Facts in issue: findings of expert
■​ How was A killed -- poison
■​ Symptoms -- match with poison
■​ If headshot also found then that also is a relavant fact
○​ Anything that proves expert opinion wrong is also relevant fact
●​ Illustration B: The question is, whether an obstruction to a harbour is caused by
a certain sea-wall. → The fact that other harbours similarly situated in other

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 respects, but where there were no such sea-walls, began to be obstructed at about
the same time, is relevant.
○​ One expert says that ships are obstructed due to sea walls
○​ Expert 2 says that ships are obstructed in the other harbour which has no
sea walls.
○​ Both these opinions are relevant

Section 47 -- Opinion as to hand-writing, when relevant

●​ The opinion of any person acquainted with the handwriting of the
person is a RF.
●​ Need not be an expert
●​ Eg: A is conducting a transaction in Chennai and B is sending letters in BLR -- C
reads the handwriting -- all are acquainted with B’s handwriting
○​ Here none of these persons are experts
●​ 47A -- digital signatures.

Section 48 -- Opinion as to existence of right or custom, when

relevant.––
●​ When the Court has to form an opinion as to the existence of any general custom
or right, the opinions, as to the existence of such custom or right, of persons
who would be likely to know of its existence if it existed, are relevant
●​ If dead then relevant under s.33 and if not dead then s.48
●​ Connection between s.48 and section 13

Section 50 -- Opinion on relationship, when relevant.

●​ When court has to formulate opinion on relationship of two persons then the
opinion, expressed by conduct, as to the existence of such
relationship, of any person who, as a member of the family or
otherwise, has special means of knowledge on the subject, is a
relevant fact
●​ Anybody can give opinion
○​ Friends, priest, anyone

Section 51 -- Grounds of opinion, when relevant

●​ Whenever the opinion of any living person is relevant, the grounds on which
such opinion is based are also relevant.

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 Sec 40 - 44 when previous judgements are
relevant
Definite questions -- 6 or 10 markers

Sec.40
●​ If trial has happened before, then cant happen again -- eg. res judicata
○​ CPC - res judicata (jurisdiction, cause of action, same parties)
■​ Court should be competent (subject matter, pecuniary jurisdiction,
territorial) -- parties raise issue that court cant try the matter
●​ Sec. 40: Res judicata, res subjudice
○​ Such judgements would be relevant in subsequent cases:
■​ Eg. estoppel bars the remedy and not the right
○​ All those judgements that were previously decided and are final -- become
relevant because they bar the subsequent suit or trial.
●​ In precedents, its the ratio thats applicable to all other cases, whereas in
judgements its only limited to the parties, in sec.40 its only the ratio in such cases
that are permissible and other things are barred
○​ When judgement is given, only its ratio is binding on the parties.
○​ Eg: case goes to SC only the law is binding on other courts unless
overruled, the judgement in itself (questions of fact) is not relevant
○​ Only question of law is relevant
●​ Suits and trials (criminal and civil)
○​ Civil suit would not have any effect on the criminal suit
○​ Eg: A trespasses on B’s property and theres a civil suit (A files it against B
for wrongful dispossession) in place and simultaneously there is a trial
that goes on (B files case against A)
■​ A wins against B in civil suit but in criminal suit they wont hold it
conclusive that either of the parties have exercised right to private
defence. Crim court would only know that A won the suit, but the
judgement and facts wont be relevant.
■​ Burden of proof changes
■​ Why hold it irrelevant → because in one case one party has lost and
if you remove his right - its a wrong
●​ KG Premshankar v Inspector of Police 2002 SC
○​ SC held that one case is not binding on another even though it may be
relevant
○​ Previous judgements would be irrelevant -- but would be relevant only wrt
the ratio

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 ●​ Eg: Adultery + Bigamy -- A (Husband) B (Wife) C (adulterer)
○​ A files a case against C and court convicts C (in a criminal court)
○​ Trial between A and B for bigamy || civil suit for divorce -- conclusion
should be arrived at independently.
○​ The case between A and C would be irrelevant
○​ Judgement may be relevant but facts would have to be arrived at (based on
KG Premshankar)

//Sec. 34 and 35 SRA

●​ Judgement in rem and judgement in personam
●​ Declaratory decree (person or thing, effect of declaration)
●​ Eg: A and B are married and get a divorce (in rem -- affects legal status of person)
●​ Eg: A and B are in a contract (personam)
●​ S.41 IEA deals with judgement in rem

Sec.41
●​ Final judgement, order or decree in civil courts
●​ Conclusive cases: wrt. Probate, matrimonial, admiralty and insolvency
○​ Matrimonial: divorce, maintenance, adoption of child, RCR, JS, nullity of
marriage
○​ Admiralty: lien, ownership of ship, possession of ship
○​ Probate: Will (probate certificate for the will) -- order should be in favour
of the will
●​ Which confers upon or takes away from a person any legal character
○​ Or declares any person to be entitled to such character or thing (res)
●​ So such becomes conclusive proof
●​ Remedies:
○​ If contesting probate certificate issue -- Will cannot be questioned unless
and until the court sets aside the probate and then contest the will
■​ Related to s.44

Sec.44
●​ When claims are pertaining to fraud, collusion
●​ Remedy to s.40 and 41, 42 (not rem but public importance)
●​ Safety net -- all judgements in s.40-42 can be set aside
○​ Eg: probate court, first set aside probate by Z and then contest case against
A

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Sec.42
●​ Eg: Easement -- suit is of public natur wrt rt of way in a case between A and B
○​ not a judgment in rem
●​ If suit is of public nature then it becomes relevant even if its not judgment in rem
●​ Judgments, orders or decrees other than those mentioned in section 41 are
relevant if they relate to matters of a public nature relevant to the enquiry; but
such judgments, orders or decrees are not conclusive proof of that which they
state.

