City academy law college

LL.B. Hons 6th Semester

Subject – Law of Evidence

Unit –I

Evidence and its relationship with the substantive and procedural laws Definition:
Facts, facts in issue, relevant, evidence proved, disproved, not proved, oral and
documentary evidence (Sec.3) Relevancy and admissibility Doctrine of res gestae
(Sec.6,7,8,9) Conspiracy (Sec.10)

UNIT –I:- FORMATION OF EVIDENCE

Lecture Topic

Lecture -1 Evidence and its types

Lecture -2 Facts, facts in issue, relevant, evidence proved disproved, not proved

Lecture -3 Relevancy and admissibility

Lecture - 4 Doctrine of res gestae

Lecture - 5 Test Identification parade

Lecture - 6 Conspiracy
 City academy law college
LL.B. Hons 6th Semester
Subject – Law of Evidence

Unit –I

Evidence and its relationship with the substantive and procedural laws Definition:
Facts, facts in issue, relevant, evidence proved, disproved, not proved, oral and
documentary evidence (Sec.3) Relevancy and admissibility Doctrine of res gestae
(Sec.6,7,8,9) Conspiracy (Sec.10)

LECTURE 1

PYQ –

1. What is evidence? 2013

2. Define Oral evidence? 2013
3. What is evidence? Distinguish between direct and circumstantial evidence.2017

EVIDENCE AND ITS TYPES –

Law of Evidence, according to Sir James. F. Stephen:-

"The law of evidence is that part of the law of procedure, which with a view to ascertain
individual rights and liabilities in individual cases, it decides :
(1) What facts may and what may not be proved in such cases.
(2) What sort of evidence must be given to a fact which may be proved and
(3) By whom and in what manner the evidence must be given by which any fact is proved."

Law Evidence is "Lex fory" :- Where evidence is taken in one country in aid of suit or
proceedings in another country, the law applicable to the recording of the evidence would be
the law prevailing in the country where the proceeding is going on. Phrase "Lex fory" means
the law of place of the action. The law of evidence is `lex fory'. Whether certain evidence
proves a certain fact or not is to be determined by law of the country where the question arises,
where the remedy is sought to be enforced and court sits to enforce it.

TYPES OF EVIDENCE -

"Evidence" means and includes -

(1) all statements which the court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the court such documents are called
documentary evidence."

Oral Evidence : Oral evidence means statement made by a witness before a court in relation to
matter of fact under inquiry. So oral evidence is such deposition of witness who have witnessed
the facts or who became acquainted with the facts they are deposing and which has to be
recorded by court.

Documentary Evidence : The `documentary evidence' is a document produced for inspection

of the court or the judge. A document is evidence only when it is produced for the inspection
of court

Direct Evidence :- The direct or positive evidence is evidence about the real point of
controversy. Oral evidence must be always direct. The evidence is direct if the court to set upon
it has to rely upon only the witness whereas it is hearsay if it has to rely upon not only the
witness but some other persons also.

Circumstantial Evidence : In simple words `Circumstantial Evidence' mean evidence relating

to series of circumstances which if taken together, assist the court to come to any determination,
in the absence of any eyewitness evidence. Circumstantial evidence is not to be confused with
hearsay or secondary evidence.
LECTURE 2

PYQ –

1. Fact in issue.2014
2. Relevancy of evidence.2014

FACTS, FACTS IN ISSUE, RELEVANT, EVIDENCE PROVED DISPROVED, NOT

PROVED

Facts in issue:

Fact in issue simply means “the disputed facts“. In litigation or proceedings, generally, one-
party claims that certain facts exist, while the other party denies the existence. In this case, the
fact that it is accused by one party but denied by the other party is called a fact in issue. In other
words, the controversial fact is the fact in issue.

For example, A accused B of theft, but B denies the performance of any such activity. Here,
the question of whether B had committed theft or not, is a fact in issue.

Relevant Facts:

The relevant facts are different from the facts at issue. These are facts that are not in
dispute/issue, but they are related to facts that are in dispute/issue. But the connection must be
real or logical. In other words, not all connections make the facts meaningful. To be relevant,
the facts in question must be logically connected to the facts at issue. Events that are the cause
or result of disputed “facts in issue” will be considered “relevant facts”.

Proved : Section 3 of the Indian Evidence Act defines ‘proved’. According to this Section, a
fact is said to be proved when after considering the matters before it, the Court either believes
it to exist or considers its existence so probable that a prudent man ought, under the
circumstances of a particular case, to act upon supposition that it exists. In M. Narsimha Rao
v. State of A.P., AIR 2001 SC 318 Supreme Court held that proof does not mean proof to rigid
mathematical demonstration but such evidence as would induce a reasonable man to come to
a conclusion. It depends upon degree of possibility of having existed.
Disproved: Section 3 provides that a fact is said to be disproved when, after considering the
matters before it, the court either believes that it does not exist or considers its non existence
so probable that a prudent man ought (to act upon a supposition that it does) not exist. Thus,
this standard of proof should be of ordinary prudence in person who will judge its existence or
non-existence from the standard of circumstances before him. The definition of the term
‘disproved’ is only the converse proposition of ‘proved’.

Not proved: Section 3 provides that a fact is said to be not proved when it is neither proved
nor disproved. In other words, the man of ordinary prudence neither believes that the fact exists
nor he believes that it does not exist.

There is a difference between ‘disproved’ and ‘not proved’. The word ‘disprove’ is akin to
‘false’. What is disproved may normally be taken to be a false thing. When a fact is said to be
disproved, a person arrives at the firm and fixed decision after considering the matters before
it. On the other hand, a fact which is ‘not proved’ may be true or false.

Standard of Proof: The standard of proof in civil and criminal cases are different. In a civil
case a mere preponderance of probability is sufficient basis of decision, on the other hand, in
criminal cases a much higher degree of proof is needed before a person is convicted and his
guilt must be proved beyond reasonable doubt. In criminal cases the accused is always
presumed to be innocent until the prosecution proves him guilty and the evidence must exclude
every reasonable doubt of the guilt of the accused.
Lecture – 3

PYQ –

What is the law relating to Relevancy as enunciated in the Indian Evidence Act. Draw the
distinctionbetween relevancy and admissibility of evidence? 2015

Relevancy and admissibility

Relevancy

The relevant facts are different from the facts at issue. These are facts that are not in
dispute/issue, but they are related to facts that are in dispute/issue. But the connection must be
real or logical. In other words, not all connections make the facts meaningful. To be relevant,
the facts in question must be logically connected to the facts at issue. Events that are the cause
or result of disputed “facts in issue” will be considered “relevant facts”.

“A reality which is sensibly applicable may not be lawfully pertinent under the procurements
of the Evidence Act, thus might be forbidden in proof. All allowable confirmation is pertinent,
yet all applicable proof is not so much permissible. All certainties which are permitted by the
procurements of the Evidence Act to be demonstrated are important; be that as it may, however
pertinent a certainty may be, unless it is permitted to be demonstrated by the procurements of
the Evidence Act, it is not allowable.

Logical relevancy is wider than legal relevancy; every fact which is legally relevant is logically
relevant, but every fact which is logically relevant is not necessarily legally relevant. Thus, a
confession made to a police officer may appear to be logically relevant, but such a confession
is not legally relevant, for S. 25 of the Act declares that it cannot be used as evidence against
the person making it.

The Indian Evidence Act lays down, in Ss. 5-55, what facts are relevant; but the mere fact of
logical relevancy does not ensure the admissibility of a fact. Very often, public considerations
of fairness and the practical necessity for reaching speedy decisions necessarily cause the
rejection of much of the evidence which may be logically relevant.
Admissibility

Admissibility means that the facts which are relevant are only admissible by the Court.

