LAW EVIDENCE NOTES Q. "Evidence may be given of facts in issue and relevant facts." Explain. To ensure that a judicial process does not linger on for too long, courts cannot waste their time on things that are not important for the case. While there can be many things for which evidence can be given but evidence that does not bear on the case at hand, has no use for the court. This is the concept behind Section 5 of Indian Evidence Act, 1872, which says that in any suit 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 be relevant, and of no others. A person is not allowed to bring forward any evidence to prove or disprove a fact that is neither a fact in issue or a fact that is relevant to the facts in issue. This statement refers to two kinds of facts - 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 issue is a fact that directly or indirectly in connection with other facts, determines the existence, non-existence, nature, or extent of any right or liability that is asserted or denied in any suit or proceeding. In other words, facts in contention in a case are facts in issue. For example, A is accused 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 they determine the liability of A. Their truth increases or decreases the probability that A murdered B. Prosecution will have to establish the facts that prove that A murdered B before A can be convicted. At the same time, the prosecution 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, which means fact to be proved. A fact will be considered as fact in issue only if the fact is such that by itself or in connection to other facts it is crucial to the question of a right or liability. To be a fact in issue, a fact must satisfy two requirements - the fact must be in dispute between the parties and the fact must touch the question of right or liability. The extent of rights and liabilities of parties depend on the ingredients of an offence. In criminal matters, the allegations in the charge sheet constitute the facts in issue, while in a civil case, it depends on the provisions of the substantive law. Relevant Facts (Q. What do you understand by 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" means the property of a thing that makes it connected to the matter at hand. A thing is relevant to other when it has a relation to the other thing that tells something appropriate about the other thing. Relevancy of a Fact means that the fact has a significant relation to another fact that is under consideration. When two facts have a direct relation, they are relevant to each other. For relevancy it is necessary that if we take one fact, the other will be relevant only if there is a certain type of relation between them, which is pertinent in the given circumstances. A relevant fact is also known by its latin term - factum probans, which means a fact that proves. Thus, if facts-in-issue are the facts to be proved or disproved in a trial, relevant facts are the facts that help prove or disprove facts-in-issue. A fact is relevant if belief in that fact helps the conclusion of the existence or non-existence of another.
Section 3 specifies that a Relevant fact is a fact is relevant to another when it is connected to the other in any of the ways referred to in the provisions contained in the act. Sections 6 to 55 contains provisions that define the relationships that make a fact legally relevant or not relevant to another. The relationship makes one fact more probable or improbable because of the other. For example, Fact A is that a person was given certain medication and he died. Fact B is that the person was suffering from TB. Here, fact B is relevant to fact A because it throws light on the possible causes of his death. Fact B makes is probable that he might have died because of TB instead of the given medication. In DPP vs Kilbourne, 1973, Lord Simon of Glaisdale has said, "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. A relevant evidence is evidence that makes the matter which requires proof more or less probable." As is evident from Section 5 stated above, only those facts that are related to the facts in issue through relationships defined in Section 6 to 55 are legally relevant and evidence can be given only for those facts in a trial. It must be noted, however, that a relevant fact may not necessarily be admissible. Section 11 would be important to mention here. As per Section 11, in certain situations facts not otherwise relevant become relevant. This happens if they are inconsistent with any fact in issue or relevant fact or if 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. (b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant. As is shown by these illustrations, an alibi is a very common example of an irrelevant fact becoming relevant. Q. Explain the doctrine of Res Gestae. Do you agree with the view that this doctrine is not only useless but is also harmful? / When does relevancy of facts form part of the same transaction? Doctrine of Res Gestae In a nutshell, Res Gestae means facts forming part of a transaction. This includes things done and things said in the course of a transaction. Acts and declarations accompanying a transaction are treated as Res Gestae and are admissible in evidence. As discussed above, a Court is interested only in such evidence that is bearing on a fact in issue or a relevant fact. This is important in limiting the scope of the trial to facts that are indeed important for the case so that justice can be done swiftly. However, in narrowing the scope of things that can be brought before the court, injustice should not be done. The things that are reasonably connected to the facts in issue are usually very important for a case and such facts must be allowed to be brought before the court whether they fall into any of the sections that categorize the facts as relevant or not. This concept is espoused 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 of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. What it means is that a fact in issue does not happen in isolation. It always has a factual story behind it. A fact in issue lies in a pool of other facts that gives birth to it. This section 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 same transaction in which the fact in issue occurred. "Occurring in the same transaction" is a wide term that includes several kinds of things such as things that happened at the vicinity of the facts in
issue, things that were done by the accused right after or before the facts in issue, things that lead to facts in issue, and so on. The following illustrations explain the kind of facts that are contemplated under this section: Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. The principle that is highlighted by the above illustrations is that whenever "transaction" such as a contract or a crime, is a fact in issue, then evidence can be given of every fact which forms part of the same transaction. According to Stephen, a transaction is a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong, or any other subject of inquiry which may be in issue. Although Section 6 does not use the words Res Gestae, the concept behind this section is often referred to by this term. 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 the event to be proved. Res Gestae and Hearsay Evidence Res Gestae also refers to secondhand statements considered trustworthy for the purpose of admission as evidence in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event. Under the hearsay rule (Section 60 - Oral evidence must be direct), a court normally refuses to admit as evidence statements that a witness says he or she heard another person say. Traditionally, two reasons have made hearsay inadmissible: unfairness and possible inaccuracy. Allowing a witness to repeat hearsay does not provide the accused with an opportunity to question the speaker of the original statement, and the witness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel can object to a witness's testimony as hearsay. The doctrine of Res Gestae is one of the many exceptions to this rule. Since certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other secondhand statements and therefore should be admissible as evidence. To be admissible, the statements must relate, explain, or characterize an event or transaction. They must be natural statements growing out of the event, as opposed to a narrative of a past, completed affair. Additionally, the statements must be spontaneous, evoked by the event itself, and not the result of premeditation. Finally, the original speaker must have participated in the transaction or witnessed the event in question. Thus, for example, a witness might testify that during a bank robbery, she or he heard another person shout, "That person is robbing the bank!" and the statement could be admitted as an exception to the ban on hearsay. Illustration (a) above is an example of such statement.
