law notes_ evidence act

7/25/2019 Law Notes_ Evidence Act

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Evidence Act

Res Gestae

Sec. 6 . Relevancy of facts forming part of same transaction - Facts which, though not in issue, ar

so connected with a fact in issue as to form part of the same transaction, are relevant, whethe

they occurred at the same time and place or at different times and places.(a) A is accused of the murder of B by beating him. Whatever was said or done by A Or B or th

by-standers at the beating or so shortly before or after it as to form part of the transaction, is

relevant fact.

(b) a is accused of waging war against the Government of India by taking part in an arme

insurrection which property is destroyed, troops are attacked and gaols are broken open. Th

occurrence of these facts is relevant, as forming part of the general transaction, though A may no

have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between th

parties relating to the subject out of which the libel arose, and forming part of the correspondencin which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods wer

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

Facts which are not themselves in issue may affect the probability of the existence of facts in issu

and be used as the foundation of inference respecting them such facts are described in Act a

relevant facts. Every fact is a part of other facts. Sec. 6 lays down that the facts which are s

connected with the facts in issue that they form part of the same transaction are relevant facts.

definition of the word 'same transaction' is given by Stephen who says, a transaction is a grou

of facts, connected together to be referred to by a single legal name, a crime, a contract, a wrong o

any other subject of enquiry which may be in issue. The rule of efficient test for determinin

whether a fact forms part of the same transaction or another depends upon whether they are s

related to one another in point of purpose, or as cause and effect, or as probable and subsidiar

act as to constitute one continuous action.

Doctrine of res gestae or parts of transaction

Apparently the phrase is well established in Law of Evidence. It has been used in two senses. I

the wider sense it covers all the probative facts by which res gestae are reproduced to the tribuna

where the direct evidence of witness or perception by the court are unattainable. In restrictemeaning res gestae imports the conception of action by action. To be clear, in the restricted sens

facts which constitute the res gestae must be such as so connected with the very transaction o

fact under investigation as to constitute a part of it. They are the acts talking for themselves no

what people say when talking about the acts.

The section is quite apparently based upon the English doctrine of res gestae. This Latin phras

means things done and when translated into English means things said and done in the cours

of a transaction. Every case that comes before a court of law has a fact story behind it. Every fa

story is made of certain acts, omissions and statements. Every such act, omission or statement a


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rows some g upon e na ure o e ransac on or revea s s rue qua y or c arac er s ou

be held as a part of the transaction and the evidence of it should be received. To state a fact o

event in isolation without reference to its antecedents in time, place or surroundin

circumstances, may render the fact, difficult or even impossible to comprehend. Other facts o

circumstances may be so closely connected with the fact in issue as to be, in reality, part an

parcel of the same transaction. Such ancillary facts are described as forming part of the res gesta

of the fact in issue, and may be proved.

The expression res gestae as applied to a crime means the complete transaction from its startinpoint in the act of the accused until the end is reached. What in any case constitutes a transactio

depends wholly on the character of the act and the circumstances of the case. It frequent

happens that, as evidence of circumstances may be resorted to for the purpose of proving th

commission of a particular offence charged, the proof of those circumstances involves the proof o

other acts either criminal or apparently innocent. In such cases it is proper that the chain o

evidence should be unbroken.

The words spoken by the person doing the act, or by the person to whom they were done or by th

bystanders are relevant as a part of the same transaction, but it should be borne in mind that suc

statements or declarations, as they are called, in order that they might be admissible as res gesta

should be contemporaneous with the transaction in issue, that is, the interval should not be mad

as to give time and opportunity for fabrication and connection and they should not amount a mer

narrative of a past occurance. If the statement is answer to a query after lapse of some time

cannot be treated as res gestae. At the time of murder the cry of deceased 'save me' and that of th

children that their mother was being killed are relevant as res gestae.

In Ratten v The Queen A man was prosecuted for the murder of his wife. His defence was that th

shot went off accidently. There was evidence to the effect that the deceased telephoned say : Ge

me the police please. Before the operator could connect the police, the caller, who spoke idistress, gave her address and the call suddenly ended. Thereafter the police came to the hous

and found the body of a dead woman. Her call and the words she spoke were held to be relevant a

a part of the transaction which brought about her death. Her call in distress showed that th

shooting in question was intentional and not accidental. For no victim of an accident could hav

thought of getting the police before the happening. This then is the utility of the doctrine of re

gestae. It enables the court to take into account all the essential details of a transaction.

A transaction can be truly understood only when all its integral parts are known and not i

isolation from each other.

The Court of Appeal held in another case that a statement made to a police officer by the victim oan assault identifying the assailant while moving with the police in his car was relevant as showin

that he had seen the victim of an assault and who committed it.

Acts or Omissions as Res Gestae

So far as acts and omissions accompanying a transaction are concerned, much difficulty does no

arise. Nature of the transaction itself indicates what should be its essential parts. In case of Miln

v Leisler a question was whether a contract had been made with a person in his personal capaci

or as an agent of another. The fact that the contractor wrote a letter to his broker asking him t

make inquiries was held to be relevant.


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Statements as Res gestae

Statements may also accompany Physical happenings. In the application of this principle th

courts have been very strict and cautious. For statements can be easily concocted. Hence th

principle that the statement should have been made so soon before or after or along with th

incident that there was hardly any time to deliberate and thereby to fabricate a false story. In cas

of R v. Bedingfield a woman, with a throat cut, came suddenly out of a room, in which she ha

been injured and shortly before she died, said : Oh dear Aunt, see what Bedingfield has done t

me. It was held that the statement was not admissible. Anything uttered by the deceased at th

time the act was being done would be admissible, as, for instance if she has been heard to sa

something, as don't Harry. But here it was something, stated by her after it was all over. Th

statement was also held to be not relevant as dying declaration because she did not have the tim

to reflect that she was dying.

In case of R v. Christie an indecent assault was made upon a young boy. Shortly after the inciden

the boy made certain statements to his mother by which he described the offence and the ma

who assaulted him. The evidence of the statement was excluded. Remarked that the boy

statement was so separated by time and circumstances from the actual commission of the crimthat it was not admissible as part of the res gestae.

The emphasis of the courts seem to be that the words should be at least de recenti and not afte

an interval which should allow time for reflection and concocting a story. The statement shoul

be an exclamation forced out of a witness by the emotion generated by an event rather than

subsequent narrative. The courts have stressing the necessity for close association in time,plac

and circumstances between he statement and the crucial events.

It has been held by the Supreme Court in R. M. Malkani v State of Maharashtra, that

contemporaneous tape-record of a relevant conversation is a relevant fact. It is res gestae. Her

the act of the assailant intruding into the courtyard during dead of the night, victimidentification of the assailant her pronouncement that appellant was standing with a gun and h

firing the gun at her, all circumstances so intertwined with each other by proximity of time an

space that the statement of the deceased became part of the same transaction. Hence it

admissible under Section 6 of the Evidence Act.

In Rattan Singh v. State of H. P. it was held that where shortly before the incidence in which

woman dies of gun shot, she exclaimed that a man was standing near her with a gun in his han

the statement was held to be sufficiently proximate in time to the happening as to be a part of th

same transaction.

Res Gestae and Hearsay

Hearsay evidence means the statement of a person who has not sent he happening of th

transaction, but has heard of it from others. But such evidence can be given if it is a part of th

transaction.