According to section 136 of the Indian Evidence Act, 1872, however, the final discretion on
the admissibility of evidence lies with the judge.

The essential ingredients of the above section are:

1. It is the judge who decides the questions of relevancy and admissibility.

2. When a party proposes to adduce evidence of any fact, the judge may ask the
party to clarify ‘in what manner’ the fact would be relevant.

3. The judge would ‘admit’ the particular adduced fact only if he is satisfied with
the answer of the party that it is, indeed, relevant under one or the other
provisions of S. 6 to 55. Thus the consideration of relevancy comes first and of
admissibility later and the judge will admit the fact only if it is relevant.”

Section 9 of the Law of Evidence Act, 1872, lays down some facts which can be treated as
“relevant facts:
1. Facts necessary to explain or introduce a fact in issue or relevant fact;

2. Facts which support or rebut an inference suggested by a fact in issue or a

relevant fact;

3. Facts which establish the identity of anything or person whose identity is

relevant;

4. Facts which fix the time and place at which any fact in issue or relevant fact
happened;

5. Facts which show the relation of parties by whom any fact in issue or relevant
fact was transacted.”
LECTURE – 4

RES GESTAE

PYQ –

Define the term ‘RES GASTAE’ with essential Conditions and essential elements of this
Principle. 2015

“Facts which, though not in issue, are so connected with a fact in issue as to form part of the
same transaction, are relevant, whether they occurred at the same time and place or at different
time and place.” Comment it. 2018

• Section 6 of Indian Evidence Act lays down that "Facts Which though not in issue or
so connected with fact in issue as to form part of same transaction are relevant whether
they occurred at the same time and place or at different time and place"
• Section 6 of Evidence Act enacts the Rule which English text book treated under the
head of "Res Gestae" Section 6 appears to provide proof of statements which are more
or less of collateral nature. Not the principal fact but Subsidiary one which are so
connected with the fact in issue as to form part of same transaction.
• In Order to a declaration to be admissible as a part of Res Gestae, it must be spontaneous
utterance of mind while under the influence of transaction. The test to determine
whether a fact forms part of same transaction depends upon whether they are so related
to one another in point of purpose or as to cause and effect or as probable as to constitute
one continuous action.
• Proximity of time is not so essential as continuity of action and purpose. Supreme Court
has recently in Sukhas v. State of U.P. 2000 observed "the principle of law embodied
in Section 6 of Evidence Act is usually known as `Res Gestae. 'The essence of the
doctrine is that a fact which though not in issue, is so connected with fact in issue as to
form part of same transaction becomes relevant itself.
• This Rule is roughly speaking in exception to the general Rule that hearsay evidence is
not admissible, rationale in making certain statements or facts admissible under Section
6, is on account of the spontaneity and immediacy of such statement or fact in relation
to fact in issue. But it is necessary that such statement or fact must form part of same
transaction."
 • In Sawal Das v. State of Bihar AIR 1974 SC 778 it was observed that all spontaneous
statements in some way connected with the main transaction are not admissible,
statement is not admissible u/s 6 only because it is uttered in course of transaction,
while no doubt the spontaneity of statement is guarantee of the truth, the rationale for
its admissibility under Section 6 is that it is part of same transaction and not merely
because it is spontaneous.
• In the present case A had gone at the spot after the event was over and also, after coming
to know that C has been murdered and when he reached at the spot, deceased was being
taken to his house by four person, by one of them, he was informed that B had murdered
C. Fact that murder of C had taken place and A came to know about that and then
reached at spot and after reaching at the spot he was informed by four persons there that
B has committed the crime, are not so connected with each other as to form same
transaction and thus his evidence is not admissible u/s 6 of Evidence Act.

Exceptions to the time-bound characteristic of Doctrine of Res Gestae

• When a statement (out of court) is made by a person in response to a startling or

shocking event or condition, it is considered to be admissible. Such a statement may be
referred to as an excited utterance and is an exception to the hearsay rule. Since most
cases of domestic violence and sexual assault involve a shocking event and often leave
the victim in a state of shock, they include the issue of excited utterances.

• In such cases, as only the victim could identify the alleged culprit, the testimony of the
victims must be made admissible in court. It can so happen that the victim may not react
immediately after rape or sexual violence, as such crimes often leave a grave impact on
the mind of the victim which may hinder their thinking process for a while, and the
victim may even be in denial due to the gravity of the crime. Subsequently, the victim
may respond after a reasonable amount of time.
LECTURE – 5

TEST IDENTIFICATION PARADE

• It is a process that is mostly used in criminal cases to identify the accused before the
court. The role of the witness is very important in the test identification parade because
it is the responsibility of the witness to identify the accused through the parade.

• The idea of this process is to check whether the witness can identify the accused among
the various several individuals. This will establish the fidelity of the witness in
identifying an unknown person related to the context of the offense.

• Section 9 of the Indian Evidence Act, 1872 and Section 54A of the Code of Criminal
Procedure, 1973 deal with the procedure and the legality of the Test Identification
Parade.

• The problem of Section 9 of the Evidence Act is tackled in Section 54A of the Code of
Criminal Procedure, 1973. This section says that when the identification of an accused
by the witness is considered necessary for investigation of such offense in which the
accused is arrested, the Court, having jurisdiction, may on the request of the officer in
charge of a police station, direct the accused so arrested to subject himself to
identification by witness or witnesses in such manner as the Court may deem fit.
Evidential Value of Test Identification Parade

• Identification of the accused by the witness in the Test Identification Parade is a shred
of primary evidence but not substantive evidence it is used to support the identification
of the accused by the witness in a court of law. On the other hand, if the witness
identifies the accused in the court of the law, then it is substantive evidence.
• Interestingly if the Test Identification Parade is not held earlier and the witness
identifies the accused for the first time in the court of law then the Identification Parade
is no longer required if the court found it trustworthy.
• The general rule is that the witness identifying the accused in the court alone is not the
basis of the conviction of the accused unless it is ratified by the previous Test
Identification Parade. But there are some exceptions to this rule.
• Test Identification Parade might not be substantive evidence but it plays a very vital
role in the investigation. It helps the investigating officer to ascertain that the
investigation is going in the right direction and help me to tailor the course of further
investigation.
LECTURE – 6

CONSPIRACY

PYQ –

1 - What is conspiracy ? Discuss its relevancy as an evidence under the provisions of evidence
Act

2"One cannot be criminally responsible for the acts and statements of others. "In the light of
the aforesaid statement ,explain the Sec.10 of the Indian Evidence Act.

• According to Section 10 of the Act, anything said or done or written by any one of the
conspirators in respect of their common intention is admissible under Section 10 of the
Act against all the conspirators for the purpose of proving.

(a) that the conspiracy existed and

(b) for the purpose of proving that a person was party to it.

Ingredients of Conspiracy:

1. There must be an agreement between two or more persons who are alleged to conspire,
and
2. The agreement should be to do or cause to be done:

(a) An illegal act, or

(b) An act which is not illegal but by illegal means.

• Section 10 deals with the admissibility of evidence in a conspiracy case and is based on
the theory of implied agency i.e. every conspirator is an agent of this association in
carrying out the objects of the conspiracy.
.
• This section has to be read with Section 120A of the Indian Penal Code. Conspiracy as
defined under Section 120 A of the IPC states that, when two or more persons agree to
do or cause to be done, an illegal act or an act which is not illegal but illegal by its
means, is said to be a conspiracy.
• According to Section 10 of the Indian Evidence Act, 1872 where there is reasonable
ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against each of the persons
believed to so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it.

• In Emperor v Shafie Ahmed (1929) 31 BOMLR 515 case, the Court held that if two
or more persons conspire together to commit an offence, each is regarded as the agent
of the other, and just the principal is liable for the acts of agent, so each conspirator is
liable for what is done by his fellow conspirator, in furtherance of the common intention
entertained by both of them.

