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. "Evidence may be given of facts in issue and relevant facts." Explain.

To ensure that a judicial process does not linger on for too long, courts cannot waste their time on things that are

not important for the case. While there can be many things for which evidence can be given but evidence thatdoes not bear on the case at hand, has no use for the court. This is the concept behind Section 5 of Indian

Evidence Act, 1!", which says that in any suit or proceeding, evidence may be given of the e#istence or non$

e#istence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

A person is not allowed to bring forward any evidence to prove or disprove a fact that is neither a fact in issue ora fact that is relevant to the facts in issue. This statement refers to two %inds of facts $ facts in issue and relevant

facts. &et us see what they both mean $

Facts in Issue

'ection ( defines facts in issue. According to this section, a fact in issue is a fact that directly or indirectly in

connection with other facts, determines the e#istence, non$e#istence, nature, or e#tent of any right or liability thatis asserted or denied in any suit or proceeding. In other words, facts in contention in a case are facts in issue. )or

e#ample, A is accused of murder or *. In this case, the following are facts in issue $

1. A caused *+s death.

". A had intention to %ill *.

(. A was insane.

. A received grave and sudden provocation from *.

All the above are facts in issue because they are in contention and they determine the liability of A. Their truth

increases or decreases the probability that A murdered *. -rosecution will have to establish the facts that prove

that A murdered * before A can be convicted. At the same time, the prosecution also has to disprove that any of

the e#ceptions do not apply to A. A fact in issue is also %nown by its latin term $ factum probandum, which

means fact to be proved.

A fact will be considered as fact in issue only if the fact is such that by itself or in connection to other facts it iscrucial to the uestion of a right or liability. To be a fact in issue, a fact must satisfy two reuirements $ the fact

must be in dispute between the parties and the fact must touch the uestion of right or liability. The e#tent of

rights and liabilities of parties depend on the ingredients of an offence. In criminal matters, the allegations in the

charge sheet constitute the facts in issue, while in a civil case, it depends on the provisions of the substantive law

Relevant Facts

(Q. !at do you understand by relevancy of facts#

The word relevancy as such is not defined in Indian Evidence Act, 1!", however, the meaning of the word is

uite clear. The word /relevancy/ means the property of a thing that ma%es it connected to the matter at hand. A

thing is relevant to other when it has a relation to the other thing that tells something appropriate about the other

thing. 0elevancy of a )act means that the fact has a significant relation to another fact that is under

consideration. When two facts have a direct relation, they are relevant to each other. )or relevancy it is

necessary that if we ta%e one fact, the other will be relevant only if there is a certain type of relation between

them, which is pertinent in the given circumstances.

A relevant fact is also %nown by its latin term $ factum probans, which means a fact that proves. Thus, if facts$in$

issue are the facts to be proved or disproved in a trial, relevant facts are the facts that help prove or disprove

facts$in$issue. A fact is relevant if belief in that fact helps the conclusion of the e#istence or non$e#istence of

another.



Section $ specifies that a 0elevant fact is a fact is relevant to another when it is connected to the other in any of

the ways referred to in the provisions contained in the act. Sections % to 55 contains provisions that define the

relationships that ma%e a fact legally relevant or not relevant to another. The relationship ma%es one fact more

probable or improbable because of the other. )or e#ample, )act A is that a person was given certain medication

and he died. )act * is that the person was suffering from T*. ere, fact * is relevant to fact A because it throws

light on the possible causes of his death. )act * ma%es is probable that he might have died because of T* instead

of the given medication.

In &'' vs ilbourne) *+,$) &ord 'imon of 2laisdale has said, /Evidence is relevant if it is logically probative

or disprobative of some matter which reuires proof. A relevant evidence is evidence that ma%es the matter

which reuires proof more or less probable./

As is evident from Section 5 stated above, only those facts that are related to the facts in issue through

relationships defined in 'ection 3 to 44 are legally relevant and evidence can be given only for those facts in a

trial. It must be noted, however, that a relevant fact may not necessarily be admissible.

Section ** would be important to mention here. As per 'ection 11, in certain situations facts not otherwise

relevant become relevant. This happens if they are inconsistent with any fact in issue or relevant fact or if bythemselves or in connection with other facts they ma%e the e#istence or non$e#istence of any fact in issue or

relevant fact highly probable or improbable. )or e#ample, 5a6 The uestion is whether A committed a crime at

7alcutta on a certain day $ The fact that, on that day, A was at &ahore is relevant. 5b6 The uestion is, whether A

committed a crime. The circumstances are such that the crime must have been committed either by A, *, 7 or 8.

Every fact which shows that the crime could have been committed by no one else and that it was not committed

by either *, 7 or 8 is relevant. As is shown by these illustrations, an alibi is a very common e#ample of an

irrelevant fact becoming relevant.

Q. Explain t!e doctrine of Res -estae. &o you agree it! t!e vie t!at t!is doctrine is not only useless but

is also !armful / !en does relevancy of facts form part of t!e same transaction

&octrine of Res -estae

In a nutshell, 0es 2estae means facts forming part of a transaction. This includes things done and things said in

the course of a transaction. Acts and declarations accompanying a transaction are treated as 0es 2estae and are

admissible in evidence. As discussed above, a 7ourt is interested only in such evidence that is bearing on a fact

in issue or a relevant fact. This is important in limiting the scope of the trial to facts that are indeed important for

the case so that justice can be done swiftly.

owever, in narrowing the scope of things that can be brought before the court, injustice should not be done. The

things that are reasonably connected to the facts in issue are usually very important for a case and such facts

must be allowed to be brought before the court whether they fall into any of the sections that categori9e the facts

as relevant or not. This concept is espoused by Section %. It says:

Section %. Relevancy of facts forming part of same transaction $ )acts which, though not in issue are so

connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the

same time and place or at different times and places.

What it means is that a fact in issue does not happen in isolation. It always has a factual story behind it. A fact in



issue lies in a pool of other facts that gives birth to it. This section ma%es all such facts relevant. The important

thing to understand here is the meaning of the term /transaction/. To be eligible under this section the fact must

have occurred in the same transaction in which the fact in issue occurred. /;ccurring in the same transaction/ is

a wide term that includes several %inds of things such as things that happened at the vicinity of the facts in issue,

things that were done by the accused right after or before the facts in issue, things that lead to facts in issue, and

so on. The following illustrations e#plain the %ind of facts that are contemplated under this section:

Illustrations

5a6 A is accused of the murder of * by beating him. Whatever was said or done by A or * or the by$standers at

the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

5b6 A is accused of waging war against the 2overnment of India by ta%ing part in an armed insurrection in which

property is destroyed, troops are attac%ed and goals are bro%en 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.

5c6 A sues * for a libel contained in a letter forming part of a correspondence. &etters between the parties relating

to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, arerelevant facts, though they do not contain the libel itself.

5d6 The uestion is whether certain goods ordered from * were delivered to A. the goods were delivered to

several intermediate persons successively. Each delivery is a relevant fact.

The principle that is highlighted by the above illustrations is that whenever /transaction/ such as a contract or a

crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction.

According to Step!en, a transaction is a group of facts so connected together as to be referred to by a single

name, as a crime, a contract, a wrong, or any other subject of inuiry which may be in issue. Although Section %

does not use the words Res -estae, the concept behind this section is often referred to by this term. This pool offacts in which facts in issue happened is the /0es 2estae/ of the facts in issue. 0es 2estae is the surrounding

circumstances of the event to be proved.

Res -estae and 0earsay Evidence

0es 2estae also refers to secondhand statements considered trustworthy for the purpose of admission as evidence

in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event.

<nder the hearsay rule 5Section %1 $ ;ral evidence must be direct6, a court normally refuses to admit as evidence

statements that a witness says he or she heard another person say. Traditionally, two reasons have made hearsay

inadmissible: unfairness and possible inaccuracy. Allowing a witness to repeat hearsay does not provide the

accused with an opportunity to uestion the spea%er of the original statement, and the witness may have

misunderstood or misinterpreted the statement. Thus, in a trial, counsel can object to a witness+s testimony as

hearsay. The doctrine of 0es 2estae is one of the many e#ceptions to this rule. 'ince certain statements are made

naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of

credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such

statements are more trustworthy than other secondhand statements and therefore should be admissible as

evidence.

To be admissible, the statements must relate, e#plain, or characteri9e an event or transaction. They must be



natural statements growing out of the event, as opposed to a narrative of a past, completed affair. Additionally,

the statements must be spontaneous, evo%ed by the event itself, and not the result of premeditation. )inally, the

original spea%er must have participated in the transaction or witnessed the event in uestion. Thus, for e#ample,

a witness might testify that during a ban% robbery, she or he heard another person shout, /That person is robbing

the ban%=/ and the statement could be admitted as an e#ception to the ban on hearsay. Illustration 5a6 above is an

e#ample of such statement.

2sefulness of Res -estae

As per '!illip3s 4reatise on Evidence, the reason why the term 0es 2estae has been avoided from 'ection 3 is

because this doctrine has been productive of confusion. There can be numerous facts that surround the facts in

issue. They can all be somehow lin%ed with the same transaction. There is no clearcut rule that can demarcate a

transaction. 'o it is entirely left to the e#perience and intuition of the >udges to determine whether a particular

fact can be included in 0es 2estae or not. This is evident from the following two cases. In the case of R vs

Foster *6$, accused was charged with manslaughter in %illing a person by driving over him. A witness saw the

vehicle driven fast but did not see the accident. Immediately after, on hearing the victim groan, he went up to

him and as%ed him what happened. The deceased then made a statement as to the cause of the injury. The court

held that what the deceased said at the instant, as to the cause of the accident is clearly admissible.As a contrast, in the case of R vs 7eddingfield *,+, a woman, with her throat cut, came suddenly out of a

room, in which she had been injured. 'hortly before she died, she said, /;h dear Aunt, see what *eddingfield

has done to me./ This statement was not accepted as 0es 2estae. According to 89 8oc:burn, anything

uttered while the crime was being done would be admissible but here, what she said was said after the crime was

all over.

Thus, it can be seen that the doctrine of 0es 2estae does not produce same results in very similar situations. This

certainly causes confusion in the minds of novice lawyers and judges. ?y belief is that this principle should be

applied when common sense dictates so. &i%e any other principle, this principle is also not a precise instrument

to measure relevancy. It is only a guide that can help decide whether a fact is sufficiently relevant to a fact inissue. The final decision rests with the >udge, who should decide depending on the peculiarities of the case.

I do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigid rule of law. It

should be applied only when suitable.

What facts are relevant under Indian Evidence Act?

Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant.

These are as follows - [TrOcMI ConODC SABADOOC!

Section 6 - Relevancy of facts forming part of same transaction - "acts which#

tho$%h not in iss$e# are so connected with a fact in iss$e as to form &art of the same

transaction# are relevant# whether the' occ$rred at the same time and &lace or at

di(erent times and &laces. "or e)am&le - *a+ A is acc$sed of the m$rder of B b' beatin%

him. ,hatever was said or done b' A or B or the b'-standers at the beatin%# or so shortl'

before or after it as to form &art of the transaction# is a relevant fact.

Section 7 - acts !hich are the occasion" cause or e#ect of facts in issue - "acts

which are the occasion# ca$se or e(ect# immediate or otherwise# of relevant facts# or facts



in iss$e# or which constit$te the state of thin%s $nder which the' ha&&ened# which

a(orded an o&&ort$nit' for their occ$rrence or transaction# are relevant.

"or e)am&le - a+ The $estion is# whether A robbed B. The facts that# shortl' before the

robber'# B went to a fair with mone' in his &ossession# and that he showed it or

mentioned the fact that he had it# to third &ersons# are relevant.

Section $ - %otive" preparation and previous or su&se'uent conduct - An' fact is

relevant which shows or constit$tes a motive or &re&aration for an' fact in iss$e or

relevant fact -

"or e)am&le - *a+ A is tried for the m$rder of B - The facts that A m$rdered C# that B

new that A had m$rdered C# and that B had tried to e)tort mone' from A b' threatenin%

to mae his nowled%e &$blic# are relevant -

Section ( - acts necessary to e)plain or introduce relevant facts - "acts

necessar' to e)&lain or introd$ce a fact in iss$e or relevant fact# or which s$&&ort or

reb$t an inference s$%%ested b' a fact in iss$e or relevant fact# or which establish the

identit' of an' thin% or &erson whose identit' is relevant# or /) the time or &lace at which

an' fact in iss$e or relevant fact ha&&ened# or which show the relation of &arties b' whoman' s$ch fact was transacted# are relevant in so far as the' are necessar' for that

&$r&ose -

"or e)am&le# *a+ The $estion is# whether a %iven doc$ment is the will of A - The state of

A0s &ro&ert' and of his famil' at the date of the alle%ed will ma' be relevant facts -

Section *+ - ,hings said or done &y conspirator in reference to common design

- ,here there is reasonable ro$nd to believe that two or more &ersons have cons&ired

to%ether to commit an o(ence or an actionable wron%# an'thin% said# done or written b'

an' one of s$ch &ersons in reference to their common intention# after the time when s$ch

intention was /rst entertained b' an' one of them# is a relevant fact as a%ainst each of

the &ersons believed to be so cons&irin%# as well for the &$r&ose of &rovin% the e)istence

of the cons&irac' as for the &$r&ose of showin% that an' s$ch &erson was a &art' to it -

Section ** - When facts not other!ise relevant &ecome relevant - "acts not

otherwise relevant are relevant - *1+ if the' are inconsistent with an' fact in iss$e or

relevant fact2 *3+ if b' themselves or in connection with other facts the' mae the

e)istence or non-e)istence of an' fact in iss$e or relevant fact hi%hl' &robable or

im&robable -

"or e)am&le# *a+ The $estion is whether A committed a crime at Calc$tta on a certainda' - The fact that# on that da'# A was at 4ahore is relevant -

Section * - In suits for damages" facts tending to ena&le .ourt to determine

amount are relevant - In s$its in which dama%es are claimed# an' fact which will

enable the Co$rt to determine the amo$nt of dama%es which o$%ht to be awarded# is

relevant -

Section */ - acts relevant !hen right or custom is in 'uestion - ,here the

$estion is as to the e)istence of an' ri%ht or c$stom# the followin% facts are relevant5-



