LAW OF EVIDENCE

UNIT-I

 Introduction: Distinction between substantive and

procedural law-

 Salient features of the Indian Evidence Act, 1861. – No Notes

PART – I - RELEVANCY OF FACTS

CHAPTER I – PRELIMINARY - SECTION 3 – INTERPRETATION

CLAUSE
 Facts , Facts in issue and Relevant facts
 Evidence - Circumstantial and direct evidence
 Presumptions – Section 4 – No Notes
 proved, disproved, not proved
 Witness
 Appreciation of evidence.
Chapter II - Relevancy of Facts- (Section 5 -55)
RELEVANCY OF FACTS – Section 5 -16
 Facts connected with facts in issue-
 Doctrine of Res gestae- Sections 6
 Facts which are the occasion, cause or effect of facts in
issue Section 7,
 Motive, preparation and previous or subsequent conduct –
Sec 8
 Facts necessary to explain or introduce relevant facts –
Section 9
 Evidence of Common Intention-Section10
 Relevancy or otherwise irrelevant facts – Section 11
 Facts to prove right or custom - Section13
 Facts concerning state of mind/state of body or bodily
feelings-Sec14
  Facts bearing on question whether act was accidental or
intentional– Sec15
ADMISSION – Section 17 - 31
 Relevancy and admissibility of admissions (Section 17-23)
 privileged admissions- Section 23
 evidentiary value of admissions (Sections 31).

Introduction To Evidence Act

Introduction
 After having enacted Indian Penal Code in 1860, civil as well as
Criminal Procedure Code, colonial rulers enacted the Law of
Evidence in 1872.
 The Act deals with the law evidence applicable to both Civil and
Criminal Procedure Code.
 It extends to whole of India, including the Union territories of
Jammu and Kashmir
 The Indian Evidence Act was drafted by Sir James Fitzjames
Stephen, the Distinguished Jurist and Legislator.
 Came into force on 1 September 1872, after the Evidence Bill
having been passed by the British legislature on 15 March 1872
 In brief, the Act consists of 167 sections divided into 3 Parts
and 11 Chapters.

Scheme of the Evidence Act The plan of the Act is perfectly simple
The Act is divided into three main parts:
(i) What to Prove - Relevancy of Facts
(ii) How to Prove - Proof,
(iii) Whom to Prove - Production and Effect of Evidence

Part I - Relevancy of Facts

Part I - Relevancy of Facts of the Indian Evidence Act is concerned with
defining what facts may be given in evidence in order to prove the fact
in issue. - Chapter II
The Evidence Act specifies five instances of connection which may exist
between the evidential fact and the fact to be proved, in order to make
the former relevant. This leads to the following classification of relevant
facts:
1. Facts connected with the fact to be proved - Sections 6-16
2. Statements about the fact to be proved - Sections 17-39
3. Decisions about the fact to be proved - Sections 40-44
4. Opinions about the fact to be proved - Sections 45-51
5. Character of the persons who are concerned with the fact to be
proved -Sections 52-55
The fact to be proved may be a fact in issue or another relevant fact.
PART II :- Proof
Part II of the Indian Evidence Act deals with the mode of proof. It
consists of four chapters. It deals mainly with:
i. Chapter III - Facts which need not be proved (sections 56 to
58)
ii. Chapter IV - Oral Evidence (sections 59 to 60)
iii. Chapter V - Documentary Evidence (sections 61 to 65B, 67A to
73A);
1. Public Documents (sections 74 to 78);
2. Presumptions a to Documents (sections 79 to 90A)
iv. Chapter VI -Exclusion of Oral or Documentary Evidence. (sec
91 to 100)

PART III - Production and Effect of Evidence.

PART III of the Indian Evidence Act deals with the subject of ‘Production
of Evidence’, This Part contains 3 chapters sections 101 to 167. The
general questions considered in this Part may be Sted as follows:-
 i. Chapter VII - Burden of proof - Whose duty is it to prove a
particular fact?
– Section 101-114A
ii. Chapter VIII - Estoppel - When may a party be precluded from
proving a
particular fact? - Section 115-117
iii. Chapter IX, X & XI – Witness - What are the rules relating to the
examination of
witness?
a. Who is competent to testify? (Competency) Sec 118 - 134
i. What matters may not be testified to at all? (Privilege)
b. How are witnesses to be examined? Sec – 135 -166
i. How may the credit of witnesses be impeached or
confirmed?
c. What is the effect of improper admission or rejection of
evidence? Sec 167

Distinction between procedural law and substantive

law

Laws can be divided into two groups:

 Substantive law, and
 Adjective or procedural law.
 The Substantive Law is the law that confers powers and rights or
imposes duties and liabilities on persons whereas
  the Procedural Law deals with the procedure by which those rights,
duties and liabilities are enforced in a Court of law.
 The Civil Procedure Code (CPC), Criminal Procedure Code (CrPC)
and Evidence Act, are examples of procedural laws and
o the first two codes lay down what court is to be approached
for civil or criminal cases, respectively, the jurisdiction of the
Courts etc and
o the Evidence Act provides for the methodology by which the
cases have to be conducted in the matter of production of
relevant oral, documentary and material evidence and the
examination of witnesses etc.
 The Indian Constitution and the Indian Penal Code (IPC) are
examples of Substantive Laws.
 Thus, while Section 302 of IPC provides for death sentence as one
of the punishments for the offence of murder, it is Section 354,
Clause (5) of CrPC which prescribes the procedure for the
execution of the death sentence i.e., that the convict shall be
hanged by the neck till he is dead.

Substantive laws

 Substantive laws define the rights and responsibilities in civil law

and crimes and punishments in criminal law.
 Substantive laws are codified in legislated statutes or may be
practised or modified through precedent, especially in the common
law system.
 The function of substantive law is to define, create or confer
substantive legal rights or legal status or to impose and define the
nature and extent of legal duties

Nature of substantive laws

Substantive laws deal with those areas of law which establish the rights
and obligations of the individuals and what individuals may or may not
do.

 These laws have independent power to decide any case.

 Substantive laws dictate the legal context of any crime such as
how the case will be handled and what specific punishments to be
given for any crime.
 Statutory laws or precedents in the common law system are
substantive laws.
 Substantive laws deal with the legal relationship between
individuals or the legal relationship between an individual and the
State.
 Substantive laws define and determine both the rights and
obligations of the citizens to be protected by law and the crimes or
wrongs and also their remedies.
 Substantive laws determine the subject matter of litigation
pertaining to the administration of justice.

Procedural laws
 Procedural laws prescribe procedure for the enforcement of rights
and liabilities.
 The efficacy of substantive laws, to a large extent, depends upon
the quality of procedural laws.
 Unless the procedure is simple, expeditious and inexpensive,
substantive laws, however good are bound to fail in achieving their
object and reaching the goal.

Nature of procedural laws

 Procedural laws lay down the ways and means substantive laws
can be enforced.
 They do not carry any independent powers to decide any case.
  These laws are enforced by the Acts of Parliament or implemented
by the government.
 A procedural law should always follow substantive law.

Procedural Law And Substantive Law

Procedural law is thus an adjunct or an accessory to substantive law.
The two branches are complementary to each other and
interdependent, and the interplay between them often conceals what is
substantive law and what is procedural law. It is procedural law which
puts life into substantive law by providing a remedy and implements
the well-known maxim ubi jus ibi remedium.

Instances of substantive law

 The Indian Contract Act, 1872
 The Transfer of Property Act, 1882
 The Industrial Disputes Act, 1947
 The Indian Penal Code 1860

Instances of procedural law

 The Indian Evidence Act, 1872
 The Limitation Act, 1963
 The Code of Civil Procedure, 1908
 The Code of Criminal Procedure 1973
BASIS FOR
COMPARIS SUBSTANTIVE LAW PROCEDURAL LAW
ON
Procedural law is a law
Substantive Law is the law that
that specifies the practice,
states the rights and
Meaning procedure and machinery
obligations of the parties
for the imposition of rights
concerned.
and duties.
BASIS FOR
COMPARIS SUBSTANTIVE LAW PROCEDURAL LAW
ON
Governs How people should behave? How legal case flows?
Concerned Fixation of rights and duties of Ways and means for
with the citizens. imposing substantive law.
Applicable to legal and
Context Applicable to legal context only
non-legal context.
Governance By act of parliament. By statutory law.
Initiation and prosecution
Rights of parties and
Defines of civil and criminal
punishment for wrong doer.
lawsuits.
Related to Matters outside the court Matters inside the court

THE INDIAN EVIDENCE ACT, 1872

Preamble :- WHEREAS it is expedient to consolidate, define and

amend the law of Evidence;
It is hereby enacted as follows: —
PART I
RELEVANCY OF FACTS
CHAPTER I. - PRELIMINARY
1. Short title, extended and commencement –This Act may be
called the Indian Evidence Act, 1872.
Extent - It extends to the whole of India and applies to all judicial
proceedings in or before any Court, including Courts-martial, other than
Courts-martial convened under the Army Act , the Naval Discipline Act ,
the Indian Navy (Discipline) Act, 1934 , the Air Force Act, but not to
affidavits presented to any Court or officer, nor to proceedings before
an arbitrator;
Commencement of Act.–And it shall come into force on the first day
of September, 1872.

THE BHARATIYA SAKSHYA BILL, 2023

to consolidate and to provide for general rules and principles of
evidence for fair trial.
BE it enacted by Parliament in the Seventy-fourth Year of the Republic
of India as follows:—
PART I
CHAPTER I - PRELIMINARY
Section 1 : Short title, application and commencement:-
(1) This Act may be called the Bharatiya Sakshya Adhiniyam, 2023.
(2) It applies to all judicial proceedings in or before any Court, including
Courts-martial, but not to affidavits presented to any Court or officer,
nor to proceedings before an arbitrator.
(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint. –1 st June 2024

APPLICABILITY OF EVIDENCE ACT

The Indian Evidence Act, 1872, applies to all judicial proceedings and it
has no application in
[Link] Proceedings
The rules of evidence are also not applicable to the disciplinary
proceedings. Departmental Proceedings’ against employees in
disciplinary matters, disciplinary proceedings under Article 311 of
Constitution of India for the dismissal, reduction in rank etc of the civil
servants of the Central and State Governments are not judicial
proceedings.

[Link] before Labour Court or Industrial Tribunal

under the Industrial Disputes Act, 1947,
Shankar Chakravarthi v. Britannia Biscuits,” the Supreme
Court held: The Labour Court or Tribunal has to decide the lis between
the parties on the evidence adduced before it. While it may not be hide
bound by the rules prescribed in the Evidence Act it is nonetheless a
quasi-judicial Tribunal proceeding to adjudicate upon a lis between the
parties arrayed before it and must decide the matter on the evidence
produced by the parties before it. It would not be open to it to decide
the lis on any extraneous consideration. Justice, equity and good
conscience will inform its adjudication.

[Link] of Enquiry
Dr. Subramanian Swamy v. Arun Shourie The Commission has the
powers of civil court for the limited purpose as set out in that Section. It
is also treated as a civil court for the purposes of Section 5(4). The
proceedings before the Commission are deemed to be judicial
proceedings within the meaning of Sections 193 and 228 of the Indian
Penal Code, but the Commission appointed under the Commission of
Enquiry 1952 Act in our view is not a Court and making the inquiry of
determination of facts by the Commission is not of judicial character.”

Section 87 (2) of Representation of People Act of 1951 On the

other hand, some of the proceedings relating to election offences etc
under the Representation of People Act of 1951 are of a quasi-criminal
nature,’ and the provisions of the Evidence Act are made applicable to
the proceedings under the Act and they are considered as judicial
proceedings.
Arbitration Proceedings
Section 1 of the Evidence Act clearly provides that the Act does not
apply to “proceedings before an arbitrator”
 Section 10 of the Industrial Disputes Act, 1947 - empowers
the appropriate government to intervene in an industrial dispute
by referring it to a conciliation officer or a board for resolution
 Section 19(1) of the Arbitration and Conciliation Act of
1996 - private arbitrations - provides that the arbitral tribunal
constituted under the Act “shall not be bound by the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872.”
 Section 19(2) the parties are free to agree on the procedure to
be followed by the tribunal and, failing that agreement, the
tribunal under clause (3) may conduct the proceedings in the
manner it considers appropriate.
 Section 19(4) : the power of the arbitral tribunal under sub-
section (3) includes the power to determine the admissibility,
relevance, materiality and weight of any evidence.”
 It is significant that the Act gives total autonomy to the parties in
this respect and does not even require that the procedure agreed
to by the parties or laid down by the arbitrator shall comprise the
principles of natural justice.
 Section 89 (1)of the CPC provides for settlement of disputes by
arbitration by reference by the Court, clause 2(a) provides that
these arbitration proceedings shall be deemed to be proceedings
under the Arbitration and Conciliation Act of 1996. In the light of
what has been stated above, arbitration proceedings under
Section 89 of CPC also are not governed by the Evidence Act.
Courts Martial
Section 1 of the Act states that the Act shall apply to Court-martial,
other than Courts-martial convened under
 The Army Act
  The Naval Discipline Act
 The Indian Navy (Discipline) Act, 1934
 The Air Force Act .
The four enactments referred to are the Acts of the United Kingdom and
the Courts Martial set up under those Acts are not governed by the Act.

However, these Acts have their Indian counterparts in Army Act, 1950,
the Air Force Act, 1950 and the Navy Act, 1957 which were enacted by
the Indian Parliament after the independence, and the Evidence Act
applies to the Courts Martial set up under those Acts, subject to their
other provisions.
 Section 133 of the Army Act, 1950,
 Section 130 of the Navy Act, 1950, and
 Section 132 of Air Force Act, 1950
 provide identically that: “The Indian Evidence Act, 1872, (1 of
1872) shall, subject to the provisions of this Act, apply to all
proceedings before a court-martial.”
 As the three enactments contain detailed provisions regarding
evidence and procedure, to that extent the application of the
Evidence Act will be restricted.

Affidavits
Section 1 of Evidence Act expressly excludes the affidavits from its
purview and provides that the act does not extend to “affidavit
presented in any court”
An affidavit is a sworn statement made by a person as to the truth of
the facts within his knowledge mentioned therein.
 Order 29 of Civil Procedure Code
 Section 297 etc of Criminal Procedure Code
regulate the operation of affidavits.
However, it may be used as evidence
[Link] 18 Rule 4 of CPC that in every case examination in chief
shall be given affidavit and that cross examination and re-examination
shall be by oral evidence recorded by the Court or the Commissioner
appointed for the purpose.