• In Mukesh v. State for NCT of Delhi, AIR 2017 SC 2161 case, the Court held that
once reasonable ground is shown for believing that two or more persons have conspired
to commit an offence then anything done by anyone of them in reference to their
common intention is admissible against the others
 City academy law college
LL.B. Hons 6th Semester
Subject – Law of Evidence
Unit - 2

Admission (Sec.17-23), Confessions (Sec.24-30), Dying Declaration (Sec.32)

UNIT –II- FORMATION OF EVIDENCE

Lecture Topic

Lecture -1 Admission and Who can Make Admission

Lecture -2 Confession and its kinds

Lecture – 3 When Confession is not admissible

Lecture – 4 Dying Declaration

LECTURE – 1

PYQ –

What is admission? Who can make admission? By whom admission can be used?2018

ADMISSION AND ITS KINDS, WHO CAN MAKE ADMISSION

• Admission is defined under Section 17 of the India Evidence Act, 1872 as a statement
made by witnesses which shows inference to any fact in issue or relevant fact in a case.
According to this Section, Admission can be in the form of a document, oral statement
or may be contained in an electronic form.
• Admission in the Indian Evidence Act is dealt under Sections 17 to 31. Sections 17 to
23 deal with general admission .

WHAT ARE THE TYPES OF ADMISSIONS?

There are mainly two types of Admissions:

• Formal Admissions

Formal Admissions are judicial admissions and there is no need to prove the facts of such
cases that are based upon formal admissions. As Section 58 of the Indian Evidence Act
defined that those facts which are judicially admitted are in no need to be proven.

• Informal Admissions

Usually, the casual conversations which are made in the ignorance of the fact that it might
be used in future litigation are known as Informal Admissions. For example, with friends,
family etc.

SECTION 18- WHO CAN MAKE AN ADMISSION

Section 18 of the Indian Evidence Act lays down the rules regarding as to who can make an
admission. According to this section, there are five classes of persons whose statements will
be considered as an admission in a suit. These five classes are:-
I. BY PARTIES TO PROCEEDINGS: The statements made by the parties to a
proceeding as against himself is considered as a relevant admission. Under this Section,
 the term ‘parties’ not only means the persons who appear on the record in that capacity
but also includes those persons who are parties to a suit without appearing
II. ADMISSION BY THE AGENT: The statements made by an agent in a suit would be
admissible as against the person he is representing. The statements made by an agent are,
however, binding only when they are made during the continuance of his agency.
III. STATEMENTS MADE IN REPRESENTATIVE CHARACTER: When a person
such as trustees, administers, executors etc., sue or are sued in a representative character,
any statement made by them will only be admissible if made in their representative
character.

IV. PERSONS INTERESTED IN THE SUBJECT-MATTER: In any such suit where

several persons are interested jointly in the subject-matter of the suit, then any admission
made by anyone of the parties will be taken as an admission against himself as well as
the other parties jointly interested in the subject matter

V. PERSONS FROM WHOM THE PARTIES DERIVE INTEREST: Any statement

made by the predecessor-in-title from who the party to the suit derives his title will be
admissible. But this will only be held as an admission if the predecessor-in-title made the
declaration while still holding the title and not after the title has been transferred

SECTION 19- ADMISSION BY PERSONS WHOSE POSITION MUST BE PROVED

AS AGAINST PARTY TO SUIT
As general rule statements made by a third party to a suit are not considered as admissions but
Section 19 is an exception to this rule. Section 19 refers to the statements made by a third party
as against himself when it affects his position or liability and when such liability or position is
relevant to be proved as against the party to the suit.

SECTION 20 - ADMISSIONS BY PERSONS EXPRESSLY REFERRED TO BY

PARTYTO SUIT.
Statements made by persons to whom a party to the suit has expressly referred for information
in reference to a matter in dispute are admissions.
LECTURE – 2

PYQ –

• State the law relating to ‘Confession’ made by an accused Person as enunciated

insections 24 to 27 of the Indian Evidence Act 1872. 2015

CONFESSION AND ITS KINDS

Section 24 of Indian Evidence Act –

• confession caused by inducement, threat or promise, when irrelevant in criminal

proceeding- A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the court to have been caused by
any inducement, threat or promise having reference to the charge against the accused
person, proceeding from a person in authority and sufficient, in the opinion of the court,
to give the accused person grounds, which would appear to him reasonable, for
supporting that by making it he would gain any advantage or avoid any evil of temporal
nature in reference to the proceeding against him.

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of
the law of Evidence defines confession as “confession is an admission made at any time by a
person charged with a crime stating or suggesting the inference that he committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed

• “ A confession must either admit in terms the offence or at any rate substantially all the
facts which constitute the offence. An admission of a gravely incriminating fact, even
a conclusively incriminating fact is not in itself a confession”.
• In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the
Privy Council decision in Pakala Narayan Swami case over two scores.
• Firstly, that the definition if confession is that it must either admit the guilt in terms or
admit substantially all the facts which constitute the offence. Secondly, that a mixed up
 statement which even though contains some confessional statement will still lead to
acquittal, is no confession.

FORMS OF CONFESSION

• A confession may occur in many forms. When it is made to the court itself then it will
be called judicial confession and when it is made to anybody outside the court, in that
case it will be called extra-judicial confession. It may even consist of conversation to
oneself, which may be produced in evidence if overheard by another.
• For example, in Sahoo v. State of U.P. the accused who was charged with the murder
of his daughter-in-law with whom he was always quarreling was seen on the day of the
murder going out of the house, saying words to the effect : “I have finished her and
with her the daily quarrels.” The statement was held to be a confession relevant in
evidence, for it is not necessary for the relevancy of a confession that it should be
communicated to some other person.

Judicial confession- Are those which are made before a magistrate or in court in the due course
of legal proceedings. A judicial confession has been defined to mean “plea of guilty on
arrangement (made before a court) if made freely by a person in a fit state of mind.

Extra-judicial confessions- Are those which are made by the accused elsewhere than before
a magistrate or in court. It is not necessary that the statements should have been addressed to
any definite individual. It may have taken place in the form of a prayer.

Evidentiary value of confession

Value of judicial confession- a case where there is no proof of corpus delicti must be
distinguished from another where that is proved. In the absence of the corpus delicti a
confession alone may not suffice to justify conviction.

A confessional statement made by the accused before a magistrate is a good evidence and
accused be convicted on the basis of it. A confession can obviously be used against the maker
of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held that
the confession of an accused person is substantive evidence and a conviction can be based
solely on a confession.
LECTURE - 3

WHEN COFESSION IS NOT ADMISSIBLE

Confession to police

Section 25 – confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence.Reasons for exclusion of confession to police- another variety of confessions that are
under the evidence act regarded as involuntary are those made to a personnel. Section 25
expressly declares that such confessions shall not be proved. If confessions to police were
allowed to be proved in evidence, the police would torture the accused and thus force him to
confess to a crime which he might not have a committed.

Confession Of An Accused In Police Custody To Any One Else-

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

Section 27- How Much Of Information Received From Accused May Be Proved:

Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

Principle- this section of the act is founded on the principle that if the confession of the accused
is supported by the discovery of a fact then it may be presumed to be true and not to have been
extracted. It comes into operation only-

• If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody, and

• If the information relates distinctly to the fact discovered.

