The Law of EVIDENCE [19 ed.] 9384852856, 9789384852856

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THE LAW OF EVIDENCE

(The Indian Evidence Act, 1872) (ACT 1 OF 1872) [As Amended by Act No. 10 of 2009] By BATUK LAL Advocate Revised by : Dr. SURENDRA SAHAI SRIVASTAVA LL.M., LL.D. Reader in Law, Sri Jai Narain Degree College of Law. Lucknow NINETEENTH EDITION CENTRAL LAW AGENCY ALLAHABAD

Published by : Central Law Agency 30D/1, Motilal Nehru Road Allahabad. ELEVENTH EDITION TWELFTH EDITION 1992 THIRTEENTH EDITION FOURTEENTH EDITION FIFTEENTH EDITION SIXTEENTH EDITION SEVENTEENTH EDITION EIGHTEENTH EDITION NINETEENTH EDITION REPRINT REPRINT

1990 1995 1999 2001 2004 2007 2010 2010 2011 2012

Price : Rs. 300.00 This book is being sold subject to the conditions that the author, printers and publishers are neither liable nor responsible in any manner whatsoever to any one, whether purchaser of this book or not, for any error or omission in this publication. The publishers shall be obliged if any such error or omission is brought to their knowledge for possible correction in future editions. All disputes are subject to Allahabad jurisdiction only. Printed at: Arjun Printers Allahabad

PREFACE TO THE NINETEENTH EDITION Batuk Lal's 'The Law of Evidence’ (student ed.) is not only a classic for the law students but also a quality work for the P.C.S. (J.) and A.P.O. competitive examinees. To make it more useful, an attempt has been made to revise it thoroughly updating it with the latest material. The legality of narcoanalysis and the questions generally asked in the competitive examinations have been taken care of in adding to the relevant material if the same were not in the previous editions. I am happy that my name has been added to this work as a revising author by Shri R.K. Arora, of M/s. Central Law Agency. Ist September, 2010 Surendra Sahai Srivastava

PREFACE TO THE FIRST EDITION The Indian Evidence Act is admitted to be the most important enactment of all the codified Laws of India. It consists of abstracts and abstracts Rules which are not easy to understand. The principles of the Law of Evidence have been illustrated by Leading Cases and important decisions of various High Courts. The subject has been dealt with magnificent lucidity in a very clear and simple language so as to be easily understood. Examples from every day life have been taken in order to enable the students to understand and grasp the difficult principles of the Law of Evidence. The book is intended primarily for the students preparing for LL.B., and for the various competitive examinations e.g., I.A.S., Combined Services, P.C.S. (Executive) and P.C.S. (Judicial). The book is self-sufficient in all aspects and leaves nothing to be desired. I am fully confident that the book will be highly useful to all those for whom it is meant. —Batuk Lal

CONTENTS Preface to the Nineteenth Edition Preface to the First Edition Table of Cases PREAMBLE

Page iii iv xxix 1

PART I RELEVANCY OF FACTS

Sections

CHAPTER I PRELIMINARY [ Secs. 1—4 ]

2-39

1. Short title, extent and commencement 2 Territorial; Judicial proceedings; Non-judicial proceedings; Courts-martial; Affidavits; Arbitrators; Lex fory. 2. Repeal of enactments 4 Scope of section; The Act a complete Code; Effect of the repeal of Section 2; Scope of Evidence Act. 3. Interpretation-clause 5 “Unless a contrary intention appears from the context”; Court; Persons legally authorised to take evidence; Fact; (1) Physical and Psychological Facts; (2) Positive and Negative Facts; Matter of fact and matter of law; Relevant; Relevant under the Act; Logically relevant and legally relevant; In Chamberlayne’s Modern law of Evidence. Facts in issue; Document; “Evidence”; Oral evidence; Documentary evidence; Definition defective; Affidavit if evidence; Judge's personal knowledge and observation—No evidence; Statement of accused if evidence; Recording of evidence through video conferencing; Tape recorded version-admissibility of; Classification of evidence; 1. Direct evidence; Eye-witness; Eye witnesses—Some contradictions or omissions of details of incident; Credibility of testimony of injured witness; Hostile Witness; Proof and evidence; Standard of proof in Civil and Criminal Cases; Presumption of innocence; Circumstantial evidence; Case resting squarely on circumstantial evidence; Proof by circumstantial evidence; Circumstantial evidence and weakness of defence; Five golden principles of circumstantial evidence; Not giving exact description of injuries; Material discrepancies; Want of explanation. Last seen theory; Mistake in giving period; Circumstantial evidence—Chain; Chain of events not laid down with precision; Circumstantial and hearsay evidence; Non-explanation of injuries on accused by

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Sections the prosecution; Real or personal evidence; (3) Original evidence; (4) Unoriginal or second-hand evidence; (5) Substantive and nonsubstantive. (6) Positive and negative evidence. (7) Prosecution evidence and defence evidence—Prosecution witness; Delay in examination of prosecution witness during the course of investigation defence witness. Distinction between Facts and Evidence; “Proved”; Proof and suspicion; Matters before it; “Disproved and not proved”; Falsus in uno falsus in omnibus; Falsity of material witness; Single Witness. 4. "May presume" 35 "Shall presume" 35 "Conclusive proof" 35 Presumption; Kinds of presumption; (1) Presumption of fact; Presumption of law; (1) Irrebuttable; (2) Rebuttable presumption; Distinction between Presumption of Fact and Presumption of Law; Mixed presumption; Expression ‘shall’ and may explained. CHAPTER II OF THE RELEVANCY OF FACTS [ Secs. 5—55 ]

40—323

5. Evidence may be given of facts in issue and relevant facts 40 Scope; “And of no others”; Distinction between relevancy and admissibility; Distinction between Admissibility and Relevancy; Relevancy how decided; Evidence partly relevant and partly irrelevant; Objection to relevancy and admissibility; Explanation. 6. Relevancy of facts forming part of same transaction 43 Scope; Basis of the rule; “Same transaction.”—Res gestae; “Facts forming part of same transaction.”—Physical acts forming a part of a transaction; Statements as res gestae; The time; Space; Psychological acts forming part of the transaction, or—“words accompanying physical acts”; Statement in answer to a question; Rape; Statements of bystanders; F.I.R. when res gestae 7. Facts which are the occasion, cause or effect of facts in issue 52 Scope; Causation; Section 7 based on induction; Occasion, cause, effect and opportunity; Foot prints; Injuries of accused; The state of things under which they happened; Distinction between possibility, capacity, tendency and cause; Similar facts cases; Tape-recorded conversation. 8. Motive, preparation and previous or subsequent conduct 57 Scope; Principle; (a) Motive—Meaning of; Intention and Motive; Proof of Motive; Adequacy of Motive; Motive, absence of Motive or sufficiency or importance or significance of Motive; Importance of significance or motive; (b) Preparation; (c) The conduct of a party; Conduct—Meaning of; The conduct of any person an offence against whom is the subject of any

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Sections proceeding; The conduct in reference to the fact in issue or relevant thereto; Conduct in reference to the proceeding; The conduct of a party only admissible; Against whom admissible; Influences or is influenced by; Previous or subsequent; The conduct of accused; F.I.R. by accused conduct; Threat by accused; Previous attempt; Absconding; Statements of a party to a proceeding accompanying and explaining acts—Exp. 1; The relevancy of statements as to the facts stated; The statement must amount to complaint; Complaints in answer to questions; Statement of another affecting conduct of a party to a proceeding; Expl. II. 9. Facts necessary to explain or introduce relevant facts 69 Scope—(1) Facts which are necessary to explain a fact in issue or relevant fact; (2) Introductory facts; (3) & (4) Facts which support and facts which rebut an inference; (5) The facts establish the identity of anything or person; Facts which establish the identity of a person; Test Identification Parade; Test identification Parade-Necessity; Value and purpose of Test Identification Parade; Test identification parade-failure to hold; Delay in holding identification Parade; Identification not admissible if accused was shown before Identification Parade or person making Identification has been tutored before Identification Parade; Photographs shown to witness beforehand; The absence of test identification parade; Conviction on the basis of Test Identification Parade; Nonexamination of Magistrate; Identity of physical features; Identity by voice and gait; Identification by Fingerprint; Identity of foot-marks; Identification of accused during right; Conviction based on Identification of accused in court; Identity of family resemblances; Evidence of sniffer dogs; Identity of things; (6) Facts which fix the time or place of facts in issue or relevant facts; So far as they are necessary for that purpose; (7) Facts showing relations. 10. Things said or done by conspirator in reference to common design 83 Principles; Conspiracy defined; Scope of the section; Analysis of Section 10; Reasonable ground of conspiracy; Things said, done or written in reference to common intention; Evidence relating to acts outside the period of conspiracy. 11. When facts not otherwise relevant become relevant 89 Principle; ‘Highly probable’ or improbable—Meaning of; Section 11 controlled by other section; Controlled by Section 32; Statements; Analysis of the section; (1) Facts inconsistent with any fact in issue or relevant facts; (a) Alibi; Plea of Alibi— When can be raised—Statements under Section 161 not admissible; Burden of Proof; (a-1) When the defence of alibi fails; (b) Non-access of husband to show illegitimacy of issue; (c) Survival of the alleged deceased; (d) Commission of a crime

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Sections by third person; (e) Seif-infliction of harm; (f) Plea of alibi in relation to co-accused; (2) Facts making the existence or nonexistence of any fact in issue or relevant fact, highly probable or improbable; 'Highly improbable'; “Highly probable.”— Relevancy of similar facts; Recitals in deeds. 12. In suits for damages, facts tending to enable Court to determine amount are relevant 97 Suits for damages; Mitigation or aggravation of damages. 13. Facts relevant when right or custom is in question 98 Scope; Principle; Custom defined; Requisites of valid customs; The law of valid custom in India; Antiquity; Usage; Kinds of custom; I. Private custom; II. General custom; (a) Local custom; (b) Caste or class custom; (c) Trade, custom or usages. (III) Public custom; Right; “Transaction”; “By which”; “Claimed”; “Asserted”; “Assertion and recital” distinguished; “Recognised”; Instance; Document ‘inter partes’; Documents not ‘inter partes’; The recital in document; Recital of boundaries; Admissibility of judgments and decrees as transaction or instances; Proof of Custom; Proof of family custom or kulachar; Proof of local custom or usage; Proof of usage of trade. 14. Facts showing existence of state of mind, or of body or bodily feeling 109 Principle; Scope; State of mind or body or bodily feeling; The proof of mental condition; (1) Proof of mental condition by evidence of person concerned; Problem—Question; Answer; (2) By evidence of other persons; Contemporaneous manifestations; By collateral facts; Similar acts; Previous and subsequent events; Intention or mens rea; Proof of intention; Knowledge; Accomplice Evidence; Good faith, bad faith and fraud. State of body and bodily feeling. Explanation 1. 15. Facts bearing on question whether act was accidental or intentional 119 Scope; Parts of series of similar occurrences; Proximity of time; Similar acts; Accident or intention; Accidental or incidental. 16. Existence of course of business when relevant 123 Scope. ADMISSION 17. Admission defined 124 18. Admission—by party to proceeding or his agent; by suitor in representative character; (1) By party interested in subject matter; (2) By person from whom interest derived 124 Admissions by persons whose position must be proved as against party to suit 124 19 Admissions by persons expressly referred to by party to suit 125 20 Admission; Admission cannot be inferred it is positive acknowledgement; Admission—Defined; Admission of Law;

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Sections Admission to parties to proceedings; Admission by Agent; Admission by agents in criminal cases; Admissions by pleaders, attorneys and counsels in civil cases; Admission by counsel in criminal cases; Statements made in representative character; Persons having any proprietary or pecuniary interest; Admissions of persons having joint interest; Persons from whom the parties derive interest; Admission by a person whose position must be proved as against a party to a suit; Admission by persons expressly referred by party to a suit; Admission is substantive evidence. 21. Proof of admissions against persons making them, and by or on their behalf 134 Proof of admissions against the person making them and by him; Proof of admission by the maker; Admission falling under Section 32; State of mind or body; Admission made in ignorance of law; Statement relevant otherwise than as admission; No admission of law; 22. When oral admissions as to contents of documents are relevant 138 Principle. 22-A. When oral admission as to contents of electronic records are relevant 139 23. Admission in civil cases when relevant 139 Admission in civil cases when relevant; Admission must be taken as a whole; Admission on matter of law; Classes of person not exempted from giving evidence. 24. Confession caused by inducement, threat or promise when irrelevant in criminal proceeding 140 'Confession' defined; Confession to be voluntary; Confession at a later stage of trial; Need not be communicated to others; Admission and confession : Distinguished; Distinction between Confession and Admission; Examples of Admission; Judicial and extra judicial confessions; Judicial confessions; Extra judicial confessions; Extra judicial evidence; Communication to another not essential; Examples of Confession; Distinction between Judicial confessions and Extra-judicial confessions; Principle underlying Section 24; Voluntary and non-voluntary confession; Confession when irrelevant; The ingredients of Section 24; (1) Confession caused by inducement, threat or promise; Confession recorded on oath; It appears, to the court; The burden of proof; (2) Inducement must, have reference to the charge; Express or implied; (3) Threat, inducement and promise from a person in authority; Accused induced by his own belief; Person in authority; (4) Sufficiency of the inducement, threat or promise;

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Sections The Advantage to be gained or the evil to be avoided; Accused person; Confession must be voluntary and true; Points to be determined—Voluntariness of confession recorded; Confession as a whole; Value of judicial confession; Extra-judicial confession; The value of extra-judicial confession; Circumstances to be considered in testing the veracity of extra-judicial confession; Retracted confession—Meaning of; Value of the retracted confession; Proof of judicial confession; Proof of extra-judicial confession. 25. Confession to police officer not to be proved 172 Principle; Confession before or after the investigation; A person accused of any offence; Confession only excluded; Made to police officer; Police officers, who are; Confession before an officer under Exercise Act; Confession before an officer under Customs Act, etc; Confession before an officer of Reserve Police; Confession before an officer under N. D. P. S. Act; Motive, etc. also to be excluded; Cannot be proved against the accused; Confession of one guilt during the inquiry of another; In civil cases. 26. Confession by accused while in custody of police not to be proved against him 180 Object; Confession of an accused in police custody to any one else; Police custody; Confessional Statement Under Terrorist and Disruptive Activities (Prevention) Act, 1987; Confession recorded by a Second Class Magistrate; Confession to custom officer in inquiry under Sections 107 and 108, Customs Act; Confession in Departmental Enquiry. 27. How much of information received from accused may be proved 184 Principle; Scope; The requirements under the section; Discovery is guarantee for reliability; If Fact is known to the person other than accused; Facts discovered—Meaning of; No lawful recovery statement under Section 27 useless; Article concealed at Public Place; The fact discovered must be a relevant fact; Article not concealed on discovery; The discovery does not connect accused with the offence; Whether “amounts to confession or not”; Statement which relates distinctly to the facts discovered; Section applies when statement is tried to be proved; Accused of any offence; Accused in custody; Article 20 (3) of the Constitution and Section 27; Section 162 (1) Cr. P.C. and Section 27 of Evidence Act; Deposed to; The discovery statement to be used only against the maker; Information by two or more accused; Simultaneous information by many accused; Discovery on the information of the accused; Seizure of weapon not material when there is direct evidence; Discovery a weak kind of evidence. Section 27-

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Sections Proviso to the preceding sections; Supreme Courts views. Section 27 and Article 14 of the Constitution. 28. Confession made after removal of impression caused by inducement, threat or promise, relevant 201 Confession after removal of threat or promise. 29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc 203 Confession on promise of secrecy, etc; Want of warning; Section 164 (2), Criminal Procedure Code, 1973 and Section 29. 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence 205 Use of confession by one accused against others; Principle underlying; Tried jointly; For the same offence; Statement by one accused leading to discovery; Affecting himself and some other; Retracted confession of co-accused; May take into consideration; As proved. 31. Admissions not conclusive proof, but may estop 212 Judicial admissions and extra-judicial admissions; Admission not conclusive; Evidentiary value; Admission in a book— Admission does not create title; Admission is substantive evidence; Admission may estop; Statements by persons who cannot be called as witnesses; Distinction between Admission and Estoppel; Principle; Exception to the general rule. STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES 32. Cases in which statement of relevant fact by person who is dead or cannot be foimd, etc., is relevant 217 (1) When it relates to cause of death 217 (2) Or is made in course of business 217 (3) Or against interest of maker 217 (4) Or gives opinion as to public right or custom, or matters of general interest 217 (5) Or relates to existence of relationship 217 (6) Or is made in will or deed relating to family affairs 218 (7) Or in document relating to transaction mentioned in Section 13, clause (a) 218 (8) Or is made by several persons and expresses feelings relevant to matter in question 218 Principle; (a) Who is dead; (b) Who cannot be found; (c) Incapable to give evidence; (d) Delay or expenses; Clause (1)—Dying declaration; Definition; Cause of death; Declarant died of injury to be proved; Circumstances of the transaction which resulted in his death; Intention to use statement as dying declaration not necessary; When the person making statement

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Sections not dead; Statement about the death of another; Statements not connected with the cause of death; Death by injuries caused; Statement before injury; Expectation of death; The nature of proceeding—Civil or Criminal; Proximate and not remote cause; Injuries in bed head ticket; Form of dying declaration; Dying declaration in the form of questions and answers; Dying declaration made before Judicial Magistrate; Statement written by doctor; Dying declaration on basis of convictions; Where there are more than one dying declaration; Dying declarations in different languages; Statement by signs; Statement to police; Dying declaration oral or written; Section applies to homicide and suicide both; The declarant must be in a fit state of mind; Proof of dying declaration; Conviction on uncorroborated dying declaration; Fitness of the deceased— Certificate of Doctor; Dying declaration without certificate of Doctor—Certificate of doctor as to fitness—Only a rule of caution; Contradictions in the statements of Doctor; Dying declaration incomplete; Circumstances which belie the dying declaration; To be taken as a whole; Oral dying declaration; The impeachment of dying declaration; Contradictions with other statements; Identity of accused to be established by dying declaration; Dying declaration in England and in India; F.I.R. as dying declaration; Statement under Section 161, Cr.P.C; Dying declaration; Dying declaration recorded by police; May be proved to be false by leading evidence; Dying declaration tainted; English cases; Use of statement when the injured survives; Should not be under compulsion; Rule of dying declaration; No requirement of oath and cross-examination; Clause (2); Statement made in the course of business; In the course of business; Statement verbal or written; Contemporaneous; English Law; Value of the entries; Proof; Clause (3)—Statement against the interest; Principle; English Law; Statement against pecuniary interest; Against proprietary interest; Criminal prosecution and suit for damages; All facts contained in the statement admissible; Recital of boundaries in documents; Clause (4)—The statement about opinion as to public right or custom; Opinion; Declaration ante-litem mortem; Clause (5)—Statement as to existence of relationship; Special means of knowledge; Ante Litem Mortem; Joint statement— Some persons making, dead; Clause (6)—Pedigree Evidence; Difference between clauses (5) and (6); English Law; Indian Law; Clause (7)—Statement made in a document relating to transaction; Clause (8)— Statements by several persons expressing feeling relevant to the matters in question; Section 32 and Section 11. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated 264

Page xiii Sections 32 and 33 are exceptions to the Hearsay rule; Relevancy of certain evidence in subsequent stage of a proceeding or in other proceedings; Previous statement in the same proceeding; The statement recorded before the ex parte decree set aside; Difference between Sections 32 and 33; Judicial proceedings; Section 299 of Cr. P.C. and Section 33 of Evidence Act; Before any person authorised by law; (2) Identity of parties; Representative-in-interest; (3) Parties in a criminal proceeding; Cross-examination; (4) Identity of issues; (5) Inability of witness to appear before the court. Death; Cannot be found; Incapable of giving evidence; Is kept out of way; Unreasonable amount of delay or expense; Waiver in civil cases; Deposition in a criminal case used in a civil case and vice versa. STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES 34. Entries in books of account, including those maintained in an electronic form when relevant 274 Principle; Books of account; Regularly kept; In the course of business; Proof of accounts; Evidentiary value; Admissibility and probative value of document. 35. Relevancy of entry in public record or an electronic record made in performance of duty 278 Scope; Contained in a public or official book; Made by public servant; Entries relevant under this section; Duty specially enjoined by law; Contemporaneously; By whom to be made; Proof of such entries; Facts of which the entries are evidence; Personal knowledge not necessary; Entry of date of birth in school register; Entries in Birth Register; Entries in Death Register; Entries in electoral roll; Entries in Revenue Records; Entries by pencil not verified by revenue officer; Reports of election meetings; Evidentiary value. 36. Relevancy of statements in maps, charts and plans 282 Scope. 37. Relevancy of statement as to fact to public nature, contained in certain Acts or notifications 283 Scope. 38. Relevancy of statements as to any law contained in law books 283 HOW MUCH OF A STATEMENT IS TO BE PROVED 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers 283 Principle.