[Link] 296 of CrPC- Evidence of formal character on

affidavit.
(1) The evidence of any person whose evidence is of a formal character
may be given by affidavit and may, subject to all just exceptions, be
read in evidence in any inquiry, trial or other proceeding under this
Code.
(2) The Court may, if it thinks fit, and shall, on the application of
the prosecution or the accused, summon and examine any such person
as to the facts contained in his affidavit.

[Link] IX of The Supreme Court Rules of 2013

1. The Court may at any time, for sufficient reason, order that any
particular fact or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on such
conditions as the Court thinks reasonable:
2. Provided that where it appears to the Court that either party bona
fide desires the production of a witness for cross-examination and
that such witness can be produced, an order shall not be made
authorising the evidence of such witness to be given by affidavit.

Rita Pandit Vs Atul Pandit

Under Section 3 of the Evidence Act oral evidence is defined as
statements made by witnesses in a court of law and as affidavits are
not statements made by witnesses in a court of law, the affidavits were
held to be not evidence.
LEX FORI
The applicability of the law of evidence is Lex fori, that is, law of the
country or place where the cause of action arises and where the
remedy is sought to be enforced, and where the Court conducts the
proceedings. In cases where the evidence is to be taken in one country
to assist the proceedings which are being held in another country, the
Courts generally appoint commission to record the evidence.

Though law of evidence is held to be a consolidatory enactment, it does

not contain the whole of the rules of evidence. There are several
statutes which supplant the omissions in the Evidence Act, 1872 and
supplement its provisions. Some of these are:-
 Bankers Books Evidence Act, 1891 (Act 18 of 1891);
 The Civil Procedure Code, 1908 (Order 26- commissioner)
 The Code of Criminal Procedure, 1973 (Sections 291 and 292)
 The Registration Act, 1908 (Sections 49 and 50)
 The Limitation Act, 1963 (Sections 19 and 20)
 The Transfer of Property Act, 1882 (Sections 59 and 123)
 The Stamp Act, 1899 (Section 35)
 The Indian Succession Act, 1925 (Section 63)
 The Divorce Act, 1889 (Sections 12 and 14) etc.
 Facts - Facts in issue and relevant facts
Section 3
Fact :- Fact means and includes –
(1) anything, state of things, or relation of things, capable of
being perceived
by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a
certain place, is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in
good faith or fraudulently, or uses a particular word in a particular
sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation is a fact.
Fact :-
Fact’ may be defined as:
Clause 1 :- Any thing, state of things, relation of things, that can be
sensed (external fact).
For instance –

 When certain things are placed in a certain way/pattern, it is a

fact.

 When a person sees or hears something, it is a fact.

 The words spoken by a person, is a fact.

Clause 2 :- Any mental condition of which any person is conscious
(internal fact).
For instance–

 The opinion of a person.

 The intentions of a person.
 A person acting in good faith/fraudulently.
 The deliberate choice of a person’s words.
 Feeling a certain sensation at a certain time.
 A person’s reputation.

Clause (1) of the above definition refers to “things” which are capable
of being perceived by human senses like sound, touch, vision, taste and
smell. It refers also to “state” of things and “relation” of things.’
From Illustration

(a) That there are certain objects arranged in a certain order in a

certain place, is a fact.
 it is clear that certain objects are in a certain place relates to the
“state” of things and
 that they are “arranged” in a certain “order” refers to the
“relation” of things.
 The “thing” refers not only to “objects”
  Sound – If evidence refers to fact which could be heard –
 Vision - If evidence refers to fact which could be seen – Seeing
hitting from back
 Taste - If evidence refers to fact which could be taste – Liquor
taste
 Smell - If evidence refers to fact which could be perceived – gas
Smell
 Touch - If evidence refers to fact which could be feel

Classification of Facts
Facts

Physical Psychological Positive

Negative
(Internal) (External)

Physical and Psychological—External and Internal

Clause (1) - is said to refer to physical facts whereas
Clause (2) - refers to psychological facts

While Clause (1) of Section 3 refers to “things” that can be “perceived

by senses”, Clause (2) refers to “mental condition” of which any person
is “conscious”.” This could include other conditions like fear, anger,
hatred, ill-will, knowledge etc. some of which are mentioned in Sections
14 and 15 of the Act.
 Physical facts are sometimes called as external facts and
psychological facts are called as internal facts.
  While material objects, sounds, smells etc. can be felt by others,
psychological facts like intention, ill will, hatred etc can only be felt
by the person who is entertaining those feelings and not by others
unless those internal feelings are manifested through expressions
or actions by that person.

Positive and Negative

Facts are also classified as positive and negative facts. Presence or
existence of a fact is a positive fact and its absence or non-existence is
a negative fact. It is easier to prove the existence of a fact than its non-
existence. For instance, for proving that,
person “A” exists, he has to be produced in a Court of law but to prove
that he does not exist, one has to survey the entire population. As
under Section 106, it is easier prove that A has purchased a train ticket
than that he has not.

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, non-existence, nature or extent of any right, liability, or
disability, asserted or denied in any suit or proceeding, necessarily
follows.
Explanation - Whenever, under the provisions of the law for the time
being in force relating to Civil Procedure, any Court records an issue of
fact, the fact to be asserted or denied in the answer to such issue is a
fact in issue.
ILLUSTRATIONS
A is accused of the murder of B.
At his trial the following facts may be in issue:
That A caused B's death;
That A intended to cause &’s death;
That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B’s death, was, by
reason of unsoundness of mind, incapable of knowing its nature.

Facts in issue—Defined.—“
 “Facts in issue” are facts out of which some right, liability, or
disability, involved in the inquiry, necessarily arises, and upon
which, accordingly, decision must be arrived at.
 Matters which are affirmed by one party to a suit and denied by
the other may be denominated facts in issue
 what facts are in issue in particular cases, is a question to be
determined by the substantive law or in some cases by that
branch of the law of procedure which regulates the law
of pleadings, civil or criminal.

Criminal cases. — As regards criminal cases, the charge constitutes

and includes “facts in issue” - Chapter XVII of the Code of Criminal
Procedure, 1973.
Civil cases.— As regards civil cases, “facts in issue” are determined by
the process of framing issues. Order XIV, rules 1-7, Code of Civil
Procedure.

Relevant Fact
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.(Section 6 - 55)
Relevant fact.—The word “relevant” means that any two facts to
which it is applied are so related to each other that, according to the
common course of events, one, either taken by itself or in connection
with other facts, proves or renders probable the past, present or future
existence or non-existence of the other.
The word “relevant” is used in the Act with two distinct meanings:
a) as admissible
b) as connected
Example - Proof of drunkenness — Blood or urine test is not a must
for Prove the charge of drunkenness. Drunkenness is a question of fact
and smelling of alcohol, unsteady gait, dilation of pupils, incoherent
speech would all be relevant consideration.
The difference between facts in issue and relevant facts

Facts in Issue Relevant Facts

Facts in issue are the main facts Relevant facts are the facts
that are in dispute or controversy that have a logical connection
between the parties, and that or relation with the facts in
determine the outcome of the issue, and that help to prove or
case. They are also called disprove them. They are also
“principal facts” or “factum called “evidentiary facts” or
probandum”. “factum probandi”.

Relevant facts are non-

significant and immaterial in
Facts in issue are significant and
themselves, but they become
material for the legal question or
important when they support or
issue at hand.
weaken the case of either
party.

Facts in issue are the basis of the Relevant facts are part of the
law of evidence, as they define law of evidence, as they specify
what kind of evidence can be the conditions and
given in a court of law. circumstances under which
certain facts are deemed to be
 relevant or irrelevant.

Relevant facts are the

Facts in issue are affirmed by one foundation of the inferences or
party but denied by the other conclusions drawn from the
party, and they need to be proved evidence, and they need to be
or disproved by evidence. logically connected or related
to the facts in issue.

Evidence-Circumstantial and direct evidence

Section 3 :- Evidence :- “Evidence” means and includes —

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.

Meaning of Evidence :-
 The word “evidence”, considered in relation to law, includes all the
legal means, exclusive of mere argument, which tend to prove or
 disprove any matter of fact, the truth of which is submitted to
judicial investigation.
 “Evidence” has been defined to be any matter of fact, the effect,
tendency, or design of which is to produce in the mind a
persuasion, affirmative or dis-affirmative, of the existence of some
other matter of fact.
 “‘Evidence” means the testimony, whether oral, documentary or
real which may be legally received in order to prove or disprove
some fact in dispute.

Section 3 -Evidence”.—The word “evidence” in the Act signifies only

the instruments by means of which relevant facts are brought before
the court.
 The instruments adopted for this purpose are witnesses and
documents.
 Under this definition the evidence is divided in two clauses
o oral and
o documentary.
 Oral evidence :—The oral evidence means statement made by a
witness before a court in relation to matter of fact under inquiry.
Thus the oral evidence is the evidence that is given before the
Court.
 Documentary evidence :—When a document is produced in a
case in support of the case of the party producing it, the document
becomes the documentary evidence in the case. A document is
evidence only when it is produced for the inspection of the Court .
 By the Information Technology Act, 2000, all the electronic records
produced for the inspection of the Court are included in the
document and therefore they are also documentary evidence. .
Hardeep Singh Vs State of Punjab
This definition has been described by the Supreme Court as exhaustive.'
The definition is exhaustive in the sense that every kind of evidence can
be ultimately reduced to the category of either oral evidence or
documentary evidence.”

English Law
According to Stephen the word “evidence” is used in three senses:
1. words uttered, and things exhibited in Court,
2. facts proved by those words or things, which are regarded as
ground word of inference as to other facts not so proved, and
3. relevancy of a particular fact to matter under inquiry.

Indian Law
Under the Indian Evidence Act the term evidence has a more definite
meaning viz., the first one. Evidence thus signifies only the instruments
by means of which relevant facts are brought before the Court.
Evidence is generally divided into three categories:
1. oral or personal,
2. documentary, and
3. material or real.
But the Act only recognizes the first two categories. Real or material
evidence is supplied by material objects for inspection of the Court e.g.,
weapon of offence or stolen property.

In State of Maharashtra Vs Dr. Praful B Desai : the Supreme Court

has held that under section 3 of the Evidence Act, besides oral and
documentary evidence, electronic record can also be admitted as
evidence. The Court further that evidence ruled in criminal matters
could be by way of electronic records, which would also include video-
conferencing. Hence “what is not evidence”:
 1. a confession or the statement of one accused under section 342,
CrPC.
2. demenour of witnesses - section 361 CrPC, Order 18 -rule 12, CPC
3. Local investigation or inspection- O 26, O 18 - CPC; sections 293,
539B, CrPC
4. Facts judicially noticeable without proof - sections 56, 57 of Act
5. Material objects section 60 of Act
In Ramdas v Seate of Maharashtra it has been held that the factual
statements which find place in the first information report but are not
deposed to by the informant or any other witness cannot be treated as
evidence in the case.

Evidence of Examination-in-Chief, Cross-examination and re-

examination : The “evidence” as defined by the Indian Evidence Act is
not to examination-in-chief, cross examination or re-examination of a
witness under section 137. Evidence means and include, all statements
which the court permits or requires to make before it in relation to
matters of fact under enquiry.” Once examination-in chief is conducted,
the statement becomes part of the record.

Types of Evidence
Evidence can be categorised into
 Oral and Documentary evidence
 Primary and Secondary Evidence
 Original and hearsay evidence
 Presumptive or Circumstantial Evidence

Oral and Documentary evidence

Oral evidence :—The oral evidence means statement made by a
witness before a court in relation to matter of fact under inquiry. Thus
the oral evidence is the evidence that is given before the Court.
Documentary evidence :—When a document is produced in a case in
support of the case of the party producing it, the document becomes
the documentary evidence in the case. A document is evidence only
when it is produced for the inspection of the Court .

Primary and Secondary :- It may be oral or documentary.

Primary oral evidence is the evidence of what a witness has
personally seen or heard or gathered by his senses. It is called direct
evidence as opposed to hearsay (section 60) As a rule hearsay evidence
is not admissible, but there are some exceptional cases of hear
evidence which are admissible. Such exceptional cases of hearsay
evidence are examples secondary oral evidence or indirect evidence
(E.g sections 32, 33).

Primary documentary evidence is the evidence of the original

document, (section 62), while secondary documentary evidence is
the evidence of copies etc. of document, which are admissible under
certain circumstances. (section 63 and 65).

The Best Evidence or the original evidence means primary evidence.

The Best
Evidence Rule excludes secondary evidence.

Original and Hearsay or Direct and indirect

Original or Direct :- The word “direct” evidence is used in two senses
 as opposed to “hearsay evidence and
 as opposed to circumstantial evidence.

In the first sense, direct evidence is the evidence of a fact actually

perceived by a witness with his own senses or an opinion held by him,
while hearsay evidence is e.g., what someone else had told the witness
to have seen or heard by him. In section 60 the word “direct” is used
in contradistinction with “hearsay” evidence.

Indirect or hearsay .—English text-writers divide evidence into

1. direct or positive evidence and
2. indirect or circumstantial evidence.

In this sense direct evidence is that which goes expressly to the very
point in question and proves it, if believed, without aid from inference or
deductive reasoning.
e.g., eye-witness to a murder is direct evidence.

Circumstantial evidence does not prove the point in question

directly, but establishes it only by inference.
E.g, - if there is no eye-witness to a murder the fact that
 A had the motive to murder B
 A was seen running away with a blood-stained knife from Bs room
 B was found dead immediately after Bs cries were heard
would be circumstantial evidence as against A,

G Parshwanath v State of Karnataka.

The evidence tendered in a court of law may be either direct or
circumstantial. Evidence is said to be direct if it consists of an eye-
witness on account of the facts in issue in a criminal case. On the other
hand, circumstantial evidence is evidence of relevant facts from
which, one can, by process of intuitive reasoning, infer about the
existence of facts in issue or factum probandum;

Proof of Circumstantial Evidence

Circumstantial evidence means the evidence of circumstances and is
sometimes referred to presumptive evidence:
Eg :- A is charged with the murder of B. At the trial a witness C, on
behalf of the prosecution, gives evidence that he saw A running away
from the murder place, with blood stained knife in his hand, evidence
given by C will be called circumstantial evidence.

In G Parshwanath v State of Karnataka it is stated that in dealing

with circumstantial evidence there is always a danger that conjecture or
suspicion lingering on mind may take place of proof. Suspicion,
however, strong cannot be allowed to take place of proof and,
therefore, the Court has to be watchful and ensure that conjectures and
suspicions do not take place of legal proof. However, it is not derogation
of evidence to say that it is circumstantial. Human agency may be
faulty in expressing picturisation of actual incident, but the
circumstances cannot fail. Therefore, many a times it is aptly said that
“men may tell lies, but circumstances do not”.