Lecture – 4

PYQ –

1. What is a dying declaration? What are grounds on which dying declalrations are
admissible inevidence; though in the nature of hearsay? What is its evidentiary
value?
2. Discuss the significance of dying declaration as an evidence. What
precautions should betaken before convicting a person on the basis of dying
declaration?2013

Dying Declaration

• In Section 32 (1) of Indian Evidence Act defines when the statement is made by the
person as the cause of his death, or as any of the circumstances of the transaction which
resulted in his loss of life, in cases in which the cause of that person’s death comes into
question.
• Such statements made by the person are relevant whether the person who made them
was alive or was not, at the time when they were made, under the expectation of death,
and whatever may be the nature of the proceeding in which the cause of his death comes
into question.
• More precisely in our Indian law, it is the fact that the dying man can never lie or Truth
sits on the lips of dying man. Hence, the Dying Declaration is Admissible and
considered as Evidence in Court, and can be used as a weapon to punish the culprit.

Types of Dying Declaration

• There is no particular form to be employed in making the Dying Declaration. it can be

Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the
form of Question Answer. However, there must be a distinct and definite assertion on
the part of the person who produces the statement.
• Possibly the declaration should be in written form in the exact words stated by the
person who made the statement. When a magistrate records the dying declaration, then
it should be in Question-Answer form as the magistrate will opt the maximum
information rightly, as in some cases dying declaration becomes the sole way to help in
the conviction of the accused.
Gesture and Signs

• In the case of Queen-Empress v. Abdullah the appellant was charged with the offence
of murder before the court of session.

• She was unable to speak but conscious and able to make gestures and signs. Magistrate
asked dulari, as who had wounded her, but due to the injured condition dulari was
unable to speak. After that, The magistrate mentioned several names one by one and
asked if they had wounded her.

• Dulari moves her hand forward and backwards and made negative and affirmative
signs. Subsequently, the magistrate asked whether Abdullah had wounded her, for that
dulari waved her hand made the sign in the affirmative, the magistrate recorded the
statement.

• After that question was put to her that if she been wounded with a knife or sword. In
this regard, dulari makes a negative sign, again magistrate asked her if she had been
wounded with the RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same was accepted
as evidence to prosecute Abdullah.

Oral and written

• When the person gives the name of the murderer to a person present and written by any
of them then it is a relevant dying declaration. However, people may dispose of the
name of the mugger orally.

• An oral dying declaration is admissible in evidence as an exception to the general rule

of evidence that hereby evidence is no evidence in the eyes of law. The oral dying
declaration made before his wife, father-in-law and other near relatives were made in
the conscious state.
 • Pakala Narain Swamy v. Emperor in which Lord Atkin: held that the circumstances of
the transaction which resulted in the death of the declarant will be admissible if such
transaction has some proximate effect.

• A dying declaration can be recorded by a person, or even by the police officer, but
if it is recorded by the judicial magistrate that it will have more credential value
and reliability.

Points to remember

1. Dying declaration made by the deceased can be recorded in any language.

2. If the statement was recorded in another language than the one which magistrate
recorded, then precautions should be taken to explain each and every aspect and
phrase.

3. The court cannot deny or discard the dying declaration only on the ground of
language.
 City academy law college
LL.B. Hons 6th Semester
Subject – Law of Evidence

Presumption , Expert Opinion , Oral and documentary evidence , Burden of Proof ,

Estoppel , Privileged Communications

UNIT –III- FORMATION OF EVIDENCE

Lecture Topic

Lecture -1 Presumption

Lecture – 2 Expert Opinion

Lecture -3 Oral and documentary evidence

Lecture – 4 Burden of Proof

Lecture - 5 Estoppel

Lecture – 5 Privileged Communications

Lecture 1

PYQ –

1. What is presumption of law? How is it admissible under evidence law? Support your
answerwith the help of statutory provisions 2013
2. Discuss the object of Section 113B. Is presumption under this section is rebuttable. 2019
3. What is presumption? Discuss the types of Presumptions? How is it admissible under
evidence law. 2019

Presumption

Section 4 of the Indian Evidence Act, 1872 provides that presumptions can be of three kinds:

• May Presume
• Shall Presume
• Conclusive Proof
May Presume is a discretionary presumption and it is the weakest category of presumption.
According to section 4 of the Indian Evidence Act, 1872, whenever this is provided by this Act
that the Court may presume a fact, the Court may, either regard such fact as proved unless and
until it is disproved or may call for proof of it. Such as sections 90, 113A, 114 of the Indian
Evidence Act, 1872.

Whenever it is directed by this Act, that the Court shall presume a fact, the Court shall presume
such fact as proved unless and until it is disproved but the Court will not call for proof of such
facts. This is a mandatory presumption. Such as sections 113B, 114A of the Indian Evidence
Act, 1872.

May Presume and Shall Presume are also known as Rebuttable Presumption. Conclusive Proof
and Conclusive Presumption is the strongest category of presumption and no evidence is
allowed to disprove that fact. It is an Irrebuttable Presumption. Such as 82 of the Indian Penal
Code, 1860, 41, 112, 115, 116, 117 of IEA, 1872.

Presumption as to Legitimacy:
Section 112 of the IEA, 1872 creates a rebuttable presumption of law as to the legitimacy of
the child. The law presumes strongly in favour of legitimacy as it is birth that determines the
status of the person. This section embodies the rule of law that a child born during the
continuance of a valid marriage or within 280 days of its dissolution, the mother remaining
unmarried shall be conclusive proof that the child is legitimate.

The presumption of legitimacy can be overthrown by bringing clear and strong evidence that
the husband and the wife had no access to each other at the time when the child could have
been begotten. Therefore, the legitimacy of a child is determined from the time of birth and
proof of non-access has to be given from the time of conception.

Presumption as to abetment of suicide by a married woman:

Presumption as to abetment of suicide by a married woman covers under section 113A of the
IEA, 1872. Essentials of section 113A of the IEA, 1872:

1. Wife commits suicide;

2. Accused- husband or relative of husband;
3. Charge under section 306 of the Indian Penal Code, 1860 read with section 498A
of the IPC, 1860;
4. Suicide- within seven years of her marriage;
5. You have to established section 498A of the IPC, 1860, which deals with cruelty;
6. May Presume- discretionary in nature
Presumption as to dowry death:
presumption as to dowry death covers under section 113B of the Indian Evidence Act, 1872.
Essentials of section 113B of the Indian Evidence Act, 1872:

1. Charge is under section 304B of the IPC, 1860;

2. Soon before her death she was subjected to cruelty or harassment for or demand of
dowry under section 498A of the IPC, 1860.
Presumption as to the absence of Consent:
Presumption as to the absence of consent covers under section 114A of the Indian Evidence
Act, 1872. Essentials of Section 114 A of the Indian Evidence Act, 1872:

1. Charge is under section 376 of the IPC, 1860;

2. Consent is in question;
3. Sexual intercourse is proved;
4. If the women says that it was non-consensual;
5. Shall Presume
General Classification of Presumption

The traditional approach of common law system has classified presumption only under two
categories that are a presumption of law and presumption of facts but to avoid any ambiguity
in deciding any case the Indian legal system has adopted the third classification that is mixed
presumptions which includes both the aspects of facts as well as law. Hence the existing legal
system has three types of presumptions which are as follows:

1) Presumption of Facts- Presumptions of facts are those inferences that are naturally and
reasonably concluded on the basis of observations and circumstances in the course of basic
human conduct. These are also known as material or natural presumptions. Natural
Presumptions are generally rebuttable in nature.

There are few provisions that are directly expressing about Natural Presumptions such as
Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where
Section 113A & 113 B are one of the most important provisions of presumptions under this
Act

2) Presumption of Law-

Presumptions of law are such inferences and beliefs which are established or assumed by the
law itself. It can further be divided into rebuttable presumptions of law and irrebuttable
presumptions of law.

Rebuttable Presumptions: Rebuttable Presumptions are certain presumption which is

regarded as evidence of good quality and does not lose their quality until proven contrary to
the presumption. Although it does not easily measure the extent of such presumption as their
validity only exists until they are not proven wrong.

