THE INDIAN EVIDENCE ACT-1872

Main principles of evidence law

(1) Which fact is to be proved in court?
Only relevant fact or fact in issue may be proved in court (sec.5)-Chapter 2 deal with relevant fact
(2) How fact is to be proved in court (exclusion of hearsay evidence + best evidence should be given)
Except facts which need not to be proved- chapter 3
Facts is to be proved by giving oral evidence- chapter 4 or documentary evidence- chapter 5
Subject to exclusion of oral evidence by documentary evidence- chapter 6
(3) Who will prove that fact
(a) On whom burden of proof lies- chapter 7
Subject to estoppel rule- chapter 8
(b) Competent witness –chapter 9
Subject to examination of that witness- chapter 10

In 1868 Maine prepared a draft bill of evidence law but it was abandoned as not suited to the country. After Stephen
prepared a new draft which was passed in 1872.
Evidence law is Lex fori (law of forum/court) governing its procedure.

CHAPTER 1.-PRELIMINARY (u/s 1-4)

1. Short title- This Act may be called the Indian Evidence Act, 1872.
Extent.-It extends to the whole of India except the State of Jammu and Kashmir
Application- on judicial proceedings of court/court martial
Evidence act has no application to
(a) Courts-martial convened under the Army/Navy/Airforce Act
(b) Affidavits presented to any Court or officer
(c) Proceedings before an arbitrator
Commencement- 1sept 1872.
U.O.I V T.R.SHARMA SC
Evidence act applies only on court/court martial judicial proceeding hence it do not applies on tribunal judicial proceeding

Judicial proceeding means those proceeding whose object is to [determine rights & liabilities in issue].
If there is no such object proceeding is not judicial.
If evidence is legally taken during inquiry it is judicial proceeding. Inquest proceeding is not judicial proceeding.
Affidavit are confined to such facts as deponent is able to prove of his own knowledge.
Affidavit filed by party sue- motu not [under direction from court or law] can’t be termed as evidence.

2. Repealed.

3. Interpretation clause.-
In this Act the following words and expressions are used in the following senses, unless a
contrary intention appears from the context:-

"Court" includes [Judges] and [persons legally authorized to take evidence except arbitrator]

"Fact" means and includes

(a) Anything, state of things or relation of things, capable of being perceived by the senses
(b) Any mental condition of which any person is conscious.
Illustrations
That there are certain objects arranged in a certain order in a certain place, is a fact.
That a man heard or saw something, is a fact.
That a man said certain words, is a fact.
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 was at a specified time conscious of a
particular sensation, is a fact.
That a man has a certain reputation, is a fact.
Clause (a) deals with physical facts (external facts) which can be perceived by 5 senses.
Clause (b) deals with psychological (internal facts) which are subject of consciousness.

"Relevant."
One fact is said to be relevant to another fact when both are [connected in any of the ways
referred in chapter relevant facts]
Word relevant in evidence act has two meaning
(a) Connected.
This definition deals with connected one.

(b) Admissible in evidence.

First condition of admissible is relevancy of fact. However both words are not synonym. Certain facts though relevant are
not admissible because of following restriction-
Explanation sec.5
Exclusion of oral evidence u/s 91-100.
Estoppel rule by which party is stopped from proving certain relevant facts u/s 115-117.
Not competent witness u/s 121-131.
RAM BIHARI YADAV SC-
Both words are used interchangeably but there is difference legally.
Thus all relevant fact are not admissible but admissible evidence is always relevant fact.

"Facts in issue" means and includes

Fact from which [existence/non-existence/nature/extent] of any right/liability/disability is
Asserted or denied in any suit or proceeding
Explanation-
When under CPC Court [records an issue] 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 B'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.

"Document" means
[Matter] expressed upon any substance by means of letters/figure/marks/etc.
[Intended] to be used or which may be used for the purpose of recording that matter.
Illustrations
A writing is a document
Words printed lithographed or photographed are documents
A map or plan is a document
An inscription on a metal plate or stone is a document
A caricature is a document
Post- mortem report
Wooden score on which bakers/milkman indicates goods supplied by them

"Evidence" means and includes--

Oral evidence- statements which the Court permits or requires to be made before it by witnesses in
relation to [matters of fact under inquiry]
Documentary evidence- Document (including electronic record) produced for the inspection of Court
Word means and includes denotes that definition is inclusive (not exhaustive)
Thus definition is incomplete because there are [other matters on which decision of judge is based] which are excluded.
E.g. local investigation, weapons, stolen property, tools, admission
ABDUL RAZZAK CASE
Evidence of dog tracking is not of much weight even though admissible.

Direct v circumstantial evidence-

Directly establishes commission of an offence.
Indirectly establishes commission of an offence i.e. by placing circumstances in a chain leading to irresistible inference of
commission of an offence (also called presumptive evidence)
HANUMANT GOVIND NARJUNDKAR SC-
Following point must be kept in mind while dealing with circumstantial evidence.
(a)If two inference are possible one directing towards crime and other towards innocence benefit of doubt to be given to
accused.
(b)Circumstances should be decisive (conclusive) one not confusing one.
In murder case allegation was that accused cause death by arrow. But medical report says it was caused by bricks held
circumstantial evidence is not decisive. Held allegation not proved.
(c)If circumstances are seen as a whole it must form a chain so complete unerringly pointing towards guilt of accused and
nobody else.
Court also recall the warning given by Baron Alderson in REG V HODGE.
Mind take pleasure in connecting circumstance so as to make them complete and more ingenious person danger is more.
Appreciation of evidence
Method of [valuation of Effect of evidence on fact] is called appreciation of evidence. Its effect is of three types.
1. Fact is proved 2. Fact not proved 3. Fact is disproved.

Fact when Proved

A fact is said to be proved when after considering the [matters before it]
(a) Court Believes that [fact exist] or
(b) Court Considers that [fact existence] is so probable that a prudent man ought under the
circumstances of the particular case to act upon the supposition that fact exists.
HAVALDAR SINGH- gravest suspicion against accused is not sufficient to convict accused unless fact is proved beyond
reasonable doubt. Sea of suspicion has no shore and court that embarks upon it is without rudder and compass.

Fact when proved in civil and criminal proceedings.

Generally evidence law are same to prove a fact in both subject to some exceptions
(a)Doctrine of estoppel applies only to civil proceedings.
(b)Confession related provisions and character related provisions applies only to criminal proceedings.
Degree of proving a fact is different
In civil cases fact is proved when [balance of probability is in his favor]
Balance of probability means chances of its happening is more compared to its non-happening.
In criminal cases fact is proved when it is beyond reasonable doubt almost amounting to certainty. It do not consider the
decision of civil cases on that fact.

Fact when Disproved

A fact is said to be disproved when after considering the matters before it
(a)Court believes that fact does not exist or
(b) Court considers fact non-existence so probable that a prudent man ought under the circumstances
of the particular case to act upon the supposition that fact does not exist.

Not proved
A fact is said not to be proved when it is neither proved nor disproved.

India
India means the territory of India excluding the State of Jammu and Kashmir.

4. Types of presumption of fact

May presume-
Court may either regard such fact as proved unless & until disproved or may call for proof of it.
Shall presume
Court shall regard such fact as proved unless & until disproved
Conclusive proof
Court shall on [proof of the one fact] regard the other as proved and shall not allow evidence to be
given for the purpose of disproving it.
Presumption means drawing inference. It includes both-
 Presumption of fact (presumption huminis) or
 Presumption of law (presumptio juris)
Maxim amenia presumentor rise is acta means reasonable presumption of all facts.

CHAPTER 2- THE RELEVANCY OF FACTS

5. Principle one
Evidence may be given only on [facts in issue and relevant facts] in any suit or proceeding about
their existence or non-existence
Exception- If a person is disentitled to prove any fact [by any provision of cpc] then he can’t
give evidence on that fact even though it is fact in issue or relevant fact.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his
death.
At A's trial the following facts are in issue-
A's beating B with the club;
A's causing B's death by such beating;
A's intention to cause B's death.
(b) A suitor does not bring with him and have in readiness for production at the first hearing of
the case a [bond on which he relies] This section does not enable him to produce the bond or
prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the
conditions prescribed by CPC

Circumstantial evidence (u/s 6-10)

6. Res-gestae rule
Facts which though not fact in issue becomes relevant when
Those facts are [connected with a fact in issue in such way that it form part of the same
transaction] whether they occurred at the same time and place or at different times and places.

Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
by-standers at the beating, or so shortly before or after it forming part of same transaction is
a relevant fact.
(b) A is accused of waging war against Government of India by taking part in an armed
insurrection in which [property is destroyed, troops are attacked and gaols are broken open]
The occurrence of these facts is relevant as forming part of the general transaction, though A may
not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between
the parties relating to the subject out of which the libel arose and forming part of the correspondence
in which it is contained, are relevant facts though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to A. The goods were
delivered to several intermediate persons successively. Each delivery is a relevant fact.
Facts though not fact in issue but connected with fact in issue means res gestae facts
i.e. things done (act) + spoken/written (statement) = conduct

Res-gestae facts must be connected with fact in issue in such a way that it forms part of same transaction i.e. explain
transaction- who committed act, how act is committed, against whom act is committed etc
# wife was set ablaze by husband. She told her brother that he (husband) blazed me. Held to be relevant.
Transaction means interconnected facts explaining some conduct.

Connection of res gestae facts (conduct) with fact in issue may be at same time and place or at different time and place.
Time gap of connection should not be remote. There must be proximity of time/ proximity or unity of place/ continuity of
action and community of purpose or design.
R V KRISTAE-
Fact in issue was assault on a boy. After some time boy revealed to his mother about immoral behavior committed against him.
Time gap was remote. Held not relevant

Bye standers means person who are present at the happening of res-gestae facts or soon thereafter and hears from person who
[gives direct evidence of res-gestae facts and being under stress of excitement caused by its happening]
Thus Hearsay evidence is relevant u/s 6.
It excludes those person who gather on spot after happening of res-gestae fact and gather information from others.

Facts contained in FIR are res-gestae facts.

Description of assault by victim at police station on the same day are res-gestae facts.
CASE LAW
# Witness rushed to the scene of explosion and heard facts from bye standers [as to what happened]. Such fact was held to be
not relevant u/s 6 as it is not connected with any fact in issue.
# Witness rushed to the scene of firing and heard facts from injured person [as to who fired the shot]. Such fact was held
to be relevant u/s 6.
# Witness rushed to the scene of crime by hearing cry of person. That person said that accused killed her daughter. Relevant
R V FOSTER
Wife saw vehicle moving very fast. She reached place of accident where husband being victim of accident said that particular
color vehicle run over him. Relevant

RATTAN V REGINAM
Call by woman in distress to police for seeking help and she gave address after that call goes dead suddenly.
Husband took defense that shooting was accidental. Court said if it was accidental call should be made by husband.
SAWALDAS
Exclamation of children playing in garden of a house when their mother was being killed in house heard by by-stander was
held to be relevant.
R.M.MALKANI CASE
Tape recorded conversation relating to settlement of bribe relevant when taking of bribe is fact in issue.
Sec 7-10 explain and illustrate res-gestae rule.

7. Facts which are the occasion/cause/effect of [relevant facts or fact in issue] or

Facts which constitute the state of things under which [they] happened or
Facts which afforded an opportunity for [their] occurrence or transaction are relevant.
Illustrations
(a) The question is, whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with money in his possession, and that
he showed it or mentioned the fact that he had it, to third persons, are relevant.
(b) The question is, whether A murdered B.
Marks on the ground produced by a struggle at or near the place where the murder was committed, are
relevant facts.
(c) The question is whether A poisoned B.
The state of B's health before the symptoms ascribed to poison, and habits of B, known to A,
which afforded an opportunity for the administration of poison, are relevant facts.

8. Fact which shows motive or preparation for any fact in issue or relevant fact is relevant.
ILLUSTRATION
 A is tried for the murder of B.
The facts that A murdered C and [B knew that A had murdered C and tried to extort money] from
A by threatening to make his knowledge public are relevant. Motive is to stop B.
 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.

Previous or subsequent conduct of any party (including their agent) if [in reference to such suit
or proceeding or in reference to any fact in issue or relevant fact therein] is relevant fact.
ILLUSTRATION
 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.
 A is accused of a crime.
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.
 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.

Previous or subsequent conduct of victim of an offence [if such conduct influences or is influenced
by any fact in issue or relevant fact] is relevant fact.
ILLUSTRATION
 The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the
crime, the circumstances under which, and the terms in which, the complaint was made, are
relevant.
The fact that [without making a complaint] she said that she had been ravished is not
relevant as conduct under this section, though it may be relevant as a dying declaration u/s
32(1) or as corroborative evidence u/s 157.
 The question is, whether A was robbed.
The fact that, soon after the alleged robbery, he made a complaint relating to the
offence, the circumstances under which, and the terms in which, the complaint was made, are
relevant.
 The fact that he said he had been robbed without making any complaint, is not relevant as
conduct under this section, though it may be relevant as a dying declaration u/s 32(1) or as
corroborative evidence under section 157.

