HE MOST IMPORTANT FEATURES OF THE INDIAN EVIDENCE ACT TO BE KNOWN BY ALAW STUDENT- 

The Indian Evidence Act or The Law of  Evidence is a subject which cannot be understood without understanding these important features which forms the basis of the Law of Evidence.For a good Lawyering skills and hands on the subject these features are a must on tips. Only then can you jump on to the next level to understand and study The Law of Evidence These important features are-

Court Fact Relevant fact Facts in issue Document Evidence Proved Disproved Not proved Affidavit Motive Circumstantial Evidence May presume Shall presume Conclusive proof

These are explained in detail below- 

1)    Court-    Court includes all Judges and Magistrates,and all persons except Arbitrators,legally authorized to take evidence. A Court is a governmental institution with the authority to decide legaldisputes between the parties.All kinds of persons are free to bring thier disputes to the court and seek a fair judgement.   The Judiciaryis the system who interprets and applies the Law.The place where the court sists is known as a venue.The room where the court proceedings are held is known as a Court room.   A Court is constituted by a minimum of three parties-

The Plaintiff-is a person who complains for an injury caused to him. The Defandant-is a person who defences himself against the complaint

made by the plaintiff against the defendant and, The Judicial power-who is to examine the truth of the fact and deliver

a judgement.

Besides this Advocates of both the parties.

 

2)    FACT- The term ‘’fact’’ means and includes-1. Any thing,state of things,or relation of things,capable of being

perceived by the senses;2. Any mental condition of which any person is conscious.

 

Example- That man heard or saw something,is a fact. That women has a certain reputation,is a fact. The jar kept on the table,is a fact. That a man holds a certain opinion,has a certain intention,acts in

good faith,acts fraudulently,or usese a word in a particular sense,or is or was at a specified time conscious of a particular sensation,is afact.

That girl has so and so name,is a fact. 

3)    Relavant fact-     A fact is said to be relavant to another when one fact is connected with the other fact in any ways reffered to in the provisions of this act in the chapter of relavancy of facts. Relavant fact-The word ‘relavant’ means that any two facts to which it is applied are in sucha way related to each other that,one,either taken by itself or in connection with the other facts,proves or renders probablity of the past,present or future existence or non-existence of the other. ‘Relavant’ means admissible in evidence. Of all the rules in evidence the most important is that the evidence adduced should be confined only to the matters which are in dispute,or which form the subject of investigation.

 

4)    Facts in issue-The expression ‘fact in issue’ means and includes- Any fact from which,either by itself or in connection with other facts,the existence,non-existence,nature or extent of any right,liability,or disability,asserted or denied in any suit or proceeding,necessarily follows.   Example- A is accused for the murder of B. At his trial in the court the following facts may be in issue-

That A caused B’s death;

That A intended to cause B’s death; That A, at the time of doing the act which caused B’s death,was by

reason,of unsound mind or incapable of knowing its nature. 

5)    Document-The term ‘’document’’ means any matter expressed or described upon anysubstance by means of letters,figures or marks,or by more than one of those means,intended to be used,or which may be used,for the purpose of recording that matter.   Example-

A writing is a document; Words printed,lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.

The term document includes all material substances on which thoughts of the people are expressed by writing or in any other way,by a mark or a symbol. For instance,the wooden board on which the bakers,the milk men,indicate by notches,the number of loaves of bread or liters of milk supplied to the customers,are documents.

 

6)    Evidence- Evidence means and includes- All statements which the court permits or requires to be made before

it by the witnesses,in relation to matters of fact under inquiry;such statements are called oral evidence;

All documents including electronic records produced for the inspectionof the Court, such documents are called documentary evidence.The term Evidence covers (a) the evidence of witnesses, and (b) Documentary evidence. Evidence can both be oral and documentary and electronic records can be produced as evidence. The word ‘evidence’ does not includes everything that is before a Court.There are other medium of proof as well.For eg-

The statement of parties, The result of investigations held, Any real or personal property been inspected in determining the

question at issue,such as weapons,tools or stolen property.

7)    Proved-A fact is said to be proved when after considering the matters before it, the Court either beleives it to exist or considers its existence

so probable that a prudent man ought, under the circumstances of the particular case,to act upon the supposition that it exists.   When theCourt believes it to exist, it means it is proved beyond reasonable doubt. In the case of criminal proceeding the guilt of the accused is to be proved beyond reasonable doubt. In civil proceedings proving beyond reasonable doubt is not necessary, only balancing of possibilities and probabilities is sufficient. The meaning of proved means positive findings.

 

8)    Disproved-A fact is said to be disproved when,after considering the matters before it,the Court either believes that it does not exist,or considers its non-existence so probable that a prudent man ought,underthe circumstances of the particular case,to act upon the supposition that it does not exist. Disproved is contrary to proved.It also means negative findings.In disproved the existence of such fact is not proved but its non-existence is proved.   9)   Not Proved- A fact is said not to be proved when it is neither proved nor disproved.There isno positive or negative findings.It is a situation where the parties fail to explain precisley,how the matter stands. 

10)    Affidavit-An affidavit is a written statement made voluntarily made by an affiant or deponent under an oath administered by a person who is legally authorized to do so.Affidavits are confined only to those facts which the deponent is able of his own knowlegde to prove.An affidavit filed by a party cannot be termed as evidence.Affidavits cannot be used in evidence.It can only be used if the Court permits tobe used for sufficient reasons.

 

11)    Motive-A motive in law is the cause that moves the people to commit a certainact.The motive is a very essential factor to be seen behind every act,specially a criminal act committed.It can be explained with the help of an example-

Rekha, who was the owner’s daughter was killed by the tenant dheeraj,who had a evil eye on rekha. Dheeraj had tried to rape Rekha but Rekha managed to escape and told her mother about the incident on

account of which Rekha’s father abusingley told dheeraj to vacate the house immidiatley.This may be taken as the motive of the Murder.If the prosecution is able to prove the motive,then the Court has to consider it and see whether it is adequate or not.Where there is a direct evidence,the evidence of motive is not of much significance.

 

12)   Circumstantial evidence-It is one of the well established fact in law that the witness may liebut the circumstances never lie.It is not necessary that a direct ocular evidence is needed to prove that a person was behind the crime.The guilt of a person can also be proved by circumstantial evidence. For conviction in the case of circumstantial evidence the following conditions must be accomplished. They are-

The circumstances from which the conclusion of the guilt is to be drawn should be fully established.

The facts established should be consistent and they should not be explainable on any other hypothesis except that the accused is guilty.

The nature of the circumstances should be conclusive. They should include only the facts which are to be proved. There must be a chain of evidence completely showing that in all human

probability the act must have been done by the accused.13)     May Presume-The term ‘’may presume’’ means that the Court has the authority to presume the fact as proved,or to call upon for a confirmatory evidence,as the circumstances require.In such a case the presumption is not a hard and fast presumption,incapable of rebuttal. Such presumptions in law are called as ‘juris et de jury’. The Court may presume a fact or regard such fact as proved,unless it is disproved,orit may ask for its proof.

 

14)   Shall Presume-When a Court presumes a certain fact it has no other option except considering the fact as proved unless an evidence is given to disprovethat fact.The party interested in disproving that fact can produce an evidence if he can.In such a case the Court will have the power to allow the opposite party to disprove the fact which is presumed as proved and if the opposite party is successful in disproving the fact

then the Court shall not presume the fact. The words ‘’shall presume’’indicates that presumption therin is unrebuttable.

 

"Evidence may be given of facts in issue and relevant facts."To ensure that a judicial process does not linger on for too long, courtscannot waste their time on things that are not important for the case. Whilethere 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 theconcept behind Section 5 of Indian Evidence Act, 1872, which says that in anysuit or proceeding, evidence may be given of the existence or non-existence of

every fact in issue and of such other facts as are hereinafter declared to berelevant, and of no others. A person is not allowed to bring forward anyevidence to prove or disprove a fact that is neither a fact in issue or a factthat is relevant to the facts in issue. This statement refers to two kinds offacts – facts in issue and relevant facts. Let us see what they both mean -Facts in Issue Section 3 defines facts in issue. According to this section, a fact in issueis a fact that directly or indirectly in connection with other facts,determines the existence, non-existence, nature, or extent of any right orliability that is asserted or denied in any suit or proceeding. In otherwords, facts in contention in a case are facts in issue. For example, A isaccused of murder or B. In this case, the following are facts in issue -1. A caused B’s death.2. A had intention to kill B.3. A was insane.4. A received grave and sudden provocation from B.All the above are facts in issue because they are in contention and theydetermine the liability of A. Their truth increases or decreases theprobability that A murdered B. Prosecution will have to establish the factsthat prove that A murdered B before A can be convicted. At the same time, theprosecution also has to disprove that any of the exceptions do not apply to A.A fact in issue is also known by its latin term – factum probandum, whichmeans fact to be proved.A fact will be considered as fact in issue only if the fact is such that byitself or in connection to other facts it is crucial to the question of aright or liability. To be a fact in issue, a fact must satisfy tworequirements – the fact must be in dispute between the parties and the factmust touch the question of right or liability. The extent of rights andliabilities of parties depend on the ingredients of an offence. In criminalmatters, 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.

Relevancy of Facts The word relevancy as such is not defined in Indian Evidence Act, 1872,

however, the meaning of the word is quite clear. The word "relevancy" meansthe property of a thing that makes it connected to the matter at hand. A thingis relevant to other when it has a relation to the other thing that tellssomething appropriate about the other thing. Relevancy of a Fact means thatthe fact has a significant relation to another fact that is underconsideration. When two facts have a direct relation, they are relevant toeach other. For relevancy it is necessary that if we take one fact, the otherwill 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 known by its latin term – factum probans, which meansa fact that proves. Thus, if facts-in-issue are the facts to be proved ordisproved in a trial, relevant facts are the facts that help prove or disprovefacts-in-issue. A fact is relevant if belief in that fact helps the conclusionof the existence or non-existence of another.Section 3 specifies that a Relevant fact is a fact is relevant to another whenit is connected to the other in any of the ways referred to in the provisionscontained in the act. Sections 6 to 55 contains provisions that define therelationships that make a fact legally relevant or not relevant to another.The relationship makes one fact more probable or improbable because of theother. For example, Fact A is that a person was given certain medication andhe died. Fact B is that the person was suffering from TB. Here, fact B isrelevant to fact A because it throws light on the possible causes of hisdeath. Fact B makes is probable that he might have died because of TB insteadof the given medication.In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale has said, "Evidence isrelevant if it is logically probative or disprobative of some matter whichrequires proof. A relevant evidence is evidence that makes the matter whichrequires proof more or less probable."As is evident from Section 5 stated above, only those facts that are relatedto the facts in issue through relationships defined in Section 6 to 55 arelegally relevant and evidence can be given only for those facts in a trial. Itmust be noted, however, that a relevant fact may not necessarily beadmissible.