Usefulness of Res Gestae As per Phillip's Treatise on Evidence, the reason why the term Res Gestae has been avoided from Section 6 is because this doctrine has been productive of confusion. There can be numerous facts that surround the facts in issue. They can all be somehow linked with the same transaction. There is no clearcut rule that can demarcate a transaction. So it is entirely left to the experience and intuition of the Judges to determine whether a particular fact can be included in Res Gestae or not. This is evident from the following two cases. In the case of R vs Foster 1843, accused was charged with manslaughter in killing a person by driving over him. A witness saw the vehicle driven fast but did not see the accident. Immediately after, on hearing the victim groan, he went up to him and asked him what happened. The deceased then made a statement as to the cause of the injury. The court held that what the deceased said at the instant, as to the cause of the accident is clearly admissible. As a contrast, in the case of R vs Beddingfield 1879, a woman, with her throat cut, came suddenly out of a room, in which she had been injured. Shortly before she died, she said, "Oh dear Aunt, see what Beddingfield has done to me." 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 same results in very similar situations. This certainly causes confusion in the minds of novice lawyers and judges. My belief is that this principle should be applied when common sense dictates so. Like any other principle, this principle is also not a precise instrument to measure relevancy. It is only a guide that can help decide whether a fact is sufficiently relevant to a fact in issue. The final decision rests with the Judge, who should decide depending on the peculiarities of the case. I do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigid rule of law. It should be applied only when suitable. Q. What facts are relevant under Indian Evidence Act? Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed relevant. These are as follows - [TrOcMI ConODC 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 and place 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 he showed 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 in issue 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 fact happened, 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 conspiracy as 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, or in 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 any particular 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 or bodily 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 many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen 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 of which 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 a certain place to be carried to the post, and that particular letter was put in that place are relevant Sections 17 to 31 - Admission of facts by particular persons is relevant. Sections 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 situations. Sections 52-55 - Character of a person is relevant in certain situations. Q. Are those facts also relevant which are the occasion, cause, or effect of facts in issue? Yes, facts because of which facts in issue take birth, or facts which take birth because of facts is issue are also considered relevant fact. Evidence can be given for the set of circumstances under which the principle facts occurred. As per Section 7 - 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. Illustrations (a) The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant. (b) The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. (c) The question is, whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts. 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 case of R vs Richardson, where a person was charged with the rape and murder of a girl, the fact that the girl was alone in her cottage at the time of her murder is relevant because it provided the occasion in which the crime happened. 2. Cause - Facts that form the cause of facts in issue are relevant. For example, A is charged of criminal misappropriation of funds from a bank. The fact that A was hugely in debt at the time of committing the crime is a relevant fact because it indicates a possible cause of the commission of the crime. 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 Madhuri Chaudhury AIR 1965, the report of
an Inquiry Commission relating to an air crash was held relevant under Section 7 as establishing the cause of the accident. 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 throws light upon the nature of the act. For example, where a person is poisoned, the symptoms produced are effects of the fact in issue and so are relevant. 4. Opportunity - Circumstances which provide an opportunity for the happening of a fact in issue are relevant. For example, a break from the daily routine of a person may be the opportunity that is used the person to commit the crime. For example, in R vs Richardson, the fact that Richardson left his fellow workers at about the time of murder under the pretense of going to a smith's shop is relevant because it provided an opportunity for the fact in issue, namely her rape and murder, to happen. 5. State of Things - Facts which constitute the state of things under which or in the background of which the principle facts happened are relevant. For example, in the fact ore Rattan vs Reginum, AIR 1971, a person shot his wife and his plea was that it was an accident. The fact that he was unhappy with his wife and was having an affair with another woman, was held to be a relevant fact. Q. "Any fact is relevant which shows or constitutes a motive or preparation and conduct of any fact in issue or relevant fact". Explain. This statement is taken from Section 8 of Indian Evidence Act, which is as follows Section 8 - Motive, preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. Illustrations (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. (b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (c) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant. (d) The question is, whether a certain document is the will of A. The facts that, not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate, that he consulted vakils in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant. (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 to the facts of the case an appearance favorable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence- "the police are coming to look for the man who robbed B," and that immediately afterwards A ran away, are relevant. (g) The question is, whether A owes B rupees 10,000. The facts that A asked C to lend him money, and that D said to C in A's presence and hearing- "I advise you not to trust A, for he owes B 10,000 rupees," and that A went away without making any answer, are relevant facts. (h) The question is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant. (i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. (j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157. (k) The question is, whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157. This section provides for the relevancy of three principal facts which are very important in connection with any case, namely, Motive, Preparation, and Conduct. Motive - Motive is the power that impels one to do an act. It is a kind of inducement for doing the act. Motive by itself is not a crime but is helpful in establishing guilt. Evidence of motive helps the court connect the accused with the deed and is so very relevant. For example, on the murder of an old widow, the fact that the accused was to inherit her wealth was held as relevant as it showed that the accused had the motive to kill her. In another case, 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 it explained the motive behind the murder. Preparation - The acts of preparation for a crime are relevant. Preparation by itself is not a crime (except in certain offenses such as waging a war against Govt. of India) but the facts that show the preparation tie the preparer to the actual crime and so are relevant. For example, act of purchasing a poison shows the preparation of the murder by administering poison. Conduct - The state of mind of a person is often reflected in his conduct and so conduct of a person is a relevant fact. This section makes the conduct of any party to a civil suite or their agents relevant. In a criminal case, the conduct of the accused before, while, or after doing the act is deemed relevant. However, two conditions must be fulfilled for the conduct to be relevant 1. The conduct must be in reference to the facts in issue or the facts related to them. 2. The conduct is such as influences or is influenced by the facts in issue or relevant facts. Q. When do facts not otherwise relevant become relevant? A fact, which does not have any such relation as defined in Section 6 to 55 to the fact in issue is not a relevant fact and ordinarily evidence cannot be given for such a fact. However, when an irrelevant fact is such that it makes the existence or non-existence of a fact in issue highly probable or improbable, it becomes very important for the case because it helps the court to determine the truth. Such a fact ought to be brought before the court. This is the concept embodied in Section 11. It says the following : Section 11 - 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. Illustrations (a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore, is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant. As given in illustrations above, an alibi is a very common example of an irrelevant fact becoming relevant. Indeed, if a person is proved to be not at the location of the crime at the time of the crime, he cannot have committed the crime. However, the burden of proof is on the accused and strict evidence is required to establish such pleas For example, in case of Mithilesh Upadhyaya vs State of Bihar, 1997, the accused stated that he was in the hospital at the time of crime but did not give any supporting documents. His plea was not accepted. It must be noted that this section is quite wide in its scope. It does not place any restriction upon the range of facts that can be admitted as showing inconsistencies or probabilities. Any fact that makes the existence of a fact in issue highly probable or improbable is covered. JAMES FITZAMES STEPHEN, the author on Indian Evidence Act in his book Introduction To The Indian Evidence Act, observed that the facts relevant under S. 11 would, in most cases, be relevant under other sections. The object of drawing the act in this manner was that the general ground on which facts are relevant might be stated in so many and popular forms as possible, so that if a fact is relevant its relevancy may be easily ascertained. However, many facts can be connected to facts in issue or relevant facts through a long chain of ratiocination but that will unnecessarily complicate the trial and will be detrimental to speedy justice. Thus, to limit the the facts which are covered in this section, we need to understand which facts are not relevant. Irrelevant facts are the facts that come under the rules of exclusion, namely - facts that come under hearsay and facts that come under the principle - a transaction between two parties ought not be operate to the disadvantage of the third. Example of facts under hearsay is, "Mr. X said that Mr. 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 to be used as evidence, similar unconnected transactions, and opinion of third parties. Rule in section 11 makes such facts relevant if they are inconsistent with the facts in issue or make their existence or non existence highly probable. Thus, the only criteria for giving evidence of fact under section 11 is that it should make the existence of a fact in issue highly probable or improbable. In Ram Kumar Panday vs State of MP, 1975, it was held that important omissions would be relevant under this rule. Q. How far is character relevant and admissible in evidence in civil and criminal cases? A character of a person is a very vague and subjective aspect. It is at best imprecise and at worst dangerous to draw an inference about the liability of a person from his character. Therefore, the general rule is that character of a person is not relevant for establishing guilt. However, there are certain exceptional 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 in civil and criminal cases. Relevancy in Civil Cases Section 52 lays down a general principle for civil suits that the evidence of a party's character cannot be given to show that the conduct attributed to the party is probable or improbable. This means that a defendant cannot show his good character as evidence to prove that his would not