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Sections

JUDGMENT OF COURTS WHEN RELEVANT Kinds of judgment; Judgment in rem; Judgment in personam; Distinction between judgment in rem and judgment in personam. JUDGMENTS OF COURTS OF JUSTICE, WHEN RELEVANT 40. Previous judgments relevant to bar a second suit or trial 286 Principle; Admissibility of Judgment inter partes; Judgment of civil court if admissible in criminal courts and vice versa; Admissibility of a previous judgments in a criminal case. 41. Relevancy of certain judgments in probate, etc., jurisdiction 288 Judgment in rem and judgment in personam; Relevancy of judgment in election petition; Relevancy of judgment in probate etc.; Judgment-pendency of. 42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41 290 Scope. 43. Judgments, etc. other than those mentioned in Sections 40, 41 and 42 when relevant 291 Scope; (1) Judgment a fact in issue; (2) Relevant under some other provision of the Act; Judgment of a Criminal Court. 44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved 293 Judgment without jurisdiction or obtained by fraud is void; No separate suit to set aside such judgment; Relevancy of a previous judgment on an issue (issue estoppel). OPINIONS OF THIRD PERSONS, WHEN RELEVANT Relevancy of opinion. 45. Opinions of experts 296 Scope; An expert witness; Prerequisites of expert evidence; 1. Expert (Testimony) Opinion was necessary; 2. The Witness in question is really an expert; Foreign law; Science or art; Medical evidence; Medical expert not a ballistic expert; No conviction on expert evidence; Opinion of doctor as to age; D.N.A. Report; Gun-shot—Exact time of death cannot be established; Ballistic Expert; Handwriting; Difference in opinion of experts; When the request for handwriting expert can be made; Typewriting; Foot prints; Finger impressions; Fire-arms expert; High Courts on Narco-analysis and brain- finger mapping Test-Validity; Narco analysis of the persons not accused of crime; Supreme Court on Narco Test; Track evidence; Distinction between Expert witness and ocular witness; Facts and Statement in old Gazette; Difference between an expert and an ordinary witness; Value of expert evidence.

Page xv Sections

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EXPERT EVIDENCE AND DIRECT OR OCCULAR EVIDENCE Medical evidence and ocular evidence; Opinion of medical expert; The proof of expert opinion; Non examination of expert in the court; Certificate of a doctor on a plain paper; Evidence of handwriting expert and direct evidence. 45-A. Opinion of Examiner of Electronic Evidence 312 46. Facts bearing upon opinions of experts 312 47. Opinion as to handwriting, when relevant 313 PROOF OF HANDWRITING Proof of handwriting by a person acquainted with the writing of the writer; Evidentiary value of; Statement of person in whose presence document written. 47-A. Opinion as to electronic signature when relevant 315 48. Opinion as to existence of right or custom, when relevant 315 Scope. 49. Opinions as to usages, tenets, etc., when relevant 316 Scope. 50. Opinion on relationship, when relevant 316 Scope; Proviso. 51. Grounds of opinion, when relevant 318 Scope. CHARACTER WHEN RELEVANT 52. In civil cases character to prove conduct imputed, irrelevant. 318 Character—Meaning of; Relevancy of character in civil cases; Character admissible in civil cases; Person concerned; Except in so far as character appears from facts otherwise relevant. 53. In criminal cases previous good character relevant 320 Principle. 54. Previous bad character not relevant, except in reply 320 Previous bad character; When the previous bad character is relevant. 55. Character as affecting damages 321 Character defined; Reputation; Disposition; Evidence may be given of general reputation; Relevance of Character (Sections 52 to 55 ). PART II ON PROOF CHAPTER III FACTS WHICH NEED NOT BE PROVED

[ Secs. 56—58 ] 56. Fact judicially noticeable need not be proved 57. Facts of which Court must take judicial notice Scope.

326—329 326 326

Page xvi Sections

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58. Facts admitted need not be proved 329 Principle; Criminal cases. CHAPTER IV OF ORAL EVIDENCE [ Secs. 59—60 ] 331—333 59. Proof of facts by oral evidence 331 Oral evidence; Proof of fact by oral evidence; Distinction between ‘Relevancy’ and ‘admissibility’. 60. Oral evidence must be direct 333 Scope; Hearsay; The reason of being discarded; Exceptions to the rule of hearsay; Direct and circumstantial evidence distinguished; Hearsay and circumstantial evidence; Evidence of a living person; The rules of best evidence; Distinction between Direct Evidence and Hearsay Evidence. CHAPTER V OF DOCUMENTARY EVIDENCE [ Secs. 61—90 ] 339—393 61. Proof of contents of documents 339 Documentary evidence. 62. Primary evidence 339 Primary evidence; Explanation. 63. Secondary evidence 340 Primary evidence; Documents in several parts; Documents in counterparts; Document made by uniform process; 1. Certified copies under the provision given in the Evidence Act; 2. Copies made from the original by mechanical process; Photostat copy; Photograph; 3. Copies made from or compared with the original; Copy of a copy; 4. Counterparts of documents; 5. Oral accounts of the contents of a document by some person who has seen it; 6. Tape recorded statement; “Has seen”; Distinction between Primary Evidence and Secondary Evidence. 64. Proof of documents by primary evidence 346 65. Cases in which secondary evidence relating to documents may be given 347 Scope; Cases in which secondary evidence of document may be given; (a) (i) Where the original is in possession of adversary Party; (ii) When the original is in possession of a person out of reach or not subject to the process of the court; (iii) When the Original is in possession of a person legally bound to produce it; The English Law; (b) Where the existence or contents of the original have been admitted; (c) When the original has been destroyed or lost or cannot be produced; Proof of loss; Search; (d) When the original is not easily

Page xvii Sections

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movable; (e) When the original is a public document; (f) Certified copy permitted by the Act; (g) When the original consists of numerous accounts or huge document: What sort of secondary evidence may be given; Admissibility of the original; Objection to the production of secondary evidence. 65-A Special provisions as to evidence relating to electronic record

354

65-B Admissibility of electronic records 354 66 Rules as to notice to produce 356 Rules as to notice to produce; 1. When the document is itself a notice; (2) When the adverse party must know that he will be required to produce it; (3) When the adverse party has obtained possession by force or fraud; (4) When the adverse party has the original in the court; (5) When the adverse party had admitted the loss; (6) When the person in possession is out of reach, etc; The court may dispense with notice in a fit case. 67. Proof of signature and handwriting of person alleged to have signed or written document produced 359 Scope; Proof of handwriting; Objection to the mode of proof. 67-A Proof as to electronic signature 360 68. Proof of execution of document required by law to be attested 360 Scope; ‘Execution’; Attestation; Attesting witness who is; Scribe whether attesting witness; The witness called : Meaning of; Until one attesting witness is called; Required by law to be attested; When witness may not be called (Proviso); Proof of a will. 69. Proof where no attesting witness found 364 Scope. 70. Admission of execution by party to attested document 365 Scope; Presumption about attestation; Admission of execution must in course of the suit itself. 71. Proof when attesting witness denies the execution 366 Principle; If the attesting witness denies, the execution may be proved by other evidence; May be proved by other evidence. 72. Proof of document not required by law to be attested 367 Principle. 73. Comparison of signature, writing or seal with others admitted or proved 368 Principle; The standard writing must be proved or admitted; Specimen before the court; Comparison by whom; The value of the comparison; Article 20 (3) of the Constitution and Section 73. PUBLIC DOCUMENTS 73-A Proof as to verification of digital signature 372 74. Public documents 373 Scope.

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75. Private documents 375 Distinction between Public Document and Private Document. 76. Certified copies of public documents 375 Scope; Right to inspect. 77. Proof of documents by production of certified copies 376 Scope; Certified copy to be proved. 78. Proof of other official documents 377 Scope. PRESUMPTIONS AS TO DOCUMENTS 79. Presumption as to genuineness of certified copies 378 Scope. 80. Presumption as to documents produced as record of evidence 379 Principle; Scope of the section; Identity of the person making the statement; Taken in accordance with law. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents 380 Scope; Newspaper. 81-A. Presumption as to Gazettes in electronic forms 380 82. Presumption as to document admissible in England without proof of seal or signature 380 83. Presumption as to maps or plans made by authority of Government 381 Scope. 84. Presumption as to collections of laws and reports of decisions 381 Scope. 85. Presumption as to powers-of-attorney 381 Scope. 85-A. Presumption as to electronic agreements 381 85-B. Presumption as to electronic records and electronic signatures 382 85-C. Presumption as to Electronic Signature Certificates 382 86. Presumption as to certified copies of foreign judicial records 382 87. Presumption as to books, maps and charts 382 88. Presumption as to telegraphic messages 383 Scope. 88-A. Presumption as to electronic messages 383 89. Presumption as to due execution, etc., of documents not produced 383 Scope. 90. Presumption as to documents thirty years old 384 Object; 'Thirty years Old’; Reckoning of; ‘Proper custody’; Appearance free from suspicions; Presumption relates to signature and writing only; Presumption of copies of ancient document; Soundness of mind is also presumed; Anonymous

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Sections writing; ‘May presume’; The presumption discretionary; Opportunity to Party to prove execution of document if presumption not drawn. Scope; Principle; Basis of Suit or defence: Sections 90 and 90-A (an amended by U.P. Amendment Act). 90-A. Presumption as to electronic records five years old 393 CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE [ Secs. 91—100 ] 394-420 91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document 394 Scope; Principle; Rules of exclusion of oral evidence by documentary evidence; The terms of a contract and of a grant, etc; Only terms of a contract; Document inadmissible for want of registration; Deeds not contract etc; Any matter required by law to be in writing; Exception 1; Exception 2; The factum of contract, etc; .Promissory notes—Proof of oral contract of loan. 92. Exclusion of evidence of oral agreement 401 Sections 91 and 92; Parties to the instrument; Affecting the term of any contract, grant or disposition of property; The name of parties whether a term of contract; Proviso (1) : The facts invalidating the document; Proviso (2) : Separate oral agreement; Proviso (3) : Separate oral agreement as condition precedent; Proviso (4) : Distinct oral subsequent agreement to rescind to, renew or modify contract; Proviso (5): Any usages or customs by which incidents not mentioned in any contract are usually annexed to contract; Proviso (6): Extrinsic evidence of surrounding circumstances; Latent and Patent ambiguity; Distinction between Patent and Latent Ambiguity. 93. Exclusion of evidence to explain or amend ambiguous document 415 Scope. 94. Exclusion of evidence against application of document to existing facts

416

Principle. 95. Evidence as to document unmeaning in reference to existing facts 417 Principle. 96. Evidence as to application of language which can apply to one only of several persons 418 Principle; The section also deals with latent ambiguity. 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies 418

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98. Evidence as to meaning of illegible characters, etc 419 Principle. 99. Who may give evidence of agreement varying terms of document 419 Principle. 100. Saving of provisions of Indian Succession Act relating to wills 420 PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII OF THE BURDEN OF PROOF [ Secs. 101—114-A ] 424—469 101. Burden of proof 424 Scope; Doctrine of “reverse burden”; Section 101—Burden of proof’ and “Onus of proof’ (onus probandi); Burden of proof constant and burden to lead evidence onus probandi is shifting; Burden of proof in Civil cases; The burden of proof in criminal cases; Importance of burden of proof. 102. On whom burden of proof lies 427 Scope. 103. Burden of proof as to particular fact 428 Scope. 104. Burden of proving fact to be proved to make evidence admissible 429 Scope. 105. Burden of proving that case of accused comes within exceptions 429 Scope; Standard of proof of the exception pleaded; Self-defence; Reasonable doubt what is?; Insanity; Plea of justification; Want of maturity; Pleading and proof of exceptions. 106. Burden of proving fact especially within knowledge 435 Scope; Specially within the knowledge of any accused; Parties to the suit proceedings; Burden of proof Alibi; Burden to prove Mens rea; Burden of Proof of Intention— Illustration (a); Burden to proof by parties to transaction; Burden of proof in case of Res ipsa Loquitur, Burden of proof in negligence of carriers; Burden of proving date of death of persons unheard of; No satisfactory explanation of injuries on the deceased by the accused; A person charged with travelling without a valid ticket; Standard of proof in an accident. 107. Burden of proving death of person known to have been alive within thirty years 439

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108. Burden of proving that person is alive who has not been heard of for seven years 440 Principle (Secs. 107 & 108); Would naturally have heard. 109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent 442 Scope; The burden of proof as to relation in cases of partners etc. 110. Burden of proof as to ownership 443 Burden of proof as to ownership. 111. Proof of good faith in transactions where one party is in relation of active confidence 444 Proof of good faith in transactions where .one party is in relation of active confidence. 111-A Presumption as to certain offences 445 112 Birth during marriage conclusive proof of legitimacy 446 Presumption about legitimacy; Presumption as to valid marriage (can there be presumption of valid marriage) or factum of marriage must be proved; Presumption as to dissolution of marriage or presumption as to marriage; Access; Relevancy or admissibility of blood test under Section 112; Relevancy or admissibility of D.N.A. or R.N.A. Test. 113. Proof of cession of territory 451 113-A Presumption as to abetment of suicide by a married woman 451 Presumption of abetment of suicide. 113-B Presumption as to Dowry death 453 The court shall presume; Soon before her death; Onus heavier. 114. Court may presume existence of certain facts 456 Presumption, meaning of; Court may presume the existence of certain facts; "May"; Common course of natural events; Illustrations; Scope of; Illustration; (1) The ownership of the article; (2) The commission of theft; (3) Recent possession; (3) Possession must be exclusive; Conviction for offences other than theft on recovery; Presumption of murder by recovery of article of deceased; Accused’s explanation; Presumptions to dacoity cases; Illustration (b); Corroboration, nature of; Illustration (c)—The Presumption as regards bill of exchange; Illustration (d)—Presumption of existence from previous and subsequent existence; Illustration (e)—The performance of Judicial and Official acts; Illustration (f); Letter endorsed refused; Presumption of marriage; Illustration (g)— Presumption from withholding evidence; Non-appearance of a party; Illustration (h)— Refusal to answer; Illustration (i)— Documents in hands of obligor; Illustrations are not exhaustive; Official act; Non-examination of a party to lis; Sanction order by D.M.; Section 114 of Evidence Act and Section 16 of Contract Act; Election Commission— Holding of tree and fair election.

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114-A Presumption as to absence of consent in certain prosecutions for rape Presumption about absence of consent in case of rape. CHAPTER VIII ESTOPPEL MEANING. NATURE AND CLASSIFICATION [ Secs. 115—117 ]

469

475—512

Meaning; Applicability of Doctrine of Estoppel, Nature of estoppel; Kind of estoppel; Estoppel of record or quasi-order; Estoppel by Record; Lack of jurisdiction; Two judgments obtained by fraud; Estoppel by Deed; Effect of recitals; Fraud, force or forgery; Estoppel by matter in pais; Conduct amounting to negligence; Distinction between Estoppel and Res judicata; Distinction between Estoppel and Waiver. 115. Estoppel 475 Scope; (1) Representation—Necessary elements of; Intention to deceive; Who can take advantage of representation; Representation must be of existing facts; Estoppel should be pleaded; Representation may include representation of law; Representation must be unambiguous; Result must not be ultra vires; Representation induced by party complaining; Truth known to both the parties; (2) Intention of being acted upon; (3) The representation acted upon; Representation revocable; Prejudice; Representation by an agent; Intention to deceive; Representation by statement; Estoppel by conduct; Who can take advantage of representation; Estoppel—A rule of evidence; Estoppel may have the effect of creating rights; No estoppel against statute and law; (a) Tax laws; (b) Clear provision of law cannot be evaded; (c) The principle to determine the maxim 'no estoppel against statute'; Estoppel and Insurance Co.; Estoppel and Educational Institution; Estoppel and Tenancy; Estoppel and Employer; Estoppel and Selection Board; Estoppel and Development Authority; Estoppel and Inquiry Officer; Estoppel against public bodies and the Government; No estoppel against Government policy statement as Sovereign or executive; Estoppel by election or approbation and reprobation; (a) Approbation and reprobation in respect of remedies; (b) Estoppel by election through family arrangement etc.; (c) Applies also to the proceedings in Court; Writ appeal before the Division Bench against the order of single Judge in continuation of proceeding—Plea of giving up the plea of perversity of reversion order before Single Judge not to operate estoppel before the Division Bench; (d) A party applying for setting aside abatement cannot plead no abatement; (e) To the successive stages of the same suits and one suit and other; (f) Something done or some advantage

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Sections taken under an order or decree; (g) Estoppel about jurisdiction of courts: (h) No estoppel when the court had no jurisdiction; (i) The sameness of the transaction and the parties; (j) Acceptance of cost; (k) Cost accepted under protest; (1) Cost accepted by counsel not authorised; Admitting a person to be entitled to a legal benefit; Silence; Waiver; Estoppel by Negligence; Cases; Estoppel mutual; Origin and development of promissory estoppel; Promissory estoppel as distinguished from real estoppel or actual estoppel; Scope and object of promissory estoppel; Application of Doctrine of promissory estoppel to government; Promissory estoppel creates right to sue. 116. Estoppel of tenant and of licensee of person in possession 509 Scope; Tenant cannot deny the title of Landlord; When the Landlord cannot plead estoppel; During the continuance of the tenancy; Meaning of ‘during the continuance of tenancy’; At the beginning of the tenancy; Relation of landlord and tenant; Licence; Estoppel between mortgagor and mortgagee. 117. Estoppel of acceptor of bill of exchange, bailee or licensee 512 Scope. CHAPTER IX OF WITNESSES [ Secs. 118—134 ]

513—556

Competency of witnesses; Compellability of a witness. 118. Who may testify 513 Scope; Child witness; Preliminary examination to test the capacity of a child witness; Certificate that the witness understood the duty of speaking the truth; Oath to a child; Value of child evidence; Prosecutrix; Partisan or Interested Witness—Credibility; Injured witness; Eye witness as a silent spectator; Eye witness-Conduct of; Eye-witnessesInconsistancies; Eye-witness deviation; Police as witness; Evidence of investigation officer; Chance witnesses. 119. Dumb witnesses 527 Unable to speak. 120. Parties to civil suit, and their wives or husbands—Husband or wife of person under criminal trial 527 Scope. 121. Judges and Magistrates 527 Principle. 122. Communications during marriage 528 Principle; Conduct may be deposed to; Exception; During the marriage; Consent. 123. Evidence as to affairs of State 530

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Sections Conditions of claim of privilege; ‘Unpublished’; Official record relating to affairs of State; ‘Affairs of State’—Meaning; Object and basis of Maxim ‘salus populiest suprema lex’ is the basis of Section 123; Privilege—When should be claimed—Procedure; No Privilege in respect of documents of appointments and transfers of Judges; Procedure to claim privilege; Who is to decide: Public Officer; Communication made in official confidence. 124. Official communications 536 Scope. 125. Information as to commission of offences 537 Scope; Principle. 126. Professional communications 537 Legal practitioner not to disclose communication; English and Indian law; The rule is limited to legal adviser; During the existence of the relationship; Oral or documentary; Joint interest; Waiver. 127. Section 126 to apply to interpreters, etc 540 128. Privilege not waived by volunteering evidence 540 Scope. 129. Confidential communications with legal advisers 541 Waiver. 130. Production of title-deeds of witness, not a party 541 Scope. 131. Production of documents or electronic records which another person, having possession, could refuse to produce 542 Scope. 132. Witness not excused from answering on ground that answer will criminate 542 Witness not compellable to answer question—-Principle; Compellable witness—Scope; Proviso; “Compelled to give”—Statements made by person during investigation under— Section 161, Cr. P. Code. 133. Accomplice 544 Accomplice who is; Categories of accomplices; (1) Principals in the first and second degree; (2) Accessories before the facts; (3) Accessories after the fact; Persons seeing the offence being committed if associate after the fact; Accomplice and Coaccused; Reliance at the testimony of; Accompliance and approver; Combined effect of Sec. 133 and 114; Retracted confession and approver's evidence; The corroboration by independent evidence; Corroboration by another accomplice; The nature and extent of corroboration; Bribe givers; Trap or Decoy witness; Value of the evidence of a trap witness; Evidence of prosecutrix; The Law in England.