 In regard to proof of primary facts, the court has to judge the

evidence and decide whether that evidence proves a particular
fact is proved, the question whether that fact leads to an inference
of guilt of the accused person should be considered.
 In deciding the sufficiency of the circumstantial evidence for the
purpose of conviction, the court has to consider the total
cumulative effect of all the proved facts, each one of which
reinforces the conclusion of guilt and if the combined effect of all
these facts taken together is conclusive in establishing the guilt of
the accused, the conviction would be justified even though it may
be that one or more of these facts by itself or themselves is/are
not decisive.

Essentials of Circumstantial Evidence :

State Vs Shankar Prasad
Four things are essential to prove guilt by circumstantial evidence:
1. That the circumstances from which guilt is established must be
fully proved;
2. That all the facts must be consistent with the hypothesis of guilt of
accused;
3. That the circumstances must be of a conclusive nature and
tendency;
4. That the circumstances should, to a moral certainty, actually
exclude every hypothesis except the one proposed to be proved.

In Bodh Raj v State of Jammu and Kashmir the Supreme Court held
that circumstantial evidence can be the sole basis for a conviction
provided the conditions precedent before Conviction on circumstantial
evidence are fully established. The conditions are:

1. The circumstances from which the conclusion of guilt is to be

drawn should be established. The circumstances concerned “must”
or “should” and not “may” be established.
2. The facts so established should be consistent with the hypothesis
of the guilt of the accused,
3. Circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to
be proved.
5. 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.

Hari obula Reddi Vs State of Andra Pradesh

Proof of motive and opportunity are regarded as two of the crucial tests
of circumstantial evidence. It has been held by the court that when
there is no eye-witness to the occurrence and the prosecution evidence
comprises only circumstantial evidence, the motive and the conduct of
the accused are not only relevant but are of paramount importance in
order to establish his guilt. It is well settled that interested evidence is
not necessarily unreliable evidence.
Value of Circumstantial Evidence
Ordinarily circumstantial evidence cannot be regarded as satisfactory
as direct evidence. Therefore, such evidence must be used with caution.
Incriminating facts and circumstances must be incompatible with
innocence of accused or guilt of any other person. Circumstances from
which an inference as to guilt of accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely connected
with principal fact sought to be inferred from those circumstance.

Corroborative evidence – Section 156 and 157

Corroborative evidence must be taken along with substantive evidence.
When evidence is given of the fact in issue or of a relevant fact, that is
called substantive evidence. There are, however, several statements,
oral and documentary, w ich are not substantive evidence. They are not
admissible by themselves, but become admissible to corroborate or
support, substantive evidence already given. Corroboration can be
received even through circumstantial evidence and not necessarily by
direct evidence. Evidence to corroborate substantive evidence is
permitted under Section 156 and 157.

proved, disproved, not proved

“Proved” - A fact is said t to be proved when, after considering the

matters before it, the Court either believes it to exist, or considers its
non-existence so that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it exists.

“Disproved”—A fact is said to be disproved when, after considering

the matters before it, the Court either believes that it does not exist, or
considers its non-existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it does not exist.

“Not proved” —A fact is said not to be proved when it is neither

proved nor disproved.

Introduction :
 A court after considering the evidence adduced before it and
hearing arguments, comes first to a conclusion as to the existence
or non-existence of the various facts asserted or denied by the
parties and, after finding all the facts, applies the rule of law.
 If all the facts stated in the rule of law are found to exist, the right
or liability which would follow according to the rule of law is
decreed or ordered by the court.
 When a court finds that facts exist, the facts are said to have been
proved; if the court finds they do not exist, they are said to be
disproved.

Proof – Proved
The word “proof” seems properly to mean anything which serves,
immediately or mediately, to convince the mind of the truth or
falsehood of a fact or proposition; and the proofs of matters of fact are
generally our senses, the testimony of witnesses, documents and the
like.
Mathematical Science alone admits of absolute proof. Hence, proof does
not mean proof to rigid mathematical demonstration, because that is
impossible; it must mean evidence Would induce a reasonable man to
come to a conclusion. The proof of fact does not depend upon the
accuracy of statements, but upon the probability of it having existed.
 Hence, the definition of proof speaks of probability.
 Had judicial proof meant absolute proof, it would have excluded
circumstantial evidence.
prudent man ought
State Vs Shakar Prasad
The Judge should act like a prudent man has to use his own judgment
and experience ang cannot be bound by any rule except his own judicial
discretion.'” The cumulative effect of the circumstances established by
evidence and the nature of these circumstances have to be taken into
consideration, and then it is to be judged whether, having regard to the
ordinary course of human conduct, it is safe to presume that the
offence was committed by the accused.

Standard of Proof
The standard of proof evidently is preponderance of probabilities.
Inference of
preponderance of probabilities can be drawn not only from the
materials on record but also by reference to the circumstances upon
which the defendant relies.

Disproved :
The definition of “disproved” is merely a converse proposition of the
definition of “proved”,

Fact ‘not Proved — Disapproved

The Supreme Court has observed that a fact which is not proved does
not necessarily mean it is a false one. Section 3 of the Evidence Act
gives definitions of various words and expressions. The expression
“proved” is followed by the definition of “disapproved”. A fact is said to
be “not proved” when it is neither proved nor disapproved. The word
“disapproved” is normally said to be a false thing. It will thus be seen
that a fact not proved is not necessarily a fact disproved. A fact which is
not proved may be true or may be false. A doubt lingers about its truth.
Merely because it is not proved, one may not jump to the conclusion
that it is disproved. A fact is disproved normally by the person who
claims that an alleged fact is not true. For disproving a fact the burden
is always on the person who alleges that the fact is not true.

Not Proved
It indicates a state of mind between two states of minds (proved and
disproved), when one is unable to decide how the matter precisely
stands.

Difference between evidence in civil and criminal proceedings

Rules of evidence are in general the same in civil and criminal
proceedings, and bind. alike State and citizen, prosecutor and accused,
plaintiff and defendant, counsel and client. There are, however, some
exceptions,
 e.g.
 the doctrine of estoppel applies to civil proceedings only
 the provisions relating to confessions (Sections 24-30), character
of persons appearing before courts (Sections 53, 54), and
incompetence of parties witnesses (Section 120), are peculiar to
criminal proceedings.

Standard of Proof
In a civil case, a Judge of fact must find for the party in whose favour
there is, preponderance of proof, though the evidence is not entirely
free from doubt.
In , criminal case no weight of preponderant evidence is sufficient,
short of that which excludes all reasonable doubt. Unbiased moral
conviction is no sufficient foundation for a verdict of guilty unless it is
based on substantial facts leading to no other reasonable conclusion
than that of guilt.
Circumstantial evidence
In a criminal trial the degree of probability of guilt has got to be very
much higher almost amounting to a certainty—than in a civil
proceeding, and, if there is the slightest reasonable or probable chance
of innocence of an accused, the benefit of it must be given to him.
In cases dependent on circumstantial evidence, the incriminating
facts must be incompatible with the innocence of the accused and
incapable of explanation on any other reasonable hypothesis than that
of his guilt Circumstantial evidence not furnishing conclusive evidence
against an accused, though forming a ground for grave suspicion
against him, cannot sustain a conviction

The onus of proof

 in criminal cases never shifts to the accused, and they are under
no obligation to prove their innocence or adduce evidence in their
defence or make any statement.” There are certain exceptions like
Posco cases.
 In a civil case, it is the duty of the parties to place their case
before the court as they think best, whereas in a criminal case it is
the duty of the court to bring all relevant evidence on the record
and to see that justice is done.”’
Admissibility of evidence
The rules regulating the admissibility of evidence are, in general, the
same in civil as in criminal proceedings. When dealing with the serious
question of the guilt or innocence of persons charged with crime, the
following general rules have been suggested for the guidance of
Tribunals:

1. The onus of proving everything essential to the establishment of

the charge against the accused lies on the prosecutor.
2. The evidence must be such as to exclude, to a moral certainty,
every reasonable doubt of the guilt of the accused.
3. In matters of doubt it is safer to acquit than to condemn, since it is
better that several guilty persons should escape than that one
innocent person should suffer.
4. There must be clear and unequivocal proof of the corpus delicti
(substance of the offence).
5. The hypothesis of delinquency should be consistent with all the
facts proved.”

In Chako v Joseph, the court has held that whether the proceedings
be civil or criminal, the definition of the expression “proved” in section
3 must apply with equal force. The earlier decisions only administer a
rule of caution that in a criminal case a higher degree of probability
must be insisted before disputed questions of facts are held to be
proved. Hence in a criminal trial persuasion of guilt must amount to
such a moral certainty as convinces the minds of the tribunal as
reasonable men beyond all reasonable doubt.

In Razik Ram v Jaswant Singh Chouhan :- the court held that there
is no difference between the general rules of evidence in civil and
criminal cases, and the definition of “proved” in section 3 of the
Evidence Act does not draw a distinction between civil and criminal
cases. Nor does this definition insist on perfect proof because absolute
certainty amounting to demonstration is rarely to be had in the affairs
of life. Nevertheless, the standard of measuring proof prescribed by the
definition is that of a person of prudence and practical good sense.

Section -5 : OF THE RELEVANCY OF FACTS

Section 5 - Evidence may be given of facts in issue and relevant

facts—
Evidence may be given in any suit or proceeding of the existence or
non-existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant, and of no others.

Explanation :- This section shall not enable any person to give

evidence of a fact which he is disentitled to prove by any provision of
the law for the time being in force relating to Civil Procedure.

Introduction :-
Section 5 of the Evidence Act deals with the right to produce evidence
in any suit or proceedings, relating to the existence or non-existence of
every fact in issue, and also to prove such other facts which may be
declared relevant to the fact in issue, by virtue of the provisions
contained in Section 5 to 55. This section restricts the investigation
made by Courts within the hounds prescribed by general convenience.

Evidence of facts in issue and relevant facts only :-

  Section 3 says that one is relevant to another when the one is
connected with the other in any of the ways referred to in this
chapter.
 Relevancy is thus fully explained in sections 6 to 11.
 These Sections enumerate specifically the different instances of
the connection between cause and effect which occur most
frequently in judicial proceedings.
 They are design, worded very widely, and in such a way as to
overlap each other. The object of this Chapter is to point out in
what cases collateral facts are relevan,

Object : The object of this section is to restrict the investigation made

by courts within the bounds prescribed by general convenience.

Principle :-- Of no fact can evidence be given unless it be either a fact

in issue or one declared relevant under the following sections. Thus
evidence of all collateral facts, which are incapable of affording any
reasonable presumption as to the principal matters in dispute, is
excluded to save public time.

Balaji Gunthu Dhule Vs State of Maharashtra :-

Where the entire evidence of eyewitnesses was not accepted by the
High Cour, it was held by Supreme Court that the accused cannot be
convicted for an offence under section 302 IPC merely on the basis of
the post-mortem report. The post-mortem report should be in
corroboration with the evidence of eyewitnesses and cannot be an
evidence sufficient to reach the conclusion for convicting the accused.’

Facts ... declared to be relevant :- The relevant facts are all those
facts which are in the eye of the law so connected with or related to the
facts in issue that they render the latter probable or improbable.
And of no others :-
 The section excludes everything which is not covered by the
purview of some other section which follows in the Statute.
 There must be a specific provision before facts can be treated as
relevant and facts must also be proved as laid down in the Act.
 Anyone who wants to give evidence on a particular fact must show
that it is admissible under someone or other of the following
sections.
 The words “and of no others” impliedly impose a duty on the
court to exclude evidence of irrelevant facts, irrespective of
objections by the parties.
 In criminal proceedings this duty is expressly imposed by the Code
of Criminal Procedure, section 298 - Previous conviction or
acquittal how proved).
 In civil proceedings, see the Code of Civil Procedure, 1908, O XIII,
rule 3. - Rejection of irrelevant or inadmissible documents .
Explanation.—The Explanation appended to the section prohibits a
party from claiming any relief upon facts or documents not stated or
referred to by him in his pleadings. Illustration (b) elucidates the
meaning of the Explanation.

Janak Dulari Devi Vs Kapildeo Rai

When what is pleaded is not proved, or what is stated in the evidence is
contrary to the pleadings, the dictum that no amount of evidence,
howsoever cogent, can be relied upon if it is contrary to the pleadings,
would apply.

Section 57 Admissibility of evidence——The court is to decide the

question of admissibility of evidence. It should be decided as it arises
and should not be reserved until judgment in the case is given. The
moment a witness commences giving evidence which is inadmissible,
he should be stopped by the court. A party objecting to a question must
do so as soon as it is stated and before the answer is given. When an
irrelevant document is tendered an objection should be made at that
rime. If it is not taken in time, it is considered to be waived.

Chimnaji Govind Gidbole Vs Dinakar Govind Gidbole :-

Where no objection is taken in the court of first instance to the
reception of a document in evidence, it is not within the province of the
appellate court to raise or recognise it in appeal.

Nathubhai Vs Chhotubhai
The Gujarat High Court has held that an objection that a piece of
evidence which was considered by the trial judge was irrelevant can be
taken for the first time in appeal. If the evidence is irrelevant the
consent of parties cannot make it relevant.’
Magraj Patodia Vs R.K Brila
The fact that a document was procured by improper or even illegal
means will not be a bar to its admissibility if it is relevant and its
genuineness proved. But while examining the proof given as to its
genuineness the circumstances under which it came to be produced
into court have to be taken into consideration.

Conclusion :-- This section excludes everything not covered by the

purview of some other succeeding section. The last four words of the
section “and of no others” preclude a party from proving any facts
not in issue or not declared relevant by any of the remaining sections of
this Chapter. To establish the relevancy of any fact, it must be shown
that it is a fact in issue or fact such as is declared to be relevant.
Evidence is to be confined strictly to the issue.
 Section 6: Relevancy of facts forming part of same transaction

Section 6: Relevancy of facts forming part of same

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

Introduction : -
Under the definition of the word “ Relevant” in Section 3 – one fact said
to be relevant to another when one is connected with the other in any
of the way referred to in the provisions of the Act relating to the
relevancy of fact. These particular ways which the law regards as
relevancy have been described in Sections 6 to 55 which deal with
relevant facts. Facts not themselves in issue may affect the probability
of the existence of facts Issue and be used as the foundation of
inferences respecting them: such facts described in the Act as relevant
facts, Facts relevant to the issue have been arranged in the following
manner: which are

i. Things Connected with the fact in issue as part of the same

transaction, occasion, cause, effect, motive, conduct - Sections 6
to 16
ii. Things said viz., admissions, confessions -Sections 17 to 31
iii. Statements by persons who cannot be called as witnesses -
Sections 32- 33
iv. Statements under special circumstances -Sections 34 and 35
v. Decisions in other cases - Sections 40 to 44
vi. Opinions about fact in issue - Sections 45 to 51
vii. Character and reputation of parties concerned - Sections 52 to
55
Doctrine of Res Gestae.
res gestae – is a Latin word which means a fact, a transaction, an event,
things done: the subject matter. The expression Res-gestae means as
including everything that may be fairly considered and incident of the
evet under discussion.