Section 11 would be important to mention here. As per Section 11, in certainsituations facts not otherwise relevant become relevant. This happens if theyare inconsistent with any fact in issue or relevant fact or if by themselvesor in connection with other facts they make the existence or non-existence ofany fact in issue or relevant fact highly probable or improbable. For example,(a) The question is whether A committed a crime at Calcutta on a certain day –The fact that, on that day, A was at Lahore is relevant. (b) The question is,whether A committed a crime. The circumstances are such that the crime musthave been committed either by A, B, C or D. Every fact which shows that thecrime could have been committed by no one else and that it was not committedby either B, C or D is relevant. As is shown by these illustrations, an alibiis a very common example of an irrelevant fact becoming relevant.Doctrine of Res GestaeIn a nutshell, Res Gestae means facts forming part of a transaction. Thisincludes things done and things said in the course of a transaction. Acts anddeclarations accompanying a transaction are treated as Res Gestae and areadmissible in evidence. As discussed above, a Court is interested only in suchevidence that is bearing on a fact in issue or a relevant fact. This isimportant in limiting the scope of the trial to facts that are indeedimportant for the case so that justice can be done swiftly.However, in narrowing the scope of things that can be brought before thecourt, injustice should not be done. The things that are reasonably connectedto the facts in issue are usually very important for a case and such factsmust be allowed to be brought before the court whether they fall into any ofthe sections that categorize the facts as relevant or not. This concept isespoused by Section 6. It says:Section 6. Relevancy of facts forming part of same transaction – Facts which,though not in issue are so connected with a fact in issue as to form part ofthe same transaction, are relevant, whether they occurred at the same time andplace or at different times and places.What it means is that a fact in issue does not happen in isolation. It alwayshas a factual story behind it. A fact in issue lies in a pool of other factsthat gives birth to it. This section makes 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 sametransaction in which the fact in issue occurred. "Occurring in the sametransaction" is a wide term that includes several kinds of things such asthings that happened at the vicinity of the facts in issue, things that weredone by the accused right after or before the facts in issue, things that leadto facts in issue, and so on. The following illustrations explain the kind offacts that are contemplated under this section:Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or doneby A or B or the by-standers at the beating, or so shortly before or after isas to from part of the transaction, is a relevant fact.(b) A is accused of waging war against the Government of India by taking partin an armed insurrection in which property is destroyed, troops are attackedand goals are broken open. The occurrence of these facts is relevant, asforming part of the general transaction, though A may not have been present atall of them.(c) A sues B for a libel contained in a letter forming part of acorrespondence. Letters between the parties relating to the subject out ofwhich the libel arose, and forming part of the correspondence in which it iscontained, are relevant facts, though they do not contain the libel itself.(d) The question is whether certain goods ordered from B were delivered to A.the goods were delivered to several intermediate persons successively. Eachdelivery 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 evidencecan be given of every fact which forms part of the same transaction. Accordingto Stephen, a transaction is a group of facts so connected together as to bereferred to by a single name, as a crime, a contract, a wrong, or any othersubject of inquiry which may be in issue. Although Section 6 does not use thewords Res Gestae, the concept behind this section is often referred to by thisterm. This pool of facts in which facts in issue happened is the "Res Gestae"

of the facts in issue. Res Gestae is the surrounding circumstances of theevent to be proved.Res Gestae and Hearsay EvidenceRes Gestae also refers to secondhand statements considered trustworthy for thepurpose of admission as evidence in a lawsuit when repeated by a witnessbecause they were made spontaneously and concurrently with an event. Under thehearsay rule (Section 60 – Oral evidence must be direct), a court normallyrefuses to admit as evidence statements that a witness says he or she heardanother person say. Traditionally, two reasons have made hearsay inadmissible:unfairness and possible inaccuracy. Allowing a witness to repeat hearsay doesnot provide the accused with an opportunity to question the speaker of theoriginal statement, and the witness may have misunderstood or misinterpretedthe statement. Thus, in a trial, counsel can object to a witness’s testimonyas hearsay. The doctrine of Res Gestae is one of the many exceptions to thisrule. Since certain statements are made naturally, spontaneously, and withoutdeliberation during the course of an event, they carry a high degree ofcredibility and leave little room for misunderstanding or misinterpretation.The doctrine held that such statements are more trustworthy than othersecondhand statements and therefore should be admissible as evidence.To be admissible, the statements must relate, explain, or characterize anevent or transaction. They must be natural statements growing out of theevent, as opposed to a narrative of a past, completed affair. Additionally,the statements must be spontaneous, evoked by the event itself, and not theresult of premeditation. Finally, the original speaker must have participatedin the transaction or witnessed the event in question. Thus, for example, awitness might testify that during a bank robbery, she or he heard anotherperson shout, "That person is robbing the bank!" and the statement could beadmitted as an exception to the ban on hearsay. Illustration (a) above is anexample of such statement.

Usefulness of Res GestaeAs per Phillip’s Treatise on Evidence, the reason why the term Res Gestae hasbeen avoided from Section 6 is because this doctrine has been productive ofconfusion. There can be numerous facts that surround the facts in issue. They

can all be somehow linked with the same transaction. There is no clearcut rulethat can demarcate a transaction. So it is entirely left to the experience andintuition of the Judges to determine whether a particular fact can be includedin Res Gestae or not. This is evident from the following two cases. In thecase of R vs Foster 1843, accused was charged with manslaughter in killing aperson by driving over him. A witness saw the vehicle driven fast but did notsee the accident. Immediately after, on hearing the victim groan, he went upto him and asked him what happened. The deceased then made a statement as tothe cause of the injury. The court held that what the deceased said at theinstant, as to the cause of the accident is clearly admissible.As a contrast, in the case of R vs Beddingfield 1879, a woman, with her throatcut, came suddenly out of a room, in which she had been injured. Shortlybefore she died, she said, "Oh dear Aunt, see what Beddingfield has done tome." This statement was not accepted as Res Gestae. According to CJ Cockburn,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 Res Gestae does not produce sameresults in very similar situations. This certainly causes confusion in theminds of novice lawyers and judges. My belief is that this principle should beapplied when common sense dictates so. Like any other principle, thisprinciple is also not a precise instrument to measure relevancy. It is only aguide that can help decide whether a fact is sufficiently relevant to a factin issue. The final decision rests with the Judge, who should decide dependingon the peculiarities of the case.I do not agree that this doctrine is harmful for the simple reason that thisdoctrine is not a rigid rule of law. It should be applied only when suitable.Facts are relevant under Indian Evidence ActSections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant. These are as follows – [TrOcMI ConODC SABADOJOC]Section 6 – Relevancy of facts forming part of same transaction - Facts which,though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time andplace or at different times and places. For example – (a) A is accused of the

murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.Section 7 – Facts which are the occasion, cause or effect of facts in issue - Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, which afforded an opportunity for their occurrence or transaction, are relevant.For example – a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that heshowed it or mentioned the fact that he had it, to third persons, are relevant.Section 8 – Motive, preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact inissue or relevant fact -For example – (a) A is tried for the murder of B – The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant -Section 9 – Facts necessary to explain or introduce relevant facts - Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant facthappened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose -For example, (a) The question is, whether a given document is the will of A – The state of A’s property and of his family at the date of the alleged will may be relevant facts -Section 10 – Things said or done by conspirator in reference to common design – Where there is reasonable round to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said,done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one

of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracyas for the purpose of showing that any such person was a party to it -Section 11 – When facts not otherwise relevant become relevant - Facts not otherwise relevant are relevant – (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable -For example, (a) The question is whether A committed a crime at Calcutta on a certain day – The fact that, on that day, A was at Lahore is relevant -Section 12 – In suits for damages, facts tending to enable Court to determine amount are relevant - In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant -Section 13 – Facts relevant when right or custom is in question - Where the question is as to the existence of any right or custom, the following facts are relevant:-(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence:(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from-For example – The question is whether A has a right to a fishery – A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, orin which the exercise of the right was stopped by A’s neighbors, are relevant facts -Section 14 – Facts showing existence of state of mind, or of body, of bodily feeling - Facts showing the existence of any state of mind, such as intention,knowledge, good faith, negligence, rashness, ill-will or good-will towards anyparticular person, or showing the existence of any state of body or bodily

feeling, are relevant, when the existence of any such state of mind or body orbodily feeling, is in issue or relevant -For example, (a) A is accused of receiving stolen goods knowing them to be stolen – It is proved that he was in possession of a particular stolen article– The fact that, at the same time, he was in possession of manyother stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen -Section 15 – Facts bearing on question whether act was accidental or intentional – When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant -For example, (a) A is accused of burning down his house in order to obtain money for which it is insured – The facts that A lived in several houses successively each of which he insured, in each of which a fire occurred, and after each ofwhich fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental -Section 16 – Existence of course of business when relevant – When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact -For example, (a) The question is, whether a particular letter was dispatched –The facts that it was the ordinary course of business for all letters put in acertain place to be carried to the post, and that particular letter was put inthat place are relevant -Sections 17 to 31 – Admission of facts by particular persons is relevantSections 32 and 33 – Statements by persons who cannot be called witness in specified circumstances are with definite conditions are relevant.Sections 34 to 38 – Statements made in an extra ordinary circumstance, any statement made on any law which is inserted in some books, is relevant.Sections 40-44 – Judgments of courts are relevant in certain situations

Sections 45-51 – Opinion of third person is relevant in certain situationsSections 52-55 – Character of a person is relevant in certain situations.Are those facts also relevant which are the occasion, cause, or effect offacts in issueYes, facts because of which facts in issue take birth, or facts which takebirth because of facts is issue are also considered relevant fact. Evidencecan be given for the set of circumstances under which the principle factsoccurred. As per Section 7 – Facts which are the occasion, cause or effect,immediate or otherwise, of relevant facts, or facts in issue, or whichconstitute the state of things under which they happened, which afforded anopportunity for their occurrence or transaction, are relevant.Illustrations – (a) The question is, whether A robbed B. The facts that, shortly before therobbery, B went to a fair with money in his possession, and that he showed itor mentioned the fact that he had it, to third persons, are relevant.(b) The question is, whether A murdered B. Marks on the ground, produced by astruggle at or near the place where the murder was committed, are relevantfacts.(c) The question is, whether A poisoned B. The state of B’s health before thesymptoms ascribed to poison, and habits of B, known to A, which afforded anopportunity for the administration of poison, are relevant facts.This section include following types of facts -1. Occasion - Occasion means the circumstances in which an event occurred.Evidence of such circumstance is eligible to given. For example, in the caseof R vs Richardson, where a person was charged with the rape and murder of agirl, the fact that the girl was alone in her cottage at the time of hermurder is relevant because it provided the occasion in which the crimehappened.2. Cause – Facts that form the cause of facts in issue are relevant. Forexample, A is charged of criminal misappropriation of funds from a bank. Thefact that A was hugely in debt at the time of committing the crime is arelevant fact because it indicates a possible cause of the commission of thecrime. This is similar to motive as given in Section 8. However this may not

always be the case. For example, in the case of Indian Airlines vs MadhuriChaudhury AIR 1965, the report of an Inquiry Commission relating to an aircrash was held relevant under Section 7 as establishing the cause of theaccident.3. Effects - Every act causes some effect that leads to some other happening.These effects not only record the happening of the main act but also throwslight upon the nature of the act. For example, where a person is poisoned, thesymptoms produced are effects of the fact in issue and so are relevant.4. Opportunity - Circumstances which provide an opportunity for the happeningof a fact in issue are relevant. For example, a break from the daily routineof a person may be the opportunity that is used the person to commit thecrime. For example, in R vs Richardson, the fact that Richardson left hisfellow workers at about the time of murder under the pretense of going to asmith’s shop is relevant because it provided an opportunity for the fact inissue, namely her rape and murder, to happen.5. State of Things - Facts which constitute the state of things under which orin the background of which the principle facts happened are relevant. Forexample, in the fact ore Rattan vs Reginum, AIR 1971, a person shot his wifeand his plea was that it was an accident. The fact that he was unhappy withhis wife and was having an affair with another woman, was held to be arelevant fact."Any fact is relevant which shows or constitutes a motive or preparation andconduct of any fact in issue or relevant fact"This statement is taken from Section 8 of Indian Evidence Act, which is asfollows -Section 8 – Motive, preparation and previous or subsequent conduct – Any factis relevant which shows or constitutes a motive or preparation for any fact inissue or relevant fact. The conduct of any party, or of any agent to anyparty, to any suit or proceeding, in reference to such suit or proceeding, orin reference to any fact in issue therein or relevant thereto, and the conductof any person an offence against whom is the subject of any proceeding, isrelevant, if such conduct influences or is influenced by any fact in issue orrelevant fact, and whether it was previous or subsequent thereto.