In Sukhar v. State of U.P., One morning while deceased was going on the road, Accused caugh

hold of his back and fired a pistol shot towards him, deceased raised an alarm on account of whic

PW 1 and PW 2 reached the scene of occurrence and that point of time, deceased fell down and th

accused made his escape. The two witnesses, brought deceased tot he police station whereupo

the olice recorded of the statement of deceased and started investi ation. Durin trial th


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prosecution witnesses PWs 1& 2merely stated as to what they heard from the injured at th

relevant point of time and according to PW 2, the injured had told him that the assailant had fire

upon him. While the trial was pending the injured died.

The High Court heavily relied upon the statement of PW 2. Counsel for the appellant strenuous

contended that the evidence of the Evidence of PW 2 cannot be held to be admissible unde

Section 6 of Evidence Act inasmuch as what the injured told the witness when the witness whe

the witness reached the scene of occurrence and the factum of alleged shooting by the accused the injured cannot be said to have formed part of the same transaction.

The Supreme Court said that Section 6 of the evidence act is an exception to the general ru

hereunder the hearsay evidence become admissible. But for bringing such hearsay evidenc

within the provisions of Section 6, what is required to be established is that it must be almo

contemporaneous with the acts and there should not be an interval which allow fabrication. Th

statement sought to be admitted, therefore as forming part of res gestae must have been mad

contemporaneously with the acts or immediately thereafter.

With reference to above explanation and referring to the case of Rattan Singh v. State of H.P., th

court held that the statement indicating that the injured told that the accused has fired at himwould become admissible under Section 6 of the Evidence Act.

Proved , Disproved and Not Proved

When is a fact said to be proved. Section 3 says :

Proved : A fact is said to be proved when, after considering the matters before it, the Court eithe

believes it to exist, or considers its existence so probable that a prudent man ought, under th

circumstances of the particular case, to act upon the supposition that it exists.

The degree of certainty which must be arrived at before a fact is said to be proved is that describe

in this section.

The section also states as to when a fact is said to be disproved.

Disproved : A fact is said to be disproved when, after considering the matters before it, the Cour

either believes that it does not exist, or considers its non-existence so probable that a prudent ma

ought, under the circumstances of the particular case, to act upon the supposition that it does noexist.

The section concludes with this set of provisions by defining a fact which is said to be no

proved. It says :

Not Proved : A fact is said to be not proved when it is neither proved not disproved.

These provisions of the Act deal with the degree or standard of proof. What and how much proo

is necessary to convince the judge of existence of a fact in issue? The answer depends upon man

circumstances as different standards of proof are demanded in civil and criminal cases. In civ

cases, for example, a matter is taken to be proved when the balance of probability suggests it, nu


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.

as would induce a reasonable man to come to the conclusion. Suspicion cannot take the place

proof, nor moral belief of the judge in the guilt of the accused.

Supreme Court held that in Criminal cases there has to be a proof which leaves behind n

reasonable doubt about the prosecution version. The victim's dying declaration which left man

uncovered points and also narrated an unnatural story. Because of these doubts the evidence wa

rejected.

The court has to proceed on the basis of the matters before it, which may be in the shape oevidence or any other shape.

Proved :- Proof does not mean proof to rigid mathematical demonstration, because that i

impossible. It means such evidence as would induce a reasonable man to come to conclusion. A

that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that th

fact is so. In the ordinary affairs of life courts do not require demonstrative evidence. Absolut

certainty amounting to demonstration is seldom to be had in the affairs of life and we ar

frequently obliged to act on degrees of probabilities which fall very short of it indeed.

In M. Narsingha Rao v. State of Andhra Pradesh, the Supreme Court held that a fact is said to b

proved when after considering the matter before it the Court either believe it to exist or consider

its existence so probable that a prudent man ought, under circumstances of particular case, to a

upon supposition that it exists. This is the definition of the word 'proved' in Evidence Act. What i

required is production of such materials on which the Court reasonably act to reach th

supposition that the fact exist. Proof of facts depends upon degree of possibility of having existed

The standard required for reaching the supposition is that of a prudent man acting in an

important matter concerning him.

The extent to which a particular evidence aids in proving the fact in controversy is called a

probative force. This probative force must be sufficient to induce the court either (a) to believe ithe existence of the fact sought to be proved, or (b) to consider its existence so probable that

prudent man ought to act upon the supposition that it exists. The test is of probability upon whic

a prudent man may base his opinion. In other words, it is the estimate which a prudent ma

makes of the probabilities having regard to what must be his duty as a result of his estimate.

Proof and suspicion :- It must be borne in mind that suspicion and conjecture cannot take th

place of legal proof.

Matter before it :- In order to decide as to whether a particular fact is proved, the court has t

consider the 'matter' before it. The expression, matters before it in this definition include

materials which do not fall within the definition of 'evidence' as given in Sec. 3. The result of locaenquiry by a court, material objects brought before the court, material objects brought before th

court, the demeanor of witnesses, admission by parties, confessions by the accused, statement o

the accused, Commissioner's reports, are not evidence according to the definition given in Sec. 3

But they are all matters before the court to be considered while coming to conclusion.

Disproved and not Proved :- The definition of the word 'disproved' is a converse of the definitio

of the word 'proved'. The expression 'not proved' indicates a state of mind in between the two, tha

is, when one cannot say whether a fact is proved or disproved. Not Proved is something differen

from being false. An inability to prove a claim does not mean in all cases that it is false. I


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negatives both proof and disproof.

Sec. 3 of Evidence Act, while explaining the meaning of proved, disproved and not prove

provides, the standard of proof. This standard should be of ordinary prudence in person, who wi

udge its existence or non-existence from the standard of circumstances before him.

In Naval Kishor Somani v. Poonam Somani, Andhra Pradesh High Court said that a fact which

proved does not necessarily mean that it is false one. The expression 'Proved' is followed b

expression disproved. This is followed by difinition of 'not proved'. The fact is said to be no

proved when it is neither proved not disproved. On the other hand the fact is said to be disprove

when after considering the matters before it the court either believes that it does not exist o

considers its bib-existence. The word 'disproved' is akin to the word 'false'. What is disproved

normally taken to be false thing. It will be thus seen that a fact proved is not necessarily a fa

disproved. A fact which is 'not proved' may be false or true. A doubt lingers about its truth merel

because it is not proved or may not jump to the conclusion that it is disproved. A fact is disprove

normally by the person who claims that alleged that the fact is not true.

A fact is said to be disproved when the Court believes that the fact in question does not exist an

that the Court believes the non-existence of that fact from the standard of man of ordinarprudence.

Not Proved where the fact is deemed to be not proved from the standard of a person of ordinar

prudence. The phrase NOT PROVED means neither the fact is proved with certainty nor the fact i

believed to exist. The phrase NOT PROVED is between the phrase proved and disproved. And th

phrase not proved is the result of careful scrutiny of the person of ordinary-prudence that the fa

either exists with certainty nor its non-existence is proved with certainty. It is provision betwee

existence and non-existence of the fact in the mind of a man of ordinary prudence.

CONSPIRACY

S. 10 Things said or done by conspirator in reference to common design. - Where there

reasonable ground to believe that two or more persons have conspired together to commit a

offence or an actionable wrong, anything said, done or written by any one of such persons i

reference to their common intention, after the time when such intention was first entertained b

any one of them, is a relevant fact as against each of the persons believed to be so conspiring, a

well as for the purpose of proving the existence of the conspiracy as for the purpose of showin

that any such person was a party to it.