Explanation 1.Word conduct in this section does not include statements unless those statements
[accompany and explain acts]
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.
Illustrations
 The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence- "the police are coming to look
for the man who robbed B," and that immediately afterwards A ran away are relevant.
 The question is, whether A owes B rupees 10,000.
The facts that A asked C to lend him money, and that D said to C in A's presence and hearing-
"I advise you not to trust A, for he owes B 10,000 rupees," and that A went away without
making any answer, are relevant facts.
 The question is, whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was being made
for the criminal, and the contents of the letter, are relevant.
 A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in
possession of property or the proceeds of property acquired by the crime, or attempted
to conceal things which were or might have been used in committing it, are relevant.
Part of FIR containing non-confessional part is evidence of conduct u/s 8.

9.
(a) Fact Fixing happening time or place of fact in issue or relevant fact or
(b) Fact Supporting or rebutting an inference suggested by such fact
(c) Fact showing relationship of parties by whom such fact was transacted
(d) Fact Explaining (introducing) such fact.

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.
 A accused of theft, is seen to give the stolen property to B, who is seen to give it to A's
wife. B says as he delivers it-"A says you are to hide this." B's statement is relevant as
explanatory of a fact which is part of the transaction.
 A is tried for a riot and is proved to have marched at the head of a mob. The cries of the
mob are relevant as explanatory of the nature of the transaction.
(e) Fact establishing the identity of person or property whose identity is such fact.
RAM LOCHAN
Superimposed photograph of deceased over Skelton of deceased body to establish identity of deceased was held relevant.
Identification parade is relevant under this section.

10. (a) If there is reasonable round to believe that there is criminal conspiracy to commit an
offence or an actionable wrong
(b) Conduct of any of such conspirator [in reference to their common intention] + [During the
period of existence of common intention] is relevant fact
 That he is a conspirator.
 for proving the existence of the conspiracy
 against each of conspirator

Illustration
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the
Government of India
B procured arms in Europe for the purpose of the conspiracy,
C collected money in Calcutta for purpose of conspiracy
D persuaded persons to join the conspiracy in Bombay,
E published writings advocating conspiracy in view at Agra, and
F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta and
H giving account of conspiracy by letter written by him
are each relevant both to prove the existence of the conspiracy, and to prove A's complicity
in it, although he may have been ignorant of all of them and although the persons by whom they
were done were strangers to him and although they may have taken place before he joined the
conspiracy or after he left it.
Reasonable ground to believe means prima facie evidence to support existence of conspiracy.
When there is conspiracy each of conspirator is regarded as [agent of each other so vicarious liability arises]
This sec. says that conduct of any conspirator [in reference to their common intention] is relevant fact.
QUEEN V BLAKE
Conduct of any conspirator is relevant against other conspirators if it is during existence of common intention + in
reference to common intention.
Sec 10 incorporate this decision.
Sec 34 IPC applies to act only whereas sec 10 EVIDENCE ACT applies to conduct.

11. Fact not otherwise relevant are relevant-

(a)If that fact is inconsistent with fact in issue or relevant fact
(b)If that fact make the existence or non-existence of any fact in issue or relevant fact highly
probable or improbable.
Illustrations
(a) The question is whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed, A was at a distance from the place where
it was committed, which would render it highly improbable, though not impossible, that he committed
it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been committed either by A, B, C or
D. Every fact which shows that the crime could have been committed by no one else and that it
was not committed by either B, C or D, is relevant i.e. highly probable that A has committed an
offence.
Plea of alibi means plea (evidence) by accused that at the time of commission of an offence he was (a) at remote place (b)
under such circumstances that causes inconsistency with fact that he commit an offence.

12. In suits in which damages are claimed any [fact which will enable the Court to ascertain the
amount of damages] which ought to be awarded is relevant.
Sec 73 of contract act deals with rules “how to ascertain amount of damages”

13. When right or custom is in question following facts are relevant-

(a)[Any transaction] by which they were created, claimed, modified, recognized, asserted or denied,
or which was inconsistent with its existence
(b)[Particular instances] in which they were claimed, recognized or exercised or in which its
exercise was disputed, asserted or departed from.
Illustration.
The question is whether A has a right to a fishery. A deed conferring the fishery on A's
ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by
A's father, irreconcilable with the mortgage, particular instances in which A's father
exercised the right, or in which the exercise of the right was stopped by A's neighbors, are
relevant facts.
Custom means usages obtaining force of law (recognized by court). When it is-
 Ancient
 continuous and uniform
 reasonable
 certain
 compulsory i.e. not optional
 peaceable
 not immoral
Such right/custom may be
General- common to people in general
Public- matter of public interest
Private- family.

14. (a)Facts showing the existence of state of mind [such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person]
Illustrations.
 A is accused of receiving stolen goods [knowing them to be stolen]
It is proved that he was in possession of a particular stolen article.
 The fact that, at the same time, he was [in possession of many other stolen articles] is
relevant, as tending to show that he knew each and all of the articles of which he was
in possession to be stolen.
REG V PRABHUDAS
Possession are not allowed to be proved by apparent similar instances only state of mind can be presumed.
In this case accused was charged with having forged a promissory note.
Evidence that number of documents apparently forged or held in readiness for the purpose of forgery were found in
accused possession not relevant fact.
 A is accused of fraudulently delivering to another person a counterfeit coin which, at the
time when he delivered it, he knew to be counterfeit.
The fact that, at the time of its delivery, A was possessed of a number of other pieces of
counterfeit coin is relevant.
The fact that A had been previously convicted of delivering to another person as genuine
a counterfeit coin knowing it to be counterfeit is relevant.]
 A sues B for damage done by a dog of B's which B knew to be ferocious.
The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to
B, are relevant
 A is accused of defaming B by publishing an imputation intended to harm the reputation of B.
The fact of previous publications by A respecting B, showing ill- will on the part of A
towards B is relevant, as proving A's intention to harm B's reputation by the particular
publication in question.
The facts that there was no previous quarrel between A and B, and that A repeated the matter
complained of as he heard it, are relevant, as showing that A did not intend to harm the
reputation of B.
 The question is, whether A has been guilty of cruelty towards B, his wife.
Expressions of their feeling towards each other shortly before or after the alleged cruelty
are relevant facts.

Explanation 1-
Fact showing State of mind must be specific i.e. in reference to particular matter in question not
general.
ILLUSTRATIONS
• A sues B for negligence in providing him with a carriage for hire not reasonably fit for use,
whereby A was injured.
The fact that B's attention was drawn on other occasions to the defect of that particular carriage
is relevant.
The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.
• A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his intention to shoot B.
The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.
• A is tried for a crime.
The fact that he said something indicating an intention to commit that particular crime is
relevant.
The fact that he said something indicating a general disposition to commit crimes of that class is
irrelevant.

(b) Fact showing the existence of any state of body/bodily feeling

 The question is whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms are relevant facts.
 The question is, what was the state of A's health at the time when life insurance was
effected.
Statements made by A as to the state of his health at or near the time in question are
relevant facts.

Explanation 2-
Previous commission of an offence is relevant under this section because it is showing……
Then Previous conviction shall also be relevant fact.
Accused was charged with rape. Evidence of previous commission of rape at 4 different occasion in which 3 of cases he was
acquitted. Court held it as relevant fact on the ground of similar facts rule.
EMPEROR V ALLOMIYA
In execution of arrest warrant under gambling Act when police entered a room in which accused was found in circle along with
10 others. No actual play was seen but cards were found on the grounds.
Accused was convicted for keeping common gaming house. Accused previous conviction under gambling Act showing state of mind
of keeping his house for gaming was held to be relevant
15. When there is a question whether
 Act was accidental or intentional or
 Act is done with a particular knowledge or intention
Fact that such act formed [part of a series of similar occurrences] in each of which the person
doing the act was concerned is relevant
Illustrations
 A is accused of burning down his house in order to obtain money for which it is insured.
The facts that A lived in several houses successively each of which he insured in each of
which a fire occurred, and after each of which fires A received payment from a different
insurance office, are relevant, as tending to [show that the fires were not accidental]
 A is employed to receive money from the debtors of B. It is A's duty to make entries in a
book showing the amounts received by him. He makes an entry showing that on a particular
occasion he received less than he really did receive.
The question is whether this false entry was accidental or intentional.
The facts that other entries made by A in the same book are false and that the false entry is
in each case in favor of A, are relevant.
 A is accused of fraudulently delivering to B a counterfeit rupee.
The question is whether the delivery of rupee was accidental.
The facts that, soon before or soon after the delivery to B, A delivered counterfeit
rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

16. When there is a question whether a particular act was done.

Existence of any course of business according to which it naturally would have been done is a relevant
fact.
Illustrations
(a) The question is, whether a particular letter was dispatched.
The facts that it was the ordinary course of business for all letters put in a certain place
to be carried to the post, and that particular letter was put in that place are relevant.
(b) The question is whether a particular letter reached A. The facts that it was posted in due
course, and was not returned through the Dead Letter Office, are relevant.
This presumption is based on maxim “Omnia proesumuntur rite esse acta” which means all acts are presumed to be rightly done.
There is rebuttable presumption that conduct of men in [official and commercial matters] is to a great extent uniform.

Relevant Statements (u/s 17-55)

Types of such statements-
(1) Admission (2) confession (3) statement by person who can’t be called as witness(4) statement under special circumstances
(5) judgment of court (6) opinion of 3rd person (7) character of parties.

ADMISSION (u/s 17-23)

17. Admission means
Statement oral or documentary (including electronic record)
 Suggesting inference as to fact in issue or relevant fact
 Made by those persons and under those circumstances hereinafter mentioned.

 Judicial admission
Before magistrate or court
Procedural formalities under crpc must be fulfilled.
Substantive piece of evidence thus corroboration not necessarily reqd.
 Extra judicial admission.
Before anyone other than magistrate or court
No procedural formalities under crpc must be fulfilled.
RATAN GONDA- Not substantive piece of evidence thus corroboration is necessarily reqd. by direct or circumstantial evidence.

18-20. Admission must be made by following persons-

18.
(a) Party to the proceedings and their agent.
Such proceeding may be civil or criminal. It may be present or former.
Party’s witness admission is not treated as admission of party. However agent admission is treated as admission of party if
agent is acting in course of business and within scope of authority. Ex. Pleader making admission of facts on behalf of
client in the conduct of suit. Pleader making Admission on point of law can’t bind the party.
Ex. Admission by partners on other behalf within scope of partnership business.
But admission of guardian ad litem or next friend do not bind minor
(b) Party suing or sued in representative character [while holding such character]
Ex. Trustee/executor/administrator
(c) Person who has any proprietary or pecuniary interest in the subject matter of the proceeding
[while holding such interest]
In a suit for declaration of title a statement by plaintiff father that defendant was in possession was admitted.
(d) Person from whom parties to the suit have derived their interest which is subject matter of
suit [while holding such interest]
Ex. If deceased father of plaintiff make admission that defendant was his second legally wedded wife and her children were
legitimate children. Such admission is binding on plaintiff.

19. Admission made by person whose position or liability is matter in dispute (stranger to the
proceeding) and to be proved as against a party to the suit is relevant if made by such person
[while holding such position or being subject to such liability]
Illustration
(a) Landlord died and there was dispute between tenant and lady claiming herself to be wedded wife
of landlord but tenant denies her position. Statement by landlord in registered deed that she is
her wife was held to be admission binding tenant.
(b) A undertakes liability to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
C makes statement that he owed B rent is an admission and is a relevant fact as against A, if A
denies that C did not owe rent to B.

20. Statements made by person (stranger to proceeding) to whom [a party] to the suit has expressly
referred for information in reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is sound.
A says to B "Go and ask C, C knows all about it." C's statement is an admission.

21-23. Admission must be made in following circumstances.

Admission of maker is relevant if going [against himself or his representative in interest]
Illustration
The question between A and B is whether a certain deed is genuine or forged.
[A affirms that it is genuine] [B that it is forged]
Any statement by B that the deed is genuine is relevant because it is going against him.
Any statement by A that deed is forged is relevant because it is going against him.
R V HARDY
There is presumption that no one will make admission against himself and person in difficulty will make admission that are
favorable to him.

Admission of maker is not relevant if going [in favor of himself or his representative in interest.
Exception
(1)If maker were dead such statement would be relevant u/s 32.
Illustration
A captain of a ship, is tried for casting her away.
Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business showing observations
alleged to have been taken by him from day to day, and indicating that the ship was not taken
out of her proper course.
A may prove these statements because such statements would be relevant u/s 32.

A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore
post-mark of that day.
The statement in the date of the letter is admissible, because, if A were dead, it would be
admissible under section 32(2).

(2) Statement showing existence of state of mind or body

 Relevant or fact in issue
 Made at or about the time when such state of mind or body existed and
 Accompanied by conduct rendering its falsehood improbable.
Illustration
A is accused of receiving stolen goods knowing them to be stolen.
He offers to prove that he [refused to sell them below their value]
A may prove these statements, though they are admissions, because they are explanatory of conduct
influenced by facts in issue.

A is accused of fraudulently having in his possession counterfeit coin which he knew to be

counterfeit.
He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was
counterfeit or not, and [that person did examine it and told him it was genuine]
A may prove these facts for the reasons stated in the last preceding illustration.

(3) Relevant fact otherwise than as an admission.

Injured person during medical examination said to doctor about cause of injury.
Such statement were held to be relevant though going in his favor.