*a+ an' transaction b' which the ri%ht or c$stom in $estion was created# claimed#

modi/ed# reco%ni6ed# asserted or denied# or which was inconsistent with its e)istence5

*b+ &artic$lar instances in which the ri%ht or c$stom was claimed# reco%ni6ed or

e)ercised# or in which its e)ercise was dis&$ted# asserted or de&arted from -

"or e)am&le - The $estion is whether A has a ri%ht to a /sher' - A deed conferrin% the

/sher' on A0s ancestors# a mort%a%e of the /sher' b' A0s father# a s$bse$ent %rant of

the /sher' b' A0s father# irreconcilable with the mort%a%e# &artic$lar instances in which

A0s father e)ercised the ri%ht# or in which the e)ercise of the ri%ht was sto&&ed b' A0s

nei%hbors# are relevant facts -

Section *0 - acts sho!ing e)istence of state of mind" or of &ody" of &odily

feeling - "acts showin% the e)istence of an' state of mind# s$ch as intention# nowled%e#

%ood faith# ne%li%ence# rashness# ill-will or %ood-will towards an' &artic$lar &erson# or

showin% the e)istence of an' state of bod' or bodil' feelin%# are relevant# when the

e)istence of an' s$ch state of mind or bod' or bodil' feelin%# is in iss$e or relevant -

"or e)am&le# *a+ A is acc$sed of receivin% stolen %oods nowin% them to be stolen - It is

&roved that he was in &ossession of a &artic$lar stolen article - The fact that# at the same

time# he was in &ossession of man'other stolen articles is relevant# as tendin% to show that he new each and all of the

articles of which he was in &ossession to be stolen -

Section *5 - acts &earing on 'uestion !hether act !as accidental or

intentional - ,hen there is a $estion whether an act was accidental or intentional# or

done with a &artic$lar nowled%e or intention# the fact that s$ch act formed &art of a

series of similar occ$rrences# in each of which the &erson doin% the act was concerned# is

relevant -

"or e)am&le# *a+ A is acc$sed of b$rnin% down his ho$se in order to obtain mone' for

which it is ins$red - The facts that A lived in several ho$ses s$ccessivel' each of which he

ins$red# in each of which a /re occ$rred# and after each of

which /res A received &a'ment from a di(erent ins$rance o7ce# are relevant# as tendin%

to show that the /res were not accidental -

Section *6 - E)istence of course of &usiness !hen relevant - ,hen there is a

$estion whether a &artic$lar act was done# the e)istence of an' co$rse of b$siness#

accordin% to which it nat$rall' wo$ld have been done# is a relevant fact -

"or e)am&le# *a+ The $estion is# whether a &artic$lar letter was dis&atched - The facts

that it was the ordinar' co$rse of b$siness for all letters &$t in a certain &lace to becarried to the &ost# and that &artic$lar letter was &$t in that &lace are relevant -

Sections *7 to /* - Admission of facts &y particular persons is relevant1

Sections / and // - Statements &y persons !ho cannot &e called !itness in

speci2ed circumstances are !ith de2nite conditions are relevant1

Sections /0 to /$ - Statements made in an e)tra ordinary circumstance" any

statement made on any la! !hich is inserted in some &oo3s" is relevant1



Sections 0+-00 - 4udgments of courts are relevant in certain situations1

Sections 05-5* - pinion of third person is relevant in certain situations1

Sections 5-55 - .haracter of a person is relevant in certain situations1

1 Are those facts also relevant !hich are the occasion" cause" or e#ect of facts

in issue?

8es# facts beca$se of which facts in iss$e tae birth# or facts which tae birth beca$se of

facts is iss$e are also considered relevant fact. Evidence can be %iven for the set of

circ$mstances $nder which the &rinci&le facts occ$rred. As &er Section 7 - "acts which

are the occasion# ca$se or e(ect# immediate or otherwise# of relevant facts# or facts in

iss$e# or which constit$te the state of thin%s $nder which the' ha&&ened# which a(orded

an o&&ort$nit' for their occ$rrence or transaction# are relevant.

Illustrations -

*a+ The $estion is# whether A robbed B. The facts that# shortl' before the robber'# B

went to a fair with mone' in his &ossession# and that he showed it or mentioned the factthat he had it# to third &ersons# are relevant.

*b+ The $estion is# whether A m$rdered B. Mars on the %ro$nd# &rod$ced b' a

str$%%le at or near the &lace where the m$rder was committed# are relevant facts.

*c+ The $estion is# whether A &oisoned B. The state of B0s health before the

s'm&toms ascribed to &oison# and habits of B# nown to A# which a(orded an

o&&ort$nit' for the administration of &oison# are relevant facts.

This section incl$de followin% t'&es of facts -

*1 ccasion - Occasion means the circ$mstances in which an event occ$rred. Evidence

of s$ch circ$mstance is eli%ible to %iven. "or e)am&le# in the case of R vs Richardson#

where a &erson was char%ed with the ra&e and m$rder of a %irl# the fact that the %irl was

alone in her cotta%e at the time of her m$rder is relevant beca$se it &rovided the

occasion in which the crime ha&&ened.

1 .ause - "acts that form the ca$se of facts in iss$e are relevant. "or e)am&le# A is

char%ed of criminal misa&&ro&riation of f$nds from a ban. The fact that A was h$%el' in

debt at the time of committin% the crime is a relevant fact beca$se it indicates a &ossible

ca$se of the commission of the crime. This is similar to motive as %iven in Section 9.

:owever this ma' not alwa's be the case. "or e)am&le# in the case of Indian Airlines vs%adhuri .haudhury AIR *(65# the re&ort of an In$ir' Commission relatin% to an air

crash was held relevant $nder Section ; as establishin% the ca$se of the accident.

/1 E#ects - Ever' act ca$ses some e(ect that leads to some other ha&&enin%. These

e(ects not onl' record the ha&&enin% of the main act b$t also throws li%ht $&on the

nat$re of the act. "or e)am&le# where a &erson is &oisoned# the s'm&toms &rod$ced are

e(ects of the fact in iss$e and so are relevant.

01 pportunity - Circ$mstances which &rovide an o&&ort$nit' for the ha&&enin% of a



fact in iss$e are relevant. "or e)am&le# a brea from the dail' ro$tine of a &erson ma' be

the o&&ort$nit' that is $sed the &erson to commit the crime. "or e)am&le# in R vs

Richardson" the fact that <ichardson left his fellow worers at abo$t the time of m$rder

$nder the &retense of %oin% to a smith0s sho& is relevant beca$se it &rovided an

o&&ort$nit' for the fact in iss$e# namel' her ra&e and m$rder# to ha&&en.

51 State of ,hings - "acts which constit$te the state of thin%s $nder which or in the

bac%ro$nd of which the &rinci&le facts ha&&ened are relevant. "or e)am&le# in the fact

ore Rattan vs Reginum" AIR *(7*" a &erson shot his wife and his &lea was that it was

an accident. The fact that he was $nha&&' with his wife and was havin% an a(air with

another woman# was held to be a relevant fact.

1 Any fact is relevant !hich sho!s or constitutes a motive or preparation and

conduct of any fact in issue or relevant fact1 E)plain1

This statement is taen from Section 9 of Indian Evidence Act# which is as follows -

Section $ - %otive" preparation and previous or su&se'uent conduct - An' fact is

relevant which shows or constit$tes a motive or &re&aration for an' fact in iss$e or

relevant fact. The cond$ct of an' &art'# or of an' a%ent to an' &art'# to an' s$it or&roceedin%# in reference to s$ch s$it or &roceedin%# or in reference to an' fact in iss$e

therein or relevant thereto# and the cond$ct of an' &erson an o(ence a%ainst whom is the

s$b=ect of an' &roceedin%# is relevant# if s$ch cond$ct in>$ences or is in>$enced b' an'

fact in iss$e or relevant fact# and whether it was &revio$s or s$bse$ent thereto.

E)planation * - The word ?cond$ct? in this section does not incl$de statements# $nless

those statements accom&an' and e)&lain acts other than statements2 b$t this

e)&lanation is not to a(ect the relevanc' of statements $nder an' other section of this

Act.

E)planation - ,hen the cond$ct of an' &erson is relevant# an' statement made to him

or in his &resence and hearin%# which a(ects s$ch cond$ct# is relevant.

Illustrations

*a+ A is tried for the m$rder of B. The facts that A m$rdered C# that B new that A had

m$rdered C# and that B had tried to e)tort mone' from A b' threatenin% to mae his

nowled%e &$blic# are relevant.

*b+ A s$es B $&on a bond for the &a'ment of mone'. B denies the main% of the

bond. The fact that# at the time when the bond was alle%ed to be made# B re$ired

mone' for a &artic$lar &$r&ose# is relevant.*c+ A is tried for the m$rder of B b' &oison. The fact that# before the death of B# A

&roc$red &oison similar to that which was administered to B# is relevant.

*d+ The $estion is# whether a certain doc$ment is the will of A. The facts that# not lon%

before the date of the alle%ed will# A made in$ir' into matters to which the &rovisions of

the alle%ed will relate# that he cons$lted vails in reference to main% the will# and that

he ca$sed drafts of other wills to be &re&ared of which he did not a&&rove# are relevant.

*e+ A is acc$sed of a crime. The facts that# either before or at the time of# or after the

alle%ed crime# A &rovided evidence which wo$ld tend to %ive to the facts of the case an

a&&earance favorable to himself# or that he destro'ed or concealed evidence# or



&revented the &resence or &roc$red the absence of &ersons who mi%ht have been

witnesses# or s$borned &ersons to %ive false evidence res&ectin% it# are relevant.

*f+ The $estion is# whether A robbed B. The facts that# after B was robbed# C said in A0s

&resence- ?the &olice are comin% to loo for the man who robbed B#? and that

immediatel' afterwards A ran awa'# are relevant.

*%+ The $estion is# whether A owes B r$&ees 1@#@@@. The facts that A ased C to lend

him mone'# and that D said to C in A0s &resence and hearin%- ?I advise 'o$ not to tr$st A#

for he owes B 1@#@@@ r$&ees#? and that A went awa' witho$t main% an' answer# are

relevant facts.

*h+ The $estion is# whether A committed a crime. The fact that A absconded after

receivin% a letter warnin% him that in$ir' was bein% made for the criminal# and the

contents of the letter# are relevant.

*i+ A is acc$sed of a crime. The facts that# after the commission of the alle%ed crime# he

absconded# or was in &ossession of &ro&ert' or the &roceeds of &ro&ert' ac$ired b' the

crime# or attem&ted to conceal thin%s which were or mi%ht have been $sed in committin%

it# are relevant.

*=+ The $estion is# whether A was ravished. The facts that# shortl' after the alle%ed ra&e#

she made a com&laint relatin% to the crime# the circ$mstances $nder which# and theterms in which# the com&laint was made# are relevant. The fact that# witho$t main% a

com&laint# she said that she had been ravished is not relevant as cond$ct $nder this

section# tho$%h it ma' be relevant as a d'in% declaration $nder section 3# cla$se *1+# or

as corroborative evidence $nder section 1;.

*+ The $estion is# whether A was robbed. The fact that# soon after the alle%ed robber'#

he made a com&laint relatin% to the o(ence# the circ$mstances $nder which# and the

terms in which# the com&laint was made# are relevant. The fact that he said he had been

robbed witho$t main% an' com&laint# is not relevant# as cond$ct $nder this section#

tho$%h it ma' be relevant as a d'in% declaration $nder section 3# cla$se *1+# or as

corroborative evidence $nder section 1;.

This section &rovides for the relevanc' of three &rinci&al facts which are ver' im&ortant in

connection with an' case# namel'# Motive# re&aration# and Cond$ct.

%otive - Motive is the &ower that im&els one to do an act. It is a ind of ind$cement for

doin% the act. Motive b' itself is not a crime b$t is hel&f$l in establishin% %$ilt. Evidence

of motive hel&s the co$rt connect the acc$sed with the deed and is so ver' relevant. "or

e)am&le# on the m$rder of an old widow# the fact that the acc$sed was to inherit her

wealth was held as relevant as it showed that the acc$sed had the motive to ill her. Inanother case# a woman who a %ood swimmer had drown and the fact that the acc$sed#

her h$sband# was havin% an a(air with another woman was held relevant as it e)&lained

the motive behind the m$rder.

8reparation - The acts of &re&aration for a crime are relevant. re&aration b' itself is

not a crime *e)ce&t in certain o(enses s$ch as wa%in% a war a%ainst ovt. of India+ b$t

the facts that show the &re&aration tie the &re&arer to the act$al crime and so are

relevant. "or e)am&le# act of &$rchasin% a &oison shows the &re&aration of the m$rder b'

administerin% &oison.



.onduct - The state of mind of a &erson is often re>ected in his cond$ct and so cond$ct

of a &erson is a relevant fact. This section maes the cond$ct of an' &art' to a civil s$ite

or their a%ents relevant. In a criminal case# the cond$ct of the acc$sed before# while# or

after doin% the act is deemed relevant. :owever# two conditions m$st be f$l/lled for the

cond$ct to be relevant -

1. The cond$ct m$st be in reference to the facts in iss$e or the facts related to them.

3. The cond$ct is s$ch as in>$ences or is in>$enced b' the facts in iss$e or relevant

facts.

1 When do facts not other!ise relevant &ecome relevant?

A fact# which does not have an' s$ch relation as de/ned in Section to to the fact in

iss$e is not a relevant fact and ordinaril' evidence cannot be %iven for s$ch a fact.

:owever# when an irrelevant fact is s$ch that it maes the e)istence or non-e)istence of a

fact in iss$e hi%hl' &robable or im&robable# it becomes ver' im&ortant for the case

beca$se it hel&s the co$rt to determine the tr$th. S$ch a fact o$%ht to be bro$%ht before

the co$rt. This is the conce&t embodied in Section 11. It sa's the followin% 5 Section ** -

"acts not otherwise relevant# are relevant. *1+ if the' are inconsistent with an' fact iniss$e or relevant fact2 *3+ if# b' themselves or in connection with other facts the' mae

the e)istence or non-e)istence of an' fact in iss$e or relevant fact hi%hl' &robable or

im&robable.