Sec.43
●​ 43. Judgments, etc., other than those mentioned in sections 40, 41
and 42, when relevant. –– Judgments, orders or decrees, other than those
mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such
judgment, order or decree, is a fact in issue, or is relevant under some other
provision of this Act
●​ Barring those in s.40, 41 and 44, all other judgements are irrelevant, except those
judgements that are FiI or RF
●​ Eg: A murders B and in a previous judgment B is sued for defamation and B is
acquitted, the previous judgement becomes relevant because of motive to kill B
that A would have.
●​ Eg: A is punished for 3 years for theft and after coming out commits theft again,
then under s.75 IPC charges are enhanced. (enhanced punishment becomes
relevant under fact in issue -- as it defines fact in issue)
●​ Should inform the court about the previous offence while making the charge u/s.
211
●​ Previous judgment wont have any bearing
●​ Illustration (b) -- Bigamy case

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 BURDEN OF PROOF (15 marks)
●​ 101. Burden of proof. –– 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.
●​ 102. On whom burden of proof lies. –– The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given on
either side.
●​ Two types: BoP in civil cases preponderance of probability and criminal case its
beyond reasonable doubt
○​ If BoP and standard of proof are same -- BoP falls on person and SoP is
how much is needed
●​ Eg: Holla kills me -- prosec starts examining -- BoP is initially on the Prosec and
incase Holla states alibi that he was having tea with Pahul
○​ Here in prosecution story BoP is really high and is beyond reasonable
doubt
○​ Def has to just create a reasonable doubt which is the preponderance of
probability
●​ 101 and 102 deals with two types of BoP
○​ 101 is always static -- unchanged and only one party has the BoP
○​ 102 Bop shifts
○​ How??? -
■​ 101 discusses about BoP to prove the entire case and would loose if
no evidence is given -- initial BoP
■​ 102 deals with burden of adducing evidence --
○​ Eg in murder case -- entire burdern under 101 lies on the state -- onus to
adduced evidence that A did not kill shifts on A -- if pvt defence raised
then bop of evidence shifts onto state to disporve
●​ 103. Burden of proof as to particular fact. ––The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact shall lie on any
particular person.
○​ Once the court presumes then the burden lies on defence, prior to this the
court has to arrive at some fact where the BoP lies under s.101
●​ 104. Burden of proving fact to be proved to make evidence admissible.
–– 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.
○​ Eg. dydec -- 1st prove the death of the person to prove dydec

56
●​ 105. 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 (45 of 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.
●​ 106. Burden of proving fact especially within knowledge. –– When any
fact is especially within the knowledge of any person, the burden of proving that
fact is upon him.
●​ 107. Burden of proving death of person known to have been alive
within thirty years. –– When the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years, the burden of proving that he
is dead is on the person who affirms it.
○​ Contention that A is alive then B should give proof
○​ Court will presume that he is alive if proof is given about the person has
been seen in the last 30 years
○​ Here prove alive, in s.108 must prove that person is dead
●​ 108. Burden of proving that person is alive who has not been heard of
for seven years. –– 1 [Provided that when] the question is whether a man is
alive or dead, and it is proved that he has not been heard of for seven years by
those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is 2 [shifted to] the person who affirms it.
○​ Onus shifts to prove that person is not alive -- presumed to be dead --
burden would be on B to prove that he has not seen for 7 years
●​ 107 court presumes life and 108 deals with courts presumption of death
●​ 110. Burden of proof as to ownership. –– When the question is whether
any person is owner of anything of which he is shown to be in possession, the
burden of proving that he is not the owner is on the person who affirms that he is
not the owner.
○​ Prove possessor and not the owener
●​ 111. Proof of good faith in transactions where one party is in relation
of active confidence. –– Where there is a question as to the good faith of a
transaction between parties, one of whom stands to the other in a position of
active confidence, the burden of proving the good faith of the transaction is on
the party who is in a position of active confidence.
○​ Presumption of court is that there is a position of undue influence -- its on
me to prove that good faith exists
●​ 113A. Presumption as to abetment of suicide by a married woman.
○​ It is shown that she has committed suicide and subject to cruelty (498A)
○​ Court may presume that abetment has happened
○​ Thanu Ram v State of MP

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 ■​ Once cruelty is established court may presume and frame charges
under s.306, 498A and DPA
○​ Ramesh Vitthal Patel v State of Karnataka 2014
●​ 113B. Presumption as to dowry death.
○​ Intial burden in prosection to show that woman was subjected to cruelty
○​ Court shall presume that before the death the cruelty and harassment
has happened -- court shall presume that the person has caused such
death (304B)
●​ 114. Court may presume existence of certain facts. (Self study)
○​ 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.
○​ Presumption as to service of notice
■​ In the circumstances, it could certainly be presumed that the notice
was duly served
○​ Presumption of marriage
■​ Live-in-relationship between parties if continued for a long time
cannot be termed in as ―walk in and walkout‖ relationship but it
shows clearly presumption of marriage.
○​ Service of summons- Presumption of
■​ Court may presume service of notice through registered post.
Expression "may presume" is a factual presumption. Presumption
is an inference of a certain fact drawn from other proved facts.
■​ Wherever expression "may presume" has been used in the Act, a
discretion has been given to the Court to presume a fact or it may
call upon the party to prove the fact by leading evidence.
■​ Presumption of service of summon of the defendant is
drawn on the basis of report of Process Server. Thus the
burden lies upon the plaintiff to prove the report of
Process Server was correct.
●​ Section 114A - Presumption as to absence of consent in certain
prosecution for rape
○​ Medical evidence showing non-rupture of hymen and not supporting the
prosecution case- Court to give utmost weightage to version of the
prosecutrix as definition of rape also includes attempt to rape

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●​ Sahadevan v State of TN 2012 → Guidelines on Extra judicial confession
●​ Rigour Mortis -- scientific medical term stiffing of body after 3rhs -- opinion of
doc as conclusive proof
○​ If its conclusive or not????
○​ For s.45 expert evidence

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 TYPES OF EVIDENCES SECTION 59 TO 90A

Types of Evidences:
●​ Oral
●​ Documentary (electronic)
●​ Harsay
●​ Circumstantial
●​ Direct/Indirect
●​ Substantive/Corroborative
●​ Can be classified into 3 -- oral, documentary and material (and
opinion)

Section 59: Proof of facts by oral evidence.