Explanation 1 - The word "conduct" in this section does not includestatements, unless those statements accompany and explain acts other thanstatements; but this explanation is not to affect the relevancy of statementsunder any other section of this Act.Explanation 2 – When the conduct of any person is relevant, any statement madeto him or in his presence and hearing, which affects such conduct, isrelevant.Illustrations(a) A is tried for the murder of B. The facts that A murdered C, that B knewthat A had murdered C, and that B had tried to extort money from A bythreatening to make his knowledge public, are relevant.(b) A sues B upon a bond for the payment of money. B denies the making of thebond. The fact that, at the time when the bond was alleged to be made, Brequired money for a particular purpose, is relevant.(c) A is tried for the murder of B by poison. The fact that, before the deathof B, A procured poison similar to that which was administered to B, isrelevant.(d) The question is, whether a certain document is the will of A. The factsthat, not long before the date of the alleged will, A made inquiry intomatters to which the provisions of the alleged will relate, that he consultedvakils in reference to making the will, and that he caused drafts of otherwills to be prepared of which he did not approve, are relevant.(e) A is accused of a crime. The facts that, either before or at the time of,or after the alleged crime, A provided evidence which would tend to give tothe facts of the case an appearance favorable to himself, or that he destroyedor concealed evidence, or prevented the presence or procured the absence ofpersons who might have been witnesses, or suborned persons to give falseevidence respecting it, are relevant.(f) The question is, whether A robbed B. The facts that, after B was robbed, Csaid in A’s presence- "the police are coming to look for the man who robbedB," and that immediately afterwards A ran away, are relevant.(g) The question is, whether A owes B rupees 10,000. The facts that A asked Cto lend him money, and that D said to C in A’s presence and hearing- "I advise

you not to trust A, for he owes B 10,000 rupees," and that A went away withoutmaking any answer, are relevant facts.(h) The question is, whether A committed a crime. The fact that A abscondedafter receiving a letter warning him that inquiry was being made for thecriminal, and the contents of the letter, are relevant.(i) A is accused of a crime. The facts that, after the commission of thealleged crime, he absconded, or was in possession of property or the proceedsof property acquired by the crime, or attempted to conceal things which wereor might have been used in committing it, are relevant.(j) The question is, whether A was ravished. The facts that, shortly after thealleged rape, she made a complaint relating to the crime, the circumstancesunder which, and the terms in which, the complaint was made, are relevant. Thefact that, without making a complaint, she said that she had been ravished isnot relevant as conduct under this section, though it may be relevant as adying declaration under section 32, clause (1), or as corroborative evidenceunder section 157.(k) The question is, whether A was robbed. The fact that, soon after thealleged robbery, he made a complaint relating to the offence, thecircumstances under which, and the terms in which, the complaint was made, arerelevant. The fact that he said he had been robbed without making anycomplaint, is not relevant, as conduct under this section, though it may berelevant as a dying declaration under section 32, clause (1), or ascorroborative evidence under section 157.This section provides for the relevancy of three principal facts which arevery important in connection with any case, namely, Motive, Preparation, andConduct.Motive – Motive is the power that impels one to do an act. It is a kind ofinducement for doing the act. Motive by itself is not a crime but is helpfulin establishing guilt. Evidence of motive helps the court connect the accusedwith the deed and is so very relevant. For example, on the murder of an oldwidow, the fact that the accused was to inherit her wealth was held asrelevant as it showed that the accused had the motive to kill her. In anothercase, a woman who a good swimmer had drown and the fact that the accused, her

husband, was having an affair with another woman was held relevant as itexplained the motive behind the murder.Preparation – The acts of preparation for a crime are relevant. Preparation byitself is not a crime (except in certain offenses such as waging a war againstGovt. of India) but the facts that show the preparation tie the preparer tothe actual crime and so are relevant. For example, act of purchasing a poisonshows the preparation of the murder by administering poison.Conduct - The state of mind of a person is often reflected in his conduct andso conduct of a person is a relevant fact. This section makes the conduct ofany party to a civil suite or their agents relevant. In a criminal case, theconduct of the accused before, while, or after doing the act is deemedrelevant. However, two conditions must be fulfilled for the conduct to berelevant -1. The conduct must be in reference to the facts in issue or the facts relatedto them.2. The conduct is such as influences or is influenced by the facts in issue orrelevant facts.When do facts not otherwise relevant become relevantA fact, which does not have any such relation as defined in Section 6 to 55 tothe fact in issue is not a relevant fact and ordinarily evidence cannot begiven for such a fact. However, when an irrelevant fact is such that it makesthe existence or non-existence of a fact in issue highly probable orimprobable, it becomes very important for the case because it helps the courtto determine the truth. Such a fact ought to be brought before the court. Thisis the concept embodied in Section 11. It says the following : Section 11 –Facts not otherwise relevant, are relevant. (1) if they are inconsistent withany fact in issue or relevant fact; (2) if, by themselves or in connectionwith other facts they make the existence or non-existence of any fact in issueor relevant fact highly probable or improbable.Illustrations (a) The question is, whether A committed a crime at Calcutta ona certain day.The fact that, on that day, A was at Lahore, is relevant.The fact that, near the time when the crime was committed, A was at a distance

from the place where it was committed, which would render it highlyimprobable, though not impossible, that he committed it, is relevant.(b) The question is, whether A committed a crime.The circumstances are such that the crime must have been committed either byA, B, C or D. Every fact which shows that the crime could have been committedby no one else and that it was not committed by either B, C or D is relevant.As given in illustrations above, an alibi is a very common example of anirrelevant fact becoming relevant. Indeed, if a person is proved to be not atthe location of the crime at the time of the crime, he cannot have committedthe crime. However, the burden of proof is on the accused and strict evidenceis required to establish such pleas For example, in case of MithileshUpadhyaya vs State of Bihar, 1997, the accused stated that he was in thehospital at the time of crime but did not give any supporting documents. Hisplea was not accepted.It must be noted that this section is quite wide in its scope. It does notplace any restriction upon the range of facts that can be admitted as showinginconsistencies or probabilities. Any fact that makes the existence of a factin issue highly probable or improbable is covered. JAMES FITZAMES STEPHEN, theauthor on Indian Evidence Act in his book Introduction To The Indian EvidenceAct, observed that the facts relevant under S. 11 would, in most cases, berelevant under other sections. The object of drawing the act in this mannerwas that the general ground on which facts are relevant might be stated in somany and popular forms as possible, so that if a fact is relevant itsrelevancy may be easily ascertained.However, many facts can be connected to facts in issue or relevant factsthrough a long chain of ratiocination but that will unnecessarily complicatethe trial and will be detrimental to speedy justice. Thus, to limit the thefacts which are covered in this section, we need to understand which facts arenot relevant. Irrelevant facts are the facts that come under the rules ofexclusion, namely – facts that come under hearsay and facts that come underthe principle – a transaction between two parties ought not be operate to thedisadvantage of the third. Example of facts under hearsay is, "Mr. X said thatMr. Y is corrupt" or "Everybody says a certain officer is corrupt." This fact

is hearsay and is legally irrelevant. Examples of second type of facts include– statements made behind the back of a person against whom they are sought tobe used as evidence, similar unconnected transactions, and opinion of thirdparties. Rule in section 11 makes such facts relevant if they are inconsistentwith the facts in issue or make their existence or non existence highlyprobable. Thus, the only criteria for giving evidence of fact under section 11is that it should make the existence of a fact in issue highly probable orimprobable. In Ram Kumar Panday vs State of MP, 1975, it was held thatimportant omissions would be relevant under this rule.Q. How far is character relevant and admissible in evidence in civil andcriminal cases?A character of a person is a very vague and subjective aspect. It is at bestimprecise and at worst dangerous to draw an inference about the liability of aperson from his character. Therefore, the general rule is that character of aperson is not relevant for establishing guilt. However, there are certainexceptional situations where character of a person is important for the case.Provisions regarding the relevancy of character are specified in Sections 52,53, 54, and 55. There are different rules about relevancy of character incivil and criminal cases.Relevancy in Civil CasesSection 52 lays down a general principle for civil suits that the evidence ofa party’s character cannot be given to show that the conduct attributed to theparty is probable or improbable. This means that a defendant cannot show hisgood character as evidence to prove that his would not have said defamatorythings about the plaintiff and similarly the plaintiff cannot show previousbad character of the defendant as evidence to prove that the defendant musthave said defamatory things about the plaintiff. This principle was laid downin a very old case of Attorney General vs Bowman, 1771. In this case a man wastried for a penal action, and not for a criminal prosecution, for carryingfalse weights and offering to corrupt an officer. He called a witness totestify that he was a man of good character and conduct. This was not admittedby the court. Further, as held in Hollington vs Hewthorn & Co ltd, 1943, whichis also known as rule in Hollington vs Hewthron, previous criminal conviction

cannot be given to show the bad character of a person in a civil suit. In thiscase, an action was brought against the defendant for damages caused by thedefendant’s negligent driving of a motor car. The defendant had also beenprosecuted for the same accident and convicted. The plaintiff sought to giveevidence of this conviction in proof of the fact that he was guilty ofcareless driving. However, the evidence was not accepted as admission on theground that conviction by a criminal court is at best an opinion of that courtthat the defendant was guilty and such opinion is not admissible.Exceptions – 1. When character appears from other relevant evidence – Second partof Section 52 provides that if a fact is otherwise relevant to the case thenthe conclusion about a party’s character may be drawn from such fact. Anotherwise relevant fact cannot be excluded from evidence merely because itincidentally throws light upon a party’s character. For example, a journalistis described as an exploiter and he sues for damages for defamation and thedefendant takes the defense that whatever the defendant has said is true. Now,the defendant will have to give evidence to prove the exploitation which theplaintiff has been practicing. Such evidence will also bring to light the realcharacter of the plaintiff and the court can take note of this.2. When character itself is in issue – Section 54 says that previous badcharacter is not relevant, except in reply. However, Explanation 1 to thissection specifies that this rule does not apply when character itself is afact in issue. For example, in a divorce case on the ground of cruelty, thecruel character of the defendant is a fact in issue and evidence can be givenin support of that previous bad character.3. Determination of damages – Section 55 allows the character of the plaintiffto be considered as relevant for determining the amount of damages that heought to receive. An early English case on this aspect is of Scott vs Sampson,1882. In this case a journalist was suing the defendant for libel. Thedefendant tried to show the character of the plaintiff but the trial judgerefused to admit it. Upon appeal for retrial, J Cave, held that the evidenceshould have been allowed to be admitted. He remarked that if the plaintiffclaims an injury to his reputation, the jury should know whether he is a man

of reputation or not before awarding any damages. If evidence about thecharacter of the plaintiff is not allowed then there will be no differencebetween an honorable person and a cheat. A virtuous woman will be kept at thesame level with a prostitute. To enable a jury to estimate the quantum ofinjury sustained, the knowledge of party’s character is relevant.Relevancy in Criminal CasesSection 53 lays down the general principle that in criminal proceedings thefact that the person accused is of a good character is relevant and Section 54lays down that the fact that the accused is of a bad character is irrelevantin criminal proceedings. Thus, every accused is at a liberty to show that heis a person of good character. As J Cockburn has observed, the fact that a manhas unblemished reputation leads to a presumption that he is incapable ofcommitting the crime for which he is being tried. On the other hand, theprosecution cannot submit evidence to show bad character of the accused.However, as per Section 54, if a person gives evidence of his good characterthen the opposite party is allowed to give evidence of his bad character as areply. Opposite party cannot give evidence of bad character in its originalcase. It can do so only as a reply.Exceptions – 1. Evidence for bad character can be given by the prosecution but only as areply to the evidence of good character.2. When character itself is in issue, evidence of bad character may be given.3. When a fact is otherwise relevant, it can be submitted even if incidentallyreveals the character of the accused.4. The prosecution is allowed to cite a previous conviction as evidence of badcharacter of the accused. Regarding this provision, Lord Denning has observedin the case of Goody vs Oldham Press Ltd, 1967, that previous convictions area class in itself. They are the raw material upon which bad reputation isbuilt up. They have taken place in an open court and are of public knowledge.They are very different from previous misconducts that are not tried in acourt and which therefore might lead to dispute. But previous convictionsoffer not possibility of such disputes and so are relevant and admissible.