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Sections 134. Number of witnesses 556 Quantity of witness not required; Single witness; Solitary witness—Related to deceased—Victim; Single witness. CHAPTER X OF THE EXAMINATION OF WITNESSES [ Secs. 135—166 ] 559—605 Of the examination of witnesses. 135. Order of production and examination of witnesses 559 Scope; The order of examination of witnesses; Exclusion of witnesses from court-room. 136. Judge to decide as to admissibility of evidence 560 Scope; Judge to decide the admissibility. 137. Examination-in-chief 561 Cross-examination 561 Re-examination 561 Distinction between examination-in-chief, cross-examination and re-examination; Section 137 of Evidence Act and Section 145 of Negotiable Instrument Act. 138. Order of examinations 562 Direction of re-examination 562 Examination of a witness; Examination-in-chief; Cross- examinations; Admissibility of evidence of person with unfinished cross-examinations; Cross-examination-A wide scope; The important part of case to be put in cross- examination; Effect of not crossexamining; No opportunity given to cross-examine a witness-Effect of; Misleading questions; Effect of witness’s not presenting for cross- examinations; Tendering a witness for cross-examinations; Examination and cross-examinations must relate to relevant facts; Mode of recalling and cross-examining a witness; Power of the Court to control the examinations of a witness; Reexamination. 139. Cross-examination of person called to produce a document 568 140. Witnesses to character 568 Scope. 141. Leading questions 568 Scope. 142. When they must not be asked 569 Scope; Exceptions to this rule; If objected to; Matter of record; Commission of the Court. 143. When they may be asked 570 Scope; No misleading question in cross-examination.

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Sections 144. Evidence as to matters in writing 571 145. Cross-examination as to previous statements in writing 571 Scope; Use of the previous statement; Cross-examination as to previous statement; Intended to contradict; Attention must be called; Previous admission to contradict; If substantive evidence; Statement in writing; Admissibility of Tape Recording; Omission if contradiction; Relevant to the matter in issue; Of the witness himself; Substantive evidence; Section 145 of Evidence Act and Section 161, Cr. P.C. 146. Questions lawful in cross-examination 575 Scope; (1) To test his veracity; (2) To discover who he is and what is his position in life; (3) To shake his credit by injuring his character. 147. When witnesses to be compelled to answer 577 Scope. 148. Court to decide when question shall be asked and when witness compelled to answer 577 Putting of indecent questions; Principle; Scope of the section. 149. Question not to be asked without reasonable grounds 577 No scandalous question without grounds. 150. Procedure of Court in case of question being asked without reasonable grounds 579 Section 150 is penal. 151. Indecent and scandalous questions 579 152. Question intended to insult or annoy 580 Scope. 153. Exclusion of evidence to contradict answers to questions testing veracity 580 Principle; Scope; Evidence to contradict relevant facts; Exception-1; Previous conviction; Exception-2; Questions impeaching impartiality. 154. Question by party to his own witness 582 Principle; Scope; Put any question; Adverse or hostile witness; Prosecution witness when can be declared hostile; Cross-examination without declaring hostile; The permission of court; Value of the evidence of a hostile witness; Failure of prosecution to seek declaration about the witness as hostile. 155. Impeaching credit of witness 588 Scope; Clause 1; Clause 2; Clause 3; Is the, witness to be cross-examined; Section 145 and clause (3) of Section 155; Clause 4; Sections 52 and 155; Tape recording.

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156. Questions tending to corroborate evidence of relevant fact, admissible 590 Scope. 157. Former statements of witness may be proved to corroborate latter testimony as to same fact 591 Scope; Conditions for admitting statements; At or about the time; Before any authority competent to investigate the fact; Persons competent to investigate; Is the statement be communicated to others; Witnesses to be corroborated need not say in court that he made the former statement; Time for giving corroborative evidence; The person surviving after making dying declaration; Problem—Question; Answer. 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33 594 Scope. 159. Refreshing memory 594 When witness may use copy of document to refresh memory 594 Refreshing memory; Any writing; Writing includes printing lithography and photography etc.; A newspaper; Tape recorded statement; Documents not produced at the projuction; Refreshing memory by any writing; Records of investigation; At the time of transaction or soon after it; Writing made by some other person; Obligation of witness to refresh his memory; A medicalman; The document many not be relevant—The fact must be admissible; Document does not become evidence but its details may be given by refreshing memory; Contents of the record of the statement of the accused under Section 27 of Evidence Act; Witness of a search list; Recovery list on the statement of accused under Section 27 of Evidence Act; No need to establish lack of recollection. 160. Testimony to facts stated in document mentioned in Section 159 600 Principle and scope; Difference between Sections 159 and 160. 161. Right of adverse party as to writing used to refresh memory 600 Principle and scope. 162. Production of documents 600 Translation of documents 601 Scope; Validity of objection to be decided by Court; Procedure for claiming privilege. 163. Giving, as evidence, of document called for and produced on notice 601 Scope; Ingredients of the section; Value of such evidence.

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164.

Using, as evidence, of document production of which was refused on notice 602 Principle; Scope of the section. 165. Judge's power to put questions or order production 602 Judge's power to put questions; Court’s power to ask question; The time; Crossexamination on answers given to the Court; Proviso 1; Proviso 2. Section 165 Evidence Act and Section 162, Criminal Procedure Code; Section 165 of Evidence Act and Section 311 of Cr. P.C. 166. Power of jury or assessors to put questions 605 CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE [ Secs. 167 ] 606—607 167. No new trial for improper admission or rejection of evidence 606 Scope; Civil and Criminal cases; Effect of improper admission or rejection in civil cases; In criminal cases; Rejection of evidence—Material of. THE SCHEDULE—[Repealed] 607

Page xxix

TABLE OF CASES A Pillai v. State.............................................. 484 A. A. Nainar v. A. Chetiar ............................ 105 A. Dinnohamy v. W.L. Blahamy .................. 467 A. N. Shah v. A. Annapuranamma ............... 494 A. Naeesia v. State of Bihar ..................66, 160, 161, 175, 178, 193 A. C. Jose v. Simon Pillai ......................... 485 A. C.E. Union of India v. G.B. Bhirede................................................ 498 A. E.G. Garapiet v. A.Y. Derderian ...... 564 A. H. Gandhi v. King .............. 113, 121, 122 A. P. Steel Re-Rolling Mills Ltd. v. State of Kerala .................................... 507 Abbas Ali Shah v. Muhammad Shah ............. 100 Abdul Gani Malik v. Mala Habib .................. 484 Abdul Gani v. Emperor ................................. 223 Abdul Ghani v. State of U.P .......................... 170 Abdul Hafiz v. State of A.P ........................... 196 Abdul Karim v. Salimun................................ 366 Abdul Latif v. Man Singh Rao ...................... 597 Abdul Malik v. State of U.P .......................... 337 Abdul Qadirv. Emperor ................................. 196 Abdul Rahim Khan v. Faqir Mohd ................ 105 Abdul Rahim v. Emperor............................... 270 Abdul Rashid v. State of Bihar ...................... 176 Abdul Razak v. State of Maharashtra ........................................ 160 Abdul Salim v. Emperor ................................ 595 Abdul Sattar v. R ........................................... 434 Abdul Sattar v. State of Mysore .................... 245 Abdul v. Baijan.............................................. 128 Abdul v. Emperor .......................................... 606 Abdul Wahid Khan v. Reny Charles Pavey .................................................. 485 Abdulla v. Emperor .............................. 181, 599 Abhay Singh v. State of U.P ................. 304, 305 Abuthagir v. State Rep. by Inspector of Police, Madurai.......................... 30, 81 Achtai Lai v. Emperor ................................... 257 Ade Feroz Shah v. H.M. Seerbae .................. 288 Adivekka v. Hanamavva Kom Venkatesh ........................................... 469 Ahai Lal v. Emperor ........................................ 87 Ahmad Bin Salam v. State of Andhra Pradesh.................................................. 78 Ahmad v. Ali Ibrahim.................................... 467 Ahmedabad Municipality v. Shantilal .............................................. 298 Air India v. Nergesh Mirza ............................ 482 Ajay Singh v. State of Maharashtra .............. 148, 149 Ajit Chandra Bagchi and others v. Messrs Harishpur Tea Company ........ 276 Ajit Savant Majagavi v. State of Karnataka. ........................................... 369 Akal Sahu v. Emperor ................................... 146 Akram Sheikh v. Makid Sheikh....................... 99 Alexender v. The King .................................. 237 Algammal v. Devkammal .............................. 466

A

Ali Gauhar v. Emperor .................................. 179 Ali Hasan v. Matiulla ............................. 43, 390 Ali Hassan v. State ........................................ 288 Ali Nasir v. Manik ......................................... 280 Ali Sher v. State of U.P ....................... 460, 463 Alijan Munshi v. State ................... ................. 65 Allauddin v. Shishir Kumar Datta ................. 314 Alley v. State of U.P ........................................ 61 Allijan Munshi v. The State................ ......... 223 Aluminium Corporation v. L.R.C. Mills .................................................... 117 Amar Singh Munnasingh Suryawanshi v. State of Maharashtra ............................. .......... 236 Amar Singh v. Balwinder Singh .................... 556 Amar Singh v. State of M.P ......... ................. 462 Amarappa v. State of Karnataka ...................... 94 Amardas v. Harman Bhai .............................. 362 Amarjeet Singh v. State (Delhi Admn.) 1995 ....................................... 298 Ambar Ali v. Lutfe Ali.... .............................. 258 Ambika Charan Kundu v. Kumud Mohan Chaudhari ................................. 91 Ambika Devi v. Bal Mukund Pandey ................................................ 131 Ambika Prasad v. Ram Iqbal ......................... 214 Ambika Singh v. State ................................... 565 Ambu Nair v. Kebu Nair .............................. 4 91 Amin Sharif v. Emperor ................................ 178 Amin v. State ....................................... 190, 194 Amitsingh Bhikamsingh Thakur v. State of Maharashtra ........................... 520 Ammathayarmal v. The Official Assignee.............................................. 586 Ammini and Others v. State of Kerala................. 86, 143, 184, 300, 312 Amrit Banaspati Co. Ltd. v. Union of India................................................ 429 Amrit Banaspati Co. v. State of Punjab ................................................. 499 Amrit Devi v. Shripat Rai .............................. 392 Amrit Lai Hazara v. Emperor .............. 121, 586 Amrita v. Sripali .......... ......... S. .................... 351 Amrut v. State ..................................... 194, 199 Amulya Patnayak v. State.............................. 600 Anand Bahadur v. Deputy Commissioner, Barabanki ..................... 81

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Anand Behari Lal v. Dinshaw & Co ....................................................... 348 Anand Kumar v. State of M.P ....................... 455 Anandi v. Nandi Lal ...................................... 260 Anant Lal v. State of Bombay ......................... 65 Anant Ram v. State of Punjab ....................... 280 Anchar Ali v. State of Assam ........................ 498 Aneppa v. State of Karnataka ........................ 164 Anglo India Jute Mills Co. v. Omada Mill ...................................... . ............. 482 Angnu v. State ............................................... 165 Anil Bajaj (Dr.) v. Post Graduate Institute of Medical Education and Research ...................... 486 Anil Behari v. Latika Bala Dasi ..................... 293 Anil Phukan v. State of Assam ........................ 35 Anjali Kapoor v. Rajiv Baijal ........................ 439 Ankush Maruti Shinde v. State of Maharashtra .......................................... 75 Anna Reddy Sambasiva Reddy v. State of A.P., ....................................... 522 Annapumamma v. Raja Vijayanagram....494 Annavi Mutherayyar v. Emperor ................... 330 Anwar Ali Khan v. State of Assam................ 102 Anwar Ali Sarcar v. State .............................. 380 Anwar Hussain v. The State of U. P ................ 80 Appuv. State .............................................. 63, 66 Arabinda Dey v. State.................................... 565 Arjun Chand v. Kailash Chandra ................... 361 Arjun Singh v. Mahasaband .......................... 512 Arun Bhakta alias Thulu v. State of West Bengal .......................................... 23 Arun Kumar Banerji v. State ........................... 69 Arun Kumar Sinha v. Union of India .................................................... 494 Arvind Kumar v. State of M.P ....................... 452 Arvind Kumar v. State of Rajasthan ............. 238, 239 Asa Ram v. M.C.D ............................... 345, 467 Asan Tharayil v. State of Kerala.................... 242 Asharani Das v. Union of India ..................... 439 Asharfi Lal v. Koili ....................................... 294 Ashfaque Ali Khan v. Ashrafi Mahaseth ............................................. 103 Ashish Batham v. State of Madhya Pradesh.................................................. 79 Ashok Kumar Chatterjee v. State of M. P ...................................................... 18 Ashok Kumar Uttam Chand Shah v. P.M. A. Chanchad ............................... 369 Ashok Kumar v. State of Rajasthan ............... 231 Ashok Laxman Gaikwad v. State of Maharashtra ........................................ 238 Ashok v. Madho Lal ...................................... 344 Ashrafi Lal v. Mst. Nannhi .................... ...... 365 Ashudani Kumar v. Union of India. .............. 275 Ashwini Kumar v. Union Territory, Tripura ................................................ 599 Asiatic Steam Navigation Co. v. Sub-Lieutenant .................................... 300 Asif v. Jadunath Majumdar ........................... 483

Asraf SC v. State of West Bengal .................... 24 Assistant Collector Central Excise v. Dunlop India Ltd ............................. 337 Assistant Commercial Tax Commissioner v. Dharmendra Trading Co .......................................... 497 Associated Hotel of India v. Ranjit Singh ................................................... 495 Association of Industrial Electricity Users v. State of A.P ........................... 506 Ata Mohammad v. Crown ............................. 464 Athappa Goundan v. Emperor ....................... 188 Au Mu v. Emperor......................................... 330 Autar Singh v. Sohanlal................................. 484 Avtar Singh v. State of Punjab ...................... 461 Awabalvana Pillai v. Gowri Ammal .............. 276 Awadh Behari v. State of M.P ....................... 592 Awadhi Yadawa v. State of Bihar ................... 24 Ayeasha v. Peerkhan ........................... 539, 580 Ayisa Bibi v. Aboo Bakar.............................. 466 Ayodhya Prasad Bhargava v. Bhawani Shankar Bhargava ............... 134, 214, 215, 573 Ayyub Etop v. State of U.P ........................... 183 Ayyub v. State of U.P ..................................... 8 0 Aziz Ahmad v. S.A. Patel .............................. 265 Azizullah Khan v. Ahmad Ali Khan.................................................... 130 B. Chakravarti v. W.I. Theatre ........................ 96 B. Colema & Co. v. P. Das Gupta................. 480 B. Goweresh v. K. Subhdrama ...................... 511 B. K. Channappa v. State of Karnataka ............................................ 526 B. K. Sarana v. R ................................ .... 434 B. L. Shreedhar v. K.M. Mhmarireddy ...................................... 471 B. P. v. State of H.P ................................... 451 B. S.E.S. Ltd. v. Tata Power Co. Ltd..... 506 B. S. Lall v. Sardarmal Lalwani ................ 492 Babasaheb Apparao Patil v. State of Maharashtra ........................................ 523 Babloo Pasi v. State of Jharkhand ................. 281 Babu Lal v. Caltex ......................................... 565 Babu Lal v. State ........................................... 435 Babu Ram v. Baijnath Singh ......................... 493 Babu Ram v. Shrimati Parsanni ..................... 315 Babu Ram v. State ........................................... 65

B

TABLE OF CASES

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Table of Cases

Babu Rao Patel v. Bathakeray .......... ........... 576 Babu Singh v. Ram Sahai ....................363, 365 Babunandan v. Board of Revenue ........... .....386 Badan Singh v. Brijraj ....................... .......... 388 Badri Bai v. The State of Bihar ....................... 87 Badri Kedar Paper Pvt. Ltd. v. U.P. Electricity Regulatory Commission ........................................ 505 Badri Pd. v. Dy. Director of Consolidation ...................................... 467 Badri Prasad v. Bhagwan Das ....................... 397 Badri Prasad v. Shanti Lal ............................. 602 Badruddin v. State of Maharashtra .................. 50 Badshah Singh v. State .................................. 438 Bahadur Singh v. Barkatulla................... ...... 105 Bahai Singh v. State of Haryana .................... 526 Bahman Vaje Ram Raghuram v. State ...................................................... 64 Bai Hira Devi v. Official Assignee of Bombay ................ 395, 403, 406, 419 Bai Khatija v. State .......................................... 69 Bai Sakeena Bai v. Gulam Rasool ................. 387 Baiju v. State of M.P ..................................... 463 Baikuntha v. Prasanna Moiji ......................... 586 Bain v. White Raven and Furness Junction Ry ............................................. 4 Bakshi Singh v. State of Punjab ................... 228, 232, 273 Bai Kishan v. State of Maharashtra ............... 176 Bai Krishna Das Agrawal v. Radha Devi and others ..........................297, 314 Bai Raja Ram v. Manek Lal .......................... 561 Bai Ram v. Jayakrishna .................... ........... 317 Bai Ram v. Ramesh Chandra................ 408, 409 Bala Majhi v. State of Orissa ......................... 148 Bala Majihi v. The State of Orissa................ 154, 205 Baladev Singh v. State of Haryana .................. 23 Balaji v. State ................................................ 518 Balaka Singh v. The State of Punjab ............... 35 Balbhaddar v. I.T. Commissioner .................. 124 Balbir singh v. State of Punjab ............ 170, 209, 232, 235 Baldeo Misra v. Bharose Kunbi............ 386, 389 Baldeo Raj v. State of Haryana.................... ..167 Baldeo Raj v. Urmila Kumari ................... .....298 Baldev Singh v. State of Punjab .... ............... 455 Balgovind Das v. Makbool Sheikh ................ 354 Bali Ram v. Bapu Rao ................................... 494 Balkisan Das v. W.F. Legge .......................... 406 Balkrishna Das v. Radha Devi ....................... 302 Ballahabdas v. Collector of Custom .............. 177 Balmukund v. Emperor ........ ........................ 160 Balu Sonba Shinde v. State of Maharashtra ....................... .............. .587 Balusami v. Balkrishna... ................................. 99 Balwant Kaur v. Union Territory of Chandigarh.......................................... 550 Balwant Singh v. Daulat Singh...................... 281

xxxi

Balwinder Kumar v. Bawasingh and other ............................................. 302 Balwinder Singh v. State of Punjab ................ 18, 150 Banarasi Das v. Kashiram ............................. 138 Banarsi Devi v. Janvi Devi ............................ 376 Banarsidas v. Sumati Prasad .......................... 108 Bandhu Kechei v. State ................................. 172 Banerjee Store v. President of India .............. 303 Bank of Bihar v. Tata Sub-dealers ................. 123 Banshi v. State ............................................... 295 Banti v. State of M.P ....................................... 30 Banwari Lal v. Mahesh................ 300, 596, 597 Banwari Lal v. State ...................................... 562 Banwari Lal v. Sukhdarshan .......................... 481 Banwari Lal v. Trilok Chand ......................... 261 Barelal v. State .............................................. 433 Barindra v. Emperor ........................................ 13 Basant Singh v. Brij Raj Singh ...................... 352 Basant Singh v. Janki Singh .......................... 214 Basdevanand v. Shantanand .......................... 574 Basir Uddin v. Himmat Ali............................ 351 Baso Prasad v. State of Bihar ........................ 301 Baso Rao v. Emperor..................................... 322 Bathula Nagamalleswar v. State Rep. by Public Prosecutor ...15, 34, 521 Batul Begum v. B. Hem Chandra ...... .......... 483 Bawa Jena v. State ......................................... 463 Beer Basabaradhya v. Devotees Lingadagudi Matt................................ 134 Behara Tanti v. State ..................................... 144 Bela Ram v. Mahabir Singh ............................ 90 Bela Rani v. Mahabir Singh ................... 90, 264 Bellachi v. Pakeeran ...................................... 469 Bembala Subbay Rae v. Bhusangayya ............ 99 Benga Behera v. Braja Kishore Nanda .......... 367 Beni Prasad v. Dood Nath ............................. 140 Bepathuma v. Shankaranarayan..................... 490 Bhagat Ram v. State of Punjab .................. 18, 19 Bhagban Panda v. Dullav Panda.................... 459 Bhagga v. State of M. P ................................. 518 Bhagi v. Crown.............................................. 209 Bhagirath v. State of Haryana........................ 227 Bhagirathi v. State of M.P ................... 202, 599 Bhagirathmal v. Vibhuti Bhusan ................... 389 Bhagwan Das v. State of Rajasthan ................. 68 Bhagwan Din v. Gauri Shanker ..................... 370

