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 cou rts 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, 1!", which says that in any suit or proceeding, evidence may be given of the e#istence or non$e#istence of every fact in issue and of such other facts as are are hereinafter declared to be relevant, 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 %inds of facts $ facts in issue and relevant facts. &et us see what they both mean $
Facts in Issue 'ection ( defines facts in issue. According to this section, a fact in issue is a fact that d irectly or indirectly in connection with other facts, determines the e#istence, non$e#istence, nature, or e#tent 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. )or e#ample, A is accused accu sed of murder or *. In this case, the following are facts in issue $ 1. A cau cause sed d *+s *+s deat death. h. ". A had had int inten enti tion on to to %il %illl *. *. (. A wa was ins insaane. . A receiv received ed grave grave and sudd sudden en provoc provocati ation on from from *. All the above are facts in issue because beca use they are in contention and they determine the liability of A. Their truth increases or decreases the probability that A murdered *. -rosecution will have to establish the facts that prove that A murdered * before A can be convicted. At the same time, the prosecution also has to disprove that any of the e#ceptions do not apply to A. A fact in issue is also %nown by its latin term $ factum probandum, which means fact to be proved. A fact will be considered as fact in issue only if the fact is such that by itself or in connection to other facts it is crucial to the uestion of a right or liability. To be a fact in issue, a fact must satisfy two reuirements $ the fact must be in dispute between the parties and the fact must touch the uestion of right or liability. The e#tent of rights and liabilities of parties depend on the ingredients of an offence. In criminal matters, the allegations in the charge sheet constitute the facts in issue, while in a civil case, it depends d epends on the provisions of the substantive law.
Relevant Facts (Q.
!at do you understand by relevancy of facts#
The word relevancy as such is not defined in Indian Evidence Act, 1!", however, the meaning of the word is uite clear. The word /relevancy/ means the property of a thing that ma%es it connected to the matter at hand. A thing is relevant to other when it has a relation to the other thing that tells something appropriate about the other thing. 0elevancy of a )act means that the
fact has a significant relation to another fact that is u nder consideration. When two facts have a direct relation, they are relevant relevant to each other. )or relevancy it is necessary necessary that if we ta%e one fact, the other will be relevant only if there is a certain type of relation between them, which is pertinent in the given circumstances. A relevant fact is also %nown by its latin term $ factum probans, which means a fact that proves. Thus, if facts$in$issue are the facts to be proved or disproved in a trial, relevant facts are the facts that help prove or disprove facts$in$issue. A fact is relevant if belief in that fact helps the conclusion of the e#istence or non$e#istence of another. Section $ specifies that a 0elevant fact is a fact is relevant to another when it is connected to the other in any of the ways referred to in the provisions contained in the act. Sections % to 55 contains provisions that define the relationships that ma%e a fact legally relevant or not relevant to another. The relationship ma%es one fact more probable or improbable because of the other. )or e#ample, )act A is that a person was given certain medication and he h e died. )act * is that the person was suffering from T*. ere, fact * is relevant relevant to fact A because it throws light on the possible causes of his death. )act * ma%es is probable that he might have died because of T* instead of the given medication.
In &'' vs ilbourne) *+,$) &ord 'imon of 2laisdale has said, /Evidence is relevant if it is logically probative or disprobative of some matter which reuires proof. A relevant evidence is evidence that ma%es the matter which reuires proof more or less probable./ As is evident from Section 5 stated above, only those facts that are related to the facts in issue through relationships defined in 'ection 3 to 44 are legally relevant and evidence can be given only for those facts in a trial. It must be noted, no ted, however, that a relevant fact may not necessarily be admissible. Section ** would be important to mention here. As per 'ection 11, in certain situations facts not otherwise relevant become relevant. This happens if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they ma%e the e#istence or non$e#istence of any fact in issue or relevant fact highly probable or improbable. )or e#ample, 5a6 The uestion is whether whether A committed a crime crime at 7alcutta on a certain day $ The fact that, on that day, A was at &ahore is relevant. 5b6 The uestion is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, *, 7 or 8. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either *, 7 or 8 is relevant. As is shown by these illustrations, an alibi is a ve ry common e#ample of an irrelevant fact becoming relevant.
Q. Explain t!e doctrine of Res -estae. &o you y ou agree it! t!e vie t!at t!is doctrine is not only useless but is also !armful / !en does relevancy of facts form part of t!e same transaction
fact has a significant relation to another fact that is u nder consideration. When two facts have a direct relation, they are relevant relevant to each other. )or relevancy it is necessary necessary that if we ta%e one fact, the other will be relevant only if there is a certain type of relation between them, which is pertinent in the given circumstances. A relevant fact is also %nown by its latin term $ factum probans, which means a fact that proves. Thus, if facts$in$issue are the facts to be proved or disproved in a trial, relevant facts are the facts that help prove or disprove facts$in$issue. A fact is relevant if belief in that fact helps the conclusion of the e#istence or non$e#istence of another. Section $ specifies that a 0elevant fact is a fact is relevant to another when it is connected to the other in any of the ways referred to in the provisions contained in the act. Sections % to 55 contains provisions that define the relationships that ma%e a fact legally relevant or not relevant to another. The relationship ma%es one fact more probable or improbable because of the other. )or e#ample, )act A is that a person was given certain medication and he h e died. )act * is that the person was suffering from T*. ere, fact * is relevant relevant to fact A because it throws light on the possible causes of his death. )act * ma%es is probable that he might have died because of T* instead of the given medication.
In &'' vs ilbourne) *+,$) &ord 'imon of 2laisdale has said, /Evidence is relevant if it is logically probative or disprobative of some matter which reuires proof. A relevant evidence is evidence that ma%es the matter which reuires proof more or less probable./ As is evident from Section 5 stated above, only those facts that are related to the facts in issue through relationships defined in 'ection 3 to 44 are legally relevant and evidence can be given only for those facts in a trial. It must be noted, no ted, however, that a relevant fact may not necessarily be admissible. Section ** would be important to mention here. As per 'ection 11, in certain situations facts not otherwise relevant become relevant. This happens if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they ma%e the e#istence or non$e#istence of any fact in issue or relevant fact highly probable or improbable. )or e#ample, 5a6 The uestion is whether whether A committed a crime crime at 7alcutta on a certain day $ The fact that, on that day, A was at &ahore is relevant. 5b6 The uestion is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, *, 7 or 8. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either *, 7 or 8 is relevant. As is shown by these illustrations, an alibi is a ve ry common e#ample of an irrelevant fact becoming relevant.
Q. Explain t!e doctrine of Res -estae. &o you y ou agree it! t!e vie t!at t!is doctrine is not only useless but is also !armful / !en does relevancy of facts form part of t!e same transaction
&octrine of Res -estae In a nutshell, 0es 2estae means facts forming part of a transaction. This includes things done and things said in the course of a transaction. Acts and declarations accompanying a transaction are treated as 0es 2estae and are admissible in evidence. As discussed above, a 7ourt is interested only in such evidence that is bearing on a fact in issue or o r a relevant fact. This is important in limiting the scope of the trial to facts that are indeed important for the case so that justice can be done swiftly. owever, in narrowing the scope of things that can be brought before b efore the court, injustice should not be done. The things that are reasonably connected to the facts in issue are usually very important for a case and such facts must be allowed to be brought before the court whether they fall into any of the sections that categori9e the facts as relevant or not. This concept is espoused by Section %. It says: Section %. Relevancy of facts forming part of same transaction $ )acts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different d ifferent 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 birth to it. This section ma%es all such facts relevant. The important thing to understand here is the meaning of the term /transaction/. To be eligible under this section the fact must have occurred in the same transaction in which the fact in issue occurred. /;ccurring in the same transaction/ is a wide term that includes several %inds of things such as things that happened at the vicinity of o f the facts in issue, things that were done by the accused right after or before the facts in issue, things that lead to facts in issue, and so on. The following illustrations e#plain the %ind of facts that are contemplated under this section: Illustrations
5a6 A is accused of the murder of o f * by beating him. Whatever was said or done by A or * or the by$standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact. 5b6 A is accused of waging war against the 2overnment of India by ta%ing part in an armed insurrection in which property is destroyed, troops are attac%ed and goals are bro%en open. The occurrence of these facts is relevant, as forming p art of the general transaction, though A may not have been present p resent at all of them. 5c6 A sues * for a libel contained in a letter forming part of a correspondence. &etters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. 5d6 The uestion is whether certain goods ordered from * were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
The principle that is highlighted by the above illustrations is that whenever /transaction/ such as a contract or a crime, is a fact in issue, then evidence can be given of every fact which wh ich forms part of the same transaction. According to Step!en , a transaction is a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong, or any other subject of inuiry which may be in issue. Although Section % does not use the words Res -estae , the concept behind this section is often referred to by this term. This pool of facts in which facts in issue happened is the /0es 2estae/ of the facts in issue. 0es 2estae is the surrounding circumstances of the event to be proved. Res -estae and 0earsay Evidence 0es 2estae also refers to secondhand statements considered trustworthy for the purpose of admission as evidence in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event.