22. Oral admissions as to the contents of a document are not relevant

Exception
When secondary evidence of the contents of such document may be given or
When genuineness of contents of that document is in question.

22A. oral admission as to contents of electronic record are not relevant

Exception-
When genuineness of contents of document is in question.

23. In civil cases no admission is relevant

(a) If it is made upon an express condition that evidence of it is not to be given or
(b) If it is made 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/vakil
from giving evidence of any matter of which he may be compelled to give evidence u/s 126.
This sec. is based on maxim interest rei publicae ut sit finis litium i.e. it is in the interest of state that there should
be an end to litigation. So that they may compromise or negotiate the suit.
Their intention is expressed ordinarily by words without prejudice.
WALKER V WILSHER.
Court explained the meaning of word without prejudice.

CONFESSION (u/s 24-30)

24. Irrelevant confession.
If confession is caused by threat/inducement/promise
(a) That TIP having reference to the charge against the accused person
(b) That TIP proceed from a person in authority and
(c) That TIP gives the accused person reasonable grounds for believing that by making it he would
gain any [advantage or avoid any evil of a temporal nature] in reference to the proceedings against
him.
Substantive law of confession is contained u/s 24-30 of evidence Act while procedural law is contained u/s 164/281/463 crpc.
Confession is not defined in evidence Act.
PAKALA NARAIN SWAMI PC
Confession means admission [of commission of an offence] or [of substantial facts constituting an offence]
For ex. Accused was caught while trying to run away from place of incident. He beg mercy and apologies. It was held to be
confession
Admission of incriminating facts (i.e. fact suggesting an inference that he committed the crime) is not confession.
For ex. accused is the owner and possessor of knife or revolver by which death was caused. This fact is incriminating one
suggesting presumption that he might committed the crime but it is not confession.
NISHIKANT JHA SC
Confession to be read as a whole i.e. accepted as a whole or rejected as a whole. But in exceptional case exculpatory facts
may be separated from incriminating (inculapatory) fact when evidence on record disproves it or where it is apparently false
For ex. if post master says that packet delivered was opened by his subordinate and wrist watch was taken in his presence
but without his consent. Exculpatory part is apparently false. So it was rejected.
PALVINDER KAUR SC
Accused dispose of the body of his husband. With regard to cause of death she said her husband accidentally taken a
poisonous substance which was meant for washing photos erroneously thinking it to be a medicine. Her statement was not held
to be confession but only incriminating fact.
PYARE LAL SC
Reasonable belief in the mind of accused should be caused by TIP that by making confession he would get advantage or avoid
any evil of temporal nature. Temporal means belonging to this world not belonging to hereafter.

25. Irrelevant confession.

Confession by accused to a police-officer going against him.
Object is to check false confession by police-torturing because it is not considered truth.
SITA RAM
Confession contained in a letter written and signed by accused and addressed to police officer was held to be relevant as
there was no presence of police.
SAHOO
Confession can be done by talking to himself.
This sec. applies when accused was free i.e. not in police custody.
Part of FIR containing confessional statement is irrelevant. For ex statement by accused that he killed his wife with knife.
A person is a police officer when powers of police officer are conferred on him establishing [direct or substantial
relationship with prohibition to take confession]
Central excise officer having investigation power but no power to frame charge sheet is not a police officer
PUNJAB STATE V BARKAT RAM
Custom officer is not police officer.
Officer under FERA is not police officer.
Village chowkidar is not police officer.
Jailor is not a police officer
Reserve police force is police officer.

Confession by accused to police officer going in favor of himself is relevant.

In a case accused was allowed to rely upon his confession that why he killed his wife. It helped him to shift conviction
from 302 to 304 IPC.
By making confession a person becomes an accused.

26. Irrelevant confession

Confession of accused in the custody of a police-office
Unless it be made in the immediate presence of a Magistrate.

27. Relevant confession

Provided that when any [information is given by accused in the custody of a police-officer and in
consequence of information any fact is discovered and there is [distinct relationship] between
information given and fact discovered
Such information is relevant whether it amounts to a confession or not.
Truthfulness of confession is guaranteed by the discovery of facts in consequence of information given.
Doctrine of confirmation by subsequent events is incorporated in this section.
QUEEN EMPRESS V BABU LAL
Such information may be given to police or other person.
PULUKURI KOTAIYYA
Whole of information given by accused is not relevant only that part of information which is [related distinctly to the fact
discovered] in consequence of information.
Distinct relationship means cause and effect relationship. Thus information given must be the cause and its effect is
discovery of fact.
For ex recovery of murder weapon due to information received from accused from place which was impossible for police to
search is relevant fact [if weapon connected accused with murder]. Only recovery of an object is not discovery of fact.
But if discovery of it is made from place which is ordinarily visible to others was held to be not relevant
MOHAMMAD INAYATULLAH
Ditto of above
A. NAGESIA
Sec.27 is an exception of sec 24/25/26.

Court upheld constitutionality of this sec. in following cases

DEVMAN UPADHYAYA/KATHI KALU

28. Relevant confession

If confession is not relevant because sec 24 applies it becomes relevant when impression caused by
TIP is fully removed in the opinion of the Court.

29. Relevant confession does not become irrelevant because of following reasons-
Confession made under a promise of secrecy or
Confession made in consequence of a deception practiced on him for the purpose of obtaining it or
Confession Made when he was drunk or
Confession made in answer to questions which he need not have answered or
Confession made but he was not given warning that he was not bound to make such confession and that
evidence of it might be given against him.
Confession must be otherwise relevant for application of this confession.
Confession in sleep are not relevant.
UP STATE V SINGHADA SINGH
Confession must be recorded after complying procedural formalities u/s 164/463 crpc which included giving of such warning.
If those formalities are not complied except warning confession is irrelevant. If warning only is not given but formalities
are complied it is relevant

30. Relevant confession

Confession of co-accused who is [tried jointly for the same offence affecting himself and other]
Court may take into consideration such confession as against such other person as well as against
maker.
Explanation- Offence in this section includes the abetment or attempt to commit the offence

Illustrations
A and B are jointly tried for the murder of C. It is proved that A said "B and I murdered C". The
Court may consider the effect of this confession as against B.

A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B,
and that B said "A and I murdered C".
This statement may not be taken into consideration by the Court against A, as B is not being
jointly tried.
This sec. is an exception that confession goes against maker only not against non-maker.
KASHMIRA SINGH
Such confession is very weak type so it must be corroborated in material particulars.

Retracted confession means person after doing confession says that

 He did not make it or
 He make false confession

31. Admissions are not conclusive proof of the matters admitted but they may operate as estoppel.

STATEMENTS BY PERSONS WHO CANNOT BE CALLED (PRODUCED) AS WITNESSES

32. Statement(written or verbal) of relevant facts made by a person who can`t be called as witness
[because he is dead or who cannot be found or who has become incapable of giving evidence or whose
attendance cannot be procured without an amount of delay or expense which under the circumstances
of the case appears to the Court unreasonable] are relevant facts in the following circumstances-

Statement relates to-

 cause of his death or
 circumstances of transaction resulting in his death
When cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not at the time when
they were [made under expectation of death] and whatever may be the nature of the proceeding in
which the cause of his death comes into question.
ILLUSTRATION
The question is whether A was murdered by B or
A dies of injuries received in a transaction in the course of which she was ravished. The question
is whether she was ravished by B or
The question is whether A was killed by B under such circumstances that a suit would lie against B
by A's widow.
Statements made by A as to the cause of his or her death, referring respectively to the
murder, the rape and the actionable wrong under consideration, are relevant facts.

Statement made in the ordinary course of business particularly when it consists of-
 Entry made by him in books kept in ordinary course of business or in discharge of professional
duty or
 An acknowledgment written or signed by him of the receipt of money/goods/securities/property
of any kind or
  Document used in commerce written or signed by him.
ILLUSTRATION
The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that
on a given day he attended A's mother and delivered her of a son, is a relevant fact.

The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on
a given day the solicitor attended A at a place mentioned in Calcutta for the purpose of
conferring with him upon specified business, is a relevant fact.

The question is, whether rent was paid to A for certain land.
A letter from A's deceased agent to A, saying that he had received the rent on A's account
and held it at A's orders, is a relevant fact.

Statement is against the pecuniary or proprietary interest of maker or if true it would expose him
or would have exposed him to a criminal prosecution or to a suit for damages.
ILLUSTRATION
The question is whether A & B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the
celebration would be a crime is relevant.

Statement gives the opinion of maker as to the existence of public right/custom or public interest
of the existence of which if it existed, he would have been likely to be aware and such statement it
was made before any controversy as to such right custom or interest had arisen.
ILLUSTRATION
The question is, whether a given road is a public way.
Statement by A, a deceased headman of the village, that the road was public is a relevant fact.

Statement relates to the existence of relationship by blood/marriage/adoption between persons as to

whose relationship maker had [special means of knowledge] and it was made before the question in
dispute was raised.
ILLUSTRATION
The question is, whether A, who is dead, was the father of B.
A statement by A that B is his son, is a relevant fact.

The question is whether and when A & B were married.

An entry in a book by C, the deceased father of B, of his daughter's marriage with A on a given
date is a relevant fact.

Statement relates to the existence of relationship by blood/marriage/adoption between deceased persons

and is made in
 any will or deed relating to the affairs of the family (family-settlement) to which any such
deceased person belonged or
 any family pedigree or upon any tombstone, family portrait or other thing on which such
statements are usually made,
And such statement was made before the question in dispute was raised.

When the statement is contained in any deed, will or other document which relates to any such
transaction as is mentioned in section 13 clause (a).

When the statement was made by a number of persons which expressed feelings or impressions on their
part being relevant to the matter in question.
ILLUSTRATION
A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as
to the similarity of the caricature and its libelous character.
The remarks of crowd of spectators on these points may be proved.

When statement of any person relating to his conduct [i.e. act (thing done) + statement (spoken or written)] is produced by
indirect oral evidence by it is called hearsay evidence. Direct evidence must be given regarding such statement.
Indirect evidence is hearsay evidence. It denotes that kind of evidence which does not derive its value solely from the credit
given to witness himself, but which rests also in part on the veracity and competence of some other person. Thus this species
of evidence is not given upon oath. Law requires all evidence must be given under personal responsibility so as to expose him
to penalty if false evidence given.
SUBRAMANIAM V PUBLIC PROSECUTOR- accused was caught with ammunition. Accused gave evidence that he was acting under pressure
of terrorists. Evidence was admitted.
What is direct evidence- sec. 60
There is general rule that hearsay evidence is not admissible subject to following exceptions-
Res-gestae rule
Person to whom admission or confession made
Sec 32 & 33
Public document
Hearsay evidence is excluded on the ground that it is always desirable in the interest of justice to call maker of statement
for his examination in court.
It is permitted because no better evidence is available

33. Evidence given by a witness in a judicial proceeding or

Evidence before any person authorized by law to take it
Is relevant for the purpose of proving the truth of facts which such evidence states
 in a subsequent judicial proceeding or
 in a later stage of the same judicial proceeding,
when the witness is dead or cannot be found, or is incapable of giving evidence or if his
presence cannot be obtained without an amount of delay or expense which, under the circumstances
of the case, the Court considers unreasonable or is kept out of way by the adverse party.
Provided that
 Proceeding was between the same parties or their representatives in interest
 Adverse party in the first proceeding had the right and opportunity to cross-examine
 Questions in issue were substantially the same in the first as in the second proceeding.
Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

34. Entries in account books (including A/C books maintained in electronic form) regularly kept in
the course of business [referring to a matter into which the Court has to inquire] are relevant
But mere such statements shall not be sufficient evidence to charge any person with liability.
ILLUSTRATION
A sues B for Rs. 1,000, and produce entries in his A/C books showing B to be indebted to him to this
amount. The entries are relevant but are not sufficient without other evidence to prove the debt.

Entry in any public/other official → book/register/record is relevant if

 stating a fact in issue or relevant fact and
 Made by a public servant in the discharge of his official duty or by any other person in
discharge of a duty specially enjoined by the law of the country.

Statements of facts in issue or relevant facts is relevant if

 Made in maps or charts published and generally offered for public sale or
 Made in maps or plans [under the authority of Central/State Government.

If Court has to form an opinion as to the existence of any [fact of a public nature] any statement
of it is relevant fact if contained in recital of-
 Act of UK Parliament or notification by the Crown Representative appearing in the Official
Gazette in any printed paper purporting to be the London Gazette or the Government Gazette of
any Dominion/colony/possession of his Majesty is a relevant fact]
 Central Act or State Act or in a Government notification

If Court has to form an opinion as to a law of any country, any statement of it is relevant if-
 contained in a book printed or published under the authority of the Government of such
country and containing any such law and
 contained in any report of a ruling of the Courts of such country contained in a books to be
a report of such rulings

39. When evidence is given of any statement which forms part of-
 Longer statement or
 Conversation or
 Isolated document or Document contained in a book or connected series of letters or papers
Court has discretion to allow how much evidence should be given of statement contained in above
stated for the full understanding of the [nature and effect of the statement and of the
circumstances under which it was made]

JUDGMENT WHEN RELEVANT (u/s 40-44)

40. [Judgment, order or decree] preventing any Court from-
 Holding trial
 Taking cognizance of a suit.
It is relevant fact when question is whether such Court ought to hold trial or take cognizance of
it.
Court is prevented to (a) hold trial u/s 10 cpc and (b) take cognizance u/s 11 cpc.