Illustration :- Reasonable ground exists for believing that A has joined in a conspiracy to wage wa

against the Government of India.

The facts that B procured arms in Eurpoe for the purpose of the conspiracy, C collected money i

Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E publishe

writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul th

mone which C had collected at Calcutta and the contents of a letter written b H ivin a


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account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and t

prove A's complicity in it, although he may have been ignorant of all of them, and although th

persons by whom they were done were strangers to him, and although they may have taken plac

before he joined the conspiracy or after he left it.

The leading English is R v. Blake and Tye. Blake was working as a landing waiter at the Custom

House. Tye worked at the same place as an agent for the importers. They were charged wit

conspiracy to dodge the customs by passing goods without paying full duty. Tye made certaientries in two books. One of them was used for carrying out the fraud and the entries wer

necessary for that purpose. But the other was for his private record, or convenience, such as, th

counterfoil of his cheque book.

It was held that the entries in the former book were admissible against Blake, but the latter wer

not. The essence of the decision was that evidence of an act of a conspirator is relevant again

other only it the act was done to carry out the conspiracy. The act should relate to the furtheranc

of the common object.

THE basic principle which is underlined under Sec. 10 is the theory of agency and hence ever

conspirator is agent of this association in carrying out the object of conspiracy. Sec. 10 renderanything said or done or written by any one of the conspirators in reference to their commo

intention as relevant fact not only as (i) against each of the Conspirators but (ii) proving th

conspiracy itself. The only condition for application of the rule of Sec. 10 is that there must b

reasonable ground to believe that two or more persons have conspired together to commit a

offence. Conspiracy is a crime as well as a tort.

In State of Maharashtra v. Damu Gopinath Shinde, there was no doubt that there was reasonabl

ground to believe that four of accused conspirators have conspired to commit the offence o

abduction and murder of children involved in this case. So when these accused had spoken to eac

other in reference to common intention as could be gathered from conspirators can be regarded a

relevant facts falling within the preview of Sec.10. A dialogue between them could be prove

through any permitted legal mode. When the confession is legally proved and found admissible i

evidence the same can be used to ascertain what was said and done or written between th

conspirators.

The term 'conspiracy is the corrupt agreeing together of two or more persons to do, by concerte

action, something unlawful either as a means or as an end'. Sec 120-A of the Indian Penal Cod

lays down : When two or more persons agree to do or cause to be done (1) an illegal act, or (2) a

act which is not illegal but illegal by means, such agreement is designated as criminal conspiracyprovided that no agreement except an agreement to commit an offence shall amount to crimina

conspiracy unless some act besides an agreement is done by one or more parties to suc

agreement in pursuance thereof. Thus it is clear that when two or more persons agree together t

do some illegal act or some act by illegal means they are said to have conspired. It is enough if th

acts agreed to be done although not criminal are wrongful, i.e., amount to civil wrong civil wrong

A conspiracy consists of unlawful combination of two or more persons to do that which

contrary of law, or to do that which is wrongful towards other persons. It may be punishe

criminally, or civilly by action.


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. .

any direct evidence. The ingredients of the offence are that there should be an agreement betwee

persons who are alleged to conspire and the said agreement should be for doing an illegal act o

for doing by illegal means an act which itself may not be illegal. Therefore the essential of crimina

conspiracy is an agreement to do an illegal act and such an agreement can be proved either b

direct evidence or by circumstances evidence or by both, and it is a matter of common experienc

that direct evidence to proved conspiracy is rarely available. Therefore the circumstance prove

before during and after the occurance have to be considered to be decided about the complicity othe accused.

Privacy and secrecy are more characteristics of conspiracy than of a loud discussion in an elevate

place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence o

the conspiracy can be proved by either direct or ciarcumstance evidence. It is not always possib

to give affirmative evidence about the date of the formation of the criminal conspiracy, about th

object which the objectors set before themselves as the object of conspiracy and about the manne

in which the object of conspiracy is to be carried out, all this is a mater of inference.

Where trustworthy evidence establishing all links of circumstantial evidence is available th

confession of a co-accused as to conspiracy even without corroboration evidence can be taken int

consideration. It can in some cases be inferred from the acts and conduct of the parties.

It must be remembered that mere knowledge on the part of a man about a conspiracy will no

make him a conspiracy. Under Sec.10, a statement of act of one person is evidence again

another. The Section puts certain limitations to the general rule of admissibility stated above

Under Sec.10 a thing done, said or written after the time when such intention was first entertaine

by any one of them is relevant. Anything done, said or written before such intention of conspirac

was entertained by any one of them is not relevant under this section. Against each and everythin

said, done or written by a conspirator even after such intention was entertained by a member the conspiracy will not be relevant under this section. The only thing said, done or written i

reference to the common intention of the conspirators will be admissible. There is more limitatio

to the relevancy of evidence under Sec.10. Before any evidence is entertained under this sectio

there should be a reasonable ground for the court to believe that two or more persons hav

conspired together to commit, an offence or actionable wrong. Any statement made by accuse

after his arrest cannot fall within the ambit of Sec.10. Confessional statement of accused who

not alive would not be of any evidentiary use.

Analysis of Section 10. - Sec.10 can be analysed as follows :

(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe thatwo or more persons are members of a conspiracy (2) if the said condition is fulfilled, anythin

said, done or written by any one of them in reference to their common intention will be evidenc

against the others (3) any thing said, done or written by him should have been said, done o

written by him after the intention was formed by any one of them (4) it would be relevant for th

said purpose against another who entered the conspiracy, whether it was said, done or writte

before he entered the conspiracy or after he left (5) and it can be used only against a conspirato

and not in his favour.

Before bringing on record anything said, done or written by an alleged conspirator the court ha


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to bring on record some evidence which prima facie proves the existence of the conspiracy. Once

reasonable ground to believe that several persons have conspired to commit an offence exists th

acts and declarations of a particular person in reference to the common intention are relevan

facts although that person may not so much as even know of the existence of many other engage

in the conspiracy. And if the evidence is taken after a prima facie proof of conspiracy but at a late

stage of the trial that reasonable ground of belief or prima facie proof is displaced by furthe

evidence, the court must reject the evidence previously taken.

In C B I v. V.C. Shukla (Hawala Case), entries in the accounts book alleged to be showin

conspiracy among all the accused. Evidence of prosecution witness only indicating that one of th

accused in question was known to the other accused person and had gone to their residence o

formal occasion, witness not speaking a word about other accused in question. It was held tha

Sec.10 cannot be pressed into holding that conspiracy amongst all the accused was proved.

The word 'intention' implies that the act intended is in the future and the section makes relevan

statements by a conspirator with reference to the future. The words in reference to their commo

intention mean in reference to what at the time of statement was intended in the futur

Narratives coming from the conspirators as to their past act cannot be said to have a reference ttheir commo intention.

In the case of Badri Rai v. State of Bihar the Supreme Court referred to the state of English Law a

expounded in R vs. Blake, and said that section 10 of the Evidence Act is on the same lines :

Ramji and Badri were prosecuted for conspiracy under S.120- and for bribing a police office

under S.165-A. An inspector of police was on his way to the police station. Both Ramni and Bad

approached him and requested that they would duly reward him if he could hush up the cas

relating to stolen ornaments and molten silver recovered from Ramji's house and which wa

under investigation. The inspector told them he could not talk to them on the road and that the

should come to the police station. The inspector reported the matter to his senior officer. Badalone came to the police station and offered him a packed wrapped in a piece of old newspape

containing Rs. 500 in currency notes. He told the inspector that Ramji had sent the money as

consideration for hushing up the case against him. In the presence of other persons, who becam

witnesses, the inspector seized the money and drew up the first information report.