have said defamatory things about the plaintiff and similarly the plaintiff cannot show previous bad character of the defendant as evidence to prove that the defendant must have said defamatory things about the plaintiff. This principle was laid down in a very old case of Attorney General vs Bowman, 1771. In this case a man was tried for a penal action, and not for a criminal prosecution, for carrying false weights and offering to corrupt an officer. He called a witness to testify that he was a man of good character and conduct. This was not admitted by the court. Further, as held in Hollington vs Hewthorn & Co ltd, 1943, which is 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 this case, an action was brought against the defendant for damages caused by the defendant's negligent driving of a motor car. The defendant had also been prosecuted for the same accident and convicted. The plaintiff sought to give evidence of this conviction in proof of the fact that he was guilty of careless driving. However, the evidence was not accepted as admission on the ground that conviction by a criminal court is at best an opinion of that court that the defendant was guilty and such opinion is not admissible. Exceptions 1. When character appears from other relevant evidence - Second part of Section 52 provides that if a fact is otherwise relevant to the case then the conclusion about a party's character may be drawn from such fact. An otherwise relevant fact cannot be excluded from evidence merely because it incidentally throws light upon a party's character. For example, a journalist is described as an exploiter and he sues for damages for defamation and the defendant takes the defense that whatever the defendant has said is true. Now, the defendant will have to give evidence to prove the exploitation which the plaintiff has been practicing. Such evidence will also bring to light the real character of the plaintiff and the court can take note of this. 2. When character itself is in issue - Section 54 says that previous bad character is not relevant, except in reply. However, Explanation 1 to this section specifies that this rule does not apply when character itself is a fact in issue. For example, in a divorce case on the ground of cruelty, the cruel character of the defendant is a fact in issue and evidence can be given in support of that previous bad character. 3. Determination of damages - Section 55 allows the character of the plaintiff to be considered as relevant for determining the amount of damages that he ought 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. The defendant tried to show the character of the plaintiff but the trial judge refused to admit it. Upon appeal for retrial, J Cave, held that the evidence should have been allowed to be admitted. He remarked that if the plaintiff claims 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 the character of the plaintiff is not allowed then there will be no difference between an honorable person and a cheat. A virtuous woman will be kept at the same level with a prostitute. To enable a jury to estimate the quantum of injury sustained, the knowledge of party's character is relevant. Relevancy in Criminal Cases Section 53 lays down the general principle that in criminal proceedings the fact that the person accused is of a good character is relevant and Section 54 lays down that the fact that the accused is of a bad character is irrelevant in criminal proceedings. Thus, every accused is at a liberty to show that he is a person of good character. As J Cockburn has observed, the fact that a man has unblemished reputation leads to a presumption that he is incapable of committing the crime for which he is being tried. On the other hand, the prosecution cannot submit evidence to show bad character of the accused. However, as per Section 54, if a person gives evidence of his good character then the opposite party is allowed to give evidence of his bad character as a
reply. Opposite party cannot give evidence of bad character in its original case. It can do so only as a reply. Exceptions 1. Evidence for bad character can be given by the prosecution but only as a reply 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 incidentally reveals the character of the accused. 4. The prosecution is allowed to cite a previous conviction as evidence of bad character of the accused. Regarding this provision, Lord Denning has observed in the case of Goody vs Oldham Press Ltd, 1967, that previous convictions are a class in itself. They are the raw material upon which bad reputation is built 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 a court and which therefore might lead to dispute. But previous convictions offer not possibility of such disputes and so are relevant and admissible.
Q. What facts need not be proved? Generally, if a fact is alleged by any party to a suit or criminal case, that party 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 facts without any necessity to be proven by any party. These kinds of facts are specified in Section 56, 57, 58, and 114. The provisions in these sections are as follows Section 56 - Facts judicially noticeable need not be proved - No fact of which the Court will take judicial notice need be proved. This means that if the court is bound to take notice of a particular fact, the parties do not have the burden of proving that fact. It is part of the judicial function to know that fact. For example, the court is bound to know the various laws and customs of the country. A party does not need to provide any proof when stating any law. Facts for which a court will take judicial notice are specified in Section 57. These include Laws in force in India, Public Acts of Parliament, 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 territories under the dominion of Govt. of India. In all these case, the court may resort appropriate books or documents of reference for its aid. Also, the matters enumerated in this section are not exhaustive. The section merely provides that the court must take judicial notices of the facts enumerated in this section. It does not prohibit the court from takings judicial notice of any other facts. To understand this point, we need to look at the meaning of judicial notice Meaning of "Taking Judicial Notice" - It means recognition of something as existing or as being true without having any proof. Judicial notice is based upon reasons of convenience and expediency. Certain things are so commonly known that any ordinary person is aware of it and it is a waste of time to seek any proof for such things. For example, it is a commonly known fact that certain parts of MP, Bihar, and AP are naxalite affected or that J&K is a terror striken area. A court does not need to spend time in looking for its proof. Thus, judicial notice is the cognizance taken by the court itself of certain matter which are so notorious or clearly established that the evidence of their existence is unnecessary. For example, in the case of Managing Committee of Raja Sidheshwar High School vs State of Bihar, AIR 1993, the court took judicial notice of the fact that education in the state was virtually crumbled. In another case, court took judicial notice of the fact that several blind persons have acquired great academic distinction. If the court is called upon by a person to take judicial notice of a fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The basic requirement for taking judicial notice is that the fact has to be of a class that is so generally as to give rise to the presumption that all persons are aware of it. However, a judge
cannot bring his personal knowledge into judicial notice if that knowledge is not public knowledge. Just because a judge knows something does not make it a thing of common knowledge. J Chandrachud observed that a court does not operate in ivory tower. It can take cognizance of facts that are happening all around it. Shutting judicial eye to the existence of such facts and matters is in a sense an insult to common sense and would reduce the judicial process to a meaningless and wasteful trial. No court therefore need to insist upon a formal proof of notorious facts such as date of polls, passing away of an eminent person, or events that have rocked the nation. Section 58 - Facts admitted need not be proved - No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted 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 other party need not provide proof of that fact. For example, admissions made in written statements, or things said before and accepted to be said in the trial need not be proved. in averments made in a petition that have not been controverted by the respondent carry the weight of a fact admitted. However, an admission may not necessarily constitute conclusive evidence of the fact admitted. Therefore, this section allows the court to ask for some other proof of the admitted fact. This is a discretionary power of the court. Section 114 - Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. For example, a person may be presumed to be dead if his whereabouts are not known for seven years. Such facts need not be proven. Q. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife be a competent witness against her husband? (Section 120) The modern judicial system is based on evidence. The knowledge of how an event happened is arrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and ears of justice." The court gives its finding based on the evidence given by witnesses. It is important, therefore, to understand who can and cannot be a competent witness. Section 118 of Indian Evidence Act, 1872, contains the provisions for determining a competent witness. Section 118. Who may testify? - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to him. As is evident from Section 118, in general, nobody is barred from being a witness as long as he is able to understand the questions that are put to him as well as is able to give rational replies to those questions. There may be several reasons because of which a person may not be able to comprehend the questions and/or is unable to reply coherently. This section does not attempt to define all such reasons but gives examples of such reasons such as young age (in case of a child), mental illness, or extreme old age. It is up to the court to determine whether a person is able to understand the questions or give rational answers. Thus, competency is a rule, while incompetency is an exception. Even a lunatic is considered a competent witness if his lunacy does not prevent him from understanding the questions and giving rational answers.
Child Witness A young child, if he is able to understand the questions and is able to reply rationally, 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 was the 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 seven years 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. For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye witness of a murder was made a witness. She appeared to be intelligent and was able to answer questions frankly and without any hesitation. However, she was not able to understand the meaning of oath. It was held that her unsworn evidence was admissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of 8 years of age. It was held that ommission of oath only affects the credibility of the witness and not competency of the witness. The question of competency is determined by section 118, and the only ground that is given for incompetency is the inability to comprehend the questions or inability to give rational answers. The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Adequate corroboration of his testimony must be looked from other evidence. Dumb Witness Section 119 - A witness who is unable to speak may give his evidence in any other 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 so given shall be deemed to be oral evidence. Competency of a wife as a witness against her husband As per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. Further, in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. Thus it is pretty clear that the spouse of a person can be a competent witness against that person. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that Husband and wife are both competent witness against each other in civil and criminal cases. They are competenet witness 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 that provisions of this section are subject to Section 122, which makes the communication between a husband and wife privileged. Competency of Accused As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on his behalf, but if he does not, no comment can be made against the accused or adverse inference be drawn against him. Competency of an Accomplice Accomplice - An accomplice is a person who has taken part, whether big or small, in the commission of an offence. Accomplice includes principles as well as abettors. Not an Accomplice - person under threat commits the crime, person who merely witnesses the crime, detectives, paid informers, and trap witnesses Generally, a small offender is pardoned so as to produce him as a witness against the bigger offender. However, evidence by an accomplice is not really very reliable because - 1) he is likely to swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of oath, and 3) since he gives evidence in promise of a pardon, he will obviously be favorable to prosecution.
Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent witness against the accused and a conviction based on his evidence is not illegal merely because his evidence has not been corroborated. At the same time, Section 114 (b) contains a provision that allows the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particular. The idea is that since such a witness is not very reliable, his statements should be or verified by some independent witness. This is interpreted as a rule of caution to avoid mindless usage of evidence of accomplice for producing a conviction. Since every case is different, it is not possible to precisely specify a formula for determining whether corroborative evidence is required or not. So some 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 of every detail of the crime related by the accomplice. It is sufficient if there is a confirmation as to a material circumstance of the crime. 2. There must at least be confirmation of some particulars which show that the accused committed the crime. 3. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate other. 4. The corroboration need not be by direct evidence. It may be through circumstantial evidence. This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan, 1952. Accomplice and Co-accused The confession of a co-accused (S. 30) is not treated in the same way as the testimony of an accomplice because 1. The testimony of an accomplice is taken on oath and is subjected to cross examination and so is of a higher probative value. 2. The confession of a co-accused can hardly be called substantive evidence as it is not evidence within the definition of S. 3. It must be taken into consideration along with other evidence in the case and it cannot alone form the basis of a conviction. While the testimony of an accomplice alone may be sufficient for conviction. Q. What do you understand by Admission? General Concept of Admission In general, Admission is a voluntary acknowledgment of a fact. Importance is given to those admissions that goes against the interests of the person making the admission. For example, when A says to B that he stole money from C, A makes an admission of the fact that A stole money from C.This fact is detrimental to the interests of A. The concept behind this is that nobody would accept or acknowledge a fact that goes against their interest unless it is indeed true. Unless A indeed stole money from C, it is not normal for A to say that he stole money from C. Therefore, an admission becomes an important piece of evidence against a person. On the other hand, anybody can make assertions in favor of themselves. They can be true or false. For example, A can keep on saying that a certain house belongs to himself, but that does not mean it is necessarily true. Therefore, such assertions do not have much evidentiary value. Admission as per Indian Evidence Act Section 17 of Indian Evidence Act defines Admission as thus - An admission is a statement, oral or documentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.
As per this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in Section 18 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 person from whom interest derived - Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions. By suitor in representative character - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by (1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or (2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. According to this section, statements made a persons who are directly or indirectly a party to a suit are admissions. Thus, statements of an agent of a party to the suits are also admissions. Statements made by persons who are suing or being sued in a representative character are admissions, only if those statements were made by the party while being in that representative character. Similarly, statements made by persons who have a pecuniary interest in the subject matter of the proceeding and statements made by persons from whom such interest is derived by the parties in suit, are also admissions if they are made while the maker had such an interest. For example, A bought a piece of land from B. Statements made by B at the time when B was the owner of the land are admissions against A. Section 19 - Admissions by persons whose position must be proved as against party to suitStatements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made 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 fact as 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 referred for information in reference to a matter in dispute are admissions. Illustration The question is, whether a horse sold by A to B is sound A says to B "Go and ask C. C knows all about it" C's statement is an admission. To be considered an admission, it is not necessary for a statement to give a direct acknowledgment of liability. It is sufficient even if the statement suggests an inference about the liability. For example, A is charged with murder of B by giving poison. The statement by A that he purchased a bottle of poison is admission because it suggests the inference that he might have murdered B using that poison, even though it does not clearly acknowledge the fact 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 defeated on the basis of an alleged admission by him, the implication of the statement must be clear and conclusive. There should not be any doubt or ambiguity.Further, it held that it is necessary to read all of his statements together. Thus, stray elements elicited in cross examination cannot be taken as admission. Q. Discuss the law regarding proof of admissions against persons making them and by or on behalf of them. "Admission cannot be proved by or on behalf of any person who makes it". Are there any exceptions? Discuss. It is important to note that Indian Evidence Act does not require that an admission be of statements that are against the interests of the maker. All that is necessary is that the statement should suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in the interest of the maker of the statement. Self serving prior statements are also admissions. 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 this mean that a person can make self serving statements and escape from his liability? The answer is no because such self serving admissions are governed by the provisions of Section 21, which says the following Section 21 - Proof of admissions against persons making them, and by or on their behalf Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his 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 nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it 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 or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. Illustrations (a) The question between A and B is, whether a certain deed is or is not forged. A affirms 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 deed is forged; but A cannot prove a statement by himself that the deed is genuine, 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 given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 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 Lahore post-mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section 32, clause (2). (d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue. (e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skillful person to examine the coin as he doubted whether it was counterfeit or not, and that that
person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last preceding illustration. From the above illustrations it is clear that the general rule is that a person is not allowed to prove his own admissions. Otherwise, as observed in R vs Hardy, 1794, every man, if he were in difficulty, or in view of one, might make declarations to suit his own case and then lodge them in proof of his case. This principle, however, is subject to some important exceptions, which allow a person to prove his own statements. These are as follows Exception 1 - When the statement should have been relevant as dying declaration or as that of a deceased person under Section 32. Section 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favor of or against the person making the statement. In circumstances stated in Section 32 such a statement can be proved by the maker himself if he is still alive. In the situation described in Illustration (b), in a case between the shipowner and the insurance company, the contents of the log book maintained by the captain would have been relevant evidence if the captain were dead under Section 32. Therefore, the captain is allowed to prove the contents of the log book 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 or body is a fact in issue or is relevant fact and if the statement was made at the time when such state of mind or body existed and further if the statement is accompanied with his conduct that makes the falsehood of the statements improbable. In Illustration (d), the statements of A that show that he refused to sell them below their value, are self serving admissions. However, it is acceptable because they reflect A's state of mind and were associated with a conduct of refusing to sell that makes their falsehood improbably. Exception 3 - The last exception allows a person to prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own statements. These cases are covered by the following sections Section 6 - When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same transaction. For example, immediately after a road accident, if the victim has made a statement to the rescuer about the cause of the accident, he can prove that statement because it is part of the same transaction. Section 8 - A statement may be proved by or on behalf of the person make it under Section 8 if it accompanies or explains acts other than statements or if it 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 in silence, A may prove his own statement because it has influenced the conduct of a person whose conduct is relevant. Section 14 - When the statement explains his state of mid or body or bodily feeling when any such thing is relevant or is in issue, it can be proved by himself. For example, where the question is whether a person has been guilty of cruelty towards his wife, he may prove his statements made shortly before or after the alleged cruelty which explain his love and affection for and his feeling towards his wife. Q. What do you understand by Confession? How does confession differ from admission? State the law relating to confessions. What is Judicial and Extra-Judicial confession? Under what circumstances is it relevant and when can it not be proved? State the extent, relevancy, and
admissibility of a confession as evidence. How far can the statements of the accused made before the police be used against him? 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 same was stated by STEPHEN in his digest that that a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed the crime. However, Privy Council, in case of Pakala Narayan Swami vs Emperor AIR 1939, did not accept this definition. In this case Lord ATKIN observed that no statement that contains self exculpatory matter can amount to a confession. Further, a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An offence of a gravely incriminating fact, is not in itself a confession. For example, an admission that the accused is the over of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession, is not a confession even though it strongly suggests that the accused has committed the murder. The decision by Privy Council in Pakala Narayan Swami case was approved by SC in 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 all the time remained absconding. In her statement to the court, her husband was hobbyist photographer and used to keep handy photo developing material which is quick poison. On this occasion, he was ill and she brought him some medicine and the medicine was kept near the liquid developer and by mistake swallowed the liquid and died. She got afraid and with the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially showed innocence. Here, the lower courts sorted out the exculpatory part and convicted her on the inculpatory part. However, SC rejected this approach and held that the rule regarding confession and admission is that they must either be accepted or rejected as whole. Difference between Confession and Admission This brings us to the main difference between admission and confession. An admission is a statement that may or may not be a conclusive evidence of a fact in issue or relevant fact but to be a confession, the admission must conclusively prove the guilt of the maker of the admission. For example, in the 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 know that the goods loaded in his truck were contraband nor were they loaded with his permission. SC held that the statement was not a confession but it did amount to admission of an incriminating fact that the truck was loaded with contraband material. Thus, a statement which may not amount to confession may still be relevant as admission. Only a voluntary and direct acknowledgment of guilt is confession, but when a confession fall short of actual admission of guilt, it may nevertheless be used as evidence under Section 21. Regarding admission that contains multiple sentences, Justice Thomas, of SC stated 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 magistrate under Section 164 of CrPC, is confessional or not is not to determine it by dissecting the statement into different sentences and then to pick out some as not inculpative.The statement must be read as a whole and then only the court should decide whether it contains admissions of his inculpatory involvement in the offence. If the result of that test is positive the the statement is confessional otherwise not. Classification of Confessions A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this manner, a confession may be divided into two categories - Judicial Confession and Extra-judicial Confession.