Illustrations *a+ The $estion is# whether A committed a crime at Calc$tta on a certain

da'.

The fact that# on that da'# A was at 4ahore# is relevant.

The fact that# near the time when the crime was committed# A was at a distance from the

&lace where it was committed# which wo$ld render it hi%hl' im&robable# tho$%h not

im&ossible# that he committed it# is relevant.

*b+ The $estion is# whether A committed a crime.

The circ$mstances are s$ch that the crime m$st have been committed either b' A# B# C

or D. Ever' fact which shows that the crime co$ld have been committed b' no one else

and that it was not committed b' either B# C or D is relevant.

As %iven in ill$strations above# an alibi is a ver' common e)am&le of an irrelevant fact

becomin% relevant. Indeed# if a &erson is &roved to be not at the location of the crime at

the time of the crime# he cannot have committed the crime. :owever# the b$rden of &roof

is on the acc$sed and strict evidence is re$ired to establish s$ch &leas "or e)am&le# in

case of %ithilesh 9padhyaya vs State of :ihar" *((7# the acc$sed stated that he was

in the hos&ital at the time of crime b$t did not %ive an' s$&&ortin% doc$ments. :is &leawas not acce&ted.

It m$st be noted that this section is $ite wide in its sco&e. It does not &lace an'

restriction $&on the ran%e of facts that can be admitted as showin% inconsistencies or

&robabilities. An' fact that maes the e)istence of a fact in iss$e hi%hl' &robable or

im&robable is covered. AMES "ITFAMES STE:EG# the a$thor on Indian Evidence Act in

his boo Introd$ction To The Indian Evidence Act# observed that the facts relevant $nder

S. 11 wo$ld# in most cases# be relevant $nder other sections. The ob=ect of drawin% the

act in this manner was that the %eneral %ro$nd on which facts are relevant mi%ht be

stated in so man' and &o&$lar forms as &ossible# so that if a fact is relevant its relevanc'



ma' be easil' ascertained.

:owever# man' facts can be connected to facts in iss$e or relevant facts thro$%h a lon%

chain of ratiocination b$t that will $nnecessaril' com&licate the trial and will be

detrimental to s&eed' =$stice. Th$s# to limit the the facts which are covered in this

section# we need to $nderstand which facts are not relevant. Irrelevant facts are the facts

that come $nder the r$les of e)cl$sion# namel' - facts that come $nder hearsa' and facts

that come $nder the &rinci&le - a transaction between two &arties o$%ht not be o&erate to

the disadvanta%e of the third. E)am&le of facts $nder hearsa' is# ?Mr. H said that Mr. 8 is

corr$&t? or ?Ever'bod' sa's a certain o7cer is corr$&t.? This fact is hearsa' and is le%all'

irrelevant. E)am&les of second t'&e of facts incl$de - statements made behind the bac

of a &erson a%ainst whom the' are so$%ht to be $sed as evidence# similar $nconnected

transactions# and o&inion of third &arties. <$le in section 11 maes s$ch facts relevant if

the' are inconsistent with the facts in iss$e or mae their e)istence or non e)istence

hi%hl' &robable. Th$s# the onl' criteria for %ivin% evidence of fact $nder section 11 is that

it sho$ld mae the e)istence of a fact in iss$e hi%hl' &robable or im&robable. In Ram

;umar 8anday vs State of %8" *(75" it was held that im&ortant omissions wo$ld be

relevant $nder this r$le.

1 <o! far is character relevant and admissi&le in evidence in civil and criminal

cases?

A character of a &erson is a ver' va%$e and s$b=ective as&ect. It is at best im&recise and

at worst dan%ero$s to draw an inference abo$t the liabilit' of a &erson from his character.

Therefore# the %eneral r$le is that character of a &erson is not relevant for establishin%

%$ilt. :owever# there are certain e)ce&tional sit$ations where character of a &erson is

im&ortant for the case. rovisions re%ardin% the relevanc' of character are s&eci/ed in

Sections 3# # # and . There are di(erent r$les abo$t relevanc' of character in civil

and criminal cases.

Relevancy in .ivil .ases

Section 5 la's down a %eneral &rinci&le for civil s$its that the evidence of a &art'0s

character cannot be %iven to show that the cond$ct attrib$ted to the &art' is &robable or

im&robable. This means that a defendant cannot show his %ood character as evidence to

&rove that his wo$ld not have said defamator' thin%s abo$t the &lainti( and similarl' the

&lainti( cannot show &revio$s bad character of the defendant as evidence to &rove that

the defendant m$st have said defamator' thin%s abo$t the &lainti(. This &rinci&le was

laid down in a ver' old case of Attorney =eneral vs :o!man" *77*. In this case a man

was tried for a &enal action# and not for a criminal &rosec$tion# for carr'in% false wei%htsand o(erin% to corr$&t an o7cer. :e called a witness to testif' that he was a man of %ood

character and cond$ct. This was not admitted b' the co$rt. "$rther# as held in

<ollington vs <e!thorn > .o ltd" *(0/# which is also nown as r$le in :ollin%ton vs

:ewthron# &revio$s criminal conviction cannot be %iven to show the bad character of a

&erson in a civil s$it. In this case# an action was bro$%ht a%ainst the defendant for

dama%es ca$sed b' the defendant0s ne%li%ent drivin% of a motor car. The defendant had

also been &rosec$ted for the same accident and convicted. The &lainti( so$%ht to %ive

evidence of this conviction in &roof of the fact that he was %$ilt' of careless drivin%.

:owever# the evidence was not acce&ted as admission on the %ro$nd that conviction b'



a criminal co$rt is at best an o&inion of that co$rt that the defendant was %$ilt' and s$ch

o&inion is not admissible.

E)ceptions -

*1 When character appears from other relevant evidence - Second &art of

Section 5 &rovides that if a fact is otherwise relevant to the case then the concl$sion

abo$t a &art'0s character ma' be drawn from s$ch fact. An otherwise relevant fact cannot

be e)cl$ded from evidence merel' beca$se it incidentall' throws li%ht $&on a &art'0s

character. "or e)am&le# a =o$rnalist is described as an e)&loiter and he s$es for dama%es

for defamation and the defendant taes the defense that whatever the defendant has

said is tr$e. Gow# the defendant will have to %ive evidence to &rove the e)&loitation which

the &lainti( has been &racticin%. S$ch evidence will also brin% to li%ht the real character

of the &lainti( and the co$rt can tae note of this.

1 When character itself is in issue - Section 50 sa's that &revio$s bad character is

not relevant# e)ce&t in re&l'. :owever# E)&lanation 1 to this section s&eci/es that this r$le

does not a&&l' when character itself is a fact in iss$e. "or e)am&le# in a divorce case onthe %ro$nd of cr$elt'# the cr$el character of the defendant is a fact in iss$e and evidence

can be %iven in s$&&ort of that &revio$s bad character.

/1 etermination of damages - Section 55 allows the character of the &lainti( to be

considered as relevant for determinin% the amo$nt of dama%es that he o$%ht to receive.

An earl' En%lish case on this as&ect is of Scott vs Sampson" *$$. In this case a

=o$rnalist was s$in% the defendant for libel. The defendant tried to show the character of

the &lainti( b$t the trial =$d%e ref$sed to admit it. J&on a&&eal for retrial# Cave# held

that the evidence sho$ld have been allowed to be admitted. :e remared that if the

&lainti( claims an in=$r' to his re&$tation# the =$r' sho$ld now whether he is a man of

re&$tation or not before awardin% an' dama%es. If evidence abo$t the character of the

&lainti( is not allowed then there will be no di(erence between an honorable &erson and

a cheat. A virt$o$s woman will be e&t at the same level with a &rostit$te. To enable a

=$r' to estimate the $ant$m of in=$r' s$stained# the nowled%e of &art'0s character is

relevant.

Relevancy in .riminal .ases

Section 5/ la's down the %eneral &rinci&le that in criminal &roceedin%s the fact that the

&erson acc$sed is of a %ood character is relevant and Section la's down that the factthat the acc$sed is of a bad character is irrelevant in criminal &roceedin%s. Th$s# ever'

acc$sed is at a libert' to show that he is a &erson of %ood character. As 4 .oc3&urn has

observed# the fact that a man has $nblemished re&$tation leads to a &res$m&tion that he

is inca&able of committin% the crime for which he is bein% tried. On the other hand# the

&rosec$tion cannot s$bmit evidence to show bad character of the acc$sed. :owever# as

&er Section 50# if a &erson %ives evidence of his %ood character then the o&&osite &art'

is allowed to %ive evidence of his bad character as a re&l'. O&&osite &art' cannot %ive

evidence of bad character in its ori%inal case. It can do so onl' as a re&l'.



E)ceptions -

1. Evidence for bad character can be %iven b' the &rosec$tion b$t onl' as a re&l' to the

evidence of %ood character.

3. ,hen character itself is in iss$e# evidence of bad character ma' be %iven.

. ,hen a fact is otherwise relevant# it can be s$bmitted even if incidentall' reveals the

character of the acc$sed.

. The &rosec$tion is allowed to cite a &revio$s conviction as evidence of bad character of

the acc$sed. <e%ardin% this &rovision# @ord enning has observed in the case of =oody

vs ldham 8ress @td" *(67# that &revio$s convictions are a class in itself. The' are the

raw material $&on which bad re&$tation is b$ilt $&. The' have taen &lace in an o&en

co$rt and are of &$blic nowled%e. The' are ver' di(erent from &revio$s miscond$cts

that are not tried in a co$rt and which therefore mi%ht lead to dis&$te. B$t &revio$s

convictions o(er not &ossibilit' of s$ch dis&$tes and so are relevant and admissible.

What facts need not &e proved?

enerall'# if a fact is alle%ed b' an' &art' to a s$it or criminal case# that &art' has to

&rovide &roof of the tr$thf$lness of that fact to the co$rt. :owever# Indian Evidence Act

allows the co$rt to acce&t certain inds of facts witho$t an' necessit' to be &roven b'

an' &art'. These inds of facts are s&eci/ed in Section # ;# 9# and 11. The &rovisions

in these sections are as follows -

Section 56 - acts udicially noticea&le need not &e proved - Go fact of which the

Co$rt will tae =$dicial notice need be &roved. This means that if the co$rt is bo$nd to

tae notice of a &artic$lar fact# the &arties do not have the b$rden of &rovin% that fact. It

is &art of the =$dicial f$nction to now that fact. "or e)am&le# the co$rt is bo$nd to now

the vario$s laws and c$stoms of the co$ntr'. A &art' does not need to &rovide an' &roof

when statin% an' law. "acts for which a co$rt will tae =$dicial notice are s&eci/ed in

Section 57. These incl$de 4aws in force in India# $blic Acts of arliament# 4ocal# and&erson acts declared b' it to be =$diciall' noticed# Articles of ,ar for Indian armed forces#

the r$le of the road# land# or sea# that vehicles in India m$st ee& to the left of a road etc#

the territories $nder the dominion of ovt. of India. In all these case# the co$rt ma' resort

a&&ro&riate boos or doc$ments of reference for its aid. Also# the matters en$merated in

this section are not e)ha$stive. The section merel' &rovides that the co$rt m$st tae

=$dicial notices of the facts en$merated in this section. It does not &rohibit the co$rt from

tain%s =$dicial notice of an' other facts. To $nderstand this &oint# we need to loo at the

meanin% of =$dicial notice -

%eaning of ,a3ing 4udicial Botice - It means reco%nition of somethin% as e)istin%

or as bein% tr$e witho$t havin% an' &roof. $dicial notice is based $&on reasons of

convenience and e)&edienc'. Certain thin%s are so commonl' nown that an' ordinar'

&erson is aware of it and it is a waste of time to see an' &roof for s$ch thin%s. "or

e)am&le# it is a commonl' nown fact that certain &arts of M# Bihar# and A are na)alite

a(ected or that KL is a terror strien area. A co$rt does not need to s&end time in

looin% for its &roof. Th$s# =$dicial notice is the co%ni6ance taen b' the co$rt itself of

certain matter which are so notorio$s or clearl' established that the evidence of their

e)istence is $nnecessar'. "or e)am&le# in the case of %anaging .ommittee of Raa



Sidhesh!ar <igh School vs State of :ihar" AIR *((/" the co$rt too =$dicial notice of

the fact that ed$cation in the state was virt$all' cr$mbled. In another case# co$rt too

=$dicial notice of the fact that several blind &ersons have ac$ired %reat academic

distinction. If the co$rt is called $&on b' a &erson to tae =$dicial notice of a fact# it ma'

ref$se to do so $nless and $ntil s$ch &erson &rod$ces an' s$ch boo or doc$ment as it

ma' consider necessar' to enable it to do so. The basic re$irement for tain% =$dicial

notice is that the fact has to be of a class that is so %enerall' as to %ive rise to the

&res$m&tion that all &ersons are aware of it. :owever# a =$d%e cannot brin% his &ersonal

nowled%e into =$dicial notice if that nowled%e is not &$blic nowled%e. $st beca$se a

=$d%e nows somethin% does not mae it a thin% of common nowled%e.

4 .handrachud observed that a co$rt does not o&erate in ivor' tower. It can tae

co%ni6ance of facts that are ha&&enin% all aro$nd it. Sh$ttin% =$dicial e'e to the e)istence

of s$ch facts and matters is in a sense an ins$lt to common sense and wo$ld red$ce the

=$dicial &rocess to a meanin%less and wastef$l trial. Go co$rt therefore need to insist

$&on a formal &roof of notorio$s facts s$ch as date of &olls# &assin% awa' of an eminent

&erson# or events that have roced the nation.

Section 5$ - acts admitted need not &e proved - Go fact need be &roved in an'&roceedin% which the &arties thereto or their a%ents a%ree to admit at the hearin%# or

which# before the hearin%# the' a%ree to admit b' an' writin% $nder their hands# or

which b' an' r$le of &leadin% in force at the time the' are deemed to have admitted b'

their &leadin%s. rovided that the Co$rt ma'# in its discretion# re$ire the facts admitted

to be &roved otherwise than b' s$ch admissions.

This basicall' means that if a fact has been admitted b' a &art'# the other &art' need not

&rovide &roof of that fact. "or e)am&le# admissions made in written statements# or thin%s

said before and acce&ted to be said in the trial need not be &roved. in averments made

in a &etition that have not been controverted b' the res&ondent carr' the wei%ht of a fact

admitted.