Section 6 admits those facts the admissibility of which comes under

the technical expression res gestae i.e. the things done including words
spoken in the course of a transaction, but such facts must "form part of
the same transaction".

 If facts form part of the transaction which is the subject of enquiry,

manifestly evidence of them ought not to be excluded.
 The question is whether they do form part or are too remote to be
considered really part of the transaction before the court.
 A transaction is a group of facts so connected together as to be
referred to by a single legal name, as a crime, a contract, a wrong
or any other subject of inquiry which may be in issue.
 Roughly, a transaction may be described as any physical act, or a
series of connected physical acts, together with the words
accompanying such act or acts.
 Every fact which is part of the same transaction as the fact in issue
is deemed to be relevant to the fact in issue although it may not
be actually in issue, and although if it were not part of the same
transaction it might be excluded as hearsay.
 Some times the acts done at different places and times may form
part of the same transaction. Thus, a transaction consists both of
the physical acts and the words accompanying such physical acts,
whether spoken by the person doing such acts, by the person to
 whom they were done or any other person or persons. Such words
are admissible in evidence as parts of a transaction

Nasir Din Vs Crown

Illustrations
a. A is accused of the murder of B by beating him. Whatever was said
or done by A or B or the by-standers at the beating, or so shortly
before or after it as to form part of the transaction, is a relevant
The expression standers used in illustration (a) means the persons who
are present at the time of the occurrence and not those who gather on
the spot after the occurrence. The remarks made by persons other than
the eye-witnesses could only he hearsay because they must have
picked up the news from others.

Scope and Ambit of Section 6

 The purpose of incorporating section 6 in the Act is to complete
the missing links in the chain of evidence of the solitary witness.
 It is an exception to the general rule where under the hearsay
evidence becomes admissible.
 But for bringing such hearsay evidence within the provisions of
section 6, what is required to be established is that
o it must be almost coexistent with the acts and
o there should not be an interval which would allow fabrication.
 The statements sought to be admitted, therefore, as forming part
of res gestae, mut have been made contemporaneously with the
acts or immediately thereafter.

Javed Akam v State of Chhattisgarh, the Supreme Court has held

that the section 6 of the Evidence Act is an exception to the rule of
evidence that hearsay evidence is not admissible. The test for applying
the rule of res gestae is that the statement should be spontaneous and
should form part of the same transaction ruling out any possibility of
concoction.

Parts of the same Transaction

 Where the transaction consists of different acts, in order that the
chain of such acts may constitute the same transaction they must
be connected together by proximity of time, proximity or unity of
place, continuity of action and community of purpose or design.
 Where several offences form one transaction the one is evidence
to show the character of other.
 Thus, when robbery and murder form one transaction, possession
of stolen property which is presumptive evidence of robbery would
be presumptive evidence of murder as well.

Statements Admissible as Part of the Transaction

Two requisites are necessary for reception of statements as part of
same transaction, viz,
 statements must be made during the transaction and
 they must be spontaneous so as to exclude the possibility of being
fabricated. First Information Report under section 154, of the Cr.
P.C. may be admissible as part of res gestae
 Acts and declarations accompanying the transaction or the facts in
issue are treated as res geszse and admitted in evidence. 25

Statements under Section 6 are Admitted as Original Evidence

They are not hearsay because "in such cases it is the act which creates
the hearsay and not the hearsay the act". It is submitted that these
statements are substantive evidence, ie, evidence of the truth of the
matter stated. Such statements may be also admissible under sections
157 or 155 to corroborate or contradict the testimony of the matter.
A statement of a person who had come to the spot of murder after the
occurrence to the effect that the persons present there were saying
that the accused had killed the deceased without indicating that they
had actually witnessed the murder, is only hearsay and cannot be
admissible under section 6.

The following conditions have to be fulfilled in order to make

statements admissible under Section 6 of the Indian Evidence Act,
1872.
i. The statement must explain, elucidate or characterise the incident
in some manner.
ii. The statement must be spontaneous or contemporaneous, but not
a mere narrative of a completed past event.
iii. The statement must be a statement of fact but not a statement of
opinion.
iv. The statement must have been made either by a participant in the
transaction or by a person who has himself witnessed the
transaction; and
v. The statement made by the bystander would be relevant only if it
is shown that he was present at the time of the happening of the
event and witnessed the same.

Gajjan Singh Vs State of Haryana

Where rape was committed on a married woman and the prosecutor
immediately narrated the entire occurrence to the mother-in-law
evidence was admissible under section 6 of the Evidence Act.

Facts forming part of same transaction:-

Chain Mahto Vs Emperor
Statements of bystanders witnessing a transaction are relevant if they
are made while the transaction is in progress or so shortly before or
after it as to form part of the same transaction.
Where A was tried for the murder of B by shooting him, the facts that
the person, then in the room, saw a man with gun in his hand pass a
window opening into the room where B was shot and thereupon
exclaimed "there's Butcher” (a name by which A was known) where
held relevant.
Bhairon Singh Vs State of MP
A husband, his e the murder of his wife. She cried out for help as soon
as she was pushed into the mom. Her children who were playing
outside in the verandah exclaimed at the same me that their mother
was being killed. The exclamations of children were receive through the
evidence of persons who heard them.

Rutten Vs Regina the caller a woman giving her address in distress

and requested the telephone operator to connect the police but call
could not be completed as it ended suddenly. When the police came to
her house, she was found there dead. Her husband, who was charged of
killing her by shooting, took the plea that the fire was accidental but it
was held to be intentional on the basis of her call to the operator to
connect the police as no victim of accident would think of getting the
police prior to the incident. The call by the woman a whatever she said
was held to be res gestae.
In R v. Fowkes, was charged with the murder of 'X' by shooting him
through a window ‘A' and ‘B' were sitting in the room with 'X', when a
face appeared at the window and the fatal shot was fired. Both 'A' and
‘B' were allowed to depose that immediately before the shot was fired,
'A' shouted "There's F". This has been admitted under ‘res gestae’.

In Uttam Singh v. State of M.P the child witness was steeping with
the deceased father at the relevant time of incident and was awakened
by the sound of the fatal blow of the axe on the neck of the deceased.
Seeing it, the child shouted to his mother for help by naming the
accused as assailant. On hearing the sound the mother and sisters of
the child and other witnesses gathered at spot. it has been held that the
evidence is admissible as a part of the same transaction as res gestae
as such shout being natural and probable in the facts of the case.

In Rabindra Nath Moorthy Naidu v. State of West Bengal,

Rabindra Nath Moorthy Naidu stabbed Paresh Pramanik and escaped.
Some people collected there and the victim narrated about the incident
and about the accused. It has been held that the evidence pe admitted
as part of res gestae as the victim has spoken while the knife was still
stuck on his back to people collected at the scene is a continuity of his
conduct which is continuity of the incident itself.

Facts not so connected as to form part of same

transaction

R. v. Bedingfied :- a woman with a throat cut came out of the room

sudden y and said to the witness “Aunt see what Bedingfied has done
to me. C.J. Cockburn held it to be not admissible as res gestae because
the statement was made after the incident was over.

R Vs Christie :- there was an indecent assault ‘upon a young boy.

Soon after the incident the boy made certain statements to his mother
narrating the offence and the man was assaulted him. Lord Atkinson
has held that the evidence of the statement was inadmissible because
the statement made by the boy was so separated by time and
circumstances from the actual commission of the crime
Vasa Chandra Sekar Vs Ponna Satyanarayana
In a case involving murder by a man of his wife and daughter, evidence
was offered to show that the wife's father received a phone call from
the father of the accused that his son had caused the deaths in
question. This was held to be not relevant under section 6 because
there was nothing to show that the communication had taken place
soon after the crime as the form a part of the same transaction."

Bhairon Singh Vs State of MP

The prosecution of the husband was for torture of his wife for non-
fulfilment of his demand. The witnesses testified to what the deceased
told them about torture and harassment. The court said such deposition
had no connection with any of the circumstances of the transaction
which resulted in her death. Their evidence was also not admissible
under section 32.

In Gulam v. R, where the raped girl made a statement to her mother

after the rape when the culprit had gone away and the girl came home
from the scene of occurrence, it was held not to be admissible under
Section 6 as part of the transaction.
 Section 7 :- Facts which are the occasion, cause or
effect of facts in issue

Section 7 : Facts which are the occasion, cause or effect of

facts in issue —Facts Which are the occasion, cause, or effect,
immediate 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 for their occurrence or transaction are
relevant.

Introduction :-
Section 6 dealt with facts which formed part of the same transaction.
Section 7 embraces a larger area and provides for the admission of
several classes of facts, which though not possibly forming part of the
transaction are yet connected with it in particular modes and are hence
relevant, when the transaction itself is under inquiry. These five modes
of connection are:

i. The facts as being occasion of the fact in issue or of relevant fact.

ii. The facts as being cause of the fact in issue or of relevant fact
iii. Facts as being their effect.
iv. Facts as giving opportunity for their occurrence.
v. Facts as constituting the state or things under which they
happeneg,

Section 7 based on induction.—Under Section 7, the relevancy of

facts is to be determined by human experience. What has been the
effect of a particular cause and what has been a constant cause of a
particular effect in the past, will be the same in future.
Examples - If a living being is cut into pieces on the ground there shall
be bleeding and the blood will be found on the place of occurrence. By
his induction whenever a man finds human blood in a great quantity on
a particular place he may reasonably net that some living being was cut
into pieces or at least severely injured there.

Occasion, and opportunity. The elements are so connected together

that it would be convenient to take them together,
J was tried for the murder of K. The dead body of K was found near a
bridge in a gunny bag. At the trial the facts proved were :
(i) the wife of K deposited all her ornaments with J ;
(ii) J took all the money that K had for purchasing a truck that he
never purchased
(iii) K demanded money from J on the 17th May, 2024
(iv) J asked K to come on the 19th May ;
(v) K came and stayed with J on the 19th night,
of these facts, the facts of J being indebted to K and K's demand for
money are relevant as the cause of murder and the fact that K went
and stayed there and slept are relevant as the occasion of murder and
also opportunity for it.

Opportunity for their Occurrence

No deed can be done without an opportunity. Exclusive opportunity
need not be show® The proof of opportunity negatives a number of
hypothesis and reduces the number of persons who might have possibly
committed the crime to a limited number. However, mere opportunity is
not enough. There can be no crime without opportunity, but there is a
wide gulf to be bridged over by evidence between opportunity and
commission.

Cause and Effect

The falling of trees in large numbers in locality indicates the existence
of a storm previously ; the tanks reservoirs found filled with water and
rivers found in spate, indicate that there has been heavy rainfall. These
are illustrations of inferences from effect back to the existence of cause
Sidik Sumar Vs Emperor - Foot prints.
The evidence that there were footprints, at or near the scene of offence,
of the accused is relevant as the effect of the going of the accused that
way
Chandra Gopal Vs state - Injuries of accused.
The facts that the accused of a riot case had injuries on their person is
relevant to show that they took part in the riot—this is relevant as the
effect of taking part in riot.
Nirmala Vs Ashu Ram -Tape Recorded Statement
Tape recorded statement being a recorded fact regarding a relevant
conversation is admissible under this section.”
Vikram Singh v State of Punjab
If an electronic record is used as primary evidence the same is
admissible in evidence, without compliance with the conditions in
section 65B. The tape recorded conversation was not secondary
evidence which required certificate under section 65B, since it was the
original cassette by which ransom call was tape-recorded. The
conversation recorded by the complainant contains ransom calls was
relevant under section 7.
Manish Dixit Vs State of Rajasthan - Circumstantial Evidence of
Bloodstains
Bloodstain was noted by the Forensic Science Laboratory on the
motorcycle seized by the police pursuant to the information received
from A-1 (Sharad Dhakar) during his interrogation. The said bloodstain
was found to be of “O” group (The blood group of the deceased was
also “O”). This circumstance though established by the prosecution is
not decisive enough to point to the involvement of that accused in the
murder of the deceased. If there were other circumstances, apart from
recovery of some jewellery belonging to the deceased from the
possession of this accused, perhaps the aforesaid circumstance relating
to the bloodstain found on the motorcycle would have lent support to
an inference against him.

Section 8 - Motive, preparation and previous or subsequent

conduct
Section 8 :- Motive, preparation and previous or subsequent
conduct.—Any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue relevant fact.

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

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.

Principle :- Under this section the motive which induces a party to do

an act, or the preparation which he makes in its commission, will be
taken into account. Evidence of motive or preparation becomes
important when a case depends upon circumstantial evidence only.

 Section 8 is wider than section 7 in its application. Under this

section motive, preparation and conduct are declared to be
relevant facts.
 Motive - There is hardly any action without a motive and it is said
that an action without a motive would be an effect without a
cause. Often it is important to find out whether the accused had
any interest or motive in committing the offence. Hence, motive is
relevant.
 Preparation is also relevant. Premeditated action must
necessarily be preceded not only by impelling motives but also by
appropriate preparation. Preparation is an instance of previous
conduct of the party which influences the facts in issue or relevant
facts.
 Evidence of motive or preparation assumes significance when a
case depends upon circumstantial evidence only.
  Conduct previous or subsequent of either of the party or his agent
is also relevant, under this section.

Motive :- Motive is that which moves a man to do a particular act.

There can be no action without a motive, which must exist for every
voluntary act.
 Motive in the correct sense is the emotion supposed to have led to
the act. It is often proved by the conduct of a person.
 The ordinary feelings, passions and propensities under which
parties act, are facts known by observation and experience; and
they are so uniform in their operation that a conclusion may be
safely drawn that, if a party acts in a particular manner, he does
so under the influence of a particular motive’.
 Previous threats, previous altercations, or previous litigations
between parties are admitted to show motive.
Illustrations (a) And (b) refer to Motive
(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.

(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.
 Illustration (a) refers to a motive of a crime.
 Illustration (b) refers to motive in a civil matter

State of Punjab Vs Sucha Singh

The mere existence of motive is by itself not an incriminating
circumstance. Motive, however strong, cannot take place of proof.
The motive for commission of an offence is of particular importance
 only in cases of purely circumstantial evidence for, in such cases,
motive itself would be a circumstance which the court would have to
consider. However, absence of motive is not sufficient to disregard
circumstantial evidence.

Preparation :- Preparation consists in devising or arranging the means

or measures necessary for the commission of a crime. Preparations on
the part of the accused
 to accomplish the crime charged, or
 to prevent its discovery, or
 to aid his escape, or
 to avert suspicion from himself
are relevant on the question of his guilt.