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Evidence Act

of U.P .................................................. 525 Bhagwan Singh v. State of Haryana .............. 160 161, 586, 587 Bhagwan Swarup v. State of M.P .................. 516 Bhagwan Swarup v. State of Maharashtra .................................85, 320 Bhagwan Swarup v. State of Maharashtra ........................................ 320 Bhagwan v. State of Rajasthan ...................... 247 Bhagwandas v. A.J. Mills Co ........................ 482 Bhagwandas v. State of Rajasthan ................... 86 Bhagwat Gond v. State of Bihar .................... 164 Bhagwati Prasad v. Rameshwari .......... 257, 258 Bhaichandra v. Chabasappa Mallappa ............................................. 601 Bhairon Singh v. State of M.P .............. 228, 229 Bhamara v. State of M.P.................................. 66 Bhanwar Singh v. State of M.P ..................... 523 Bhaoji v. Govt. of Hyd .................................... 61 Bharat Bank v. Employees of Bharat Bank ........................................................ 8 Bharat Kumar K. Palien and others v. State of Kerala ................................ 328 Bharat Singh v. Bhagirathi .................. 134, 215, 573, 574 Bharat v. State of Rajasthan .......................... 229 Bhason v. State of Pepsu ............................... 156 Bhau Ram v. Bag Nath Singh ........................ 491 Bheru Lal v. State of Rajasthan ..................... 521 Bhika v. King Emperor.................................. 599 Bhikari v. State of U.P .......................... 432, 433 Bhim Singh v. State of Haryana ...................... 83 Bhinka v. Charan Singh ................................. 378 Bhodh Raj alias Bodha v. State of Jammu & Kashmir .............................. 185 Bhogi Lal Chunni Lal Pandey v. State of Bombay.................................. 593 Bhogi Lal v. The Royal Insurance ................. 589 Bhoginbhai Hirzinbhai v. State of Gujarat ................................................ 555 Bhojraj v. Sitaram.......................................... 563 Bhola Nath Kushwala v. State of M.P ..................................................... 587 Bhola Shankar Maha Shankar Bhattjee v. Charity Commissioner, Gujarat ....................... 308 Bhondu v. Emperor .............................. 595, 599 Bhoom Singh v. State .................................... 194 Bhopal Singh v. Chatter Singh and others .................................................. 480 Bhubani Sahu v. King.......... 207, 210, 464, 550 Bhupan v. State of Madhya Pradesh .............. 241 Bhupendra Kumar R. Parikh v. M.K. Lakshmi .............................................. 445 Bhupendra Singh v. State of U.P .................. 524 Bhushan Chand v. Hiranmay ........................ 274 Biard Mal Singhvi v. Anand Purohit ................................................ 281 Bibi Kundo v. Onkarnath .............................. 491 Bikav Pandey v. State of Bihar ....................... 95

Bhagwan Singh and others v. State

Bilas Kumari v. Deshraj Ranjit Singh ................................................... 510 Bikiam Ali v. Emperor.................................. 584 Binapani v. Rabindranath.............................. 571 Binav Kumar and others v. State of Bihar ............................................ 94, 557 Bindra v. Emperor......................................... 431 Bir Singh v. State of U.P ............................... 337 Birey Singh v. State ............................. 163, 572 Biru Mall v. State of Gujarat ......................... 460 Bisessar Mishra v. King ................................ 282 Bishesar Nath v. S.T. Commissioner ............ 495 Bishnath Prasad v. Emperor .......................... 279 Bishnu Prasad Sinha v. State of Assam ................................................. 145 Bishwanatha v. Dhapu Devi................... 65, 181 Bobla Suramma v. Peddareddi ...................... 352 Bodala Murali Krishna v. Smt. S. Bodala Prathima.................................... 14 Bodhraj v. State of J&K .................................. 30 Bongaigaon Refinery P.C. Ltd. v. Girish Chandra Sarnath ....................... 493 Boota Singh v. Crown ................................... 266 Brahmachari v. Anadh Bandhu ..................... 270 Brahmaya v. King ......................................... 567 Brajendra Kishore v. Mohin Chandra............................................... 104 Brij Ballabh Ghosh v. Akhoi Bagdi .............. 379 Brij Basi Lal v. State of M.P ......................... 295 Brij Bhushan Singh v. Emperor .................... 572 Brij Lal Prasad Sinha v. State of Bihar ..................................................... 94 Brij Lal v. State of M.P ................................. 153 Brij Mohan v. Priyabrat ...................... 280, 282 Brij Mohan v. State of Rajasthan ................... 78, 190, 303 Brija v. Emperor ........................................... 181 Brijlal Prasad Sinha v. State of Bihar ..................................................... 95 Brijlal v. V.M. Chandra Prabha .................... 315 Brojendra Kishore Roy v. Mohin Chandra............................................... 103 Brown v. E.C.R. Co ....................................... 5 6 Brundaban Naik v. Gobardhan Biswal .............. .................................. 367 Budha v. Bedaruja......................................... 125 Budhsen v. State of U. P ................................. 75 Bur Singh v. State of Punjab ................... 35, 520

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Table of Cases

Burn Standard Co. Ltd. v. Dinabandhu Majurndar ....................... 280 Burrakar Coal Co. v. Labour Appellate Tribunal of India ..................... 2

C C. B. I. v. V.C. Shukla ....................86, 277, 278 C. Chenga Reddy v. State of A.P............. ........18 C. Das v. State .............................................. 209 C. Shankarnarayan v. State of Kerala.................................................. 489 C. C. Das v. Raghunath Das ..................... 434 C. C. Reo. Authority v. M/s P.S. Private Ltd .................................395, 396 C. K. Ravindran v. State of Kerala ........... 167 C. S. & M. Co. v. Municipal Corporation ......................................... 499 C. T. Muniappan v. State of Madras ......... 564 Calcutta Credit Corporation v. Prince Peter of Greece ........................ 438 Central Airman Selection Board v. Surendra Kumar Das ........................... 486 Central Excise Department v. Somasundaram ...................... ............ 299 Central London Property Trust Ltd. v. High Trees House Ltd ............499, 505 Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council .................... 488, 498, 504, 505 Chaitan Chand Panda v. Maheshwar Panda ............................... 367 Chaitanya Charan v. Manik Chandra............................................... 476 Chalianadan v. Rex........................................ 220 Chaman Lal v. State of J. and K .................... 155 Chaman v. State of U.P ................................... 78 Champalal v. Thakurji Gopalji ...................... 425 Chanchal Singh v. Emperor .................. 273, 274 Chanda Bai v. Anwar Khan ........................... 390 Chanda v. Emperor ........................................ 544 Chandan Bai v. Jagjiwandas ............................ 43 Chandan v. State of Rajasthan .............. 547, 550 Chandanlal Joura v. Amin Chand .................. 565 Chandap v. State of Rajasthan ....................... 116 Chandmal v. State of Rajasthan ....................... 19 Chandra Bhan Singh v. State ......................... 224 Chandra Das v. State ..................................... 210 Chandra Gopal v. State ...................... ............. 54 Chandra Mohan Tiwari v. State of M.P ............................................. 25, 518 Chandrakant Nyslchand Seth v. The State of Bombay............ ...................... 21 Chandramani Naik v. Binapani Dei ............. ..564 Chandrappa v. State of Karnataka ............. 26, 29 Chandreshwer v. Ram Chandra Singh ............. 97 Chandu Lal v. Khalemonnesia....................... 317 Channo Mahto v. Jang Bahadur Singh ................................................... 101 Chari Patti Shankararao v. Public Prosecutor A.P. High Court ................ 249 Chari v. State ................................................. 576 Charubala v. German Company .................... 510 Chaturbhuj Pandey v. Collecter,

Raigarh................................................ 565 Chaukidar Deoki Nandan v. Emperor .............................................. 179 Chavan Baghamalla v. Y.R. Porapia ............. 531 Chellappan v. State of Kerala ........................ 549 Chemnaveeriah v. Mysore Revenue Tribunal .............................................. 493 Chennavemah v. R.A.T. Mysore ................... 491 Cherlopalli Cheliminabi Saheb v. State of Andhra Pradesh...................... 251 Chhaggan Singh v. State................................ 437 Chhatra v. State ............................................... 61 Chhattar Singh v. State of Haryana ................. 24 Chheda v. Emperor ........................................ 460 Chhotanney v. State of U.P ................. 311, 433 Chhotka v. State ........................................ 51, 52 Chinnavalayan v. State of Madras ................. 223 Chitru Devi v. Smt. Ram Davi ............ 281, 386 Chittal Singh v. Emperor ............................... 373 Chobar v. State .............................................. 144 Chokani v. Western India Theatre ................... 97 Chotkan v. State ............................................ 544 Chowdappa v. Emperor ................................. 460 Chowgule & Co. v. Union of India................ 488 Chuni Lal v. Hortford Fire Co ....................... 565 Chunni v. Emperor ........................ .............. 175 Collector of Bombay v. Bombay Corporation ................ ....................... 489 Collector of Gorakhpur v. Akashwani .......................................... 101 Collector of Gorakhpur v. Palakdhan ............ 107 Collector of Gorakhpur v. Ram Sudarmal ............................................. 373 Collector of Jabalpur v. A.R. Jahangir........... 297 Commissioner of Police, New Delhi v. Nandan Singh..................... ............ 179 Controller of Insurance Simla v. Venguard Co ....................................... 494 Corporation of Calcutta v. Province of Bengal............................................... 73 Cyril Waugh v. King ..................................... 245 D. Pandi v. Dhanalakshmi Bank Ltd ............ 370 D. Sailu v. State of A. P................................ 520 D. B. Desh Mukh v. State.......................... 226 D. D.A. Self Financing Flats Owners Society v. Union of India .................... 508 D. D.A. v. Joint Action Committee, Allotee of SFS Flats ............................ 487 D. R. Punjab Montogomery Transport Co. v. Raghuvanshi Pvt. Ltd. .............. 590

D

Page xxxiv

Evidence Act

Dada Buddappa Gouli v. Kalu Kanu Gouli.......................................... 585 Dahu v. Tuharmal .......................................... 346 Dahya Bhai v. State of Gujarat ..................... 431, 433, 562 Dal Bahadur v. Bijai Bahadur...............255, 270 Dalbir Singh v. State of Haryana ............... 34, 80 Dalgish v. Muzaffar Hussain ......................... 100 Dalgovind v. Nimai Charan .................. 261, 317 Dalim Kumar v. Nand Ram ......... 274, 279, 377 Dalip Singh v. State of Punjab....................... 520 Damru Ram v. Madanlal and others .................... ................................... 282 Dandu Laxmi Reddy v. State of Andhra Pradesh ................................... 238 Danu Singh v. Emperor.. ............................... 224 Darbari Kumar v. State .................................... 66 Darbari v. State .............................................. 170 Daroga R. v. Pancham ................................... 179 Darshan Lal v. State of J. & K .............. 164, 166 Darshan Singh and others v. Gujjar Singh ................................................... 442 Darshan Singh v. State of Haryana ................ 309 Darshan Singh v. State of Punjab .................. 244 Dasari Siva Prasad Reddy v. Public Prosecutor, High Court A.P .................. 95 Dashrath alias Champa v. State of M. P .................................................... 241 Dashrath v. State of M. P............................... 253 Dataram S. Victore v. Tukaram S. Victore ................................................ 486 Dattatraya v. Raghunath ................................ 482 Daulatram v. Triloki Nath ............................. 484 Davind v. Lachmi .......................................... 213 Dawsons Bank v. N.M. K.K. (Jap Trading Co.)...................... 478, 481, 482 Daya Singh v. State of Haryana....................... 78 Debashish Kar Gupta v. State of West Bengal ........................................ 328 Deep Chand v. Sajjad Ali Khan..................... 399 Deep Chand v. Sarupathraj ................... 433, 576 Delhi Administration v. Bai Krishna................................... . .......... 200 Delhi University v. Ashok Kumar ................. 483 Dendra Pasad v. State of U.P.. ....................... 158 Dengo Kendero v. Emperor ........................... 208 Denonandan Mishra v. The State of Bihar ..................................................... 21 Deo Dhari v. Emperor ................................... 586 Deo Rao v. State of Maharashtra ................... 247 Deochand v. D.D. of Consolidation............... 392 Deokinandan v. Emperor ............................... 177 Deonandan v. State of Bihar ............................ 27 Desh Raj v. Bodh Raj ........................... 281, 390 Deshraj Chopra v. Puranmal.......................... 564 Deshraj Sharma v. State .................................. 64 Deva Sharan Yadav v. State.......................... 495 Devaiah v. Nagappa ...................................... 494

Devason's Bank v. Nippan, Menkhevakahu .................................... 497 Devendra Kumar Sharma v. State of Rajasthan .......................... 276, 278, 279 Devenkaia Raya v. P.G. Rajieha ................... 510 Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan and others .......... 270, 563 Devesh Pratap Singh v. Smt. Sunita Singh ................................................... 450 Devi Ram v. State ......................................... 173 Devi v. Emperor............................................ 460 Devi v. Prasanno Kumar ............................... 493 Dhan Raj and others v. State of Manarashtra .............................. 239, 514 Dhanpal v. Emperor ...................................... 209 Dhanpal v. State ............................................ 337 Dharambir Singh v. The State of Punjab .......................................... 21, 223 Dharamu Beldar v. King Emperor ................ 569 Dharamveer v. State of U P .......................... 523 Dharm Singh and others v. State of Punjab ................................................. 519 Dharma v. State.................................... 599, 600 Dharmavati Bai v. Shiv Singh....................... 127 Dheram Pal v. State of U. P .......................... 518 Dhoom Singh v. State ................................... 200 Dhula v. State................................................ 204 Dhyani Gop v. Emperor ................................ 460 Dileep Singh v. State of Punjab .................... 249 Dimple Gupta v. Rajiv Gupta ........................ 2 9 Din Dayal v. State ........................................... 39 Dinaman Chowdhrani v. Braj Mohni Chaudhari ................................ 107 Dinanath v. Ram Raj ..................................... 359 Dinbhai v. Dominion of India ....................... 535 Dinesh Borthakur v. State of Assam ............... 82 Dinesh Dalmia v. State ................................. 304 Dinesh Kumar v. State of Rajasthan .............. 34, 521 District Bar Association, Kurukshetra v. State of Haryana.............................. 328 Dogar Mal v. Sunan Ram.............................. 389 Doman v. Suraj Dev Prasad .......................... 572 Dongar Singh v. Krishna Kant ...................... 434 Doodhnath Pande v. State of U.P ........... 93, 190 Dootar Jha v. Ranjit ...................................... 541 Doraiswamy v. Rathnammal ................365, 367 Dr. Ashok Kumar Maheshwari v. State of U.P. and another .................... 505 Dr. Kripa Ram Mathur v. State of U.P ...................................................... 124

Page xxxv

Table of cases

Dulal Chandra Adak and others v. Gunadhar Patra & others ..................... 312 Durand Didier v. Chief Secretary, Union Territory, Goa .......................... 298 Durga Prasad Singh v. Ram Dayal Chaudhari.............................................. 13 Dwarka Prasad v. Sant................................... 277 Dwarka v. Parmanand ................................... 358 Dwarka v. State ............................................. 565 Dwijesh v. Naresh ........................................... 40 Dwingly Ariel v. State of M.P ........................ 68 Dy. Legal Remembrancer v. Karuna Baisstoki ................................. .......... 208 E. C. Richard v. Forest Officer..................... 177 E. Parashuram v. v. Doraiswamy ......... 466, 510 Earabha Drappa v. State of Karnataka ...................................186, 190 East Punjab Province v. Bachan Singh ................................................... 442 Elha & Co. v. Fifth Industrial Tribunal .............................................. 483 Emperor v. Abdul Ghani Bahadur Bhai....................................................... 72 Emperor v. Cakut .......................................... 120 Emperor v. Chhatrapal Singh ........................ 209 Emperor v. Chidan ........................................ 528 Emperor v. Daranpara ..................................... 69 Emperor v. Devendra .................................... 120 Emperor v. Gajendra Mohan ......................... 273 Emperor v. Jagia .... ..................................... 181 Emperor v. Jamna Singh ............................... 205 Emperor v. Kasamalli ................................... 566 Emperor v. Kutub Bux .................................. 156 Emperor v. Lal Baksha..................... ........... 163 Emperor v. Mahadeo ..................................... 595 Emperor v. Mahadeo Dewoo ............... 598, 599 Emperor v. Makhan Lal ................................ 602 Emperor v. Moti Ram .................................... 6 7 Emperor v. Moti Ram Rai Singh................64, 67 Emperor v. Nanua ......................................... 204 Emperor v. Narbada Prasad........................... 277 Emperor v. Panchkauri.................................. 156 Emperor v. Panchu Das................................. 114 Emperor v. Radheyshyam ............................. 586 Emperor v. Ram Chandra Roy ...................... 592 Emperor v. Remisheistian ............................. 199 Emperor v. Shankaraya Gurshedhavay ..................................... 122 Emperor v. Sheo Bhai ................................... 229 Emperor v. Sheopujia.................................... 196 Emperor v. Suorgola ..................................... 586 Emperor v. U. Daranpara ................. ............. 69 Emperor v. Wahiduddin ........................ ........ 73 Emperor v. Yaqub .................................. 97, 114 Empress v. Mahadeo Prasad ......................... 211 Empress v. Rachia Mahto ............................. 271 Enayat Khan v. Emperor ............................... 230 Erabhadrappa v. State of Karnataka ............... 18, 26

E

Eradu v. State of Hyderabad ........................... 18 F Faddi v. State of M.P .................. 146, 147, 175 Fakir Jumma Khan v. Emperor ..................... 592 Fakira v. Emperor ......................................... 196 Fakirnath v. Krishna Chandra ....................... 271 Fakiruddin v. State of M.P ............................ 313 Fateh Gunai v. Sardar.................................... 458 Fateh Singh Bhagat Singh v. State of M.P. ............... ...................................... 21 Fatnaya Lal v. Emperor................................. 598 Fazal Sheikh v. Abdur Rahman .................... 374 Fire Stone T. & R. Co. v. Workmen ............. 570 Firm Malik Deshraj, Faquir Chand v. Firm Peare Lal ................................ 572 Food Corporation of India v. Birendra Nath Dhar ............................. 415 Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram ......... 141, 177, 548 Fuljhari Devi v. Mithailal.....................395, 396 G G. Lakshmi Man Raju alias Ramesh v. State of Andhra Pradesh.................... 81 G. N. Sarwada v. State of Mysore ............483 G. R. Silk Mfg. Co. v. State ......................484 G. S. Bakshi v. State ................................. 586 Gadha Purni v. State ..................................... 142 Gadhapuma v. State ...................................... 145 Gajadhar v. Nand Lal .................................... 606 Gali Venkataiah v. State of A. P ................... 518 Gallu Shah v. State of Bihar....................... .....33 Gambhir v. State of Maharashtra .................... 26 Gamparai Hrudayaraju v. State of A.P ........................................................ 23 Ganesh Das Milani v. King ........................... 129 Ganesh K. Gulve v. State of Maharashtra ........................................ 311 Ganga Prasad Gupta v. Emperor ................... 156 Ganga Ram v. Habibullah ............................. 601 Ganga Singh v. Emperor ............................... 225 Ganga Singh v. State of Rajasthan ................ 584 Ganga v. Chedi ............................................. 108 Gangabai v. Chabbubai ................................. 407 Gangamma v. G. Nagarathamma .................. 523 Ganganna v. Emperor ................................... 209 Gangotri Singh v. State of U.P ...................... 244