41. [Final judgment order or decree] passed in exercise of probate/admiralty/matrimonial/insolvency

jurisdiction
 conferring any legal character to any person or
 taking away any legal character from any person or
 declaring any person to be entitled to any legal character or specific thing not as against
any specified person but absolutely (judgment in rem)
It is relevant when question arises as to the existence of any such legal character or the title of
any such person to any such thing.
Such judgment order or decree is conclusive proof that-
 Any legal character which it confers accrued at the time when [it came into operation] or
 Any legal character which it takes away from any such person ceased at the time from
which it declared that it had [ceased or should cease]
 Any legal character which it declares accrued to that person at the time when [it declares] it
to have accrued to that person.
 Anything to which it declares any person to be so entitled was the property of that person at
the [time from which it declares that it had been or should be his property]
Sec. 41 deals with judgment in rem while sec 40 deals with judgment in personam.
Judgment in rem operate against the parties (and privies) + whole world whereas judgment in personam operate against parties
(and privies) only as in case of contract tort or crime. Former affect parties + non-party latter affect only party
Judgment of matrimonial court for divorce (nullity of marriage) is in rem but judgment for restitution of conjugal rights is
in personam.

42. [Judgment orders or decrees] other than those mentioned u/s 41 related to [matters of public
nature] relevant to the enquiry is relevant but it is not conclusive proof of what they state.
Illustration
A sues B for trespass on his land. B alleges the existence of a public right of way over the land,
which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on
the same land, in which C alleged the existence of the same right of way, is relevant, but it
is not conclusive proof that the right of way exists.
Matter of public nature means matter of public interest like customs, prescriptions, toils, boundaries between parishes
counties manors, right of ferry right of way sea-walls etc. this sec also deals with judgment in rem.

43. Judgments orders or decrees other than those mentioned u/s 40/41/42 are irrelevant
Unless it is fact in issue or relevant fact under some other provision of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them. C in each case
says that the matter alleged to be libellous is true, and the circumstances are such that
it is probably true in each case, or in neither.
(b) A obtains a decree against C for damages on the ground that C failed to make out his
justification. The fact is irrelevant as between B and C.
(c) A prosecutes B for adultery with C, A's wife.
B denies that C is A's wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that
she never was A's wife. The judgment against B is irrelevant as against C.
(d) A prosecutes B for stealing a cow from him. B is convicted.
(e) A afterwards sues C for the cow, which B had sold to him before his conviction. As
between A and C, the judgment against B is irrelevant.
(f) @ A has obtained a decree for the possession of land against B. B's son, c murders A in
consequence. The existence of the judgment is relevant, as showing motive for a crime.
(g) @ A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue.
 (h) @ A is tried for the murder of B. The fact that B prosecuted A for libel and that A
was convicted and sentenced is relevant under section 8 as showing the motive for the fact
in issue.

44. Judgment order or decree which is relevant u/s 40/41/42 and proved by the adverse party may be
shown that
 It was delivered by a Court not competent to deliver it or
 It was obtained by fraud or collusion.

OPINIONS OF THIRD PERSONS WHEN RELEVANT

45. Expert opinion-
If Court has to [form an opinion] upon matter of [FASI]
 foreign law or
 art or
 science or
 Identity of handwriting (which includes signature) or finger impressions.
Then opinion upon that matter of person who is [especially skilled in it] called expert is relevant
Illustrations
(a) The questions is whether the death of A was caused by [poison]
The opinions of experts as to the [symptoms produced by the poison] by which A is supposed to have
died are relevant.
(b) The question is whether A at the time of doing a certain act was by reason of [unsound mind]
incapable of knowing the nature of the act or that he was doing what was either wrong or contrary
to law.
The opinions of experts upon the question whether the [symptoms exhibited by A commonly show
unsoundness of mind] and whether such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or of knowing that what they do is either wrong or
contrary to law, are relevant.
(c)The question is, whether a certain document was written by A. Another document is produced which
is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person
or by different persons are relevant.
Expert means person especially skilled upon any matter.
Expert opinion means opinion upon any matter (except legal matter) on which court seeks opinion.
Thus they assist the court to form an opinion when court require assistance as judge is not all in
all.
There is difference between amicus-curae and expert opinion.
Amicus curae means friend of court who give opinion to court on legal matter (composing senior
advocate or law academicians) concerning Indian law whereas expert opinion is opinion on non-legal
matter. Former are not called as witness in court whereas latter are called as witness in court.
Interpretation of law is done by court only whether it be Indian or foreign.
MOBARAK ALI SC-
Expert gives opinion court draw conclusion (inference) upon that opinion. Expert is not permitted
to draw inference upon any matter. Drawing inference after taking expert opinion and his own is
court duty.
MURARILAL CASE SC-
Expert opinion can be substantial evidence even if un-corroborated except in handwriting. However
as a caution corroboration should be done.
KANPUR UNIVERSITY V SAMEER GUPTA SC-
Student can be expert.

Science means established fact based on special study or experiment. Following matter is science-
*usages and customs of tribes and castes of certain area *soil erosion *adulteration *hair analysis
*DNA *serology (expert of blood) *chemical analysis (heroine or alcohol)
*nautical assessor`s opinion *ballistic (fire arms)*toxicology
*radiology (age) But in ascertaining age documentary evidence prevails over radiologist opinion
*Postmortem (rigor mortis i.e. time of death + types of injuries and how caused)
SELBIE CASE SC-
Nacro analysis test is unconstitutional. Hence expert opinion not relevant
45A When court has to form an opinion upon any matter relating to any [information transmitted or
stored] in any [computer resource or any other electronic or digital form]
Opinion of [examiner of electronic evidence referred u/s 79A] of information technology act 2000 is
a relevant fact.

46 If expert opinion is relevant then any [fact supporting or inconsistent with it] also becomes
relevant
Illustrations
(a)The question is whether A was [poisoned] by a certain poison.
The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which
experts affirm or deny to be the symptoms of that poison, is relevant.
(b)The question is whether an [obstruction to a harbor] is caused by a certain sea-wall.
The fact that other harbors similarly situated in other respects, but where there were
no such sea-walls began to be obstructed at about the same time, is relevant.

47 When the Court has to form an opinion as to [handwriting of any person] which is on any document
the opinion of any [person acquainted with the handwriting of that person] is a relevant fact.
Explanation- A person is said to be acquainted with the handwriting of another person.
(a) When he has [seen that person writing] or
(b) When he has [received documents] purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person or
(c) When in the ordinary course of business document [habitually submitted to him] purporting to be
written by that person.

Illustration
The question is, whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting
to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D
is B's broker to whom B habitually submitted the letters purporting to be written by A for the
purpose of advising with him thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting of A are
relevant, though neither B, C nor D ever saw A write.
Handwriting may be proved by following evidence:
 Expert opinion u/s 45
 Person acquainted with handwriting of that person u/s 47
 Writer himself u/s 67
 Court comparing the document in question with [document proved to the satisfaction of court to be genuine] u/s 73
Document wholly in handwriting of that person i.e. autograph (holograph) but if in handwriting of another person but signed
by him signature is called onomastic and if signed by symbol is called symbolic

47A If court has to form an opinion as to digital signature of any person [opinion of certifying
authority which has issued digital signature certificate] is relevant fact

48 When Court has to form an opinion as to the existence of any [general custom or right] the
opinion on it of persons who would be likely to know of its existence if it existed is relevant
Explanation- The expression "general custom or right" includes customs or rights common to any
[considerable class of persons]
Illustration
The right of the villagers of a particular village to use the water of a particular well is a
general right within the meaning of this section.

49 when the court has to form an opinion as to

(a) Usages and tenets of any family or
(b) Constitution and government of any [religious or charitable] foundation or
(c) Meaning of words used in particular districts or by particular classes of people.
Opinions of person having [special means of knowledge on it] are relevant facts.

50 When the Court has to form an opinion as to the [relationship of one person with another]
[expressed by their conduct or any other person`s conduct]
Opinion of any person who has special means of knowledge on it (whether as family member or
otherwise) is a relevant fact.
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the
Indian Divorce Act or in prosecution u/s 494(bigamy) 495(adultery) 497 or 498 of IPC.
Marriage has to be proved in regular way.
Illustrations
The question is whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife is
relevant.
The question is whether A was the legitimate son of B. The fact that A was always treated as such
by members of the family is relevant.

51 If opinion of third person who is living is relevant the grounds on which such opinion is based
are also relevant.
Illustration
An expert may be asked to give an account of experiments performed by him for the purpose of
forming his opinion.

CHARACTER WHEN RELEVANT U/S 52-55

52 [In civil cases] evidence of party-character is irrelevant [when making probable or improbable
any conduct imputed to him] except in so far as such character appears from facts otherwise
relevant.
In dealing with character evidence distinction must be drawn between cases when character is in issue and character is not
in issue. And whether case is civil or criminal.
U/s 52 character is not in issue but conduct is in issue.
Where character is in issue character evidence is relevant but when it is not in issue character evidence can`t be given to
make probable or improbable any other issue.
This sec deals with parties only. Evidence of witness character is always relevant as it affect his credit/trustworthiness

53 [In criminal case] evidence of accused good character is relevant.

Character evidence is relevant under this sec. only when court is in [doubt whether party is guilty or not] in an offence
charged. Otherwise it is weak evidence because it can`t outweigh positive evidence.

53A [In criminal case] evidence of-

 Victims character or
 victim`s previous sexual experience with any person
Is irrelevant when consent is fact in issue in following offence under IPC-
354/354A/354D or its attempt
376/376A/376E or its attempt

54 [In criminal case] the fact that the accused person has a bad character is irrelevant unless
evidence of good character is first given in which case it becomes relevant.
Explanation 1. This section does not apply to cases in which the bad character of any person is
itself a fact in issue.
Explanation 2.-A previous conviction is relevant as evidence of bad character.
Previous conviction is also relevant
 When accused is liable to enhanced punishment u/s 75 IPC.
 showing motive u/s 8 or
 Showing existence of state of mind or bodily feeling u/s 14.

55 [In civil cases] evidence of [character of plaintiff affecting the amount of damages] which he
ought to receive is relevant.
Explanation.
Word character includes both general reputation and general disposition [Except u/s 54]
Reputation and disposition is not general when shown by particular act i.e. it must be shown by
series of acts.
In civil cases good character is presumed so it do not increase damages but bad character is not presumed so it decrease
damages. Thus in defamation suit general bad reputation decrease damages.
Character means “what a person is” in actual. Character includes reputation and disposition.
 Reputation means “what a person is” in the thinking of others.
 Disposition means specific attitude and nature of that person.
Disposition is permanent whereas temper is temporary. A person may be of good disposition but of bad temper and vice versa.
Character evidence can be given by those [who know him and have dealing with him in current]
For ex witness giving character evidence of accused said I know him when I was boy in school. Evidence was discarded.

FACTS WHICH NEED NOT BE PROVED- CHAPTER 3.

56. Fact of which the Court will [take judicial notice] need not to be proved.
Taking judicial notice means recognizing any fact to be [existing or true] without being it proved. These are such fact
which is in knowledge to reasonable person.
For ex. Scarcity of dwelling, poor roads, acquiring academic distinction by blind person, certain area is terrorist stricken
Court may take judicial notice of what could happen when bandh is called.
Court cannot take judicial notice of fact stated in newspaper. Presence of reporter who personally perceived the reported
fact would be necessary.
Court can’t take judicial notice of fact that sale deeds are generally undervalued.

57 Court shall take judicial notice of the following facts:

(1) All laws in force in Indian Territory.
(2) All [public Acts] passed or hereafter to be passed by UK Parliament and all [local and
personal] Acts directed by UK Parliament to be judicially noticed.
(3) Articles of War of [Indian Army/Navy/Air Force]
(4) Course of proceeding of UK parliament/Indian Constituent Assembly/legislature (center or state)
(5) All seals of which English Courts take judicial notice, seals of all the Courts in India and of
all Courts out of India established by the authority of [the Central Government, the seals of
Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals
which any person is authorized to use by [Constitution or an Act of UK Parliament or Regulation
having the force of law in India.
(6) Accession to office, names, titles, functions and signatures of persons holding public office
in any State, if the fact of their appointment is notified in any Official Gazette.
(7) Time-division and geographical divisions of the world and public festivals, fasts and holidays
notified in the Official Gazette;
(8)The existence, title and national flag of every State or Sovereign recognized by Indian govt.
(9)The territories under the dominion of Indian Govt.
(10) Commencement, continuance and termination of hostilities between Indian govt. and any
other State or body of persons
(11)The names of the [members and officers of court (including their deputies subordinates and
assistants) and [officers acting in execution of court process] and [all advocates,
attorneys, proctors, vakils, pleaders and other person authorized by law to appear or act before
it]
(12)The rule of the road [on land or at sea].

In all these cases and also on all matters of public history, literature, science or art, the
Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to
do so unless and until such person produces any such book or document as it may consider
necessary to enable it to do so.