The only question before the Supreme Court was whether the offer was whether the offer o

money and the accompanying statement made by Badri were relevant against Ramji. The cour

said that when both the accused approached the inspector and requested him to hush up the cas

that clearly showed that they had conspired to bribe a public servant. That being so, anything sai

or done by any of them in reference of their conspiracy to bribe was relevant against the othe

also. The statement and the offer of bribe had clear reference to their common intention and wer

therefore, relevant against both.

The Supreme Court further said, Sec.10 of the Evidence Act has been deliberately enacted in orde

to make such acts and statements of a co-conspirator admissible against the whole body o

conspirators, because of the nature of crime. A conspiracy is hatched in secrecy, and executed i

darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act o

statement of one accused with the acts of statements of the others, unless there is a common bon

linking all of them together.


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In Mirza Akbar v. Emperor, Mirza Akbar, Mst Mehr Teja and Umar Sher were convicted for th

murder of Ali Askar, the husband of Mst. Mehar Teja. The prosecution case was that Mst. Meha

Teja and Mirza Akbar desired to get rid of Askar so that they should marry each other. Umar She

was hired for the purpose. Umar Sher shot Ali Askar dead. After the murder was committed, M

Mehr Teja was arrested on the charge of conspiracy. She was examined before a magistrate an

there she made certain statement implicating Mirza Akbar. This statement was admitted i

evidence both by the trial Judge and Judicial Commissioner as relevant against the appellanunder Sec.10, Evidence Act. It was held that the words of Sec.10 are not capable of being wide

construed so as to include a statement made by one conspirator in the absence of the other wit

reference to past acts done in the actual course of carrying out the conspiracy, after it has bee

completed.

Appellant Mirza Akbar and Mst Teja were tried for conspiracy to commit the murder of Ali Aska

husband of Mst. Mehar Teja. After the murder was committed Mst. Mehar Teja was arrested. Sh

made the statement to the effect that there was conspiracy for murdering Ali Askar. It was hel

that the statement was made with reference to past act 'common intention' in the section signif

common intention existing at the time when the thing was done, written or said. Things saiwritten or done while the conspiracy is at foot are relevant. The statement was held to be no

admissible.

ADMISSION

S. 17. Admission defined - An admission is a statement, oral or documentary or contained i

electronic form, which suggests any inference as to any fact in issue or relevant fact, and which

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

The section points three things it First defines admission, in terms of a statement which may b

oral or documentary or in electronic form. Secondly, the section says that an admission will b

relevant only if it is made by any of the person specified in the Act. The list is to be found in S. 18

Thirdly, the section says that it will be relevant only in the circumstances mentioned in the Ac

Such circumstances are mentioned in section 18-30.

The Supreme Court has given some guidance in this respect. Before the right of a party can b

taken to be defeated on the basis of an alleged admission by him, the implication of the statemen

made by him must be clear and conclusive. There should not be any doubt or ambiguity. It woul

be necessary to read all of his statements together. Applying this approach to the facts of a cas

before it.

Reasons for admissibility of admissions

An admission is a relevant evidence. Several reasons have been suggested for receiving admission

in evidence some of them are as follows :

1. Admissions as waiver of Proof

The section confines this effect only to formal admissions made at the time of the trial or as part o


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that the Court may, in its discretion, require the facts admitted to be proved otherwise than b

such admission. Thus the Court may reject an admission either wholly or in part or may requir

further proof. Waiver of proof therefore, cannot be an exclusive reason for the relevancy of a

admission.

2. Admissions as statement against interest

The Second suggested reason is that an admission, being a statement against the interest of th

maker, should be supposed to be true, for it is highly improbable that a person will voluntarilmake a false statement against his own interest. But this also does not squarely account for th

relevancy of admissions. For one thing Section 17 does not require that an admission should be

statement suggest some inference as to a fact in issue or relevant to the issue, even if the inferenc

is in favour of the declarant. The act does not seem to require that an admission should be sel

harming statement.

3. Admissions as Evidence of Contradictory Statements

Still another reason that partly accounts for the relevancy of an admission is that there is

contradiction between the party's statement and his case. This kind of contradiction discredits h

case. If, for example, A sues B upon a loan. His account books show that the loan was given to C

The statement in his accounts is an admission on his part as it contradicts his case against B. Bu

his is only partly true, for the principle is that a party can prove all his opponent's statement

about the facts of the case and it is not necessary that they should be inconsistent with his case.

4. Admissions as Evidence of Truth

The last and most plausible and perhaps widely accepted reason that accounts for relevancy o

admissions is that whatever statements a party makes about the facts of the case, whether they b

for or against his interest, should be relevant as representing or reflecting the truth as again

him.

Forms of admission and to whom an admission may be made

It is generally immaterial as to whom an admission is made. It may occur in reference to th

proceedings or outside the court.

Formal or Judicial Admissions

An admission which is made as part of the proceedings so that it is recorded in the file of th

court, that is called a formal or judicial admission. Admissions expressly made in the proceeding

prior to the trial are sometimes called formal or express admissions.

Statements made by a person in his pleadings or in his evidence in a case have also been held b

the Supreme Court to be admissions and, therefore, relevant. The case before the court waBishwanath Prasad v. Dwarka Prasad :

The question was whether certain properties belonged to the defendant and certain others we

liable to partition. The opposite party had made statement in dispositions in an earlier suit tha

they belonged to the defendant. Similar admissions occurred in the written statement filed by th

plaintiff and his father in that suit.

Treating this as a relevant evidence against the plaintiff, Court remarked that Admissions ar

usually telling against the maker unless reasonably explained, and no acceptable ground t

extricate the appellants from the effect of their own earlier statements has been made out. Th


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attention of the learned Judge was drawn to section 145 of the Evidence Act which provides that

a witness is to be contradicted by his own earlier statement, the statement must be put to him s

that he may have an opportunity to explain it and this was not done in the present case Dealin

with this argument Court said :

There is a cardinal distinction between a party who is the author of a prior statement and

witness who is examined and is sought to be discredited by the use of his prior statement. In th

former case in admission by a party is a substantive evidence if it fulfills the requirements o

Sec21 in the latter case a prior statement is used to discredit the credibility of the witness an

does not become substantive evidence. In the former there is no necessary requirement of th

statement containing the admission having to be put to the party because it is evidence propri

vigore in the latter case the Court cannot be invited to be disbelieve a witness on the strength

the prior contradictory statement unless it has been put to him, as required by sec 145.

The court then pointed out that this distinction was clearly made out in Bharat Singh's Cas

Where the court disposed of a similar argument with the following observation :

Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Ac

though they are not conclusive proof of the matters admitted. We are of opinion that admission

duly proved are admissible evidence irrespective of whether the party making them appeared i

the case he made a statement contrary to these admissions. An admission is a substantiv

evidence of the fact admitted while a previous statement used to contradict a witness does no

become substantive evidence and merely serves the purpose of throwing doubt on the veracity

the witness.

Referring to the distinction between the relevancy of an admission and its weight the Cou

pointed out in the Bharat Singh's Case that the the weight to be attached to an admission mad

by a party is a mater different from its use as an admissible evidence.