:owever# an admission ma' not necessaril' constit$te concl$sive evidence of the fact

admitted. Therefore# this section allows the co$rt to as for some other &roof of the

admitted fact. This is a discretionar' &ower of the co$rt.

Section **0 - .ourt may presume e)istence of certain facts - The Co$rt ma'

&res$me the e)istence of an' fact which it thins liel' to have ha&&ened# re%ard bein%

had to the common co$rse of nat$ral events# h$man cond$ct and &$blic and &rivate

b$siness# in their relation to the facts of the &artic$lar case. "or e)am&le# a &erson ma'be &res$med to be dead if his whereabo$ts are not nown for seven 'ears. S$ch facts

need not be &roven.

!at do you understand by ;dmission

-eneral 8oncept of ;dmission <

In general, Admission is a voluntary ac%nowledgment of a fact. Importance is given to those admissions thatgoes against the interests of the person ma%ing the admission. )or e#ample, when A says to * that he stole

money from 7, A ma%es an admission of the fact that A stole money from 7.This fact is detrimental to the

interests of A. The concept behind this is that nobody would accept or ac%nowledge a fact that goes against theirinterest unless it is indeed true. <nless A indeed stole money from 7, it is not normal for A to say that he stole



money from 7. Therefore, an admission becomes an important piece of evidence against a person. ;n the other

hand, anybody can ma%e assertions in favor of themselves. They can be true or false. )or e#ample, A can %eep on

saying that a certain house belongs to himself, but that does not mean it is necessarily true. Therefore, suchassertions do not have much evidentiary value.

;dmission as per Indian Evidence ;ct <

Section *, of Indian Evidence Act defines Admission as thus $ An admission is a statement, oral ordocumentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant

fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

As per this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and

which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in

'ection 1 to "@ as follows $

Section * < Admission by party to proceeding or his agent by suitor in representative character by party

interested in subject$matter by person from whom interest derived $ 'tatements made by a party to the

proceeding, or by an agent to any such party, whom the 7ourt regards, under the circumstances of the case, ase#pressly or impliedly authori9ed by him to made them, are admissions.

*y suitor in representative character $ 'tatements made by parties to suits suing or sued in a representative

character, are not admissions, unless they were made while the party ma%ing them held that character.

'tatements made by $

516 by party interested in subject matter persons who have any proprietary or pecuniary interest in the subject$matter of the proceeding and who ma%e the statement in their character of persons so interested or

5"6 by person from whom interest derived persons from whom the parties to the suit have derived their interest

in the subject$matter of the suit, are admissions, if they are made during the continuance of the interest of the persons ma%ing the statements.

According to this section, statements made a persons who are directly or indirectly a party to a suit are

admissions. Thus, statements of an agent of a party to the suits are also admissions. 'tatements made by personswho are suing or being sued in a representative character are admissions, only if those statements were made by

the party while being in that representative character. 'imilarly, statements made by persons who have a pecuniary interest in the subject matter of the proceeding and statements made by persons from whom suchinterest is derived by the parties in suit, are also admissions if they are made while the ma%er had such an

interest. )or e#ample, A bought a piece of land from *. 'tatements made by * at the time when * was the owner

of the land are admissions against A.

Section *+ < Admissions by persons whose position must be proved as against party to suit$ 'tatements made by

persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such

statements would be relevant as against such persons in relation to such position or liability in a suit brought byor against the made if they are made whilst the person ma%ing them occupies such position or is subject of such

liability.

Illustration <

A underta%es to collect rent for *.

* sues A for not collecting rent due from 7 to *.A denies that rent was due from 7 to *.

A statement by 7 that he owned * rent is an admission, and is a relevant fact as against A, if A denies that 7 did

owe rent to *.

Section =1 < Admission by persons e#pressly referred to by party to suit $ 'tatements made by persons to whom

a party to the suit has e#pressly referred for information in reference to a matter in dispute are admissions.

Illustration <



The uestion is, whether a horse sold by A to * is sound A says to * /2o and as% 7. 7 %nows all about it/ 7+s

statement is an admission.

To be considered an admission, it is not necessary for a statement to give a direct ac%nowledgment of liability. It

is sufficient even if the statement suggests an inference about the liability. )or e#ample, A is charged with

murder of * by giving poison. The statement by A that he purchased a bottle of poison is admission because it

suggests the inference that he might have murdered * using that poison, even though it does not clearlyac%nowledge the fact that A murdered *. In the case of 8!e:!am otes!ara Rao vs 8 Subbarao) ;IR *+*)

S8 held that before the right of a party can be ta%en to be defeated on the basis of an alleged admission by him,

the implication of the statement must be clear and conclusive. There should not be any doubt orambiguity.)urther, it held that it is necessary to read all of his statements together. Thus, stray elements elicited

in cross e#amination cannot be ta%en as admission.

Q. &iscuss t!e la regarding proof of admissions against persons ma:ing t!em and by or on be!alf of

t!em. ";dmission cannot be proved by or on be!alf of any person !o ma:es it". ;re t!ere any

exceptions &iscuss.

It is important to note that Indian Evidence Act does not reuire that an admission be of statements that are

against the interests of the ma%er. All that is necessary is that the statement should suggest some inference as to a

fact in issue or relevant to the issue, even if the inference is in the interest of the ma%er of the statement. 'elf

serving prior statements are also admissions. )or e#ample, A person can say to * that he did not steal moneyfrom 7. This is a self serving statement and is a valid admission. 8oes this mean that a person can ma%e self

serving statements and escape from his liabilityB The answer is no because such self serving admissions aregoverned by the provisions of 'ection "1, which says the following $

Section =* < 'roof of admissions against persons ma:ing t!em) and by or on t!eir be!alf < Admissions arerelevant and may be proved as against the person who ma%es them, or his representative in interest but they

cannot be proved by or on behalf of the person who ma%es them or by his representative in interest, e#cept in the

following cases $

516 An admission may be proved by or on behalf of the person ma%ing it, when it is of such a nature that, if the person ma%ing it were dead, it would be relevant as between third persons under section (".

5"6 An admission may be proved by or on behalf of the person ma%ing it, when it consists of a statement of thee#istence of any state of mind or body, relevant or in issue, made at or about the time when such state of mindor body e#isted, and is accompanied by conduct rendering its falsehood improbable.

5(6 An admission may be proved by or on behalf of the person ma%ing it, if it is relevant otherwise than as an

admission.

Illustrations

5a6 The uestion between A and * is, whether a certain deed is or is not forged. A affirms that it is genuine, * that

it is forged. A may prove a statement by * that the deed is genuine, and * may prove a statement by A thatdeed is forged but A cannot prove a statement by himself that the deed is genuine, nor can * prove a

statement by himself that the deed is forged.

5b6 A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was ta%enout of her proper course. A produces a boo% %ept by him in the ordinary course of his business showing

observations alleged to have been ta%en by him from day to day, and indicating that the ship was not ta%en

out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section (", clause 5"6.

5c6 A is accused of a crime committed by him at 7alcutta. e produces a letter written by himself and dated at

&ahore on that day, and bearing the &ahore post$mar% of that day. The statement in the date of the letter is

admissible, because,if A were dead, it would be admissible under section (", clause 5"6.

5d6 A is accused of receiving stolen goods %nowing them to be stolen. e offers to prove that he refused to sell

them below their value. A may prove these statements, though they are admissions, because they are e#planatory



of conduct influenced by facts in issue.

5e6 A is accused of fraudulently having in his possession counterfeit coin which he %new to be counterfeit. e

offers to prove that he as%ed a s%illful person to e#amine the coin as he doubted whether it was counterfeit ornot, and that that

person did e#amine it and told him it was genuine. A may prove these facts for the reasons stated in the last

preceding illustration.

)rom the above illustrations it is clear that the general rule is that a person is not allowed to prove his own

admissions. ;therwise, as observed in R vs 0ardy) *,+6, every man, if he were in difficulty, or in view of one,

might ma%e declarations to suit his own case and then lodge them in proof of his case. This principle, however,is subject to some important e#ceptions, which allow a person to prove his own statements. These are as follows

$

Exception * < When the statement should have been relevant as dying declaration or as that of a deceased person

under 'ection (". 'ection (" deals with the statement of persons who have died or who otherwise cannot come

before the court. The statement of any such person can be proved in any case or proceeding to which it is

relevant whether it operates in favor of or against the person ma%ing the statement. In circumstances stated in'ection (" such a statement can be proved by the ma%er himself if he is still alive. In the situation described in

Illustration 5b6, in a case between the shipowner and the insurance company, the contents of the log boo%

maintained by the captain would have been relevant evidence if the captain were dead under 'ection (".

Therefore, the captain is allowed to prove the contents of the log boo% even in the case involving him and theshipowners.

Exception = < 'tatements as to bodily feeling or mind $ It enables a person to prove his statements about his

state of mind or body if such state of mind or body is a fact in issue or is relevant fact and if the statement was

made at the time when such state of mind or body e#isted and further if the statement is accompanied with hisconduct that ma%es the falsehood of the statements improbable. In Illustration 5d6, the statements of A that show

that he refused to sell them below their value, are self serving admissions. owever, it is acceptable because they

reflect A+s state of mind and were associated with a conduct of refusing to sell that ma%es their falsehood

improbably.

Exception $ < The last e#ception allows a person to prove his own statement when it is otherwise relevant underany of the provisions relating to relevancy. There are many cases in which a statement is relevant not because itis an admission but because it establishes the e#istence or non$e#istence of a relevant fact or a fact in issue. In all

such cases a party can prove his own statements. These cases are covered by the following sections $

Section % < When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same

transaction. )or e#ample, immediately after a road accident, if the victim has made a statement to the rescuer

about the cause of the accident, he can prove that statement because it is part of the same transaction.

Section < A statement may be proved by or on behalf of the person ma%e it under 'ection if it accompanies or

e#plains acts other than statements or if it influences the conduct of a person whose conduct is relevant. )or

e#ample, where A says to *, /Cou have not paid my money bac%/, and * wal%s away in silence, A may prove hisown statement because it has influenced the conduct of a person whose conduct is relevant.

Section *6 < When the statement e#plains his state of mid or body or bodily feeling when any such thing is

relevant or is in issue, it can be proved by himself. )or e#ample, where the uestion is whether a person has been

guilty of cruelty towards his wife, he may prove his statements made shortly before or after the alleged cruelty

which e#plain his love and affection for and his feeling towards his wife.

!at do you understand by 8onfession 0o does confession differ from admission State t!e la

relating to confessions. !at is 9udicial and Extra<9udicial confession 2nder !at circumstances is it

relevant and !en can it not be proved State t!e extent) relevancy) and admissibility of a confession as



evidence. 0o far can t!e statements of t!e accused made before t!e police be used against !im

-eneral 8oncept of 8onfession <

The term confession is not defined anywhere in Indian Evidence Act. *ut it is thought that an Admission in case

of a criminal matter is 7onfession. The same was stated by S4E'0E> in his digest that that a confession is an

admission made at anytime by a person charged with a crime, stating or suggesting the inference that he

committed the crime. owever, -rivy 7ouncil, in case of 'a:ala >arayan Sami vs Emperor ;IR *+$+) didnot accept this definition. In this case ?ord ;4I> observed that no statement that contains self e#culpatory

matter can amount to a confession. )urther, a confession must either admit in terms of the offence or at any rate

substantially all the facts which constitute the offence. An offence of a gravely incriminating fact, is not in itselfa confession. )or e#ample, an admission that the accused is the over of and was in recent possession of the %nife

or revolver which caused death with no e#planation of any other man+s possession, is not a confession even

though it strongly suggests that the accused has committed the murder.

The decision by -rivy 7ouncil in -a%ala Darayan 'wami case was approved by '7 in the case of 'alvinder

aur vs State of -unjab) ;IR *+5=. In this case, -alvinder was on trial for murder of her husband along with

another, who all the time remained absconding. In her statement to the court, her husband was hobbyist photographer and used to %eep handy photo developing material which is uic% poison. ;n this occasion, he was

ill and she brought him some medicine and the medicine was %ept near the liuid developer and by mista%e

swallowed the liuid and died. 'he got afraid and with the help of the absconder, she dumped the body in the

well. The statement, thus, partially admitted guilt and partially showed innocence. ere, the lower courts sortedout the e#culpatory part and convicted her on the inculpatory part. owever, '7 rejected this approach and held

that the rule regarding confession and admission is that they must either be accepted or rejected as whole.

&ifference beteen 8onfession and ;dmission

This brings us to the main difference between admission and confession. An admission is a statement that may ormay not be a conclusive evidence of a fact in issue or relevant fact but to be a confession, the admission must

conclusively prove the guilt of the ma%er of the admission. )or e#ample, in the case of @eera Ibra!im vs State

of Aa!aras!tra) ;IR *+,%, a person being prosecuted under 7ustoms Act told the customs officer that he did

not %now that the goods loaded in his truc% were contraband nor were they loaded with his permission. '7 heldthat the statement was not a confession but it did amount to admission of an incriminating fact that the truc% was

loaded with contraband material.

Thus, a statement which may not amount to confession may still be relevant as admission. ;nly a voluntary and

direct ac%nowledgment of guilt is confession, but when a confession fall short of actual admission of guilt, it

may nevertheless be used as evidence under 'ection "1.

0egarding admission that contains multiple sentences, >ustice Thomas, of '7 stated the law in the case of

?o:eman S!a! vs State of 7) ;IR =11* as follows $

The test of discerning whether a statement recorded by a judicial magistrate under 'ection 13 of 7r-7, isconfessional or not is not to determine it by dissecting the statement into different sentences and then to pic% out

some as not inculpative.The statement must be read as a whole and then only the court should decide whether it

contains admissions of his inculpatory involvement in the offence. If the result of that test is positive the thestatement is confessional otherwise not.

8lassification of 8onfessions

A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this

manner, a confession may be divided into two categories $ >udicial 7onfession and E#tra$judicial 7onfession.

9udicial 8onfession $ A judicial confession is a confession that is made in front of a magistrate or in a court. Itmay be made in the course of a judicial proceeding.