●​ All facts, except the contents of documents or electronic records, may be proved
by oral evidence.
●​ Facts:
●​ Contents of Docs and ERs:
○​ Contents of docs cant be given as oral evidence
●​ Sec.63(5) - oral accounts of the contents of a document given by some person
who has himself seen it.
○​ Can given oral account and not evidence of seeing the document
○​ Eg: A reg deed orig doc is lost -- may be allowed to given secondary
evidence -- what if thats lost -- the attesting witness would give oral
account
●​ Sec.22 -- oral admissions of contents of docs are not relevant unless secondary
evidence is given (entitled to give secondary evidence -- then oral evidence is
secondary evidence and under s.63(5) oral evidence is not secondary)
○​ Person has not seen the doc unlike under s.63(3) -- what if someone has
seen the persons registering the docs -- no evidence of content but
admitting the documentation being done
○​ Unless the genuineness is in question
●​ Oral evidence is not of the contents but is of the document in itself

Section 60: Oral evidence must be direct

●​ must be the evidence of a witness who says he seen/heard/perceived it; -- cant
be hearsay

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 ●​ if it refers to an opinion or to the grounds on which that opinion is held, it must
be the evidence of the person who holds that opinion on those grounds
●​ Provided the opinion of expert who is the author -- can be supported with the text
of it.
●​ Provided that the oral evidence is wrt a material thing then the material thing has
to be presented before the court.
●​ Direct evidence may be indirect if the person writes and dies -- then the
document has to be produced.
●​ Exceptions to exclusion of hearsay evidence
○​ Res gestae
○​ Confession
○​ Admission
○​ DyDec
○​ Expert opinion u/s.45
○​ S.32 and 34

Documentary evidence (Chapter 5) -- 6 marks

●​ Primary -- document in itself
●​ Secondary -- copy of the original document
●​ Sec. 61 → Proof of contents of documents -- either through primary or
secondary

Section 62 -- Primary evidence.

●​ Primary evidence means the document itself produced for the inspection of the
Court.
●​ Explain.1 → Where a document is executed in several parts, each part is
primary evidence of the document
○​ is executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against
the parties executing it.
○​ Eg: Will is kept with Probate officer and gives 2 original probates -- here
two identical documents -- both have to be original -- so here both are
primary.
○​ Or even mediation docs -- it has two originals
○​ Counterpart: two docs exchanged -- A signs a doc and gives to B and would
be a primary evidence against A and secondary evidence against B
●​ Explanation 2. –– Where a number of documents are all made by one uniform
process, as in the case of printing, lithography or photography, each is primary

61
 evidence of the contents of the rest; but, where they are all copies of a common
original, they are not primary evidence of the contents of the original.
○​ Photocopy of original and original is lost -- these photocopies would be a
primary evidence against orig and when respect to original then secondary

Sec.63 -- Secondary evidence

●​ Means and includes:
○​ (1) certified copies given under the provisions hereinafter contained;
■​ Public doc or official doc (Consti orig, something that can be
produced, will cant be but probate can)
○​ (2) copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with
such copies;
■​ 1 orig and 1 copy and use it to compare the 3rd copy of unknown
source then thats secondary evidence
○​ (3) copies made from or compared with the original;
○​ (4) counterparts of documents as against the parties who did not execute
them;
■​ Delhi guy signs and give it Chennai Guy so its a primary doc against
Delhi guy and secondary evidence against Chennai Guy (if someone
could confirm)
○​ (5) oral accounts of the contents of a document given by some person who
has himself seen it.
○​ Summary of docs -- CrPC InvesOfficer (Police Diary)

Sec.64: 64. Proof of documents by primary evidence.

●​ ––Documents must be proved by primary evidence except in the cases
hereinafter mentioned.

Sec.65 -- Cases in which secondary evidence relating to documents may be

given.
●​ Who is legally bound to produce it but after notice does not produce it
○​ Ex. diplomat , or privileged comm
●​ Oral account of original only and not the documents
●​ (b) when the existence, condition or contents of the original have been proved to
be admitted in writing by the person against whom it is proved or by his
representative in interest;

62
 ●​ (c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
●​ (d) when the original is of such a nature as not to be easily movable;
●​ (e) when the original is a public document within the meaning of section 74;
●​ (f) when the original is a document of which a certified copy is permitted by this
Act, or by any other law in force in 1 [India] to be given in evidence;
●​ (g) when the originals consist of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the
general result of the whole collection.
●​ In cases (a), (c) and (d), any secondary evidence of the contents of the document
is admissible.
●​ In case (b), the written admission is admissible. In case (e) or (f), a certified copy
of the document, but no other kind of secondary evidence, is admissible.
●​ In case (g), evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the examination of
such documents.

Section 65A and B (likely question 6 marker)

●​ Sec.65B is a complete code in itself.
●​ Under Section 65A of the Evidence Act, the contents of electronic records have to
be proved as evidence in accordance with the requirements of Section 65B. Both
Sections 65A and 65B were inserted through the Indian Evidence (Amendment)
Act, 2000, and form part of Chapter V of the Evidence Act, which deals with
documentary evidence. In Anvar v. Basheer, it was clarified that as Section
65B begins with a non-obstante clause, if forms a complete code for the
admissibility of electronic evidence. Any information contained in an electronic
record that has been stored, recorded, or copied as a computer output is deemed
to be a 'document' under Section 65B(1), and is admissible as evidence without
further proof or the production of the originals if the conditions are met. Section
65B(2) specifies the requirements that must be met in order for information to be
classified as a "computer output."
●​ The provision in Section 65B(4), which states that if electronic evidence is to be
used in any judicial proceeding, a certificate must be produced that identifies the
electronic record and gives specific information about it, has given rise to
conflicting interpretations.
●​ This certificate must be signed by a person who holds a responsible official
position in relation to the operation of the relevant device, or by someone in
charge of the relevant activities involved. This signature will serve as proof of the
certificate's authenticity. The contents of the certificate should be stated "to the