Informal or casual AdmissionsSuch admissions may occur in the ordinary course of life, or in the course of business, or in casua

or informal conversation. The admission may be in writing or oral. Written admissions may occu

in the course of correspondence , in letters, business dairies or account book or other records.

there is a document against a party, any statement made by him about the contents of th

document is an admission against him even if the document itself is not provable on account o

want of stamp.

Admission and Hearsay

An oral admission can be proved either by the party to whom it was made or by someone wh

heard it being made. To this extent the evidence of an informal admission is an evidence o

hearsay. Sec.60 requires that oral evidence must in all cases be direct, that is to say, the witnes

must have personal and direct knowledge of the fact to which he testifies. If, for example, th

question is how a fire started. A person who witnessed the fire being started by an explosion ca

give evidence of this fact, for he has personal knowledge of the fact. If on his way home he tol

someone of the fact of explosion, that other cannot give evidence of the explosion for h

knowledge is nothing but a hearsay.

Persons whose admissions are relevant

Section 18 lays down the list of persons whose admissions constitute evidence against a party. Th


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effects of Sec.18,19 and 20, when put together, is that the admissions of following parties becom

relevant :

1. Parties of the Suit,

2. Agents of Parties,

3. Persons occupying representative character,

4. Statement will include the statements of the following parties :

This category will include the statements of the following parties :

(a) Persons having pecuniary or proprietary interest.

(b) Persons from whom the parties derived their interest.

(c) Persons whose position is in issue or is relevant.

(d) Persons expressly referred to.

Parties to suit or proceeding

The statement of a party in his written statement in an earlier proceeding was held to be relevan

against him in a subsequent proceeding. It seemed to the court to be evidence of telling natur

and heavily loaded against the party. Where there are more than one plaintiffs oar defendants to

suit, the Act does not make it clear whether the statement of a party will be relevant against his coplaintiffs or co-defendants. On principle as well as policy the statement of a defendant should no

bind his co-defendants, for otherwise the plaintiff can defeat the case of the other defendan

through the mouth of one of them. That would be unfair to the co-defendants. So a defendant

bound by his statement only to the extent of his own interest. An admission is the best evidenc

only against the party who has made it. Even if it were relevant under one category or the other,

appears from decision of the Supreme Court in Kashmira Singh v. State of M. P., that not muc

weight can be attached to it against the co-parties and it cannot by itself be the basis of legal righ

or liabilities.

Agents of Parties

The statement of an agent to a party are relevant as admission against the party provided th

court regards, under the circumstances of the case, the agents to be expressly or impliedl

authorised by the party to make the statement. According to the law of agency, a statement b

agent in the ordinary course of the business of agency is an admission against his principal.

Statements in representative character

A person who sues or is sued in a representative character, any statement made by him during th

time that he holds such character is an admission against the party whose representative he i

Representative character is occupied, for example, by trustees, receivers, the assignee of a

insolvent's estate, executors, administrators etc.

Persons having pecuniary or proprietary Interest in subject-matter

Statement of persons who, though not parties to the proceeding, have a pecuniary or proprietar

interest in the subject-matter of the proceeding, are relevant provided that the statement is mad

by any such person in the character of his interest.

Predecessor-in-title

Statements made by a persons from whom the parties to the suit have derived their interest in th

subject-matter of the suit are admissions provided they are made during the continuance of th

-


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.

title. Any statement made by him about the property while he was holding the title is relevan

against the parties who acquired the title from him. This category will include statements made b

a former owner of a property and such statements will be relevant against present owners.

statement made by any such person after he ceased to have any interest in the property i

question shall not be an admission against the present owner of the property.

Persons whose position is in issue

Sec.19 deals with statements of persons whose position is in issue, though they are not parties tthe case. The section is based upon the principle that where the right or liability of a party to a su

depends upon the liability of a third person, any statement by that third person about his liabilit

is an admission against the parties.

Statements by referees

Sec.20 deals with the principle that when a party makes a reference to a third person fo

information, any statement by that person about the subject-matter of the reference is a

admission against the party making the reference.

The Supreme Court in K.M. Singh v. Secretary, Association of Indian Universities. Here the issu

was whether the resignation tendered by the plaintiff was an involuntary one. He named tw

officials of the respondent association that if they would take special oath at a specified religiou

place and affirm that his resignation was not involuntary, he would accept the same. When th

official did so it amounted to an admission on his part and he became bound by the same.

S. 21. Proof of admissions against persons making them, and by or on their behalf. - Admissio

are relevant and may be proved as against the person who makes them, or his representative i

interest but they cannot be proved by or on behalf of the person who makes them or by h

representative in interest, except in the following cases :

(1)An admission may be proved by or on behalf of the person making it when it is of such a natur

that, if the person making it were dead, it would be relevant as between third persons u/s 32.

(2)An admission maybe proved by or on behalf of the person making it when it consists of

statement of the existence of any state of mind or body, relevant or in issue, made at or about th

time when such state of mind or body existed, and is accompanied by conduct rendering i

falsehood improbable.

(3)An admission may be proved by or on behalf of the person making it, if it is relevant otherwis

than as an admission.

Illustrations

(a) The question between A and B is, whether certain deed is or is not forged. Aaffirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may

prove a statement by A that the deed is forged but A cannot prove a

Statement by himself that the deed is genuine, nor can be proved a statement

by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business,


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s owing o servations a ege to ave een ta en y im rom ay to ay, an

indicating that the ship 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, under Sec.32.

Who can prove admissions

The section lays down the principles as to proof of admissions. The section is based upon th

principle that an admission is an evidence against the party who has made the admission and

therefore, it can be proved against him. He himself cannot prove his own statements, otherwis

every man, if he were in a difficulty, or in view of one, might make declarations to suit his ow

case, and then lodge them in proof of his case. The general rule is that the statements of a livin

person cannot be received unless they are against his interest. No man should be at liberty t

make evidence for himself through his own statements. Granted this facility, every litigant woul

construct a favourable case by his own statement.

The principle is, however, subject to important exceptions. In these exceptional cases a party

permitted to prove his own statements. Some of them may be mentioned here.

1. When the statement should have been relevant as Dying Declaration or as that

of a deceased person under S. 32.

Sec. 32 deals with the statement of persons who have died or who otherwise cannot come befor

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

relevant whether it operates in favour or against the person making the statement. I

circumstances stated in Sec. 32 such a statement can be proved by the maker himself if he is sti

alive. The exception is thus stated in S. 21(1).

An admission may be proved by or behalf of the person making it, when it is of such a nature th

if the person making it were dead, it would be relevant as between third persons under Sec. 32

Illustration (b) is on the point.

2. Statements as to bodily feeling or state of mind

The second exception is contained in S.21(2). It deals with statements as to body, bodily feeling o

state of mind. The subsection enables a person to prove his statements as to his state of body or o

mind. If, for example a person is injured and the question is whether the injury was intentional o

accidental, his statement at that time as to the way he was injured can be proved by himself. Th

conditions for the admissibility of such statements are, Firstly, that the statement should hav

been made at about the time when the state of mind of of body which is described by th

statement still existed. The statement should be contemporaneous with the existence of th

condition of mind or of body. This rules our chances of fabrication. A person is the least likely t

fabricate a statement when he is still reeling under the pain of the injury. And Secondly, th

statement should be accompanied by conduct which renders the falsehood of the statemen

improbable. Thus to reassure that the statement is really true, the Legislature insist that th

statement should be accompanied by such conduct as shows that the condition of mind or of bod

described by the statement is really true and not feigned. The conduct of a person under real pai

is different from that of a person who is only acting as such. The accompanying conduct is

greater guarantee of truth than the statements.