What facts need not be provedGenerally, if a fact is alleged by any party to a suit or criminal case, thatparty has to provide proof of the truthfulness of that fact to the court.However, Indian Evidence Act allows the court to accept certain kinds of factswithout any necessity to be proven by any party. These kinds of facts arespecified in Section 56, 57, 58, and 114. The provisions in these sections areas follows -Section 56 – Facts judicially noticeable need not be proved – No fact of whichthe Court will take judicial notice need be proved. This means that if thecourt is bound to take notice of a particular fact, the parties do not havethe burden of proving that fact. It is part of the judicial function to knowthat fact. For example, the court is bound to know the various laws andcustoms of the country. A party does not need to provide any proof whenstating any law. Facts for which a court will take judicial notice arespecified in Section 57. These include Laws in force in India, Public Acts ofParliament, Local, and person acts declared by it to be judicially noticed,Articles of War for Indian armed forces, the rule of the road, land, or sea,that vehicles in India must keep to the left of a road etc, the territoriesunder the dominion of Govt. of India. In all these case, the court may resortappropriate books or documents of reference for its aid. Also, the mattersenumerated in this section are not exhaustive. The section merely providesthat the court must take judicial notices of the facts enumerated in thissection. It does not prohibit the court from takings judicial notice of anyother facts. To understand this point, we need to look at the meaning ofjudicial notice -Meaning of "Taking Judicial Notice" - It means recognition of something asexisting or as being true without having any proof. Judicial notice is basedupon reasons of convenience and expediency. Certain things are so commonlyknown that any ordinary person is aware of it and it is a waste of time toseek any proof for such things. For example, it is a commonly known fact thatcertain parts of MP, Bihar, and AP are naxalite affected or that J&K is aterror striken area. A court does not need to spend time in looking for itsproof. Thus, judicial notice is the cognizance taken by the court itself of

certain matter which are so notorious or clearly established that the evidenceof their existence is unnecessary. For example, in the case of ManagingCommittee of Raja Sidheshwar High School vs State of Bihar, AIR 1993, thecourt took judicial notice of the fact that education in the state wasvirtually crumbled. In another case, court took judicial notice of the factthat several blind persons have acquired great academic distinction. If thecourt is called upon by a person to take judicial notice of a fact, it mayrefuse to do so unless and until such person produces any such book ordocument as it may consider necessary to enable it to do so. The basicrequirement for taking judicial notice is that the fact has to be of a classthat is so generally as to give rise to the presumption that all persons areaware of it. However, a judge cannot bring his personal knowledge intojudicial notice if that knowledge is not public knowledge. Just because ajudge knows something does not make it a thing of common knowledge.J Chandrachud observed that a court does not operate in ivory tower. It cantake cognizance of facts that are happening all around it. Shutting judicialeye to the existence of such facts and matters is in a sense an insult tocommon sense and would reduce the judicial process to a meaningless andwasteful trial. No court therefore need to insist upon a formal proof ofnotorious facts such as date of polls, passing away of an eminent person, orevents that have rocked the nation.Section 58 – Facts admitted need not be proved – No fact need be proved in anyproceeding which the parties thereto or their agents agree to admit at thehearing, or which, before the hearing, they agree to admit by any writingunder their hands, orwhich by any rule of pleading in force at the time they are deemed to haveadmitted by their pleadings. Provided that the Court may, in its discretion,require the facts admitted to be proved otherwise than by such admissions.This basically means that if a fact has been admitted by a party, the otherparty need not provide proof of that fact. For example, admissions made inwritten statements, or things said before and accepted to be said in the trialneed not be proved. in averments made in a petition that have not beencontroverted by the respondent carry the weight of a fact admitted.

However, an admission may not necessarily constitute conclusive evidence ofthe fact admitted. Therefore, this section allows the court to ask for someother proof of the admitted fact. This is a discretionary power of the court.Section 114 – Court may presume existence of certain facts – The Court maypresume the existence of any fact which it thinks likely to have happened,regard being had to the common course of natural events, human conduct andpublic and private business, in their relation to the facts of the particularcase. For example, a person may be presumed to be dead if his whereabouts arenot known for seven years. Such facts need not be proven.General Concept of Admission -In general, Admission is a voluntary acknowledgment of a fact. Importance isgiven to those admissions that goes against the interests of the person makingthe admission. For example, when A says to B that he stole money from C, Amakes an admission of the fact that A stole money from C.This fact isdetrimental to the interests of A. The concept behind this is that nobodywould accept or acknowledge a fact that goes against their interest unless itis indeed true. Unless A indeed stole money from C, it is not normal for A tosay that he stole money from C. Therefore, an admission becomes an importantpiece of evidence against a person. On the other hand, anybody can makeassertions in favor of themselves. They can be true or false. For example, Acan keep on saying that a certain house belongs to himself, but that does notmean it is necessarily true. Therefore, such assertions do not have muchevidentiary value.Admission as per Indian Evidence Act – Section 17 of Indian Evidence Act defines Admission as thus – An admission isa statement, oral or documentary, or contained in electronic form, whichsuggests any inference as to any fact in issue or relevant fact, and which ismade by any of the persons and under the circumstances hereinafter mentioned.As per this definition, any statement, which suggests any inference about anyfact in issue or relevant fact, and which is made by persons under certaincircumstances, is an admission. These circumstances are mentioned in Section18 to 20 as follows -Section 18 - Admission by party to proceeding or his agent; by suitor in

representative character; by party interested in subject-matter; by personfrom whom interest derived – Statements made by a party to the proceeding, orby an agent to any such party, whom the Court regards, under the circumstancesof the case, as expressly or impliedly authorized by him to made them, areadmissions.By suitor in representative character – Statements made by parties to suitssuing or sued in a representative character, are not admissions, unless theywere made while the party making them held that character.Statements made by -(1) by party interested in subject matter; persons who have any proprietary orpecuniary interest in the subject-matter of the proceeding and who make thestatement in their character of persons so interested; or(2) by person from whom interest derived; persons from whom the parties to thesuit have derived their interest in the subject-matter of the suit, areadmissions, if they are made during the continuance of the interest of thepersons making the statements.According to this section, statements made a persons who are directly orindirectly a party to a suit are admissions. Thus, statements of an agent of aparty to the suits are also admissions. Statements made by persons who aresuing or being sued in a representative character are admissions, only ifthose statements were made by the party while being in that representativecharacter. Similarly, statements made by persons who have a pecuniary interestin the subject matter of the proceeding and statements made by persons fromwhom such interest is derived by the parties in suit, are also admissions ifthey are made while the maker had such an interest. For example, A bought apiece of land from B. Statements made by B at the time when B was the owner ofthe land are admissions against A.Section 19 - Admissions by persons whose position must be proved as againstparty to suit- Statements made by persons whose position or liability it isnecessary to prove as against any party to the suit, are admissions, if suchstatements would be relevant as against such persons in relation to suchposition or liability in a suit brought by or against the made if they aremade whilst the person making them occupies such position or is subject of

such liability.Illustration -A undertakes to collect rent for B.B sues A for not collecting rent due from C to B.A denies that rent was due from C to B.A statement by C that he owned B rent is an admission, and is a relevant factas against A, if A denies that C did owe rent to B.Section 20 - Admission by persons expressly referred to by party to suit –Statements made by persons to whom a party to the suit has expressly referredfor information in reference to a matter in dispute are admissions.Illustration – The question is, whether a horse sold by A to B is sound A says to B "Go andask C. C knows all about it" C’s statement is an admission.To be considered an admission, it is not necessary for a statement to give adirect acknowledgment of liability. It is sufficient even if the statementsuggests an inference about the liability. For example, A is charged withmurder of B by giving poison. The statement by A that he purchased a bottle ofpoison is admission because it suggests the inference that he might havemurdered B using that poison, even though it does not clearly acknowledge thefact that A murdered B. In the case of Chekham Koteshwara Rao vs C Subbarao,AIR 1981, SC held that before the right of a party can be taken to be defeatedon the basis of an alleged admission by him, the implication of the statementmust be clear and conclusive. There should not be any doubt orambiguity.Further, it held that it is necessary to read all of his statementstogether. Thus, stray elements elicited in cross examination cannot be takenas admission.“Admission cannot be proved by or on behalf of any person who makes it”. It is important to note that Indian Evidence Act does not require that anadmission be of statements that are against the interests of the maker. Allthat is necessary is that the statement should suggest some inference as to afact in issue or relevant to the issue, even if the inference is in theinterest of the maker of the statement. Self serving prior statements are alsoadmissions. For example, A person can say to B that he did not steal money

from C. This is a self serving statement and is a valid admission. Does thismean that a person can make self serving statements and escape from hisliability? The answer is no because such self serving admissions are governedby the provisions of Section 21, which says the following -Section 21 – Proof of admissions against persons making them, and by or ontheir behalf - Admissions are relevant and may be proved as against the personwho makes them, or his representative in interest; but they cannot be provedby or on behalf of the person who makes them or by his representative ininterest, except in the following cases -(1) An admission may be proved by or on behalf of the person making it, whenit is of such a nature that, if the person making it were dead, it would berelevant as between third persons under section 32.(2) An admission may be proved by or on behalf of the person making it, whenit consists of a statement of the existence of any state of mind or body,relevant or in issue, made at or about the time when such state of mind orbody existed, and is accompanied by conduct rendering its falsehoodimprobable.(3) An admission may be proved by or on behalf of the person making it, if itis relevant otherwise than as an admission.Illustrations(a) The question between A and B is, whether a certain deed is or is notforged. A affirms that it is genuine, B that it is forged. A may prove astatement by B that the deed is genuine, and B may prove a statement by A thatdeed is forged; but A cannot prove a statement by himself that the deed isgenuine, nor can B prove a statement by himself that the deed is forged.(b) A, the captain of a ship, is tried for casting her away. Evidence is givento show that the ship was taken out of her proper course. A produces a bookkept by him in the ordinary course of his business showing observationsalleged to have been taken by him from day to day, and indicating that theship was not taken out of her proper course. A may prove these statements,because they would be admissible between third parties, if he were dead, undersection 32, clause (2).(c) A is accused of a crime committed by him at Calcutta. He produces a letter

written by himself and dated at Lahore on that day, and bearing the Lahorepost-mark of that day. The statement in the date of the letter is admissible,because,if A were dead, it would be admissible under section 32, clause (2).(d) A is accused of receiving stolen goods knowing them to be stolen. Heoffers to prove that he refused to sell them below their value. A may provethese statements, though they are admissions, because they are explanatory ofconduct influenced by facts in issue.(e) A is accused of fraudulently having in his possession counterfeit coinwhich he knew to be counterfeit. He offers to prove that he asked a skillfulperson to examine the coin as he doubted whether it was counterfeit or not,and that thatperson did examine it and told him it was genuine. A may prove these facts forthe reasons stated in the last preceding illustration.From the above illustrations it is clear that the general rule is that aperson is not allowed to prove his own admissions. Otherwise, as observed in Rvs Hardy, 1794, every man, if he were in difficulty, or in view of one, mightmake declarations to suit his own case and then lodge them in proof of hiscase. This principle, however, is subject to some important exceptions, whichallow a person to prove his own statements. These are as follows -Exception 1 - When the statement should have been relevant as dyingdeclaration or as that of a deceased person under Section 32. Section 32 dealswith the statement of persons who have died or who otherwise cannot comebefore the court. The statement of any such person can be proved in any caseor proceeding to which it is relevant whether it operates in favor of oragainst the person making the statement. In circumstances stated in Section 32such a statement can be proved by the maker himself if he is still alive. Inthe situation described in Illustration (b), in a case between the shipownerand the insurance company, the contents of the log book maintained by thecaptain would have been relevant evidence if the captain were dead underSection 32. Therefore, the captain is allowed to prove the contents of the logbook even in the case involving him and the shipowners.Exception 2 - Statements 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 orbody is a fact in issue or is relevant fact and if the statement was made atthe time when such state of mind or body existed and further if the statementis accompanied with his conduct that makes the falsehood of the statementsimprobable. In Illustration (d), the statements of A that show that he refusedto sell them below their value, are self serving admissions. However, it isacceptable because they reflect A’s state of mind and were associated with aconduct of refusing to sell that makes their falsehood improbably.Exception 3 - The last exception allows a person to prove his own statementwhen it is otherwise relevant under any of the provisions relating torelevancy. There are many cases in which a statement is relevant not becauseit is an admission but because it establishes the existence or non-existenceof a relevant fact or a fact in issue. In all such cases a party can prove hisown statements. These cases are covered by the following sections -Section 6 - When a statement is made relevant by the doctrine of res gestaei.e. due to part of the same transaction. For example, immediately after aroad accident, if the victim has made a statement to the rescuer about thecause of the accident, he can prove that statement because it is part of thesame transaction.Section 8 – A statement may be proved by or on behalf of the person make itunder Section 8 if it accompanies or explains acts other than statements or ifit influences the conduct of a person whose conduct is relevant. For example,where A says to B, "You have not paid my money back", and B walks away insilence, A may prove his own statement because it has influenced the conductof a person whose conduct is relevant.Section 14 - When the statement explains his state of mid or body or bodilyfeeling when any such thing is relevant or is in issue, it can be proved byhimself. For example, where the question is whether a person has been guiltyof cruelty towards his wife, he may prove his statements made shortly beforeor after the alleged cruelty which explain his love and affection for and hisfeeling towards his wife.General Concept of Confession -The term confession is not defined anywhere in Indian Evidence Act. But it is