Judicial Confession - A judicial confession is a confession that is made in front of a magistrate or in a court. It may be made in the course of a judicial proceeding. Extra - Judicial Confession - An extra-judicial confession is a confession that is made by the party elsewhere than before a magistrate or in a court. It is admissible in evidence under Section 21 and it is proved by the witnesses who had heard the speaker's words constituting the confession. A confession ma even consist of conversation with oneself. For example, in case of Sahoo vs State of UP, AIR 1966, an accused who was charged with murder of 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 have finished her and with her the daily quarrels.". The statement was held to be a valid confession because it is not necessary for the relevance of a confession that it should communicate to some other person. Relevancy of Confessions Confessions when Not Relevant A confession becomes irrelevant and thus, inadmissible, in situations described in the Sections 24, 25, and 26. 1. Section 24 - Confession caused by inducement, threat, or promise from a person in authority Confession made by an accused is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by inducement, threat, or promise, made by any person in authority and that in the view of the court such inducement, threat, or promise gives reasonable ground to the person that by making the confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings against him. The following conditions are necessary to attract the provisions of this section 1. The confession must have been made because of inducement, threat, or promise - A confession should be free and voluntary. If it flows from fear or hope, it is inadmissible. In deciding whether a particular confession is because of threat, inducement, or promise, the question has to be considered from the point of view of the accused as to how the inducement, threat or promise would operate in his mind. For example, where the accused was told by the magistrate, "tell me where the things are and I will be favorable to you", it was held to be inadmissible. 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 every such person who can reasonably hold a sway over the investigation or trial. Thus, government officials such as a senior military officer, police constable, warden, clerk of the court, all have been held to be a person in authority. Even private persons such as the wife of the employer was also held to be a person in authority. 3. It should relate to the charge in question - This requirement is specifically stated in the section, which says that the inducement must have "reference to the charge against the accused person". Thus, in the case of Empress vs Mohan Lal, 1881, the confession by a person who was threatened to be removed from his caste for life, was held to be relevant because the threat did not have anything to do with the charge. The position in English law is not same. In fact, J ATKINSON has said that this rule is illogical and unreasonable. For example, a daughter is accused of shoplifting and later on her mother is also accused of the same offence. Now, if the mother is induced to confess by saying that if she confesses to the charge, proceedings against her daughter will be dropped, this will most like lead to an untrue confession. 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, a reference to spiritual benefit such as, taking an accused to a temple to confess does not fall in this category but a promise to reduce the sentence would fall under it. It is necessary that all the conditions must exist cumulatively. Further, this section merely requires that if it "appears to the court" that the confession was improperly obtained, it becomes
inadmissible i.e. if the circumstances create a probability in the mind of the court that the confession is improperly obtained, it may hold it inadmissible. 2. Confessions to Police - It is presumed that police holds a position of great influence over the actions of the the accused and so there is a high probability that confessions obtained by the police are tainted with threat, or inducement. Further, it is important to prevent the practice of oppression or torture by the police to extract the confession. This principle is espoused by Sections 25 and 26, which are as follows Section 25 - Confession to police-officer not to be proved - No confession made to a policeofficer shall be proved as against a person accused of any offence. This section is very broadly word. It strictly disallows any confession made to the police officer as inadmissible no matter what the circumstances. In the case of Raja Ram vs State of Bihar, AIR 1964, SC held that the term police-officer is not be be interpreted strictly but must be given a more comprehensive and popular meaning. However, these words are also not to be construed in so wide sense as to include a person on whom only some powers exercised by the police are conferred. The test for determining whether such a person is a police officer, is whether the powers are such as would tend to facilitate the obtaining of confession by him from a suspect. Thus, a chowkidar, police patel, a village headman, an excise officer, are all considered to be police officer. Section 26 - Confession by accused while in custody of police not to be proved against him - No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. This section further tries to ensure that the confession is not extracted due to the influence of the police. Any confession made while the maker is in custody of the police is invalid unless it is made in the immediate presence of a magistrate. The presence of a magistrate is, by a legal fiction, regarded as equivalent to removal of police influence and the statement is therefore considered to be free from police influence. Mere absence of the police officer from a room where confession is taken does not terminate his custody of the accused. The word custody does not just mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. Section 27 provides another exception when a confession made to the police is admissible. This is when a confession leads to the discovery of a fact connected with the crime. The discovery assures that the confession is true and reliable even if it was extorted. In order to ensure the genuineness of recoveries, it has become a practice to effect the recoveries in the presence of witnesses. Constitutionality of Section 27 - Indian Evidence Act was written before the Constitution of India and Article 20(3) of the constitution says that no person shall be compelled to be a witness against himself. This article seemingly made Section 27 unconstitutional. SC considered this issue in the case of Nisa Sree vs State of Orissa AIR 1954, and held that it is not violative of Article 20(3). A confession may or may not lead to the discovery of an increminating fact. If the discovered fact is non incriminatory, there is no issue and if it is self-incriminatory, it is admissible if the information is given by the accused without any threat. 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 confession is obtained after the impression caused by threat, inducement, or promise is removed in the opinion of the court, then the confession is admissible.