Extra < 9udicial 8onfession $ An e#tra$judicial confession is a confession that is made by the party elsewhere

than before a magistrate or in a court. It is admissible in evidence under 'ection "1 and it is proved by the



witnesses who had heard the spea%er+s words constituting the confession.

A confession ma even consist of conversation with oneself. )or e#ample, in case of Sa!oo vs State of 2') ;IR

*+%%) an accused who was charged with murder of his daughter in law with whom he was always uarreling was

seen on the day of the murder going out of the home saying words to the effect, /I have finished her and with her

the daily uarrels./. The statement was held to be a valid confession because it is not necessary for the relevance

of a confession that it should communicate to some other person.

Relevancy of 8onfessions <

8onfessions !en >ot RelevantA confession becomes irrelevant and thus, inadmissible, in situations described in the 'ections ", "4, and "3.

*. Section =6 < 8onfession caused by inducement) t!reat) or promise from a person in aut!ority <

7onfession made by an accused is irrelevant in a criminal proceeding if the ma%ing of the confession appears tothe court to have been caused by inducement, threat, or promise, made by any person in authority and that in the

view of the court such inducement, threat, or promise gives reasonable ground to the person that by ma%ing the

confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings

against him.The following conditions are necessary to attract the provisions of this section $

1. The confession must have been made because of inducement, threat, or promise $ A confession should be

free and voluntary. If it flows from fear or hope, it is inadmissible. In deciding whether a particularconfession is because of threat, inducement, or promise, the uestion has to be considered from the point

of view of the accused as to how the inducement, threat or promise would operate in his mind. )or

e#ample, where the accused was told by the magistrate, /tell me where the things are and I will be

favorable to you/, it was held to be inadmissible.

". The inducement, threat, or promise, must be made by a person in authority $ A person in authority is not

merely a police officer or a magistrate but every such person who can reasonably hold a sway over the

investigation or trial. Thus, government officials such as a senior military officer, police constable,

warden, cler% of the court, all have been held to be a person in authority. Even private persons such as thewife of the employer was also held to be a person in authority.

(. It should relate to the charge in uestion $ This reuirement is specifically stated in the section, which

says that the inducement must have /reference to the charge against the accused person/. Thus, in thecase of Empress vs ?ohan &al, 11, the confession by a person who was threatened to be removed from

his caste for life, was held to be relevant because the threat did not have anything to do with the charge.

The position in English law is not same. In fact, > ATID';D has said that this rule is illogical and

unreasonable. )or e#ample, a daughter is accused of shoplifting and later on her mother is also accused ofthe same offence. Dow, if the mother is induced to confess by saying that if she confesses to the charge,

proceedings against her daughter will be dropped, this will most li%e lead to an untrue confession. Cet, it

would be valid under this section.

. It should hold out some material, worldly, or temporal benefit or advantage $ The inducement should beabout some tangible benefit. )or e#ample, a reference to spiritual benefit such as, ta%ing an accused to a

temple to confess does not fall in this category but a promise to reduce the sentence would fall under it.

It is necessary that all the conditions must e#ist cumulatively. )urther, this section merely reuires that if it

/appears to the court/ that the confession was improperly obtained, it becomes inadmissible i.e. if the

circumstances create a probability in the mind of the court that the confession is improperly obtained, it may

hold it inadmissible.

=. 8onfessions to 'olice < It is presumed that police holds a position of great influence over the actions of the



the accused and so there is a high probability that confessions obtained by the police are tainted with threat, or

inducement. )urther, it is important to prevent the practice of oppression or torture by the police to e#tract the

confession. This principle is espoused by 'ections "4 and "3, which are as follows $

Section =5 < 8onfession to police<officer not to be proved < Do confession made to a police$officer shall be

proved as against a person accused of any offence. This section is very broadly word. It strictly disallows any

confession made to the police officer as inadmissible no matter what the circumstances. In the case of RaBa Ram

vs State of 7i!ar) ;IR *+%6, '7 held that the term police$officer is not be be interpreted strictly but must be

given a more comprehensive and popular meaning. owever, these words are also not to be construed in so wide

sense as to include a person on whom only some powers e#ercised by the police are conferred. The test for

determining whether such a person is a police officer, is whether the powers are such as would tend to facilitate

the obtaining of confession by him from a suspect. Thus, a chow%idar, police patel, a village headman, an e#cise

officer, are all considered to be police officer.

Section =% < 8onfession by accused !ile in custody of police not to be proved against !im < Do

confession made by any person whilst he is in the custody of a police$officer, unless it be made in the

immediate presence of a ?agistrate, shall be proved as against such person. This section further tries to ensure

that the confession is not e#tracted due to the influence of the police. Any confession made while the ma%er is in

custody of the police is invalid unless it is made in the immediate presence of a magistrate. The presence of a

magistrate is, by a legal fiction, regarded as euivalent to removal of police influence and the statement istherefore considered to be free from police influence.

?ere absence of the police officer from a room where confession is ta%en does not terminate his custody of the

accused. The word custody does not just mean formal custody but includes such state of affairs in which the

accused can be said to have come into the hands of a police officer or can be said to have been under some sort

of surveillance or restriction.

Section =, provides another e#ception when a confession made to the police is admissible. This is when a

confession leads to the discovery of a fact connected with the crime. The discovery assures that the confession is

true and reliable even if it was e#torted. In order to ensure the genuineness of recoveries, it has become a practice

to effect the recoveries in the presence of witnesses.

7onstitutionality of 'ection "! $ Indian Evidence Act was written before the 7onstitution of India and Article

"@5(6 of the constitution says that no person shall be compelled to be a witness against himself. This article

seemingly made 'ection "! unconstitutional. '7 considered this issue in the case of >isa Sree vs State of

Crissa ;IR *+56) and held that it is not violative of Article "@5(6. A confession may or may not lead to the

discovery of an increminating fact. If the discovered fact is non incriminatory, there is no issue and if it is self$

incriminatory, it is admissible if the information is given by the accused without any threat.

8onfessions !en Relevant <

The following three types of confession are relevant and admissible $

*. Section =, < 8onfession leading to a discovery < E#plained above.

=. Section = < 8onfessions made after removal of t!reat < If the confession is obtained after the impression

caused by threat, inducement, or promise is removed in the opinion of the court, then the confession is

admissible.

$. Section =+ < 8onfession made under promise) deception)etc. < If a confession is otherwise relevant, it does



not become irrelevant merely because it was made $

5a6 under a promise of secrecy or

5b6 in conseuences of a deception practiced on the accused person for the purpose of obtaining it or

5c6 while the accused was drun% or

5d6 while answering the uestions he need not have answered or

5e6 when the accused was not warned that he was not bound to ma%e such confession and that evidence of it

might be given against him.

The basis of this section is that any breach of confidence or of good faith or practice of any artifice does not

invalidate a confession. owever, a confession obtained by mere tric%ery does not carry much weight. )or

e#ample, in one case, an accused was told that somebody saw him doing the crime and because of this the

accused made a confession. The court held the confession as inadmissible. In Rex vs S!a) A was accused of a

murder and *, a fellow prisoner, as%ed him about how he did he do the murder. A said, /Will you be upon your

oath not to mention what I tell youB/, to which * promised on his oath that he will not tell anybody. A then made

a statement. It was held that it was not such an inducement that would render the confession inadmissible.

The five circumstances mentioned in the section are not e#haustive.

iscuss the la! regarding competency of a !itness? CSections **$-**D .an a!ife &e a competent !itness against her hus&and? CSection *+D

The modern =$dicial s'stem is based on evidence. The nowled%e of how an event

ha&&ened is arrived at b' the co$rt thro$%h witnesses. As BEGT:AM said# ?,itnesses are

the e'es and ears of =$stice.? The co$rt %ives its /ndin% based on the evidence %iven b'

witnesses. It is im&ortant# therefore# to $nderstand who can and cannot be a com&etent

witness. Section 119 of Indian Evidence Act# 19;3# contains the &rovisions for determinin%

a com&etent witness.

Section **$1 ,ho ma' testif' - All &ersons shall be com&etent to testif' $nless the

Co$rt considers that the' are &revented from $nderstandin% the $estion &$t to them# or

from %ivin% rational answer to those $estions# b' tender 'ears# e)treme old

a%e# disease# whether of bod' and mind# or an' other ca$se of the same ind.

E)&lanation - A l$natic is not incom&etent to testif'# $nless he is &revented b' his l$nac'

from $nderstandin% the $estion &$t to him and %ivin% rational answers to him.

As is evident from Section 119# in %eneral# nobod' is barred from bein% a witness as lon%

as he is able to $nderstand the $estions that are &$t to him as well as is able to %ive

rational re&lies to those $estions. There ma' be several reasons beca$se of which a

&erson ma' not be able to com&rehend the $estions andNor is $nable to re&l' coherentl'.

This section does not attem&t to de/ne all s$ch reasons b$t %ives e)am&les of s$ch

reasons s$ch as 'o$n% a%e *in case of a child+# mental illness# or e)treme old a%e. It is $&

to the co$rt to determine whether a &erson is able to $nderstand the $estions or %ive

rational answers. Th$s# com&etenc' is a r$le# while incom&etenc' is an e)ce&tion. Even a

l$natic is considered a com&etent witness if his l$nac' does not &revent him from

$nderstandin% the $estions and %ivin% rational answers.



.hild Witness

A 'o$n% child# if he is able to $nderstand the $estions and is able to re&l' rationall'# is a

com&etent witness even if he is of a tender a%e. "or e)am&le# in the case of 4ai Singh vs

State" *(7/" .r @4# a seven 'ear old %irl who was the victim of attem&ted ra&e was

&rod$ced as a witness and her testimon' was held valid.

It has been held in several earl' cases that a child $nder the a%e of seven 'ears can be a

com&etent witness if# $&on the strict e)amination of the co$rt# the child is fo$nd to

$nderstand the nat$re and conse$ences of an oath. "or e)am&le# in ueen vs Seva

:hogta" *$70# a ten 'ear old %irl# who was the onl' e'e witness of a m$rder was made a

witness. She a&&eared to be intelli%ent and was able to answer $estions franl' and

witho$t an' hesitation. :owever# she was not able to $nderstand the meanin% of oath. It

was held that her $nsworn evidence was admissible in the %iven circ$mstances. The

same was observed in Ramesh!ar ;alyan Singh vs State of Raasthan AIR *(5#

where the acc$sed was char%ed with the o(ence of ra&e of a %irl of 9 'ears of a%e. It was

held that ommission of oath onl' a(ects the credibilit' of the witness and not

com&etenc' of the witness. The $estion of com&etenc' is determined b' section 119#

and the onl' %ro$nd that is %iven for incom&etenc' is the inabilit' to com&rehend the$estions or inabilit' to %ive rational answers.

The s$&reme co$rt however has em&hasised the need for caref$ll' eva$latin% the

testimon' of a child. Ade$ate corroboration of his testimon' m$st be looed from other

evidence.

um& Witness

Section **( - A witness who is $nable to s&ea ma' %ive his evidence in an' other

manner in which he can mae it intelli%ible# as b' writin% or b' si%ns2 b$t s$ch writin%

m$st be written and the si%ns made in o&en Co$rt. Evidence so %iven shall be deemed to

be oral evidence.

.ompetency of a !ife as a !itness against her hus&and

As &er Section *+# in all civil &roceedin%s the &arties to the s$it# and the h$sband or

wife of an' &art' to the s$it# shall be com&etent witnesses. "$rther# in criminal

&roceedin%s a%ainst an' &erson# the h$sband or wife of s$ch &erson# res&ectivel'# shall

be a com&etent witness.

Th$s it is &rett' clear that the s&o$se of a &erson can be a com&etent witness a%ainst

that &erson. "or e)am&le# in the case of Shyam Singh vs Shai!alini =hosh" AIR *(07Calc$tta :C held that :$sband and wife are both com&etent witness a%ainst each other

in civil and criminal cases. The' are com&etenet witness to &rove that there has been no

con=$%ation between them d$rin% marria%e.

Altho$%h not mentioned in the act# it has been held in several cases that &rovisions of

this section are s$b=ect to Section 133# which maes the comm$nication between a

h$sband and wife &rivile%ed.

.ompetency of Accused

As &er Section /*5 of Cr C# an acc$sed is a com&etent witness. :e can %iven evidence



on his behalf# b$t if he does not# no comment can be made a%ainst the acc$sed or

adverse inference be drawn a%ainst him.

.ompetency of an Accomplice

Accomplice - An accom&lice is a &erson who has taen &art# whether bi% or small# in the

commission of an o(ence. Accom&lice incl$des &rinci&les as well as abettors.

Bot an Accomplice - &erson $nder threat commits the crime# &erson who merel'

witnesses the crime# detectives# &aid informers# and tra& witnesses

enerall'# a small o(ender is &ardoned so as to &rod$ce him as a witness a%ainst the

bi%%er o(ender. :owever# evidence b' an accom&lice is not reall' ver' reliable beca$se -

1+ he is liel' to swear falsel' in order to shift blame# 3+ as a &artici&ator in a crime# he is

a criminal and is liel' immoral# and so ma' disre%ard the sanctit' of oath# and + since

he %ives evidence in &romise of a &ardon# he will obvio$sl' be favorable to &rosec$tion.

Even so# an accom&lice is allowed to %ive evidence. As &er Section *//# he is a

com&etent witness a%ainst the acc$sed and a conviction based on his evidence is not

ille%al merel' beca$se his evidence has not been corroborated. At the same time#Section **0 C&D contains a &rovision that allows the Co$rt to &res$me that an

accom&lice is $nworth' of credit# $nless he is corroborated in material &artic$lar. The idea

is that since s$ch a witness is not ver' reliable# his statements sho$ld be or veri/ed b'

some inde&endent witness. This is inter&reted as a r$le of ca$tion to avoid mindless

$sa%e of evidence of accom&lice for &rod$cin% a conviction.

Since ever' case is di(erent# it is not &ossible to &recisel' s&ecif' a form$la for

determinin% whether corroborative evidence is re$ired or not. So some %$idin%

&rinci&les were &ro&o$nded in the case of R vs :as3erville" *(*6. Accordin% to this

&roced$re -

1. It is not necessar' that there sho$ld be an inde&endent con/rmation of ever' detail of

the crime related b' the accom&lice. It is s$7cient if there is a con/rmation as to a

material circ$mstance of the crime.