thought that an Admission in case of a criminal matter is Confession. The samewas stated by STEPHEN in his digest that that a confession is an admissionmade at anytime by a person charged with a crime, stating or suggesting theinference that he committed the crime. However, Privy Council, in caseof Pakala Narayan Swami vs Emperor AIR 1939, did not accept this definition.In this case Lord ATKIN observed that no statement that contains selfexculpatory matter can amount to a confession. Further, a confession musteither admit in terms of the offence or at any rate substantially all thefacts which constitute the offence. An offence of a gravely incriminatingfact, is not in itself a confession. For example, an admission that theaccused is the over of and was in recent possession of the knife or revolverwhich caused death with no explanation of any other man’s possession, is not aconfession even though it strongly suggests that the accused has committed themurder.The decision by Privy Council in Pakala Narayan Swami case was approved by SCin the case of Palvinder Kaur vs State of Punjab, AIR 1952. In this case,Palvinder was on trial for murder of her husband along with another, who allthe time remained absconding. In her statement to the court, her husband washobbyist photographer and used to keep handy photo developing material whichis quick poison. On this occasion, he was ill and she brought him somemedicine and the medicine was kept near the liquid developer and by mistakeswallowed the liquid and died. She got afraid and with the help of theabsconder, she dumped the body in the well. The statement, thus, partiallyadmitted guilt and partially showed innocence. Here, the lower courts sortedout the exculpatory part and convicted her on the inculpatory part. However,SC rejected this approach and held that the rule regarding confession andadmission is that they must either be accepted or rejected as whole.Difference between Confession and AdmissionThis brings us to the main difference between admission and confession. Anadmission is a statement that may or may not be a conclusive evidence of afact in issue or relevant fact but to be a confession, the admission mustconclusively prove the guilt of the maker of the admission. For example, inthe case of Veera Ibrahim vs State of Maharashtra, AIR 1976, a person being

prosecuted under Customs Act told the customs officer that he did not knowthat the goods loaded in his truck were contraband nor were they loaded withhis permission. SC held that the statement was not a confession but it didamount to admission of an incriminating fact that the truck was loaded withcontraband material.Thus, a statement which may not amount to confession may still be relevant asadmission. Only a voluntary and direct acknowledgment of guilt is confession,but when a confession fall short of actual admission of guilt, it maynevertheless be used as evidence under Section 21.Regarding admission that contains multiple sentences, Justice Thomas, of SCstated the law in the case of Lokeman Shah vs State of WB, AIR 2001 as follows-The test of discerning whether a statement recorded by a judicial magistrateunder Section 164 of CrPC, is confessional or not is not to determine it bydissecting the statement into different sentences and then to pick out some asnot inculpative.The statement must be read as a whole and then only the courtshould decide whether it contains admissions of his inculpatory involvement inthe offence. If the result of that test is positive the the statement isconfessional otherwise not.Classification of Confessions A confession may occur in any form. It may be made to the court itself, or toanybody outside the court. In this manner, a confession may be divided intotwo categories – Judicial Confession and Extra-judicial Confession.Judicial Confession – A judicial confession is a confession that is made infront of a magistrate or in a court. It may be made in the course of ajudicial proceeding.Extra – Judicial Confession – An extra-judicial confession is a confessionthat is made by the party elsewhere than before a magistrate or in a court. Itis admissible in evidence under Section 21 and it is proved by the witnesseswho had heard the speaker’s words constituting the confession.A confession ma even consist of conversation with oneself. For example, incase of Sahoo vs State of UP, AIR 1966, an accused who was charged with murderof his daughter in law with whom he was always quarreling was seen on the day

of the murder going out of the home saying words to the effect, "I havefinished her and with her the daily quarrels.". The statement was held to be avalid confession because it is not necessary for the relevance of a confessionthat it should communicate to some other person.Relevancy of Confessions -Confessions when Not RelevantA confession becomes irrelevant and thus, inadmissible, in situationsdescribed in the Sections 24, 25, and 26.1. Section 24 – Confession caused by inducement, threat, or promise from aperson in authority – Confession made by an accused is irrelevant in acriminal proceeding if the making of the confession appears to the court tohave been caused by inducement, threat, or promise, made by any person inauthority and that in the view of the court such inducement, threat, orpromise gives reasonable ground to the person that by making the confession hewould gain any advantage or avoid any evil of a temporary nature in referenceto the proceedings against him.The following conditions are necessary to attract the provisions of thissection -1. The confession must have been made because of inducement, threat, orpromise – A confession should be free and voluntary. If it flows from fear orhope, it is inadmissible. In deciding whether a particular confession isbecause of threat, inducement, or promise, the question has to be consideredfrom the point of view of the accused as to how the inducement, threat orpromise would operate in his mind. For example, where the accused was told bythe magistrate, "tell me where the things are and I will be favorable to you",it was held to be inadmissible.

2. 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 everysuch person who can reasonably hold a sway over the investigation or trial.Thus, government officials such as a senior military officer, policeconstable, warden, clerk of the court, all have been held to be a person inauthority. Even private persons such as the wife of the employer was also heldto be a person in authority.

3. It should relate to the charge in question – This requirement isspecifically stated in the section, which says that the inducement must have"reference to the charge against the accused person". Thus, in the case ofEmpress vs Mohan Lal, 1881, the confession by a person who was threatened tobe removed from his caste for life, was held to be relevant because the threatdid not have anything to do with the charge. The position in English law isnot same. In fact, J ATKINSON has said that this rule is illogical andunreasonable. For example, a daughter is accused of shoplifting and later onher mother is also accused of the same offence. Now, if the mother is inducedto confess by saying that if she confesses to the charge, proceedings againsther daughter will be dropped, this will most like lead to an untrueconfession. Yet, it would be valid under this section.

4. It should hold out some material, worldly, or temporal benefit or advantage– The inducement should be about some tangible benefit. For example, areference to spiritual benefit such as, taking an accused to a temple toconfess does not fall in this category but a promise to reduce the sentencewould fall under it.

It is necessary that all the conditions must exist cumulatively. Further, thissection merely requires that if it "appears to the court" that the confessionwas improperly obtained, it becomes inadmissible i.e. if the circumstancescreate a probability in the mind of the court that the confession isimproperly obtained, it may hold it inadmissible.2. Confessions to Police – It is presumed that police holds a position ofgreat influence over the actions of the the accused and so there is a highprobability that confessions obtained by the police are tainted with threat,or inducement. Further, it is important to prevent the practice of oppressionor torture by the police to extract the confession. This principle is espousedby Sections 25 and 26, which are as follows -Section 25 – Confession to police-officer not to be proved - No confessionmade to a police-officer shall be proved as against a person accused of anyoffence. This section is very broadly word. It strictly disallows anyconfession made to the police officer as inadmissible no matter what the

circumstances. In the case of Raja Ram vs State of Bihar, AIR 1964, SC heldthat the term police-officer is not be be interpreted strictly but must begiven a more comprehensive and popular meaning. However, these words are alsonot to be construed in so wide sense as to include a person on whom only somepowers exercised by the police are conferred. The test for determining whethersuch a person is a police officer, is whether the powers are such as wouldtend to facilitate the obtaining of confession by him from a suspect. Thus, achowkidar, police patel, a village headman, an excise officer, are allconsidered to be police officer.Section 26 – Confession by accused while in custody of police not to be provedagainst him - No confession made by any person whilst he is in the custody ofa police-officer, unless it be made in the immediate presence of a Magistrate,shall be proved as against such person. This section further tries to ensurethat the confession is not extracted due to the influence of the police. Anyconfession made while the maker is in custody of the police is invalid unlessit is made in the immediate presence of a magistrate. The presence of amagistrate is, by a legal fiction, regarded as equivalent to removal of policeinfluence and the statement is therefore considered to be free from policeinfluence.Mere absence of the police officer from a room where confession is taken doesnot terminate his custody of the accused. The word custody does not just meanformal custody but includes such state of affairs in which the accused can besaid to have come into the hands of a police officer or can be said to havebeen under some sort of surveillance or restriction.Section 27 provides another exception when a confession made to the police isadmissible. This is when a confession leads to the discovery of a factconnected with the crime. The discovery assures that the confession is trueand reliable even if it was extorted. In order to ensure the genuineness ofrecoveries, it has become a practice to effect the recoveries in the presenceof witnesses.Constitutionality of Section 27 – Indian Evidence Act was written before theConstitution of India and Article 20(3) of the constitution says that noperson shall be compelled to be a witness against himself. This article

seemingly made Section 27 unconstitutional. SC considered this issue in thecase of Nisa Sree vs State of Orissa AIR 1954, and held that it is notviolative of Article 20(3). A confession may or may not lead to the discoveryof an increminating fact. If the discovered fact is non incriminatory, thereis no issue and if it is self-incriminatory, it is admissible if theinformation is given by the accused without any threat.Confessions when Relevant – The following three types of confession are relevant and admissible -1. Section 27 – Confession leading to a discovery - Explained above.2. Section 28 – Confessions made after removal of threat - If the confessionis obtained after the impression caused by threat, inducement, or promise isremoved in the opinion of the court, then the confession is admissible.3. Section 29 – Confession made under promise, deception,etc. – If aconfession is otherwise relevant, it does not become irrelevant merely becauseit was made -(a) under a promise of secrecy or(b) in consequences of a deception practiced on the accused person for thepurpose of obtaining it or(c) while the accused was drunk or(d) while answering the questions he need not have answered or(e) when the accused was not warned that he was not bound to make suchconfession 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 orpractice of any artifice does not invalidate a confession. However, aconfession obtained by mere trickery does not carry much weight. For example,in one case, an accused was told that somebody saw him doing the crime andbecause of this the accused made a confession. The court held the confessionas inadmissible. In Rex vs Shaw, A was accused of a murder and B, a fellowprisoner, asked him about how he did he do the murder. A said, "Will you beupon your oath not to mention what I tell you?", to which B promised on hisoath that he will not tell anybody. A then made a statement. It was held thatit was not such an inducement that would render the confession inadmissible.The five circumstances mentioned in the section are not exhaustive.

Law regarding competency of a witness? (Sections 118-121) Can a wife be acompetent witness against her husband? (Section 120)The modern judicial system is based on evidence. The knowledge of how an eventhappened is arrived at by the court through witnesses. As BENTHAM said,"Witnesses are the eyes and ears of justice." The court gives its findingbased on the evidence given by witnesses. It is important, therefore, tounderstand who can and cannot be a competent witness. Section 118 of IndianEvidence Act, 1872, contains the provisions for determining a competentwitness.Section 118. Who may testify? – All persons shall be competent to testifyunless the Court considers that they are prevented from understanding thequestion put to them, or from giving rational answer to those questions, bytender years, extreme old age, disease, whether of body and mind, or any othercause of the same kind.Explanation – A lunatic is not incompetent to testify, unless he is preventedby his lunacy from understanding the question put to him and giving rationalanswers to him.As is evident from Section 118, in general, nobody is barred from being awitness as long as he is able to understand the questions that are put to himas well as is able to give rational replies to those questions. There may beseveral reasons because of which a person may not be able to comprehend thequestions and/or is unable to reply coherently. This section does not attemptto define all such reasons but gives examples of such reasons such as youngage (in case of a child), mental illness, or extreme old age. It is up to thecourt to determine whether a person is able to understand the questions orgive rational answers. Thus, competency is a rule, while incompetency is anexception. Even a lunatic is considered a competent witness if his lunacy doesnot prevent him from understanding the questions and giving rational answers.Child WitnessA young child, if he is able to understand the questions and is able to replyrationally, is a competent witness even if he is of a tender age. For example,in the case of Jai Singh vs State, 1973, Cr LJ, a seven year old girl who wasthe victim of attempted rape was produced as a witness and her testimony was

held valid.It has been held in several early cases that a child under the age of sevenyears can be a competent witness if, upon the strict examination of the court,the child is found to understand the nature and consequences of an oath. Forexample, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the onlyeye witness of a murder was made a witness. She appeared to be intelligent andwas able to answer questions frankly and without any hesitation. However, shewas not able to understand the meaning of oath. It was held that her unswornevidence was admissible in the given circumstances. The same was observedin Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, where the accusedwas charged with the offence of rape of a girl of 8 years of age. It was heldthat ommission of oath only affects the credibility of the witness and notcompetency of the witness. The question of competency is determined by section118, and the only ground that is given for incompetency is the inability tocomprehend the questions or inability to give rational answers.The supreme court however has emphasised the need for carefully evaulating thetestimony of a child. Adequate corroboration of his testimony must be lookedfrom other evidence.Dumb WitnessSection 119 – A witness who is unable to speak may give his evidence in anyother manner in which he can make it intelligible, as by writing or by signs;but such writing must be written and the signs made in open Court. Evidence sogiven shall be deemed to be oral evidence.Competency of a wife as a witness against her husbandAs per Section 120, in all civil proceedings the parties to the suit, and thehusband or wife of any party to the suit, shall be competent witnesses.Further, in criminal proceedings against any person, the husband or wife ofsuch person, respectively, shall be a competent witness.Thus it is pretty clear that the spouse of a person can be a competent witnessagainst that person. For example, in the case of Shyam Singh vs ShaiwaliniGhosh, AIR 1947, Calcutta HC held that Husband and wife are both competentwitness against each other in civil and criminal cases. They are competenetwitness to prove that there has been no conjugation between them during