• Matrimonial offences are one of the best examples to explain any presumption because
in such offence the possibility of getting evidence is nearly low as these offences that
take place within the closed area of matrimonial house. Hence the presumption is very
 important in such cases/offences. There are broadly three important provisions
regarding the presumption in matrimonial offences which are:

• Presumption as to abetment of suicide by a married woman within seven years of

marriage covered under Section 113A of Indian Evidence Act.
• Presumption as to dowry death within seven years of marriage covered under Section
113B of Indian Evidence Act.
• Birth during the marriage is the conclusive proof of legitimacy covered under Section
112 of the Indian Evidence Act.

Ir-rebuttable Presumption - Such presumptions cannot be ruled out by any additional

probative evidence or argument. Therefore the presumption explained comes under the roof of
conclusive presumption which cannot be proven contrary. Eg. A child under the age of seven
years is presumed that he is not capable of committing any crime.
Lecture - 2

Expert Opinion

1. Expert evidence is covered under s. 45-51 of the Indian Evidence Act. S. 45 of the Act
allows that when the subject matter of inquiry related to science or art, as to require the
course of the previous habit or study and in regard to which inexperienced persons are
unlikely to form a correct judgment
2. Expert is defined under section 45 of The Indian Evidence Act, 1872. The court needs
an expert to form an opinion upon:

• Foreign law

• Science & Art

• Identity of Handwriting

• Identity of finger impression

• Electronic evidence
If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has
devoted his time in learning a special branch of expertise and thus is specially skilled in the
subject. It can include:

• Superior knowledge, and

• Practical experience
The court of law, before admitting any of the opinion made by an expert, needs to ensure that
the person is an expert under the law. If it is found that the person is not an expert, his opinion
is discarded by the court. For checking that the witness is an expert, he must be examined and
cross-examined. A person becomes an expert by:

• Practice,

• Observation, or

• Experience
Handwriting expert’s opinion (Section 47)

When the court has an opinion that who has written or signed a document the court will
consider the opinion of a person who is acquainted with the handwriting. That person will give
an opinion that particular handwriting is written or not written by that particular person or not.

The handwriting of a person may be proved in the following ways:

• A person who is an expert in this field

• A person who has actually seen someone writing, or

• A person who has received any document which is written by the person whose
handwriting is in question or under the authority of such person and is addressed to
that person

• A person who regularly receives letters or papers which are written by that person

• A person who is acquainted with the signatures or writing of that person

• A certifying authority who has issued a digital signature certificate when the court
has formed an opinion as to the digital signature of a person. This is mentioned under
section 47-A of the act.

Opinion for Electronic evidence (Section 45A):

When a piece of information is transmitted or stored in a computer system and the court needs
assistance or opinion for the same in any case; they refer an examiner of electronic evidence.
This examiner of electronic evidence is known as the expert in such cases.

For this section, electronic evidence includes any information transmitted or stored in any
computer resource or any other electronic or digital form for which the opinion of electronic
evidence examiner is required as per section 79A of the Information Technology Act, 2000.

What is the Evidentiary Value of an Expert Opinion

The data given by the expert are relevant and admissible. If any oral evidence contradicts the
data/ report; it will not make the data evidence obsolete. But, as per section 46, in case any fact
is in contradiction to the opinion of the expert, that fact becomes relevant. If the opinion of the
expert is relevant, the contradictory fact becomes relevant even though it was not relevant as
such. The value of expert opinion depends upon the facts on which he is based and the
competency of such expert in forming a reliable opinion.

However, the personal appearance of the expert in the court can be excused unless the court
expressly asks him to appear in person. In such a case, where the expert is excused, he can send
any responsible officer who is well versed with the facts of the case and the report and can
address the court with the same.
Lecture - 3

Oral and documentary evidence

1. Primary and Secondary Evidence 2019

2. Under what circumstances secondary evidence is permissible in place of
primary evidence. Explain in reference to the provision of Indian Evidence Act.
1872. 2016

Oral Evidence

Evidence that is restricted to spoken words, gestures or motion is known as Oral evidence. It
is evidence that has been personally heard or seen by the witness. Oral evidence must always
be direct or positive which means it goes straight to establish the main fact in the issue. Section
3 of Evidence Act 1872 defines evidence as “All statements which the court permits or requires
to be made before it by witnesses, about matters of fact under inquiry, such statements are
called as oral evidence”. The word oral indicates something spoken or expressed by mouth; so
anything which is accepted in the court about the inquiry and expressed by any witnesses who
are called in the trial is called oral evidence.

The importance of Oral evidence has been explained by the Bombay High Court in one of the
cases that “if the oral evidence is proved beyond reasonable doubt it can also be enough for
passing conviction”.

Section 59 And Section 60 Deal With Oral Evidence.

Section 59 Proof Of Facts By Oral Evidence

This section enacts that all facts except that of the contents of a document can be proved as oral
evidence. In a landmark case of Bhima Tima Dhotre v. The pioneer chemical co. It was held
that “Documentary evidence becomes meaningless if the writer has to be called in every case
to give oral evidence of its contents. If that were the position, it means that, in the ultimate
analysis, all evidence must be oral and oral evidence would virtually be the only kind of
evidence recognised by law. This provision would indicate that to prove the contents of a
document utilizing oral evidence would be a violation of this section.

Section 60 Oral Evidence Must Be Direct

There are 4 main principles of this section to be satisfied.

1. It refers to a fact that is ‘seen’ by the witness.

This deals with the directness of oral evidence. Oral evidence can only be given by such witnesses who have
seen the crime/ issue themselves.

For example, A is present at the time B was murdered by C. A will be the witness and give oral evidence.

2. If It Refers To A Fact That Is ‘Heard’ By A Witness.

Oral evidence can only be given by such a witness who has heard the crime/ issue themselves. For example, A
has heard the conversation of C over the phone to kill B. A will be the witness and give oral Evidence.

3. If it refers to a fact which could be perceived by any other sense or in any other manner, by a witness.

Oral evidence can only be given by such a witness who has sensed the crime/ issue themselves. For Example,
A finds the behaviour of B very odd around C who is B’s wife. Later C is found dead.

4. If it refers to an opinion or to the grounds on which that opinion is held by the witness.

Public Documents (Section 74)

A public document is a reproduction of an entry contained in some kind of public register, book
or record relating to relevant facts or a certified copy issued by an authority. Documents such
as a birth certificate, marriage certificate, a bill of a public water utility, an FIR filed before
the police station etc are some examples of public documents.
Private Documents (Section 75)

Documents like letters, agreements, emails, etc. which are exchanged between contesting
parties to a litigation are private documents. Courts generally lean in favour of accepting public
documents more readily than private documents as the presumption is that the risk of tampering
with public documents is far less. Additionally, public documents have genesis to some reliable
source that can be traced back to for verification if necessary.

Section 61 provides that the contents in documentary evidence can be proved by

a) Primary Evidence (Section 62)

These are the “original documents” that are produced in the court for inspection. There are 2
special circumstances explained under this section:

• When a document is executed in parts. In such cases, each part is the primary evidence
of the document.
• Where several documents are made by one uniform process such as printing,
lithography or photography, each is the primary evidence for the contents of the rest.

b) Secondary Evidence - Section 63 of the Act provides Secondary Evidence. Secondary

evidence means and includes:

• Certified copies.

• Copies made from the original using a mechanical process while ensuring the
accuracy of the copy.

• Copies made from and compared with the original.

 • Oral accounts of the contents of a document given by some person who has seen
it.

When the contents of a document are to be verified by oral evidence then such document
becomes secondary evidence.