Page xxxvi

Evidence Act

Ganpat Mahadeo Mane v. State of Maharastra .......................................... 234 Ganpat v. Emperor ........................................ 211 Ganpati Rao v. Naga Rao .............................. 268 Gaya Prasad v. State ............................. 165, 193 Gayaial v. State of Bihar ............................... 370 General Court Martial v. Col. Anil Tej Singh Dhaliwal ............................. 417 Gentela Vijay Vardhan Rao and others v. State of Andhra Pradesh................................................. 4 7 George and others v. State of Kerala and others .............................................. 77 Ghurau v. Sheo Ratan .................................... 387 Ghure v. Chhatrappal..................................... 346 Girish Vinayak Rao Naik v. S. Sagramappa Khadla ............................ 303 Girja Prasad v. Sardar Labh Singh ............... 314, 315 Girja Prasad v. State of M. P ......................... 524 Girja Shanker v. State of U. P ......................... 78 Girjadatta v. Gangatan Datta ......................... 362 Gitika Bagchi v. Subbrao Bagchi .................... 37 Gokul Chand v. Parvin Kumari .................... 100, 466, 467 Gokul Chandra Chatterjee v. The State.... ................................................ 223 Gokul Chandra v. State.................................. 237 Golam Rahman v. King ................................. 303 Golla Yelugu Govindu v. State of A.P ...................................................... 515 Gomo Rama v. Emperor ................................ 114 Gopal Krishna Jiwan Kumar v. Puran Singh......................................... 348 Gopal Krishna v. Secretary, Board of Revenue ............................................ 39 Gopal Saran v. Satyanarayan ............... 561, 562, 565, 566 Gopal Singh v. Hukum Singh ........................ 132 Gopal Singh v. State of M.P .......................... 248 Gopal v. State ................................................ 178 Gopal v. State of M.P .................................... 235 Gopala Narsimha v. Chitturer ........................ 373 Gopaldas v. Sri Thakurji.................................. 43 Gopi Krishna Das v. Anil Bose ..................... 483 Gopica Raman Roy v. Atar Singh ................. 107 Gorantha Venkataswaralu v. B. Demudua ............................................. 374 Gourang Sahu v. Maguni Devi ...................... 398 Goverdhan v. State of M.P ............................ 279 Government of Andhra Pradesh v. Karri Chinna Venkata Reddy .............. 344 Government of Bombay v. Sakur .................... 31 Govind Narain Singh v. Shyam Lal Singh ................................................... 107 Govind v. Emperor ........................................ 211 Govindsa Marotisa v. Ismail.......................... 482 Grundt and others v. The Great Boulder Proprietary Gold Mines Ltd ............................................ 505 Guanamuthu v. Anthoni ................................ 442 Gujja Lall v. Fatteh Lall ...................... 101, 293 Gulab Bhai v. Collector ....................... 215, 491 Gulab Chand v. Kudi Lal........................ 29, 427

Gulam Husain Seikh Chaughle v. Rynolds Superintendent of Custom ........................................... ....152 Gulam Hushain v. State of Delhi ................... 237 Gulam v. R ...................................................... 51 Gulshan Kallu v. Zila Parishad ...................... 468 Gura Singh v. State of Rajasthan ................... 587 Gurbachan Singh v. Satpal Singh .................. 451 Gurcharan Singh v. State of Punjab ............... 437 Gurcharan v. State of U.P ................................ 33 Gurdayal v. Smt. Malti Devi ............... 426, 435 Gurdial Singh v. Raj Kumar Aneja................ 404 Gurmej Singh v. State of Punjab ............ 63, 468 Gurmukh Singh v. Commissioner of Income-tax ............................................ 42 Guru Baru Paraia v. King .............................. 196 Guru Baswa v. Iswara.................................... 328 Gurunath Manohar Paraskar v. Nagesh Siddappa Havalgund .............. 443 Guruswami v. Inulappa ................................. 282 H H. Singh v. State of Punjab .......................... 431 H. H. Advani v. State of Maharashtra ........................................ 160 H. H.B. Gill v. Emperor .......................... 85 H. V. Nirmala v. Karnataka State Financial Corporation ......................... 487 Hadi Kirsani v. State...................................... 598 Haji Ahmad Hussain v. State ......................... 544 Haji Mohd. v. State of West Bengal ................ 43 Haji Old Eovamulha v. State of W.B ..................................................... 311 Hakim Khan v. Emperor................................ 199 Hangami Lal v. Bhura Lai ............................. 277 Hanuman Prasad v. Devendra Chand ........................................ ........ 493 Hanumant Goind Nargendkar v. State of M. P ................... 18, 19, 23, 140 Hanumant v. State of M.P ................ 18, 21, 22, 39, 160, 223 Haradhan Mahatha v. Dukhu Mahatha ................................................ 39 Harbans Singh v. State .................................. 181 Harbans Singh v. State of Punjab .................. 251 Harbansh Lal v. State of Haryana .................. 233 Harbhajan Singh v. State of J & K .................. 79 Harbhajan Singh v.' State of Punjab .............. 434

Page xxxvii

Table of Cases

Hard M.B. v. H. Electric Supply Co .............. 482 Hardayal v. Aram Singh...... .......................... 374 Harendra Nath Burman v. Suprova Burman and others .............................. 342 Harendra Sarkar v. State of Assam ................ 469 Harendra Sarkar v. State of Karnataka ............................................ 425 Hari Bag v. State ............................................. 61 Hari Chand v. Bachan Kaur........................... 377 Hari Charan v. State of Bihar ........................ 211 Hari Kishan v. State......................................... 14 Hari Lal v. Emperor....................................... 567 Hari Prasad v. Deo Narain .................... 104, 389 Hari Prasad v. State .............................. 272, 273 Hari Ram v. Emperor .................................... 594 Hari Singh Bhagat Singh v. State of Madhya Pradesh.................................... 13 Hari Singh M. Vasva v. State of Gujarat ................................................ 519 Hari Singh v. Umrao Singh ........................... 407 Hari v. Mose .................................................. 257 Harihar Prasad Singh v. Mst. of Munshi Har Prasad.............................. 107 Harihar Singh v. Deo Narain Singh ............... 280 Harijan Meha Jesha v. State of Gujarat .................................................. 21 Harischandra and others v. State of Delhi ..................................................... 34 Harish Chandra v. Emperor .................. 116, 427 Harishchandra Ladaku Thange v. State of Maharashtra ............................. 28 Harji Kaur v. State of Punjab.................... .....234 Harkhoo v. Emperor ...................................... 598 Harold v. King ............................................... 158 Haroon Haji v. State of Maharashtra ........................................ 210 Harpal Singh v. Devindar Singh ......... ......... 566 Harpal Singh v. State of M.P ......................... 279 Hasain v. Emperor .......... ............................. 179 Hasan v. Raunaq ............................................ 373 Hassan Ali v. Gurudas Kapali ....................... 367 Hastimal and Co. v. Lingeta Swami .............. 401 Hawaldar v. Emperor..................................... 164 Hawkins v. Powells Coal Co ........................... 31 Hazari Lal v. State (Delhi Adminis.) ............................................ 553 Heera v. State of Rajasthan........................ 74, 75 Heeralal Yadav v. State of M.P. and others .............. ................................... 238 Hem Raj v. The State..................................... 171 Hemant Kishore and others v. Brij Raj Kishore and others ........................ 442 Hemant Kumar v. Alauzund .......................... 282 Hemnarha Kumari Devi v. Prasanna Kumar ................................................. 494 Hemraj v. State of Ajmer............................... 171 Henry v. Bencita ............................................ 123 Henry West Huller v. State of Assam ................... .... ....... ., ............. 170 Himanshu Singh Sabharwal v. State

of M.P ................................. ........ .... 605 Himmat Sukhadeo Wahurwagh v. State of Maharashtra ........................... 517 Hingra Hazi v. Government of Kutch .................................................. 463 Hira Chand Kothari v. State of Rajasthan ............................................ 133 Hira Devi v. Official Assignee Bombay ............................................... 392 Hira Lal v. Ram Prasad ....................... 348, 351 Homas v. State............................................. 3 7 6 Homi P. Ranina v. Eruch B. Desai ................ 100 Howell v. Falmouth Boat Construction Co. Ltd........................... 487 Hubib Muhammad v. State of Hyderabad ........................................... 320 Hukum Singh v. State of Rajasthan .... ............ 18 Hunt v. Swyney. ............................................. 7 2 Hurbert P. James v. Gulam Hussain .............. 105 Husain Umra v. Dilip Singh .......................... 550 Husaniya v. Emperor ..................................... 173 Hussain v. Daleep Singh................................ 210 Hussenaiah v. Yerraiah .................................. 590 I. T. Commissioner v. Firm Muar .............. 483 In re Battu Sathalvendan ............................... 156 In re Chowdarauyya .......... ........................... 435 In re G. Barantha Rai ..................................... 576 In re Godavarthy ............................................ 302 In re Govinda ................. .............................. 194 In re Govinda Reddy........................................ 82 In re Guruswamy ......................... 242, 247, 251 In re Jaseva Appadurai .................................. 592 In re K. Rama Rao ......................................... 280 In re Karumari China Mallayya ................ .....157 In re Karun Karan........ .................................. 169 In re Karuna Thambi... .................................. 205 In re Killi Surya Narayana ............................. 536 In re Madugula Jermiah ................................. 194 In re Maneem Edukondalu ............................ 246 In re Murugan ................. ............................... 66 In re Pappath Ammal..... ................................ 433 In re Ram Chandra Reddy ............................. 604 In re Seshampam .......... ............................... 179 In re Seshaparo .............................................. 147 In re Sheshi Ahad .......................................... 442 In re Siluvai ................................................... 273 In re Sriniwas Narshimma ............................. 177

I

Page xxxviii

Evidence Act

In re Srisevuga Moopan................................... 33 In re Venal .................................................... 166 In re Vengala Reddi ...................................... 585 In re Venkanna ............................................. 190 Inayatulla v. State of Maharashtra ................ 200 Inder Pal v. State of M.P .............................. 229 Indermal v. Sub-Judge Sikandrabad ............. 494 India Electric Works v. Mrs. B.S. Montort .............................................. 511 Indian Federation of Small and Medium Newspaper v. Press Council of India ................................. 374 Indir Kumar v. State of Tripura .................... 164 Indra Mohan Brahma v. State of Assam ................................................ 597 Indra Pal Singh v. State of U.P ..................... 523 Indramal v. Subordinate Judge Secondarabad ..................................... 593 Inspector of Police, T.N. v. Palanisamy .................................. ..... 81 Intras System Pvt. Ltd. v. State of Kerala................................................. 497 Islam v. State ................................................ 597 Ismail v. Emperor ....................... ... .............. 545 Iswar Das Jain (dead) (through legal representatives) v. Sonan Lal (dead) (through legal representatives)…. 276, 351, 352, 408 J J.D. Jain v. Management, State Bank of India............................................... 335 J.J.S. Rodrigues v. Union of India ................ 483 J. Ramulu v. State of A. P............................. 250 J. Yashoda v. K. Shobha Rani ...................... 348 Jacob & Co. v. A.P. Vicumsey ..................... 401 Jadunath Singh v. The State of U. P ............. 79 Jafar Hussain v. State of Maharashtra ............................... 190, 197 Jagannath v. Emperor ................................... 463 Jagdamba Prasad v. State.............................. 66 Jagdeesh Chand v. State of Haryana............. 451 Jagdish Prasad Bawan Kumar and others v. State of M.P......................... 557 Jagdish Prasad v. Prem Lata Rai................... 13 Jagdish Prasad v. State of M.P ..................... 556 Jagdish v. State ............................................. 33 Jagga Singh v. State of Punjab ..................... 246 Jagjit Singh v. State ...................................... 175 Jagmul v. Emperor ............ ......... ............... 158 Jagroop v. Rex .............................................. 337 Jagta v. State of Haryana .......... ............. 24, 166 Jagwant Singh v. Sitan Singh ........ .............. 127 Jahanar Ali Khan v. Emperor ....................... 270 Jai Bhagwan v. Gutto ................................... 279 Jai Datta v. State of U.P....................... ........ 466 Jai Gopal v. Sheo Sagar ....................... 340 Jai Jai Ram v. Srimati Laxhmi Devi .............484 Jai Nand Dr. v. Rex ........................... ...........54 Jai Narayan Das v. Jubeda Khatun .............. 277, 278 Jai Ram Shiva Tagore v. State of Maharashtra ........................................ 557 Jai Shanker Prasad v. State of Bihar .............337

Jaigopal Singh v. Divisional Forest Officer ................................................. 139 Jailal v. Emperor................................. 174, 438 Jainand v. Rex .............................................. 229 Jameel v. State of Maharashtra .......................76 Jammu Municipality v. Puran Prakash.................................................. 14 Jamsher Ali v. State of Tripura ......................8 0 Jana v. Mohd. Akbar.....................................211 Janardan Kashinath v. Janardan Vishwanath ......................................... 351 Jang Bahadur Singh v. Shanker ....................129 Janki Narain Bhoir v. Narayan Nam Deo Kadam ....................... 361, 364, 366 Janu Quadir v. Emperor ................................257 Jarnail Singh v. State of Punjab ....................425 Jasbir Singh v. Vipin Kumar Jaggo ..............547 Jasoda Haidar v. Saitendranath .....................174 Jaswant Singh v. State ..................................241 Javed Masood v. State of Rajasthan .............588 Jayaseelam v. State of Tamil Nadu .................35 Jetha Ram v. State of Rajasthan......................50 Jey Chander v. Shyam Chand .......................104 Jhimma v. State of Mysore ...........................193 Jivan Lal Dage v. Nitmani .................. 596, 597 Jogendra Singh v. State of Haryana ..............566 Jogendra v. Lingaraj .....................................292 Joginder Singh v. State of Punjab .................524 Jokhanram v. Ram Din .....................................7 Joseph v. State of Kerala ...................... .......557 Jotinarain v. Brijnandan ....................................8 Jugal Kishore Birla v. Vishnu Harijan ..........108 Jumman Singh and others v. Sheo Darshan Singh ..................................... 133 Jurnail Singh v. State of Punjab ....................303 Juwar Singh v. State of M.P .........................565 Jwala Das v. Sant Dasi .................................140 Jyagra Mudaliyar v. Vedothonmi .................396 K. Hashim v. State of Tamil Nadu..................87 K. Krishna Chettiar v. Ambal & Co .............297 K. Padyachi v. State of Tamil Nadu ............ 147, 175 K. Papparao v. Satyanarayan ........................267

K

Page xxxix Table of Cases K. Prema S. Rao v. Yadla Shri Niwasa Rao ......................................... 451 K. Ramachandra Reddy and another v. The Public Prosecutor ..................... 252 K. Ramachandra Reddy v. Public Prosecutor ........................................... 242 K. Shanmugham v. S. Shanmugham ............. 492 K. Sundarse v. State......................... ............ 358 K. Thever v. State of T.N .............................. 586 K.A. Vist v. State of Maharashtra.................. 572 K.C. Rout v. State.......................................... 488 K.G. Prem Shankar v. Inspector of Police and others ................................. 284 K.H. Amulak v. State of Gujarat ................... 175 K.K. Jadava v. State of Gujarat ..................... 551 K.K. Umar Haji, in re .................................... 330 K.M. Rajendran v. Arul Prakasham and others ............................................ 408 K.M. Singh v. Secretary Indian University Association ........................ 133 K.P.M. Bank v. Dulhan Bibi ......................... 274 K.S. Srinivasan v. Union of India .................. 214 K.T. Palanisamy v. State of Tamil Nadu...................................................... 26 K.T. Palanisamy v. State of Tamil Nadu........ ............................................ 26 K.V. Subayya v. P.R.R.T. Co ........................ 466 K.V.G.N. v. C. Venkataramayya ..................... 41 Kailash v. State of M.P .................................. 455 Kailash v. State of U.P .................................. 151 Kajal Sen v. State of Assam ................. 232, 525 Kake Singh v. State of M. P ................. 243, 252 Kala v. Emperor ............................................ 273 Kalawati v. State of Maharashtra................... 252 Kalegura Padma Rao v. The State of A.P .............................................. 34, 518 Kali Charan v. Hardya Nath ............ ............. 140 Kali Devi v. B. Malik.! .................................. 361 Kalika Pimmal v. Rex.................................... 463 Kallu v. State of U.P ........................ 19, 24, 304 Kalyan Singh v. Smt. Chhoti and others ..................................... ........... 342 Kalyan v. Chhotal.... ............................. . ....... 354 Kamal Kanto Dass v. State ............................ 582 Kameshvvar Prasad Singh v. Rex .............. 48, 50 Kamla Kuar v. Dwarka Prasad ...................... 256 Kamta v. Chait:................................... .......... 129 Kamti Devi v: Poshi Ram ...................... ....... 450 Kanahiya v. Mst. Ram Din Kuar ............ ..... 262 Kanak Lata v. Amal Kumar........................... 466 Kanan v. State of Kerala ................................ 167 Kanchan Singh v. State of Gujarat ............... 299, 302 Kanglu Baula v. Chief Executive Officer ................................................. 483 Kanhaiya Singh v. Bhagwat Singh ................ 103 Kanhaiyalal v. Union of India ....................... 178 Kanika Bewa v. State .................................... 565 Kans Raj v. State of Punjab ................ 226, 230,

239, 454 Kanta Prasad v. Delhi Administration ............. 75 Kantilal v. Shanti Devi .................................. 443 Kanya Ram Bira Singh v. Manipur Driver's Union Association Ltd....................................................... 360 Kapeviah v. Emperor ..................................... 223 Kapildeo Mandal v. State of Bihar ............... 310, 520 Karamjit Singh v. State of Punjab ................. 540 Karan Singh (Dr.) v. State of J. & K.............. 214 Karapaya Sevai v. Mayanand ........................ 448 Karmjit Singh v. State (Delhi Administration)... ................................ 525 Karnail Singh v. State of Maharashtra ........................................ 463 Karnataka Bank v. Shamanna ........................ 493 Karupanna v. Rangaswami ............................ 256 Kasam v. Firm of Haji Jamal ........................... 56 Kashi Bai v. Vinayak..................................... 384 Kashi Prasad v. State ..................................... 117 Kashi Ram v. Emperor .................................. 190 Kashi Ram v. State of U.P ............................. 430 Kashmira Singh v. State of M.P ................... 172, 206, 210 Kashyap v. Emperor ...................... 41, 286, 561 Kasink Trading v. Union of India ................. 502, 503 Kattaya v. Emperor........................................ 187 Kedar Nath Bejoria v. State of West Bengal .......................................... 19, 129 Kedarnath v. Emperor ................................... 122 Kedamath v. Pradhan..................................... 354 Kehar Singh v. State (Delhi Administration) ......................... 589, 592 Kesar Singh v. State ...................................... 566 Kesar v. Bular ................................................ 127 Keshav Deo v. Emperor ................................ 463 Keshav Lal v. Lal Bhai T. Mills Ltd.............................. ........................ 416 Keshav Lal v. State of Madhya Pradesh..................... ......................... 302 Kesho Prasad v. Mst. Bhaygana Kunwar ........................................ ...... 107 Kesho Ram v. Pyare Lal ................................ 133 Keshva Ram v. State of Assam............ 161, 163 Khadem v. Tejarunnisa .................................. 280