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3. When otherwise relevant

The last exception is that a person may prove his own statement when it is otherwise relevan

under any of the provisions relating to relevancy. A statement may be relevant either as a

admission of relevant fact or as a proof of the existence of a fact. There are many cases in which

statement is relevant not because it is an admission but because it establishes the existence o

non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own

statements.

Statement when Relevant

The act provides for the relevancy of statement in several cases.

Firstly, a party may prove his own statement under S.6 if it is a part of the same transaction. Th

doctrine of res gestae covers such statements.

Secondly, a statement may be proved by or on behalf of the person making it under Section 8 if

accompanies or explains acts other than statements or if it influenced the conduct of a perso

whose conduct is relevant.

Thirdly, a statement may be proved by or on behalf of the person making it under Section 14 if th

statement explains his state of mind or body or bodily feeling when any such thing is relevant or in issue.

Fourthly, a statement may be proved on behalf of the person making it if it is relevant under an

of the clauses of Section 32.

The Supreme Court has also laid down in some cases that where there is an admission, it is no

necessary to confront the person concerned with the previous statement. This is so because a

admission is a substantive and an independent piece of evidence.

Presumption of genuineness of electronic records.

Electronic records are presumed to be true. No further evidence is necessary in proof of a fa

appearing in such record. It is only when the genuineness of the record is in question that otheevidence would be receivable. In that case, an oral account of the contents of such record wou

also become receivable in evidence.

In K. Chinnaswamy Reddy v. State of Andhra Pradesh, to hold that the statement relating t

concealment is admissible in evidence by virtue of section 27. In that case, the question wa

formulate by the court, as follows:

Let us then turn to the question whether the statement of the appellant to the effect that 'he ha

hidden them (the ornaments)' and would point out the place' where they were, is whol

admissible in evidence under S.27 or only that of it is admissible where he stated that he woul

point out the place but not the part where he stated that he had hidden the ornaments.

In Pulukuri Kotayya v. King Emperor, the above question was answered as :

If we may respectfully say so, this case clearly brings out what part of the statement is admissibl

under S.27. It is only that part which distinctly relates to the discovery which is admissible if an

part of the statement distinctly relates to the discovery it will be admissible wholly and the Cou

cannot say that it will excise one part of the statement because it is of a confessional nature


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as a whole, whether it be in the nature of confession or not.

It is however urged that in a case where the offence consists of possession even the words wher

he had hidden them' would be inadmissible as they would amount to an admission by the accuse

that he was in possession. There are in our opinion two answers to this argument. In the fir

place S.27 itself says that where the statement distinctly relates to the discovery it will b

admissible whether it amounts to a confession or not. In the second place, these words b

themselves though they may prove the offence, for after the articles have been recovered arconnected with crime. i.e. In this case the prosecution will have to show that they are stole

property. We are therefore of opinion that the entire statement of the appellant would b

admissible evidence

In the light of this decision, we must hold that the accused must be deemed to be in exclusiv

possession of the articles concealed under the earth though the spots at which they wer

concealed may be accessible to public.

CONFESSION

The term confession is nowhere defined in the Evidence Act. All provisions relating t

confessions occur under the heading of admission. If a statement is made by a party to a Civ

proceeding it will be called an admission and if it is made by a party charged with a crime it wi

be called a confession. A confession is a statement made by a person charged with a crim

suggesting an inference as to any facts in issue or as to relevant facts. The inference that th

statement should suggest should be that he is guilty of the crime.

Stephen defined Confession as : A confession is an admission made at any time by a perso

charged with a crime stating or suggesting the inference that he committed that crime.

A confession is a direct acknowledgment of guilt, on the part of the accused, and by the very forc

of the definition excluded an admission which of itself as applied in Criminal Law, is statement b

the accused direct or implied, of facts pertinent to the issue, and tending in connection with

proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction.

The acid test which distinguishes a confession from an admission is that where conviction can b

based on the statement alone, it is a confession and where some supplementary evidence

needed to authorise a conviction, then it is an admission. An other test is that if the prosecutiorelies on the statement as being true it is confession and if the statement is relied on because it

false it is admission. In criminal cases a statement by accused, not amounting to confession bu

giving rise to inference that the accused might have committed the crime is his admission.

Only voluntary and direct acknowledgment of guilt is confession. In a statement recorded by th

Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact o

assault on the deceased by mistake. The Supreme Court held that such statement could not b

used against the accused as a Confession. A statement which may not amount to a confession ma

still be relevant as an admission.


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e e n t on attempte y t e r vy ounc as oun avour w t t e upreme ourt n a a

Narayan Swami v. Emperor over two scores. Firstly, that the definition is that it must either adm

the guilt in terms or admit substantially all the facts which constitute the offence, and secondl

that a mixed up statement which, even though contains some confessional statement, will sti

lead to acquittal, is no confession.

The confession comprised of two elements : (a) an account of how the accused killed the woma

and (b) an account of his reasons for doing so. The former elements being inculpatory and latte

exculpatory. In Aghnoo Nagesia v. State of Bihar when a statement in FIR given by an accusecontains incriminating materials and it is difficult to sift the exculpatory portion therefrom, th

whole of it must be excluded from evidence.

Forms of Confession

A confession may occur in any form. It may be made to the court itself, when it will be known a

udicial confession or to anybody outside the court, in which case it is called an extra-judici

confession. It may even consist of conversation to oneself, which may be produced in evidence

overheard by another.

Judicial Confession

Judicial confessions are those which are made before a magistrate or in court in the due course o

legal proceedings. A is accused of having killed G. He may, before the trial begins confess the gui

before some magistratae who may record it in accordance with the provisions of Section 16

Cr.P.C. At the committal proceedings before the magistrate or at the trial before Session Judge,

may confess his guilt. All these are Judicial confessions. A judicial confession has been defined t

mean plea or guilty on arrangement (before a tribunal) if made freely by a person in a fit state o

mind.

Extra Judicial Confession

Extra Judicial confessions are those which are made by the accused elsewhere than before magistrate or in court. An 'extra Judicial Confession' can be made to any person or to a body o

persons. It is not necessary that the statements should have been addressed to any definit

individual. It may have taken place in the form of a prayer. An extra judicial confession has bee

defined to mean a free and voluntary confession of guilt by a person accused of a crime in th

course of conversation with persons other than judge or magistrate seized of the charge again

himself.

An unambiguous extra judicial confession has got value of high probability because this type

confession is made by that person who had committed the crime and it will be taken int

consideration if it is free from doubt and its untruthfulness is free from any doubt. But foconfession made about charge in question the court has to satisfy itself that the confessio

voluntary and the confessions should not have been caused by inducement, threat or promise

the confession should not have been taken under the circumstances which came under perview o

Sec.25 or 26.

Before accepting the extra judicial confession, it should be seen that it is not made under unfair o

colleteral notions. For this the court has to enquire all the relevant facts, such as to whom th

confession was made, the time and place of making confession and the phraseology used by th

accused.