Illustrations (c) And (d) refer to preparation.

(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.

(d) The question is, whether a certain document is the will of A. The
facts that, not long before, the date of the alleged will, A made inquiry
into matters to which the provisions of the alleged will relate; that he
consulted vakils in reference to making the will, and that he caused
drafts of other wills to be prepared, of which he did not approve, are
relevant.
 Illustration (c) refers to a preparation of a crime.
 Illustration (d) refers to preparation in a civil matter.

Premeditated crime must necessarily be preceded by appropriate

preparation. The common instances are of possession of poison or
lethal weapons, etc., without reasonable excuse. Intention, preparation
and attempt to do an offence are the three stages preceding the
commission of a crime.
Mere preparation is not punishable under the Penal Code except under
certain special circumstances
 Sections 122 (collecting arms etc.) with the intention of waging
war against Government of India
 Section 26 (committing depredation, destroying territories of
power at peace with the Government of India
 Sections 233-235 and 257, IPC making or selling or being in
possession of instruments for counterfeiting of coins or
Government stamps;
 Sections 242, 243, 254 and 266, IPC possession of counterfeit
coins, Government stamps, false weigh, or measures;
 Section 344, IPC making preparation to commit dacoity are
punishable.!

Conduct of any party :- The conduct of any party or his agent in

reference, whether previous or subsequent must have reference to the
suit or proceeding or to facts in issue or facts relevant to the suit or
proceeding and must influence or be influenced by facts in issue or
relevant facts. Conduct made relevant by section 8 is conduct which is
directly and immediately influenced by a fact in issue or relevant fact.

 The production of article, by an accused person is relevant as

evidence of conduct.
 Statements accompanying or explaining conduct are also relevant
as part of the conduct itself.
 Conversation, over telephone for settling details for passing bribe-
money was recorded by secret instruments.
This was held to be evidence of conduct.
Under section 8(2) the following facts are relevant in a criminal
inquiry:
a) Accused’s conduct shortly before or after the commission of
offence which influenced or was influenced by his commission;
b) Statements made by him which accompany and explain such
conduct; and
c) Statement made to him or in his presence and hearing which
affects his conduct.

Illustration
(d) The question is, whether a certain document is the will of A. The
facts that, not long before, the date of the alleged will, A made inquiry
into matters to which the provisions of the alleged will relate; that he
consulted vakils in reference to making the will, and that he caused
drafts of other wills to be prepared, of which he did not approve, are
relevant.

(e) A is accused of a crime. The facts that, either before, or at the time
of, or after the alleged crime, A provided evidence which would tend to
give to the facts of the case an appearance favourable to himself, or
that he destroyed or concealed evidence, or prevented the presence or
procured the absence of persons who might have been witnesses, or
suborned persons to give false evidence respecting it, are relevant.

 Illustration (d) shows previous conduct;

 Illustration (e) is an example of previous and subsequent conduct
of accused

Explanation 1 :- Conduct accompanying or explaining

statements:- Under section 8 conduct of a party is relevant.
According to the first explanation the word conduct does not include
statements unless those statements accompany and explain acts other
than statements. Mere statements as distinguished from acts do not
constitute conduct. Conduct may include statements as well as acts.

Queen Empress Vs Abdullah :-

Statements accompanying facts are part of the res gestae just as are
the acts themselves. They are known as verbal acts. There may be a
case in which a person whose conduct is in dispute mixes up together
action and statement. For instance a person is seen running down a
street in a wounded condition calling out the name of the assailant and
the circumstances under which injuries were inflicted. Here what the
person says and what he does may be proved as a whole.

Explanation 2 - Statements Affecting Conduct

The conduct must be such as has a close nexus with a fact in issue or a
relevant fact.
 The conduct of the accused in this case pointing out to the police
the place of hiding the weapon of offence or articles connected
with it was held to be a relevant conduct whether it was
contemporaneous with the event or otherwise.’
 The exhumation of the dead body from the place of burial as
pointed out by the accused was held be a relevant conduct even if
it was not covered by section 27 because no statemen, was
recorded.
 The name and address of the shop had become known to the
police from the packets of seized articles; this fact was pointed out
by the accused; it was nor relevant under section 27.

Hadu Vs State :- Silence Amounting to Conduct

In some cases silence or keeping quiet may amount to conduct. An
accused has a right to remain silent if he wishes. Hence no presumption
of guilt arises by reason of the silence of the accused. Thus, the maxim
qui faci consentire (silence gives consent) must be applied very
cautiously.

Manish Dixit Vs State of Rajasthan :-

Concatenation (a series of interconnected things)of Full Chain
The Supreme Court has observed that absconding by itself need not
necessarily lead to an inference of culpable mind against the
absconder. The disappearance of A-2 from the locality was
contemporaneous with the apprehension of A-1. Even after resorting to
legal measures to trace out A-2 he remained underground until he was
caught unawares.

Section 9 - Facts necessary to explain or introduce relevant

facts

Section 9. 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
anything or person whose identity is relevant, or fix the time or place
at which any fact in issue or relevant fact happened, or which show
the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.

Principle
Section 7 deals with the admissibility of facts which are the occasion,
cause or effect of facts in issue. Section 9, on the other hand, is
concerned with the admissibility of facts which are necessary to explain
a fact in issue or relevant fact. The section deals with that kind of
evidence which if considered separately and distinct from other
evidence would be irrelevant; but if it is taken into consideration in
connection with some other facts, proved in the case it explains and
throws light upon them.
The section makes relevant facts:
a. which are necessary to explain or introduce a fact in issue or
relevant fact; or
b. which support or rebut an inference suggested by a fact in issue or
relevant fact; or
c. which establish the identity of a person or a thing whose identity is
relevant;
d. which fix the time or place at which any fact in issue or relevant
fact has occurred; or
e. which show the relations of the parties by whom any fact in issue
or relevant fact was transacted, in ‘so far as they are necessary for
that purpose.
This section makes admissible facts which are necessary to explain or
introduce relevant facts, such as place, name, date, identity of parties,
circumstances and relations of the parties. Thus, evidence of other
offences committed by the accused is admitted in order to establish his
identity or to corroborate the testimony of a witness in a material
particular. Identity can also be established by technical evidence like
medical report

Introductory or Explanatory Facts

It would be practically impossible, in conducting a suit or proceeding to
jump directly on the main fact. A judge seeks for some introductory
matter, just as one hearing the main incident of a story would like to
know the circumstances leading up to it and the result that follow it.
Facts which are introductory of a relevant fact are often of a great help
in understanding the real nature of the transaction, and in supplying the
missing.

Before questioning a witness, as to the main fact, it is generally

desirable and some time Necessary to question him about some
preliminary facts. Such preliminary facts may have no bearing on the
facts in issue; but since they lead to the main fact they are made
admissible under this section so as to make the main fact more easily
comprehensible
(a) The question is, whether a given document is the will of A.
 The state of A’s property and of his family at the date of the
alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that

the matter alleged to be libellous is true.
 The position and relations of the parties at the time when the libel
was published may be relevant facts as introductory to the facts
in issue.
 The particulars of a dispute between A and B about a matter
unconnected with the alleged libel are irrelevant, though the fact
that there was a dispute may be relevant if it affected the
relations between A and B.
(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.

(d) A sues B for inducing C to break a contract of service made by him

with A.
 C, on leaving A’s service, says to A –– “I am leaving you because B
has made me a better offer.”
 This statement is a relevant fact as explanatory of C’s conduct,
which is relevant as a fact in issue.

 Illustrations (a) and (b) are examples of introductory fact.

 Illustrations (d) and (e) indicate that explanatory statements

are admitted under this section irrespective of the fact whether the
person against whom it is made heard it or was present when it was
made.
Facts which Support or Rebut an Inference Suggested by a Fact
in Issue or Relevant Fact
This part of the section is merely a paraphrase of section 11. Sections 9
and 11 read with section 21 amply justify the Court In admitting all
previous statements made by the accused which had bearing upon his
guilt, subject to sections 25 and 26 and provided they are Not self-
serving. These sections are not controlled by the Criminal Procedure
Code. They ate corroborative evidence under section 157.

 Market rate and rental value of neighboring lands are admissible

to determine the value of the land that is being acquired.

Facts Establishing Identity of thing or Person

Questions as to the identity may arise in two ways:
1. a person’s identity with an ascertained person as in the well-known
Bhowal Sanyasi case, or
2. his identity as the doer of a particular act,
a. E.g., murder in a criminal trial or
b. executing a will in a civil proceeding

As per section 9 of the Evidence Act, facts which establish the identity
of an accused are relevant. Identification parade belongs to
investigation stage and if adequate precautions are ensured, the
evidence with regard to the test identification parade may be used by
the court for the purpose of corroboration. The purpose of test
identification is to test and strengthen trustworthiness of the
substantive evidence of a witness in court. It is for this reason that test
identification parade is held under the supervision of a Magistrate to
eliminate any suspicion or unfairness and to reduce the chances of
testimonial error as the Magistrate is expected to take all possible
precautions.

Identity of any thing —A superimposed photograph of the deceased

of the skeleton of a human body was held admissible by the Supreme
Court to prove the fact that the skeleton was that of the deceased.

Varun Chaudhary Vs State of Rajasthan :- Identity of Motor

Vehicle.—In order to prove that the recovered motor cycle was used in
the offence, the prosecution has to show that the tyre marks found the
place of offence were that of the recovered motor cycle. For that
purpose the tyre marks have to be lifted from the place and compared
with the marks of the recovered motor cycle.

Identity of Accused: Test Identification (TT) Parade.—One of the

methods of establishing the identity of the accused is “test
identification parade”. Its evidence is received under this section. The
idea of the parade is to test the veracity of witness on the question of
his capability to identify, from among several persons made to stand in
a queue, an unknown person whom the witness had seen at the time of
the occurrence.” It is only an aid to investigation. The practice is not
borne out

Identity of Person to Establish Parentage

In the case of Nirmaljit Kaur v State of Punjab, the dispute between
the parties related to the identity of the child. According to the
petitioner the child was not his, whereas the respondent contended that
the child was his daughter. After hearing both the parties court directed
that the issue should be resolved scientifically, and DNA test will be
better for the same.

Identification by Photograph
Lakshmi Rai Shetty Vs State of Tamil Nadu It has been held by the
Supreme Court that in certain circumstances identification of the
accused through photograph can serve the same purpose as a test
identification parade. The Apex Court recognised this possibility by
looking at the practices of Interpol and other crime detecting agencies
for identification of criminals engaged in drug trafficking, narcotics and
other international crimes. In such cases it is a common practice to
resort to identification through photographs.

Test Identification Parades of Suspects

 The identification tests do not constitute substantive evidence.
 They are primarily meant for the purpose of helping the
investigating agency with an assurance that their progress with
investigation into the offence is proceeding on the right lines.
 The identification can only be used as corroborative of the
statement in court.
 The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses.
 The whole idea of a test identification parade is that witnesses who
claim to have seen the culprits at the time of occurrence are to
identify them from the midst of other persons without any aid or
any other source, The test is done to check upon their veracity.
 In other words, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the
witnesses based upon first impression and also to enable the
prosecution to decide whether all or any of them could be cited as
eye-witnesses of the crime.
 It is desirable that a test identification parade should be conducted
as soon as possible after the arrest of the accused. This becomes
necessary to eliminate the possibility of the accused being shown
to the witnesses prior to the test identification parade.
 This is a very common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no scope for
making such allegation.
 If, however, circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.”

State of Uttar Pradesh Vs Sukhipal Singh

Whether test identification parade is necessary or not would depend on
the facy circumstances of each case, The purpose of test identification
parade is to test the veracity of the witness and his capacity to identify
the unknown persons whom the witness must have seen only once.

Vijay v State of Madhya Pradesh, The apex court has observed that
the test identification parade is not a substantive piece of evidence, yet
it may be used for the purpose of corroboration, for believing that a
person bought before the court is the real person involved in the
commission of the crime. However, the test identification parade, even
if held, Cannot be considered in all the cases as trustworthy evidence
on which the conviction of the can be sustained.

Kanta Prasad Vs Delhi Administration

Where an accused is not previously known to the identifying witnesses
as in case of dacoity, identification parades are generally held. If the
accused is already known to the witness identification by the witness is
a farce. The absence of Test Identification Parade will vitiate the case of
the prosecution where the accused and witness were known to each
other. Failure to hold identification parade does not make the
identification in court inadmissible yet the omission considerably affects
the weight to be attached to such identification.

Anukush Maruti Shinde Vs State of Maharashtra

TI parades are not primarily meant for the court. They are meant for
investigation purposes. The object of conducting TI parade is two-fold.
First is to enable the witness to satisfy themselves that the prisoner
whom they suspect is really the one who was seen by them in
connection with the commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the real person whom
witnesses had seen in connection with the said occurrence.
State of Maharashtra v Syed Umar Sayed Abbas :- the incident of
firing occurred jn the circumstances wherein much time was not
available for the eye-witnesses to clearly see the accused. In such a
situation, it was of much more importance that the Test Identification
Parades were to be conducted without any delay. The first Test
Identification Parade was held after about 1 month of the incident. The
second Test Identification Parade was conducted after more than a year
of the incident. Even if it is taken into account that the accused was
arrested after a year and within one month thereafter the test
Identification Parade was conducted, still ix is highly doubtful whether
the eye-witnesses could have remembered the faces of the accused
after such a long period. Though the incident took place in broad
daylight, the time for which the eyewitnesses Could see the accused
was not sufficient for them to observe the distinguishing features of the
accused, especially because there was a commotion created after the
firing and everyone was running to shelter themselves from the firing.
The testimonies of the witnesses suffer various infirmities and
contradictions and the Test Identification Parade was not conducted
properly and was delayed. Therefore, the accused person is being given
the benefit of doubt as their identity had not been clearly established
by the prosecution.
 Section10 - Evidence of Common Intention

SECTION 10: Things said or done by conspirator in reference to

common design. —Where there is reasonable round to believe that
two of 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 thar any such person was a party to it.

Introduction :-
This section refers to things said or done by conspirators in reference to
the common design. To attract the applicability of this section, the court
must have reasonable ground to believe that two or more persons had
conspired together for committing an offence, and then the evidence of
action or statement made by one of the accused could be used as
evidence against the other

Section 10 makes the following facts relevant in proof of conspiracy:

(1) there is a reasonable ground to believe that:
(a) two or more persons have
(b) conspired together to commit an offence or an actionable
wrong (2) anything said, done or written by any one of such
 persons
(3) in reference to their common intention,
(4) after the time when such intention was first entertained by any
one of them
(5) is relevant:
(a) as against each of the persons believed to be so conspiring,
(b) for the purpose of proving the existence of the conspiracy and
(c) for the purpose of showing that any such person was a party to
it.