To be admissible, the statements must relate, e#plain, or characteri9e an event or transaction. They must be natural statements growing out of the event, as opposed to a narrative of a past, completed affair. Additionally, the statements must be spontaneous, evo%ed by the event itself, and not the result of premeditation. )inally, the original spea%er must have participated in the transaction or witnessed the event in uestion. Thus, for e#ample, a witness might testify that during a ban% robbery, she or he heard another person shout, /That person is robbing the ban%=/ and the statement could be admitted as an e#ception to the ban on hearsay. Illustration 5a6 above is an e#ample of such statement.
2sefulness of Res -estae As per '!illip3s 4reatise on Evidence , the reason why the term 0es 2estae has been avoided from 'ection 3 is because this doctrine has been productive of confusion. There can be numerous facts that surround the facts in issue. They can all be somehow lin%ed with the same transaction. There is no clearcut rule that can demarcate a transaction. 'o it is entirely left to the e#perience and intuition of the >udges to determine whether a particular fact can be included in 0es 2estae or not. This is evident from the following two cases. In the case of R vs Foster *6$ , accused was charged with manslaughter in %illing a person by driving over him. A witness saw the vehicle driven fast but did not see the accident. Immediately after, on hearing the victim groan, he went up to him and as%ed him what happened. The deceased then made a statement as to the cause of the injury. The court co urt held that what the deceased said at the instant, as to the cause of
the accident is clearly admissible. As a contrast, in the case of R vs 7eddingfield *,+ , a woman, with her throat cut, came suddenly out of a room, in which she had been injured. 'hortly before she died, she said, /;h dear Aunt, see what *eddingfield has done to me./ This statement was not accepted as 0es 2estae. According to 89 8oc:burn , anything uttered while the crime was being done would be admissible but here, what she said was said after the crime was all over. Thus, it can be seen that the doctrine of 0es 2estae does not produce same results in very similar situations. This certainly causes confusion in the minds of novice lawyers and judges. ?y belief is that this principle should be applied when common sense dictates so. &i%e any other principle, this principle is also not a precise instrument to measure relevancy. It is only a guide that can help decide whether a fact is sufficiently relevant to a fact in issue. The final decision rests with the >udge, who should decide depending on the peculiarities of the case. I do not agree that this doctrine is harmful for the simple reason that this doctrine is not a rigid rule of law. It should be applied only when suitable.
Q. !at facts are relevant under Indian Evidence ;ct Sections % to 55 of Indian Evidence Act describe the facts that are deemed relevant. These are as follows $ @Tr;c?I 7on;87 'A*A8;>;7 Section % < Relevancy of facts forming part of same transaction < )acts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. )or e#ample $ 5a6 A is accused of the murder of * by beating him. Whatever was said or done by A or * or the by$standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. Section , < Facts !ic! are t!e occasion) cause or effect of facts in issue < )acts 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. )or e#ample $ a6 The uestion is, whether A robbed *. The facts that, shortly before the robbery, * 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 < =otive) preparation and previous or subse>uent conduct $ Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact $ )or e#ample $ 5a6 A is tried for the murder of * $ The facts that A murdered 7, that * %new that A had murdered 7, and that * had tried to e#tort money from A by threatening to ma%e his %nowledge public, are relevant $ Section + < Facts necessary to explain or introduce relevant facts < )acts necessary to e#plain
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 fi# 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 $ )or e#ample, 5a6 The uestion 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 *1 < 4!ings 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 e#istence of the conspiracy as for the purpose of showing that any such person was a party to it $ Section ** < !en facts not ot!erise relevant become relevant < )acts not otherwise relevant are relevant $ 516 if they are inconsistent with any fact in issue or relevant factB 5"6 if by themselves or in connection with other facts they ma%e the e#istence or non$e#istence of any fact in issue or relevant fact highly probable or improbable $ )or e#ample, 5a6 The uestion is whether A committed a crime at 7alcutta on a certain day $ The fact that, on that day, A was at &ahore is relevant $ Section *? < In suits for damages) facts tending to enable 8ourt to determine amount are relevant < In suits in which damages are claimed, any fact which will enable the 7ourt to determine the amount of damages which ought to be awarded, is relevant $ Section *$ < Facts relevant !en rig!t or custom is in >uestion < Where the uestion is as to the e#istence of any right or custom, the following facts are relevant:$ 5a6 any transaction by which the right or custom in uestion was created, claimed, modified, recogni9ed, asserted or denied, or which was inconsistent with its e#istence: 5b6 particular instances in which the right or custom was claimed, recogni9ed or e#ercised, or in which its e#ercise was disputed, asserted or departed from $ )or e#ample $ The uestion 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 subseuent grant of the fishery by A+s father, irreconcilable with the mortgage, particular instances in which A+s father e #ercised the right, or in which the e#ercise of the right was stopped by A+s neighbors, are relevant facts $ Section *6 < Facts s!oing existence of state of mind) or of body) of bodily feeling < )acts showing the e#istence of any state of mind, such as intention, %nowledge, good faith, negligence, rashness, ill$will or good$will towards any particular person, or showing the e#istence of any state of body or bodily feeling, are relevant, when the e#istence of any such state of mind or body or bodily feeling, is in issue or relevant $ )or e#ample, 5a6 A is accused of receiving stolen goods %nowing 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 %new each and all of the articles of which he was in possession to be stolen $ Section *5 < Facts bearing on >uestion !et!er act as accidental or intentional < When there is a uestion whether an act was accidental or intentional, or done with a particular %nowledge 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 $ )or e#ample, 5a6 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 *% < Existence of course of business !en relevant < When there is a uestion whether a particular act was done, the e#istence of any course of business, according to which it naturally would have been done, is a relevant fact $ )or e#ample, 5a6 The uestion 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 *, to $* < ;dmission of facts by particular persons is relevant. Sections $? and $$ < Statements by persons !o cannot be called itness in specified circumstances are it! definite conditions are relevant. Sections $6 to $ < Statements made in an extra ordinary circumstance) any statement made on any la !ic! is inserted in some boo:s) is relevant. Sections 61<66 < 9udgments of courts are relevant in certain situations. Sections 65<5* < @pinion of t!ird person is relevant in certain situations. Sections 5?<55 < 8!aracter of a person is relevant in certain situations.
Q. ;re t!ose facts also relevant !ic! are t!e occasion) cause) or effect of facts in issue Ces, facts because of which facts in issue ta%e birth, or facts which ta%e 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 , < )acts 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 < 5a6 The uestion is, whether A robbed *. The facts that, shortly before the robbery, * 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. 5b6 The uestion is, whether A murdered *. ?ar%s on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. 5c6 The uestion is, whether A poisoned *. The state of *+s health before the symptoms ascribed to poison, and habits of *, %nown to A, which afforded an opportunity for the administration of poison, are relevant facts. This section include following types of facts $ *. @ccasion < ;ccasion means the circumstances in which an event occurred. Evidence of such circumstance is eligible to given. )or e#ample, in the case of R vs Ric!ardson , 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. ?. 8ause < )acts that form the cause of facts in issue are relevant. )or e#ample, A is charged of criminal misappropriation of funds from a ban%. 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 'ection . owever this may not always be the case. )or e#ample, in the case of Indian ;irlines vs =ad!uri 8!aud!ury ;IR *+%5 , the report of an Inuiry 7ommission relating to an air crash was held relevant under 'ection ! as establishing the cause of the accident. $. 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. )or e#ample, where a person is poisoned, the symptoms produced are effects of the fact in issue and so are relevant. 6. @pportunity < 7ircumstances which provide an opportunity for the happening of a fact in issue are relevant. )or e#ample, a brea% from the daily routine of a person may be the opportunity that is used the person to commit the crime. )or e#ample, in R vs Ric!ardson) the fact that 0ichardson left his fellow wor%ers 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 4!ings < )acts which constitute the state of things un der which or in the bac%ground of which the principle facts happened are relevant. )or e#ample, in the fact ore Rattan vs Reginum) ;IR *+,*) 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. ";ny fact is relevant !ic! s!os or constitutes a motive or preparation and conduct of any fact in issue or relevant fact". Explain. This statement is ta%en from 'ection of Indian Evidence Act, which is as follows $ Section < =otive) preparation and previous or subse>uent 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 subseuent thereto. Explanation * < The word /conduct/ in this section does not include statements, unless those statements accompany and e#plain acts other than statementsB but this e#planation is not to affect the relevancy of statements under any other section of this Act. Explanation ? < 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 5a6 A is tried for the murder of *. The facts that A murdered 7, that * %new that A had murdered 7, and that * had tried to e#tort money from A by threatening to ma%e his %nowledge public, are relevant. 5b6 A sues * upon a bond for the payment of money. * denies the ma%ing of the bond. The fact that, at the time when the bond was alleged to be made, * reuired money for a particular purpose, is relevant. 5c6 A is tried for the murder of * by poison. The fact that, before the death of *, A procured poison similar to that which was administered to *, is relevant. 5d6 The uestion is, whether a certain document is the will of A. The facts that, not long before the date of the alleged will, A made inuiry into matters to which the provisions of the alleged will relate, that he consulted va%ils in reference to ma%ing the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant. 5e6 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. 5f6 The uestion is, whether A robbed *. The facts that, after * was robbed, 7 said in A+s presence$ /the police are coming to loo% for the man who robbed *,/ and that immediately afterwards A ran away, are relevant. 5g6 The uestion is, whether A owes * rupees 1D,DDD. The facts that A as%ed 7 to lend him money, and that 8 said to 7 in A+s presence and hearing$ /I advise you not to trust A, for he owes * 1D,DDD rupees,/ and that A went away without ma%ing any answer, are relevant facts. 5h6 The uestion is, whether A committed a crime. The fact that A absconded after receiving a letter warning him that inuiry was being made for the criminal, and the contents of the letter, are relevant. 5i6 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 acuired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. 5j6 The uestion 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 ma%ing 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 (", clause 516, or as corroborative evidence under section 14!. 5%6 The uestion 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 ma%ing any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section (", clause 516, or as corroborative evidence under section 14!. This section provides for the relevancy of three principal facts which are very important in connection with any case, namely, ?otive, -reparation, and 7onduct. =otive < ?otive is the power that impels one to do an act. It is a %ind of inducement for doing the act. ?otive 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. )or e#ample, 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 %ill 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 e#plained the motive behind the murder. 'reparation < The acts of preparation for a crime are relevant. -reparation by itself is not a crime 5e#cept in certain offenses such as waging a war against 2ovt. of India6 but the facts that show the preparation tie the preparer to the actual crime and so are relevant. )or e#ample, act of purchasing a poison shows the preparation of the murder by administering poison. 8onduct < 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 ma%es 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. owever, 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. ". The conduct is such as influences or is influenced by the facts in issue or relevant facts.