3. There m$st at least be con/rmation of some &artic$lars which show that the acc$sed

committed the crime.

. The corroboration m$st be an inde&endent testimon'. i.e one accom&lice cannot

corroborate other.

. The corroboration need not be b' direct evidence. It ma' be thro$%h circ$mstantial

evidence.

This r$le has been con/rmed b' the S$&reme Co$rt in Ramesh!ar vs State of

Raasthan" *(5.

Accomplice and .o-accused

The confession of a co-acc$sed *S. @+ is not treated in the same wa' as the testimon' of

an accom&lice beca$se -

1. The testimon' of an accom&lice is taen on oath and is s$b=ected to cross e)amination

and so is of a hi%her &robative val$e.



3. The confession of a co-acc$sed can hardl' be called s$bstantive evidence as it is not

evidence within the de/nition of S. . It m$st be taen into consideration alon% with other

evidence in the case and it cannot alone form the basis of a conviction. ,hile the

testimon' of an accom&lice alone ma' be s$7cient for conviction.

&escribe different stages in testimony of a itness. (Sections *$,) *$#

Witnesses are e#amined by the parties or their advocates by the way of as%ing uestions with a view to elicit

responses that build up a factual story. To be able to derive meaningful conclusions from the statements of thewitnesses, it is necessary to follow a standard pattern in presenting them and uestioning them before the court.

It will also be impractical and time consuming to call witnesses multiple times at random. *esides causing severe

inconveniences to the witnesses, it will also not be helpful in arriving at a decision. Thus, standard procedure for

e#amining a witness must followed so that a trial can proceed swiftly. This procedure is described in Sections

*$, and *$.

Stages of Examination

Section *$, defines three stages of e#amination of a witness as follows $

E#amination$in$chief $ The e#amination of a witness, by the party who calls him, shall be called hise#amination$in$chief.

7ross$e#amination $ The e#amination of a witness by the adverse party shall be called his cross$e#amination.

0e$e#amination $ The e#amination of a witness, subseuent to the cross$e#amination by the party who called

him, shall be called his re$e#amination.

Section *$ specifies the order of e#aminations $ Witnesses shall be first e#amined$in$chief then 5if the adverse

party so desires6 cross$e#amined, then 5if the party calling him so desires6 re$e#amined. The e#amination andcross$e#amination must relate to relevant facts but the cross$e#amination need not to be confined to the facts

which the witness testified on his e#amination$in$chief. 8irection of re$e#amination $ The re$e#amination shall

be directed to the e#planation of matters referred to in cross$e#amination, and if new matter by permission of the7ourt, introduced in re$e#amination, the adverse party may further cross$e#amine upon that matter.

&et us discuss these stages one by one $

*. Examination in 8!ief $ The first stage is where a witness is e#amined by the party who has called it. In this

stage, the goal of the party is to ma%e the witness ma%e statements that prove the facts alleged by the party. The

party as%s uestions, the responses to which are e#pected to support the factual story submitted by the party.

=. 8ross Examination $ The second stage is where the witness is cross e#amined by the opposite party. In this

stage the goal of the party which is e#amining the witness is to po%e holes in the story of the witness with a view

to discredit the evidence that the witness has given. owever, when it is intended to suggest to the court that thewitness is not spea%ing the truth on a particular point, it is necessary to direct his attention to it by uestions in

this stage. The witness must then be given an opportunity to e#plain the apparant contradictions while he is in the

witness bo#. )or e#ample, in the case of Ravinder umar Sarma vs State of ;ssam) *+++) the appallant sued

two police officers for damages for malicious prosecution. The appallant put uestions in that regard to one ofthem who denied the allegation that he demanded a bribe. e did not put the allegation on the other police

officer. It was held that the appallant had not properly substantiated the allegation.

Scope of 8ross Examination $ As mentioned in Section *$ the cross$e#amination must relate to relevant

facts. owever, the cross$e#amination need not be confined to the facts which the witness testified on his

e#amination$in$chief. Thus, the scope of cross e#amination is uite wide. As per Section *6%, the objective ofthe uestions as%ed in cross e#amination is $ a6 to test the veracity of the witness, b6 to discover who the person

is and what is his condition in life and c6 to sha%e his credit by injuring his character.

$. Re<examination $ The final stage, is where the witness is re e#amined by the party who called the witness if,



in the cross e#amination stage, inconvenient answers are given by the witness. The goal in this stage is to nullify

the effect of such answers and to reestablish the credibility of the evidence given by the witness.

The 0e E#amination is not confined to the matters discussed in E#amination in 7hief. Dew matter may be

elicited with the permission of the court and in such a case, the opposite party can again 7ross e#amin the

witness on new matters.

In 4eB 'ra:as! vs State of 0aryana) *++%, it was held that tendering a witness for cross e#amination without

e#amination in chief is not warranted by law and it would amount to failure to e#amine the witness at the trial.

Section *$ provides a valuable right to cross e#amin a witness and Section *6% further gives the right to as%

additional uestions to sha%e the credibility of the witness. In case of RaBendra vs &ars!ana &evi) =11*) it was

held that if a party has not ta%en advantage of these provisions, he cannot be allowed to complain about thecredibility of the witness.

Q. !at is a leading Duestion (Section *6*# !en suc! Duestions cannot and !en suc! Duestions can be

as:ed (Sections *6=) *6$#

According to *EDTA?, a &eading Fuestion is a uestion that indicates to the witness the real or supposed fact

which the e#aminer e#pects or desires to have confirmed with the witness. )or e#ample, /did you not wor% with

?r G for five yearsB/, /is your name so and so/, /did you not see the accused leave the premise at -?B/, areall leading uestions. Section *6* defines a &eading uestion thus $ Any uestion suggesting the answer which

the person putting it wishes or e#pects to receive is called a leading uestion. In the previous e#amples, it is clearthat the uestion itself contains the answer and the e#aminer is merely trying to confirm those answers with the

witness and are thus leading uestions.

!en leading Duestions may and may not be as:ed <

As per Section *6= $ &eading uestions must not, if objected to by the adverse party, be as%ed in an e#amination$

in$chief, or in re$e#amination, e#cept with the permission of the 7ourt. The 7ourt shall permit leading uestions

as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved. )urther, Section *6$ provides that &eading uestions may be as%ed in cross$e#amination.

The purpose of E#amination in 7hief of a witness is to enable the witness to tell the court the relevant facts ofthe case. A uestion should be put to him about a relevant fact and he should be given ample scope to answer the

uestion from the %nowledge that he posses about the case. The witness should be left to tell the story in his own

words. owever, as seen in the previous e#ample, instead of eliciting information from a witness, information is being given to the witness. This does not help the court arrive at the truth. If this type of uestioning is allowed

in E#amination in 7hief, the e#aminer would be able to construct a story through the mouth of the witness that

suits his client. This affects the rights of the accused to a fiair trial as enshrined in Article "1 of the constitution

and is therefore not allowed. A uestion, /do you not live at such and such addressB/, amply gives hint to thewitness and he will immediately say yes. Instead, the uestion should be, /where do you liveB/ and he then

should be allowed to answer in his own words.

Dormally, the opposite party raises an objection when a leading uestion in as%ed in E#amination in 7hief or 0e

E#amination. If the e#amining party then desires, it can reuest the court for its permission to as% the uestion

and the court permits the uestion if it pertains to matters which are introductory, matters on which there is nodispute, or matters which are already proven.

;verall, a leading uestion can be as%ed in the following situations $

1. In E#amination in 7hief and 0e $ e#amination if $a6 the opposite party does not object or

b6 the uestion is about the matter which is introductory, undisputed, or is already proven or



b6 the court permits the uestion overruling the objection of the opposite party

". In 7ross e#amination.

Q. 8an a itness refuse to anser a Duestion (Section *=*<*=+# / !en can a itness be compelled

anser a Duestion (Section *6,<*6# !at communications are privileged

In general, if the uestion is relevant to the case, the witness is bound to answer it. This is provided by Section

*6,, which says that if any uestion relates to a matter relevant to the suit or proceeding, the provisions of

Section *$= shall apply. Section *$= provides that a witness is not e#cused from answering a uestion even ifthe uestion incriminates the witness. To ensure that the witness spea%s the truth, proviso to Section *$=

provides that if the answer of the witness incriminates the witness, such answer shall not be used to arrest or

prosecute him, e#cept if he gives false evidence.

Although it is the goal of the court to find out the truth from a witness, there are certain situations in which a

witness is permitted to refuse to answer a uestion. There are also situations where a witness is prohibited from

answering certain %ind of uestions. These are situations that are critical to the foundation of a moral society.

These situations are provided in the form in previledges to a witness in 'ections 1"1 to 1"H.

('rivileged 8ommunications < 9ASC8'I@?#

*=*. 9udges and Aagistrate $ Do >udge or ?agistrate shall, e#cept upon the special order of some 7ourt of

which he is subordinate, be compelled to answer any uestions as to his own conduct in 7ourt as such >udge or

?agistrate, or as to any thing which came to his %nowledge in 7ourt as such >udge or ?agistrate but he may be

e#amined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

5a6 A, on his trail before the 7ourt of 'ession, says that a deposition was improperly ta%en by *, the ?agistrate.* cannot be compelled to answer uestion as to this, e#cept upon thee special order of a superior 7ourt.

5b6 A is accused before the 7ourt of 'ession of having given false evidence before *, a ?agistrate. *, cannot be

as%ed what A said, e#cept upon the special order of the superior 7ourt.

5c6 A is accused before the 7ourt of 'ession of attempting to murder a police$officer whilst on his trail before *,

a 'ession >udge. * may be e#amined as to what occurred.

*==. 8ommunications during marriage $ Do person who is or has been married, shall be compelled to disclose

any communication made to him during marriage by any person to whom he is or has been married nor shall he

be permitted to disclose any such communication, unless the person who made it, or his representative in

interest, consents, e#cept in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

As held in A 8 @erg!ese vs 4 9 'onnan) ;IR *+,%, '7 held that it is not material whether the relationship

between husband and wife subsists at the time of giving the evidence. 'o, where a woman was divorced from

first husband and married another person, and was called to provide evidence of a communication between her

and her first husband that happened while they were married, she was deemed incompetent to do so.

*=$. Evidence as to affairs of State $ Do one shall be permitted to give any evidence derived from unpublished

official records relating to any affairs of 'tate, e#cept wit the permission of the officer at the head of the



department concerned, who shall give or withhold such permission as he thin%s fit.

*=6. Cfficial communications $ Do public officer shall be compelled to disclose communications made to him

in official confidence, when he considers that the public interests would suffer by the disclosure.

*=5. Information as to commission of offences $ Do ?agistrate or -olice$officer shall be compelled to say

whence he got any information as to the commission of any offence, and no 0evenue$;fficer shall be compelled

to say whence he The ;rient Tavern any information as to the commission of any offence against the public

revenue.

E#planation $ /0evenue$;fficer/ in this section means any officer employed in or about the business of any

branch of the public revenue.

*=%. 'rofessional communications $ Do barrister, attorney, pleader or va%il, shall at any time be permitted,

unless with his client+s e#press consent to disclose any communication made to him in the course and for thee

purpose of his employment as such barrister, pleader, attorney or va%il, by or on behalf of his client, or to state

the contents or condition of any document with which he has become acuainted in the course and for the

purpose of his professional employment or to disclose any advice given by him to his client in the course and forthe purpose of such employment.

-rovided that nothing in this section shall protect from disclosure $

1. Any communication made in furtherance of any illegal purpose,

". Any fact observed by any barrister, pleader, attorney or va%il, in the course of his employment as such

showing that any crime or fraud has been committed since the commencement of his employment. It is

immaterial whether the attention of such barrister, pleader, attorney or va%il was or was not directed to such fact

by or on behalf of his client.

E#planation $ The obligation stated in this section continues after the employment has ceased.

Illustrations

5a6 A, a client, says to *, an attorney $ /I have committed forgery and I wish you to defend me./ As the defense

of a man %nown to be guilty is not a criminal purpose, this communication is protected from disclosure.

5b6 A, a client, says to *, and attorney $ /I wish to obtain possession of property by the use of forged deed on

which I reuest you to sue./

The communication being made in furtherance of criminal purpose, is not protected from disclosure.

5c6 A, being charged with embe99lement retains *, an attorney to defend him, In the course of the proceedings *

observes that an entry has been made in A+s account boo%, charging A with the sum said to have been embe99led,

which entry was not in the boo% at the commencement of his employment.

This being a fact observed by * 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.

*=,. Section *=% to apply to interpreters etc. $ The provisions of 'ection 1"3 apply to interpreters, and the

cler%s or servants of barristers, pleaders, attorneys and va%ils.

*=. 'rivilege not aived by volunteering evidence $ If any party to a suit gives evidence therein at his own



instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in

'ection 1"3, and if any party to a suit or proceeding calls any such barrister, pleader, attorney or va%il as a

witness, he shall be deemed to have consented to such disclosure only if he uestions such barrister, attorney or

va%il on matters which, but for such uestion, he would not be at liberty to disclose.

*=+. 8onfidential communication it! ?egal ;dvisers $ Do one shall be compelled to disclose to the 7ourt

any confidential communication which has ta%en place between him and his legal professional adviser, unless he

offers himself as a witness in which case he may be compelled to disclose any such communication as may

appear to the 7ourt necessary to be %nown in order to e#plain any evidence which he has give, but not others.

)urther, Section *6 gives discretion to the court to allow the witness to refuse to answer a uestion when the

uestion affects the credit of the witness by injuring his character and is otherwise irrelevant. 2enerally, court

allows the witness to refuse to answer the uestion when the uestion relates to a matter so remote in time or of

such a character that that the truth of the imputation would not affect the opinion of the court as to the credibility

of the witness.

Q. !o is !ostile itness 2nder !at circumstances a person is alloed to cross examin !is on itness

!at are t!e limits of suc! rig!ts of cross examination (Section *56#

In general, a witness is considered to be a hostile witness when he has feelings which are against the party which

has invited him for his testimony or when he adopts an adverse stance towards the party which has invited him.