58. Following admission need not to be proved-

Admission [At hearing] by parties or their agents or
Written admission [Before hearing] by parties or their agents or
Implied admission by parties or their agents by rule of pleading.
Provided that the Court may require the facts admitted to be proved otherwise than by such
admissions.
Admission before suit is dealt by sec 17.
This sec. deals with admission after suit (at or before hearing) i.e. judicial admissions + admission in pleading.
Admission u/s 58 stands on higher footing from evidentiary admission which are receivable at trial as evidence because
former constitute waiver of proof latter can be shown to be wrong.
There was controversy that gift was not voluntary. Parties admitted that it was given with consent. Held to be judicial
admission.
ORAL EVIDENCE- chapter 4
59 All facts may be proved by oral evidence except contents of documents (including
Electronic records)
Oral evidence can’t be given on contents of document because that document is best evidence of its contents.
However contents of document may be proved by oral evidence when secondary evidence can be given on its contents.
Oral means spoken (verbal). However Oral evidence must not in all cases be spoken. Any method of communication which have
[effect of spoken] which circumstances or physical condition of witness requires.
Deaf-mute may testify by signs by writing or through interpreter.
QUEEN EMPRESS V ABDULLA
Squeezing the hand of questioner in affirmative.
Nodding head in affirmative or negative is oral evidence.

60. How oral should be.

Oral evidence must be direct i.e.
 If it refers to a [fact which could be seen] evidence must be given by a witness who says he
saw it.
 If it refers to a [fact which could be heard] evidence must be given by a witness who says he
heard it.
 If it refers to a [fact which could be perceived by any other sense or in any other manner]
evidence must be given by a witness who says he perceived it by that sense or in that manner.
 If it refers to an [opinion or grounds on which that opinion is held] evidence must be given
by person who holds that opinion on those grounds.
Provided that expert opinion [expressed in any treatise commonly offered for sale and that
treatise expressed the grounds on which such opinions are held] it may be proved by the
production of such treatise if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness without an amount of delay
or expense which the Court regards as unreasonable.
Provided that if it refers to the [existence or condition of any material thing other than a
document] the Court may require the production of such material thing for its inspection.
Word direct is opposed to hearsay (mediate or derivative).

DOCUMENTARY EVIDENCE- chapter 5

Contents of document (u/s 61-66)
61. Contents of documents may be proved either by primary or secondary evidence.
There is no other method allowed by law to prove the contents of document.

62. Primary evidence means the document itself (original document) and includes:
 [Document] executed in several parts- Each part is primary evidence of original document.
 [Document] executed in counterpart and each counterpart is executed by one or more but not
all parties- Each counterpart is primary evidence as against the parties executing it.
 [Documents] made by 1 uniform process as in case of printing/lithography/ photography- Each
is primary evidence of contents of the rest.
If [documents] are copies of a common original they are not primary evidence of the contents
of original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from
one original. Any one of the placards is primary evidence of the contents of any other, but no one
of them is primary evidence of the contents of the original.
Executed means signed or sealed.
Document executed in several-part i.e. No. of document = No. of parties. Here each document is executed by all party.
Document executed in counter-part i.e. No. Of document = No. of parties. Here each document is executed by one party only
and then document is handed to other party for executing it.
One uniform process-
Making two copy of wills by process of typing in which second copy was obtained by carbon impression. Both were duly
executed and attested. Both were held to be original document.
Copies in police station diary so made or sale invoice so made are another example.

63. Secondary evidence means and includes (i.e. list is inclusive)

(1) Certified copies (given under the provisions hereinafter contained)
Certified copies is dealt u/s 76-79 & 86. Correctness of certified copies is presumed but correctness of other copies will
have to be proved. Ex. Certified copies of sale deeds or money-lenders licenses.
(2) Copies of original by mechanical processes which in themselves insure the accuracy of copy and
copies compared with such copies.
Thus copy of a copy is inadmissible unless that copy is made by mechanical process (copying machine) which ensures the accuracy
of a copy.
Photo state copies of document should be accepted when compared with original. Photo state copies of power of attorney executed
by competent authority and authenticated by notary public and proved from original is admissible in evidence.
Photograph is a copy prepared from negative (original document). Hence where neither the original was produced nor photographer
was examined eye witness were not allowed to be contradicted by photograph of happening.
(3) Copies made from or compared with the original.
Photo-state copy of rent note which was proved to be of original though not compared with original was admissible.
(4) Counterparts of documents as against the parties who did not execute them.
(5) Oral accounts of contents of document given by some person who has himself seen it (i.e. he read
it or was explained)

Illustrations
(a) A photograph of original is secondary evidence of its contents, though the two have not been
compared, if it is proved that the thing photographed was the original.
(b) Copy compared with a copy of a letter made by a [copying machine] is secondary evidence of the
contents of the letter, if it is shown that the copy made by the copying machine was made from the
original.
(c) Copy transcribed from a copy, but afterwards compared with the original is secondary evidence
but the copy not so compared is not secondary evidence of the original, although the copy from
which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine-copy of the original, is secondary evidence of the original.
List is not exhaustive. Court must however be satisfied that document sought to be introduced as secondary evidence is
faithful and accurate reproduction of original document.
R.M.MALKANI/RAMA REDDY/NAGREES- CASE SC- Tape recorded conversation is admissible as secondary evidence.
DEORAL CASE- Judge Abinger said all categories of secondary evidence are of equal ranking.

64. Documents must be proved by primary evidence except when secondary evidence may be given.

65. Secondary evidence may be given on the [condition/contents/existence of a document] in

following cases-
(1) If original is shown to be in possession or power-
 of person against whom the document is sought to be proved or
 of any person out of reach of or not subject to the process of Court or
 of any person legally bound to produce it and
That person in spite of receiving notice mentioned u/s 66 does not produce it
(2) If original has been destroyed or lost or when it can’t be produced within reasonable time for
any other reason [not arising from his own default or neglect]
(3) If original is of such nature that it is not easily movable.

(4) If original have been [proved to be admitted in writing] by the person against whom it is
proved (including his representative in interest)

(5) If original is a public document u/s 74.

(6) If original is a document whose certified copy is permitted by any law to be given in evidence.

(7) If originals consist of [numerous accounts] or [other documents] which cannot be conveniently
examined in Court and the fact to be proved is the general result of the whole collection.

In cases (1) (2) (3) any secondary evidence of the contents of the document is admissible.
In case (4) written admission is admissible.
In cases (5) (6) certified copy of document is admissible.
In case (7) evidence may be given as to the general result of the documents by any person who has
examined them, and who is skilled in the examination of such documents.

65A Contents of electronic record may be proved by provisions mentioned u/s 65B.

65B [Contents of electronic record] if produced by computer [directly or with or w/o human
intervention] by means of any appropriate equipment hereafter called computer output] shall be
deemed to be document and shall be admissible in evidence without production of original as
evidence of its contents if
 Condition mentioned under this section is satisfied] and
 It is certified by sign of person occupying official position by doing any of the following
thing-
i Identifying the electronic record containing the statement and describing the manner in which
it was produced
 ii Giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that electronic record was produced by a
computer.

66. Notice must be given in manner prescribed by law and if not prescribed then in such manner as
court considers reasonable.
Manner of giving notice to produce a document under cpc is laid down under o11r15
Manner of production of document under crpc is laid down u/s 94-98.

Manner of proving handwriting (genuine)

67. Handwriting (writing/signature) may be proved by the [person whose handwriting it is] by his
handwriting that it is genuine.
73. Handwriting (writing/signature) or Seal may be proved by court itself comparing it with others
admitted or proved.
Explanation- Court may direct any person present in Court to write any words or figures for the
purpose of enabling the Court to compare.
AJIT SAVANT MAJAGAVI SC- dispute of handwriting should not be decided only on such comparison
BOMBAY STATE V KATHI KALU SC- THIS SEC. DO NOT VIOLATE ART 20(3) OF CONSTITUTION.

Manner of proving digital signature (genuine)

67A. Digital signature on [electronic record] must be proved except in case of secure digital
signature.
73A. Digital signature may be proved with court direction by-
Digital signature certificate verifying it produced by [that person or controller or certifying
authority]
Applying to public key listed in digital signature certificate who verify it.

Rule of attestation (u/s 68-72)

If attestation of document is reqd. by law then document shall not be used as evidence unless one
attesting witness has been called for the purpose of proving its execution if attesting witness is
(a) Alive
(b) Subject to Court process and
(c) Capable of giving evidence.
Attesting witness confirms execution of document if question (dispute) arises as to its execution.
Provided that
Calling attesting witness is not necessary when document is registered under Indian registration
act 1908 (document not being a will) unless executant denies execution.
Admission by executant that he execute such document, it is sufficient proof of its execution
against him although document is reqd. by law to be attested.
If no such attesting witness can be found two things must be proved.
 Executant signature is genuine.
 Attesting witness signature is genuine
If attesting witness [denies or does not recollect] the execution of document execution of document
may be proved as there were no attesting witness

Document not reqd. by law to be attested may be proved as if it were unattested.

74. Public documents.

The following documents are public documents:
(1) Documents containing acts or records of acts-
 Of sovereign authority.
 Of official bodies and tribunals
 Of public officers [executive/legislative/judicial] of India or of foreign country
(2) Public records of private document.
Documents are divided into 2 categories. Public documents and private documents.
Public documents are exception of hearsay evidence. Statements contained in it are admissible because it is made by
[authorized and competent agents of public] in the course of their official duty and facts contained in it are of public
interest.
Acts means action. It includes only completed action not preparatory or tentative character. Investigation made by police
officer under crpc or otherwise may or may not result in action i.e. charge or discharge. So statements recorded by police
u/s 161 crpc is not public document.
Following are not public document:
  Document which is letter of executive is not public document.
 Plaint or ws is not public document
 But post mortem report nor any certificate issued by doctor regarding date of death is a public document because
they must be proved by concerned doctor.
Following are public document:
 If document is brought into existence for [public inspection only] as a result of survey inquiry inquisition carried
out by lawful authority.
 Records maintained by revenue officers relating to land [revenue/survey/settlement]
 Pahanies and Faisal patties.
 court orders or FIR or certificate given by school master or electoral roll or Hindu marriage register
 Medico-legal report prepared by medical officer.

Public records is
(a) Record reqd. by law to be kept in the discharge of legal duty or
(b) Record directed by law to serve as a [memorial and evidence] of something written/said or done.

Private documents become public records when it is filed and public official is reqd. or directed by law as stated above.
 Memorandum of association of company
 Waqf-deed or sale deed
 Guwahati HC has held that regd. Power of attorney is not public document because registration act 1908 provides for
registration of documents and method of registration is that the [contents of documents are copied in a book]
maintained in office of sub-registrar (commonly called volume book). Thus book contains only copies of documents and
not original document. Only those public records which keep private documents in original and not copies of private
documents are treated as public documents.

75. Private documents.

Documents which are not public document are private documents.
Ex. Contract leases mortgage deeds etc.

76-78. Manner of proving public documents.

Contents of public document may be proved by its certified copy.
It means copy of public document
(a) Containing certificate written at the foot of such copy that:
 It is true copy of public document
 It shall be dated and executed by such officer with his name and his official title and
 It shall be sealed whenever such officer is authorized by law to make use of seal.
(b) Issued by public officer having custody of public document and
(c) Issued to any person having right to inspect it and make payment of legal fees.
Explanation- Any officer who by the ordinary course of official duty is [authorized to deliver such
copies] shall be deemed to have custody of such documents within the meaning of this section.

Following types of public document may be proved in following ways-

Acts/orders/notifications of [Central Government or any of its departments] or [any State
Government or any of its department-
 By records of that department certified by its head or
 By document printed by order of any such Government.
Legislative proceedings-
 By its journals or by published Acts or abstracts or
 By document printed by order of such Government
Municipal body proceedings-
 By a copy of such proceedings certified by the legal keeper thereof or
 By document printed by the authority of such body

PRESUMPTIONS AS TO DOCUMENTS (u/s 79-90A)

Shall presume (u/s 79-85 & 89)

79. Presumption as to [genuineness of following document] and [holding of official character by

whom it was certified/signed which he claims in such document]
 certificate/certified copy/other document which is by law declared to be admissible as
evidence of any particular fact and
 which purports to be duly certified by any officer of the Central Government or of a
State Government, or by any officer in the State of Jammu and Kashmir who is duly
authorized thereto by the Central Government.
Provided that such document is substantially in that form and executed in manner directed by law in
that behalf.

80. Presumption as to [genuineness of following document produced before court] and [trueness of
circumstances under which such document was taken] and [duly taking of such document]
(a)Record of evidence given by witness and [taken in in judicial proceeding or before any officer
authorized by law to take such evidence and signed by judge or other officer]
(b)Statement (including confession) by prisoner/accused [taken in accordance with law and signed by
judge or officer]

81. Presumption as to genuineness of following document

(a) Official Gazettes/newspaper/journal
(b) Directed by any law to be kept by any person if kept substantially in the form required by law
and is produced from proper custody.

81A Presumption as to genuineness of electronic record

(a) Official gazette
(b) Directed by any law to be kept by any person if kept substantially in the form required by law
and is produced from proper custody.

82. Presumption as to genuineness of document admissible in England/Ireland without proof of

Signature or seal or holding of official character

83. Presumption as to maps or plans made by authority of central/state Government-

It were so made and are accurate.