Q. !en do facts not ot!erise relevant become relevant A fact, which does not have any such relation as defined in 'ection 3 to 44 to the fact in issue is not a relevant fact and ordinarily evidence cannot be given for such a fact. owever, when an irrelevant fact is such that it ma%es the e#istence o r non$e#istence 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. 'uch a fact ought to be brought before the court. This is the concept embodied in 'ection 11. It says the following : Section ** $ )acts not otherwise relevant, are relevant. 516 if they are inconsistent with any fact in issue or relevant factB 5"6 if, by themselves or in connection with other facts they ma%e the e#istence or non$e#istence of any fact in issue or relevant fact highly probable or improbable. Illustrations 5a6 The uestion is, whether A committed a crime at 7alcutta on a certain day. The fact that, on that day, A was at &ahore, is relevant. 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. 5b6 The uestion is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, *, 7 or 8. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either *, 7 or 8 is relevant. As given in illustrations above, an alibi is a very common e#ample 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. owever, the burden of proof is on the accused and strict evidence is reuired to establish such pleas )or e#ample, in case of =it!iles! 2pad!yaya vs State of 7i!ar) *++, , the accused stated that he was in the hospital at the time of crime but did not give any supporting documents. is plea was not accepted. It must be noted that this section is uite 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 ma%es the e#istence of a fact in issue highly probable or improbable is covered. >A?E' )ITA?E' 'TE-EF, the author on Indian Evidence Act in his boo% Introduction To The Indian Evidence Act, observed that the facts relevant under '. 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. owever, 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 d etrimental 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 e#clusion, 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. E#ample of facts under hearsay is, /?r. G said that ?r. C is corrupt/ or /Everybody says a certain officer is corrupt./ This fact is hearsay and is legally irrelevant. E#amples of second type of facts include $ statements made behind the bac% of a person against whom they are sought to be used as evidence, similar unconnected transactions, and opinion of third parties. 0ule in section 11 ma%es such facts relevant if they are inconsistent with the facts in issue or ma%e their e#istence or non e#istence highly probable. Thus, the only criteria for giving evidence of fact under section 11 is that it should ma%e the e#istence of a fact in issue highly probable or improbable. In Ram umar 'anday vs State of =') *+,5) it was held that important omissions would be relevant under this rule.
Q. 0o far is c!aracter 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. owever, there are certain e#ceptional situations where character of a person is important for the case. -rovisions regarding the relevancy of character are specified in 'ections 4", 4(, 4, and 44. There are
different rules about relevancy of character in civil and criminal cases. Relevancy in 8ivil 8ases Section 5? 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 ;ttorney -eneral vs 7oman) *,,* . 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. e called a witness to testify that he was a man of good character and conduct. This was not admitted by the court. )urther, as held in 0ollington vs 0et!orn A 8o ltd) *+6$ , which is also %nown as rule in ollington vs ewthron, 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. owever, 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 < *. !en c!aracter appears from ot!er relevant evidence < 'econd part of Section 5? 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 e#cluded from evidence merely because it incidentally throws light upon a party+s character. )or e#ample, a journalist is described as an e#ploiter and he sues for damages for defamation and the defendant ta%es the defense that whatever the defendant has said is true. Fow, the defendant will have to give evidence to prove the e#ploitation which the plaintiff has been practicing. 'uch evidence will also bring to light the real character of the plaintiff and the court can ta%e note of this. ?. !en c!aracter itself is in issue < Section 56 says that previous bad character is not relevant, e#cept in reply. owever, E#planation 1 to this section specifies that this rule does not apply when character itself is a fact in issue. )or e# ample, 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. $. &etermination of damages < Section 55 allows the character of the plaintiff to be considered as relevant for determining the amount of damages that he ought to receive. An early English case on this aspect is of Scott vs Sampson) *? . In this case a journalist was suing the defendant for libel. The defendant tried to show the character of the plaintiff but the trial judge refused to admit it.
7ave, held that the evidence should have been allowed to be admitted. e remar%ed that if the plaintiff claims an injury to his reputation, the jury should %now whether he is a man of reputation or not before awarding any damages. If
evidence about the character of the plaintiff is not allowed then there will be no difference between an honorable person and a cheat. A virtuous woman will be %ept at the same level with a prostitute. To enable a jury to estimate the uantum of injury sustained, the %nowledge of party+s character is relevant.
Relevancy in 8riminal 8ases Section 5$ lays down the general principle that in criminal proceedings the fact that the person accused is of a good character is relevant and 'ection 4 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 9 8oc:burn 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. ;n the other hand, the prosecution cannot submit evidence to show bad character of the accused. owever, as per Section 56, 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. ;pposite 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. ". When character itself is in issue, evidence of bad character may be given. (. When a fact is otherwise relevant, it can be submitted even if incidentally reveals the ch aracter of the accused. . The prosecution is allowed to cite a previous conviction as evidence of bad character of the accused. 0egarding this provision, Bord &enning has observed in the case of -oody vs @ld!am 'ress Btd) *+%, , that previous convictions are a class in itself. They are the raw material upon which bad reputation is built up. They have ta%en place in an open court and are of public %nowledge. They are very different from previous misconducts that are not tried in a court and which therefore might lead to dispute. *ut previous convictions offer not possibility of such disputes and so are relevant and admissible.
Q. !at facts need not be proved 2enerally, 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. owever, Indian Evidence Act allows the court to accept certain %inds of facts without any necessity to be proven by any party. These %inds of facts are specified in 'ection 43, 4!, 4, and 11. The provisions in these sections are as follows $ Section 5% < Facts Cudicially noticeable need not be proved < Fo fact of which the 7ourt will ta%e judicial notice need be proved. This means that if the court is bound to ta%e notice of a particular fact, the parties do not have the burden of proving that fact. It is part of the judicial
function to %now that fact. )or e#ample, the court is bound to %now the various laws and customs of the country. A party does not need to provide any proof when stating any law. )acts for which a court will ta%e judicial notice are specified in Section 5,. These include &aws in force in India, -ublic Acts of -arliament, &ocal, an d 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 %eep to the left of a road etc, the territories under the d ominion of 2ovt. of India. In all these case, the court may resort appropriate boo%s or documents of reference for its aid. Also, the matters enumerated in this section are not e#haustive. The section merely provides that the court must ta%e judicial notices of the facts enumerated in this section. It does not prohibit the court from ta%ings judicial notice of any other facts. To understand this point, we need to loo% at the meaning of judicial notice $ =eaning of "4a:ing 9udicial Dotice" < It means recognition of something as e#isting or as being true without having any proof. >udicial notice is based upon reasons of convenience and e#pediency. 7ertain things are so commonly %nown that any ordinary person is aware of it and it is a waste of time to see% any proof for such things. )or e#ample, it is a c ommonly %nown fact that certain parts of ?-, *ihar, and A- are na#alite affected or that >H is a terror stri%en area. A court does not need to spend time in loo%ing for its proof. Thus, judicial notice is the cogni9ance ta%en by the court itself of certain matter which are so notorious or clearly established that the evidence of their e#istence is unnecessary. )or e#ample, in the case of =anaging 8ommittee of RaCa Sid!es!ar 0ig! Sc!ool vs State of 7i!ar) ;IR *++$) the court too% judicial notice of the fact that education in the state was virtually crumbled. In another case, court too% judicial notice of the fact that several blind persons have acuired great academic distinction. If the court is called upon by a person to ta%e judicial notice of a fact, it may refuse to do so unless and until such person produces any such boo% or document as it may consider necessary to enable it to do so. The basic reuirement for ta%ing 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. owever, a judge cannot bring his personal %nowledge into judicial notice if that %nowledge is not public %nowledge. >ust because a judge %nows something does not ma%e it a thing of common %nowledge. 9 8!andrac!ud observed that a court does not operate in ivory tower. It can ta%e cogni9ance of facts that are happening all around it. 'hutting judicial eye to the e#istence 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. Fo 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 roc%ed the nation. Section 5 < Facts admitted need not be proved < Fo 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. -rovided that the 7ourt may, in its discretion, reuire 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. )or e#ample, 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. owever, an admission may not necessarily constitute conclusive evidence of the fact admitted. Therefore, this section allows the court to as% for some other proof of the admitted fact. This is a discretionary power of the court. Section **6 < 8ourt may presume existence of certain facts < The 7ourt may presume the e#istence of any fact which it thin%s li%ely 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. )or e#ample, a person may be presumed to be dead if his whereabouts are not %nown for seven years. 'uch facts need not be proven.