63
 best of the person's knowledge and belief," according to Section 65B(4).
Following the three previous Supreme Court decisions cited above, there was
some confusion as to whether a certificate under Section 65B(4) would be
required even if an original copy of the electronic record was produced as
evidence. Another question was whether compliance with the provisions of
Section 65B(4) was required or if the requirement to obtain a certificate could be
waived. It's also worth noting that Sections 62 and 63 of the Evidence Act apply
at this point. The term 'primary evidence' is defined in Section 62, and it refers to
the document that is presented to the Court. Copies are considered secondary
evidence under Section 63.
●​ While production of a certificate under Section 65B(4) may be a necessary
safeguard to ensure authenticity, there is a need to formulate other safeguards as
well – to ensure that privacy and confidentiality of the information contained in
electronic records is protected. Justice Nariman, had, in his judgment, referred to
the Report submitted by a five-judge Committee in November 2018, which had
framed Draft Rules dealing with the preservation, retrieval and authentication of
electronic records. While there is now clarity over the scope of Section 65B,
multiple steps are still needed to ensure the safety, retention and confidentiality
of information obtained in the form of electronic evidence.
●​ State (NCT of Delhi) v. Navjot Sandhu 2005 SC
○​ Parliament attack case -- electronic record in this case were the records
created by the servers of Airtel -- call records and call recordings -- helped
to establish the conspiracy
○​ Facts in issue -- whether person can be liable for 120A
○​ Relevant fact -- constant conversation with the terrorists -- call records
produced by the investigating agency
○​ Sec 63 and 65B used for admitting the electronic record.
○​ Phone tapping was also done -- using a duplicate sim -- conversation
recorded by Airtel -- produced as electronic records
○​ Contention of accused -- these electronic records were not complied with
s.65B and due to this it cant be admissible as evidence that establishes and
proves a relevant fact
○​ SC held -- even though s.65B are present in the IEA, the requirement of
the certificate is not always mandatory for admitting such evidence in the
courts of law.

ELECTRONIC EVIDENCE AND RECORD

●​ Standard of proof is high due to the fact that these evidences can be tampered
with
●​ Tukaram S Dighole v Manikrao Shivaji Kokate 2010

64
 ●​ Arjun Panditrao v kailash Kushanrao
●​ Electronic record -- s.2(t) IT Act
●​ Section 45A IEA -- expert for electronic evidence
●​ Primary Electronic record -- source found -- eg. camera with cd or memory card
can be primary evidence -- or video/audio recorded on cassette or CD
●​ ER can be primary and secondary as well -- this is dependant on the source
●​ Difficult to bring primary evidence as its metadata, so better to bring secondary
evidence
●​ Once secondary evidence is allowed then weightage of primary and secondary can
be levelled out
●​ s.65B(4) -- certificate for genuineness
●​ Digitally signature is needed and the authenticity of the same has to
be proven
●​ Data drawn from computer is secondary as the main data is in the harddisk of the
computer which cannot be read as its in computer language
●​ [67A. Proof as to 2 [electronic signature]
●​ Anvar PV -- strict -- evidence act would not permit the proof of an electronic
evidence by means of an oral evidence if s.65B requirements are not complied
with -- upheld by Arjun Panditrao
●​ Certifying authority to check the genuineness -- person who has the
device can also authenticate it if they have the technical knowledge and the
experience and authority.
●​ Certifying auth or dept under whose control the device is can give certificate or
even telecom peeps
●​ Sec.65B(4) --
○​ purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and for the purposes of this
subsection it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.

67. Proof of signature and handwriting of person alleged to have

signed or written document produced.

Section 68 and 69
Section 68 -- Proof of execution of document required by law to be attested.
●​ Section 17 -- registration of document with attestation

65
 ●​ If doc is required by law to be attested -- it shall not be used as evidence unless
1 attesting witness has been produced to the court to establish the existence of
such document
●​ Proof by attestation -- witness to testify attestation
●​ At least 1 attesting witness.
●​ Not being a WILL -- as its under Indian Registration Act.
Section 69 -- Proof where no attesting witness found.
●​ If no such attesting witness can be found, or if the document purports to have
been executed in the United Kingdom, it must be proved that the attestation of
one attesting witness at least is in his handwriting, and that the signature of the
person executing the document is in the hand writing of that person.

Section 70 to 72

Public document -- s.74+76+78 (6 marker)

[Link]
ce-act-1872/
●​ Public documents are those records that are checked by an elected official and
then made available for comparison and access to the public at large. Public
records also include statements of the official ability of the public officer and
serve as admissible proof of the truth in civil matters.

Section 74 of the Indian Evidence Act, 1872 entails the following documents
in the category of public documents:
○​ Documents forming the records of the acts and the acts of sovereign
authority.
○​ Documents forming the records of the acts and the acts of tribunals and
official bodies.
○​ Documents forming the records of the acts and the acts of legislative,
public officers, executive, and judiciary of any part of India or the
commonwealth, or a foreign country.
○​ Documents forming the records of the acts and the acts of the public
record which is kept in any State of Private document.
●​ The Statements under section 161 of Cr.P.C. which are recorded by police officers.
●​ The Records which are dealt with by the revenue officers who are related to land
revenue, settlement of land disputes and survey, etc. are public documents.
●​ The authorized copies of the civil court and FIR orders are Public Records as
described in “Royal Sundaram Alliance vs [Link]”

66
 ●​ Section 74(2) of the Indian Evidence Act, 1872 states that the private papers
while made by a person but held as records in public offices are treated as a
public document as specified by the Guwahati High Court in “Masadharali
(1991) 1 Gau LR 197 (DB)” which states that “Public Records are records
needed to be maintained in government units and to perform their duties as
specified by law.
●​ The medical officer is to be prepared with the MLC report to discharge his duties
as a public servant. Therefore, the MLC report is considered as a “public
document” and its contents are admissible as evidence. This was held in “Dalip
Kumar Alias Pinki vs State [ 1995 CriLJ 1742]”

SECTION 75 OF THE INDIAN EVIDENCE ACT, 1872.

●​ all records other than those referred to in section 74 of the Act are private.
●​ Private Records are those records that an individual renders under his / her legal
right, for his / her gain.
●​ Such papers remain in the possession of the person to which the public record
belongs, and are not made available for review by the general public.
●​ Certified copies of private records are not admissible in court until the original
record is provided as evidence.