marriage.Although not mentioned in the act, it has been held in several cases thatprovisions of this section are subject to Section 122, which makes thecommunication between a husband and wife privileged.Competency of AccusedAs per Section 315 of Cr P C, an accused is a competent witness. He can givenevidence on his behalf, but if he does not, no comment can be made against theaccused or adverse inference be drawn against him.Competency of an AccompliceAccomplice – An accomplice is a person who has taken part, whether big orsmall, in the commission of an offence. Accomplice includes principles as wellas abettors.Not an Accomplice - person under threat commits the crime, person who merelywitnesses the crime, detectives, paid informers, and trap witnessesGenerally, a small offender is pardoned so as to produce him as a witnessagainst the bigger offender. However, evidence by an accomplice is not reallyvery reliable because – 1) he is likely to swear falsely in order to shiftblame, 2) as a participator in a crime, he is a criminal and is likelyimmoral, and so may disregard the sanctity of oath, and 3) since he givesevidence in promise of a pardon, he will obviously be favorable toprosecution.Even so, an accomplice is allowed to give evidence. As per Section 133, he isa competent witness against the accused and a conviction based on his evidenceis not illegal merely because his evidence has not been corroborated. At thesame time, Section 114 (b) contains a provision that allows the Court topresume that an accomplice is unworthy of credit, unless he is corroborated inmaterial particular. The idea is that since such a witness is not veryreliable, his statements should be or verified by some independent witness.This is interpreted as a rule of caution to avoid mindless usage of evidenceof accomplice for producing a conviction.Since every case is different, it is not possible to precisely specify aformula for determining whether corroborative evidence is required or not. Sosome guiding principles were propounded in the case of R vs Baskerville, 1916.

According to this procedure -1. It is not necessary that there should be an independent confirmation ofevery detail of the crime related by the accomplice. It is sufficient if thereis a confirmation as to a material circumstance of the crime.2. There must at least be confirmation of some particulars which show that theaccused committed the crime.3. The corroboration must be an independent testimony. i.e one accomplicecannot corroborate other.4. The corroboration need not be by direct evidence. It may be throughcircumstantial evidence.This rule has been confirmed by the Supreme Court in Rameshwar vs State ofRajasthan, 1952.Accomplice and Co-accusedThe confession of a co-accused (S. 30) is not treated in the same way as thetestimony of an accomplice because -1. The testimony of an accomplice is taken on oath and is subjected to crossexamination and so is of a higher probative value.2. The confession of a co-accused can hardly be called substantive evidence asit is not evidence within the definition of S. 3. It must be taken intoconsideration along with other evidence in the case and it cannot alone formthe basis of a conviction. While the testimony of an accomplice alone may besufficient for conviction.Different stages in testimony of a witness. (Sections 137, 138)Witnesses are examined by the parties or their advocates by the way of askingquestions with a view to elicit responses that build up a factual story. To beable to derive meaningful conclusions from the statements of the witnesses, itis necessary to follow a standard pattern in presenting them and questioningthem before the court. It will also be impractical and time consuming to callwitnesses multiple times at random. Besides causing severe inconveniences tothe witnesses, it will also not be helpful in arriving at a decision. Thus,standard procedure for examining a witness must followed so that a trial canproceed swiftly. This procedure is described inSections 137 and 138.

Stages of ExaminationSection 137 defines three stages of examination of a witness as follows -Examination-in-chief – The examination of a witness, by the party who callshim, shall be called his examination-in-chief.Cross-examination – The examination of a witness by the adverse party shall becalled his cross-examination.Re-examination – The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.Section 138 specifies the order of examinations – Witnesses shall be firstexamined-in-chief then (if the adverse party so desires) cross-examined, then(if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need notto be confined to the facts which the witness testified on his examination-in-chief. Direction of re-examination – The re-examination shall be directed tothe explanation of matters referred to in cross-examination, and if new matterby permission of the Court, introduced in re-examination, the adverse partymay further cross-examine upon that matter.Let us discuss these stages one by one -1. Examination in Chief – The first stage is where a witness is examined bythe party who has called it. In this stage, the goal of the party is to makethe witness make statements that prove the facts alleged by the party. Theparty asks questions, the responses to which are expected to support thefactual story submitted by the party.2. Cross Examination – The second stage is where the witness is cross examinedby the opposite party. In this stage the goal of the party which is examiningthe witness is to poke holes in the story of the witness with a view todiscredit the evidence that the witness has given. However, when it isintended to suggest to the court that the witness is not speaking the truth ona particular point, it is necessary to direct his attention to it by questionsin this stage. The witness must then be given an opportunity to explain theapparant contradictions while he is in the witness box. For example, in thecase of Ravinder Kumar Sarma vs State of Assam, 1999, the appallant sued twopolice officers for damages for malicious prosecution. The appallant put

questions in that regard to one of them who denied the allegation that hedemanded a bribe. He did not put the allegation on the other police officer.It was held that the appallant had not properly substantiated the allegation.Scope of Cross Examination – As mentioned in Section 138 the cross-examinationmust relate to relevant facts. However, the cross-examination need not beconfined to the facts which the witness testified on his examination-in-chief.Thus, the scope of cross examination is quite wide. As per Section 146, theobjective of the questions asked in cross examination is – a) to test theveracity of the witness, b) to discover who the person is and what is hiscondition in life and c) to shake his credit by injuring his character.3. Re-examination – The final stage, is where the witness is re examined bythe party who called the witness if, in the cross examination stage,inconvenient answers are given by the witness. The goal in this stage is tonullify the effect of such answers and to reestablish the credibility of theevidence given by the witness.The Re Examination is not confined to the matters discussed in Examination inChief. New matter may be elicited with the permission of the court and in sucha case, the opposite party can again Cross examin the witness on new matters.In Tej Prakash vs State of Haryana, 1996, it was held that tendering a witnessfor cross examination without examination in chief is not warranted by law andit would amount to failure to examine the witness at the trial.Section 138 provides a valuable right to cross examin a witness and Section146 further gives the right to ask additional questions to shake thecredibility of the witness. In case of Rajendra vs Darshana Devi, 2001, it washeld that if a party has not taken advantage of these provisions, he cannot beallowed to complain about the credibility of the witness.Q. What is a leading question? (Section 141) When such questions cannot andwhen such questions can be asked? (Sections 142, 143) According to BENTHAM, a Leading Question is a question that indicates to thewitness the real or supposed fact which the examiner expects or desires tohave confirmed with the witness. For example, "did you not work with Mr X forfive years?", "is your name so and so", "did you not see the accused leave thepremise at 8 PM?", are all leading questions. Section 141 defines a Leading

question thus – Any question suggesting the answer which the person putting itwishes or expects to receive is called a leading question. In the previousexamples, it is clear that the question itself contains the answer and theexaminer is merely trying to confirm those answers with the witness and arethus leading questions.When leading questions may and may not be asked -As per Section 142 – Leading questions must not, if objected to by the adverseparty, be asked in an examination-in-chief, or in re-examination, except withthe permission of the Court. The Court shall permit leading questions as tomatters which are introductory or undisputed or which have, in its opinion,been already sufficiently proved. Further, Section 143 provides that Leadingquestions may be asked in cross-examination.The purpose of Examination in Chief of a witness is to enable the witness totell the court the relevant facts of the case. A question should be put to himabout a relevant fact and he should be given ample scope to answer thequestion from the knowledge that he posses about the case. The witness shouldbe left to tell the story in his own words. However, as seen in the previousexample, instead of eliciting information from a witness, information is beinggiven to the witness. This does not help the court arrive at the truth. Ifthis type of questioning is allowed in Examination in Chief, the examinerwould be able to construct a story through the mouth of the witness that suitshis client. This affects the rights of the accused to a fiair trial asenshrined in Article 21 of the constitution and is therefore not allowed. Aquestion, "do you not live at such and such address?", amply gives hint to thewitness and he will immediately say yes. Instead, the question should be,"where do you live?" and he then should be allowed to answer in his own words.Normally, the opposite party raises an objection when a leading question inasked in Examination in Chief or Re Examination. If the examining party thendesires, it can request the court for its permission to ask the question andthe court permits the question if it pertains to matters which areintroductory, matters on which there is no dispute, or matters which arealready proven.Overall, a leading question can be asked in the following situations -

1. In Examination in Chief and Re – examination if -a) the opposite party does not object orb) the question is about the matter which is introductory, undisputed, or isalready proven orb) the court permits the question overruling the objection of the oppositeparty2. In Cross examination.

Q. Can a witness refuse to answer a question? (Section 121-129) / When can awitness be compelled answer a question? (Section 147-148) ? Whatcommunications are privileged?In general, if the question is relevant to the case, the witness is bound toanswer it. This is provided by Section 147, which says that if any questionrelates to a matter relevant to the suit or proceeding, the provisionsof Section 132 shall apply. Section 132 provides that a witness is not excusedfrom answering a question even if the question incriminates the witness. Toensure that the witness speaks the truth, proviso to Section 132 provides thatif the answer of the witness incriminates the witness, such answer shall notbe used to arrest or prosecute him, except 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 toanswer a question. There are also situations where a witness is prohibitedfrom answering certain kind of questions. These are situations that arecritical to the foundation of a moral society. These situations are providedin the form in previledges to a witness in Sections 121 to 129.(Privileged Communications – JMSOCPIVL)121. Judges and Magistrate – No Judge or Magistrate shall, except upon thespecial order of some Court of which he is subordinate, be compelled to answerany questions as to his own conduct in Court as such Judge or Magistrate, oras to any thing which came to his knowledge in Court as such Judge orMagistrate but he may be examined as to other matters which occurred in hispresence whilst he was so acting.Illustrations(a) A, on his trail before the Court of Session, says that a deposition was

improperly taken by B, the Magistrate. B cannot be compelled to answerquestion as to this, except upon thee special order of a superior Court.(b) A is accused before the Court of Session of having given false evidencebefore B, a Magistrate. B, cannot be asked what A said, except upon thespecial order of the superior Court.(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as towhat occurred.122. Communications during marriage - No person who is or has been married,shall be compelled to disclose any communication made to him during marriageby any person to whom he is or has been married; nor shall he be permitted todisclose any such communication, unless the person who made it, or hisrepresentative in interest, consents, except in suits between married persons,or proceedings in which one married person is prosecuted for any crimecommitted against the other.As held in M C Verghese vs T J Ponnan, AIR 1976, SC held that it is notmaterial whether the relationship between husband and wife subsists at thetime of giving the evidence. So, where a woman was divorced from first husbandand married another person, and was called to provide evidence of acommunication between her and her first husband that happened while they weremarried, she was deemed incompetent to do so.123. Evidence as to affairs of State – No one shall be permitted to give anyevidence derived from unpublished official records relating to any affairs ofState, except wit the permission of the officer at the head of the departmentconcerned, who shall give or withhold such permission as he thinks fit.124. Official communications - No public officer shall be compelled todisclose communications made to him in official confidence, when he considersthat the public interests would suffer by the disclosure.125. Information as to commission of offences - No Magistrate or Police-officer shall be compelled to say whence he got any information as to thecommission of any offence, and no Revenue-Officer shall be compelled to saywhence he The Orient Tavern any information as to the commission of anyoffence against the public revenue.