Q. !at do you understand by ;dmission -eneral 8oncept of ;dmission < In general, Admission is a voluntary ac%nowledgment of a fact. Importance is given to those admissions that goes against the interests of the person ma%ing the admission. )or e#ample, when A says to * that he stole money from 7, A ma%es an admission of the fact that A stole money from 7.This fact is detrimental to the interests of A. The concept behind this is that nobody would accept or ac%nowledge a fact that goes against their interest unless it is indeed true.
As per this definition, any statement, which suggests any inference about any fact in issue or relevant fact, and which is made by persons under certain circumstances, is an admission. These circumstances are mentioned in 'ection 1 to "D as follows $ Section * < Admission by party to proceeding or his agentB by suitor in representative characterB by party interested in subject$matterB by person from whom interest derived $ 'tatements made by a party to the proceeding, or by an agent to any such party, whom the 7ourt regards, under the circumstances of the case, as e#pressly or impliedly authori9ed b y him to made them, are admissions. *y suitor in representative character $ 'tatements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made w hile the party ma%ing them held that character.
'tatements made by $ 516 by party interested in subject matterB persons who have any proprietary or pecuniary interest in the subject$matter of the proceeding and who ma%e the statement in their character of persons so interestedB or 5"6 by person from whom interest derivedB persons from whom the p arties to the suit have derived their interest in the subject$matter of the suit, are admissions, if they are made during the continuance of the interest of the persons ma%ing the statements. According to this section, statements made a persons who are directly or indirectly a party to a suit are admissions. Thus, statements of an agent of a party to the suits are also admissions. 'tatements made by 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. 'imilarly, 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 ma%er had such an interest. )or e#ample, A bought a piece of land from *. 'tatements made by * at the time when * was the owner of the land are admissions against A. Section *+ < Admissions by persons whose position must be proved as ag ainst party to suit$ 'tatements made by persons whose position or liability it is necessary to p rove 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 b y or against the made if they are made whilst the person ma%ing them occupies such position or is subject of such liability. Illustration < A underta%es to collect rent for *. * sues A for not collecting rent due from 7 to *. A denies that rent was due from 7 to *. A statement by 7 that he owned * rent is an admission, and is a relevant fact as against A, if A denies that 7 did owe rent to *. Section ?1 < Admission by persons e#pressly referred to by party to suit $ ' tatements made by persons to whom a party to the suit has e#pressly referred for information in reference to a matter in dispute are admissions. Illustration < The uestion is, whether a horse sold by A to * is sound A says to * /2o and as% 7. 7 %nows all about it/ 7+s statement is an admission.
To be considered an admission, it is not necessary for a statement to give a direct ac%nowledgment of liability. It is sufficient even if the statement suggests an inference about the liability. )or e#ample, A is charged with murder of * by giving poison. The statement by A that he purchased a bottle of poison is admission because it suggests the inference that he might have murdered * using that poison, even though it does not clearly ac%nowledge the fact that A murdered *. In the case of 8!e:!am otes!ara Rao vs 8 Subbarao) ;IR *+*) S8 held that before the right of a party can be ta%en to be defeated on the basis of an alleged admission
by him, the implication of the statement must be clear and conclusive. There should not be any doubt or ambiguity.)urther, it held that it is necessary to read all of his statements together. Thus, stray elements elicited in cross e#amination cannot be ta%en as admission.
Q. &iscuss t!e la regarding proof of admissions against persons ma:ing t!em and by or on be!alf of t!em. ";dmission cannot be proved by or on be!alf of any person !o ma:es it". ;re t!ere any exceptions &iscuss. It is important to note that Indian Evidence Ac t does not reuire that an admission be of statements that are against the interests of the ma%er. All that is necessary is that the statement should suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in the interest of the ma%er of the statement. 'elf serving prior statements are also admissions. )or e#ample, A person can say to * that he did not steal money from 7. This is a self serving statement and is a valid admission. 8oes this mean that a person can ma%e self serving statements and escape from his liabilityJ The answer is no b ecause such self serving admissions are governed by the provisions of 'ection "1, which says the following $ Section ?* < 'roof of admissions against persons ma:ing t!em) and by or on t!eir be!alf < Admissions are relevant and may be proved as against the person who ma%es them, or his representative in interestB but they cannot be proved by or on behalf of the person who ma%es them or by his representative in interest, e#cept in the following cases $ 516 An admission may be proved by or on behalf of the person ma%ing it, when it is of such a nature that, if the person ma%ing it were dead, it would be relevant as between third persons under section (". 5"6 An admission may be proved by or on behalf of the person ma%ing it, when it consists of a statement of the e#istence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body e#isted, and is accompanied by conduct rendering its falsehood improbable. 5(6 An admission may be proved by or on behalf of the person ma%ing it, if it is relevant otherwise than as an admission. Illustrations
5a6 The uestion between A and * is, whether a certain deed is or is not forged. A affirms that it is genuine, * that it is forged. A may prove a statement by * that the deed is genuine, and * may prove a statement by A that deed is forgedB but A cannot prove a statement by himself that the deed is genuine, nor can * prove a statement by himself that the deed is forged. 5b6 A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was ta%en out of her proper course. A produces a boo% %ept by him in the ordinary course of his business showing observations alleged to have been ta%en by him from day to day, and indicating that the ship was not ta%en out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section (", clause 5"6.
5c6 A is accused of a crime committed by him at 7alcutta. e produces a letter written by himself and dated at &ahore on that day, and bearing the &ahore post$mar% of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under section (", clause 5"6. 5d6 A is accused of receiving stolen goods %nowing them to be stolen. e offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are e#planatory of conduct influenced by facts in issue. 5e6 A is accused of fraudulently having in his possession counterfeit coin which he %new to be counterfeit. e offers to prove that he as%ed a s%illful person to e#amine the coin as he doubted whether it was counterfeit or not, and that that person did e#amine it and told him it was genuine. A may prove these facts for the reasons stated in the last preceding illustration. )rom the above illustrations it is clear that the general rule is that a person is not allowed to prove his own admissions. ;therwise, as observed in R vs 0ardy) *,+6 , every man, if he were in difficulty, or in view of one, might ma%e declarations to suit his own case and then lodge them in proof of his case. This principle, however, is subject to some important e#ceptions, which allow a person to prove his own statements. These are as follows $ Exception * < When the statement should have been relevant as dying declaration or as that of a deceased person under 'ection (". 'ection (" deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favor of or against the person ma%ing the statement. In circumstances stated in 'ection (" such a statement can be proved by the ma%er himself if he is still alive. In the situation described in Illustration 5b6, in a case between the shipowner and the insurance company, the contents of the log boo% maintained by the captain would have been relevant evidence if the captain were dead under 'ection (". Therefore, the captain is allowed to prove the contents of the log boo% even in the case involving him and the shipowners. Exception ? < 'tatements as to bodily feeling or mind $ It enables a person to prove his statements about his state of mind or body if such state of mind or body is a fact in issue or is relevant fact and if the statement was made at the time when such state of mind or body e#isted and further if the statement is accompanied with his co nduct that ma%es the falsehood of the statements improbable. In Illustration 5d6, the statements of A that show that he refused to sell them below their value, are self serving admissions. owever, it is acc eptable because they reflect A+s state of mind and were associated with a conduct of refusing to sell that ma%es their falsehood improbably. Exception $ < The last e#ception allows a person to prove his own statement when it is otherwise relevant 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 b ecause it establishes the e#istence or non$e#istence of a relevant fact or a fact in issue. In all such cases a party can prove his own statements. These cases are covered by the following sections $ Section % < When a statement is made relevant by the doctrine of res gestae i.e. due to part of the same transaction. )or e#ample, immediately after a road acc ident, if the victim has made a
statement to the rescuer about the cause of the accident, he can prove that statement because it is part of the same transaction. Section < A statement may be proved by or on behalf of the person ma%e it under 'ection if it accompanies or e#plains acts other than statements or if it influences the conduct of a person whose conduct is relevant. )or e#ample, where A says to *, /Cou have not paid my money bac%/, and * wal%s away in silence, A may prove his own statement because it has influenced the conduct of a person whose conduct is relevant. Section *6 < When the statement e#plains his state of mid or body or bodily feeling when any such thing is relevant or is in issue, it can be proved by himself. )or e#ample, where the uestion is whether a person has been guilty of cruelty towards his wife, he may prove his statements made shortly before or after the alleged cruelty which e#plain his love and affection for and his feeling towards his wife.