SECTION 76 OF THE INDIAN EVIDENCE ACT

●​ procedure of receiving authorized copies from the public officer of public records.
It says that if a public record is available to review, it can be given as a copy to
anyone who requests it.
●​ The copy of the official record shall be released on payment of legal costs and a
certificate bearing the following particulars shall be added to it:
○​ A true copy.
○​ The copy containing the date of the issue.
○​ It should contain the name of the officer along with his official title.
○​ It should also contain the seal of the office. (If any)
●​ The copy containing these particulars is only considered as a Certified Copy.

SECTION 77
●​ Section 77 of the Indian Evidence Act, 1872 states that “these authenticated
copies can be made as proof of the contents of the public documents or portions
of the public documents which they appear to be copies of.”

67
 ●​ contents of the public records need to be checked as the court, the original copy
of the public record may not need to be brought before the court according to the
provisions of Section 76 of the Indian Evidence Act.
●​ The fundamental premise behind this theory is that court documents cannot be
transferred from their place behind custody to court, suggesting that whether
official information or historical records are called to court, it will be impossible
for us to access public information for the time being.

SECTION 78 -- kinds of public docs

●​ 6 kinds of Public Documents which are given under Section 78 of the Indian
Evidence Act, 1872:
○​ The Central Acts, orders and notifications which are certified by the
concerned departmental heads.
○​ The Proceedings of the Legislatures and Journals of those bodies or the
copies which are required to be printed by the Govt.
○​ The orders, Proclamations and the Regulations are issued by Her Majesty
or Privy Council which are done by the copies of the extracts of the
Gazette.
○​ The acts of the proceedings or the executives of the legislatures of foreign
countries.
○​ The proceedings of Municipal bodies and the publications of such bodies
which are certified by the legal keeper.
○​ The initial or authorized copy given by the lawful attendant of the
document with a certificate and seal of a notary public, or by the Indian
attorney or diplomatic representative, may prove official records of any
other sort in a foreign country.

Presumption of documents sec.80 onwards

●​ Secs. 79-90 are founded on the maxim amnio prosumuntur rite esse acta which means
that 'all acts are presumed to be rightly done'. But, these presumptions are not
conclusive but only prima facie presumptions and if the documents are incorrect,
evidence can be led to disprove them.
●​ Presumptions under Sees. 79-85 and Sec. 89 are "compulsory" one in the sense that the
judge is bound to raise the presumption in question.
●​ The presumptions under Sees. 86-88 and Sec. 90 are in the "discretion" of the court in
the sense that the court may or may not draw presumptions.

Sec. 79 (Presumption as to Genuineness of Certified Copies)

●​ According to Sec. 79, when a certified copy of a document is produced before the court

68
 as evidence of the original the law presumes that the copy is a genuine reproduction of
the original. However, it is necessary that the copy should have been certified by an
officer of the Central/ State Government (including an officer in State of J&K
authorized by Central Govt.) and the document should be substantially in the form
prescribed by law and should also purport to be executed in that manner.
●​ The court also presumes that the officer who signed or certified the document held the
official character which he claims in such paper. It is not necessary to call such an
officer in evidence.

Sec. 80 (Presumption as to Documents produced as Records of Evidence)

●​ According to Sec. 80, when a person has appeared before a Court of law and has
recorded his testimony or confession (taken in accordance with law and purporting to be
signed by a judge, etc.) and his statement being relevant in a subsequent case, the court
shall presume the genuineness of such certified copy and that such evidence, statement,
etc. was duly recorded.
●​ This section is based on the principle that acts presumed to have been done rightly and
regularly in course of judicial proceedings will be accepted in evidence.

Sec. 81 (Presumption as to Gazettes, Newspapers, Private Acts of

Parliament)
●​ Under Sec. 81, Official Gazettes, newspapers or journals, copies of the private Act of
Parliament of U.K., and other documents kept in accordance with the law are presumed
to be genuine.
●​ In spite of this presumption, it has been held that newspaper reports do not constitute
admissible evidence of their truth. The presumption of genuineness attached under Sec.
81 to a newspaper report cannot be treated as a proof of the facts reported therein
[Laxmi Raj Shetty v State rfT.N. AIR 1988 SC 1274; B. Singh (Dr.) v Union of India
(2004) 3 SCC >63]. The statement of a fact contained in a newspaper is merely a
hearsay' and is, therefore, inadmissible in evidence (Ramswaroop v State of lajasthan
AIR 2002 Raj 27).

Sec. 81A (Presumption as to Gazettes in Electronic Forms)

●​ The Court shall presume the genuineness of every electronic record purporting to be the
Official Gazette, or purporting to be electronic record directed by any law to be kept by
any person in the form required by law and is produced from proper custody.

Sec. 82 (Presumption as to Document admissible in England without

proof of seal or signatures)
●​ Under Sec. 82, when a document is produced before a court which according to the laws
of England or Ireland would be admissible without proof of seal, signature, etc, the
court shall presume that such seal, etc. genuine and also that the person signing the
document held at the time of signing it, the judicial/official character which he claims.

69
Sec. 83 (Presumption as to Maps or Plans)
●​ According to Sec. 83, maps or plans purporting to be made with the authority of the
Central/State Government are presumed to be accurate. But, maps or plans made for the
purpose of any cause must be proved :o be accurate.

Sec. 84 (Presumption as to Collection of Laws and Reports of Decisions)

●​ According to Sec. 84, the Court presumes the genuineness of every book, printed or
published under the authority of the Government of any country, which contains laws of
that country. Similar is the case with a book published by the State which contains
report of decided cases.
●​ It may be noted that Sec. 57 authorizes the Courts to take judicial lotice of the existence
of all laws and statutes in the territory of India ind U.K. Sec. 74 recognizes statutory
records to be 'public records'. Sec. 78 lays down the method of proving the Statutes/Acts
passed by the legislature.

Sec. 85 (Presumption as to Power of Attorney)

●​ A 'power of attorney' is a document by which an agent is given the power to act for his
principal. According to Sec. 85, a power of attorney duly executed before and
authenticated by a notary public or any judge/court/ Indian Consul/Vice-Counsel/
representative of Central Government are presumed to be genuine. The presumption
also applies to documents authenticated by notaries functioning in other countries.