Section 65 A And B

Section 65 A and B provide the rules about the admissibility of Electronic records. Section
65 A -This section merely provides that the contents of electronic records are admissible in the
court of law and are to be proved following the provisions of Section 65B. Section 65 B –
This section provides the various conditions to be fulfilled for an Electronic record to become
admissible. With this amendment, electronic records became admissible as evidence in
criminal cases.
Lecture – 4

PYQ –

1. It is always the burden of the Prosecution to prove the case. Is there any exception to
this rulealso? Discuss 2013
2. Discuss in detail the law of evidence relating to burden of proof during legal Proceedings.
2014

Burden of Proof

Section 101 of Indian Evidence Act

“Whoever desires any Court to give judgment as to any legal right or liability dependent on
the existence of facts which he asserts, must prove that those facts exist. When a person is
bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The section states that if someone is desirous of obtaining a judgement or an order from the
courts or authorities upon some facts which he thinks are true and correct that he is required to
prove the same. Whoever is required to prove the said fact it is said that the burden of proof
lies on that person. The following examples will help for understanding this concept better:

Section 102 of Indian Evidence Act

“On whom burden of proof lies.—The burden of proof in a suit or proceeding lies on that
person who would fail if no evidence at all were given on either side.”

This section states on whom does the burden of proof shall lie. In a case or a suit, the burden
of proof usually lies on the person who will suffer if the same is not proved. This means that it
is necessary for a person to prove his case since he was the one who has filed a complaint/suit.
Person filing such complaint or suit will have to bear the loss if he/she is unable to convince
the court with the facts that they are stating. Illustration:

Section 103 of Indian Evidence Act

“Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on
that person who wishes the Court to believe in its existence, unless it is provided by any law
that the proof of that fact shall lie on any particular person.”
This section mainly talks about the burden of proof in relation to a particular incident or fact.
If a person wishes that the court should believe the existence of a particular fact then it is upon
him to prove the same. In simple words it means that if a person wishes the court to believe the
story that he/she has narrated then he/she will require to prove the same to the court.
Illustration:

Section 104 of Indian Evidence Act

“Burden of proving fact to be proved to make evidence admissible.—The burden of proving

any fact necessary to be proved in order to enable any person to give evidence of any other
fact is on the person who wishes to give such evidence.”

This section states that the burden of proof to prove a fact so that he can prove another fact or
provide another evidence lies on the person who wishes to prove that another fact. This means
that if a person wants to produces certain evidence or prove something else which will require
him/her to prove another set of fact or statement then he/she will be responsible to prove both
of them.

Section 105 of Indian Evidence Act

“Burden of proving that case of accused comes within exceptions.—When a person is accused
of any offence, the burden of proving the existence of circumstances bringing the case within
any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special
exception or proviso contained in any other part of the same Code, or in any law defining the
offence, is upon him, and the Court shall presume the absence of such circumstances.”

This section states that the burden of proof lies on the accused in case where he states or defends
saying that it falls under one of the exceptions. When a person is accused of an offense and the
person pleads that there existed a circumstance then he has to prove the same. During such
times it is presumed by law that there was absence of any such circumstance. Illustration:

Burden of proof in case of Civil Cases

When a person files a civil proceeding, it contains two things within it. The first one is the facts
of the case and the second one being the legal reason. The burden of proof in such cases is upon
the person who files such civil suit known as the plaintiff.
This means that if the plaintiff is unable to provide evidence and proof or is not able to convince
the court that the facts are in existence or are true then even if the Defendant does not offer any
defense or states anything he will win the case. Therefore, in such cases the defendants usually
try to harm the plaintiff’s case in some way or the other rather that positively proving their side.

Burden of proof in case of Criminal Cases

Generally, the most important rule is that a person is innocent until proven guilty. Hence, it is
the duty of the prosecution to convince the court the accused has committed a crime which
means that the burden of proof lies upon the prosecution mainly. The burden of proof may
change if and when the accused claims one of the exceptions to the crime, claims or states
something.

In this case the burden of proof shall then lie upon the accused to prove such exception or
claim. It is necessary for the prosecution to prove their case beyond reasonable doubt which
means that the burden of proof upon the prosecution is quiet heavy and thus the accused or the
defendant gets a good advantage.

• Savithri Vs Karthyayani Amma – Each party had to prove its allegations

In this particular case there was a question of execution of a will and it being executed by
coercion. The court held that each party had to prove its allegations which means the one
alleging that the will was executed by coercion has to prove the same.
Lecture – 5

PYQ –

1. Define estoppels. What are the essential ingredients of estoppel? 2018

2. Burden of proof and Onus of proof 2018
3. Discuss in detail rules relating to burden of proof.2019

Estopple

Section 115 of the Indian Evidence Act, 1872: Estoppel in Indian Evidence Act

Section 115 of the Indian Evidence Act, 1872 defines estoppel. According to it When one
person has, by his declaration, act or omission, intentionally caused or permitted another person
to believe a thing to be true by his act upon such belief, neither he nor his representative shall
be allowed, in any suit or proceeding between himself and such person or his representative, to
deny the truth of that thing. It could be explained by an illustration. A person accepts his
liability to make payment under an arbitration award. Such a person cannot later challenge the
award. Section 115 gives a good example. ‘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.

Conditions for Doctrine of Estoppel under Section 115 of the Indian Evidence Act, 1872
The following conditions are to be satisfied in order to apply the doctrine of estoppel:

• The representation must be made by one person to another person.

• The representation made must be as to facts and not as to the law.
• The representation must be made as to an existing fact.
• The representation must be made in a manner which makes the other person believe
that it is true.
• The person to whom the representation is being made must act upon that belief.
• The person to whom the representation would be made should suffer a loss by such
representation.
Exceptions to Estoppel under Indian Evidence Act

It does not apply to those matters where both parties have the knowledge of truthfulness.

It does not apply against statutes. It cannot contradict the provision of statutes. It cannot also
remove the condition of statues.

It does not apply to regulations.

It does not apply to ultra-virus orders and decisions.

It does not apply to questions of law.

It does not apply to sovereign acts of the government.

In the case of Sardar Chand Singh v. Commissioner; Burdwan Division, Chang Singh, the
Managing Director of Messrs., was denied any revolver license as he was accused in a
gruesome murder case and other cases. When the District Magistrate issued an order that he
could not hold any revolver license on the grounds of public order and safety, Chand made no
appeal. This planted a reasonable belief that he has consented to it. Later on when makes an
application to the District Magistrate to reconsider his case, it was denied following the doctrine
of ‘Estoppel by Conduct’.
Lecture – 6

PYQ –

1. Legal advisers not to disclose Professional Communication 2015

2. What are privileged communication? Under what circumstances
privilege can be claimed?Explain 2019

Privileged Communications

Privileged Communications under the Evidence Act, 1872:

Communications during the marriage - Section 122

This section prohibits either the husband or the wife from disclosing their communication
during the course of their marriage. However, it does not rule out the possibility of proving the
communication by other ways. The court affirmed in 'Ram Bharose vs State of UP' that any
communication between husband and wife during the marriage, whether by the husband to his
wife or by his wife to her husband, is not admissible in court.

Section 123 - Evidence as to affair of state .

This section makes it illegal to present as evidence any document that is:

An unpublished official record, or one that is related to the state's affairs. It may, however, be
given with the consent of the involved department's chief, who has the authority to grant or
deny such permission.

Section 123 of the Evidence Act, combined with section 162 of the Evidence Act, gives the
court the final say on whether or not the unpublished material can be used as evidence.

Section 124 - Official communication

This clause prevents a public officer from disclosing a communication made in official
confidence to them if the disclosure would jeopardise the public interest. The public interest is
vital in both circumstances.

Section 125 - Information as to the commission of offences

This law forbids magistrates and police officers from releasing any information they receive
about the commission of a crime. Similarly, a revenue officer cannot be forced to reveal when
he received knowledge about the commission of a public-revenue-related offence.