Explanation – "Revenue-Officer" in this section means any officer employed inor about the business of any branch of the public revenue.126. Professional communications – No barrister, attorney, pleader or vakil,shall at any time be permitted, unless with his client’s express consent todisclose any communication made to him in the course and for thee purpose ofhis employment as such barrister, pleader, attorney or vakil, by or on behalfof his client, or to state the contents or condition of any document withwhich he has become acquainted in the course and for the purpose of hisprofessional employment or to disclose any advice given by him to his clientin the course and for the purpose of such employment.Provided that nothing in this section shall protect from disclosure -1. Any communication made in furtherance of any illegal purpose,2. Any fact observed by any barrister, pleader, attorney or vakil, in thecourse of his employment as such showing that any crime or fraud has beencommitted since the commencement of his employment. It is immaterial whetherthe attention of such barrister, pleader, attorney or vakil was or was notdirected to such fact by or on behalf of his client.Explanation – The obligation stated in this section continues after theemployment has ceased.Illustrations(a) A, a client, says to B, an attorney – "I have committed forgery and I wishyou to defend me." As the defense of a man known to be guilty is not acriminal purpose, this communication is protected from disclosure.(b) A, a client, says to B, and attorney – "I wish to obtain possession ofproperty by the use of forged deed on which I request you to sue."The communication being made in furtherance of criminal purpose, is notprotected from disclosure.(c) A, being charged with embezzlement retains B, an attorney to defend him,In the course of the proceedings B observes that an entry has been made in A’saccount book, charging A with the sum said to have been embezzled, which entrywas not in the book at the commencement of his employment.This being a fact observed by B in the course of his employment showing that afraud has been committed since the commencement of the proceedings, it is not

protected from disclosure.127. Section 126 to apply to interpreters etc. – The provisions of Section 126apply to interpreters, and the clerks or servants of barristers, pleaders,attorneys and vakils.128. Privilege not waived by volunteering evidence - If any party to a suitgives evidence therein at his own instance or otherwise, he shall not bedeemed to have consented thereby to such disclosure as is mentioned in Section126, and if any party to a suit or proceeding calls any such barrister,pleader, attorney or vakil as a witness, he shall be deemed to have consentedto such disclosure only if he questions such barrister, attorney or vakil onmatters which, but for such question, he would not be at liberty to disclose.129. Confidential communication with Legal Advisers – No one shall becompelled to disclose to the Court any confidential communication which hastaken place between him and his legal professional adviser, unless he offershimself as a witness in which case he may be compelled to disclose any suchcommunication as may appear to the Court necessary to be known in order toexplain any evidence which he has give, but not others.Further, Section 148 gives discretion to the court to allow the witness torefuse to answer a question when the question affects the credit of thewitness by injuring his character and is otherwise irrelevant. Generally,court allows the witness to refuse to answer the question when the questionrelates to a matter so remote in time or of such a character that that thetruth of the imputation would not affect the opinion of the court as to thecredibility of the witness.Hostile witness? Under what circumstances a person is allowed to cross examinhis own witness? What are the limits of such rights of cross examination?(Section 154) In general, a witness is considered to be a hostile witness when he hasfeelings which are against the party which has invited him for his testimonyor when he adopts an adverse stance towards the party which has invited him. Asimilar but categorically different kind of witness also exists which iscalled as Unfavorable Witness. An unfavorable witness is not hostile towardsthe 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 callingparty intends to prove. In such a case, it becomes important for the callingparty to put such questions to the witness that would discredit his testimony.Such questions are normally asked by the adverse party in cross examinationbut when a witness turns hostile or unfavorable, the witness can be crossexamined by the party who had called the witness.However, it must be noted that Indian Evidence Act, 1872, mentions neitherHostile Witness nor Unfavorable witness. As per Section 154 : Question byparty of his own witness – (1) The Court may, in its discretion, permit theperson who calls a witness to put any questions to him which might be put incross-examination by the adverse party. (2) Nothing in this section shalldisentitle the person so permitted under sub-section (1), to rely on any partof the evidence of such witness.".Unlike the law in England, In India, the grant of permission to cross examineone’s witness by a party is not conditional on the witness being declaredhostile or unfavorable. Granting such permission is entirely upon thediscretion of the court. The discretion is unqualified and is used wheneverthe court gets a feeling from the temper, attitude, demeaner, or paststatements of the witness, that he is being untruthful or has becomeuncreditable.It was thought that once a witness is declared hostile, his entire testimonyshould be excluded because the only purpose of cross examination is todiscredit the witness. However, this view is not correct. It is important tounderstand that the purpose of cross examination is not merely to discreditthe witness but is also to elicit true facts about the case that would buildthe case of the cross examiner. When a party confronts his own witness, withthe permission of court, he does so with the hope that the witness mightrevert back to his story that supports the calling party. Further, Section 154does not technically tentamount to cross examining the witness. Strictlyspeaking, cross examination can only be done by the adverse party.Therefore,any party – the calling party or the adverse party may rely on any part of thestatement of such a witness. This is exactly what is conveyed by subclause (2)of Section 154.

Thus, in the case of Sat Pal vs Delhi Administration, 1976, it was held thatin a criminal prosecution, when a witness is cross examined and contradictedwith the leave of the court by the party calling him, his evidence cannot, asa matter of law, be treated as completely wiped off the record altogether. Ifis for the court to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited orstill can be believed in regard to a part of his testimony.The court will exercise its discretion only when it is satisfied that thewitness has turned hostile to the party who calls him as a witness. Incriminal cases, the court may be so satisfied by examining the statement givenby the witness and recorded by the police during investigation under Section162 of CrPC and comparing with the evidence given. In civil cases, if anadvocate 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 thewitness.The extent of the questions is same as that of the extent of the questionsthat can be put in cross examination by an adverse party. Thus, rules givenabove in Section 146 apply. However, a mere inconvenient answer given by thewitness is not sufficient to declare him hostile. The court must be satisfiedthat he has really turned hostile to the party calling him as a witness.Q. When and how may the credit of a witness be impeached by a party? (Sections146, 153, 155)Impeaching the credit of a witness means to show the real character of thewitness so that the court may not trust him. Credibility of a witness is veryimportant for the court in deciding the truth of the testimony. Indeed, itwould be unfair to convict anybody solely on the testimony of a habitual liar.Thus, it is imperative upon the adverse party to make sure that the witness iscredible and so it can ask questions that may impeach the credit of thewitness.The WhenAs per Section 146, which describes the questions that are lawful in crossexamination, it is lawful to ask questions during cross examination to testhis veracity, to discover who he is and what his position is in live, and to

shake his credit by injuring his character. Thus, it is clear that the creditof a witness can be impeached by the adverse party in his cross examination.However, when it is suggested that the witness is not speaking the truth, itis necessary to draw his attention to it by questions in cross examination. Itcannot be argued that a witness is unworthy of credit without giving his anopportunity to explain while he is in the witness box. It was held by SCin State of UP vs Nahar Singh, AIR 1998, that if you indent to impeach awitness, you are bound, while he is in witness box, to give him an opportunityto explain, even as a rule of profession ethics and fair play. A similarprovision is given by Section 145 as well, which says that when a witness iscross examined about his previous writing, without such writing is shown tohim or is proved, and if it is intended to contradict his writing, hisattention must be drawn to those parts which are to be used for the purpose ofcontradicting him, before such writing is proved.When a witness turns hostile or unfavorable, the same right becomes availableto the party who has called the witness. This is provided for by Section 154,which says that the Court may, in its discretion, permit the person who callsa witness to put any questions to him which might be put in cross-examinationby the adverse party.The HowIf a witness denies the suggestions put in cross examination, evidence tocontradict him can be called. This flows from the general rule given inSection 5, which allows evidence of relevant facts to be given. However, whensuch evidence is not relevant otherwise and is only useful in shaking thecredit of the witness, the provisions of Section 153 and 155 are applicable.Section 155 provides the ways through which the credit of a witness may beimpeached.Section 155 – Impeaching credit of witness The credit of a witness may be impeached in the following ways by the adverseparty, or, with the consent of the Court, by the party who calls him -(1) by the evidence of persons who testify that they, from their knowledge ofthe witness believe him to be unworthy of credit;(2) 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;(3) by proof of former statements inconsistent with any part of his evidencewhich is liable to be contradicted;Explanation – A witness declaring another witness to be unworthy of credit maynot, upon his examination-in-chief, give reasons for his belief, but he may beasked his reasons in cross-examination, and the answers which he gives cannotbe contradicted, though, if they are false, he may afterwards be charged withgiving false evidence.Illustrations(a) A sues B for the price of goods sold and delivered to B. C says that hedelivered the goods to B.Evidence is offered to show that, on a previous occasion, he said that he hadnot delivered goods to B.The evidence is admissible.(b) A is indicated for the murder of B.C says that B, when dying, declared that A had given B the wound of which hedied.Evidence is offered to show that, on a previous occasion, C said that thewound was not given by A or in his presence.The evidence admissible.Section 153 – Exclusion of evidence to contradict answers to questions testingveracityWhen a witness has been asked and has answered any question which is relevantto the inquiry only in so far as it tends to shake his credit by injuring hischaracter, no evidence shall be given to contradict him; but, if he answersfalsely, he may afterwardas be charged with giving false evidence.Exception 1 - If a witness is asked whether he has been previously convictedof any crime and denies it, evidence may be given of his previous conviction.Exception 2 - If a witness is asked any question tending to impeach hisimpartiality, and answers it by denying the facts suggested, he may becontradicted.Illustrations(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction, he had not made afraudulent claim. He denies it, Evidence is offered to show that he did makesuch a claim.The evidence is inadmissible.(b) A witness is asked whether he was not dismissed from a situation fordishonesty. He denies it.Evidence is offered to show that he was dismissed for dishonesty.The evidence is not admissible.(c) A affirm that on a certain day he saw B at Lahore.A is asked whether he himself was not on that day at Calcutta. He denies it.Evidence is offered to show that A was on that day at Calcutta.The evidence is admissible, not as contradicting A on a fact which affects hiscredit, but as contradicting the alleged fact that B was seen on the day inquestion in Lahore.In each of these cases the witness might, if his denial was false, be chargedwith giving false evidence.(d) A is asked whether his family has not had a blood feud with the family ofB against whom he gives evidence.He denies it. He may be contradicted on the ground that the question tends toimpeach his impartiality.This section provides an important protection to the witness against characterassasination. If a witness has answered a question whose purpose is only todiscredit him, whatever may be his answer, no evidence can be shown todisprove or contradict him. This applies only to the answers that are notrelevant to the facts of the case and not to answers to the questions that arerelevant to the case. The two exceptions contained in the section are meant toprevent misuse of this provision. Thus, a person is not allowed to lie abouthis prior conviction and he is not allowed to be partial. Thus, as explainedin illustration (c), if a witness denies a suggestion that he is biased,evidence may be given that proves otherwise.General Concept of Burden of ProofThe responsibility to prove a thing is called burden of proof. When a personis required to prove the existence or truthfulness of a fact, he is said to

have the burden of proving that fact. In a case, many facts are alleged andthey need to be proved before the court can base its judgment on such facts.The burden of proof is the obligation on a party to establish such facts inissue or relevant facts in a case to the required degree of certainty in orderto prove its case. For example, in a case of murder, prosecution may allegethat all the conditions constituting a murder are fulfilled. All suchconditions are facts in issue and there is an obligation to prove theirexistence. This obligation is a burden of proof. In general, every party hasto prove a fact that goes in his favor or against his opponent, thisobligation is nothing but burden of proof. Section 101 defines burden of proofas follows – When a person is bound to prove the existence of any fact, it issaid that the burden of proof lies on that person.The important question is who is supposed to prove the various facts allegedin a case. In other words, on whom should the burden of proving a fact lie?The rules for allocation of burden of proof are governed primarily by theprovisions in Section 101 to 105. The rules propounded by these sections canbe categorized as General rules and Specific rules.General rulesRule 1 - As per Section 101, specifies the basic rule about who is supposed toprove a fact. It says that whoever desires any Court to give judgment as toany legal right or liability dependent on the existence of facts which heasserts, must prove that those facts exist. For example, A desires a Court togive judgment that B shall be punished for a crime which A says B hascommitted. A must prove that B has committed the crime. Another example – Adesires a Court to give judgment that he is entitled to certain land in thepossession of B, by reason of facts which he asserts, and which B denies, tobe true. A must prove the existence of those facts.Facts can be put in two categories – those that positively affirm somethingand those that deny something. For example, the statement, "A is the owner ofthis land" is an affirmative statement, while "B is not the owner of thisland" is a denial. The rule given in Section 101means that the person whoasserts the affirmative of an issue, the burden of proof lies on his to proveit. Thus, the person who makes the statement that "A is the owner of the