Page xl Evidence Act Khageshwar Naik v. Damuni Bewa.............. 318, 466 Khalil Khan v. State of M.P ............................ 65 Kharkan v. State of U.P ................................. 288 Khijuruddin v. Emperor................................. 586 Khode Gangasar v. Swaminanda Madali ................................................. 299 Khushal Rao v. State of Bombay .................. 231, 239, 241, 242, 248, 251 Kimbka Das v. Smt. Mathabai....................... 389 King Emperor v. Abdul Wahid Khan ............ 114 King Emperor v. Bhagi and others .................. 64 King Emperor v. Nilkantha ........................... 592 King v. Baskerville ........................................ 556 King v. Horry .............................. ................... 21 Kiran Din v. Emperor .................................... 284 Kishan Lal v. Jagun Nath .............................. 252 Kishan Lal v. State of Rajasthan................. ..165, 235, 248 Kishan Singh v. State of Punjab ...................... 28 Kishore Chand v. State of H. P ..................... 151, 167, 180 Kishori Lal v. Mst. Chalti Bai ............ ..214, 459 Kishori Lal v. State of Rajasthan ............... ....563 Kishori v. Ganesh .......................................... 370 Km. Chandan and others v. Langa Bai and others...... ............ ................. 352 Koli Laxman Chana Bhai v. State of Gujarat ................................................ 587 Kori v. State............................. .................... 242 Koshal Rao v. State of Bombay..................... 225 Kotiswar Mukherjee v. Paresh Nath Mukherjee .................................. 387, 389 Kottayya v. Emperor .............. . ..................... 195 Kripa Ram v. Ayodhya Prasad ...................... 267 Kripa Shankar v. Gurudas ................ ............ 339 Kripal Singh v. Aas Kaur and others ............. 390 Kripal Singh v. State of U.P ............................ 80 Krishan Lal v. State of Haryana .................... 555 Krishna Behari v. Gulab Chand ..................... 492 Krishna Ghosh v. State of West Bengal .......... 23 Krishna Mochi v. State of Bihar ......... ........... 27 Krishna Prashad v. Baraoni Coal Concern ................................ ............. 511 Krishna Ram v. State of Rajasthan ................ 525 Krishna Swami v. Rajya Pal ............. ............ 129 Krishna v. Gobardhan Aiars .............................. 8 Krishna v. State of U.P .................................. 427 Krishna Vinumma v. Hanumantha ................ 379 Krishnan Assari Velayudhan Asari v. Parmeshwaran Pillai Madhawan Pillai .................... ............ 425 Krishnappa v. R .................................... ........ 600 Krishnayya v. Venkata Kumar ..................... 268, 269, 271 Kudappa Chetti v. Tirupathi ............ ............ 273 Kuddu v. Emperor ....... ............... ............... 196 Kujji v. State of M.P ............................. ........ 587 Kuldip Singh v. State of Punjab ...... 65, 68, 184

Kulesh Mondal v. State of West Bengal ........................................ ........ 2 7 Kulwinder Singh v. State of Punjab ................ 34 Kumari Nilofar Insaf (Dr.) v. State of Madhya Pradesh ............................. 486 Kumud Kant v. Province of Bengal ............... 103 Kundan v. Emperor ....................................... 209 Kundula Bala Subrahmanyam v. State of A.P ......................................... 235 Kunj Behari Banka v. State ........................... 464 Kunja Subudhi v. Emperor ............................ 209 Kunju alias Balachandran v. State of Tamil Nadu ......................................... 556 Kunnabdulla v. Krihnam ............................... 124 Kunpa Singher v. Puran Chandra .................. 511 Kunwar Lal v. Amar Nath ............................. 282 Kunwarpal Singh v. State .............................. 225 Kunwarpal v. Emperor .................................. 231 Kupanna Gounder v. Peruppa Gounder.. ............................................ 491 Kurappa v. State .................. ... ................... 197 Kusa v. State of Orissa .................................. 244 Kushal Rao v. State of Bombay..................... 550 Kusuma Ankama Rao v. State of A. P ......... ...23, 27, 141, 148 Kutuhgli Yadav v. State of Bihar .................... 19 L. Chorasia v. State of Maharashtra ................ 86 L.C. Goyal v. Mrs. Suresh Joshi .......... 299, 302 L.K. Koolwal v. State of Rajasthan ............... 537 L.M.G. Saleema, Smt. v. B.B. Gujaral .......... 123 L.M.L. Ltd. v. State of U.P ............................ 506 Lachhaman Ram v. State of Orissa................ 462 Lachhman v. Amrit....................................... 10 7 Lachhmi Narain v. Manak Chand .................. 104 Lachiman Singh v. State ................................ 196 Lachmandas v. Deep Chand ........................... 5 7 Lachoo Mai v. Radhey Shyam....................... 484 Lady Dinbai Dinshaw Petiti v. Dominion of India............................... 601 Laila v. Muhammed Ali ................................ 451 Lakhanv. Emperor ......................................... 527 Lakhbir Singh v. Sate of Punjab .................... 304 Lakshman Chandra Ghosh v. Emperor .............................................. 563 Lakshman v. Krishnaji................................... 367 Lakshmandas v. State ...... ......................... ... 8 3 Lakshmi Devamba v. Kesavarao ................... 491

L

Page xli

Table of Cases

Lakshmi Narain v. Aparna Deb ..................... 400 Lakshmi Raj Seth v. State of Tamil Nadu.................................... 19, 378, 380 Lakshmi Reddi v. Venkata Reddi .................. 260 Lakshmi Singh v. State of Bihar .................... 310 Lakshmi v. State .............................................. 59 Lal Chand v. Pyare Dasrath ........................... 401 Lal Chand v. State of Haryana....................... 549 Lal Khan v, Allah Ditta ................................. 351 Lal Singh v. State of U.P ................................. 78 Lala Baburam v. Kishen Dei ......................... 483 Lala Ram v. State .......................................... 246 Lalloo Bhai v. State of Gujarat .............237, 241 Lallu Manjhi v. State of Jharkhand................ 557 Lallu Singh v. State of Gujarat ...................... 183 Lalsa v. Upper District Judge, Basti .............. 467 Lalwanti v. State ............................................ 515 Lanka Lakshmanna v. Lanka Vardhanamma ..................................... 267 Latik Chand v. State ...................................... 169 Laxmi Shahu v. Ganeshi Shahu ..................... 276 Lekhraj v. Malupal ........................................ 280 Lewis v. Jones ................................................. 56 Liberty Talkies v. State of Gujarat ................ 483 Life Insurance Corporation v. O. P. Bhalla and others ................................ 485 Liladhar Ratanlal v. Holkarmal ..................... 602 Limbaji and others v. State of Maharashtra ...................... 186, 189, 461 Linga v. Ayodhya .......................................... 281 Liyakat v. State of Uttaranchal ........................ 28 Lokman Shah and others v. State of West Bengal ........................................ 152 Lucknow Improvement Trust v. P. L. Jaitly ................................................... 139 M. Govind Raju v. K. Muniswami Gounder .............................................. 448 M. Manohar v. T.R. Mills.............................. 596 M. Narsingha Rao v. State of Andhra Pradesh ..................................... 31 M. Nataraja Mudaliar v. Poona Kanummal........................................... 388 M. Srinivasalu v. State of A.P ....................... 455 M. Yovas and others v. Immanual Joseph and others ................................ 539 M.C. Agarwal v. State of Maharashtra .......................................... 21 M.C. Verghese v. T.J. Ponnan ....................... 530 M.J. Builders Pvt. Ltd. v. Radhey Shyam Sahu ........................................ 483 M.K. Usman Koya v. Santha and others .................................................. 302 M.L. Prit Chand v. Emperor .......................... 120 M.M.B. Catholics v. T. Polo Avoas .............. 427 M.P. Jairaj v. State of Karnataka..................... 50 M.P. Mathur and others v. D.T.C. and others ............... ........................... 489 M.P. Sugar Mill v. State of U.P .................... 495 M.S. Mohiuddin's case .............. .................. 552

M

M.S. Narayanan Menon v. State of Kerala........................... ...................... 328 M/s. Dagi Ram Pindi Lall v. Triloki Chand Jain .............. . ............. 1 .......... 536 M/s. Doypack Systems, Pvt. Ltd. v. Union of India ..................................... 531 M/s. Inoras System Pvt. Ltd. v. State of Kerala ............................................. 502 M/s. Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh and others .............................. 505 M/s. Raman and Raman v. State of Madras ...... ..... ................................. 489 M/s. Tungbhadra Sugar Works (P.) Ltd. v. Union oflndia........................... 502 Ma Mai v. Kallendar ............................345, 346 Madan Lal v. Principal, H.B.T. Institute ........... ...... ............................ 606 Madan Mohan v. State of Punjab .................. 546 Madar Siredar v. Emperor............................. 572 Maddanappa v. Chandrappa.......................... 482 Madho Saran v. Manna Lal ........................... 280 Madhodas v. Mukund Ram ........................... 482 Madhuri Patel v. Addl. Commissioner, Tribal Development ............................ 479 Madi Ganga v. State of Orissa ...................... 164 Magan v. State of MP ................................... 329 Magher v. State of Punjab ............................. 166 Maha Manga Devi v. Haridas ......................... 99 Maha Singh v. State ...................................... 553 Maha Singh v. State of Delhi .......................... 65 Mahabir Singh v. Rohini R.P. Singh ............. 437 Mahabir Singh v. State of Haryana ............. ..592 Mahabir v. State of Bihar .............................. 181 Mahadeo Singh v. Pudol Singh ..................... 494 Mahadeo v. King........................................... 550 Mahadeo v. State of M.P................................. 51 Maharani v. Emperor .................................... 181 Mahboob Abasabi Naddaf v. State of Karnataka........................................ 235 Mahboob Sahab v. Syed Ismail..................... 481 Mahendra Mondal v. State of Bihar .............. 195 Mahendra Pal v. State ......... .......................... 51 Mahindra v. Union of India........................... 480 Mahmood Ilahi v. State of U.P ..................... 249 Mahmood v. Stateof U. P ..................... 297, 300 Mahsaya Ganesh -Peasad v. Narendra Nath Sen .............................. 276

Page xlii

Evidence Act

Maimuna Bibi v. Rasool Mian ...................... 127 Maian Miyan v. State .................................... 232 Majid v. State of Haryana .............................. 589 Major Mistry v. Mst Nazir . Binda Devi .................................................... 400 Makkhan Singh v. Emperor ........................... 254 Mala Devi v. State of Uttarakhand .................. 23 Malappa Siddappa Alakamur v. State of Karnataka............................... 310 Malay Kumar Ganguly v. Sukumar Mukherjee .................................. 311, 346 Malik Ram Bhai v. State of Orissa ................ 233 Malkhan Singh v. Raghubir Singh................. 265 Manchalal v. Shah Manik Chand................... 383 Mandal v. Manga Ram .................................. 273 Mandavi Co-op. Bank Ltd. v. Nimesh B.Thakore .............................. 562 Manek Lal v. Hormasji .................................. 348 Mangal Rai v. Emperor ................................. 591 Mangal Singh v. State of M.B ....................... 321 Mangaladas v. State of Maharashtra ........................................ 437 Mangaleshwar Prasad v. State of Bihar ..................................................... 19 Mange v. State of Haryana ............................ 311 Mangi Lal v. Ram Dayal ............................... 346 Mangi Lal v. U.P. State ................................. 587 Mani v. Mani ................................................. 490 Mani v. State of Tamil Nadu ......................... 198 Maniben v. State of Gujarat .................. 233, 235 Manik Lal v. Hira Lal .................................... 282 Manilal Hiraman Chaudhari v. State of Maharashtra ............................. 16 Maniram v. Beharidas ................................... 494 Maniram v. State of M.P ............................... 234 Maniram. v. Behari Das................................. 494 Manish Dixit v. State of Rajasthan ................ 278 Manjunath Chennabasappa Madalli v. State of Karnataka ............... ................ ............ 18 Mannu Raja v. State of M. P ......................... 242 Manohar Lal and others v. State of Punjab ................................................. 223 Manorama v. Saroj ........................................ 343 Manoranjan Das Gupta v. Suchitra Ganguli and others .............................. 280 Mansoor Ali v. Tayeb Ali .............................. 387 Manzurul Haque v. State of Bihar ................. 566 Maritime Electric Co. v. General Dairies Ltd .................................482, 483 Markhu v. Sharai ........................................... 256 Marwari Kumhar v. Bhagwan Puri Guru Ganesh Puri................................ 353 Masalti v. State U. P ...................................... 521 Masood Khan v. State of U.P ........................ 436 Mata Baksh Singh v. Ayodhya Baksh Singh ........................................ 260 Matadin v. Emperor ........................................ 61 Mathura Prasad v. State of Punjab ................ 483 Mati Lal v. Baldeo Das ................................. 259 Matru v. State of UP ....................................... 66

Mausam Singh Roy v. State of W.B ............... 65 Maya v. Brijnath ........................................... 566 Meera Walia v. State of Himachal Pradesh...................................... 305, 306 Mehiboobsab Abbasabi Nadaf v. State of Karnataka............................... 235 Mehrban v. State of Maharashtra .................. 246 Mercantile Bank v. Central Bank....482, 495 Meria Venkata Rao v. State of A. P ................ 17 Miajan v. Empetor ........................................ 539 Milkhi Ram v. Milkhiram ............................. 466 Miller v. Madhava........................................... 42 Mira Bai v. Jai Singh .................................... 384 Mirza Akbar v. Emperor ................................. 88 Miss Rebecca Mohan v. Emperor ................. 580 Miss Srumoyu Ghosh v. State of West Bengal and others ...................... 459 Mistri Fazaldin v. Karamat Husain ................ 42, 284 Mistri v. King Emperor ................................... 67 Miya Bhai v. State.................. ..................... 599 Moddovdare Rawthor Smile v. State ................ .................................. 181 Mohabbat Ali v. Mohd. Ibrahim Khan.................................................... 467 Mohabbat v. State of M.P ............................. 521 Mohamed Bhai Rasul Bhai Malik v. Amir Bhai Rahimbhai ......................... 386 Mohan Lal and others v. State of Haryana ................................ ............. 253 Mohan Lal Chandramai v. Punjab Company Ltd ...................................... 483 Mohan Lal Pangasa v. State of U.P ................. 21 Mohan Lal v. Ajit.......................................... 160 Mohan Lal v. Ajit Singh ............................... 463 Mohan Lal v. Emperor .................................... 63 Mohan Lal v. State of U.P............................... 27 Mohan Lal v. Union of India......................... 605 Mohan Singh v. Bhanwar Lai ....................... 599 Mohan Singh v. King-Emperor ..................... 373 Mohan v. Keshav Chand ............................... 494 Mohanlal Gangaram Gehani v. State of Maharashtra ................. 243, 253 Mohd. Ahmad v. Rourffie ............................. 479 Mohd. Aman v. State of Rajasthan ............... 308 Mohd. Amin v. Hasan ................................... 107 Mohd. Arshad v. State of Maharashtra ................... ................... 235

Page xliii

Table of cases

Mohd. Asad Ali v. Sadiq Ali ......................... 260 Mohd. Azad Samin v. State of West Bengal ..... 23 Mohd. Hussain v. Daleep .............................. 211 Mohd. Inayatullah v. State of Maharashtra ..................... 186, 187, 190, 191, 192 Mohd. Jahid v. State of Tamil Nadu .............. 313 Mohd. Kalam v. State of Rajasthan ................. 77 Mohd. Rafiq v. Emperor...................... ......... 435 Mohd. Sadiq v. Emperor ............................... 598 Mohd. Sedal v. Yuhode ................................. 300 Mohd. Sharif v. Bande Ali............................. 441 Mohd. Sharif v. Sayyad Kasim ...................... 512 Mohd. Sugal Esa. v. The King....................... 515 Mohd. Usman v. State of Bihar ..................... 437 Mohd. v. King ............................................... 122 Mohd. v. Zahoor .................. . ........................ 467 Mohd. Zafar v. Zafar Husen .......................... 348 Mohinder Kuar v. Piara Singh ....................... 265 Mohinder Pal Jolly v. State of Punjab ........... 433 Mohiuddin and others v. President Municipal Committee, Kharaganj............................................ 387 Mohiuddin Khan v. Kingh Emperor .............. 598 Moqsoodan v. State of UP ............................. 251 Moti Chand v. Lalta Prasad ........................... 362 Moti Lal Roy v. Panch Bihi Industrial Bank Ltd ............................................. 121 Moti Lal v. Baldeo Das ................................. 103 Moti Lal v.Yar Md ........................................ 509 Moti Singh v. State of UP..................... 224, 229 Moti v. State ......................................... 247, 249 Motilal Padampat sugar Mills v. U.P. State .......................... 497, 501, 506 Motilal v. Kailash Narain .............................. 155 Mousam Singh Roy v. State of West Bengal ................................................... 32 Ms. Bhagwant v. State ................................... 154 Ms. Bhukkhin v. Emperor.... ......................... 154 Mst. Bhoori v. Gulab Singh ........................... 438 Mst. Biro v. Atma Ram ................................. 217 Mst. Hira Bibi v. Ram Hari Lai ..................... 365 Mst. Maharani v. Emperor.................... 175, 182 Mst. Misri v. King-Emperor .......................... 199 Mst. Munia v. Manohar Lal ........................... 510 Mst. Naima Khatun v. Basant Singh................ 91 Mst. Nanak Kaur v. Hansraj Singh ................ 367 Mst. Subbani v. Nawab ................................. 100 Mt. Bino v. Atma Ram .................................. 264 Mubark Ali Ahmad v. State of Bombay ..................................... 313, 383 Mukesh Kumar Ajmera v. State of Rajasthan ............................................ 125 Mukhtiar Singh v. State of Punjab ................. 337 Mukti Prasad v. Akkma ................... ............ 262 Mulk Raj v. State of U.P ............................... 165 Muncipal Corporation, Bombay v. Secretary of State ................................ 488 Muni Ammalwal v. Govindrajan ................... 349

Muniappan v. State of Madras ....................... 246 Municipal Board of Abu Road v. Jai Sniva ................................................... 329 Municipal Board, Bareilly v. Ram Gopal ............................................ ..... 437 Municipal Committee v. Salraisi Huji Co ............................................... 483 Municipal Corporation Delhi v. Sobhagwati ......................................... 438 Munir Ahmad v. State of Rajasthan .............. 337 Munna Lal v. Kashi Bai................................. 389 Munna Raja v. State of M.P ........ 233, 249, 252 Munshi Prasad and others v. State of Bihar ........................................ 93, 525 Munshi Ram v. Delhi Administratioin .......... 433 Murli alias Denny v. State of Rajasthan ............................................ 175 Murli Singh v. Rex ........................................ 273 Muthu Goundan v. Chinniah ......................... 593 Muthu Kutty v. State by Inspector of Police .................................................. 235 Muthu Swami v. State of Madras..... ......... ....169 Muzzafar v. Emperor ..................................... 251 N. Chandhin v. R. G. Lallo ............................ 380 N. Jayaraman v. State of Tamil Nadu...................................................... 33 N. Kamalam (dead) v. Ayya Swamy ............. 362 N. Nagarjan v. State of T.N ........................... 181 Nabi Mohd. v. State of Maharashtra .............. 209 Naga Rega v. Koothuppan ............................. 255 Nagalakshmi v. Thirugrianasambandam alias Gnanam......................... 442 Nagappa Dondiba v. State of Karnataka ............................................ 462 Nagesia v. State of Bihar ............................... 142 Nagu Bai v. Shama Rao....................... 213, 494 Nagu Jhalla v. Emperor ................................. 174 Naima Khatun v. Basant Singh........................ 92 Najjam Faruqui alias Najjam Faruqui v. State of West Bengal............. 220, 230 Naladhar Mahapatra v. Shiv Ram and others ............................................ 374 Nallam Setty Yanadaiah v. State of A. P ............ ................................ 525 Nanday v. Rakhala Anande ............................. 40 Nanhu Ram v. State of M.P ......... 237, 243, 253 Narain Chet Raj Chaudhary v. State of Maharashtra .................................... 555

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Narain Prasad Aggarwal v. State of M.P ............................. ...................... 443 Narain Rao v. State of Andhra Pradesh................................................ 173 Narain Singh v. Mait Ram ............................. 105 Narain Singh v. State of Bihar ....................... 223 Narain v. Gopal .................................... 214, 424 Narain v. Kutch Government......................... 202 Naraindas v. Papammal ................................. 409 Narasoyyanna v. Rattamma ........................... 269 Narayan Swami v. Emperor........................... 146 Narayan v. State of Maharashtra...................... 61 Narayan v. State of Punjab .... ....................... 607 Narayana Swamy v. Emperor ............... 142, 231 Narendra Nath Mukherjee v. State ................ 529 Narendra Nath v. Sanyasi Charan .................. 102 Narinder Chand v. Union Territory ............... 489 Narpal Singh v. State of Haryana .................. 190 Narsimhman v. State...................................... 436 Naseem Ahmed v. Delhi Administration ...................................... 21 Nasib Singh v. Emperor................................. 272 Nasir Ali v. State of U.P ................................ 174 Nasir Khan v. State of Chhattisgarh .............. 565 Nasir v. Emperor ........................................... 154 Nasiruddin v. Emperor .................................... 51 Natha Singh v. Emperor .................................. 61 Nathu v. State ................................................ 211 Nathulal v. Durga .......................................... 128 National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board ............. 485 Naval Kishor Somani v. Poonam Somani ................................................. 3 2 Nawab Singh v. Inderjit Singh Kaur .............. 349 Navvabuddin alias Nawab v. State of Delhi ....................................... ...... 198 Nayansukhdas v. Govardhan Das .................. 481 Nazir Khan and others v. Ram Mohan Lal and another ....................... 400 Nazir v. Emperor ........................................... 154 Neel Kanth Singh v. Thambal Devi ............... 443 Negesia v. State ............................................. 173 Neminath v. Jamboo Rao............................... 565 New Delhi M. Co. v. H.S. Rikhi .................... 483 Nga Ba Mim v. Emperor ............................... 224 Nihal Jha v. Derbdeo ...................................... 9 7 Nihor v. Anathnoth ........................................ 490 Nilambia v. State ........................................... 437 Nirkar Das v. Gourhari Das ........................... 428 Nirmal Kumar v. State of UP ............... 197, 515 Nirmal Singh v. State of Haryana .................. 266 Nirmala v. Hari Singh...................................... 13 Nisar Ali v. State of U.P ................................. 33 Nishikant v. State of Bihar .................. 147, 160, 161, 175