A similar but categorically different %ind of witness also e#ists which is called as <nfavorable Witness. An

unfavorable witness is not hostile towards the calling party but his testimony fails to give evidence in support of

the calling party or gives evidence that proves the opposite of what the calling party intends to prove. In such a

case, it becomes important for the calling party to put such uestions to the witness that would discredit his

testimony. 'uch uestions are normally as%ed by the adverse party in cross e#amination but when a witness turns

hostile or unfavorable, the witness can be cross e#amined by the party who had called the witness.

owever, it must be noted that Indian Evidence Act, 1!", mentions neither ostile Witness nor <nfavorable

witness. As per Section *56 : Fuestion by party of his own witness $ 516 The 7ourt may, in its discretion, permit

the person who calls a witness to put any uestions to him which might be put in cross$e#amination by the

adverse party. 5"6 Dothing in this section shall disentitle the person so permitted under sub$section 516, to rely on

any part of the evidence of such witness./.

<nli%e the law in England, In India, the grant of permission to cross e#amine one+s witness by a party is not

conditional on the witness being declared hostile or unfavorable. 2ranting such permission is entirely upon the

discretion of the court. The discretion is unualified and is used whenever the court gets a feeling from the

temper, attitude, demeaner, or past statements of the witness, that he is being untruthful or has become

uncreditable.

It was thought that once a witness is declared hostile, his entire testimony should be e#cluded because the only

purpose of cross e#amination is to discredit the witness. owever, this view is not correct. It is important to

understand that the purpose of cross e#amination is not merely to discredit the witness but is also to elicit true

facts about the case that would build the case of the cross e#aminer. When a party confronts his own witness,

with the permission of court, he does so with the hope that the witness might revert bac% to his story that

supports the calling party. )urther, 'ection 14 does not technically tentamount to cross e#amining the witness.



'trictly spea%ing, cross e#amination can only be done by the adverse party.Therefore, any party $ the calling

party or the adverse party may rely on any part of the statement of such a witness. This is e#actly what is

conveyed by subclause 5"6 of 'ection 14.

Thus, in the case of Sat 'al vs &el!i ;dministration) *+,%) it was held that in a criminal prosecution, when a

witness is cross e#amined and contradicted with the leave of the court by the party calling him, his evidence

cannot, as a matter of law, be treated as completely wiped off the record altogether. If is for the court to consider

in each case whether as a result of such cross e#amination and contradiction, the witness stands thoroughly

discredited or still can be believed in regard to a part of his testimony.

The court will e#ercise its discretion only when it is satisfied that the witness has turned hostile to the party who

calls him as a witness. In criminal cases, the court may be so satisfied by e#amining the statement given by the

witness and recorded by the police during investigation under Section *%= of 7r-7 and comparing with the

evidence given. In civil cases, if an advocate has prepared a proof of the evidence of the witness in his chambers,

this could be produced in court and compared with the testimony of the witness.

The e#tent of the uestions is same as that of the e#tent of the uestions that can be put in cross e#amination by

an adverse party. Thus, rules given above in 'ection 13 apply. owever, a mere inconvenient answer given bythe witness is not sufficient to declare him hostile. The court must be satisfied that he has really turned hostile to

the party calling him as a witness.

Q. !en and !o may t!e credit of a itness be impeac!ed by a party (Sections *6%) *5$) *55#

Impeaching the credit of a witness means to show the real character of the witness so that the court may not trust

him. 7redibility of a witness is very important for the court in deciding the truth of the testimony. Indeed, it

would be unfair to convict anybody solely on the testimony of a habitual liar. Thus, it is imperative upon the

adverse party to ma%e sure that the witness is credible and so it can as% uestions that may impeach the credit of

the witness.

4!e !en

As per Section *6%, which describes the uestions that are lawful in cross e#amination, it is lawful to as%

uestions during cross e#amination to test his veracity, to discover who he is and what his position is in live, and

to sha%e his credit by injuring his character. Thus, it is clear that the credit of a witness can be impeached by the

adverse party in his cross e#amination. owever, when it is suggested that the witness is not spea%ing the truth,

it is necessary to draw his attention to it by uestions in cross e#amination. It cannot be argued that a witness is

unworthy of credit without giving his an opportunity to e#plain while he is in the witness bo#. It was held by '7

in State of 2' vs >a!ar Sing!) ;IR *++, that if you indent to impeach a witness, you are bound, while he is in

witness bo#, to give him an opportunity to e#plain, even as a rule of profession ethics and fair play. A similar

provision is given by Section *65 as well, which says that when a witness is cross e#amined about his previous

writing, without such writing is shown to him or is proved, and if it is intended to contradict his writing, his

attention must be drawn to those parts which are to be used for the purpose of contradicting him, before such

writing is proved.

When a witness turns hostile or unfavorable, the same right becomes available to the party who has called the

witness. This is provided for by 'ection 14, which says that the 7ourt may, in its discretion, permit the person

who calls a witness to put any uestions to him which might be put in cross$e#amination by the adverse party.



4!e 0o

If a witness denies the suggestions put in cross e#amination, evidence to contradict him can be called. This flows

from the general rule given in 'ection 4, which allows evidence of relevant facts to be given. owever, when

such evidence is not relevant otherwise and is only useful in sha%ing the credit of the witness, the provisions of

Section *5$ and *55 are applicable.

Section *55 provides the ways through which the credit of a witness may be impeached.

Section *55 < Impeac!ing credit of itness

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the

7ourt, by the party who calls him $

516 by the evidence of persons who testify that they, from their %nowledge of the witness believe him to be

unworthy of credit

5"6 by proof that the witness has been bribed, or has accepted the offer of a bride, or has received any other

corrupt inducement to give his evidence

5(6 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 e#amination$in$

chief, give reasons for his belief, but he may be as%ed his reasons in cross$e#amination, and the answers which

he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false

evidence.

Illustrations

5a6 A sues * for the price of goods sold and delivered to *. 7 says that he delivered the goods to *.

Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to *.

The evidence is admissible.

5b6 A is indicated for the murder of *.

7 says that *, when dying, declared that A had given * the wound of which he died.

Evidence is offered to show that, on a previous occasion, 7 said that the wound was not given by A or in his

presence.

The evidence admissible.

Section *5$ < Exclusion of evidence to contradict ansers to Duestions testing veracity

When a witness has been as%ed and has answered any uestion which is relevant to the inuiry only in so far as it

tends to sha%e his credit by injuring his character, no evidence shall be given to contradict him but, if he answers

falsely, he may afterwardas be charged with giving false evidence.

Exception * < If a witness is as%ed whether he has been previously convicted of any crime and denies it,

evidence may be given of his previous conviction.

Exception = < If a witness is as%ed any uestion tending to impeach his impartiality, and answers it by denying

the facts suggested, he may be contradicted.

Illustrations



5a6 A claim against an underwriter is resisted on the ground of fraud.

The claimant is as%ed whether, in a former transaction, he had not made a fraudulent claim. e denies it,

Evidence is offered to show that he did ma%e such a claim.

The evidence is inadmissible.

5b6 A witness is as%ed whether he was not dismissed from a situation for dishonesty. e denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

5c6 A affirm that on a certain day he saw * at &ahore.

A is as%ed whether he himself was not on that day at 7alcutta. e denies it.

Evidence is offered to show that A was on that day at 7alcutta.

The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the

alleged fact that * was seen on the day in uestion in &ahore.

In each of these cases the witness might, if his denial was false, be charged with giving false evidence.

5d6 A is as%ed whether his family has not had a blood feud with the family of * against whom he gives evidence.e denies it. e may be contradicted on the ground that the uestion tends to impeach his impartiality.

This section provides an important protection to the witness against character assasination. If a witness has

answered a uestion whose purpose is only to discredit him, whatever may be his answer, no evidence can be

shown to disprove or contradict him. This applies only to the answers that are not relevant to the facts of the case

and not to answers to the uestions that are relevant to the case. The two e#ceptions contained in the section are

meant to prevent misuse of this provision. Thus, a person is not allowed to lie about his prior conviction and he

is not allowed to be partial. Thus, as e#plained in illustration 5c6, if a witness denies a suggestion that he is

biased, evidence may be given that proves otherwise.

What do you understand &y :urden of 8roof? n !hom the does the &urden of

proof lie? State the rules of determining :urden of 8roof in a suit or

proceeding1 When does the &urden of proof shift to the other parties? Are there

any e)ceptions?

=eneral .oncept of :urden of 8roof

The res&onsibilit' to &rove a thin% is called b$rden of &roof. ,hen a &erson is re$ired to

&rove the e)istence or tr$thf$lness of a fact# he is said to have the b$rden of &rovin% that

fact. In a case# man' facts are alle%ed and the' need to be &roved before the co$rt can

base its =$d%ment on s$ch facts. The b$rden of &roof is the obli%ation on a &art' toestablish s$ch facts in iss$e or relevant facts in a case to the re$ired de%ree of certaint'

in order to &rove its case. "or e)am&le# in a case of m$rder# &rosec$tion ma' alle%e that

all the conditions constit$tin% a m$rder are f$l/lled. All s$ch conditions are facts in iss$e

and there is an obli%ation to &rove their e)istence. This obli%ation is a b$rden of &roof. In

%eneral# ever' &art' has to &rove a fact that %oes in his favor or a%ainst his o&&onent#

this obli%ation is nothin% b$t b$rden of &roof. Section *+* de/nes b$rden of &roof as

follows - ,hen a &erson is bo$nd to &rove the e)istence of an' fact# it is said that the

b$rden of &roof lies on that &erson.



The im&ortant $estion is who is s$&&osed to &rove the vario$s facts alle%ed in a case. In

other words# on whom sho$ld the b$rden of &rovin% a fact lie The r$les for allocation of

b$rden of &roof are %overned &rimaril' b' the &rovisions in Section 1@1 to 1@. The r$les

&ro&o$nded b' these sections can be cate%ori6ed as eneral r$les and S&eci/c r$les.

=eneral rules

Rule * - As &er Section *+*" s&eci/es the basic r$le abo$t who is s$&&osed to &rove a

fact. It sa's that whoever desires an' Co$rt to %ive =$d%ment as to an' le%al ri%ht or

liabilit' de&endent on the e)istence of facts which he asserts# m$st &rove that those facts

e)ist. "or e)am&le# A desires a Co$rt to %ive =$d%ment that B shall be &$nished for a

crime which A sa's B has committed. A m$st &rove that B has committed the crime.

Another e)am&le - A desires a Co$rt to %ive =$d%ment that he is entitled to certain land

in the &ossession of B# b' reason of facts which he asserts# and which B denies# to be

tr$e. A m$st &rove the e)istence of those facts.

"acts can be &$t in two cate%ories - those that &ositivel' a7rm somethin% and those that

den' somethin%. "or e)am&le# the statement# ?A is the owner of this land? is ana7rmative statement# while ?B is not the owner of this land? is a denial. The r$le %iven in

Section *+* means that the &erson who asserts the a7rmative of an iss$e# the b$rden

of &roof lies on his to &rove it. Th$s# the &erson who maes the statement that ?A is the

owner of the land?# has the b$rden to &rove it. This r$le is $sef$l for determinin% the

ownershi& of the initial b$rden. ,hoever wishes the co$rt to tae certain action a%ainst

the o&&osite &art' based on certain facts# he o$%ht to /rst &rove those facts.

:owever# it is not ver' sim&le to cate%ori6e a fact as assertin% the a7rmative. "or

e)am&le# in the case of So!ard vs @egatt" *$/6# a landlord s$in% the tenant asserted

that the tenant did not re&air the ho$se. :ere# he was assertin% the ne%ative. B$t the

same statement can also be said a7rmativel' as the tenant let the ho$se dila&idate. In

this case# @ord A:IB=ER observed that In ascertainin% which &art' is assertin% the

a7rmative the co$rt loos to the s$bstance and not the lan%$a%e $sed. 4ooin% at the

s$bstance of this case# the &lainti( had to &rove that the &remises were not re&aired.

Th$s# the co$rt sho$ld arrive at the s$bstance of the iss$e and sho$ld re$ire that &art'

to be%in who in s$bstance# tho$%h ma' not be in form# alle%es the a7rmative of the

iss$e.

:urden of 8roof and nus of 8roof

The term B$rden of roof is $sed in two di(erence senses - the b$rden of &roof as a

matter of law and &leadin%# and the b$rden of &roof as a matter of add$cin% evidence

also called as on$s. There is a s$btle distinction between b$rden of &roof and on$s of

&roof# which was e)&lained in the case of Ranchhod&hai vs :a&u&hai AIR *($. The

/rst one is the b$rden to &rove the main contention of &art' re$estin% the action of the

co$rt# while the second one is the b$rden to &rod$ce act$al evidence. The /rst one is

constant and is alwa's $&on the claimant b$t the second one shifts to the other &art' as

and when one &art' s$ccessf$ll' &rod$ces evidence s$&&ortin% its case. "or e)am&le# in a



case where A is s$in% B for &a'ment of his services# the b$rden of &roof as a matter of

law is $&on A to &rove that he &rovided services for which B has not &aid. B$t if B claims

that the services were not $& to the mar# the on$s of b$rden as to add$cin% evidence

shifts to B to &rove the de/cienc' in service. "$rther# if $&on &rovidin% s$ch evidence# A

claims that the services were &rovided as ne%otiated in the contract# the on$s a%ain shifts

to A to &rove that the services meet the $alit' as s&eci/ed in the contract.

The ne)t r$le determines who has the on$s of &roof.

Rule - As &er Section *+" the b$rden of &roof in a s$it or &roceedin% lies on that

&erson who wo$ld fail if no evidence at all were %iven on either side. The followin%

ill$strations e)&lain this &oint -

Illustration * - A s$es B for land of which B is in &ossession# and which# as A asserts#

was left to A b' the will of C# B0s father. If no evidence were %iven on either side# B wo$ld

be entitled to retain his &ossession. Therefore the b$rden of &roof is on A.

Illustration - A s$es B for mone' d$e on a bond. The e)ec$tion of the bond is

admitted# b$t B sa's that it was obtained b' fra$d# which A denies. If no evidence were

%iven on either side# A wo$ld s$cceed# as the bond is not dis&$ted and the fra$d is not&roved. Therefore the b$rden of &roof is on B.