land", has the burden to prove it. This rule is useful for determining theownership of the initial burden. Whoever wishes the court to take certainaction against the opposite party based on certain facts, he ought to firstprove those facts.However, it is not very simple to categorize a fact as asserting theaffirmative. For example, in the case of Soward vs Legatt, 1836, a landlordsuing the tenant asserted that the tenant did not repair the house. Here, hewas asserting the negative. But the same statement can also be saidaffirmatively as the tenant let the house dilapidate. In this case, LordABINGER observed that In ascertaining which party is asserting the affirmativethe court looks to the substance and not the language used. Looking at thesubstance of this case, the plaintiff had to prove that the premises were notrepaired.Thus, the court should arrive at the substance of the issue and should requirethat party to begin who in substance, though may not be in form, alleges theaffirmative of the issue.Burden of Proof and Onus of ProofThe term Burden of Proof is used in two difference senses – the burden ofproof as a matter of law and pleading, and the burden of proof as a matter ofadducing evidence also called as onus. There is a subtle distinction betweenburden of proof and onus of proof, which was explained in the caseof Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to prove themain contention of party requesting the action of the court, while the secondone is the burden to produce actual evidence. The first one is constant and isalways upon the claimant but the second one shifts to the other party as andwhen one party successfully produces evidence supporting its case. Forexample, in a case where A is suing B for payment of his services, the burdenof proof as a matter of law is upon A to prove that he provided services forwhich B has not paid. But if B claims that the services were not up to themark, the onus of burden as to adducing evidence shifts to B to prove thedeficiency in service. Further, if upon providing such evidence, A claims thatthe services were provided as negotiated in the contract, the onus againshifts to A to prove that the services meet the quality as specified in the

contract.The next rule determines who has the onus of proof.Rule 2 - As per Section 102, the burden of proof in a suit or proceeding lieson that person who would fail if no evidence at all were given on either side.The following illustrations explain this point -Illustration 1 - A sues B for land of which B is in possession, and which, asA asserts, was left to A by the will of C, B’s father. If no evidence weregiven on either side, B would be entitled to retain his possession. Thereforethe burden of proof is on A.Illustration 2 – A sues B for money due on a bond. The execution of the bondis admitted, but B says that it was obtained by fraud, which A denies. If noevidence were given on either side, A would succeed, as the bond is notdisputed and the fraud is not proved. Therefore the burden of proof is on B.Rule 3 - As per Section 103, the person who wants the court to believe in analleged fact is the one who is supposed to prove that fact unless it isprovided by any law that the proof of that fact shall lie on any particularperson. For example, A prosecutes B for theft, and wishes the Court to believethat B admitted the theft to C. A must prove the admission. Another example –B wishes the Court to believe that, at the time in question, he was elsewhere.He must prove it. Further, as specified in Section 104, if a person wants thecourt to believe in a fact that assumes the existence of another fact, it isup to the person to prove the other fact also. For example, A wishes to provea dying declaration by B. A must prove B’s death. A wishes to prove, bysecondary evidence, the contents of a lost document. A must prove that thedocument has been lost.Specific RulesThese rules specifically put the burden on proving certain facts on particularpersons -Rule 1 – As per Section 106, when any fact is especially within the knowledgeof any person, the burden of proving that fact is upon him. When a person doesan act with some intention other than that which the character andcircumstances of the act suggest, the burden of proving that intention is uponhim. For example, A is charged with traveling on a railway without a ticket.

The burden of proving that he had a ticket is on him.Rules of Presumption - Section 107 and 108 say that if a person was known tobe alive within 30 yrs the presumption is that he is alive and if the personhas not been heard of for seven years by those who have naturally heard fromhim if he had been alive, the presumption is that the person is death. But nopresumption can be draw as to the time of death. Sections 109 establishes theburden in case of some relations such as landlord and tenant, principle andagent etc. Further sections specify the rules about burden of proof in case ofterrorism, dowry death, and rape.Exceptions -Exception 1 – The general rule in criminal cases is that the accused ispresumed innocent. It is the prosecution who is required to establish theguilt of the accused without any doubt. At the same time, the accused is notrequired to prove his innocence without any doubt but only has to createreasonable doubt that he may not be guilty. Section 105 specifies an exceptionto this general rule. When an accused claims the benefit of the GeneralException clauses of IPC, the burden of proving that he is entitled to suchbenefit is upon him. For example, if an accused claims the benefit of insanityin a murder trial, it is up to the accused to prove that he was insane at thetime of committing the crime.In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explainedthis point. In this case, Nanavati was accused of murdering Prem Ahuja, hiswife’s paramour, while Nanavati claimed innocence on account of grave andsudden provocation. The defence’s claim was that when Nanavati met Prem at thelatter’s bedroom, Prem had just come out of the bath dressed only in a towel;an angry Nanavati swore at Prem and proceeded to ask him if he intends tomarry Sylvia and look after his children. Prem replied, "Will I marry everywoman I sleep with?", which further enraged Nanavati. Seeing Prem go for thegun, enclosed in a brown packet, Nanavati too went for it and in the ensuingscuffle, Prem’s hand caused the gun to go off and instantly kill him.Here, SC held that there is a presumption of innocence in favor of the accusedas a general rule and it is the duty of the prosecution to prove the guilt ofthe accused beyond any doubt. But when an accused relies upon the general

exception or proviso contained in any other part of the Penal Code, Section105 of the Evidence Act raises a presumption against the accused and alsothrows a burden on him to rebut the said presumption. Thus, it was upon thedefence to prove that there existed a grave and sudden provocation. In absenceof such proof, Nanavati was convicted of murder.Exception 2 – Admission – A fact which has been admitted by a party and whichis against the interest of that party, is held against the party. If the factis contested by the party, then the burden of proof rests upon the party whomade the admission. For example, A was recorded as saying that he committedtheft at the said premises. If A wants to deny this admission, the burden ofproof rests on A to prove so.Exception 3 – Presumptions – Court presumes the existence of certain things.For example, as per Section 107/108, court presumes that a person is dead oralive based on how long he has not been heard of. Section 109, presumes thatwhen two people have been acting as per the relationship of landlord – tenant,principle – agent, etc, such relationship still exists and anybody whocontends that such relationship has ceased to exist has to provideproof. Section 110 presumes that the person who has the possession of aproperty is the owner of that property. As per Section 113A, When the questionis whether the commission of suicide by a woman had been abetted by herhusband or any relative of her husband and it is shown that she had committedsuicide within a period of seven years from the date of her marriage and thather husband or such relative of her husband had subjected her to cruelty, thecourt may presume, having regard to all the other circumstances of the case,that such suicide had been abetted by her husband or by such relative of herhusband. As perSection 113B, when the question is whether a person hascommitted the dowry death of a woman and it is shown that soon before herdeath such woman had been subjected by such person to cruelty or harassmentfor, or in connection with, any demand for dowry, the court shall presume thatsuch person had caused the dowry death.Thus, when the presumption of the court is in favor of a party, the burden ofdisproving it rests on the opposite party.Judicial Presumption? Explain giving special effects to the law relating to

abatement of suicide by a married woman.A presumption is an acceptance of a fact as true or existent based upon itsstrong probability evident from the circumstances. For example, if a man hasnot been heard from for 7 years by his closest relatives, the court maybelieve in that the man is dead. This is a presumption. Thus, when the courtpresumes the existence of a fact because of its strong probability but withouta direct or conclusive proof, it is called as presumption. When a courtpresumes a fact, the party in whose favor the fact is, is relieved of theinitial burden of proof. For example, as per Negotiable Instruments Acts,every holder of an instrument is presumed to be a holder for consideration. Soif a person A holds a cheque signed by another person B, it is presumed that Ahas given consideration for the cheque and so A does not have to provide anyproof of that consideration. Of course, this presumption only applies at thebeginning. The other party is free to provide proof that disproves thepresumption. For example, the opposite party can show letters by the person orrecent photograph of the person showing that he is still alive.According to English Law, a presumption can be of two kinds – presumption offact and presumption of law.Presumption of FactPresumption of fact are those presumption about things or events that happenin day to day life, which we accept as true due to inference drawn logicallyand naturally by our mind. Such as, presumption that a man with blood stainedclothes and a knife in his hands is the murderer. Such presumptions arerebuttable from further evidence.Presumption of LawPresumption of law are arbitrary consequences that are annexed by law toparticular facts. They are legal fiction. They may not be same as theinferences that we may ordinarily draw but the law prescribes that suchinference may be drawn. For example, it is a presumption of law that a childbelow seven years of age is not capable of committing a crime. Or that aperson who has not been heard from for seven years is dead. Such presumptionsmay or may not be rebuttable depending on the law. For example, thepresumption that a child below seven years of age is not capable of committing

a crime cannot be rebutted. Law presumes the age of the child as a conclusiveproof of his innocence. But the presumption that a person is dead when he isnot heard from for 7 years is rebuttable by showing evidence.May Presume and Shall PresumeProvisions of Section 4, in a general sense, correspond to the aboveclassification. The first part of this section defines "May Presume" asfollows -"May presume" – Whenever it is provided by this Act that the Court may presumea fact, it may either regard such fact as proved, unless and until it isdisproved, or may call for proof of it. It gives the court a discretionarypower to presume the existence of a fact. Which means that the court mayregard the fact as proved unless and until it is disproved. For example, inthe case of Dr T T Thomas vs Elisa AIR 1987, where a doctor failed to performan emergency operation due to lack of consent, the court presumed that theconsent was there since the patient was brought to the hospital. It was up tothe doctor to prove that the consent was not there. The court may also ask forfurther proof before making the presumption.All the presumptions given in Section 114 are of this kind, which says thatthe court may presume the existence of any fact which it thinks likely to havehappened regard being had to the common course of natural events, humanconduct, and public and private business, in their relation to the facts ofthe particular case. For example, the court may presume that a man who is inpossession of stolen goods soon after theft, is either the thief of hasreceived the goods knowing them to be stolen, unless he can account for hispossession.The second part of the section for defines "Shall Presume" as follows -"Shall presume" – Whenever it is directed by this Act that the Court shallpresume a fact, it shall regard such fact as proved, unless and until it isdisproved. It basically forces the court to presume a fact that is specifiedby the law unless and until it is disproved. The court cannot ask for anyevidence to prove the existence of that fact but it may allow evidence todisprove it. For example, Section 90 provides that where any document,purporting or proved to be thirty years old, is produced

from any custody which the Court in the particular case considers proper, theCourt may presume that the signature and every other part of such document,which purports to be in the handwriting of any particular person, is in thatperson’s handwriting, and, in the case of a document executed or attested,that it was duly executed and attested by the persons by whom it purports tobe executed and attested. Presumption about abetment of suicide of a marriedwoman (S. 113A) and Presumption about dowry death of a woman (S. 113B) are ofthis kind.Third part of the section defines "Conclusive Proof" as follows -"Conclusive proof" - When one fact is declared by this Act to be conclusiveproof of another, the Court shall, on proof of the one fact, regard the otheras proved, and shall not allow evidence to be given for the purpose ofdisproving it. For example, birth during marriage (S. 112) is a conclusiveproof of legitimacy.Presumption and Burden of ProofJustice Venkataramiah, of SC observed the following, in the case of SodhiTransport vs State of UP, 1986 – A presumption is not evidence in itself butonly makes a prima facie case for party in whose favor it exists. It indicatesthe person on whom the burden of proof lies. When the presumption isconclusive, it obviates the production of any evidence, but when it isrebuttable, it only points out the party on whom lies the duty of goingforward with evidence on the fact presumed and when that party has producedevidence fairly and reasonably tending to show that the real fact is not aspresumed the purpose of presumption is over.Presumption about abatement of suicide by a married womanSection 113 A – When the question is whether the commission of suicide by awoman had been abetted by her husband or any relative of her husband and it isshown that she had committed suicide within a period of seven years from thedate of her marriage and that her husband or such relative of her husband hadsubjected her to cruelty, the court may presume, having regard to all theother circumstances of the case, that such suicide had been abetted by herhusband or by such relative of her husband.Explanation – For the purposes of this section, "cruelty" shall have the same

meaning as in section 498A of the Indian Penal Code (45 of 1860).Section 113 B – Presumption as to dowry death – Presumption as todowry death.-When the question is whether a person has committed the dowrydeath of a woman and it is shown that soon before her death such woman hadbeen subjected by such person to cruelty or harassment for, or in connectionwith, any demand for dowry, the court shall presume that such person hadcaused the dowry death. Explanation – For the purposes of this section, "dowrydeath" shall have the same meaning as in section 304B of the Indian PenalCode.