Q. !at do you understand by 8onfession 0o does confession differ from admission State t!e la relating to confessions. !at is 9udicial and Extra<9udicial confession 2nder !at circumstances is it relevant and !en can it not be proved State t!e extent) relevancy) and admissibility of a confession as evidence. 0o far can t!e statements of t!e accused made before t!e police be used against !im -eneral 8oncept of 8onfession < The term confession is not defined anywhere in Indian Evidence Act. *ut it is thought that an Admission in case of a criminal matter is 7onfession. The same was stated by S4E'0ED in his digest that that a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed the crime. owever, -rivy 7ouncil, in case of 'a:ala Darayan Sami vs Emperor ;IR *+$+) did not accept this definition. In this case Bord ;4ID observed that no statement that contains self e#culpatory matter can amount to a confession. )urther, a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An offence of a gravely incriminating fact, is not in itself a confession. )or e#ample, an admission that the accused is the over of and was in recent possession of the %nife or revolver which caused death with no e#planation of any other man+s possession, is not a confession even though it strongly suggests that the accused has committed the murder.
The decision by -rivy 7ouncil in -a%ala Farayan 'wami case was approved by '7 in the case of 'alvinder aur vs State of -unjab) ;IR *+5?. In this case, -alvinder was on trial for murder of her husband along with another, who all the time remained absconding. In her statement to the
court, her husband was hobbyist photographer and used to %eep handy photo developing material which is uic% poison. ;n this occasion, he was ill and she brought him some medicine and the medicine was %ept near the liuid developer and by mista%e swallowed the liuid and died. 'he got afraid and with the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially showed innocence. ere, the lower courts sorted out the e#culpatory part and convicted her on the inculpatory part. owever, '7 rejected this approach and held that the rule regarding confession and admission is that they must either be accepted or rejected as whole. &ifference beteen 8onfession and ;dmission This brings us to the main difference between admission and confession. An admission is a statement that may 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 ma%er of the admission. )or e#ample, in the case of eera Ibra!im vs State of =a!aras!tra) ;IR *+,% , a person being prosecuted under 7ustoms Act told the customs officer that he did not %now that the goods loaded in his truc% were contraband nor were they loaded with his permission. '7 held that the statement was not a confession but it did amount to admission of an incriminating fact that the truc% was loaded with contraband material.
Thus, a statement which may not amount to confession may still be relevant as admission. ;nly a voluntary and direct ac%nowledgment of guilt is confession, but when a confession fall short of actual admission of guilt, it may nevertheless be used as evidence under 'ection "1. 0egarding admission that contains multiple sentences, >ustice Thomas, of '7 stated the law in the case of Bo:eman S!a! vs State of 7) ;IR ?11* as follows $ The test of discerning whether a statement recorded by a judicial magistrate under 'ection 13 of 7r-7, is confessional or not is not to determine it b y dissecting the statement into different sentences and then to pic% out some as not inculpative.The statement must be read as a whole and then only the court should decide whether it contains admissions of his inculpatory involvement in the offence. If the result of that test is positive the the statement is confessional otherwise not.
8lassification of 8onfessions A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this manner, a confession may be divided into two categories $ >udicial 7onfession and E#tra$judicial 7onfession. 9udicial 8onfession $ A judicial confession is a confession that is made in front of a magistrate or in a court. It may be made in the course of a judicial proceeding. Extra < 9udicial 8onfession $ An e#tra$judicial confession is a confession that is made by the party elsewhere than before a magistrate or in a court. It is admissible in evidence under 'ection "1 and it is proved by the witnesses who had heard the spea%er+s words constituting the confession.
A confession ma even consist of conversation with oneself. )or e#ample, in case of Sa!oo vs State of 2') ;IR *+%%) an accused who was charged with murder of his daughter in law with
whom he was always uarreling was seen on the day of the murder going out of the home saying words to the effect, /I have finished her and with her the daily uarrels./. The statement was held to be a valid confession because it is not necessary for the relevance of a confession that it should communicate to some other person.
Relevancy of 8onfessions < 8onfessions !en Dot Relevant A confession becomes irrelevant and thus, inadmissible, in situations described in the 'ections ", "4, and "3. *. Section ?6 < 8onfession caused by inducement) t!reat) or promise from a person in aut!ority < 7onfession made by an accused is irrelevant in a criminal proceeding if the ma%ing of the confession appears 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 ma%ing the confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings against him. The following conditions are necessary to attract the p rovisions 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 becau se of threat, inducement, or promise, the uestion has to be considered from the point of view of the accused as to how the inducement, threat or promise would operate in his mind. )or e#ample, where the accused was told by the magistrate, /tell me where the things are and I will be favorable to you/, it was held to be inadmissible. ". The inducement, threat, or promise, must be made by a person in authority $ A person in authority is not merely a police officer or a magistrate but every such person who can reasonably hold a sway over the investigation or trial. Thus, government officials such as a senior military officer, police constable, warden, cler% of the court, all have been held to be a person in authority. Even private persons such as the wife of the employer was also held to be a person in authority. (. It should relate to the charge in uestion $ This reuirement is specifically stated in the section, which says that the inducement must have /reference to the charge against the accused person/. Thus, in the case of Empress vs ?ohan &al, 11, the confession by a person who was threatened to be removed from his caste for life, was held to be relevant because the threat did not have anything to do with the charge. The position in English law is not same. In fact, > ATIF';F has said that this rule is illogical and unreasonable. )or e#ample, a daughter is accused of shoplifting and later on her mother is also accused of the same offence. Fow, if the mother is induced to confess by saying that if she confesses to the charge, proceedings against her daughter will be dropped, this will most li%e lead to an untrue confession. Cet, it would be valid under this section. . It should hold out some material, worldly, or temporal benefit or advantage $ The inducement should be about some tangible benefit. )or e#ample, a reference to spiritual benefit such as, ta%ing an accused to a temple to confess does not fall in this category but a promise to reduce the sentence would fall under it.
It is necessary that all the conditions must e#ist cumulatively. )urther, this section merely reuires that if it /appears to the court/ that the confession was improperly obtained, it becomes
inadmissible i.e. if the circumstances create a probability in the mind of the court that the confession is improperly obtained, it may hold it inadmissible. ?. 8onfessions to 'olice < It is presumed that police holds a position of great influence over the actions of the the accused and so there is a high probability that confessions obtained by the police are tainted with threat, or inducement. )urther, it is important to prevent the practice of oppression or torture by the police to e#tract the confession. This principle is espoused by 'ections "4 and "3, which are as follows $ Section ?5 < 8onfession to police
7onstitutionality of 'ection "! $ Indian Evidence Act was written before the 7onstitution of India and Article "D5(6 of the constitution says that no person shall be compelled to be a witness against himself. This article seemingly made 'ection "! unconstitutional. '7 con sidered this issue in the case of Disa Sree vs State of @rissa ;IR *+56) and held that it is not violative of Article "D5(6. A confession may or may not lead to the discovery of an increminating fact. If the discovered fact is non incriminatory, there is no issue and if it is self$incriminatory, it is admissible if the information is given by the accused without any threat.
8onfessions !en Relevant < The following three types of confession are relevant and admissible $ *. Section ?, < 8onfession leading to a discovery < E#plained above. ?. Section ? < 8onfessions made after removal of t!reat < If the confession is obtained after the impression caused by threat, inducement, o r promise is removed in the opinion of the court, then the confession is admissible. $. Section ?+ < 8onfession made under promise) deception)etc. < If a confession is otherwise relevant, it does not become irrelevant merely because it was made $ 5a6 under a promise of secrecy or 5b6 in conseuences of a deception practiced on the accused person for the purpose of obtaining it or 5c6 while the accused was drun% or 5d6 while answering the uestions he need not have answered or 5e6 when the accused was not warned that he was not bound to ma%e such confession and that evidence of it might be given against him.
The basis of this section is that any breach of confidence or of good faith or practice of any artifice does not invalidate a confession. owever, a confession obtained by mere tric%ery does not carry much weight. )or e#ample, in one case, an accused was told that somebody saw him doing the crime and because of this the accused made a confession. The court held the confession as inadmissible. In Rex vs S!a) A was accused of a murder and *, a fellow prisoner, as%ed him about how he did he do the murder. A said, /Will you be upon your oath not to mention what I tell youJ/, to which * promised on his oath that he will not tell anybody. A then made a statement. It was held that it was not such an inducement that would render the confession inadmissible. The five circumstances mentioned in the section are not e#haustive.