Sec. 85A/85B/85C (Presumption as to Electronic Agreements, Records,

etc.)
●​ Sec. 85A raises a presumption as to 'Electronic Agreements': The Court shall presume
that every electronic record purporting to be an agreement containing the digital
signatures of the parties was so concluded by affixing the digital signature of the parties.
●​ Sec. 85B raises a presumption as to a 'secure electronic record' (that it has not been
altered since the specific point of time to which the secure status relates), and a 'secure
digital signature' (that it is affixed by subscriber with the intention of signing or
approving the electronic record). Except in these cases, there is no presumption relating
to authenticity, etc. of the electronic record or any digital signature. Sec. 85C raises a
presumption as to 'Digital Signature Certificates'.

Sec. 86 (Presumption as to Certified Copies of Foreign Judicial Record)

●​ Under Sec. 86, the court is given the judicial discretion to presume that the certified
copies of foreign judicial records are genuine.

Sec. 87 (Presumption as to Books, Maps and Charts)

●​ According to Sec. 87, when books, maps, charts, etc. are produced before the Court in
proof of a fact in issue or a relevant fact, the Court may presume that any such book,

70
 map, etc. was written or published by the person whose name is shown as that of the
author or publisher and was published at the place where it was published.

Sec. 88 (Presumption as to Telegraphic Messages)

●​ According to Sec. 88, in reference to telegraphic messages, the Court may resume that
the message delivered to the addressee corresponds with the message handed over to the
post office and that the message was meant n the person whom it is purported to be
delivered. But, the court shall not make any presumption as to the sender of the message
since telegraphic messages can be sent by unauthorized persons. The court may treat
telegraphic messages received, as if they were the 'originals' sent. A telegram is a
primary evidence of the fact that the same was delivered to le addressee on the date
indicated therein.

Sec. 88A (Presumption as to Electronic Messages)

●​ The court may presume that an electronic message forwarded by the originator through
an electronic mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but the court
shall not make any resumption as to the person by whom such message was sent.

Sec. 89 (Presumption in relation to Documents Not Produced)

●​ The court shall presume that every document, called for and not produced after notice to
produce, was attested, stamped and executed in ie manner required by law.

SEC. 90 (Presumption as to Documents Thirty Years Old: Ancient

Documents)
●​ Sec 90 lays down that where a document is purported or proved to be 1-year old and is
produced from any custody which the court in particular sc considers proper, the court
may presume that signature and every but of document is in that person's handwriting,
and in case of document tested or executed that it was duly attested or executed by the
person f whom it purports to be attested or executed.
●​ The basis of the section is that as time passes, the executants, vendors, witnesses may
not be available to prove title, etc. The documents which are thirty years old, prove
themselves. It may be noted that the presumption relates to the execution of the
document (signature,
●​ attestation, etc.), in other words, its genuineness, but not to the truth of its contents
(Ramakrishna v Gangadhar AIR 1958 Ori 26). Also, there is no presumption that the
executants had the authority to do or not what the document purports to do. Further, the
presumption can be raised only with reference to original documents and not to copies
thereof.
●​ Explanation to Sec. 90: According to the explanation, "proper custody" means: (a) the
place where the document would normally be; (b) was under the care of a person with
whom it would naturally be; (c) any custody which is proved to have had legitimate
origin; and (d) under the circumstances of the case the custody from which the

71
 instrument is produced is probable.

Sec. 90A (Presumption as to Electronic Records Five Years Old)

●​ 'here any electronic record, purporting or proved to be 5-year old, is produced from a
proper custody, the court may presume that the digital signature which purports to be
the digital signature of any particular :rson was so affixed by him or any person
authorized by him in this shelf

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 WITNESSES - Ch.9 IEA

Introduction:
●​ Witness includes everyone -- person acquainted with facts and circumstances of
the case
●​ Witness is someone who appears in court and gives evidence
●​ CrPC uses witness in a generic term
●​ S.3 IEA -- persons bought before the court and gives evidence/testifies.
●​ Competency of witness = maturity + rational + understands + oath

S.118 → 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.
●​ Anyone who can understand questions and can answer it.
●​ Check competency of witness first → whether he has the moral maturity and legal
obligation
●​ To check if they can be administered oath
○​ Accused cant be administered oath
●​ Child is a competent witness.
○​ Child of age below 12 -- its up to the court to administer oath
○​ Practically its not given
○​ Section 4 Oaths Act not to give oaths to children -- s.7 saves the statement
from being vitiated
●​ Q: might come for competency of witness -- DO MENTION ABOUT
OATH
●​ Child witness:
○​ Surjit Sarkar v WB
○​ Yogesh Singh v Mahabir Singh 2016
■​ Children can be threatened and tutored
■​ Case has to be evaluated carefully
■​ Judges have to create an environment to ensure that children are
not tutored and are comfortable with giving answers

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 ○​ Competent if able to answer questions and gives rational answers

Section 119 → Dumb witness

●​ Witness unable to communicate verbally. –– A witness who is unable to speak
may give his evidence in any other manner in which he can make it
intelligible, as by writing or by signs; but such writing must be written
and the signs made in open Court, evidence so given shall be deemed to be
oral evidence:
○​ Provided that if the witness is unable to communicate verbally, the Court
shall take the assistance of an interpreter or a special educator in
recording the statement, and such statement shall be video graphed.]
●​ Signs and gestures -- interpreter would be appointed by court
●​ Written statements would be oral in this case -- whatever signs made and noted
down by interpreter would be oral evidence
●​ Evidence should be given from their ‘own mouth’ -- thats why no mention of deaf
witnesses
●​ Interpreters would be administered oath as well

Credibility of witness -- s.154,155,145 (not in syllabus)

Compelling witnesses to answers:

●​ Who can't be compelled --
○​ Privileged communications
○​ Statement made before police
○​ Ambassadors, diplomats
○​ Accused
○​ Judges, magistrates
○​ Attorney clients
○​ Official comm, official secrets
○​ Spouses

Judges and Magistrates (s.121 and 125)

●​ No judge or magistrate shall unless upon special order of the court
○​ be compelled to answer any questions as to his own conduct in Court
○​ as to anything which came to his knowledge in Court
●​ Judges and magistrates are immuned for anything that they do in court as a
judicial function -- cant be compelled to testify