Rule / - As &er Section *+/# the &erson who wants the co$rt to believe in an alle%ed

fact is the one who is s$&&osed to &rove that fact $nless it is &rovided b' an' law that the

&roof of that fact shall lie on an' &artic$lar &erson. "or e)am&le# A &rosec$tes B for theft#

and wishes the Co$rt to believe that B admitted the theft to C. A m$st &rove the

admission. Another e)am&le - B wishes the Co$rt to believe that# at the time in $estion#

he was elsewhere. :e m$st &rove it. "$rther# as s&eci/ed in Section *+0# if a &erson

wants the co$rt to believe in a fact that ass$mes the e)istence of another fact# it is $& to

the &erson to &rove the other fact also. "or e)am&le# A wishes to &rove a d'in%

declaration b' B. A m$st &rove B0s death. A wishes to &rove# b' secondar' evidence# the

contents of a lost doc$ment. A m$st &rove that the doc$ment has been lost.

Speci2c Rules

These r$les s&eci/call' &$t the b$rden on &rovin% certain facts on &artic$lar &ersons -

Rule * - As &er Section *+6# when an' fact is es&eciall' within the nowled%e of an'

&erson# the b$rden of &rovin% that fact is $&on him. ,hen a &erson does an act with

some intention other than that which the character and circ$mstances of the act s$%%est#the b$rden of &rovin% that intention is $&on him. "or e)am&le# A is char%ed with travelin%

on a railwa' witho$t a ticet. The b$rden of &rovin% that he had a ticet is on him.

Rules of 8resumption - Section *+7 and *+$ sa' that if a &erson was nown to be

alive within @ 'rs the &res$m&tion is that he is alive and if the &erson has not been

heard of for seven 'ears b' those who have nat$rall' heard from him if he had been

alive# the &res$m&tion is that the &erson is death. B$t no &res$m&tion can be draw as to

the time of death. Sections *+( establishes the b$rden in case of some relations s$ch as

landlord and tenant# &rinci&le and a%ent etc. "$rther sections s&ecif' the r$les abo$t



b$rden of &roof in case of terrorism# dowr' death# and ra&e.

E)ceptions -

E)ception * - The %eneral r$le in criminal cases is that the acc$sed is &res$med

innocent. It is the &rosec$tion who is re$ired to establish the %$ilt of the acc$sed witho$t

an' do$bt. At the same time# the acc$sed is not re$ired to &rove his innocence witho$t

an' do$bt b$t onl' has to create reasonable do$bt that he ma' not be %$ilt'. Section

*+5 s&eci/es an e)ce&tion to this %eneral r$le. ,hen an acc$sed claims the bene/t of

the eneral E)ce&tion cla$ses of IC# the b$rden of &rovin% that he is entitled to s$ch

bene/t is $&on him. "or e)am&le# if an acc$sed claims the bene/t of insanit' in a m$rder

trial# it is $& to the acc$sed to &rove that he was insane at the time of committin% the

crime.

In the case of ; % Banavati vs State of %aharashtra" AIR *(6" SC e)&lained this

&oint. In this case# Ganavati was acc$sed of m$rderin% rem Ah$=a# his wife0s &aramo$r#

while Ganavati claimed innocence on acco$nt of %rave and s$dden &rovocation. The

defence0s claim was that when Ganavati met rem at the latter0s bedroom# rem had =$st

come o$t of the bath dressed onl' in a towel2 an an%r' Ganavati swore at rem and&roceeded to as him if he intends to marr' S'lvia and loo after his children. rem

re&lied# ?,ill I marr' ever' woman I slee& with?# which f$rther enra%ed Ganavati. Seein%

rem %o for the %$n# enclosed in a brown &acet# Ganavati too went for it and in the

ens$in% sc$e# rem0s hand ca$sed the %$n to %o o( and instantl' ill him.

:ere# SC held that there is a &res$m&tion of innocence in favor of the acc$sed as a

%eneral r$le and it is the d$t' of the &rosec$tion to &rove the %$ilt of the acc$sed be'ond

an' do$bt. B$t when an acc$sed relies $&on the %eneral e)ce&tion or &roviso contained in

an' other &art of the enal Code# Section *+5 of the Evidence Act raises a &res$m&tion

a%ainst the acc$sed and also throws a b$rden on him to reb$t the said &res$m&tion.

Th$s# it was $&on the defence to &rove that there e)isted a %rave and s$dden

&rovocation. In absence of s$ch &roof# Ganavati was convicted of m$rder.

E)ception - Admission - A fact which has been admitted b' a &art' and which is

a%ainst the interest of that &art'# is held a%ainst the &art'. If the fact is contested b' the

&art'# then the b$rden of &roof rests $&on the &art' who made the admission. "or

e)am&le# A was recorded as sa'in% that he committed theft at the said &remises. If A

wants to den' this admission# the b$rden of &roof rests on A to &rove so.

E)ception / - 8resumptions - Co$rt &res$mes the e)istence of certain thin%s. "ore)am&le# as &er Section *+7*+$# co$rt &res$mes that a &erson is dead or alive based

on how lon% he has not been heard of. Section *+(# &res$mes that when two &eo&le

have been actin% as &er the relationshi& of landlord - tenant# &rinci&le - a%ent# etc# s$ch

relationshi& still e)ists and an'bod' who contends that s$ch relationshi& has ceased to

e)ist has to &rovide &roof. Section **+ &res$mes that the &erson who has the

&ossession of a &ro&ert' is the owner of that &ro&ert'. As &er Section **/A# ,hen the

$estion is whether the commission of s$icide b' a woman had been abetted b' her

h$sband or an' relative of her h$sband and it is shown that she had committed s$icide

within a &eriod of seven 'ears from the date of her marria%e and that her h$sband or



s$ch relative of her h$sband had s$b=ected her to cr$elt'# the co$rt ma' &res$me# havin%

re%ard to all the other circ$mstances of the case# that s$ch s$icide had been abetted b'

her h$sband or b' s$ch relative of her h$sband. As &er Section **/:# when the $estion

is whether a &erson has committed the dowr' death of a woman and it is shown that soon

before her death s$ch woman had been s$b=ected b' s$ch &erson to cr$elt' or

harassment for# or in connection with# an' demand for dowr'# the co$rt shall &res$me

that s$ch &erson had ca$sed the dowr' death.

Th$s# when the &res$m&tion of the co$rt is in favor of a &art'# the b$rden of dis&rovin% it

rests on the o&&osite &art'.

1 What is 4udicial 8resumption? E)plain giving special e#ects to the la!

relating to a&atement of suicide &y a married !oman1

A &res$m&tion is an acce&tance of a fact as tr$e or e)istent based $&on its stron%

&robabilit' evident from the circ$mstances. "or e)am&le# if a man has not been heard

from for ; 'ears b' his closest relatives# the co$rt ma' believe in that the man is dead.

This is a &res$m&tion. Th$s# when the co$rt &res$mes the e)istence of a fact beca$se of

its stron% &robabilit' b$t witho$t a direct or concl$sive &roof# it is called as &res$m&tion.

,hen a co$rt &res$mes a fact# the &art' in whose favor the fact is# is relieved of the initia

b$rden of &roof. "or e)am&le# as &er Ge%otiable Instr$ments Acts# ever' holder of an

instr$ment is &res$med to be a holder for consideration. So if a &erson A holds a che$e

si%ned b' another &erson B# it is &res$med that A has %iven consideration for the che$e

and so A does not have to &rovide an' &roof of that consideration. Of co$rse# this

&res$m&tion onl' a&&lies at the be%innin%. The other &art' is free to &rovide &roof that

dis&roves the &res$m&tion. "or e)am&le# the o&&osite &art' can show letters b' the

&erson or recent &hoto%ra&h of the &erson showin% that he is still alive.

Accordin% to En%lish 4aw# a &res$m&tion can be of two inds - &res$m&tion of fact and

&res$m&tion of law.

8resumption of act

res$m&tion of fact are those &res$m&tion abo$t thin%s or events that ha&&en in da' to

da' life# which we acce&t as tr$e d$e to inference drawn lo%icall' and nat$rall' b' o$r

mind. S$ch as# &res$m&tion that a man with blood stained clothes and a nife in his

hands is the m$rderer. S$ch &res$m&tions are reb$ttable from f$rther evidence.

8resumption of @a!

res$m&tion of law are arbitrar' conse$ences that are anne)ed b' law to &artic$lar

facts. The' are le%al /ction. The' ma' not be same as the inferences that we ma'

ordinaril' draw b$t the law &rescribes that s$ch inference ma' be drawn. "or e)am&le# it

is a &res$m&tion of law that a child below seven 'ears of a%e is not ca&able of

committin% a crime. Or that a &erson who has not been heard from for seven 'ears is

dead. S$ch &res$m&tions ma' or ma' not be reb$ttable de&endin% on the law. "or

e)am&le# the &res$m&tion that a child below seven 'ears of a%e is not ca&able of

committin% a crime cannot be reb$tted. 4aw &res$mes the a%e of the child as a



concl$sive &roof of his innocence. B$t the &res$m&tion that a &erson is dead when he is

not heard from for ; 'ears is reb$ttable b' showin% evidence.

%ay 8resume and Shall 8resume

rovisions of Section 0# in a %eneral sense# corres&ond to the above classi/cation. The

/rst &art of this section de/nes ?Ma' res$me? as follows -

%ay presume - ,henever it is &rovided b' this Act that the Co$rt ma' &res$me a

fact# it ma' either re%ard s$ch fact as &roved# $nless and $ntil it is dis&roved# or ma' call

for &roof of it. It %ives the co$rt a discretionar' &ower to &res$me the e)istence of a fact.

,hich means that the co$rt ma' re%ard the fact as &roved $nless and $ntil it is

dis&roved. "or e)am&le# in the case of r , , ,homas vs Elisa AIR *($7# where a

doctor failed to &erform an emer%enc' o&eration d$e to lac of consent# the co$rt

&res$med that the consent was there since the &atient was bro$%ht to the hos&ital. It was

$& to the doctor to &rove that the consent was not there. The co$rt ma' also as for

f$rther &roof before main% the &res$m&tion.

All the &res$m&tions %iven in Section **0 are of this ind# which sa's that the co$rt ma'

&res$me the e)istence of an' fact which it thins liel' to have ha&&ened re%ard bein%

had to the common co$rse of nat$ral events# h$man cond$ct# and &$blic and &rivateb$siness# in their relation to the facts of the &artic$lar case. "or e)am&le# the co$rt ma'

&res$me that a man who is in &ossession of stolen %oods soon after theft# is either the

thief of has received the %oods nowin% them to be stolen# $nless he can acco$nt for his

&ossession.

The second &art of the section for de/nes ?Shall res$me? as follows -

Shall presume - ,henever it is directed b' this Act that the Co$rt shall &res$me a

fact# it shall re%ard s$ch fact as &roved# $nless and $ntil it is dis&roved. It basicall' forces

the co$rt to &res$me a fact that is s&eci/ed b' the law $nless and $ntil it is dis&roved.

The co$rt cannot as for an' evidence to &rove the e)istence of that fact b$t it ma' allow

evidence to dis&rove it. "or e)am&le# Section (+ &rovides that where an' doc$ment#

&$r&ortin% or &roved to be thirt' 'ears old# is &rod$ced

from an' c$stod' which the Co$rt in the &artic$lar case considers &ro&er# the Co$rt ma'

&res$me that the si%nat$re and ever' other &art of s$ch doc$ment# which &$r&orts to be

in the handwritin% of an' &artic$lar &erson# is in that &erson0s handwritin%# and# in the

case of a doc$ment e)ec$ted or attested# that it was d$l' e)ec$ted and attested b' the

&ersons b' whom it &$r&orts to be e)ec$ted and attested. res$m&tion abo$t abetment

of s$icide of a married woman *S1 **/A+ and res$m&tion abo$t dowr' death of a

woman *S1 **/:+ are of this ind.

Third &art of the section de/nes ?Concl$sive roof? as follows -

.onclusive proof - ,hen one fact is declared b' this Act to be concl$sive &roof of

another# the Co$rt shall# on &roof of the one fact# re%ard the other as &roved# and shall

not allow evidence to be %iven for the &$r&ose of dis&rovin% it. "or e)am&le# birth d$rin%

marria%e *S1 **+ is a concl$sive &roof of le%itimac'.

8resumption and :urden of 8roof

$stice Penataramiah# of SC observed the followin%# in the case of Sodhi ,ransport vs



State of 98" *($6 - A &res$m&tion is not evidence in itself b$t onl' maes a &rima facie

case for &art' in whose favor it e)ists. It indicates the &erson on whom the b$rden of

&roof lies. ,hen the &res$m&tion is concl$sive# it obviates the &rod$ction of an'

evidence# b$t when it is reb$ttable# it onl' &oints o$t the &art' on whom lies the d$t' of

%oin% forward with evidence on the fact &res$med and when that &art' has &rod$ced

evidence fairl' and reasonabl' tendin% to show that the real fact is not as &res$med the

&$r&ose of &res$m&tion is over.

8resumption a&out a&atement of suicide &y a married !oman

Section **/ A - ,hen the $estion is whether the commission of s$icide b' a woman

had been abetted b' her h$sband or an' relative of her h$sband and it is shown that she

had committed s$icide within a &eriod of seven 'ears from the date of her marria%e and

that her h$sband or s$ch relative of her h$sband had s$b=ected her to cr$elt'# the co$rt

ma' &res$me# havin% re%ard to all the other circ$mstances of the case# that s$ch s$icide

had been abetted b' her h$sband or b' s$ch relative of her h$sband.

E)&lanation - "or the &$r&oses of this section# ?cr$elt'? shall have the same meanin% asin section Q9A of the Indian enal Code * of 19@+.

Section **/ : - res$m&tion as to dowr' death - res$m&tion as to dowr' death.-,hen

the $estion is whether a &erson has committed the dowr' death of a woman and it is

shown that soon before her death s$ch woman had been s$b=ected b' s$ch &erson to

cr$elt' or harassment for# or in connection with# an' demand for dowr'# the co$rt shall

&res$me that s$ch &erson had ca$sed the dowr' death. E)&lanation - "or the &$r&oses of

this section# ?dowr' death? shall have the same meanin% as in section @B of the Indian

enal Code.

evidence act.docx

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