Q. Discuss the law regarding competency of a witness? (Sections 118-121) an a wife !e a competent witness against her hus!and? (Section 12") The modern judicial system is based on evidence. The knowledge of how an event happened is arrived at by the court through witnesses. As BENTHA said! "#itnesses are the eyes and ears of justice." The court gives its finding based on the evidence given by witnesses. $t is important! therefore! to understand who can and cannot be a competent witness. %ection &&' of $ndian Evidence Act! &'()! contains the provisions
for determining a competent witness. Section 118. #ho may testify* + All persons shall be competent to testify unless the ,ourt considers that they are prevented from understanding the -uestion put to them! or from giving rational answer to those -uestions! by tender years! etreme old age! disease! whether of body and mind! or any other cause of the same kind. Eplanation + A lunatic is not incompetent to testify! unless he is prevented by his lunacy from understanding the -uestion put to him and giving rational answers to him. As is evident from %ection &&'! in general! nobody is barred from being a witness as long as he is able to understand the -uestions that are put to him as well as is able to give rational replies to those -uestions. There may be several reasons because of which a person may not be able to comprehend the -uestions and/or is unable to reply coherently. This section does not attempt to define all such reasons but gives eamples of such reasons such as young age 0in case of a child1! mental illness! or etreme old age. $t is up to the court to determine whether a person is able to understand the -uestions or give rational answers. Thus! competency is a rule! while incompetency is an eception. Even a lunatic is considered a competent witness if his lunacy does not prevent him from understanding the -uestions and giving rational answers. hild #itness A young child! if he is able to understand the -uestions and is able to reply rationally! is a competent witness even if he is of a tender age. 2or eample! in the case of $ai Singh %s State& 1'& r *$! a seven year old girl who was the victim of attempted rape was produced as a witness and her testimony was held valid. $t 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 eamination of the court! the child is found to understand the nature and conse-uences of an oath. 2or eample! in Queen %s Se%a +hogta& 18,! a ten year old girl! who was the only eye witness of a murder was made a witness. %he appeared to be intelligent and was able to answer -uestions frankly and without any hesitation. However! she was not able to understand the meaning of oath. $t was held that her unsworn evidence was admissible in the given circumstances. The same was observed in ameshwar alyan Singh %s State of a/asthan 0 1'2! where the accused was charged with the offence of rape of a girl of ' years of age. $t was held that ommission of oath only affects the credibility of the witness and not competency of the witness. The -uestion of competency is determined by section &&'! and the only ground that is given for incompetency is the inability to comprehend the -uestions or inability to give rational answers. The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Ade-uate corroboration of his testimony must be looked from other evidence. Dum! #itness Section 11' + 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 signs3 but such writing must be written and the signs made in open ,ourt. Evidence so given shall be deemed to be oral evidence. ompetency of a wife as a witness against her hus!and As per Section 12"! in all civil proceedings the parties to the suit! and the husband or wife of any party to the suit! shall be competent witnesses. 2urther! 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. 2or eample! in the case of Shyam Singh %s Shaiwalini 3hosh& 0 1',! ,alcutta H, 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 %ection &))! which makes the communication between a husband and wife privileged. ompetency of 0ccused As per Section 1 of ,r 4 ,! 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.
ompetency of an 0ccomplice 0ccomplice + 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. 4ot an 0ccomplice - person under threat commits the crime! person who merely witnesses the crime! detectives! paid informers! and trap witnesses 5enerally! 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! )1 as a participator in a crime! he is a criminal and is likely immoral! and so may disregard the sanctity of oath! and 61 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 1! 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 11, (!) contains a provision that allows the ,ourt 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. %ince every case is different! it is not possible to precisely specify a formula for
determining whether corroborative evidence is re-uired or not. %o some guiding principles were propounded in the case of %s +as5er%ille& 1'16. According to this procedure + &. $t is not necessary that there should be an independent confirmation of every detail of the crime related by the accomplice. $t is sufficient if there is a confirmation as to a material circumstance of the crime. ). There must at least be confirmation of some particulars which show that the accused committed the crime. 6. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate other. 7. The corroboration need not be by direct evidence. $t may be through circumstantial evidence. This rule has been confirmed by the %upreme ,ourt in ameshwar %s State of a/asthan& 1'2. 0ccomplice and o-accused The confession of a co+accused 0%. 681 is not treated in the same way as the testimony of an accomplice because + &. The testimony of an accomplice is taken on oath and is subjected to cross eamination and so is of a higher probative value. ). The confession of a co+accused can hardly be called substantive evidence as it is not evidence within the definition of %. 6. $t must be taken into consideration along with other evidence in the case and it cannot alone form the basis of a conviction. #hile the testimony of an accomplice alone may be sufficient for conviction.
Q. &escribe different stages in testimony of a itness. (Sections *$,) *$# Witnesses are e#amined by the parties or their advo cates by the way of as%ing uestions with a view to elicit responses that build up a factual story. To be able to derive meaningful conclusions from the statements of the witnesses, it is necessary to follow a standard pattern in presenting them and uestioning them before the court. It will also be impractical and time consuming to call witnesses multiple times at random. *esides causing severe inconveniences to the witnesses, it will also not be helpful in arriving at a decision. Thus, standard procedure for e#amining a witness must followed so that a trial can proceed swiftly. This procedure is described in Sections *$, and *$. Stages of Examination Section *$, defines three stages of e#amination of a witness as follows $ E#amination$in$chief $ The e#amination of a witness, by the party who calls him, shall be called his e#amination$in$chief. 7ross$e#amination $ The e#amination of a witness by the adverse party shall be called his
cross$e#amination. 0e$e#amination $ The e#amination of a witness, subseuent to the cross$e#amination by the party who called him, shall be called his re$e#amination. Section *$ specifies the order of e#aminations $ Witnesses shall be first e#amined$in$chief then 5if the adverse party so desires6 cross$e#amined, then 5if the party calling him so desires6 re$ e#amined. The e#amination and cross$e#amination must relate to relevant facts but the cross$ e#amination need not to be confined to the facts which the witness testified on his e#amination$ in$chief. 8irection of re$e#amination $ The re$e#amination shall be d irected to the e#planation of matters referred to in cross$e#amination, and if new matter by permission of the 7ourt, introduced in re$e#amination, the adverse party may further cross$e#amine upon that matter.
&et us discuss these stages one by one $ *. Examination in 8!ief $ The first stage is where a witness is e#amined b y the party who has called it. In this stage, the goal of the party is to ma%e the witness ma%e statements that prove the facts alleged by the party. The party as%s uestions, the responses to which are e#pected to support the factual story submitted by the party. ?. 8ross Examination $ The second stage is where the witness is cross e#amined by the opposite party. In this stage the goal of the party which is e#amining the witness is to po%e holes in the story of the witness with a view to discredit the evidence that the witness has given. owever, when it is intended to suggest to the court that the witness is not spea%ing the truth on a particular point, it is necessary to direct his attention to it by uestions in this stage. The witness must then be given an opportunity to e#plain the apparant contradictions while he is in the witness bo#. )or e#ample, in the case of Ravinder umar Sarma vs State of ;ssam) *+++) the appallant sued two police officers for damages for malicious prosecution. The appallant put uestions in that regard to one of them who denied the allegation that he demanded a bribe. e did not put the allegation on the other police officer. It was held that the appallant had not properly substantiated the allegation. Scope of 8ross Examination $ As mentioned in Section *$ the cross$e#amination must relate to relevant facts. owever, the cross$e#amination need n ot be confined to the facts which the witness testified on his e#amination$in$chief. Thus, the scope of cross e#amination is uite wide. As per Section *6%, the objective of the uestions as%ed in cross e#amination is $ a6 to test the veracity of the witness, b6 to discover who the person is and what is his condition in life and c6 to sha%e his credit by injuring his character. $. Re
The 0e E#amination is not confined to the matters discussed in E#amination in 7hief. Few matter may be elicited with the permission of the cou rt and in such a case, the opposite party can again 7ross e#amin the witness on new matters.
In 4eC 'ra:as! vs State of 0aryana) *++% , it was held that tendering a witness for cross e#amination without e#amination in chief is not warranted b y law and it would amount to failure to e#amine the witness at the trial. Section *$ provides a valuable right to cross e#amin a witness and Section *6% further gives the right to as% additional uestions to sha%e the credibility of the witness. In case of RaCendra vs &ars!ana &evi) ?11*) it was held that if a party has not ta%en advantage of these provisions, he cannot be allowed to complain about the credibility of the witness.
Q. !at is a leading >uestion (Section *6*# !en suc! >uestions cannot and !en suc! >uestions can be as:ed (Sections *6?) *6$# According to *EFTA?, a &eading Kuestion is a uestion that indicates to the witness the real or supposed fact which the e#aminer e#pects or desires to have confirmed with the witness. )or e#ample, /did you not wor% with ?r G for five yearsJ/, /is your name so and so/, /did you not see the accused leave the premise at -?J/, are all leading uestions. Section *6* defines a &eading uestion thus $ Any uestion suggesting the answer which the person putting it wishes or e#pects to receive is called a leading uestion. In the previous e#amples, it is clear that the uestion itself contains the answer and the e#aminer is merely trying to confirm those answers with the witness and are thus leading uestions. !en leading >uestions may and may not be as:ed < As per Section *6? $ &eading uestions must not, if objected to by the adverse party, be as%ed in an e#amination$in$chief, or in re$e#amination, e#cept with the permission of the 7ourt. The 7ourt shall permit leading uestions as to matters which are introductory or u ndisputed or which have, in its opinion, been already sufficiently proved. )urther, Section *6$ provides that &eading uestions may be as%ed in cross$e#amination.