S Srul Raj Vs State of Tamil Nadu

However, where prosecution fails to substantiate the allegation of
conspiracy against an accused, that accused cannot be called a co-
conspirator so as to attract the provisions of section 10 of the Evidence
Act, for the purposes of roping in the other accused persons.

Reasonable ground to believe :- Kehar Singh Vs State Delhi

Admn The fact that the accused and the person who shot dead the
deceased were together at a social gathering sometime before the
shooting and having isolated themselves at the house top, were seen
talking and avoided questions as to what they were talking about, was
held by the Supreme Court to be sufficient to create a reason to believe
that they might be conspiring about something. The accused was
accordingly sentenced to death along with those who actually caused
death though he was no where there at the place of shooting.'*

Common intention [Effect when common intention ceases|—These

words signify a common intention existing at the time when the thing
was said, done or written by one of them. Things said, done or written
while the conspiracy was on foot are relevant as evidence of the
common intention, once reasonable ground has been shown to believe
in its existence.
[Link] Amir Kasab Vs State of Maharashtra
In the Bombay terror attack case, the appellant was apprehended while
he was on a killing spree in execution of the objects of the conspiracy.
The transcripts of the phone conversation of the other terrorists, who
were associates of the appellant and their foreign collaborators, related
to a time when the speakers were not only free by were actively
involved in trying to fulfil the objects of their conspiracy. Therefore, it
was held by Supreme Court that the transcripts were by no means any
confessional statements made under arrest and they were fully covered
by the provisions of section 10 of the Indian Evidence Act for the
purposes of proving the factum of conspiracy amongst them."

Confession :- A confession by a conspirator made to a Magistrate after

arrest disclosing the existence of a conspiracy, its objects and the
names of its members, is not admissible under this section against the
co-conspirators jointly tried with him, but only under section 30. When a
person accused along with others voluntarily comes into the witness-
box and deposes as a witness for defence: he is in the same position as
an ordinary witness, and is, therefore, subject to cross- examination.

Tribhuvan Nath Vs State of Maharashtra

Once his evidence as a witness for the defence is on record and it
speaks of a communication between one conspirator and the other
during the existence of the conspiracy and relates to its
implementation, it becomes relevant.
Agreement but not direct meeting necessary :- Barindra Kumar
Ghose Vs Emperor :-Though to establish the charge of conspiracy
there must be agreement, there need not be proof of direct meeting or
combination, nor need the parties be brought into each other's
presence; the agreement may be inferred from circumstances raising a
presumption of a common concerted plan to carry out the unlawful
design. So again it is not necessary that all should have joined in the
scheme from the first; those who come in at a later stage are equally
guilty, provided the agreement be proved.

State of TamilNadu Vs Nalini

From the evidence of conspiracy to assassinate the Prime Minister of
India, Mr Rajiv Gandhi, the court said that it could not be inferred that
the conspirators intended to disrupt the sovereignty of India.
State of Maharastra Vs Damu Gopinath Shinde - Where four
accused persons were alleged to have conspired together to commit
offences of abduction and murder of children, a confession by one of
them in respect of what the other accused persons did in reference to
their common intention was admissible as evidence as much against
the confessing accused as against the others.

Section 11. When facts not otherwise relevant become relevant.

Section 11. When facts not otherwise relevant become relevant
– Facts not otherwise relevant are relevant–
1. if they are inconsistent with any fact in issue or relevant fact;
2. if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.
Introduction:-
Section 11 of the Evidence Act lays down that facts which are not
relevant under any of the Sections 6 to 10 and Sections 12 to 55 in the
chapter on ‘Relevancy of Facts’ are relevant under this section.

The purpose and object of a criminal trial is to prove or disprove a

particular charge by evidence and therefore, any fact which either
disproves or tends to disprove the alleged charge, is relevant

Section 11 makes the facts not otherwise relevant as relevant

if:
1. They are inconsistent with fact in issue or relevant facts; or
2. Which makes the existence of fact in issue or relevant fact highly
probable or improbable.
The tests adopted by the section are
(1) inconsistency and
(2) high probability or improbability.
The following are the typical examples of facts that are relevant under
this section.
1. Alibi or the plea that the accused could not have committed the
crime because he was elsewhere. (Illustration (a))
2. on-access (ability to enter) in cases of questions of paternity where
the man says that he could not have been the father either
because he was impotent or he was at a different place at the time
the child was conceived.
3. Self-inflicted harm i.e., the plea that, for instance, the alleged
victim of murder, in fact, committed suicide.
4. The third person was guilty and not the accused.
5. The man supposed to have been murdered by the accused is
alive.
Inconsistent with any fact in issue —Plea of Alibi:- The usual
theory of essential inconsistency is that a certain fact cannot co-exist
with the doing of the act in question, and, therefore, that if that fact is
true of a person of whom the act is alleged, it is impossible that he
should have done the act. Thus the fact of presence
elsewhere is essentially inconsistent with the presence at the place and
time alleged, and therefore with personal participation in the act
(theory of alibi).

Plea of Alibi
The word ‘alibi”, a Latin expression means and implies in common
acceptation “elsewhere”: it is a defence based on the physical
impossibility of participation in a crime by an accused in placing the
latter in a location other than the scene of crime at the relevant time,
shortly put, the presence of the accused elsewhere when an offence
was committed.

Dudh Nath Pandey v State of Uttar Pradesh The Supreme Court

stated that the plea of alibi postulates, the physical impossibility of the
presence of the accused at the scene of offence by reason of his
presence at another place. The plea can therefore succeed only if it is
shown that the accused was so far away at the relevant time that he
could not be present at the place where the crime was committed.

Subhash Chand v State of Rajasthan, it was observed that literal

meaning of alibi is “elsewhere”. In law this term is used to express that
defence in a criminal prosecution, where the party-accused, in order to
prove that he could not have committed the crime charged against him,
offers evidence that he was in a different place at that time. The plea
taken should be capable of meaning that having regard to the time and
place when and where he is alleged to have committed the offence, he
could not have been present.
Darshan Singh v State of Punjab :- The plea of alibi is not one of the
General exceptions contained in Chapter IV of IPC. It is a rule of
evidence recognized under section 11 of the Evidence Act. However,
plea of alibi taken by the defence is required to be proved only after

Sakharam vs. State of M.P

The Supreme Court held that the failure of the accused to substantiate
the plea of alibi does not ipso facto create a presumption against him

In Vijay Pal vs. Delhi (NCT) :- the Apex Court stated that the plea of
alibi can succeed only when it is shown that the accused was so far
away at the relevant time that he could not be present at the place
where the crime was committed. The burden of proving this fact is
rather heavy and the accused should be able to establish this plea with
absolute certainty, leaving no room for any doubt about the plea.

Highly probable or improbable:-

The word ‘highly probable’ means more than the normal standard of
probability. These words point out that the connection between the
facts in issue and the collateral facts sought to be proved must be so
mediate as to render the co-existence of the two highly probable.
 Whether a fact is to be admitted under this clause or not depends
upon the weight to be given to such evidence.

Non-Access of Husband to Show Illegitimacy of Child

Since the legitimacy of the child essentially implies a begetting by the
husband, in disproving legitimacy, it would be relevant to prove that the
husband had no access to the wife at the probable time of begetting.
The provisions of Section 11 are attracted to prove legitimacy or
otherwise in such cases.

Instance of Probability:
 Where the accused was charged for possession of arms and for
conspiracy to commit a dacoity, the fact that one of the accused
was seen showing a revolver to another with whom he was alleged
to be conspiring is relevant under section 11.
 Where the question was whether a certain lease was intended to
be perpetual, the fact that a number of other leases granted at
about the same time, under similar circumstances were intended
to be perpetual was held admissible under this section to show
that the lease in dispute was also perpetual.’

State of Haryana v Shakuntala the trial court had examined the

possibility that the distance between the factory and place of
occurrence, which was nearly 5 kilometres or so, the possibility of the
accused going to the factory after the occurrence could not be ruled
out.

Kantilal Vs Shanti Devi

In a suit for recovery of possession of a plot and declaration of title, the
defendant denied the existence of the plot. The sale deed of the
adjacent plot acknowledged the existence of the plot and the plaintiff's
possession over it. This was held to be admissible in evidence under
sections 11 and 13(a)
 Section 12: - In suits for damages, facts tending
to enable Court to determine amount are
relevant

Section 12: - In suits for damages, facts tending to enable

Court to determine amount are relevant. – In suits in which
damages are claimed, any fact which will enable the Court to determine
the amount of damages which ought to be awarded, is relevant.

Section 12 makes those facts relevant which help a Civil Court to

determine the quantum of damages in the cases of Torts or Contracts.
Legally, “damage” is to be distinguished from “damages”.
 In Civil Law, while “damage” connotes an injury suffered by an
individual because of the wrongful actions of another,
  “damages” is the monetary compensation that the former is
awarded by the Court to be paid by the latter for the injury caused
by him.

The purpose of awarding the damages is to compensate a person for

the injury suffered in such a manner that he is put back approximately
in a position in which he was before the injury was caused to him.
 Factors such as the age of the victim,
 the nature and extent of the injury,
 medical expenses,
 loss of earnings and
 physical and mental agony
are relevant in the quantification of damages by the Court.

For instance: where the defamatory statement concerned contains an

imputation of bad character of a woman and truth is pleaded in
defence, defence to the effect that the woman herself made statements
to this effect to a m=number of persons is relevant

Shaikh Gafoor Vs State of Maharashtra

Where the plaintiff failed to adduce the best available evidence and this
caused difficulty in assessing damages, this was held to be no ground
for refusing the damages or fixing nominal damages. It is for the court
to determine the quantum of damages.

Section 13. Facts relevant when right or custom is in question

Section 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

Introduction :
 Section 13 of the Evidence Act lays down that where the question
as to existence of a certain right or custom involved any
transaction by which such right or custom is created, modified,
recognized, ascertained, or denied or which was inconsistent with
its existence, may be proved.
 Where a right or custom is pleaded by one party and denied by
another, the onus of proving its existence lies on the party who
pleads its existence.
 The provision contained in this section is generally invoked in
deciding the rights of parties or existence or non-existence of a
custom involved in a civil or criminal proceeding.

Principle :- This section states the facts that are relevant when any
right or custom is in question, and for the purposes mentioned therein.
 Sub-section (a) makes transactions relevant
 Sub-section (b) makes particular instances relevant.

All transactions and instances which have Some connection, however,

remote, with a right or custom are not admissible. Only those
transactions and instances as mentioned in clauses (a) and (b) are
relevant.

Section Applies to All Kinds of Rights and Customs

Section 13 deals with proof of right and custom.

Right has been defined by John Salmond as a legally protected and

recognized interest. The term “right” under Section 13 includes the
whole gamut of legal rights—
 tangible (movable and immovable) and intangible (goodwill,
intellectual Property rights),
 public and private, proprietary (ownership) and possessory
(tenancy rights, etc.
 It includes rights on one’s own property (like ownership) as well as
right regarding other’s property (like right of way over and right to
fish in someone’s pond (‘easementary rights’).
Customs and Usage
This section applies to all kinds of customs ancient or otherwise.
Custom must be ancient, but usage may be of a comparatively recent
origin. Usage is a fact while custom is law. There can be usage without
custom but not custom without usage. Usage is inductive, based on
consent of persons in a locality, while custom is deductive making
established local usage a law.

Customs are also of three kinds.

1. Public (section 32(4) :- Public custom is nowhere defined in the
Act. It is any custom which is a matter of public
2. General (section 48) :- General custom is defined to include
customs common to any considerable class of persons (section
48), e.g. Custom of a religion or caste.
3. Private, e.g., family customs.:- Private custom includes family
custom and usages.
4. Special—confined to a particular trade or mercantile activity.
  In royal or zamindari families, the right of primogeniture
(firstborn) may be prevalent by which the firstborn among the
siblings only will get the crown or property.
 Similarly, temple customs may vary depending on whether the
temple is a Vaishnavite or Shaivite one, and so on.
5. Regional—
 Under the Hindu Marriage Act of 1955 marrying children of
one’s paternal aunt or maternal uncle is prohibited but the
Act protects the contrary custom prevalent in South India.
 In some districts the custom of pre-emption may be in vogue
by which any person intending to sell his property must first
offer it to his near relatives or neighbours at market value.

Essentials of Valid Custom

Custom to be recognizable by courts must be:—
1. ancient,
2. continuous and uniform.
3. reasonable
4. certain,
5. compulsory and not optional
6. peaceable, and
7. not immoral.
The burden of proving a custom lies on the party setting it up.

Proof of Custom
Sri Krishna Datt Vs Ahmadi Bibi
To prove a custom (1) the evidence should be such as to prove the
uniformity and continuity of the usage and the conviction of those
following it that they were acting in accordance with law, and this
conviction must be inferred from the evidence. Oral evidence of
witnesses who depose to having heard of the custom from their
deceased ancestors is admissible.
Mumtaz Begum Vs S Aman -ul-lah Khan :-
As to the legal position regarding the proof of a custom it is well-settled
that a custom must be ancient, invariable, certain, and continuous.

Modes of Proving Custom

 A general custom may be proved by the opinion of living persons
who would be likely to know its existence (section 48).
 A public custom may be proved by opinion of such persons or by
the opinion of persons who cannot be produced as witnesses, if
such opinion is contained in a statement made before any
controversy as to such custom arose [section 32(4)}.
 A custom whether public, general or private may be proved or
disproved by statements of deceased persons contained in any
deed, will, or other document {section 32(7)]
 Judgments relating to custom of a public nature are admissible
under section 42,

Transaction
A transaction is a business or dealing which is carried on or transacted
between two or more Persons, It is something which had been
concluded between persons by a cross or reciprocal action, and in its
largest sense it means that which is done.
Claimed
‘The word “claimed” denotes a demand or assertion. It indicates that
the right is asserted to the knowledge and the presence of the person
whose right would be affected by the establishment of the claim.

Recognised
Judicial recognition of a custom is relevant under this section as an
instance of the custom being recognised. But a judicial decision is far
from having the same importance as a clear cur instance of custom,
recognised by the parties themselves.

Assertion
‘The word “assertion” indicates some act or deed which may or may not
follow a statement. It also includes a verbal statement not amounting to
and not accompanied by any act if the statement amounts to a claim.
The language of section 13 is very wide and covers the assertion of
right in a previous suit where it was in dispute. It is not necessary that
right should have been asserted successfully, mere assertion thereof is
sufficient to make it relevant.