Nitai Chandra Jaria v. Emperor ..................... 146 Nityanand Sharma v. State of Bihar .............. 328 Nivrutti Pandurang Kokate v. State of Maharashta ........................... 517, 518 Noor Mohammad v. Emperor ......................... 71 Noor Mohammad v. Kareem......................... 279 Noor Mohd. v. Imtiaz Ahmad ......................... 50 Om Prakash v. State of Punjab .............229, 519 Om Prakash v. State of U.P.................. 142, 143 Onkar Bhikharam v. Javarchand ................... 564 Onkar v. State of Madhya Pradesh ................ 223 Orient Paper Mills v. Union of India .................................................... 533 Oudh Kishore v. Ram Gopal ......................... 215 P. Amarappa v. State of Karnataka.. ............. 459 P. C. Purshottam v. S. Perumal ..................... 360 P. Mani v. State of Tamil Nadu........... 243, 452 P. Rustamji v. State of Maharashtra ............. 156, 174 P. Shekharappa v. Election Commission of India, New Delhi ................................................... 469 P. v. P ..................................................... ..... 564 P.B. Bhalla v. v.R. Thakkar .......................... 396 P.B. v. State of A.P ....................................... 226 P.C. Purshottamma v. S. Pirumall ................. 354 P.G. Anant Sayanam v. Miriyala Sethu Raju........................................... 539 P.J. Chacko v. Chairman, LIC of India ......... 485 P.K. Gupta v. Varindar Sharma .................... 351 P.K. Singh v. State of Manipur ..................... 170 P.R. Ramakrishan v. Subba Ramma ............. 540 P.V. Shahu v. Maiakutty ............................... 447 Padala Veera Reddy v. State of A.P .......... 18, 22 Padam Pradhan v. State.......... ..................... 173 Padam Prasad v. Emperor .. .......................... 379 Padappa v. Shivalingappa. ............................ 354 Padyachi v. State of Tamil Nadu................... 142 Pakala Narain Swami v. Emperor ................ 173, 223, 224, 225 Palvendra Kaur v. State of Punjab ............... 140, 144, 160 Pammer v. Mayor, R.C of Wellinton ............ 488 Pammi alias Brijendra Singh v. Govt. of Madhya Pradesh ............................... 77 Pan Aduthan v. Deputy Director Narcotic Control Bureau ..................... 525

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Page xlv Table of Cases Pancham Yadav v. State of U.P ..................... 249 Panchanan Chandra v. Smt. Kamla Bishwas ..................... ........................ 442 Pandappa Mahalingappa v. Sivalingappa Murteppa and others .................................................. 388 Pandharinath v. State of Maharashtra ........................................ 469 Pandru Khadia v. State of Orissa .......... 144, 145 Pandu Rang Kaiu Patil v. State of Maharashtra ........................ 24, 185, 188 Pandurang v. Ram Chandra ........................... 468 Paniben (Smt.) v. The State of Madhya Pradesh.................................. 252 Panna Lal v. Nanigopal Biswas ..................... 597 Pannayar v. State of Tamil Nadu ................... 568 Panu v. State .................................................. 170 Paramjit Singh alias Mithu Singh v. State of Punjab ...................................... 16 Paras Ram v. State ........................................... 65 Parasadi v. State ............................................ 463 Parat v. Bissessar ............................ ............. 299 Paraya Allayya Hittalmani v. Parayya Gurulingayya Poojari.............................................. ...412 Parbati v. Purno ............................................. 280 Parendhamayya v. S. Temple Kotipalli....494 Paresh Kalyandas v. Sadiq Yaqubbhai ........................................... 525 Parkash Chand v. State of Delhi ...................... 65 Parmanand v. Emperor ......................... 231, 248 Parmatha v. Tarini Charan ............................. 354 Parmeshwari Devi v. State............................. 568 Parshadi v. State of U.P ................... 19, 24, 188 Parshotam Das v. State .................................... 14 Partab Singh v. Gulzare Lal ................... .......... 7 Pashki v. State ............................................... 196 Patangi Balarama Venkata Ganesh v. State of A.P .............................. 76, 300 Patel Hira Lal Joita Ram v. State of Gujarat ....................................... 222, 224 Patinhare Purayil Nabesumnia v. Miniyatan Zacharias ........................... 444 Paulose v. State of Kerala .............................. 172 Pawan Kumar v. State of Haryana ................. 338 Permanand v. Champa Lai............................. 479 Pershady v. State ............................................. 31 Perumal Chettiar v. Ram Kashi Ammal .......... .................................... 400 Peryasami Kachirayer v. Verdappa Kachirayer........................................... 102 Phoolkishori v. Nobin Chandra ..................... 274 Piara Singh v. State of Punjab ....................... 166 Pira Mall v. Dev Rajan .................................. 288 Plasmac Machine Manufacturing Co. v. Collector of Excise ................... 482 Pompiah v. State of Mysore .......................... 241 Poonam Chandraiah v. State of A. P .............. 34, 521 Popat Lal v. Kalidas ...................................... 484 Prabhoo v. State of U.P ................................. 188 Prabhu v. Emperor......................................... 432 Prabhudayal v. Mahanlal ........... ................... 484 Pradeep Kumar v. Mahaveer

Prasad.............. .................................. 416 Pradumansingh Kalubha v. State of Gujarat ................................................ 197 Prafulla Kumar Sirkar v. Emperor ................. 584 Prahlad Singh v. State of Madhya Pradesh.................................................. 79 Prakash Chand Sogani v. The State of Rajasthan .......................................... 79 Prakash Chand v. State .................................. 553 Prakash Chand v. State of Delhi ...................... 67 Prakash v. State of Maharashtra ................... 576, 578, 579 Pramod Mandal v. State of Bihar .................... 78 Prasad v. Mst. Sugari ..................................... 467 Pratap Neni Ravi Kumar alias Ravi Kumar and others v. State of Andhra Pradesh ................................... 234 Pratap Singh v. Biharidas .............................. 397 Pratap Singh v. Rajendra Singh ....................... 96 Pratap Singh v. State.........................49, 56, 255 Pratap Singh v. State of M.P............................ 49 Pratap Singh v. State of Punjab ............ ......... 57 345, 590 Pratap v. State of U.P .................................... 431 Pravesh Chandra Dalvi and others v. Biswanath Banerjee and others ................ ................................ 475 Preetam Singh v. State of U.P ............. 244, 248 Prem Chand and others v. State of U.P ...................................................... 250 Prem Kanwar v. State of Rajasthan ............... 455 Prem Narain v. State ........................................ 61 Prem Singh v. State of Haryana..................... 523 Pridhan Paul v. Paresh Chandra Ghosh ........ .. ....................................... 374 Pritam Singh v. State ............. 68, 232, 247, 248 Pritam Singh v. State of M.P ......................... 184 Pritam Singh v. State of Punjab .............. 13, 308 Prithi Chand v. State of H. P ......................... 221 Profulla Kumar Sarkar and others v. Emperor ................................... ..... 587 Protima Dutta and another v. The State .............................. .................... 223 Province of Bihar v. Rameshwar Prasad Singh ....................................... 585 Provincial Government v. Jagan Bhat..................................................... 246

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Public Prosecutor v. I.C. Lingial ..................... 82 Public Prosecutor v. Paramasivan.................. 179 Pulpil Singh v. State .................... ................ 463 Pulukuri Kottayya v. Emperor .............. 188, 192 Punanda Venkateswara v. C.V. Ramai .................................................. 466 Punnu Swamy v. Surga Ram ......................... 604 Puran Chand v. Durlava Chand ..................... 100 Puran Chandra v. Kali Das ............................ 397 Puran Singh v. Emperor................................. 190 Pursutam Naik v. Chakradhar ........................ 587 Puttu v. Emperor............................................ 196 Pvare Lal v. State of Rajasthan ..................... 154, 155, 156 Pyare Mohan v. State..................................... 551 Queen Empress v. Babul ............. 193, 196, 199 Queen Empress v. Hari Lakshman ................ 604 Queen Empress v. Ishari ................................ 604 Queen Empress v. Sitaram............................. 598 Queen v. Abdullah ........................... 64, 67, 236 Queen v. Horh Nala ......................................... 19 Queen v. Lukhini Agradanini ........................ 434 Qurbanali v. Government of Rajasthan ............................................ 483 R v. Ram Chandra ........................................... 42 R. Janaki Raman v. State ............................... 407 R. Ramanna v. State ...................................... 536 R. v. Abdullah ................................................. 40 R. v. Babul..................................... .............. 196 R. v. Barke..................................................... 273 R. v. Basvvanta..................................... 153, 154 R. v. Bedingfied............................................... 48 R.v. Bhim ...................................................... 179 R. v. Christie.................................................... 48 R. v. Gulam Mustafa ..................................... 578 R. v. Harigurvan Balaji.................................. 120 R. v. Harissan Orient ..................................... 122 R. v. Hurri Bob .............................................. 179 R. v. Jenkins .................................................. 230 R. v. Lester .................................................... 182 R. v. Maqsud Ali ............................................. 14 R. v. Mulu..................... ................................ 273 R. v. Panchkawari .......................................... 154 R. v. Panchu .................................................... 40 R. v. Pearce..................................................... 7 3 R. v. Rami...................................................... 271 R. v. Raveendran ........................................... 306 R. v. Vigiram ................................................. 117 R.C. R. institute v. State ............................. .....97 R.C. Sood & Co. v. Union of India ............... 489 R.C.B. Institution v. State .............................. 256 R.K. Dalmia v. Administration of Delhi ......................................... 155, 194 R.M. Maheshwari v. Municipal Committee Pipana ............................... 483 R.M. Malkani v. State of Maharashtra ................................. 57, 573

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R.M. Pande v. Automobile Products of India................................................ 343 Radha Krishna v. Ramannu ........................... 493 Radhe Mohan v. Bare Lal .............................. 288 Radhey and others v. Board of Revenue, U.P ...................................... 373 Rafiuddin v. Yashoda Bai ............. ............... 466 Raggha v. Emperor ........................................ 154 Raghavmma v. Chenchamma ........................ 426 Raghbir Singh v. State of Haryana ................. 433 Raghevendra v. Venkataswami ...................... 438 Raghni Singh v. R .......................................... 598 Raghunandan v. State of U.P ......................... 604 Raghunath Parmeshwar Pandit Rao Mali v. Eknath Gajanan Kulkarni .............................................. 447 Raghunath Pradhani v. Damodar Mahapatra ........................................... 495 Raghunath Tiwary v. Rama Kant Tiwary ................................................. 398 Raghunath v. R .............................................. 120 Raghunath v. State of U.P .............................. 130 Raghuraj Prasad Singh v. Basudeo Singh ........................... ...................... 494 Rahan Lalu v. Emperor .................................... 71 Rahim Khan v. Khurshed ....................... 30, 314 Rahman v. State of U.P .................................... 66 Rahmanul Hassan v. Zahurul Hassan ................................................. 213 Raj Bahadur Lal v. Government of U.P ...................................................... 568 Raj Bahadur v. Raghuvir................................ 140 Raj Kumar Gupta v. Desraj ............................ 381 Raj Kumar Karwal v. Union of India .................................................... 176 Raj Kumar Rajindra Singh v. State of Himachal Pradesh ..................... 404, 412 Raj Kumar v. Ram Sundar ............................. 567 Raj Kumar v. State ................. ...................... 489 Raj Kumar v. Union of India ......................... 177 Raj Narain v. Smt. Indira tandhi ................... 530, 531, 532, 534, 601 Raja Khime v. State of Saurashtra ................. 197 Raja Muttan Kalu v. Penasami ....................... 372 Raja Ram Jaiswal v. Ganesh Prasad ............. 395, 396 Raja Ram v. Raja of Pittapur ......................... 108 Raja Ram v. State of Bihar............................. 178

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Table of Cases

Rajanikant v. State ........ ..................... 188, 209 Rajbabu and another v. State of M.P., .......................................... 452, 453 Rajendar Singh v. The State .............................83 Rajendra Kumar v. The State of Punjab ................................................... 61 Rajendra Ram v. Devendradas ............... 99, 473 Rajendra Singh v. Ram Govind .......................96 Rajesh Govind Jagesha v. State of Maharashtra .......................................... 77 Rajesh Kumar v. State of H. P .......................520 Rajeshwari Kaur v. Rai Bal Krishna................................................ 602 Rajindera Kumar v. The State ........................223 Rajindra Singh v. State of U. P ........................93 Rajmangal v. Mathura .......... ........................366 Rajo George v. Dy. Supdt. of Police ..............304 Raju v. State .....................................................23 Rakesh Kumar alias Suresh Chandra v. Mewa Ram son of Kala Ram.......................................... ......... 276 Ram Adhar v. Janki........................................317 Ram Adhin v. Ram Dayal ..............................602 Ram Autar v. State of Delhi Adm ....................26 Ram Bandhu v. Brahmanand ............................ 7 Ram Bharose v. State .....................................459 Ram Bharose v. State of U.P.................. 19, 529 Ram Bhukan v. State of U.P ..........................526 Ram Bihari Yadav v. State of Bihar ................41, 220, 221, 232, 242, 249 Ram Chand v. State of U.P .................. 159, 162 Ram Chander v. State of Haryana ..................603 Ram Chandra Reddy v. State of Maharashtra ........................................ 304 Ram Chandra Sukharam Mahajan v. Damodar Trimbak Tanksale................ 354 Ram Chandra v. Emperor............ 529, 596, 598 Ram Chandra v. State of U.P ...... 161, 163, 311 Ram Charan v. State ......................................177 Ram Chetty v. Panchammal ...........................399 Ram Das v. State ..............................................49 Ram Deo Chauhan alias Raj Nath .................281 Ram Deo Ram Yadav v. State of Bihar ..................................................... 73 Ram Dev v. State of U.P ................................311 Rair Din v. Emperor.......................................156 Ram Hazur Pandey v. State............................514 Ram Jaiswal v. State of Bihar ........................177 Ram Jas v. Surendra Nath ..............................392 Ram Jonam Singh v. State of Bihar ...............553 Ram Khelawan Singh v. Maharaja of Benaras ........................................... 494 Ram Khilari v. State of Rajasthan ..................150 Ram Kishan v. Bombay State ........ .... 187, 193 Ram Kishor v. Union of India ....................... 283 Ram Kishore v. Kabindra.............................. 291 Ram Kripal Chaudhari v. Musammat Manabasi Kumari ............. 106 Ram Krishana v. Gajadhar ............................ 100 Ram Krishna Ram Nath v. Union of

India .................................................... 438 Ram Krishna Ranga Rana Bahadur v. Venkata Suryanarayana Rao ............... 103 Ram Kumar v. State of Delhi ........................ 524 Ram Kumar v. State of M.P ............................ 96 Ram Lochan v. Makha Sethani ..................... 277 Ram Manorath and others v. State of U.P ........................................ 243, 252 Ram Milen v. Sher Bahadur .......................... 389 Ram Nadan v. Tilak Dhari ............................ 259 Ram Nahak v. Sita Dakvani .......................... 366 Ram Narain Popti case .................................... 87 Ram Narain v. Kedar Nath ............................ 407 Ram Narain v. State of U.P ........................... 303 Ram Nath Mahto v. State of Bihar .................. 79 Ram Niwas v. State ....................................... 482 Ram Prakash v. State of Punjab .................... 210 Ram Prasad v. Magan Singh ......................... 279 Ram Prasad v. State of Maharashtra ............ 251, 591, 592 Ram Ratan v. State of Rajasthan ............ 33, 593 Ram Rati Kuer v. Dwarika Prasad .......... .....440, 459, 467, 468 Ram Reddi v. Seshu Reddi............................ 271 Ram Sahai and others v. Jai Prakash and others ............................................ 134 Ram Sarup v. Ram Saran .............................. 491 Ram Shanker v. MG School.......................... 397 Ram Singh v. Ram Singh (Col.)...................... 14 Ram Singh v. Sonia......................149, 182, 227 Ram Singh v. State (Delhi Admn.) ............... 237 Ram Singh v. State........................................ 147 Ram Singh v. State of M. P ........................... 521 Ram Singh v. State of U.P ...................164, 166 Ram Sumiran Panda v. Emperor ................... 114 Ram Swami Reddi v. Emperor........................ 68 Ram Swaroop and others v. State of U.P ...................................................... 300 Ram Swaroop v. Emperor ............................. 208 Ram Swaroop v. State of Rajasthan ............... 15, 311 Ram Swarup v. State ....................................... 12 Rama Reddy v. V.V. Giri .............................. 590 Rama Swami v. Appu .................. ................ 101 Ramakrishna v. Gangadhar ........................... 108 Ramakuer v. Nagesam .................................. 572 Raman Lal v. State of Bombay ..................... 551

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Raman Pillai v. Krishna Pillai ....................... 287 Ramanamma v. Golusu ................................. 288 Ramanand v. State of Himachal Pradesh.................................................. 26 Ramanand Yadav v. Prabhu Nath Jha ............................. . ........................ 311 Ramanathan v. Karuguppa ............................ 256 Rarriareddy Rajesh Khanna Reddy v. State A.P ......................... .. .................. 27 Ramavati Devi v. State of Bihar .................... 252 Ramesh Krishna Madhusudan Nayar v. State of Maharashtra ........................................ 556 Rameshwar Dass v. State of Punjab .............. 455 Rameshwar Kalyan Singh v. State of Rajasthan............................... .....514, 516 Rameshwar Prasad v. Rex ............................... 68 Rameshwar Singh v. State of J & K ................ 75 Rameshwar v. State of Rajasthan ................. 514, 555, 591 Ramgapa Govindam v. Emperor ................... 330 Ramgopal v. State of Maharashtra.................. .21 Ramji Dayawala sons Ltd. v. Invest Import ................................................. 427 Ramji v. Manahar ........................................ 107 Ramkant Rai v. Madan Rai............................ 310 Ram kishan v. State of Bombay .................... 200 Ramlal v. State of Bombay ............................ 553 Rammappa v. Bojjappa ................................. 377 Rammi alias Rameshwar v. State of M.P ...... ....................................523, 568 Rammurti v. Subbarao ................................... 254 Ramnaresh v. Emperor ...................................... 5 Ramnath v. State of M.P................................ 247 Ramo Reddy v. V.V. Giri ................................ 57 Ramsden v. Dyson ......................................... 488 Ramvir v. State of U.P ................................... 527 Ramzan v. Emperor ....................................... 116 Rana Karan v. Mangal Sen ............................ 561 Rana Pratap Singh v. State of Haryana .......................................... 526 Ranagavyar v. Innasenulla Mudali .................. 89 Ranbir v. State of Punjab ................................. 30 Ranchhoddas v. Bapu .......... ......................... 101 Rangappa Goundan v. Emperor..................... 598 Rangappa Hanamppa v. State ............... 203, 204 Rangayyan v. Innasimuthu .................. 101, 102, 105, 259 Rangi Lal v. State of U.P ................................. 61 Ranian v. Singh ............................................. 484 Ranjeet Singh v. State of Rajasthan ............... 549 Ranjit Ram v. State ........................................ 372 Rasheed Beg v. State ot M. P ...... 241, 243, 252 Rasipuram Union v. Commissioner of Income-tax ...................................... 376 Ratan Gond v. The State of Bihar ................ 154, 223, 227 Ratan Lal v. Hari Shankar .............................397 Rati Singh v. Ram Prasad ............................ 408