3. Section 29 - Confession made under promise, deception,etc. - If a confession is otherwise relevant, it does not become irrelevant merely because it was made (a) under a promise of secrecy or (b) in consequences of a deception practiced on the accused person for the purpose 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 such confession and that evidence of it might be given against him. The basis of this section is that any breach of confidence or of good faith or practice of any artifice does not invalidate a confession. However, a confession 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 and because of this the accused made a confession. The court held the confession as inadmissible. In Rex vs Shaw, A was accused of a murder and B, a fellow prisoner, asked him about how he did he do the murder. A said, "Will you be upon your oath not to mention what I tell you?", to which B promised on his oath that he will not tell anybody. A then made a statement. It was held that it was not such an inducement that would render the confession inadmissible. The five circumstances mentioned in the section are not exhaustive. Q. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife be a competent witness against her husband? (Section 120) The modern judicial system is based on evidence. The knowledge of how an event happened is arrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and ears of justice." The court gives its finding based on the evidence given by witnesses. It is important, therefore, to understand who can and cannot be a competent witness. Section 118 of Indian Evidence Act, 1872, contains the provisions for determining a competent witness. Section 118. Who may testify? - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to him. As is evident from Section 118, in general, nobody is barred from being a witness as long as he is able to understand the questions that are put to him as well as is able to give rational replies to those questions. There may be several reasons because of which a person may not be able to comprehend the questions and/or is unable to reply coherently. This section does not attempt to define all such reasons but gives examples of such reasons such as young age (in case of a child), mental illness, or extreme old age. It is up to the court to determine whether a person is able to understand the questions or give rational answers. Thus, competency is a rule, while incompetency is an exception. Even a lunatic is considered a competent witness if his lunacy does not prevent him from understanding the questions and giving rational answers. Child Witness A young child, if he is able to understand the questions and is able to reply rationally, 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 was the 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 seven years 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. For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye witness of a murder was made a witness. She appeared to be intelligent and was able to answer questions frankly and without any hesitation. However, she was not able to understand the meaning of oath. It was held that her unsworn evidence was admissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of 8 years of age. It was held that ommission of oath only affects the credibility of the witness and not competency of the witness. The question of competency is determined by section 118, and the only ground that is given for incompetency is the inability to comprehend the questions or inability to give rational answers. The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Adequate corroboration of his testimony must be looked from other evidence. Dumb Witness Section 119 - A witness who is unable to speak may give his evidence in any other 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 so given shall be deemed to be oral evidence. Competency of a wife as a witness against her husband As per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. Further, in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. Thus it is pretty clear that the spouse of a person can be a competent witness against that person. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that Husband and wife are both competent witness against each other in civil and criminal cases. They are competenet witness 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 that provisions of this section are subject to Section 122, which makes the communication between a husband and wife privileged. Competency of Accused As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on his behalf, but if he does not, no comment can be made against the accused or adverse inference be drawn against him. Competency of an Accomplice Accomplice - An accomplice is a person who has taken part, whether big or small, in the commission of an offence. Accomplice includes principles as well as abettors. Not an Accomplice - person under threat commits the crime, person who merely witnesses the crime, detectives, paid informers, and trap witnesses Generally, a small offender is pardoned so as to produce him as a witness against the bigger offender. However, evidence by an accomplice is not really very reliable because - 1) he is likely to swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of oath, and 3) since he gives evidence in promise of a pardon, he will obviously be favorable to prosecution. Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent witness against the accused and a conviction based on his evidence is not illegal merely because his evidence has not been corroborated. At the same time, Section 114 (b) contains a provision that allows the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particular. The idea is that since such a witness is not very reliable, his
statements should be or verified by some independent witness. This is interpreted as a rule of caution to avoid mindless usage of evidence of accomplice for producing a conviction. Since every case is different, it is not possible to precisely specify a formula for determining whether corroborative evidence is required or not. So some 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 of every detail of the crime related by the accomplice. It is sufficient if there is a confirmation as to a material circumstance of the crime. 2. There must at least be confirmation of some particulars which show that the accused committed the crime. 3. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate other. 4. The corroboration need not be by direct evidence. It may be through circumstantial evidence. This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan, 1952. Accomplice and Co-accused The confession of a co-accused (S. 30) is not treated in the same way as the testimony of an accomplice because 1. The testimony of an accomplice is taken on oath and is subjected to cross examination and so is of a higher probative value. 2. The confession of a co-accused can hardly be called substantive evidence as it is not evidence within the definition of S. 3. It must be taken into consideration along with other evidence in the case and it cannot alone form the basis of a conviction. While the testimony of an accomplice alone may be sufficient for conviction. Q. Describe different stages in testimony of a witness. (Sections 137, 138) Witnesses are examined by the parties or their advocates by the way of asking questions with a view to elicit responses that build up a factual story. To be able to derive meaningful conclusions from the statements of the witnesses, it is necessary to follow a standard pattern in presenting them and questioning them before the court. It will also be impractical and time consuming to call witnesses multiple times at random. Besides causing severe inconveniences to the 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 can proceed swiftly. This procedure is described in Sections 137 and 138. Stages of Examination Section 137 defines three stages of examination of a witness as follows Examination-in-chief - The examination of a witness, by the party who calls him, shall be called his examination-in-chief. Cross-examination - The examination of a witness by the adverse party shall be called 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 first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined. The examination and cross-examination must relate to relevant facts but the crossexamination need not to be confined to the facts which the witness testified on his examination-inchief. Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may 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 by the party who has called it. In this stage, the goal of the party is to make the witness make statements that prove the facts alleged by the party. The party asks questions, the responses to which are expected to support the factual story submitted by the party. 2. Cross Examination - The second stage is where the witness is cross examined by the opposite party. In this stage the goal of the party which is examining the witness is to poke holes in the story of the witness with a view to discredit the evidence that the witness has given. However, when it is intended to suggest to the court that the witness is not speaking the truth on a particular point, it is necessary to direct his attention to it by questions in this stage. The witness must then be given an opportunity to explain the apparant contradictions while he is in the witness box. For example, in the case of Ravinder Kumar Sarma vs State of Assam, 1999, the appallant sued two police officers for damages for malicious prosecution. The appallant put questions in that regard to one of them who denied the allegation that he demanded 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-examination must relate to relevant facts. However, the cross-examination need not be confined 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, the objective of the questions asked in cross examination is - a) to test the veracity of the witness, b) to discover who the person is and what is his condition 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 by the party who called the witness if, in the cross examination stage, inconvenient answers are given by the witness. The goal in this stage is to nullify the effect of such answers and to reestablish the credibility of the evidence given by the witness. The Re Examination is not confined to the matters discussed in Examination in Chief. New matter may be elicited with the permission of the court and in such a 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 witness for cross examination without examination in chief is not warranted by law and it would amount to failure to examine the witness at the trial. Section 138 provides a valuable right to cross examin a witness and Section 146 further gives the right to ask additional questions to shake the credibility of the witness. In case of Rajendra vs Darshana Devi, 2001, it was held that if a party has not taken advantage of these provisions, he cannot be allowed to complain about the credibility of the witness. Q. What is a leading question? (Section 141) When such questions cannot and when such questions can be asked? (Sections 142, 143) According to BENTHAM, a Leading Question is a question that indicates to the witness the real or supposed fact which the examiner expects or desires to have confirmed with the witness. For example, "did you not work with Mr X for five years?", "is your name so and so", "did you not see the accused leave the premise at 8 PM?", are all leading questions. Section 141 defines a Leading question thus - Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. In the previous examples, it is clear that the question itself contains the answer and the examiner is merely trying to confirm those answers with the witness and are thus leading questions.