Hanutmal Asaram Mandha Vs Nathu Venkoba

In matrimonial case if the wife is beaten inside the house by husband
the wife cannot produce independent corroborative evidence which
may consist of members of the family of the husband or neighbours.'
Relevancy of Judgments
 Statements made in previous litigation bind only the parties and
the person making the statement and not a person who is not a
party to that litigation."*

Srinivas Krishnarao Kango Vs Narayan Devji Kango, The Supreme

Court of India held that a judgment in a previous suit for maintenance
in which the quantum of maintenance awarded was to depend on the
extent of joint family property and was to be a charge on that property,
is to be admissible in a subsequent suit for partition of the joint family
property to prove the extent of such property.
 Section 14. Facts showing existence of state of mind, or of body of
bodily feeling

Section 14. Facts showing existence of state of mind, or of body

of bodily feeling.––Facts showing the existence of any state of mind
such as intention, knowledge, good faith, negligence, rashness, ill-will
or good-will towards any particular person, or showing the existence of
any state of body or bodily feeling, are relevant, when the existence of
any such state of mind or body or bodily feeling is in issue or relevant.

Explanation 1.–A fact relevant as showing the existence of a relevant

state of mind must show that the state of mind exists, not generally,
but in reference to the particular matter in question.

Explanation 2.–But where, upon the trial of a person accused of an

offence, the previous commission by the accused of an offence is
relevant within the meaning of this section, the previous conviction of
such person shall also be a relevant fact.
Introduction :-
Section 14 is one of the important sections that deals with physical and
mental facts relating to a person. The section deals with facts relating
to three aspects, viz.,
a) State of mind;
b) State of body; and
c) State of bodily feeling

Section 14 also declares that facts which show the existence of any
state of mind, namely,
  intention, knowledge, negligence, rashness, goodwill or ill-will,
good faith or bodily feeling,
are relevant when such state of mind or bodily feeling is fact-in-issue or
relevant.

The section contains sixteen illustrations to explain the purpose and

scope of the provisions of this section. In some offences such as
malicious prosecution, fraud, deceit, forgery, defamation, rash driving,
negligence etc., the existence of state of mind such as intention,
knowledge, good faith or bodily feeling need to be inferred to decide
the guilt or innocence of the accused.

 Illustrations (e), (i) and (j) has explained the factum of mens rea or
intention
 Illustrations (a) to (d) deal with knowledge;
 Illustration (f), (g) and (h) with good faith;
 Illustrations (k), (1) and (m) with mental or bodily feelings and
 Illustration (n) deals with negligence.
Facts are either physical or psychological.
 A physical fact is anything, state of things, or relation of things,
capable of being perceived by the senses.
 A psychological fact is any mental condition of which a person is
conscious.
 Thus, state of body is a physical fact, while state of mind or state
of bodily feeling is a psychological fact. Facts showing state of
mind viz., intention, knowledge, good faith, negligence, rashness,
ill will or good will etc., are relevant

Intention
  Intention is a state of mind. A man is taken to intend the natural
and probable consequences of his act.
 To ascertain what a person’s intention was, the court is entitled to
take into consideration events both previous and subsequent to
the relevant date.
 As direct evidence of intention is difficult, circumstantial evidence
must therefore be resorted to in proof of intention.
 The best circumstantial proof of the intention of the person in
doing an act is the nature of the act, his conduct and the
circumstances surrounding the act.
In Ram Narayan v State of Punjab," it was held that though the burden
of proof as to the dishonest intention with which a document was forged
as used by the accused lies on prosecution, it is not necessary that it
must be proved by affirmative evidence. If the prosecution proves the
fact that the accused had Prepared a false document and had
withdrawn money on its strength, the burden as to proof of intention
must be taken to have been discharged, because the natural inference
from such conduct is that the accused was actuated by dishonest
intention.

Appu Vs State
The probative force, both of preparation and of previous attempts,
manifestly rests on the presumption that an intention to commit the
offence was framed in the mind of the accused which persisted until
power and opportunity were found to carry it into execution. Such
evidence will be admissible both under sections 8 and 14 of the
Evidence Act.

Sahara India Real Estate Corporation Vs Securities and

Exchange Board
A person's inner intentions are to be read and understood from his acts
and omissions, law judges not what is in his mind but what he has said
or written or done. The Latin meaning, “external action reveals inner
secrets” applies.?

Knowledge
The explanation of any admission or conduct on the part of a party,
must if the party is alive and capable of giving evidence must come
from him and the Court would not imagine an explanation which a party
himself has not chosen to give

Notice
A person is said to have notice of a fact when he actually knows that
fact, or when, but for wilful abstention from inquiries or search, which
he ought to have made or but for his gross. negligence, he ought to
have known it. Notice may be actual or constructive. An imputed notice
as distinguished from a constructive notice is notice through agent.

Conscious Possession
Prithvi Singh Vs State of Bombay
The question of knowledge is linked with the question of conscious
possession. In a case where the accused is charged for possession of a
prohibited article, if the facts established are of such a nature that they
do not entirely exclude the possibility of that article being in his luggage
without his knowledge it was held that the conviction on the basis of
possession cannot be sustained.

Ashok Dubey Vs State of Madhaya Pradesh

Motive is a matter which can be determined from the appellant's
character and conduct. Evidence of character, conduct and state of
mind is admissible under sections 8, 14 and 63 of the Evidence Act.

Negligence and Rashness

R Vs Whitehead
The evidence to show that in a particular case the accused was
negligent or rash would admissible, but evidence which tends merely to
show that he is habitually so, will not be admissible. Where the accused
is charged for rash driving, evidence of other instances of sash driving
by accused is not admissible. Where a surgeon was charged for
negligence in a particular operation, evidence to show that he had been
negligent or skillful in other similar operations was held inadmissible.”

Matrimonial Proceedings
G Venkatanarayana Vs Kurupati Laxmi Devi
The Evidence Act does not exclude examination of mental or bodily
state of a person. The court hearing a matrimonial proceeding has the
jurisdiction to appoint a commission Doctor for examining the party to
know and report whether he or she was able to consummate the
marriage.

Ill-will or Good-will
It is nothing but bad faith and good faith. A thing is said to be done in
good faith, where it is done honestly, whether it is done negligently or
not (Section 3, General Clauses Act). The presumptions in law against
misconduct generally presume good faith in human transactions and
therefore, generally the burden of proving bad faith is on the party
alleging it.

Explanation 1 :- The evidence relating to the state of mind of a person

must show that the state of mind exists not only generally but in
reference to the particular matter in question.
  Evidence of general disposition, habit or tendencies, is
inadmissible.
 Anything having a distinct and immediate reference to the
particular matter is admissible.
 See illustrations (a) and (b). The purport of this explanation is
found in Illustrations (n), (o), (p).
For example, where a person is being tried for the offence of
receiving stolen property knowing that it is stolen property, the fact that
at the time he was in possession of many other stolen properties will be
relevant.

Explanation II of the section clearly states that where the previous

commission of an offence is relevant, the previous conviction of such
person should also be a relevant fact.
 Sections 310, 311, S11, 25 of CrPC, deals with evidence of bad
character of accused. (section 54).
 This explanation states that where the previous commission of an
act is relevant, say for enhanced punishment, the previous
conviction of the person should also be a relevant fact.
Illustrations (e) and (f) to Section 43.

The Supreme Court in Sunil Bharti Mittal vs. Central Bureau

Investigation (CB1), held that in a case where a company is the
accused person and the group of persons i.e. Board of Directors
represents only the directing mind and will of the company, their state
of mind is the state of mind of the company and therefore, on these
premises, act of the company is attributed to the directors.
 Relevancy and admissibility of admissions
(Section 17-23)
Introduction
An admission is the best evidence against the party making it, and
though it is not a conclusive proof, it shifts the burden on the maker on
the principle that what a party himself admits to be true may be
reasonably presumed to be true until the presumption is rebutted. For
instance,
 a tax-payer assessee cannot resile from the admission made by
him in his tax-return.
 Statements in proceedings in a civil suit are admissions against
the party making them.
The Indian Evidence Act, 1872, Sections 17 to 23 contain provisions
relating to admission which are applicable to both, civil as well as
criminal cases.

 Section 17 refers to the provisions that follow it for identifying the

persons by whom and the circumstances in which the admissions
can be made.
 Sections 18,deal with persons whose statements are considered as
admissions and
 Section 19 and 20 refers to admission of third party
 Sections 21, 22 and 23 prescribe the conditions in which the
admissions can be proved.
 Section 31 refers the evidentiary value of Admission

Section 17. Admission defined :- An admission is a statement oral or

documentary or contained in electronic form, which suggests any
inference as to any fact in issue or relevant fact, and which is made by
any of the persons, and under the circumstances, hereinafter
mentioned.
The ingredients of Section 17 are:
1. An admission is a statement, oral or documentary
2. which suggests any inference as to any fact in issue or relevant
fact and
3. which is made
a. by any of the persons, and
b. under the circumstances hereinafter mentioned.

Form of Admissions
 Admissions are receivable which are contained in letters, previous
pleadings, depositions, petitions, deeds, account books even if not
regularly kept, horoscopes, first information reports etc.
  Even statements in cancelled, invalid instruments or unstamped
documents are receivable.
 Statements made in a document which is inadmissible for want of
proper attestation or registration may be admitted as admissions.

Effect of Admissions
 Admissions are not conclusive proof of matters admitted, but they
may operate as estoppel ie, the person cannot be permitted to
deny it (sec 31).
 A party's admission must be presumed To be true until the
contrary is shown.”
 Admissions founded on hearsay or consisting of merely of
declarant’s opinion or belief are receivable in evidence but their
weight is slight.
 As compared with a confession it is a weak type of proof.

Ujali Padhani Vs Rushi

Under the Indian law, an admission made by a party in a plaint signed
and verified by him may be used as evidence against him in other suits.
However, this admission cannot be regarded as conclusive and it is
open to the party to show that it is not true.
Rakesh Wadhawan Vs Jagdamba Industrial Corp
Admission is only a piece of evidence and can be explained. It does not
conclusively bind a party unless it amounts to an estoppel. Value of an
admission has to be determined by keeping in view the circumstances
in which it was made and to whom.
 WHO CAN MAKE ADMISSIONS

Section 18. Admission by party to proceeding or his agent :-

Statement made by a party to the proceeding, or by an agent to any
such party whom the Court regards, under the circumstances of the
case, as expressly or impliedly authorized by him to made them, are
admissions.

By suitor in representative character Statements made by parties

to suits- suing or sued in a representative character, are not
admissions, unless, they were made while the party making them held
that character.

Statements made by
(1) party interested in subject matter.—persons who have
any Proprietary or pecuniary interest in the subject-matter of the
Proceeding and who make the statement in their character of
persons so interested; or

(2) person from whom interest derived.—persons from

whom the parties to the suit have derived their interest in the
subject-matter of the suit,

are admissions, if they are made during the continuance of the interest
of the persons making the statements.

Under Section 18 the following persons can make admissions:

1. a party to the proceeding, or
2. by an agent authorized by such party,
3. parties to suits suing or sued in a representative character;
 4. persons who have any proprietary or pecuniary interest in the
subject-matter of the proceeding, and who make the statement in
their character of persons so interested
5. persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit.

Party to Proceeding
 Under the Evidence Act admissions can be made by “party to the
proceeding” and the proceeding can be of civil or criminal in
nature.
 Hence, plaintiff and defendant in a civil case, and the prosecution
and the accused in a criminal proceeding can make binding
admissions.
 A complainant in the case of non-cognizable offence like adultery
(Section 497 of IPC) or defamation (Section 500 of IPC) or a
prosecutrix in a rape case is also in the position of a party to the
criminal proceeding and can make admissions.
Santon Vs Percival
An admission can be proved as against the party making them and not
as against others. Important exceptions are
a. under Section 10 anything said by one conspirator can be
proved as against himself and also as against other co-
conspirators;
b. a confession (being an admission of guilt) made by a co-
accused can be proved s against the other co-accused if the
conditions of Section 30 are satisfied; and
c. admissions made by persons with joint or derivative interest
can be used as against each other under Section 18.
Kashmira Singh Vs Madhya Pradesh
The Evidence Act is not clear as to whether an admission of a co-
plaintiff or co-defendant can be used against other plaintiffs or
defendants. As a matter of principle and policy, an admission made by a
person should not be permitted to be used against his co-plaintiffs or
co-defendants except to the extent of his interest in the subject matter
of the suit. Otherwise, a co-defendant or co-plaintiff can collude with the
adverse party and make an admission favourable to that adverse
party.
Agent of a Party

It is a well established principle of agency applicable under the law of

contracts, the law of torts and the criminal law that the principal is
bound by the admissions made by his agent. To bind the principal by
his admissions, the agent must be regarded by the Court to have had
express or implied authority to act on behalf of the principal.

 Members of a partnership are bound to each other as principals

and agents and the admission made by one can be proved as
against the other.
 Apart from persons who may be employed as agents, the parties’
attorneys and advocates are also treated as their agents and they
can bind their clients by admissions in civil cases.
Govindji Jhaver Vs Chhotalal Velsi
Admissions made by an advocate bind the client on questions of fact
but not of law. However, in criminal cases admissions made by the
advocate do not relieve the prosecution of its burden to prove the case
beyond reasonable doubt.

Persons with representative character - include trustees, executor

and administrator of a will.

Persons with proprietary or pecuniary interest include co-owners

or joint owners of property and co-defendants in a civil suit. The persons
must be having joint and not common interest in the subject matter of
the suit.

Meejan Mathar Vs Alimudden

When several persons are jointly interested in the subject-matter of the
suit, an admission of any of these persons is receivable not only against
himself but also against the other defendant, whether they be all jointly
suing or sued, provide that the admission relates to the subject matter
of the dispute, and be made by the declarant in his character of a
person jointly interested with the party against whom the evidence is
tendered.

Persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit :- Statements made
either by parties interested or by persons from whom the parties to the
suit have derived their interest are admissions only if they are made
during the continuance of the interest of the persons making the
statement.
 The admissions of a former owner of property after he has ceased
to have any interest in it are not evidence against the party in
possession
 Where the deceased father of the plaintiff admitted that the
defendant was his second legally wedded wife and her children
were his legitimate children, the admission was binding on the
plaintiff.

This clause indicates that there ought to be a privity, i.e, mutual or

successive relationship to the same right of property. Persons with
derivative interest are of three kinds:
1. by privity in law :- Eg. the relationship between the executor or
administrator of a will and the legatees and heirs
 2. by privity in blood :- Eg. relationship between a person and his
descendants and ascendants; and co-parceners.
3. by privity in estate :- that is relationship established by a
contract or deed. E.g. transferor and transferee of property.