The purpose of E#amination in 7hief of a witness is to enable the witness to tell the c ourt the relevant facts of the case. A uestion should be put to him about a relevant fact and he should be given ample scope to answer the uestion from the %nowledge that he posses about the case. The witness should be left to tell the story in his own words. owever, as seen in the previous e#ample, instead of eliciting information from a witness, information is being given to the witness. This does not help the court arrive at the truth. If this type of uestioning is allowed in E#amination in 7hief, the e#aminer would be able to construct a story through the mouth of the witness that suits his client. This affects the rights of the accused to a fiair trial as enshrined in Article "1 of the constitution and is therefore not allowed. A uestion, /do you not live at such and such addressJ/, amply gives hint to the witness and he will immediately say yes. Instead, the uestion should be, /where do you liveJ/ and he then should be allowed to answer in his own words. Formally, the opposite party raises an objection when a leading uestion in as%ed in E#amination in 7hief or 0e E#amination. If the e#amining party then desires, it can reuest the court for its permission to as% the uestion and the court permits the uestion if it pertains to
matters which are introductory, matters on which there is no dispute, or matters which are already proven. ;verall, a leading uestion can be as%ed in the following situations $ 1. In E#amination in 7hief and 0e $ e#amination if $ a6 the opposite party does not object or b6 the uestion is about the matter which is introductory, undisputed, or is already proven or b6 the court permits the uestion overruling the objection of the opposite party ". In 7ross e#amination.
Q. 8an a itness refuse to anser a >uestion (Section *?*< *?+# / !en can a itness be compelled anser a >uestion (Section *6,<*6# !at communications are privileged In general, if the uestion is relevant to the case, the witness is bound to answer it. This is provided by Section *6, , which says that if any uestion relates to a matter relevant to the suit or proceeding, the provisions of Section *$? shall apply. Section *$? provides that a witness is not e#cused from answering a uestion even if the uestion incriminates the witness. To ensure that the witness spea%s the truth, proviso to Section *$? provides that if the answer of the witness incriminates the witness, such answer shall not be used to arrest or prosecute him, e#cept if he gives false evidence. Although it is the goal of the court to find out the truth from a witness, there are certain situations in which a witness is permitted to refuse to answer a uestion. There are also situations where a witness is prohibited from answering certain %ind of uestions. These are situations that are critical to the foundation of a moral society. These situations are provided in the form in previledges to a witness in 'ections 1"1 to 1"L.
('rivileged 8ommunications < 9=S@8'IB# *?*. 9udges and =agistrate $ Fo >udge or ?agistrate shall, e#cept upon the special order of some 7ourt of which he is subordinate, be compelled to answer any uestions as to his own conduct in 7ourt as such >udge or ?agistrate, or as to any thing which came to his %nowledge in 7ourt as such >udge or ?agistrate but he may be e#amined as to other matters which occurred in his presence whilst he was so acting.
Illustrations 5a6 A, on his trail before the 7ourt of 'ession, says that a deposition was improperly ta%en by *, the ?agistrate. * cannot be compelled to answer uestion as to this, e#cept upon thee special order of a superior 7ourt. 5b6 A is accused before the 7ourt of 'ession of having given false evidence before *, a ?agistrate. *, cannot be as%ed what A said, e#cept upon the special order of the superior 7ourt. 5c6 A is accused before the 7ourt of 'ession of attempting to murder a police$officer whilst on his trail before *, a 'ession >udge. * may be e#amined as to what occurred.
*??. 8ommunications during marriage $ Fo 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 marriedB nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, e#cept in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
As held in = 8 erg!ese vs 4 9 'onnan) ;IR *+,% , '7 held that it is not material whether the relationship between husband and wife subsists at the time of giving the evidence. 'o, where a woman was divorced from first husband and married another person, and was called to provide evidence of a communication between her and her first husband that happened while they were married, she was deemed incompetent to do so. *?$. Evidence as to affairs of State $ Fo one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of 'tate, e#cept wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thin%s fit. *?6. @fficial communications $ Fo public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. *?5. Information as to commission of offences $ Fo ?agistrate or -olice$officer shall be compelled to say whence he got any information as to the commission of any offence, and no 0evenue$;fficer shall be compelled to say whence he The ;rient Tavern any information as to the commission of any offence against the public revenue.
E#planation $ /0evenue$;fficer/ in this section means any officer employed in or about the business of any branch of the public revenue. *?%. 'rofessional communications $ Fo barrister, attorney, pleader or va%il, shall at any time be permitted, unless with his client+s e#press consent to disclose any communication made to him in the course and for thee purpose of his employment as such barrister, pleader, attorney or va%il, by or on behalf of his client, or to state the contents or condition of any document with which he has become acuainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.
-rovided that nothing in this section shall protect from disclosure $ 1. Any communication made in furtherance of any illegal purpose, ". Any fact observed by any barrister, pleader, attorney or va%il, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or v a%il was or was not directed to such fact by or on behalf of his client.
E#planation $ The obligation stated in this section continues after the employment has ceased. Illustrations 5a6 A, a client, says to *, an attorney $ /I have committed forgery and I wish you to defend me./ As the defense of a man %nown to be guilty is not a criminal purpose, this communication is protected from disclosure. 5b6 A, a client, says to *, and attorney $ /I wish to obtain possession of property by the use of forged deed on which I reuest you to sue./ The communication being made in furtherance of criminal purpose, is not protected from disclosure. 5c6 A, being charged with embe99lement retains *, an attorney to defend him, In the course of the proceedings * observes that an entry has been made in A+s account boo%, charging A with the sum said to have been embe99led, which entry was not in the boo% at the commencement of his employment. This being a fact observed by * in the course of his employment showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. *?,. Section *?% to apply to interpreters etc. $ The provisions of 'ection 1"3 apply to interpreters, and the cler%s or servants of barristers, pleaders, attorneys and va%ils. *?. 'rivilege not aived by volunteering evidence $ If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in 'ection 1"3, and if any party to a suit or proceeding calls any such barrister, pleader, attorney or va%il as a witness, he shall be deemed to have consented to such disclosure only if he uestions such barrister, attorney or va% il on matters which, but for such uestion, he would not be at liberty to disclose. *?+. 8onfidential communication it! Begal ;dvisers $ Fo one shall be compelled to disclose to the 7ourt any confidential communication which has ta%en place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the 7ourt necessary to be %nown in order to e#plain any evidence which he has give, but not others.
)urther, Section *6 gives discretion to the court to allow the witness to refuse to answer a uestion when the uestion affects the credit of the witness by injuring his character and is otherwise irrelevant. 2enerally, court allows the witness to refuse to answer the uestion when the uestion relates to a matter so remote in time or of such a character that that the truth of the imputation would not affect the opinion of the court as to the credibility of the witness.
Q. !o is !ostile itness 2nder !at circumstances a person is alloed to cross examin !is on itness !at are t!e limits of suc! rig!ts of cross examination (Section *56# In general, a witness is considered to be a hostile witness when he has feelings which are against
the party which has invited him for his testimony or when he adopts an adverse stance towards the party which has invited him. A similar but categorically different %ind of witness also e#ists which is called as
court and compared with the testimony of the witness. The e#tent of the uestions is same as that of the e#tent of the uestions that can be put in cross e#amination by an adverse party. Thus, rules given above in 'ection 13 apply. owever, a mere inconvenient answer given 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. !en and !o may t!e credit of a itness be impeac!ed by a party (Sections *6%) *5$) *55# Impeaching the credit of a witness means to show the real character of the witness so that the court may not trust him. 7redibility of a witness is very important for the court in deciding the truth of the testimony. Indeed, it would be unfair to convict anybody solely on the testimony of a habitual liar. Thus, it is imperative upon the adverse party to ma%e sure that the witness is credible and so it can as% uestions that may impeach the credit of the witness.
4!e !en As per Section *6%, which describes the uestions that are lawful in cross e#amination, it is lawful to as% uestions during cross e#amination to test his veracity, to discover who he is and what his position is in live, and to sha%e his credit by injuring his character. Thus, it is clear that the credit of a witness can be impeached by the adverse party in his cross e#amination. owever, when it is suggested that the witness is not spea%ing the truth, it is necessary to draw his attention to it by uestions in cross e#amination. It cannot be argued that a witness is unworthy of credit without giving his an opportunity to e#plain while he is in the witness bo#. It was held by '7 in State of 2' vs Da!ar Sing!) ;IR *++ , that if you indent to impeach a witness, you are bound, while he is in witness bo#, to give him an opportunity to e#plain, even as a rule of profession ethics and fair play. A similar provision is given by Section *65 as well, which says that when a witness is cross e#amined about his previous writing, without such writing is shown to him or is proved, and if it is intended to contradict his writing, his attention must be drawn to those parts which are to be used for the purpose of contradicting him, before such writing is proved. When a witness turns hostile or unfavorable, the same right becomes available to the party who has called the witness. This is provided for by 'ection 14, which says that the 7ourt may, in its discretion, permit the person who calls a witness to put any uestions to him which might be put in cross$e#amination by the adverse party.