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Section 24. Confession caused by inducement, threat or promise, when irrelevant in crimina

proceeding. -- A confession made by an accused person is irrelevant in a criminal proceeding,

the making of the confession appears to the court th have been caused by any inducement, thre

or promise having reference to the charge against the accused person, proceeding from a perso

in authority and sufficient, in the opinion of the Court, to give the accused person grounds, whic

would appear to him reasonable, for supposing that by m aking it he would gain any advantage o

avoid any evil of temporal nature in reference to the proceeding against him.

Principle underlying Section 24.

The ground upon which confessions are received in evidence is the presumption that no perso

will voluntarily make a statement which is against his interest unless it be true. But the force o

the confession depends upon its voluntary character. There is always a danger that the accuse

may be led to incriminate himself falsely.

Voluntary and non-voluntary confession

The confession of an accused may be classified as voluntary and non-voluntary. A confession t

the police officer is the confession made by the accused while in custody of a police officer an

never relevant and can never be proved under Section 25 and 26. Now as for the extra-judiciconfession and confession made by the accused to some Magistrate to whom he has been sent b

the police for the purpose during the investigation, they are admissible only when they are mad

voluntarily. If the making of the confession appears to the court to have been caused by an

inducement, threat or promise having reference to the charge against the accused perso

proceeding from a person in authority and sufficient in opinion of the court to give the accuse

person grounds, which would appear to him reasonable for supposing that by making ti he woul

gain any advantage or avoid any evil of a temporal nature in reference to the proceeding again

him, it will not be relevant and it cannot be proved against the person making the statemen

Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which armade non-voluntarily.

Confession irrelevant.-- If a confession comes within the four corners of Section 24 it is irrelevan

and cannot be used against the maker.

The ingredients of Section 24.-- To attract the prohibition enacted in Section 24

the following facts must be established :

(1)That the statement in question is a confession,

(2)that such confession has been made by the accused,

(3)that it has been made to a person in authority,

(4)that the confession has been obtained by reason of any inducement, threat or promis

proceeding from a person in authority,

(5)such inducement, threat or promise must have reference to the charge againt the accused, and

(6)the inducement, threat or promise must in the opinion of the court be sufficient to give th

accused ground, which would appear to him reasonable, for supposing that by making it he woul

gain any advantage or avoid any evil of a temporal nature in reference to the proceedings again

him.

(A)Confession caused by inducement, threat or promise. -- The term of inducement involves


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.

very difficult, to lay down any hard and fast rule as to what constitutes inducement. It is for th

Judge to decide in every case. Before a confession can be received as such, it must be shown that

was freely and voluntarily made. Thus it is clear that if threat or promise from a person i

authority is used in getting a confession it will not be taken into evidence.

(B)Threat, inducement and promise from a person in authority. -- The threat, inducement an

promise on account of which, the accused admits the guilt must come from a person who has go

some authority over the matter. It appears that a person in authority within the meaning oSection 24 should be one who by virtue of his position wields some kind of influence over th

accused.

(C)Inducement must have reference to the charge.-- The inducement must have reference to th

charge against the accused person, that is the charge of offence in the criminal courts an

inferencing the mind of the accused with respect to the escape from the charge. The inducemen

must have reference to escape from the charge. Mere exhortation to speak the truth in name o

God cannot in itself amount to an inducement.

(D)Sufficiency of the inducement, threat or promise. -- Before a confession is exclude

inducement, threat or promise would in the opinion of the court be sufficient to give the accuseperson ground which would appear to the accused (and not the court) reasonable for supposin

that by making the confession he would gain an advantage or avoid an evil of the nature

contemplated in the section. Consequently the mentality of the accused has to be judged and no

that of the person in authority.

Section 25.-- Confession to Police officer not to be proved. -- No confession made to a polic

officer, shall be proved as against a person accused of any offence.

The principle upon which the rejection of confession made by an accused to a police officer o

while in the custody of such officer is found is that a confession thus made or obtained

untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoi

the danger of admitting a false confession. The police officer in order to secure conviction in a cas

very often puts the person so arrested to severe torture and makes him to confess a guilt withou

having committed it and when such steps are taken there is impunity for the real offender an

great encouragement to crime. Section 25 lays down that no confession made to a police office

shall be proved as against person accused of an offence.

It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. A

statements that do not amount to confessions are not excluded by Section 25 of the Evidence Ac

and can be brought on record and proved against any accused.Section 26.-- Confession by accused while in custody of police not to be proved against him. -- N

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

immediate presence of a Magistrate, shall be proved as against such person.

The object of Section 26 of the Evidence Act is to prevent the abuse of their power by the polic

and hence confessions made by accused persons while in custody of police cannot be prove

against them unless made in presence of Magistrate.

Section 27.-- How much of information received from accused may be proved. - Provided tha

when any fact is deposed to as discovered in consequence of information received from a perso


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accuse o any o ence, n e cus o y o a po ce o cer, so muc o suc n orma on, w e er

amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved

This section of the Act is founded on the principle that if the confession of the accused

supported by the discovery of a fact then it may be presumed to be true and not to have bee

extracted. This section based on the view that if a fact is actually discovered in consequence

information given, some guarantee is afforded thereby that the information was true an

accordingly can be safely allowed to be given in evidence. But clearly the extent of the informatio

admissible must depend on the exact nature of the fact discovered to which such information required to relate.

Section 26 and 27 compared

Though the section is in the form of a proviso to Sec.26, these two sections do not deal wit

evidence of the same character. Section 26 bans confession to police altogether, but S. 27 lets in

statement which leads to a crucial discovery whether it amounts to confession or not. Unde

Section 26 a confession made in the presence of a Magistrate is wholly provable, whereas Sectio

27 permits only the part of the statement which leads to the discovery of fact. The scope of th

section was explained by the Privy Council in Pulukari Kotaya v. Emperor.

A number of accused persons were prosecuted for rioting and murder. Some of them wer

sentenced to death and some to transportation for life. They appealed to the Privy Council o

grounds, among others, that the statements of some of them were admitted in violation of Sectio

26 and 27. The statement of one of them was : About 14 days ago I, Kottaya, and people of m

party lay in waitfor Sivayya and others.... We all beat Sivayya and Subayya to death. Ramayya wh

was in our party received blows on his hands. He had a spear in his hands. He gave it to me then.

hid it and my stick in the rick of my village. I will show if you come. We did all this at the instanc

of Pulukuri Kottya. Another accused said : I stabbed Sivayya with a spear. I hid the spear in

yard in my village. I will show you the place. The relevant articles were produced from therespective places of hiding.

The High Court admitted the whole of the above statement. High Court held that unless the who

of the statement is admitted, it would be difficult to connect the articles produced with th

offence, the only connecting link being the confession statement.

The Privy Council pointed out that the case was wrongly decided. The result of the decision was t

read in Section 27 something which is not there and admit in evidence a confession barred b

Section 26.

Explaining the relationship between Section 26 and 27 and the bar imposed by Section 26, the

Lordship said :That ban was presumably inspired by the fear of the Legislature that a person under polic

influence might be induced to confess by the exercise of undue pressure. But if all that is require

to lift the ban be the inclusion in the confession of information relating to an object subsequentl

produced, the ban will lose its effect. On normal principles of construction their Lordships thin

that the proviso to Section 26 added by Section 27, should not be held to nullify the substance o

the section. In their Lordship's view it is fallacious to treat the fact discovered as equivalent t

the object produced the fact discovered embraces the place from which the object is produced an

the knowledge of accused as to this, and the information given must relate distinctly to this fac


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Information as to the past use of the object produced is not related to its discovery. Informatio

supplied by a person in custody that I will produce a knife concealed in the roof of my house

does not lead to the discovery of a knief. It leads to the discovery of a fact that a knife is conceale

in the house of the informant to his knowledge, and if the knife is concealed in the house of th

informant to his knowledge, and if the knief is proved to have been used in the commission of th

offence, the fact discovered is very relevant. But if to the statement the words are added wit

which I stabbed A these words are inadmissible since they do not relate to the discovery of th

knief in the house of the informant.