74
 ●​ Judge acting as pvt individual then can be called/compelled
●​ What happens in his presence which is beyond/not related his scope of judicial
exercise.
○​ “Not in usual course of trial”
○​ Eg: in forgery case, the accused murders -- then can be compelled
○​ Illustration C - A is accused before the Court of Session of attempting to
murder a police-officer whilst on his trial before B, a Sessions Judge. B
may be examined as to what occurred.
●​ Judges cant be witnesses
○​ Even in own case that they are trying
●​ Can be compelled if asked by his superior officers --
○​ Eg: if statement/confession taken after warning under s.164 and 281 CrPC
■​ Irregularity -- vitiated
■​ Called by superior judge under s.463 CrPC

S.125:
●​ Saves whistle blowers and informants
●​ Information as to commission of offences. ––
○​ No Magistrate or police-officer shall be compelled to say whence he got
any information as to the commission of any offence, and no revenue
officer shall be compelled to say whence he got any information as to the
commission of any offence against the public revenue
●​ In cases of raids asked to disclose source -- saves from being prosecuted
●​ Whistle blowers Act

Privileged Communication
●​ To ensure sanctity of the relationship
●​ Between spouses and attorney-client
●​ Two questions:
○​ What is PC
○​ Something specific to SP or ACP
●​ Why privilege: Trust, preserve sanctity of marriage

Sec.120 -- Parties to civil suit, and their wives or husbands. Husband or wife
of person under criminal trial
●​ – In all civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses. In criminal proceedings against

75
 any person, the husband or wife of such person, respectively, shall be a
competent witness.
●​ MC Varghese case
○​ Husband writes letter to wife and wife’s father reads it -- no spousal
privilege as the wife has not read it first and there was an interjection
●​ Ram Bharose v State of UP 1954
○​ Wife was allowed to give evidence of facts not given to her by the husband
●​ Eg: Husband commits murder gives jewellwey to wife
○​ Wife observes husband coming down -- on this privilege does not apply as
no communication is made
○​ But when the husband tells the wife that he has gotten the jewllery from
murdering then privilege would apply as there is communication
●​ Can be a competent witness for and against each other
●​ Exceptions when privilege is lost under s.122
○​ If they are not up against each other -- lost if no communication is made
and there is observation
○​ If up against each other -- proceedings in which one married person is
prosecuted for any crime committed against the other → then privilege
is lost
○​ Qualified Spousal privilege and not absolute
●​ Spouses can be witnesses but communication made between them is protected
●​ Sec.122:
○​ 122. Communications during marriage.––No person who is or has been
married, shall be compelled to disclose any communication made to him
during marriage by any person to whom he is or has been married; nor
shall he be permitted to disclose any such communication, unless the
person who made it, or his representative in interest, consents, except in
suits between married persons, or proceedings in which one married
person is prosecuted for any crime committed against the other
●​ When does it start and duration:
○​ Starts from the moment they are married
○​ Duration is till death and not until marriage lasts
○​ Cant be compelled and cant be permitted to give against each other
■​ If given then the court would not allow it.
●​ If someone else overhears it then privilege is lost
●​ Voidable marriage:
○​ Unless annulled or held void -- spousal marriage remains till
annulled/voided
○​ If void from beginning then no spousal privilege (irrespective of knowing
or not)

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Attorney Client Privilege (ACP) - s.126: Professional communications.
●​ No barrister, attorney, pleader or vakil, shall at any time be permitted, unless
with his client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment
●​ or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment,
●​ or to disclose any advice given by him to his client in the course and for the
purpose of such employment
●​ Exceptions:
○​ Consent of client should be expressed
○​ Made in furtherance of any illegal purpose
■​ Eg: Client comes and state that he is forging a doc and wants the
attorney to prosecute.
■​ Illustration B: A, a client, says to B, an attorney –– “I wish to
obtain possession of property by the use of a forged deed on which
I request you to sue.” This communication, being made in
furtherance of a criminal purpose, is not protected from
disclosure.
○​ Advocate is appointed and observes the wrong happening-- and client does
a wrong/illegal act -- then privilege doesn't exist

Section 128 and 129

●​ If advocate appears as witness or client appears as witness → brings advocate to
state things and give information -- then it would still exist unless its given
expressly
○​ Might look like implied
●​ S.129 -- No one shall be compelled to disclose to the Court any confidential
communication which has taken place between him and his legal professional
adviser, unless he offers himself as a witness, in which case he may be compelled
to disclose any such communications as may appear to the Court necessary to
be known in order to explain any evidence which he has given, but no others.
○​ Bringing to court would not waive
○​ Info can be disclosed if the court thinks it to be necessary. And the client
wants to disclose it
○​ (not important)
○​ Unless express consent is given then the same would be bound by ACP.

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 Estoppel
●​ Kedarnath v Gori Mhd -- principle of estoppel under contract
○​ Building of mosque case
○​ Cant go back and change the position
○​ When the promisor makes a representation and the promisee acts on it,
the promisor cannot deny the representation made.
●​ Allegaus contria non qudendus est
○​ The person alleging contrary facts shall not be heard
○​ Cant approbate reprobate
○​ Cant say something and say something else again once the other person
has changed their legal position
●​ One person makes the statement and then changes the position then the
statement cant be taken back --
●​ Other sections under TPA
○​ S.35 DOctrine of election
○​ S.41 Ostensible owner
○​ S.43 feeding the grant by estoppel
■​ For defective title when contract is entered into
■​ Once title is obtained then transfer has to occur if contract subsists
■​ Feeding grant under later date
●​ Estoppel is against fact and not against law
●​ Sec. 115
○​ 115. Estoppel.––When one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that
thing.
■​ Illustration A intentionally and falsely leads B to believe that
certain land belongs to A, and thereby induces B to buy and pay
for it. The land afterwards becomes the property of A, and A seeks
to set aside the sale on the ground that, at the time of the sale, he
had no title. He must not be allowed to prove his want of title.
●​ Cant go back against words of the past
●​ Estoppel wont be applicable in cases of fraud
●​ S.115:
○​ Intentionally caused and permitted
■​ Includes ignorant acts -- Picccard v Sears
●​ S.116:

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 ○​ Estoppel of tenants and of licensee of person in possession. ––
No tenant of immovable property, or person claiming through such
tenant, shall, during the continuance of the tenancy, be permitted to deny
that the landlord of such tenant had, at the beginning of the tenancy, a
title to such immovable property; and no person who came upon any
immovable property by the licence of the person in possession there of
shall be permitted to deny that such person had a title to such possession
at the time when such licence was given.
○​ As long as the tenancy agreement is in force, tenant cant deny the
landlord’s title
○​ Extended doctrine of estoppel
○​ Can challenge title on transfer by landlord and if the tenancy agreement
ends/terminated
○​ Ownership can be challenge after the tenancy ends -- not in
retrospect
●​ Estoppel by conduct of parties
●​ Estoppel by law -- Res judicata, s. 300 CrPC and s.40 to 44 IEA
●​ Estoppel does not apply on accused and State but applies on witnesses
●​ Balraj lalta Prasad Mishra v Stanley Parker Jones 2016
○​ Why cant title of owner be challenged
○​ Mutual trust and interest
●​ Tej Bhan Madan v 2nd ADJ & Ors 1988
○​ The owner having a defective title and s.116 applies as there was no fraud
○​ Otherwise if there is fraud then estoppel would not apply
●​ S.117 -- Estoppel of acceptor of bill of exchange, bailee or licensee.
(not important)
○​ No acceptor of a bill of exchange shall be permitted to deny that the
drawer had authority to draw such bill or to endorse it; nor shall any bailee
or licensee be permitted to deny that his bailor or licensor had, at the time
when the bailment or licence commenced, authority to make such
bailment or grant such licence.
○​ Explanation (1). –– The acceptor of a bill of exchange may deny that the
bill was really drawn by the person by whom it purports to have been
drawn.
○​ Explanation (2). –– If a bailee delivers the goods bailed to a person other
than the bailor, he may prove that such person had a right to them as
against the bailor
●​ Estoppel by deed/gift
○​ Cant revoke the deed/gift

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EXCLUSION OF ORAL BY DOCUMENTARY
EVIDENCE
(6 markers)

Sec. 91 -- Evidence of terms of contracts, grants and other

dispositions of property reduced to form of document.
●​ When the terms of a contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document, and in all cases
in which any matter is required by law to be reduced to the form of a document,
no evidence shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter, except the
document itself, or secondary evidence of its contents in cases in
which secondary evidence is admissible under the provisions
hereinbefore contained.
●​ Essentials and terms of contract
○​ Agreement
○​ Offer acceptance
○​ Consideration
○​ Lawful object
○​ Competence
●​ Once terms of contract is reduced into writing then no oral evidence is
allowed
○​ For anything reduced into writing (irrespective it being reduced or not
necessarily under law)
●​ Exception 1.––When a public officer is required by law to be appointed in
writing, and when it is shown that any particular person has acted as such
officer, the writing by which he is appointed need not be proved.
○​ Once appointed -- deemed to be appointed under procedure of law -- valid
unless proven otherwise.
●​ Exception 2.–– Wills admitted to probate in India may be proved by the
probate.
●​ Explanation 2.–– Where there are more originals than one, one original only
need be proved.
●​ Explanation 3. –– The statement, in any document whatever, of a fact other
than the facts referred to in this section, shall not preclude the admission of oral
evidence as to the same fact
○​ If non essentials/terms are to be proven then oral evidence is permitted
●​ Roop Kumar v Mohan Thedani

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 ○​ Rationale → oral evidence defeats the whole purpose of the written and
writing can remove ambiguity and states the true position when compared
to oral evidence
●​ Anything which is not a term of the contract can be proven by oral evidence

Sec.92 -- Exclusion of evidence of oral agreement

●​
●​ Who cant give oral evidence -- parties and their reps
○​ 3rd parties can give oral evidence
●​ Oral evidence is allowed to claim illegality of the document
●​ If doc is very formal than oral evidence is not allowed (wrt proviso 2)
●​ Condition precedent can be proven through oral evidence (proviso 3)
●​ If not required to be writing but was written and subsequent oral agreement to
rescind/alter -- this is distinct -- then oral evidence can be given
●​ Godhra Electric Co Case
Sec. 93 to 99 ( 6 marker)

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S.93 -- exclusion of evidence to explain or amend ambiguity in
the document
●​ 2 types of ambiguity --
○​ Patent -- apparent on the record (clearly visible)
○​ Latent -- hidden (not easily visible) -- made aware of when performance is
done.
●​ Formal document and patent ambiguity → court will presume that the parties
read and knew about the ambiguity and went ahead with the execution and
performance
○​ In this case if we have to give evidence -- oral evidence not allowed -- as
parties knew about it
●​ Latent ambiguity -- made aware about it later on -- court will allow oral evidence
-- as not aware about it and want to rectify the same.
●​ Error apparent on face of record -- no evidence permitted

Section 94 to 95
S.94 Exclusion of evidence against application of document to existing facts.
●​ When language used in a document is plain in itself, and when it applies
accurately to existing facts, evidence may not be given to show that it was not
meant to apply to such facts.

Section 95 -- Evidence as to document unmeaning reference to existing facts

●​ 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.

Section 96. Evidence as to application of language which can apply to one

only of several persons.
●​ hen the facts are such that the language used might have been meant to apply to
any one, 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.

Section 97. Evidence as to application of language to one of two sets of facts,

to neither of which the whole correctly applies.
●​ When the language used applies partly to one set of existing facts, and partly to
another set of existing facts, but the whole of it does not apply correctly to either,
evidence may be given to show to which of the two it was meant to apply.

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Section 98. Evidence as to meaning of illegible characters, etc.
●​ Evidence may be given to show the meaning of illegible or not commonly
intelligible characters, of foreign, obsolete, technical, local and provincial
expressions, of abbreviations and of words used in a peculiar sense.

Section 99. Who may give evidence of agreement varying terms of

document.
●​ Persons who are not parties to a document, or their representatives in interest,
may give evidence of any facts tending to show a contemporaneous agreement
varying the terms of the document.

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