84. Presumption as to genuineness of following books

(a) Printed or published under the authority of the Government of any country and
(b) Containing laws/court-decisions of that country

85. Presumption as to execution and authenticity of power of attorney

If executed before and authenticated by notary public or [any Court, Judge, Magistrate] [Indian Consul
or Vice-Consul] or [representative of the Central Government]
Power of attorney means instrument by which specified person is empowered to act for and in the name of person executing it.
This sec. does not exclude other legal mode of proving execution of power of attorney e.x. 23A of Registration Act

85A. Presumption as to electronic agreement

It is concluded if such agreement have digital signature of parties.
Agreement not containing in document but containing in electronic record is electronic agreement.

85B. Presumption as to secure electronic record.

It is not altered since the specific point of time to which [secure status relates]
Presumption as to secure digital signature
It is affixed by subscriber with intention of signing or approving the electronic record

85C. Presumption as to correctness of [information] listed in digital signature certificate.

89. Presumption as to [execution attestation and stamping] in the manner reqd. by law.
If after notice (call) to produce it is not produce

May presume (u/s 86-90A except 89)

88. Presumption as to telegraphic messages forwarded from telegraph office.

It is sent (delivered) to addressee
But the Court shall not make any presumption as to the person by whom such message was delivered for
transmission.

88A. Presumption as to electronic messages forwarded by originator through electronic mail server
Ditto
90. Presumption as to [genuineness of handwriting on document] [duly execution and attestation]
purporting or proved to be 30 years old produced from proper custody
Explanation- Documents are said to be in proper custody if
 they are at natural place and
 they are under care of the person with whom they would naturally be
But custody is not improper if it is proved to have a legitimate origin or if the circumstances of
the particular case are such as to render such an origin probable.
This explanation applies also to section 81.

Illustrations.
a) A has been in possession of landed property for a long time. He produces from his custody
deeds relating to the land showing his titles to it. The custody is proper.

b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is
in possession. The custody is proper.

c) A produces deeds relating to lands in B's possession which were deposited with him by B for
safe custody. The custody is proper.

90A. Presumption as to genuineness of [digital signature on electronic record] purporting or proved

to be 5 years old produced from proper custody.

CHAPTER 6-EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

91. Document containing:
(a)Terms of contract/grant/other transfer of property reduced voluntarily in the form of a document.
(b)Matter required by law (obligatory) to be reduced in the form of a document.
Shall be proved by primary evidence (document itself) or secondary evidence if permitted
Illustration
 If a contract is contained in a bill of exchange, the bill of exchange must be proved.
 Rent payable under lease to be in writing. Oral evidence of payment not permitted.

Exception 1- If a [public officer is required by law to be appointed in writing] and if it is shown

that any [particular person has acted as public officer] the writing by which he is appointed need
not be proved.
Exception 2- Wills admitted to probate in India may be proved by probate.

Explanation 1- This section applies equally to cases whether terms are contained in one document or
contained in more than one documents.
ILLUSTRATION
If a contract is contained in several letters all the letters in which it is contained must be proved.

Explanation 2- If there are more originals than one, one original only need be proved
ILLUSTRATION
If a bill of exchange is drawn in a set of three, only one need be proved.

Explanation 3- oral evidence cam be given

 On fact other than fact of [above stated terms or matter] or
 To explain the ambiguity in [above stated terms or matter]
Illustrations
(a) A contracts in writing with B for the delivery of indigo upon certain terms. The contract mentions
the fact that B had paid A the price of other indigo contracted verbally on another occasion.
Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

(b) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.
The evidence is admissible.
This sec. is based on principle that best evidence of which the case in its nature is susceptible should be given or written
should be proved in written.
Terms are condition laying down what is to be done or not to be done for the [formation or existence] of contract excluding
condition precedent.
Receipt is not any term. So extrinsic evidence (oral agreement/oral statement) can be given on it.
Probate means copy of will certified under seal of court. Probate is secondary evidence as to contents of will.
Sec 91 scope is so broad that it is called backbone of civil cases.

92. When any document is proved u/s 91 [no oral agreement or statement i.e. extrinsic evidence]
shall be proved as between the parties for the purpose of varying its terms.
Illustration
 Insurance policy is effected on goods "in ships from Calcutta to London". The goods are
shipped in a particular ship which is lost. The fact that particular ship was orally exempted
from the policy cannot be proved.
 A agrees absolutely in writing to pay B Rs.1000 on 1 March 1873. The fact that at the same time
an oral agreement was made that the money could be paid till 31 March cannot be proved.
 An estate called "the Rampur tea estate" is sold by a deed which contains a map of the
property sold. The fact that land not included in the map had always been regarded as part of
the estate and was meant to pass by the deed cannot be proved.
Proviso (1)
Any fact may be proved which would invalidate any document or which would entitle any person to
any decree or order relating to such document such as fraud intimidation, illegality, want of due
execution, want of capacity in any contracting party want or failure of consideration or mistake
in fact or law.
Illustration
A enters into a written contract with B to work certain mines, the property of B, upon certain terms.
A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
Proviso (2)
Separate oral agreement may be proved as to any matter on which a document is silent and which is
not inconsistent with its terms.
Illustration
 A orders goods to B by a letter in which nothing is said as to the time of payment and
accepts the goods on delivery. B sues A for the price. A may show that the goods were
supplied on credit for a term still unexpired.
 A sells B a horse and verbally warrants him sound. A gives B a paper in these words: "Bought
of A a horse of Rs. 500". B may prove the verbal warranty.
 A hires lodgings of B and B gives a card on which it is written that Rooms Rs. 200 a month. A
may prove a verbal agreement that these terms were to include partial fooding.
A hires lodgings of B for a year and a regularly stamped agreement, drawn up by an attorney,
is made between them. It is silent on the subject of board. A may not prove that fooding was
included in the term verbally.

Proviso (3)
Separate oral agreement may be proved constituting a condition precedent and being an obligation
under any such contract grant or disposition of property.

Proviso (4)
Subsequent oral agreement may be proved which rescind or modify any such contract, grant or disposition
of property except in cases in which such contract, grant or disposition of property is by law
required to be in writing or has been registered according to the law in force for the time being
as to the registration of documents.
Proviso (5)
Usages or custom by which incidents not expressly mentioned in any contract are usually annexed to
contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent
with the express terms of the contract.
Proviso (6)
Any fact may be proved which remove the ambiguities of document.
Illustration
A and B make a written contract to take effect upon the happening of a certain contingency. The
writing is left with B who sues A upon it. A may show the circumstances under which it was
delivered.
Sec 91 and 92 must be read together. They are complementary of each other i.e. explain each other.

93-100 contains provisions of interpretation of documents when document contains ambiguities

When documentary language is on its face ambiguous or defective (patent ambiguities)
Then evidence removing such ambiguities can’t be given.
Illustrations
 A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500".
Evidence cannot be given to show which price was to be given.
 A deed contains blanks. Evidence cannot be given of facts which would show how they were
meant to be filled.

When documentary language is plain in itself and [applies accurately] to existing facts evidence
can’t be given to show that it was not meant to apply to such facts.
Illustration
 A sells to B by deed "my estate at Rampur containing 100 bighas". A has an estate at Rampur
containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold
was one situated at a different place and of a different size.

When documentary language is plain in itself but it [applies inaccurately] to existing facts
evidence may be given to show which fact it was meant to apply.
Illustration
 A sells to B, by deed, "my house in Calcutta".
A had no house in Calcutta, but it appears that he had a house at Howrah of which B had been
in possession since the execution of the deed.
These facts may be proved to show that the deed related to the house at Howrah.

When documentary language [applies to more than one person or thing] but it ought to apply to any
one evidence may be given of facts which show which of those persons or things it was intended to
apply to.
Illustrations
 A agrees to sell to B, for Rs. 1,000, "my white horse". A has two white horses. Evidence may
be give of facts which show which of them was meant.
 A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether
Haidarabad in the Dekkhan or Haiderabad in Sind was meant.

When documentary language [applies partly to one set of existing facts and partly to another set of
existing facts] but the whole of it does not apply correctly to either evidence may be given to
show to which of the two it was meant to apply.
Illustration
A agrees to sell to B my land at X in the occupation of Y. A has land at X, but not in the
occupation of Y, and he has land in the occupation of Y but it is not at X. Evidence may be given
of facts showing which he meant to sell.

Evidence may be given to show the meaning of illegible or not commonly intelligible
characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations
and of words used in a peculiar sense.
Illustration
A, sculptor agrees to sell to B "all my mods". A has both models and modelling tools. Evidence
may be given to show which he meant to sell.
Mercantile usages has special meaning to many words. It can be interpreted under this section.

Persons who are [not parties to a document or their representatives in interest] may give evidence
of any facts tending to show a contemporaneous agreement varying the terms of the document
Illustration
A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery.
At the same time they make an oral agreement that three months credit shall be given toA. This
could not be shown as between A and B but it might be shown by C if it affected his interests.

Nothing in this Chapter shall affect any of the provisions of the Indian Succession Act as to the
construction of wills.

BURDEN OF PROOF- chapter 7

Burden of proof lies on whom.
It lies on person who is bound to prove existence of any fact whether affirmative or negative.
Sec.101-106 explain on whom BOP lies.

101. BOP lies on that person who desires the Court to give judgment as to any legal right or
liability [dependent on the existence of facts which he asserts]
Illustrations
 A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed.
A must prove that B has committed the crime.
 A desires a Court to give judgment that he is entitled to certain land in the possession
of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts.

102. BOP lies on that person who would fail if no evidence at all were given on either side in any
suit or proceeding.
Illustrations
 A sues B for land of which B is in possession and which [A asserts that it was left to him by
the will of C, B's father]
If no evidence were given on either side, B would be entitled to retain his possession.
Therefore the burden of proof is on A.
 A sues B for money due on a bond.
[Execution of the bond is admitted] but B says that it was obtained by fraud which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the
fraud is not proved.
Therefore the burden of proof is on B.
Word BOP has two different meaning in law of evidence
(1) Burden of establishing a case. It never shifts during trial. Sec 101 deals with it.
(2) Burden of introducing evidence. It shift during trial as soon as the party produces sufficient evidence to raise a
presumption in his favor. Sec. 102 deals with it. Shifting burden of proof is called onus of proof.

Sec.102 says burden of proof shift on that person who would fail if no evidence were given by him to rebut presumption against
him

103. BOP lies on that person who desires the Court to [believe in existence of any particular fact]
unless it is provided by any law that BOP of that fact shall lie on any particular person.
Illustration
 A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A
must prove the admission.
B wishes the Court to believe that at the time in question he was elsewhere. He must prove it
If pardanasin woman asserts undue influence in contract. BOP lies on other party to prove that no undue influence was used
because under contract act it is presumed.

104. BOP lies on that person who desire to give evidence of any [fact necessary to be proved] in
order to enable him to give evidence of any fact in issue or relevant fact
Illustrations
 A wishes to prove a dying declaration by B. A must prove B's death.
 A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.

105. BOP lies on accused who desires the court to believe in existence of circumstances bringing the
case within any of the General Exceptions of IPC or within any special exception (related to particular
crime only) or proviso contained in any other part of IPC or in any law defining the offence and the
Court shall presume the absence of such circumstances.
Illustrations
 A accused of murder, alleges that, by reason of unsoundness of mind, he did not know the
nature of the act.
The burden of proof is on A.
 A accused of murder, alleges that, by grave and sudden provocation, he was deprived of the
power of self-control.
The burden of proof is on A.
 Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt, shall be
subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.
106. BOP lies on that person who has special (exclusive) knowledge of any fact.
Illustrations
 When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.
 A is charged with travelling on a railway without a ticket. The burden of proving that he had
a ticket is on him.
Res-ipsa loquitur means thing speak itself. It is related to negligence which is apparent. If it is established sec 106
applies. So BOP lies on negligent party that there was no negligence.
SCOTT V LONDON & CATHERINE DOCKS CO.
If thing is shown to be under the management of his servants and accident is caused by that thing. It can be presumed that
servant were negligent.

Presumption relating to BOP (u/s 107-114-A)

107. When the [question is whether a person is alive or dead] and it is shown that he was [alive
within past 30 years] BOP lies on that person who affirms death.
There is presumption of aliveness.
108. When the [question is whether a person is alive or dead] and it is proved that he has [not
been heard of for 7 years by those who would naturally have heard of him if he had been alive] BOP
lies on that person who affirms aliveness.
There is presumption of death
Both sec. must be read together because latter is proviso and both constitute one rule when read together.
MUHAMMAD SHARIF V BANDE ALI
U/s 108 there is presumption of death only. It has to be proved when death took place i.e. prior/during/later of 7 yrs.

109. When the question is [whether there is relationship of partners/landlord & tenant/principal
& agent and it is shown that they have been [acting as such] BOP that they do not stand or have
ceased to stand to each other in such relationship is on the person who affirms it
There is presumption of existence of such relationship

110. When the question is [whether any person is owner of anything of which he is in possession]
BOP that he is not the owner is on the person who affirms that he is not the owner.
There is presumption of ownership. Thus Possession is prima-facie proof of ownership.
Possession means lawful not unlawful i.e. obtained by force or fraud.