Explaining the scope of the section in general terms, their Lordships observed :

Section 27, which is not artistically worded, provides an exception to the prohibition imposed b

the preceding section, and enables certain statements made by a person in police custody to b

proved. The condition necessary to bring the section into operation is that discovery of a fact i

consequence of information received from a person accused of any offence in the custody of polic

officer must be deposed to, and thereupon so much of the information as relates distinctly to th

fact thereby discovered may be proved. The section seems to be based on the view that if a fact

actually discovered in consequence of information given, some guarantee is afforded thereby thathe information was true and accordingly can be safely allowed to be given in evidence. Normal

the section is brought into operation when a person in police custody produces from some place o

concealment some object, such as, a dead body, a weapon or ornaments, said to be connected wit

the crime of which the informant is accused.

Referring to the facts of the case their Lordship held that the whole of statement except th

passage, I hid it(a spear) and my stick in the rick in the village. I will show if you come i

inadmissible. Referring to the statement of the other accused, that I stabbed Sivayya with a spea

I hid the spear in a yard of my village. I will show you the place, their Lordships held that the firs

sentence must be omitted.In Bodh Raj v. State of J & K. it was held that only the information that definitely relates to th

facts discovered is admissible. But the information should not be truncated in such manner as t

make it insensible. The information must be recorded. Where it is not recorded, the exac

information must be adduced through evidence.

In State of Karnataka v. David Razario, it was held that the articles proved to have been stolen b

the accused were of very small value, articles of higher value remained untouched in the house o

the deceased, whether this could be exculpatory circumstance in a charge of murder with robber

or whether such evidence could be sole basis of conviction, question left unanswered.

In Pandurang Kalu Patil v. State of Maharashtra, it was held that where the accused disclosed :

have kept the firearm concerned behind the old house under a heap of wood. The same wa

recovered from the place. The court said that the fact discovered was not the gun but the fact tha

the accused had concealed it at the place from where it was found according to his disclosure.

Section 28 provides that if there is inducement, threat or promise given to the accused in order t

obtain confession of guilt from him but the confession is made after the impression caused by an

such inducement, threat or promise has, in the opinion of the court, been fully removed, th

confession will be relevant because it becomes pre and voluntary. It must be borne in mind tha

there must be stron and co ent evidence that the influence of the inducement has reall ceased.


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Section 29 lays down that if a confession is relevant, that is if it is not excluded from being prove

by any other provisions of Indian Evidence Act, it cannot be irrelevant if it was taken from th

accused by (1) giving him promise of secrecy, or (2) by deceiving him, or (3) when he was drunk

or (4) because it was made clear in answer to question which he need not have answered, o

because no warning was given that he was not bound to say anything and that whatever he will b

used against him.

Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it will not bexcluded on the ground of the promise of secrecy or of deception or of being drunk, or for bein

made in answer to question or without that it will be used against him in evidence.

DYING DECLARATION

Section 32. Cases in which statements of relevant fact by person who is dead or cannot be foun

etc. is relevant.-- Statement written or verbal, or relevant facts made by a person who is dead, o

who cannot be found, or who has become incapable of giving evidence, or whose attendanccannot be procured without an amount of delay or expense which, under the circumstance of th

case appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death. -- When the statement is made by a person as to the cause o

his death, or as to any of the circumstances of the transaction which resulted in his death, in case

in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the tim

when they were made, under expectation of death, and whatever may be the nature of th

proceeding in which the cause of his death comes into question.

Illustration

(a) The question is whether A was murdered by B or

A dies of injuries received n a transaction in the course of which she was ravished. The question i

whether she was ravished by B or

The question is, whether A was killed by B under such circumstances that a suit wold lie against

by A's widow.

Statements made by A as to cause of his or her death, referring respectively to the murder, th

rape and the actionable wrong under consideration are relevant facts.

Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsaevidence is admissible as an exception to the general rule of evidence that hearsay evidence is n

evidence in eye of law and it should be discarded as general rule because the evidence in all case

must be direct.

Requirements of Section 32.

The section is one of those3 provisions that provide exceptions to the principle of excludin

hearsay evidence. The principle of the section is that a person who has the first-hand knowledge o

the facts of a case, but who, for reasons stated in the section, such as death or disability, is not ab

to appear before the court, then his knowledge should be transmitted to the court through som


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o er persons.

Dying Declaration or statements relating to cause of death

Such a statement can be proved when it is made by a person as to the cause of his death, or as t

any of the circumstances of the transaction which resulted in his death. The statement will b

relevant in every case or proceeding in which the cause of that person's death comes into question

The clause further goes on to say that such statements are relevant whether the person who mad

them was or was not, at the time when they were made, under expectation of death and whateve

may be the nature of the proceeding in which the cause of death comes into question.The clause incorporates the principle of English law relating to what are popularly known as dyin

declarations but marks a remarkable departure from them.

Dying declaration in English Law

A 'dying declaration' means the statement of a person who has died explaining the circumstance

of his death. According to English law the statement is relevant only when the charge is that o

murder of manslaughter.

The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock

explained the general principle :

The general principle on which this species of evidence is admitted is, that they are declaration

made in extremity, when the party is at the point of death, and when every hope of this world i

gone when every motive of falsehood is silenced, and the mind is induced by the most powerfu

considerations to speak the truth.

While the principle stated in this case relating to the basis on which dying declarations are give

credit has been approved, the subsequent cases quite clearly emphasise that declarations mad

without appreciation of impending death would not be admitted.

The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in th

following words : The principle on which a dying declaration is admitted in evidence is indicatein Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie i

his mouth. Explaining the word immediate which was inserted by his Lordship said

Immediate death must be construed in the sense of death impending, not on that instant, bu

within a very, very short distance indeed. In other words, the test is whether all hope of life ha

been abandoned so that the person making the statement thinks that death must follow

Applying this principle to the facts, his Lordship held that the words I shall go should not b

taken alone ant the effect of the whole sentence was that she was under the hopeless expectatio

of death.

An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clea

in all respects. To wind up the statement the doctor asked the injured if he had anything else t

say. He lapsed into unconsciousness without answering this question. The court held that th

statement was not incomplete. It was rightly admitted.

Dying declaration under clause (1) of s. 32

Anticipation of death not necessary

One of the most important departures from English law that the Evidence Act marks is that here

is not necessary that the declarant should be under any expectation of death. If the declarant ha


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in fact died and the statement explains the circumstances surrounding his death, the statemen

will be relevant even if no cause of death had arisen at the time of the making of the statemen

The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of th

Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder an

sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased

secondly, the statement of the deceased of his wife that he was going to the accused, thirdly, th

steel trunk was purchased by a Dhobie (washerman) for and on behalf of the accused. Some othe

details about the arrival of the deceased at the accused's house, discovery of blood-stained clothe

and transportation of the trunk of the station were also proved. The accused appealed to the Priv

Council on the grounds that the statement of the deceased to his wife that he was going to th

accused was wrongly admitted under S.32(1). Th

law notes_ evidence act

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