When leading questions may and may not be asked As per Section 142 - Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved. Further, Section 143 provides that Leading questions may be asked in cross-examination. The purpose of Examination in Chief of a witness is to enable the witness to tell the court the relevant facts of the case. A question should be put to him about a relevant fact and he should be given ample scope to answer the question from the knowledge that he posses about the case. The witness should be left to tell the story in his own words. However, as seen in the previous example, instead of eliciting information from a witness, information is being given to the witness. This does not help the court arrive at the truth. If this type of questioning is allowed in Examination in Chief, the examiner would be able to construct a story through the mouth of the witness that suits his client. This affects the rights of the accused to a fiair trial as enshrined in Article 21 of the constitution and is therefore not allowed. A question, "do you not live at such and such address?", amply gives hint to the witness 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 in asked in Examination in Chief or Re Examination. If the examining party then desires, it can request the court for its permission to ask the question and the court permits the question if it pertains to matters which are introductory, matters on which there is no dispute, or matters which are already 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 or b) the question is about the matter which is introductory, undisputed, or is already proven or b) the court permits the question overruling the objection of the opposite party 2. In Cross examination. Q. Can a witness refuse to answer a question? (Section 121-129) / When can a witness be compelled answer a question? (Section 147-148) ? What communications are privileged? In general, if the question is relevant to the case, the witness is bound to answer it. This is provided by Section 147, which says that if any question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply. Section 132 provides that a witness is not excused from answering a question even if the question incriminates the witness. To ensure that the witness speaks the truth, proviso to Section 132 provides that if the answer of the witness incriminates the witness, such answer shall not be 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 to answer a question. There are also situations where a witness is prohibited from answering certain kind of questions. These are situations that are critical to the foundation of a moral society. These situations are provided in the form in previledges to a witness in Sections 121 to 129. (Privileged Communications - JMSOCPIVL) 121. Judges and Magistrate - No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in
Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence 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 answer question 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 evidence before B, a Magistrate. B, cannot be asked what A said, except upon the special 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 to what occurred. 122. Communications during marriage - No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. As held in M C Verghese vs T J Ponnan, AIR 1976, SC held that it is not material whether the relationship between husband and wife subsists at the time of giving the evidence. So, where a woman was divorced from first husband and married another person, and was called to provide evidence of a communication between her and her first husband that happened while they were married, she was deemed incompetent to do so. 123. Evidence as to affairs of State - No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. 124. Official communications - No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. 125. Information as to commission of offences - No Magistrate or Police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue-Officer shall be compelled to say whence he The Orient Tavern any information as to the commission of any offence against the public revenue. Explanation - "Revenue-Officer" in this section means any officer employed in or 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 to disclose any communication made to him in the course and for thee purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and 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 the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation - The obligation stated in this section continues after the employment has ceased. Illustrations (a) A, a client, says to B, an attorney - "I have committed forgery and I wish you to defend me." As the defense of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure. (b) A, a client, says to B, and attorney - "I wish to obtain possession of property by the use of forged deed on which I request you to sue." The communication being made in furtherance of criminal purpose, is not protected 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's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. 127. Section 126 to apply to interpreters etc. - The provisions of Section 126 apply 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 suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, 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 consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose. 129. Confidential communication with Legal Advisers - No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others. Further, Section 148 gives discretion to the court to allow the witness to refuse to answer a question when the question affects the credit of the witness by injuring his character and is otherwise irrelevant. Generally, court allows the witness to refuse to answer the question when the question relates to a matter so remote in time or of such a character that that the truth of the imputation would not affect the opinion of the court as to the credibility of the witness. Q. Who is hostile witness? Under what circumstances a person is allowed to cross examin his 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 has feelings which are against the party which has invited him for his testimony or when he adopts an adverse stance towards the party which has invited him. A similar but categorically different kind of witness also exists which is called as Unfavorable Witness. An unfavorable witness is not hostile towards the calling party but his testimony fails to give evidence in support of the calling party or gives evidence that proves the opposite of what the calling party intends to prove. In such a case, it becomes important for the calling party to put such questions to the witness that would discredit his testimony. Such questions are normally asked by the adverse party in cross examination but when a witness turns hostile or unfavorable, the witness can be cross examined by the party who had called the witness.
However, it must be noted that Indian Evidence Act, 1872, mentions neither Hostile Witness nor Unfavorable witness. As per Section 154 : Question by party of his own witness - (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.". Unlike the law in England, In India, the grant of permission to cross examine one's witness by a party is not conditional on the witness being declared hostile or unfavorable. Granting such permission is entirely upon the discretion of the court. The discretion is unqualified and is used whenever the court gets a feeling from the temper, attitude, demeaner, or past statements of the witness, that he is being untruthful or has become uncreditable. It was thought that once a witness is declared hostile, his entire testimony should be excluded because the only purpose of cross examination is to discredit the witness. However, this view is not correct. It is important to understand that the purpose of cross examination is not merely to discredit the witness but is also to elicit true facts about the case that would build the case of the cross examiner. When a party confronts his own witness, with the permission of court, he does so with the hope that the witness might revert back to his story that supports the calling party. Further, Section 154 does not technically tentamount to cross examining the witness. Strictly speaking, 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 the statement 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 that in a criminal prosecution, when a witness is cross examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as completely wiped off the record altogether. If is for the court to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or still can be believed in regard to a part of his testimony. The court will exercise its discretion only when it is satisfied that the witness has turned hostile to the party who calls him as a witness. In criminal cases, the court may be so satisfied by examining the statement given by the witness and recorded by the police during investigation under Section 162 of CrPC and comparing with the evidence given. In civil cases, if an advocate has prepared a proof of the evidence of the witness in his chambers, this could be produced in court and compared with the testimony of the witness. The extent of the questions is same as that of the extent of the questions that can be put in cross examination by an adverse party. Thus, rules given above in Section 146 apply. However, a mere inconvenient answer given by the witness is not sufficient to declare him hostile. The court must be satisfied that he has really turned hostile to the party calling him as a witness. Q. When and how may the credit of a witness be impeached by a party? (Sections 146, 153, 155) Impeaching the credit of a witness means to show the real character of the witness so that the court may not trust him. Credibility of a witness is very important for the court in deciding the truth of the testimony. Indeed, it would be unfair to convict anybody solely on the testimony of a habitual liar. Thus, it is imperative upon the adverse party to make sure that the witness is credible and so it can ask questions that may impeach the credit of the witness. The When As per Section 146, which describes the questions that are lawful in cross examination, it is lawful to ask questions during cross examination to test his 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 credit of 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, it is necessary to draw his attention to it by questions in cross examination. It cannot be argued that a witness is unworthy of credit without giving his an opportunity to explain while he is in the witness box. It was held by SC in State of UP vs Nahar Singh, AIR 1998, that if you indent to impeach a witness, you are bound, while he is in witness box, to give him an opportunity to explain, even as a rule of profession ethics and fair play. A similar provision is given by Section 145 as well, which says that when a witness is cross examined about his previous writing, without such writing is shown to him or is proved, and if it is intended to contradict his writing, his attention must be drawn to those parts which are to be used for the purpose of contradicting him, before such writing is proved. When a witness turns hostile or unfavorable, the same right becomes available to the party who has called the witness. This is provided for by Section 154, which says that the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. The How If a witness denies the suggestions put in cross examination, evidence to contradict him can be called. This flows from the general rule given in Section 5, which allows evidence of relevant facts to be given. However, when such evidence is not relevant otherwise and is only useful in shaking the credit 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 be impeached. Section 155 - Impeaching credit of witness The credit of a witness may be impeached in the following ways by the adverse party, 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 of the 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 evidence which is liable to be contradicted; Explanation – A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in crossexamination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. Illustrations (a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to B. The evidence is admissible. (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 he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence admissible. Section 153 - Exclusion of evidence to contradict answers to questions testing veracity When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to
contradict him; but, if he answers falsely, he may afterwardas be charged with giving false evidence. Exception 1 - If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception 2 - If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted. 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 a fraudulent claim. He denies it, Evidence is offered to show that he did make such a claim. The evidence is inadmissible. (b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible. (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 his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence. (d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality. This section provides an important protection to the witness against character assasination. If a witness has answered a question whose purpose is only to discredit him, whatever may be his answer, no evidence can be shown to disprove or contradict him. This applies only to the answers that are not relevant to the facts of the case and not to answers to the questions that are relevant to the case. The two exceptions contained in the section are meant to prevent misuse of this provision. Thus, a person is not allowed to lie about his prior conviction and he is not allowed to be partial. Thus, as explained in illustration (c), if a witness denies a suggestion that he is biased, evidence may be given that proves otherwise. Q. What do you understand by Burden of Proof? On whom the does the burden of proof lie? State the rules of determining Burden of Proof in a suit or proceeding. When does the burden of proof shift to the other parties? Are there any exceptions? General Concept of Burden of Proof The responsibility to prove a thing is called burden of proof. When a person is 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 and they 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 in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section 101 defines
burden of proof as follows - When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The important question is who is supposed to prove the various facts alleged in 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 the provisions in Section 101 to 105. The rules propounded by these sections can be categorized as General rules and Specific rules. General rules Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. For example, A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. Another example - A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. Facts can be put in two categories - those that positively affirm something and those that deny something. For example, the statement, "A is the owner of this land" is an affirmative statement, while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. 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 the ownership of the initial burden. Whoever wishes the court to take certain action against the opposite party based on certain facts, he ought to first prove those facts. However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs Legatt, 1836, a landlord suing the tenant asserted that the tenant did not repair the house. Here, he was asserting the negative. But the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that In ascertaining which party is asserting the affirmative the court looks to the substance and not the language used. Looking at the substance of this case, the plaintiff had to prove that the premises were not repaired. Thus, the court should arrive at the substance of the issue and should require that party to begin who in substance, though may not be in form, alleges the affirmative of the issue. Burden of Proof and Onus of Proof The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof, which was explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to prove the main contention of party requesting the action of the court, while the second one is the burden to produce actual evidence. The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts 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 lies on 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, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact is the one who is supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that 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 the court to believe in a fact that assumes the existence of another fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying declaration by B. A must prove B's death. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. Specific Rules These rules specifically put the burden on proving certain facts on particular persons Rule 1 - As per Section 106, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. 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 to be alive within 30 yrs the presumption is that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if he had been alive, the presumption is that the person is death. But no presumption can be draw as to the time of death. Sections 109 establishes the burden in case of some relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism, dowry death, and rape. Exceptions Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It is the prosecution who is required to establish the guilt of the accused without any doubt. At the same time, the accused is not required to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. Section 105 specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane at the time of committing the crime. In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In this case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while Nanavati claimed innocence on account of grave and sudden provocation. The defence's claim was that when Nanavati met Prem at the latter'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 to marry Sylvia and look after his children. Prem replied, "Will I marry every woman I sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown packet, Nanavati too went for it and in the ensuing scuffle, 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 accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when an accused relies upon the general exception or proviso contained in any other part of the Penal Code, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of murder. Exception 2 - Admission - A fact which has been admitted by a party and which is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made the admission. For example, A was recorded as saying that he committed theft at the said premises. If A wants to deny this admission, the burden of proof 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 or alive based on how long he has not been heard of. Section 109, presumes that when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relationship still exists and anybody who contends that such relationship has ceased to exist has to provide proof. Section 110 presumes that the person who has the possession of a property is the owner of that property. As per Section 113A, When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court 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 her husband. As per Section 113B, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on the opposite party. Q. What do you understand by Burden of Proof? On whom the does the burden of proof lie? State the rules of determining Burden of Proof in a suit or proceeding. When does the burden of proof shift to the other parties? Are there any exceptions? General Concept of Burden of Proof The responsibility to prove a thing is called burden of proof. When a person is 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 and they 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 in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section 101 defines burden of proof as follows - When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The important question is who is supposed to prove the various facts alleged in 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 the provisions in Section 101 to 105. The rules propounded by these sections can be categorized as General rules and Specific rules.