111. When the question is [whether there is good faith in a transaction between parties one of whom
stands to the other in a position of active confidence] BOP that there was good faith in a
transaction is on the party who is in a position of active confidence.
Illustrations
 The good faith of a sale by a client to an attorney is in question in a suit brought by the
client. The burden of proving the good faith of the transaction is on the attorney.
 The good faith of a sale by a son just come of age to a father is in question in a
suit brought by the son. The burden of proving the good faith of the transaction is on the
father.
There is presumption of bad-faith if party is in position of active confidence.

Position of active confidence means such position that one is bound to protect the interest of other. Such position is hold
by trustee/executor/administrator/guardian/agent/minister of religion/medical attendant/auctioneer/attorney.
A an advocate gives 5000 rs to his scribe. But scribe rejected acceptance. BOP lies on scribe.
This section is based on principle which was called great rule of the court which means that whoever bargains in a matter of
advantage with a person placing confidence in him is bound to shew that a reasonable use has been made of that confidence.

112. When there is question [whether any person is legitimate son or not] and it is proved that-
He was born during the continuance of a valid marriage between his mother and any man or
He was born within 280 days after dissolution of marriage, mother remaining unmarried
There is conclusive presumption that he is the legitimate son of that man unless it can be shown that
the parties to the marriage had no access to each other at any time when he could have been begotten.
There is conclusive presumption of legitimacy under this section
Word any man is used to clarify that he may be known to be that he is not his father.
Condition is birth during marriage. It may be moment after marriage. This section refers to point of time of birth as a
deciding factor not the time of conception as deciding factor.
Marriage dissolves by death or by divorce. So if father dies and child is born within 280 days. Child is legitimate.
No access means no opportunity of sexual intercourse. Impotency amounts to non-access.
Child born after marriage but before gauna/bidai. If there was non-access presumption do not arises.
RUSSEL V RUSSEL
Declaration of father or mother that they have no access to each other can’t be admitted to bastardise the issue born after
marriage.
But Indian courts admit such fact.

113. This sec. is declared to be ultra-vires by PC hence now dead letter.

113-A. When the [question is whether suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that-
 It was committed within a period of 7 years from the date of her marriage and
 Her husband or relative of her husband had subjected her to cruelty
Court may presume [having regard to all other circumstances of the case] that such suicide had been
abetted by her husband or by such relative of her husband.
Explanation- For the purposes of this section "cruelty" shall have the same meaning u/s 498-A IPC
Added in 1983
There is presumption of abetment to suicide
There must be cause and effect relationship between cruelty and suicide.

113-B. When the [question is whether a person has committed the dowry death of a woman] and it is
shown that soon before her death such woman had been subjected to [cruelty or harassment in connection
with dowry demand] the court shall presume that such person had caused the dowry death.
Explanation- For the purposes of this section "dowry death" shall have the same meaning as in
section 304-B of IPC.
Added in 1983.

114. Court may presume the existence of any [fact which it thinks likely to have happened]
regard being had to the common course of natural events/human conduct/public & private business in
their relation to the facts of the particular case.
Illustrations
The Court may presume--
 that a man who is in poss ession of stolen goods soon after the theft is either the thief or
has received the goods knowing them to be stolen, unless he can account for his possession
 that an accomplice is unworthy of credit, unless he is corroborated in material particulars
 that judicial and official acts have been regularly performed
 that the common course of business has been followed in particular cases.

114A. If question arises whether there was consent of a woman in prosecution for rape u/s 376(2)
[clause a-g except f] of IPC and it is proved that
 sexual intercourse took place and
 Woman states in her evidence before the Court that she did not consent.
Court shall presume that she did not consent.
Added by 1983 criminal law amendment.
RAFIQ V UP STATE
Absence of physical injuries on prosecutrix is not presumption of consent on her part.
Presumption do not arise u/s 376(1) and 376(2)(g)

ESTOPPEL-CHAPTER 8
115. Estoppel by conduct
 When one person make representation [by his declaration act or omission] with intention of
causing or permitting another person to believe a thing (fact) to be true and
 Such another person acted upon such belief
Then neither he nor his representative shall be allowed in any suit or proceeding between himself
and such person or his representative to [deny the truth of that thing] although he made the
statement in good faith.
Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces
B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that
at the time of the sale, he had no title. He must not be allowed to prove his want of title.
Estoppel arises when you are precluded from denying the truth of anything which you have represented as a fact
GYARSI BAI SC-
Such action must be detrimental to the interest of person to whom representation is made.
If not this doctrine do not applies.
SARAT CHANDER DEY
Person invoking this sec. must satisfy the court that any reasonable person in my position would have acted upon such belief
If he knew that representation is false then estoppel do not apply. If he acted in different way as reasonable man would
have acted estoppel rule do not applies.
This sec. is based on equity law.
PICKARD V SEARS
This sec. is based on this case law.
This sec. is based on maxim person alleging contradictory facts should not be heard.
It applies in civil case not in criminal cases.
Kinds of estoppel-
(1) Estoppel by record.
Court record like judgment of court/Pleading/record of rights maintained by government/records in registration
office/accepting a person as tenant in government record.
(2) Estoppel by deed.
It applies when any party enters into any arrangement as to certain facts. E.g. family settlement.
(3) Estoppel in pais.
It means estoppel other than above called residuary estoppel.
It includes estoppel by conduct u/s 115 and estoppel by contract u/s 116&117. Thus estoppel may arise even in case when
sec.115-117 do not applies. Thus evidence act is not exhaustive on estoppel. It includes-
(a) Equitable estoppel
Evolved by English courts based on equity/justice/good conscience.
(b) Promissory estoppel
When one party made a promise or assurance to another and there is alteration of position on the belief of representation by
another party. Estoppel applies. Such promise may be without consideration.
# when employees were shifted from one dept. to another on assurance that no change will be made in service condition. If
changes made estoppel applies.
# when govt. promises co. to give vital exemptions. Then subsequently it can’t deny if factory was ready on this assurance.
# when up govt. promises to charge 200 rs. Daily from loom factory. It can’t withdraw promise subsequently.
Exception on promissory estoppel against govt.-
It is not available against legislative functions of the state. Thus if govt. changes its export policy by legislation,
exporters who had contracted on the basis of earlier policy were not permitted to claim estoppel against state.
If govt. officer acted beyond the scope of his authority then govt. shall not be bound.
Candidate form to find out the fraud
SHRI KRISHAN V KURUKSHETRA UNIVERSITY
Consequence of university failure to scrutinize candidate form and to find out fraud can’t be visited upon the candidate.
PALLAKDHARI SINGH.

116. Estoppel by agreement

No tenant of immovable property, or person claiming through such tenant, shall, during the
continuance of the tenancy be permitted to say that the landlord had no title [at the beginning of
the tenancy] and no person who came upon any immovable property by the licence of the person in
possession thereof shall be permitted to say that such person had no title to such possession [at
the time when such license was given]

117. Estoppel by agreement

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw
such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor
or licensor had, at the time when the bailment or licence commenced, authority to make such
bailment or grant such licence.

WITNESSES (U/S 118-134)

Who are competent witness i.e. who may testify (give evidence) (sec. 118-120 & 133)

118. Person who can understand the question and can give rational answer to those question is
competent witness.
Exception-
If a person can’t understand the questions put to them or can’t give rational answers to those
questions due to tender age or extreme old age /disease whether of body or mind or any other cause
of the same kind he is not competent witness
Explanation- A lunatic is competent witness if he can understand the questions put to him and
giving rational answers to them.
SURESH V UP STATE
SC regarded child of 5 year as competent witness without corroboration.
UP STATE V CHHOTEYLAl
In abduction and rape cases an illiterate village woman will naturally give evidence in which there is inconsistency so long
it deals with event.

119. Person who is unable to speak (dumb) may give his evidence in any other manner in which he
can make it intelligible like writing or by signs but such [writing must be written and the signs
made in open Court]
Evidence so given shall be deemed to be oral evidence.
Mute is also covered by this section.

120. In civil proceedings the parties and their spouse [in favor or against]shall be competent
witnesses
In criminal proceedings spouse [against] spouse shall be a competent witness.

133. An accomplice shall be a competent witness against an accused person and a conviction is legal
on basis of evidence of accomplice even if it is not corroborated.
Accomplice means participator in a crime i.e. participes criminis.
However there are three cases in which a person is held to be an accomplice although he is not participator.
(1) Receiver of stolen goods with knowledge are deemed to be an accomplice if thieves.
(2) Person who look outside the premises where crime is being committed to warn any danger.
(3) Person giving bribe whether voluntarily or involuntarily. Giver and taker are on equal footing
(4) Prostitute
(5) partisan (interested) like child or parents or same religion.

Following person are not accomplice-

Person who only happens to be coversant with a crime or who makes no attempt to prevent it or who does not disclose it is not
an accomplice.
Trap witness
Rape-victim.

When accomplice become an approver he becomes PW.

Justification-
 Motive of shifting guilt from himself.
 Immoral person likely to commit perjury (false evidence) on occasion.
 Hope of pardon or has secured it and so favors the prosecution.

DAGDU V MAHARASHTRA
Combined effect of sec 133 & 114 ill(b) is that court as a matter of practice do not admit evidence of an accomplice unless
he is corroborated in material particulars because court presume that [no reliance can be placed on his evidence because he
is not trustworthy unless corroborated] i.e. there must be some independent evidence tending to incriminate the accused with
crime.
RAMESHWAR SC
Every material facts stated by accomplice need not to be confirmed by independent evidence but it should be confirmed to that
extent that approver is speaking truth and
It should be confirmed by independent evidence that co-accused is connected with crime.

Who are not competent witness (u/s 121-131)

They got privileges in nature of right not to be compelled or their evidence is not permitted to be given.

who can’t compelled?

121. Judge or Magistrate shall not be compelled to answer-
 Questions as to his own conduct [in Court as such Judge or Magistrate] or
 Questions as to anything which came to his knowledge [in Court as such Judge or Magistrate]
Exception- They may be so compelled under order of his superior court
Explanation- They may be compelled to answer questions as to other matters which occurred in his
presence whilst he was [in court as such judge or magistrate]
Illustrations
 A on his trial before the Court of Session says that a deposition was improperly taken by B,
the Magistrate. B cannot be compelled to answer questions as to this except upon the special
order of a superior Court.
 A is accused before the Court of Session of having given false evidence before B, a
Magistrate. B cannot be asked what A said, except upon the special order of the superior
Court.
 A is accused before the Court of Session of attempting to murder a police-officer whilst
on his trial before B, a Sessions Judge. B may be examined as to what occurred.

124. Public officer shall not be compelled to disclose official communications i.e. communications
made to him in official confidence when he considers that the public interests would suffer by the
disclosure.
E.g. state secrets or administrative matters or intelligence matters or advice given.
S.R. BOMMAI
Advice given by council of ministers is protected both under this section + under article 74(2). Both provisions are
separate and independent.

125. Magistrate or police-officer shall not be compelled to disclose from where he got any
information as to the commission of any offence and
Revenue- officer shall not be compelled to disclose from where he got any information as to the
commission of any offence against the public revenue.
Explanation- "Revenue-officer" in this section means any officer employed in any branch of the
public revenue.

129. Any person shall not be compelled to disclose to the Court any confidential communication
which has taken place between him and his legal adviser unless he offers himself as a witness in
which case he may be compelled to disclose any such communications as may appear to the Court
[necessary to be known in order to explain any evidence which he has given but not otherwise]

Who can’t be permitted to give evidence?

122. Spouse to whom [any communication is made during marriage by another spouse] is not permitted
to disclose it whether at time of giving evidence marriage do not exists.
Exception-
If maker or his representative in interest consents
If there is suit or criminal proceeding between such spouses.
Basis of this sec. is-
Trust between spouse’s .if trust breaks there is danger of breaking of trust.
Confidence between spouses. Trust includes openness of heart and feeling.
Such communication may be proved by evidence of over-hearers.
# Wife was not allowed to tell what her husband told him about murder.
# Wife was not allowed to produce letter written by husband to wife containing defamatory article against D.

123. Any person is not permitted to give any evidence derived from [unpublished official
records relating to any affairs of State] except with the permission of the officer at the head
of the department concerned, who may give or withhold such permission as he thinks fit.
Maxim salus populi est suprema lex which means regard for [public welfare] is the highest law is the basis of the provision
contained in this section.
Affair of state means matter of public nature.

126. Barrister/attorney/pleader/vakeel shall not be permitted-

(1)To disclose (a) any communication made to him by his client or his agent or (b) any advice given
by him to his client in the course and for the purpose of employment
(2) To state Contents or condition of any document with which he has become acquainted in the
course and for the purpose of his employment

In following cases disclosure may be done-

(a) When client give express consent.
(b) When communication made in furtherance of illegal purpose.
(c) Any fact observed by them in the course of his employment, showing that any crime or fraud has
been committed since the commencement of his employment.

Explanation- The obligation stated in this section continues even after the employment has ceased.
Illustrations
 A client says to an attorney "I have committed forgery and I wish you to defend me."
This communication is protected from disclosure.
 A client says to an attorney "I wish to obtain possession of property [by the use of a forged
deed] on which I request you to sue."
 A being charged with embezzlement engages an attorney to defend him.
In the course of the proceedings attorney observes that an entry has been made in A's
account book, charging A with the sum said to have been embezzled which entry was not in
the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has
been committed since the commencement of the proceedings, it is not protected from
disclosure.
Explanation- sec. 126 applies also on their interpreters/clerks/servants,
Explanation- If any party to a suit or proceeding calls them as a witness, he shall be deemed to
have consented to such disclosure only if he questions them on privileged matter.