4!e 0o If a witness denies the suggestions put in cross e#amination, evidence to contradict him can be called. This flows from the general rule given in 'ection 4, which allows evidence of relevant facts to be given. owever, when such evidence is not relevant otherwise and is only useful in sha%ing the credit of the witness, the provisions of Section *5$ and *55 are applicable. Section *55 provides the ways through which the credit of a witness may be impeached. Section *55 < Impeac!ing credit of itness
The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the 7ourt, by the party who calls him $ 516 by the evidence of persons who testify that they, from their %nowledge of the witness believe him to be unworthy of creditB 5"6 by proof that the witness has been bribed, or has accepted the offer of a bride, or has received any other corrupt inducement to give his evidenceB 5(6 by proof of former statements inconsistent with any part of his evidence which is liable to be contradictedB Explanation M A witness declaring another witness to be unworthy of credit may not, upon his e#amination$in$chief, give reasons for his belief, but he may be as%ed his reasons in cross$ e#amination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. Illustrations 5a6 A sues * for the price of goods sold and delivered to *. 7 says that he delivered the goods to *. Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to *. The evidence is admissible.
5b6 A is indicated for the murder of *. 7 says that *, when dying, declared that A had given * the wound of which he died. Evidence is offered to show that, on a previous occasion, 7 said that the wound was not given by A or in his presence. The evidence admissible.
Section *5$ < Exclusion of evidence to contradict ansers to >uestions testing veracity When a witness has been as%ed and has answered any uestion which is relevant to the inuiry only in so far as it tends to sha%e his credit by injuring his character, no evidence shall be given to contradict himB but, if he answers falsely, he may afterwardas be charged with giving false evidence. Exception * < If a witness is as%ed whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception ? < If a witness is as%ed any uestion tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted. Illustrations 5a6 A claim against an underwriter is resisted on the ground of fraud. The claimant is as%ed whether, in a former transaction, he had not made a fraudulent claim. e denies it, Evidence is offered to show that he did ma%e such a claim. The evidence is inadmissible.
5b6 A witness is as%ed whether he was not dismissed from a situation for dishonesty. e denies
it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible. 5c6 A affirm that on a certain day he saw * at &ahore. A is as%ed whether he himself was not on that day at 7alcutta. e denies it. Evidence is offered to show that A was on that day at 7alcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that * was seen on the day in uestion in &ahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence. 5d6 A is as%ed whether his family has not had a blood feud with the family of * against whom he gives evidence. e denies it. e may be contradicted on the ground that the uestion tends to impeach his impartiality. This section provides an important protection to the witness against character assasination. If a witness has answered a uestion whose purpose is only to discredit him, whatever may be his answer, no evidence can be shown to disprove or contradict him. This applies only to the answers that are not relevant to the facts of the case and not to answers to the uestions that are relevant to the case. The two e#ceptions contained in the section are meant to prevent misuse of this provision. Thus, a person is not allowed to lie about his prior conviction and he is not allowed to be partial. Thus, as e#plained in illustration 5c6, if a witness denies a suggestion that he is biased, evidence may be given that proves otherwise.
Q. #hat do you understand !y +urden of 7roof? n whom the does the !urden of proof lie? State the rules of determining +urden of 7roof in a suit or proceeding. #hen does the !urden of proof shift to the other parties? 0re there any e9ceptions? 3eneral oncept of +urden of 7roof The responsibility to prove a thing is called burden of proof. #hen a person is re-uired to prove the eistence or truthfulness of a fact! he is said to have the burden of proving that fact. $n 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 re-uired degree of certainty in order to prove its case. 2or eample! 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 eistence. This obligation is a burden of proof. $n 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 1"1 defines burden of proof as follows + #hen a person is bound to prove the eistence of any fact! it is said that the burden of proof lies on that person. The important -uestion is who is supposed to prove the various facts alleged in a case. $n 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 %ection &8& to &89. The rules propounded by these sections can be categori:ed as 5eneral rules and %pecific rules.
3eneral rules ule 1 - As per Section 1"1& specifies the basic rule about who is supposed to prove a fact. $t says that whoever desires any ,ourt to give judgment as to any legal right or liability dependent on the eistence of facts which he asserts! must prove that those facts eist. 2or eample! A desires a ,ourt 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 eample + A desires a ,ourt 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 eistence of those facts. 2acts can be put in two categories + those that positively affirm something and those that deny something. 2or eample! 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 1"1 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. #hoever 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 categori:e a fact as asserting the affirmative. 2or eample! in the case of Soward %s *egatt& 186! 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. $n this case! *ord 0+43: observed that $n ascertaining which party is asserting the affirmative the court looks to the substance and not the language used. ;ooking 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 re-uire that party to begin who in substance! though may not be in form! alleges the affirmative of the issue. +urden of 7roof and nus of 7roof The term Burden of 4roof 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 eplained in the case of anchhod!hai %s +a!u!hai 0 1'82. The first one is the burden to prove the main contention of party re-uesting 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. 2or eample! 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. 2urther! 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 -uality as specified in the contract. The net rule determines who has the onus of proof. ule 2 - As per Section 1"2& 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 eplain this point + llustration 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 ,! B
Specific ules These rules specifically put the burden on proving certain facts on particular persons + ule 1 + As per Section 1"6! when any fact is especially within the knowledge of any person! the burden of proving that fact is upon him. #hen 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. 2or eample! A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.
ules of 7resumption - Section 1" and 1"8 say that if a person was known to be alive within 68 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 1"' establishes the burden in case of some relations such as landlord and tenant! principle and agent etc. 2urther sections specify the rules about burden of proof in case of terrorism! dowry death! and rape.
:9ceptions :9ception 1 - The general rule in criminal cases is that the accused is presumed innocent. $t is the prosecution who is re-uired to establish the guilt of the accused without any doubt. At the same time! the accused is not re-uired to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. Section 1" specifies an eception to this general rule. #hen an accused claims the benefit of the 5eneral Eception clauses of $4,! the burden of proving that he is entitled to such benefit is upon him. 2or eample! 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. $n the case of ; 4ana%ati %s State of ;aharashtra& 0 1'62& %, eplained this point. $n this case! Nanavati was accused of murdering 4rem Ahuja! his wife
on how long he has not been heard of. Section 1"'! presumes that when two people have been acting as per the relationship of landlord + tenant! principle + agent! etc! such relationship still eists and anybody who contends that such relationship has ceased to eist has to provide proof. Section 11" presumes that the person who has the possession of a property is the owner of that property. As per Section 110! #hen the -uestion 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 11+! when the -uestion 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. #hat is $udicial 7resumption? :9plain gi%ing special effects to the law relating to a!atement of suicide !y a married woman. A presumption is an acceptance of a fact as true or eistent based upon its strong probability evident from the circumstances. 2or eample! if a man has not been heard from for ( 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 eistence of a fact because of its strong probability but without a direct or conclusive proof! it is called as presumption. #hen a court presumes a fact! the party in whose favor the fact is! is relieved of the initial burden of proof. 2or eample! as per Negotiable $nstruments Acts! every holder of an instrument is presumed to be a holder for consideration. %o if a person A holds a che-ue signed by another person B! it is presumed that A has given consideration for the che-ue and so A does not have to provide any proof of that consideration. =f course! this presumption only applies at the beginning. The other party is free to provide proof that disproves the presumption. 2or eample! the opposite party can show letters by the person or recent photograph of the person showing that he is still alive. According to English ;aw! a presumption can be of two kinds + presumption of fact and presumption of law. 7resumption of =act 4resumption 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. %uch as! presumption that a man with blood stained clothes and a knife in his hands is the murderer. %uch presumptions are rebuttable from further evidence. 7resumption of *aw 4resumption of law are arbitrary conse-uences that are anneed 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. 2or eample! it is a presumption of law that a child below seven years of age is not capable of committing a crime. =r that a person who has not been heard from for seven years is dead. %uch presumptions may or may not be rebuttable depending on the law. 2or eample! the presumption that a child below seven years of age is not capable of committing a crime cannot be rebutted. ;aw 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 ( years is rebuttable by showing evidence. ;ay 7resume and Shall 7resume 4rovisions of Section ,! in a general sense! correspond to the above classification. The first part of this section defines "ay 4resume" as follows + >;ay presume> - #henever it is provided by this Act that the ,ourt 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. $t gives the court a discretionary power to presume the eistence of a fact. #hich means that the court may regard the fact as proved unless and until it is disproved. 2or eample! in the case of Dr homas %s :lisa 0 1'8! 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. $t 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 11, are of this kind! which says that the court may presume the eistence 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. 2or eample! 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 "%hall 4resume" as follows + >Shall presume> - #henever it is directed by this Act that the ,ourt shall presume a fact! it shall regard such fact as proved! unless and until it is disproved. $t 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 eistence of that fact but it may allow evidence to disprove it. 2or eample! Section '" provides that where any document! purporting or proved to be thirty years old! is produced from any custody which the ,ourt in the particular case considers proper! the ,ourt 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