General rules Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. For example, A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. Another example - A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. Facts can be put in two categories - those that positively affirm something and those that deny something. For example, the statement, "A is the owner of this land" is an affirmative statement, while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. 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 the ownership of the initial burden. Whoever wishes the court to take certain action against the opposite party based on certain facts, he ought to first prove those facts. However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs Legatt, 1836, a landlord suing the tenant asserted that the tenant did not repair the house. Here, he was asserting the negative. But the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that In ascertaining which party is asserting the affirmative the court looks to the substance and not the language used. Looking at the substance of this case, the plaintiff had to prove that the premises were not repaired. Thus, the court should arrive at the substance of the issue and should require that party to begin who in substance, though may not be in form, alleges the affirmative of the issue. Burden of Proof and Onus of Proof The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof, which was explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to prove the main contention of party requesting the action of the court, while the second one is the burden to produce actual evidence. The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts 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 lies on 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, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A
would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact is the one who is supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that 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 the court to believe in a fact that assumes the existence of another fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying declaration by B. A must prove B's death. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. Specific Rules These rules specifically put the burden on proving certain facts on particular persons Rule 1 - As per Section 106, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. 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 to be alive within 30 yrs the presumption is that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if he had been alive, the presumption is that the person is death. But no presumption can be draw as to the time of death. Sections 109 establishes the burden in case of some relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism, dowry death, and rape. Exceptions Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It is the prosecution who is required to establish the guilt of the accused without any doubt. At the same time, the accused is not required to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. Section 105 specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane at the time of committing the crime. In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In this case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while Nanavati claimed innocence on account of grave and sudden provocation. The defence's claim was that when Nanavati met Prem at the latter'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 to marry Sylvia and look after his children. Prem replied, "Will I marry every woman I sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown packet, Nanavati too went for it and in the ensuing scuffle, 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 accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when an accused relies upon the general exception or proviso contained in any other part of the Penal Code, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of murder.
Exception 2 - Admission - A fact which has been admitted by a party and which is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made the admission. For example, A was recorded as saying that he committed theft at the said premises. If A wants to deny this admission, the burden of proof 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 or alive based on how long he has not been heard of. Section 109, presumes that when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relationship still exists and anybody who contends that such relationship has ceased to exist has to provide proof. Section 110 presumes that the person who has the possession of a property is the owner of that property. As per Section 113A, When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court 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 her husband. As per Section 113B, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on the opposite party. Q. What is 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 its strong probability evident from the circumstances. For example, if a man has not been heard from for 7 years by his closest relatives, the court may believe in that the man is dead. This is a presumption. Thus, when the court presumes the existence of a fact because of its strong probability but without a direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in whose favor the fact is, is relieved of the initial burden of proof. For example, as per Negotiable Instruments Acts, every holder of an instrument is presumed to be a holder for consideration. So if a person A holds a cheque signed by another person B, it is presumed that A has given consideration for the cheque and so A does not have to provide any proof of that consideration. Of course, this presumption only applies at the beginning. The other party is free to provide proof that disproves the presumption. For example, the opposite party can show letters by the person or recent photograph of the person showing that he is still alive. According to English Law, a presumption can be of two kinds - presumption of fact and presumption of law. Presumption of Fact Presumption of fact are those presumption about things or events that happen in day to day life, which we accept as true due to inference drawn logically and naturally by our mind. Such as, presumption that a man with blood stained clothes and a knife in his hands is the murderer. Such presumptions are rebuttable from further evidence. Presumption of Law Presumption of law are arbitrary consequences that are annexed by law to particular facts. They are legal fiction. They may not be same as the inferences that we may ordinarily draw but the law prescribes that such inference may be drawn. For example, it is a presumption of law that a child
below seven years of age is not capable of committing a crime. Or that a person who has not been heard from for seven years is dead. Such presumptions may or may not be rebuttable depending on the law. For example, the presumption 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 conclusive proof of his innocence. But the presumption that a person is dead when he is not heard from for 7 years is rebuttable by showing evidence. May Presume and Shall Presume Provisions of Section 4, in a general sense, correspond to the above classification. The first part of this section defines "May Presume" as follows "May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It gives the court a discretionary power to presume the existence of a fact. Which means that the court may regard the fact as proved unless and until it is disproved. For example, in the case of Dr T T Thomas vs Elisa AIR 1987, where a doctor failed to perform an emergency operation due to lack of consent, the court presumed that the consent was there since the patient was brought to the hospital. It was up to the doctor to prove that the consent was not there. The court may also ask for further proof before making the presumption. All the presumptions given in Section 114 are of this kind, which says that the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. For example, the court may presume that a man who is in possession of stolen goods soon after theft, is either the thief of has received the goods knowing them to be stolen, unless he can account for his possession. The second part of the section for defines "Shall Presume" as follows "Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces the court to presume a fact that is specified by the law unless and until it is disproved. The court cannot ask for any evidence to prove the existence of that fact but it may allow evidence to disprove 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, the Court 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 that person'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 to be executed and attested. Presumption about abetment of suicide of a married woman (S. 113A) and Presumption about dowry death of a woman (S. 113B) are of this kind. Third part of the section defines "Conclusive Proof" as follows "Conclusive proof" - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. For example, birth during marriage (S. 112) is a conclusive proof of legitimacy. Presumption and Burden of Proof Justice Venkataramiah, of SC observed the following, in the case of Sodhi Transport vs State of UP, 1986 - A presumption is not evidence in itself but only makes a prima facie case for party in whose favor it exists. It indicates the person on whom the burden of proof lies. When the presumption is conclusive, it obviates the production of any evidence, but when it is rebuttable, it only points out the party on whom lies the duty of going forward with evidence on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Presumption about abatement of suicide by a married woman
Section 113 A - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court 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 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 to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code.