130. Witness who is not a party to a suit shall not be compelled-

  To produce his title- deeds to any property,
 To produce any document in virtue of which he holds any property as pledgee or mortgagee or
 To produce any document the production of which might tend to criminate him
Unless he has agreed in writing to produce them.

131. Any person shall not be compelled to produce documents in his possession, which any other person
would be entitled to refuse to produce if they were in his possession unless such last-mentioned
person consents to their production.
132. When witness may be compelled to answer a question.
If it is [relevant to matter in issue] even if such answer will-
 Criminate or may tend directly or indirectly to criminate him or
 Expose or tend directly or indirectly to expose him to a penalty or forfeiture of any kind
Protection to such compelled witness-
No arrest or prosecution or
Answer not to prove against him in any criminal proceeding except a prosecution for giving false
evidence by such answer.
This section bars right against self-incrimination.

134. Number of witnesses.

No particular number of witnesses shall in any case be required for the proof of any fact.

EXAMINATION OF WITNESSES (CHAPTER 10)

(U/s 136-166)
Order of examination of witnesses.
It is regulated by the law and practice under CPC OR CRPC and in absence of any such law by
discretion of the Court.

136. Examination by judge to decide relevancy of fact.

 Of witness proposing to give evidence of any fact.
 By questioning in what manner such fact is relevant
If judge is satisfied by answer he shall then admit the evidence.

If witness is proposing to give evidence of any fact which is [admissible only upon proof of some
other fact] such last-mentioned fact must be proved before giving of evidence is given of the
fact first-mentioned unless the party undertakes to give proof of such fact, and the Court is
satisfied with such undertaking.
Illustrations
 It is proposed to prove a statement about a relevant fact by a person alleged to be dead,
which statement is relevant under section 32
The fact that the person is dead must be proved by the person proposing to prove the
statement, before evidence is given of the statement.
 It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the
copy, before the copy is produced.

If relevancy of one fact depends upon proof of another fact, the Judge may, in his discretion,
permit either of them to be proved first.
Examination other than this is not province of court unless council omitted to ask any material question.

137. Types of examination.

(1) Examination-in-chief.
Examination by party who calls him.

(2) Cross-examination
Examination by adverse party.

(3) Re-examination
Examination by party who calls him [subsequent to the cross-examination]
Examination of witness is viva voce i.e. in form of question and answer. During examination evidence is given.
When examination is written down in the form of narrative formed out of answer it is called deposition.

138. Order of types of examinations.

 Firstly examination in chief.
It must relate to relevant fact.
  Secondly cross-examination if the adverse party so desires
It must relate to relevant fact but need not to be confined to facts on which witness
testified in his examination-in-chief
Thirdly re-examination if calling party so desires.
It must give explanation of matters referred to in cross-examination
Explanation- If new matter is introduced in re-examination the adverse party may further cross-
examine upon that matter.

 Examination in chief
Object is to elicit those facts which are within knowledge of witness and in favor of his client.
Leading questions must not be asked if objected by adverse party except with permission of court.
It means those question suggesting an [answer which person asking wishes or expects to receive]
(sec. 141)
Court shall permit leading questions as to matters which are introductory or undisputed or which have
in its opinion been already sufficiently proved.

 Cross-examination
Examination in chief have no value if no chance of cross-examination is given.
Object of cross-examination is as follows-
To impeach the accuracy/credibility/general-value of evidence given in examination in chief.
To show that he is unworthy of belief in whole or part by present or past conduct.
To discover falsehood or exaggerations
To discover points in favor of his party
A person summoned to produce a document is not a witness and cannot be cross-examined unless and
until he is called as a witness.
Summon to produce a document is called subpoena duces tecum.
Witnesses to character may be cross- examined (sec.140)
It means witness giving evidence on character of any person.
Leading question may be asked in cross examination.
Lawful questions in cross examination (u/s 145-147)
Questioning as to [previous statements made by witness in writing or reduced into writing] without
such writing being shown to him or being proved with object of testing his memory.

Questioning which
 Test veracity (truthiness) of witness or
 Discover who he is and what is his position (status) in life or
 To shake his credit by injuring (impeaching) his character although the answer to such questions
might tend directly or indirectly to criminate him or might expose or tend directly or indirectly
to expose him to a penalty or forfeiture.
Provided that in prosecution of rape or attempt to rape it shall not be permissible to put questions
as to general immoral character of prosecutrix.

Manner of shaking credit of witness in cross-examination (sec. 155)

(1) By the evidence of persons who testify that they from their knowledge about witness believe him
to be unworthy of credit
(2) By proof that the witness has been bribed or has accepted the offer of bride or has received
any other corrupt inducement to give his evidence.
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be
contradicted.
Explanation-A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination and the answers which he gives cannot be contradicted though if they are false, he may
afterwards be charged with giving false evidence.

Illustrations
A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods
to B.
The evidence is admissible.

A is indicted for the murder of B.

C says that B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A
or in his presence.

If questions u/s 146 are relevant then witness may be compelled to answer u/s 132

Unlawful questions in cross-examination (u/s 148-153)

If questions u/s 146 is [not relevant to the suit or proceeding] [except it shake the credit of
witness by injuring his character] court shall decide whether or not the witness shall be compelled
to answer it and may if it thinks fit warn the witness that he is not obliged to answer it.
 Such questions are proper if they are of such a nature that the truth of the imputation conveyed
by them would seriously affect the opinion of the Court as to the credibility of the witness
on the matter to which he testifies.
 Such questions are improper if the imputation which they convey relates to matters so remote
in time, or of such a character that the truth of the imputation would not affect, or would
affect in a slight degree, the opinion of the Court as to the credibility of the witness on
the matter to which he testifies
 Such questions are improper if there is a great disproportion between the importance of the
imputation made against the witness's character and the importance of his evidence
 Court may, if it sees fit, draw, from the witness's refusal to answer the inference that the
answer if given would be unfavorable.

Question u/s 148 ought not to be asked unless the person asking it has reasonable grounds for
thinking that the [imputation which it conveys is well-founded]
Illustrations
(a) A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This
is a reasonable ground for asking the witness whether he is a dacoit.
(b) A pleader is informed by a person in Court that an important witness is a dacoit. The
informant on being questioned by the pleader gives satisfactory reasons for his statement. This is
a reasonable ground for asking the witness whether he is a dacoit.
(c) A witness, of whom nothing whatever is known is asked at random whether he is a dacoit. There
are here no reasonable ground for the question.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of
life and means of living, gives unsatisfactory answers.
This may be a reasonable ground for asking him if he is a dacoit.

If the Court is of opinion that any such question was asked without reasonable grounds it may,
report the circumstances of the case to the High Court or other authority (state bar council) to
which he is subject in the exercise of his profession.

Court may forbid any questions which it regards

Indecent or scandalous, although such questions may have some bearing on the questions before the
Court [unless they relate to facts in issue, or to matters necessary to be known in order to
determine whether or not the facts in issue existed]
Insulting or annoying or needlessly offensive in form.

If question u/s 148 is asked and answered no evidence shall be given to [contradict him] but if he
answers falsely, he may afterwards be charged with giving false evidence.
Exception 1- If a witness is asked whether he has been previously convicted of any crime and denies
it evidence may be given of his previous conviction.
Exception 2-If a witness is asked any question (including related to previous oral statements)
tending to impeach his impartiality and answers it by denying the facts suggested, he may
be contradicted.
If he is contradicted by writing or statement reduced into writing then his attention must be drawn
to those written part.
Illustrations
A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He
denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible

A witness is asked whether he was not dismissed from a situation for dishonesty.
He denies it. Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.

A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible not as contradicting A on a fact which affects his credit, but as
contradicting the alleged fact that B was seen on the day in question in Lahore.

A is asked whether his family has not had a bloodfeud with the family of B against whom he gives
evidence. He denies it.
He may be contradicted on the ground that the question tends to impeach his impartiality.

 Re-examination
Object is to fill up the lacuna or inconsistencies discovered in cross-examination.
Witness to character may be re-examined.
Leading questions must not be asked if objected by adverse party except with permission of court.

144. Compelling opposite party to produce document or secondary evidence when permitted-
 If he is about to give evidence as to any contract grant or other disposition of property
contained in a document. or
 If he is about to make any statement as to the contents of any document which in the opinion
of the Court ought to be produced.
Explanation-
A witness may give oral evidence of [statements made by other persons about the contents of such
documents] if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D "B wrote a letter accusing me of theft and I will be revenged on
him." This statement is relevant, as showing A's motive for the assault and evidence may be given
of it though no other evidence is given about the letter.
This sec. is meant to enable parties to carry out the provisions of sec. 91 & 92.

154. Cross examination of witness called by a party for examination in chief

If court grants permission
If that witness becomes hostile.
Explanation-
Cross-examining party may rely on any part of the evidence of such witness.
Hostile witness is a witness who is-
Not telling the truth
Unwilling to answer questions put to him
Gained over by opposite party i.e. giving evidence against calling party.
The time witness becomes hostile court permission to be taken for cross-examining him. If delay is done then right of cross
examination is lost.

Explanation added by criminal law amendment act 2006.

UP STATE V RAMESH PRASAD MISHRA
Evidence of hostile witness can’t be rejected. If it finds corroboration it can be used by both parties in their favor.
It is the duty of court to separate grain from chaff.

Manner of corroboration.(sec.156/157/158)
By questioning as to any other circumstances which he observed at or near to the time or place
when relevant fact occurred.
Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various
incidents unconnected with the robbery which occurred on his way to and from the place
where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the
robbery itself.
Corroboration means confirmation of evidence by other facts. Those other facts are mentioned here.
Like contradiction corroboration test veracity of witness.
By comparing with former statement made relating to the same fact
 At or about the same time when the fact took place or
 Before any authority legally competent to investigate the fact.
KARNATAKA STATE V MARJANNA
After rape victim narrated incident to many independent persons. Such former statement may be used to corroborate.

If a person makes statement while dyeing but lived it can’t be used as dyeing declaration but may be used to corroborate.
Explanation-
If statement relevant u/s 32/33 is proved
All matters may be proved either in order to contradict or to corroborate it or in order to shake
or confirm the credit of the person by whom it was made
Which might have been proved if that person had been called as a witness and had denied upon cross-
examination the truth of the matter suggested.

Manner of Refreshing memory (u/s 159-161)

By referring to any writing
 Made by himself at the time of the transaction concerning which he is questioned or so soon
afterwards that the Court considers it likely that the transaction was at that time fresh in
his memory.
 Made by other person and read by the witness within the time aforesaid if when he read it he
knew it to be correct.

Whenever a witness may refresh his memory by reference to any writing he may with the permission of
the Court require its copy if Court is satisfied that there is sufficient reason for the non-
production of the original.
An expert may refresh his memory by reference to professional treatises.
Panchnmama may be used for refreshing memory
Horoscope may be used for refreshing memory whether marriage was solemnized at age of 15.
Case-diary may be used by police officer as to investigation.
Post-mortem report may be used by medical examiner

A witness may also testify to facts mentioned in any such document as is mentioned in
section 159 although he has no specific recollection of the facts themselves if he is sure that
the [facts were correctly recorded in the document]
Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of
business, if he knows that the books were correctly kept, although he has forgotten the
particular transactions entered.

Such writing must be produced and shown to the adverse party if he requires it such party may
cross-examine the witness thereupon.

Duty of witness summoned to produce a document in his possession or power (u/s 162)
Notwithstanding any objection which there may be as to its production or to its admissibility.
The validity of any such objection shall be decided on by the Court.
The Court may inspect the document unless it refers to matters of State or take other evidence to
enable it to determine on its admissibility.

When a party gives notice to other party to produce any document and
Such document is produced and inspected by the party calling for its production then subsequently
that document may be used as evidence by party producing.
Such document is not produced then subsequently that document can’t be used as evidence by party
not producing.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document
and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the
document itself to contradict the secondary evidence given by A, or in order to show that the
agreement is not stamped. He cannot do so.

Examination by judge to discover or obtain proof of relevant facts by asking any question about any
fact relevant or irrelevant to parties or witnesses (u/s 165)
For such examination he may order the production of any document or thing and
Parties or their agents shall not be entitled-
 to make any objection to any such question or order
 to cross-examine any witness without leave of court upon any answer given in reply to any
such question
Restriction on such examination-
(1) Judge shall not compel witness to answer any question or to produce any document contrary to
sec. 121 to 131
(2) Judge shall not compel Witness to answer question contrary to sec. 148 or 149
(3) Judge shall not dispense with primary evidence of any document except when permitted.
Judge may ask question with police concerning investigation from police diary in the interest of accused.

In cases tried by jury or with assessors, the jury or assessors may put any questions to the
witnesses, through or leave of the Judge, which the Judge himself might put u/s 165.

IMPROPER ADMISSION OR REJECTION OF EVIDENCE- CHAPTER 11

167. It is no ground for new trial or reversal of decision if-
In former case there are other independent sufficient evidence to justify the decision
In latter case decision could not be varied even if rejected evidence is received