Section 126 - Professional communication

This clause forbids the disclosure of information by a barrister, attorney, pleader, or vakil
during the course and for the purpose of his employment, made to him or on behalf of his client,
or any advice offered by him to his client. It also prohibits a barrister, attorney, pleader, or vakil
from stating the information or circumstances of any document with which he became familiar
with or for the purpose of his work.

Exceptions to section 126 of the Indian Evidence Act:

Conversations made for the aim of committing a crime are not protected.

Any fact discovered in the course of employment by the attorney, pleader, vakil or barrister to
be fraud or a criminal committed since the beginning of employment is not protected

If the client offers specific approval, the message can be disclosed by an attorney, pleader, vakil
or barrister.

The provisions of section 126 apply to interpleaders, clerks, or servants of an attorney, pleader,
vakil or barrister, according to section 127.

Section 128 - Privilege not waived by volunteering evidence

This clause states that if a client and lawyer have a secret communication and the lawyer
appears as a witness, the lawyer does not waive the privilege given by section 126. However,
if the client challenges the lawyer in court about the private communication, his consent may
be deemed given.

Section 129 - Confidential communication with the legal advisor

When the client is being probed, this section applies. Unless he volunteers himself as a witness,
he cannot be forced to disclose any confidential communication between him and his legal
counsel.
 City academy law college
LL.B. Hons 6th Semester
Subject – Law of Evidence

Unit –IV

Evidence by accomplice (Sec.133 with 114(b)) Examination in Chief, Cross

examination, Re-Examination Leading Question (Sec.141-143), Witness , Witness
Protection scheme

UNIT –IV- FORMATION OF EVIDENCE

Lecture Topic

Lecture -1 Evidence by accomplice

Lecture - 2 Witness , Witness Protection scheme

Lecture -3 Examination in Chief, Cross examination, Re-Examination

Lecture – 4 Leading Question (Sec.141-143) , Hostile Witness , Refreshing Memory

Lecture - 5 Impact of Forensic science : Evidentiary value of DNA Test, Narco -

analysis
Lecture -1

PYQ –

1. Who is accomplice? A conviction is illegal merely because it proceeds upon

uncorroboratedtestimony of an accomplice. Explain 2016
2. Who is an accomplice? Discuss the rules applicable to admissibility of the
testimony of anaccomplice.2018

Evidence by accomplice (Sec.133 with 114(b)

1. S.133 Accomplice: An accomplice shall be a competent witness against an accused

person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. This provision thus places no limitation on
the acceptance of the testimony of an accomplice against accused merely on the ground
that he is an accomplice.
2. Further, it does not impose any condition or correlation for purposes of conviction. This
section is the absolute rule of law as regards to the evidence of accomplices but this
essentially has to be read with the rule of prudence laid down in illustration (b) of
Section 114
3. S.114. Illustration (B) The court may presume that an accomplice is unworthy of credit,
unless he is corroborated in material particulars. This section enacts a rule of
presumption but it is not a hard and fast presumption which cannot be rebutted. It is
thus well settled that except in circumstances entailing an exceptional nature, it is the
duty of the court to raise the presumption in section 114 illustration (b), and the
legislature requires that the court should make the natural presumption in that section.8
Further, the most important issue in relation to both these sections is that of
corroboration. The general rule regarding corroboration that has emerged is not a rule
of law but merely a rule of practice which has acquired the force of rule of law in both
India and England.
4. Corroboration means independent testimony. A man who has been guilty of a crime
himself will always be able to relate the facts of the case, and if the confirmation be
only truth of that history, without identifying the persons, that is really no corroboration
at all. Corroboration of the evidence is necessary because an approver on his own
admission is a criminal and a man of the very lowest character who has thrown to the
 wolves his erstwhile associates and friends in order to save his own skin. His evidence
therefore must be received with the greatest caution if not suspicion.
5. Accomplice evidence is held untrustworthy and therefore should be corroborated for
the following reasons
• An accomplice is likely to swear falsely in order to shift the guilt from
himself.
• An accomplice is a participator in crime and thus an immoral person and
• An accomplice gives his evidence under a promise of pardon or in the
expectation of an implied pardon
Lecture – 2

Witness , Witness Protection scheme

A witness is a person who has personally seen an event happen. The event could be a crime or
an accident or anything. Sections 118 – 134 of the Indian Evidence Act, 1872 talks about who
can testify as a witness, how can one testify, what statements will be considered as testimony,
and so on.

Capacity of witness

A witness who needs to testify before the Court must at least have the capacity to understand
the questions that are posed to him and answer such questions with rationality. Sections 118,
121 and 133 of the Act talks about the capacity of a witness.

Who may testify?

Any person who has witnessed the event is competent to testify, unless – the Court considers
that they are unable to understand the questions posed to them, or unable to give rational
answers as prescribed in Section 118.

Rational answers should not be expected from those of tender age, extreme old age, or a person
with a mental disability.

The section says that generally, a lunatic does not have the capacity to testify unless his lunacy
does not prevent him from understanding the question and give a rational answer.

Witness unable to communicate verbally

Section 119 of the Act says that a person who is not able to communicate verbally can testify
by way of writing or signs.

A person who has taken a vow of silence and is unable to speak as a result of that vow will fall
under this category for the purpose of this Section.

In the case of Chander Singh v. State, the High Court of Delhi observed that the vocabulary of
a deaf and dumb witness may be very limited and due care must be taken when such witness
is under cross-examination.
Can judges testify?

A judge or a magistrate is not compelled to answer any question regarding his own conduct in
the Court, or anything that came to his knowledge in the Court – except when asked via special
order by a Superior Court as stated in Section 121.

He may, however, be subject to examination regarding other matters that happened in his
presence while he was acting as a judge or a magistrate.

For a better understanding of this provision, let’s look into the illustrations provided.

• Harry is being tried before the Court of Session. He says that deposition was improperly
taken by Magistrate Draco. Draco is not obligated to answer unless there is special order
by a Superior Court.
• Hermoine is accused of having given false evidence before the Court of Magistrate
Draco. He cannot be asked what Hermoine said unless there is a special order by a
Superior Court.

Can accomplice be a witness?

Section 133 of the Act says that an accomplice to a crime is competent to be a witness against
the accused. The conviction made on the basis of such testimony is not illegal.

An accomplice is a person who is guilty of helping the accused to commit a crime. He can be
appropriately described as a partner in the crime of the accused.

How many witnesses can there be?

There is no prescribed number for minimum or maximum witnesses to be in a case in any

provision. Section 134 lays down the same. It says that there is no requirement of a particular
number of witnesses to prove any fact.

Witness Protection Scheme 2018

The Witness Protection Scheme in 2018, is the first legal enactment set up by the Indian
Government. The need for such an Act was due for a long time. The Supreme Court in the State
of Gujarat v. Anirudh Singh (1997) held that it is the duty of every witness to help the State by
giving evidence. The objective of the scheme is simple. Protect and safeguard the interests of
the witnesses in India. The Scheme further enables the witness, a police escort to the courtroom.
In worst-case scenarios, the Act divides witnesses into three categories:
Class A:- When the witness and his/her family members get threats to their lives during the
proceedings.

Class B:- When the safety, reputation, and property of the witness and his/her family members
during the investigation.

Class C:- When the threat only extends to harassment of the witness and his/her family
members during the proceedings.

The Scheme further provides for a Witness Protection Fund, which is created for the expenses
incurred during a witness protection order.
Lecture -3

Examination in Chief, Cross examination, Re-Examination

Section 137 :

Examination-in-chief:

• The examination of a witness by the party who calls him shall be called his
examination-in-chief.
• After taking oath the witness has to give answers the questions asked by the party who
has called him before the court.
• In this process all material facts within the knowledge of the witness are recorded to
prove his case.
• In examination-in-chief the testimony is strictly confined to the facts relevant to the
issues only, and not to the law.
• No leading question is permitted to be asked unless the court allows it.
• In conducting examination-in-chief like of a witness specially in serious cases, the
public prosecutor should take abundant precaution in examination a witness.