 Thus, admissions made by the executor or administrator of a will

or testament will bind the persons named in the will as legatees
and heirs.
 Similarly, an admission made by the father, for instance, that his
house was under a mortgage will bind the son as his successor.
 An admission made by the vendor of a plot of land that it was
subject to a right of easement will bind the vendee.

Conditions
Where Section 18 provides for the proof of admissions made by persons
other than the parties, the section provides for certain built-in
safeguards. Thus,
 the agents must be authorized expressly or by implication, and
 persons with representative characters or with joint interest or
with derivative interest must have made the admissions while they
were holding such character.

ADMISSION BY THIRD PARTIES

Sections 19 and 20 deal with admissions made by persons who do not

have any direct connection with the matter in dispute or, in other
words, persons who may be called third parties. The two sections are
exceptions to the general tule that admissions by strangers to the suit
or “occasional admissions” are not admissible in evidence. However, an
admission to be relevant under these sections, it should fulfil the
conditions laid down in Sections 17 and 21.

Section 19 :- Admissions by persons whose position must be

proved as against party go suit :- 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.

Section 19—This section forms an exception to the rule that statements

made by strangers to a proceeding are not admissible as against the
parties.

 The liability of a person who is one of the parties to a suit depends

upon the liability of a stranger to the suit, then an admission by
the stranger in respect of his liability amounts co an admission on
the part of that person.

Shivalingam Vs Sakthivel
Where a landlord died and the tenant questioned the title of the lady
living with him saying that she was not the wife of the deceased
landlord, a thirty three year old registered deed was produced which
showed the landlord’s admission about the lady to be his wife, it was
held that the right of the lady was conclusively proved by the
admission.
Laxmi Bai Vs A Chandravati
Execution of a will cannot be doubted merely because of delay in
applying for letter ‘of administration which was satisfactorily explained,
more so when due execution of the will was admitted by preferential
heirs to the estate of the testatrix against their own interest.

Condition :- The statements referred to in this section become

admissible only provided that they satisfy the requirements of section
17 as regards their nature and section 21 or any of the following
sections as regards their liability.

Section 20 Admissions by persons expressly referred to by

party to suit :- Statements made by persons to whom a party to the
suit has expressly referred for information in reference to a matter in
dispute are admissions.

Section 20 :- This section forms another exception to the rule that

admissions by strangers to suit are not relevant. Under it the
admissions of a third person are also receivable iv evidence against,
and have frequently been held to be in fact binding upon, the party who
has expressly referred another to him for information in regard to an
uncertain or disputed matter.

Sloman Vs Herne :-
If a reference is made over a disputed matter to a third person not in
the nature of a submission to arbitration, but rather as an aid to the
settlement of the differences existing between the parties and that
enable the parties themselves to effect a settlement on the information,
in such cases the party is bound by the declaration of the person
referred to in the same manner and to the same extent as ut was made
by himself.
Daniel Vs Pitt
Where the defendant said, “If C will say that he did deliver the goods, I
will pay for them,” it was held that C’s statement was admissible and
the defendant was bound by it.

Ram Sahai Vs Jai Prakash

Where in a suit for eviction, one of the tenants on the basis of power of
attorney from other tenants, admitted in his statement before the court
the liability as regards the arrears of rent, such a statement would bind
the tenants as their own admission within the meaning of Section 20 of
Evidence Act.

CONDITIONS FOR PROOF OF ADMISSIONS

Section 21 is an important provision which lays down the conditions and
circumstances in which an admission can be proved. The section says:

Section 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 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.
would be relevant as between third persons under section 32.

(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.

(3) An admission may be proved by or on behalf of the person making

it, if it is relevant otherwise than as an admission.

Section 21 (1) lays down the basic principle that “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.”
 In other words, self-harming admissions can be proved by a party
but not self-serving admissions.
 The rationale of Section 21 has been mentioned above under the
classification of admissions into self-serving and self-harming
admissions.

As against the person who makes them :- The rule as regards

statements made by a person is that they may be proved only when
they are against him; otherwise a party may manufacture any amount
of evidence in his own favour. Where the statements are against the
interest of the person making them there is a natural presumption of
truth, and they may be proved

Musammat Bashiran Vs Mohammad Hasain

An admission by a plaintiff of her marriage with a person made before
there was any dispute about such marriage may be proved by or on
behalf of her under clause (1) of this section read with section 32.

Akal Sahu Vs King - emperor

A receipt is nothing but an admission by the party making it that he has
received the amount specified in the document. It is an admission
against his own interest and he is of course bound by it, and so are
those who claim through or under him.

Representative in interest :- This expression will include those are

privies in blood, law or estate. The purchaser at an ordinary execution
sale is in privy with, and is the representative-in-interest of the
judgment-debtor so as to bound by the latter's admission.

Exceptions
Admissions cannot be proved by, or on behalf of, the person who makes
them, because a person will always naturally make statements that are
favourable to him. Thus the opinion of a person as to the valuation of
his property which is under acquisition is not relevant. Section 21
mentions three exceptions to the above principle and under these
exceptions self-serving admissions can be proved by the person making
them.

Exception (1) :- Statements of deceased person relevant in

dispute between third parties. :- This exception enables a person to
prove his own statement where the circumstances are such that if he
were dead, the statement would have been relevant in a dispute
between third parties.

The illustration (b) says: A, the captain of the ship is tried for casting the
ship away
that is, allowing it to drift away from its course or route. A wants to
adduce in evidence the logbook maintained by himself wherein the
details of the cruise and course followed by the ship are recorded in the
ordinary course of business for the purpose of proving that he did not
cast the ship away.
  As the logbook is maintained by the captain himself, the entries
therein are self-serving statements and would have been barred
under the opening part of Section 21.
 But as the entries in the logbook, are made in the ordinary course
of business, they would have been relevant under Section 32 (2)
between third parties if the captain were dead, not found etc.
 Sectio, 21 makes an exception in this case for the reason that the
statement in the logboo; though a self-serving one, might be true
as it satisfies the two safeguards of Section 32(2) that are:
o (a) the entry was made in the ordinary course of business;
and
o (b) the book was kept in the ordinary course of business.

Exception (2) - Explanation of state of mind or body or mental

or bodily feeling
The second exception relates to:
 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.

Section 14 declares that “facts... showing the existence of any state of

body or bodily feeling, are relevant.” Thus, while Section 14 deals with
“facts”, Section 21, exception relates to “statements” showing the state
of mind etc., and Section 21 also applies the safeguard of Section 8 that
a mere statement is not relevant unless it is accompanied by conduct,
with the additional condition that the statement should be coexistent
with the feeling and such as to render the falsehood of the statement
“improbable”.
Exception (3) - Facts otherwise relevant : The third exception says
that a self-serving admission may be proved by its maker “if it is
relevant otherwise than as an admission.”
 This Exception lays down that facts which are relevant under
sections 6 to 13 will not be rendered inadmissible because they
may be proved on behalf of the person making them.
Dilipsinh Mohansinh Vs S J Mansha
A person who sought exemption from the application of the Urban Land
Ceiling Act of his land was not taken thereby to have admitted that the
Act was applicable to his land, the application of the Act to a given
situation being a question of law.
Ammini Vs State of Kerala
Where an injured accused person was examined by a doctor and in the
course of such examination he explained the cause of his injuries, it was
held by the Supreme Court that the statement was not an admission
and was a relevant evidence under section 3 otherwise than as an
admission. He could prove his own statement.

Section 22 : When oral admissions as to contents of documents

are relevant : 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 the rules hereinafter contained, or unless the
genuineness of a document produced is in question.

Section 22 :- The contents of a document which is capable of being

produced must be proved by the instrument itself and not by oral
evidence.

 Oral admissions as to contents of a document are excluded under

this section. They are, however, admissible when the party is
 entitled to give secondary evidence of the contents of such
document under sections 65 and 66.
 Such admissions are also admissible when the genuineness of the
document produced is in question.
Patel Prabudas Vs Heirs of Patel Babubhai
As to the validity of a gift deed, one of the donors stated that he was
minor at the time of its execution. But in the gift deed itself he admitted
his age to be 22. This admission was contained in the registered deed.
This was held to be binding on him unless he could show any vitiating
circumstance like fraud, coercion, etc.

Section 22A - When oral admission as to contents of electronic

records are relevant. Oral admissions as to the contents of electronic
records are not relevant, unless the genuineness of the electronic
record produced is in question

Section 22A- The purpose of this section is to provide for the

circumstances in which an oral admission could be proved as to the
contents of an electronic record.
 The section disallows the evidence of oral admission x to the
contents of an electronic record.
 It then talks of an exceptional situation, which is that when the
genuineness of the electronic record produced before the court is
itself in question.
 The section says that oral admissions as to the contents of an
electronic record may be proved in evidence when the
genuineness of the record has been questioned.

Section 23 :- Admissions in civil cases when relevant : In civil

cases no admission is relevant, if it is made either upon an express
condition that evidence of it is not to be given, or under circumstances
from which the Court can infer that the parties agreed together that
evidence of it should not be given.

Explanation—Nothing in this section shall be taken to exempt any

barrister, pleader, attorney or vakil from giving evidence of any matter
of which he may be compelled to give evidence under section126.
Section 23 :-
The section provides that in civil cases an admission is not relevant
when it is made
1. upon an express condition that evidence of it is not to be given, or
2. under circumstances from which the Court can infer that the
parties agreed together that evidence of it should not be given.
The section applies to civil as well as criminal cases.

If there is a dispute between parties and they have gone to a Court for
adjudication, often they enter into negotiations by themselves or
through a mediator/conciliator to seek an amicable “out of Court”
settlement. During these negotiations both the parties try to be flexible
and make proposals to each other expressing readiness to settle for
something less than what they claimed in the Court.
Illustration
Suppose the claim is for compensation of 10 lakhs for injuries suffered
due to the negligence of the other party. In the Court the other party
may totally deny that he was negligent but during negotiations he
might admit to his negligence if the claimant settles for, say, 5 lakhs.
The claimant might also propose, as a part of bargain that he will settle
for a compensation of 7 lakhs. If the negotiations ultimately fail, neither
of the parties Shall be allowed to prove in the Court the various
admissions they might have made as a part of negotiations.

Ram murti Devi Vs Reoti Saran

In civil cases no admission is relevant if it is made in the circumstances
from which the court can infer that the parties agreed together that the
evidence of it should not be given.

Explanation :- Professional communications made by a client to his

legal advisor are generally protected from disclosure (Section 126). But
a legal adviser can be compelled by the Court to give evidence of any
communication made in furtherance of any illegal purpose or to any
facts observed by the legal adviser showing that any crime, fraud has
been committed since the commencement of his employment (Section
126).

Distinction between Admissibility and Relevancy of evidence.

Relevancy Admissibility
Relevancy is based on logic and Admissibility is not based on logic
probability but on strict rules of law
The rules of relevancy are The rule of admissibility is
mentioned under sections 5 to 55 mentioned under section 136 of the
of the Indian evidence act 1872. Indian evidence act 1872.

The rule of admissibility means that

The rules of relevancy declare what the court can permit the evidence
is relevant is to be proved. to be given of a fact only if it is
relevant.
Relevancy is basically a cause. It is mainly an effect.

The court has the power to apply The discretion cannot be applied by
discretion in relevancy. the court in admissibility.

The facts which are relevant are not The facts which are admissible are
necessarily admissible. necessarily relevant.

Previous year questions

UNIT -1
10 Marks
1. Define Evidence. Discuss different kinds of evidence. +1
2. What is evidence ? Explain the importance of circumstantial
evidence.
3. What is evidence ? Explain in detail the different kinds of evidence.
ln which cases evidence need not be proved ?
4. Explain the meaning of evidence and state the principles regarding
reception of circumstantial evidence.
5. "The accused can be convicted on the basis of circumstantial
evidence" Analyse with the help of decided cases.
6. 'Men may lie but circumstances will not lie' - Comment with
relevant cases.
7. Define Evidence. "The rules of evidence are in general, same in
civil and criminal cases" - Explain.
8. Explain "May presume", "Shall presume" and "Conclusive proof'. –
Section 4
9. With the help of illustrations explain 'may presume', 'shall
presume' and 'conclusive proof'- Section 4
10. Define 'Fact'. " Facts in issue" and "Relevant fact'. Distinguish
among 'May presume', 'Shall presume' and "conclusive proof" with
suitable illustrations Section 3 & 4
11. Define Evidence" Distinguish between relevancy and
Admissibility of Evidence.

Section 6

12. Facts connected with fact in issue so as to form part of same

transactions are relevant" - Discuss with reference to Res gestae.
13. Explain the doctrine of 'Res-gestae' with the help of decided
cases. +1
14. Explain the relevancy of facts forming part of the same
transaction +1 +1+1

Section 8

15. Explain the relevancy of facts showing motive, preparation

and conduct – - +1
 16. "Motive only is not substantive evidence" - ln light of the
statement, discuss in detail the concept of motive, preparation and
subsequent conduct with suitable illustrations and case laws.
17. Explain the relevancy of facts showing the existence of state
of mind and state of body- Section 14.
18. When plea of alibi can be raised ? Discuss in brief the doctrine
of Res gestae with suitable illustrations and judicial decisions. –
Section 11 and 6
19. Explain the relevancy of introductory and explanatory facts.
Section 9

6 Marks
1. Res gestae +1 – Section 6
2. Identification parade. – Section 9
3. Write a note on Test identification parade. – Section 9
4. Alibi +1- Section 11
5. Write a note on distinction between Admissibility and Relevancy of
evidence.
6. x is hit by a speedy vehicle and is severely injured. Y has deposed
that he saw the speedy vehicle but not the accident and X has
explained him about the accident. ls this statement relevant
7. 'A' is accused of Killing 'B'. Prosecution has adduced evidence of
marks on ground produced by fight between A, and B, prior to the
incident. ls it relevant?
8. 'A' is accused of 'B's murder by beating him. At the time of
incident there was an exchange of words between A and B. ls this
fact relevant?
9. The question is whether Ravi committed a crime at Calcutta. On
the same day, Ravi was at Lahor. ls this fact relevant?
10. The question is whether S was the legitimate son of 'F' ? ls
the fact 'S' was always treated as such by the members of the
family relevant
11. The question is whether 'A' was a legitimate son of 'B'. Does
the fact that, 'A' was always treated as such by the members of
the family relevant ? +1
12. 'A' is tried for the murder of 'B' by poison. Before the death of
B, A procured poison similar to that which was administered to B.
Explain the relevancy of this fact.
13. A is accused of a crime. It is shown that soon after the crime
he is absconding his place – ls this fact relevant?
14. 'A' has filed suit against' B' for the recovery of loan. 'B' denies
the loan. 'A' wants to prove his statement made to 'C' wherein he
stated that he lent loan to 'B'. Can he do so