Cross examination

• The examination of a witness by the adverse party shall be called his cross-examination.
• After the examination-in-chief the opposite party shall be called to examine the witness.
• Where in cross-examination of a witness, nothing appears suspicious, the evidence of
the witness has to be believed.
• It is the right of the opposite party to cross-examine the witness to expose all relevant
facts which are either left or not disclosed in the examination-in-chief.
• It is “one of the most useful and efficacious means of discovering the truth.”
• The right of cross- examination can be exercised by the co-respondents when their
interest is in direct conflict with each other.

Re-examination:

• The examination of a witness, subsequent to the cross-examination by the party

who called him, shall be called his re-examination.
• The examination of witness subsequent to cross-examination by the party who
called him, is called re-examination.
 • If the party finds inconsistencies or discrepancies arising out of cross-
examination he has the right to re-examine his own witnesses.
• But, in case of re-examination no new question or fact shall be permitted to be
asked without the court’s consent. Similarly, no leading question can be asked.
• It was held that the re-examination of witness is not confined to mere
clarification of ambiguities arising in cross- examination.

Section 138 of the Indian Evidence Act

Order of examination

First of all, witnesses shall be examined in the examination in chief afterword cross-
examination by the opposite party if the opposite party desires, at last re examination by the
first party if the first party calling the witnesses for the re examination. All the examinations of
witnesses must relate to relevant facts, but the cross examination no need to be controlled to
the facts to which the witness examine on his examination in chief.
Lecture – 3

Leading Question

Leading Question Defined Under The Indian Evidence Act

Section 141 Leading Questions - Any question suggesting the answer which the person putting
it wishes or expects to receive is called a leading question.

The purpose of an examination in chief, that is, questioning of the witness by the party who
has called him, to enable the witness to tell to the court by his own mouth the relevant facts of
the case. A question should be put to him about the relevant facts and then he should be given
the fullest freedom to answer the question out of the knowledge he possesses. The answer
should not be suggested. The question should not be framed as to suggest the answer also. The
question should not carry an inbuilt answer in it. Any such question which suggests to the
witness the answer which he is expected to make is known as a ‘leading question’.

For example, it is relevant to tell to the court as to where a witness lives, the question to be
asked to him should be “where do you live”? and then he may tell where he lives. If the question
is framed like this, “do you live in such and such place”, the witness will pick up the hint and
simply answer “yes” or “no”. This is a leading question. It puts the answer in the mouth of the
witness and all that he has to do is to throw it back.

Leading questions are asked to make the witness acquaintance and to remove the fear or
apprehension etc. from the mind of the witness. It is just like inducing a small child by a guest
with little words, to enhance the acquaintance.

Sections Relevant To Leading Questions

Section 142: - When they must not be asked

When they must not be asked.—Leading questions must not, if objected to by the adverse party,
be asked in an examination-in-chief, or in a re-examination, except with the permission of the
Court. The Court shall permit leading questions as to matters which are introductory or
undisputed, or which have, in its opinion, been already sufficiently proved.

Section 143: - When they may be asked

When they may be asked.—Leading questions may be asked in cross-examination

Hostile Witness

Relevant Legal Provisions

Section 154 of the Indian Evidence Act States: The court may, in its discretion permit the
person who calls a witness to put any questions to him which might be put in cross-examination
by the adverse party.

A close scrutiny of sec 154 will bring following points into picture:-

The provision permits only those questions that can be asked during a cross-examination.

The law nowhere mentions the need to declare the witness as “ hostile” before the provision
can be evoked.

The request to declare a person as a hostile can be invoked only when the examining party feels
that the statement presently spoken or the testimony given by the witness would be against his
duty to speak the truth.

It can be thus inferred that, unlike common law system, there is no distinction between a
‘hostile witness’ or ‘adverse witness’ for the purpose of cross-examining. All that the law seeks
to elicit hidden facts for the sole purpose of determining the truth.

Section 193 of Indian Penal Code,1860:- talks about the person who intentionally gives false
evidence in any stage of a judicial proceeding. This provision states that any person doing such
would be liable for punishment with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

Explanation 1 : A trial before a Court-martial is a judicial proceeding.

Explanation 2: An investigation directed by law preliminary to a proceeding before a Court of

Justice, is a stage of a judicial proceeding though that investigation may not take place before
a Court of Justice.
Refreshing Memory ( Section - 159)

A witness may, while under examination, refresh his memory 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.

The witness may also refer to any such writing made by any other person, and read by the
witness within the time aforesaid, if when he read it he knew it to be correct.

When witness may use copy of document to refresh memory. -- Whenever a witness may
refresh his memory by reference to any document, he may, with the permission of the Court,
refer to a copy of such document:

Provided the Court be satisfied that there is sufficient reason for the non-production of the
original. An expert may refresh his memory by reference to professional treatises.
Lecture - 5

Impact of Forensic science : Evidentiary value of DNA Test, Narco - analysis

As per Section 45 of Indian evidence Act 1872- When the Court has to form and opinion upon
a point of foreign law or of science or art, or as to identity of handwriting or finger impressions,
the opinions upon that point of persons specially skilled in such foreign law, science or art, or
in questions as to identity of handwriting or finger impressions are relevant facts. Such persons
are called experts.

Further as per Section 46 of Indian evidence Act 1872- it is stated that facts, not otherwise
relevant, are relevant if they support or are inconsistent with the opinions of experts, when such
opinions are relevant.

Thus the ingredients of section 45 and section 46 are highlights that:

1) The court when necessary will place its faith on skills of persons who have technical
knowledge of the facts concerned.

2) The court will rely the bona fide statement of proof given by the expert concluded on the
basis of scientific techniques.

3) The evidence considered irrelevant would be given relevance in eyes of law if they are
consistent with the opinion of experts.

Crime detection and DNA technology:

• Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the
Criminal Procedure Code, 1973 provides for DNA tests impliedly and they are
extensively used in determining complex criminal problems.
• Sec. 53 deals with examination of the accused by medical practitioner at the request of
police officer if there are reasonable grounds to believe that an examination of his
person will afford evidence as to the commission of the offence.
Vasu vs Santha 1975 (Kerala)

In the above cases the court has laid down certain guidelines regarding DNA tests and their
admissibility to prove parentage.

(1) That courts in India cannot order blood test as a matter of course;

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer
for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in
order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the
blood test; whether it will have the effect of branding a child as a bastard and the mother as an
unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

Admissibility of narco-analysis in the court

• Just like a confession made in the police station is not admissible, a statement made
during the narco analysis test is not admissible in the Court, except under certain
circumstances when the Court thinks that the facts and nature of the case permit it. The
Courts have, however, provided differing views on the permissibility of conducting
narco-analysis.
• In the case of SeIvi Murugesan v. State of Karnataka,(2010), the High Court of
Karnataka explored the issue of whether narco-analysis is a compulsion on the invasion
of the human body or not. Justice Majage referred to Section 53 (1) of the Criminal
Procedure Code,1973 which provides for the use of reasonable force by a medical
practitioner at the request of a police officer for ascertainment of facts that could help
in finding new evidence.
• He stated that the narco-analysis test done by a qualified medical practitioner within a
prescribed manner is justified under Section 53(1) of the CrPC. Further, supporting his
view with the help of Section 39 of the Criminal Procedure Code, he stated that it is the
duty of every individual to give information about a crime, and Article 20(3) of the
Constitution cannot hinder the process of acquiring the truth.