Ratna Sabbapathy Gounda v. Public Prosecutor ................. ........................ 585 Ravi alias Ravichandran v. State ................... 76 Ravi Chandra v. State of Orissa ................... 232 Ravi Kumar alias Kotti Ravi v. State of Tamil Nadu ....... ................ .......... 234 Ravi v. State Rep. by Inspector of Police .................................................. 558 Ravinder Sharma v. State of Punjab............. 489 Ravindra Santa Ram Sawant v. State of Maharashtra ........................... 524 Ravindra Singh v. State of Haryana .............. 548 Ravishwar Manjni v. State of Jharkhand ............................................ 524 Reghovan Pillai v. Gauri Kuttiamma .......................................... 449 Republic of India v. G.A.N. Rajan ................597 Rex v. Rhoder ...............................................122 Riayaddi Shankar v. Ganga Charan ..............259 Richard Gillie v. Posho Ltd............................ 50 Rishikesh v. State ......................................... 432 Rit Varma v. Emperor ...................................129 Rita Lal v . Raj Kumar Singh ........................510 Rizan and others v. State of Chattisgarh through Chief Secretary, Govt. of Chattisgarh, Raipur ................................................. 432 Roberson v. Minister of Executive Action Persons .......................... 487, 503 Rohit Singh v. State of Bihar ........................390 Rohtas Industries v. P.N. Gour...................... 491 Rokham Lakshmi v. Rokham Venkata ............................................... 317 Roland Ady v. Administrator Burma ........... 409 Rony alias Ronald James Alwaris v. State of Maharashtra .................... 77, 463 Roop Chand v. Mahabir Parshad................... 596 Roop Rao v. Ram Rao.................... .............. 362 Rosnan Bibi v. Joint Secretary Government of T.N ............................. 184 Roshan Lal v. Union of India ........................154 Rumi Dhar v. State of West Bengal .............. 293 Rutten v. Regina............................................. 48 S S. Ajaramma Bibi alias S. Hajaram Bibi and others v. S. Khursheed Begum and others ............. 448 S. Babbu v. State of M.P ............................... 188 S. Bhattacharjee v. Sentinel Assurance Co ............................... ...................... 129 S. Gopala Reddy v. State of Andhra Pradesh.......................... .................... 309

Page xlix

Table of Cases

S. Murugesan and others v. S. Pethaperumal ...................................... 583 S. Ram Krishna Pillai v. Tirunarayan ............ 260 S. Saktivel (dead) Rep. by L.R. v. Venugopal Pillai ................................. 411 S.B.S. v. State of Maharashtra ....................... 226 S.C. Miter v. State ................................ 129, 565 S.C. Vassant Kumar Radha Kishan v. Board of Trustees of the Port of Bombay ................................... 499 S.J. Chaudhary v. The State........................... 530 S.J. Ebenezer v. Velaya Dhan........................ 426 S M. Jakati v. S.M. Borkar ............................ 292 S.N. Balkrishna v. Fernandez ........................ 380 S.N. Ghoshal v. Ena Datta ............................. 443 S.P. Bhatnagar v. State of Maharashtra .......................................... 19 S.P. Chengalvaraya Naidu v. Jagannath ............................................ 294 S.P. Devaraji v. State of Karnataka ............... 233 S.P. Gupta & others v. President of India & others ..................................... 533 S.S Pillai v. K. S. Pillai.................................. 492 Sabakhan v. Kurbhan Pathan ......................... 525 Sabitri Devi v. R.R. Bijay Prasad Singh ................................................... 255 Sachindra Nath v. Nilima .............................. 565 Sadashiv Mahadeo Yavaluaje & Gajanan Shripatrao Salokhe v. btate of Maharashtra ....................... 552 Sadasivadas v. State......................................... 82 Sadeppa Gireppa v. Emperor ......................... 566 Sadhu Singh v. Sant Narayan Singh .............. 564 Sago Rai v. Ramji Singh ................................... 5 Saharanpur Municipality v. Dhian Singh ................................................... 437 Sahoov. State of U.P.................... 142, 145, 149 Sahu Madho Das v. Mukund Ram........ ......... 492 Said Ali v. Emperor ................................ ..... 459 Sailendra Nath v. State .................................. 372 Sajdar v. Emperor .......................................... 174 Sajjad v. Mohammad ..................................... 467 Sakharam v. State of M.P .......................... 62, 95 Sakharam v. State of Maharastra ................... 172 Salag Ram v. Emperor........ ......................... 567 Sales Tax Officer v. Kanhaiya Lal 480, 483 Samadhan Dhudaka v. State of Maharashtra .............................. ..........233 Saman Ali v. Emperor ................................... 586 Samarpuri v. Shyam Narain........................... 108 Sambhu B. v. State of Madhya Pradesh................................................ 243 Samrendra v. Calcutta University .................. 482 Samundar Singh v. State.................................. 86 Sanatan Daw v. Dasarathi Tah ...................... 565 Sanatan Gauda v. Baharampur University ........................................... 485 Sandeep v. State of Haryana ......................... 519 Saney Lal v. Darb Deo .................................. 105 Sangam Lal v. Ganga Deen and others .................................................. 388 Sangeeta Balkrishna Kadum v. Bai Krishna Ram Chandra

Kadam ................................................... 89 Sanjay alias Kaka v. State of Delhi.............. 198, 461 Sankaranarayan v. The State of Kerala.................................................. 489 Sankhali Dhal v. Nilmani Dei ....................... 318 Sanmugam alias Kulandai Vellu v. State of Tamil Nadu ............................ 238 Santokhben Sharmnbhai Ladeja v. State of Gujarat ......................... 304, 305 Sarad v. State of Maharashtra ......................... 27 Sarat Chandra Dey v. Gopal Chander Laha .................... 476, 478, 481 Sardul Singh v. State of Bombay ....... 64, 66, 88 Sariatullah v. Prannath .................................. 100 Sarjug Prasad v. State.................................... 587 Sarvan Singh v. State of Punjab ............. 16, 170 Sarvesh Narain Shukla v. Daroga Singh ............................................ 16, 516 Satish Ambanna Bansode v. State of Maharashtra ........................................ 233 Satish Chandra Mishra v. Jogendra ............... 365 Satish Chandra v. Emperor ........................... 565 Satnarain v. Union of India ........................... 498 Satpaul v. Delhi Administration .................... 586 Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju .................. 127, 289 Satvir v. State of Uttar Pradesh ..................... 522 Satya v. Teja Singh ....................................... 294 Satyanarayana Setty, N.C. v. Smt. Nagaratnamma... ................................. 564 Satyavir v. State ..................................... 93, 437 Savitri v. Karthyayani Amma .............. 363, 425 Sawal Das v. State of Bihar............... 48, 49, 52, 436, 468 Seddheswar Ganguli v. State of West Bengal ........................................ 464 Seema Smt. v. Ashwani Kumar ........... 377, 467 Seetharamayya v. Chandrayya ...................... 492 Seheshanna v. State of Maharashtra .............. 550 Sella Muthu v. Palla Muthu ................. 116, 304 Selvi v. State of Karnataka ............................ 306 Sen v. Chunni Lal ......................................... 129 Serain v. Sunder ............................... . ........... 140 Seth Ramdayal Jat v. Laxmi Prasad .............. 293 Sewanti Lal v. State of Maharashtra .............. 158

Page l

Evidence Act

Shaik Nagoor v. State of A. P ........................ 242 Shaikh Rafiq v. State of Maharashtra ............ 250 Shaikh Umar Ahmad Shaikh and others v. State of Maharashtra............... 81 Shailendra Kumar Roy v. Territory of Tripura.. .......................................... 566 Shakuntala v. State of Haryana ............ 221, 241 Shambhu Nath Misra v. State of Ajmer .................................................. 436 Shamboo v. Emperor ..................................... 209 Shamsher Jang Bahadur v. Chartered Bank of India ...................... 343 Shamsher v. Rustam ...................................... 136 Shamu Balu Chagule v. State of Maharashtra .......................................... 21 Shankaia v. State of Rajasthan ....................... 158 Shankar Bardh v. Shankar Babaji .................. 407 Shankar Lal v. State of Maharashtra .......................................... 95 Shankar Lal v. Vijai shankar .......................... 514 Shankaria v. State of Rajasthan............ 160, 170 Shankarial Gyarasilal Dixit v. State of Maharashtra ............................. 21 Shanmugam alias Kulandai Vellu v. State of Tamii Nadu ............................ 244 Shanti v. State ................................................ 205 Snarad Birdichand Sarda v. State of Maharashtra .............. 18, 19, 21, 22, 222 Sharad v. State of Maharashtra .............. 19, 237 Sharada Talkies (Firm) v. Madhulata Vyas .................................................... 351 Sharif v. Emperor........................................... 163 Sharma Transport v. Govt. of A.P.................. 502 Sharvvam Bhadaji Bhirad v. State of Maharashtra ........................................ 252 Shashi Kumar v. Subodh Kumar.................... 364 Sheikh Ebadat Ali v. Mohd. Farea ................. 361 Sheikh Zakir v. State of Bihar........................ 555 Sheo Bahadur Singh v. State of Uttar Pradesh ...................................... 552 Sheo Lal v. Chet Ram .................................... 389 Sheo Mishra v. Ram Prasad ........................... 279 Sheo Narayan v. State of Maharashtra .......................................... 87 Sheo Prasad v. Nilvaji Bali ............................ 510 Sheobalak v. Gaya Prasad .............................. 280 Sheokali Goswami v. Emperor ...................... 114 Sheoraj v. A.P. Batra.......................................... 3 Sheoraj v. State .............................................. 380 Sher Singh v. State of Punjab......................... 244 Sheroo v. Emperor ......................................... 209 Shira v. Emperor ............................................ 463 Shital Chandra v. State................................... 174 Shital Das v. Sant Rami ........................108, 389 Shiv Kumar and others v. The State of Uttar Pradesh .................................. 223 Shiv Kumar Tiwari deceased represented by L.R. v. Jagat

Narain Rai and others.......................... 486 Shiv Kumar v. State .......................................150 Shiv Ram v. Sh Cham ....................................140 Shiva Bahadur Singh v. State of U.P ........................................................ 67 Shiva Karam Payaswami Tewari v. State of Maharashtra ........................... 149 Shiva Nath Prasad v. Sarju Nonia and another.......................................... 400 Shivacharan Das. v. Golabchand ...................540 Shivaji alias Dadya Shankar Alhat v. State of Maharashtra ......................... 24 Shivaji Sahebrao Babade v. State of Maharashtra .......................................... 22 Shivappa v. State of Karnataka ............ 141, 310 Shiwa Lal v. Chet Ram ..................................379 Shondhan Lal v. Narendra Baladin ................485 Shri Krishen Dutt Dubey v. Musammat Ahmadi Bibi and others ...................... 266 Shri Krishna v. Kurkshetra University ........................................... 137 Shri Niwas Mali v. Emperor ..........................551 Shri Niwas v. Narain ......................................107 Shrichand Gupta v. Guljar Singh ...................130 Shrijee Sales Corporation and another v. Union of India .................... 503 Shwaram v. Shiv Charan Singh .....................483 Shyam Lal v. Sanjeev Kumar .............. 374, 447 Shyam Nandan Singh v. State of Bihar ............52 Shyam Pratap Singh v. Collector of Etawah ................................................ 279 Shyam Sunder Chokhani alias Chandan v. Kajal Kanti Biswas .......... 372 Siddhapal Kamala Yadav v. State of Maharashtra ........................................ 433 Siddheshwar Nath v. Emperor .......................146 Sidik Sumar v. Emperor...................................54 Sim v. Anglo American Telegraph Co ...........482 Simen v. State of Karnataka.............................76 Singhleshwar v. Ajab Lai ...............................399 Sisir Kumar v. State of West Bengal ................ 3 Sita Ji v. Bijendra Narayan ............................317 Sita Ram v. Satanee Prasad ............................134 Sital Das v. Sant Ram ....................... j ...........348 Sitaram Sao alias Mungeri v. State of Jharkhand........................................ 459 Sitaram v. Piari ..............................................133 Sitaram v. State of U.P........... ......................176 Smith v. Baker ...............................................491 Smt. Chandrawati v. State ..............................244 Smt. Laxmi v. Om Prakash ............................221

Page li Table of Cases Smt. Madhuri Chowdhari v. Indian Air Lines Corporation ......................... 438 Smt. Raj Rani v. Dwarkadas.......................... 491 Smt. Sobha Ram v. Ravi Kumar & others .................................................. 351 Smt. Sudha Devi v. M. P. Narayanan ............................................. 13 Smt Suhashini Dasi v. Ali Bhusan De ....................................................... 491 Smt. Vidya Devi v. Nand Kumar................... 392 Sobha Textile................................................. 438 Society Beige De Benque v. Girdhari Lai ............ ......................................... 127 Sohan Lal v. Gulab Chand............................. 564 Sohan Singh v. Guljari .................................. 282 Sohrab s/o Beli Neyata v. The State of M. P .................................................. 35 Sonelal v. State of M.P .................................. 521 Soney Lal v. Daribdeo ................................... 217 Southern Petro-chemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. ................506, 508 Sow Bhima Bai v. Suresh Dayanand Kesar ................................................... 524 Sree Ramulu v. Venkatanarsimham............... 491 Sri Devi v. State............................................. 175 Sri Pratvlla Chandra Sinha v. Chhota Nagpur Banking Association ......................................... 491 Sri. S.K. Sharma v. Mahesh Kumar Verma ................................................. 509 Srichand v. State of Maharashtra ................... 468 Srichandra Nandy v. Rakhala Nandv...................................................... 5 Srimati Indra Gandhi v. Rajnarain ................. 467 Srinath Jagdish v. Ravinder Singh ................. 466 Sriniwasamall v. Emperor ............................. 115 Sriram Sardarmal v. Gori Shankar................. 494 Stall of Travancore Tiruppa Brand v. K. Vinay Chandran and others .............................................. ....328 State (Delhi Adminis). v. B.C. Shukla........... 549 State (Delhi Administration) v. Jagjit Singh ................................................... 544 State of A.P. v. Ganeshwara Rao ................... 599 State of A.P. v. Inapuri Padma ............. 304, 306 State of Andhra Pradesh v. Panna Satyanarayan ......................................... 47 State of Andhra Pradesh v. Yadla Ramga Rao and others ........................ 451 State of Arunachal Pradesh v. Nezone Law House ............................. 507 State of Assam v. Ajit Kumar Sharma ........... 489 State of Assam v. Merajuddin ................. .... 242 State of Assam v. U.N. Rajkhowa ........ 147, 193 State of Bihar v. Basavan Singh .................... 551 State of Bihar v. Kripal Shanker .................... 531 State of Bihar v. Radha Krishna .......... 107, 278 State of Bihar v. Radha Krishna Singh ......................................... 261, 289 State of Bihar v. Basavan Singh .................... 552 State of Bombay v. Kathe Kalu ........... 194, 372 State of Delhi v. Vijai Pal .............................. 169 State of Goa v. Pandurang Mohite ................... 23

State of Gujarat v. Anirudh Singh and Others ........................................... 177 State of Gujarat v. Bai Fatima ....................... 433 State of Gujarat v. Bharat .............................. 344 State of Gujarat v. Mohammed Atik and others .............................. 85, 87, 143 State of Gujarat v. Pamu Bhai ....................... 526 State of Gujarat v. Vinay Chandra ................. 370 State of Haryana v. Harpal ............................ 237 State of Haryana v. Jagbir Singh ..................... 18 State of Haryana v. Mangeram ............... ...... 230 State of Haryana v. Prabhu .............................. 93 State of Haryana v. Ram Singh............ 195, 376 State of Haryana v. Sher Singh ........................ 61 State of Haryana v. Surendra ........................... 77 State of Himachal Pradesh v. Jeet Singh ......................................... 189, 190 State of Himachal Pradesh v. Nikku ............. 451, 454 State of Himachal Pradesh v. Prem Chand .................................................. 514 State of Himchal Pradesh v. Jai Lal and others ............................................ 299 State of Karnataka v. A.B. Nag Raj ............... 165 State of Karnataka v. M.N. Ram Das ...................................................... 165 State of Karnataka v. Manjunathegowda........ ..................... 455 State of Karnataka v. Shantappa Madivalappa Golapiji.......................... 518 State of Karnataka v. Shariff ............... 233, 249 State of Karnataka v. Yarappa Reddy............ 597 State of Kerala v. Ammini ...................... 19, 169 State of Kerala v. Babu .................................. 574 State of Kerala v. Vijayan alias Rajan ................................................... 570 State of M. P. v. Daya Ram ........................... 158 State of M.P. v. Anshuman Shukla .................... 7 State of M.P. v. Chamru alias Bhagwandas etc ...........................79, 517 State of M.P. v. Dharkole ................................ 32 State of M.P. v. Dhirendra Kumar .......... 60. 238 State of M.P. v. Dhirendra Singh ................... 328 State of M.P. v. Ram Prakash ........................ 189 State of Madras v. Madras Tramway Co ..................... 478, 481, 497

Page lii

Evidence Act

State of Madras v. Vaidyanath Iyer ................. 67 State of Maharashtra v. Basawan Singh ................................................... 465 State of Maharashtra v. Bharat Ehagan Lal Raghani ............................ 186 State of Maharashtra v. Bharat Fabira Dhiwar ..................... 17, 189, 515 State of Maharashtra v. Chundra Prakash Keval Chand Jain................... 518 State of Maharashtra v. Dama Gopinath Shinde84, 187, 188, 311, 516 State of Maharashtra v. Dr. Praful B. Desai ................................................ 14 State of Maharashtra v. Gopichand ............... 232 State of Maharashtra v. Krishnamurthy Laxmipati Naidu ................ .... ................. 243, 253 State of Maharashtra v. Mayer Hans George ....................................... 437 State of Maharashtra v. Mohd. Sajid Husain, Mohd. S. Husain ........................................ 300, 374 State of Maharashtra v. Nar Singh ................... 93 State of Maharashtra v. P.K. Pathak ................................................ 169, 177 State of Maharashtra v. Prakash Sakha Vasove...................................... 524 State of Maharashtra v. Rashid Babubhai Mohan ................................. 466 State of Maharashtra v. Sanjay ...................... 235 State of Maharashtra v. Tulshiram Bhanudas Kamble ........................... 16, 34 State of Mysore v. Sampanyiramiah .............. 606 State of Orissa v. Nirupama ........................... 145 State of Orissa v. Parasuram Naik ................. 238 State of Punjab v. Bhagwan Singh ................ 164 State of Punjab v. Bhajan Singh .................... 166 State of Punjab v. Chatinder Pal Singh ................................................... 236 State of Punjab v. Harjagdev Singh ............... 148 State of Punjab v. Nestle India Ltd ................ 506 State of Punjab v. S.S. Singh ......................... 601 State of Punjab v. Sodhi Sukhdeo Singh .......................................... 531, 532 State of Punjab v. Sukh Chain Singh ............. 433 State of Punjab v. Sukhdeo Singh.................. 534 State of Rajasthan v. Ashfaq Ahmad ............. 237 State of Rajasthan v. Bhola Singh ................... 35 State of Rajasthan v. Jaggu Ram ................... 439 State of Rajasthan v. Kashi Ram .................. 149, 150, 187, 198, 439 State of Rajasthan v. M/s. Mahavir Oil Mills.............................................. 508 State of Rajasthan v. Mangi Lal .................... 166 State of Rajasthan v. Om Prakash........... 15, 558 State of Rajasthan v. Parthu ........................... 245 State of Rajasthan v. Raja Ram ..................... 18, 27, 150 State of Rajasthan v. Sharad Shankar alias Bhantu .......................... 278 State of Rajasthan v. Teja Ram..................... 194, 238, 247, 519, 567 State of Rajasthan v. Wakteng ............. 198, 244 State of Tamil Nadu v. Karuppasamy ............ 238

State of Tamil Nadu v. Kutty alias Laxmi Narsimhan ............................... 169 State of Tamil Nadu v. Mamatharaj...... ........ 150 State of Tamil Nadu v. S.K. Krishnamurty ...................................... 489 State of Tamil Nadu v. Subair ....................... 522 State of Tamil Nadu v. Suresh ....................... 594 State of U.P. v. Arun Kumar Gupta ............... 187 State of U.P. v. Ashok Kumar ......................... 19 State of U.P. v. Ashok Kumar Srivastava.............................................. 18 State of U.P. v. Atul Singh ............................ 524 State of U.P. v. Babu Ram ............................... 62 State of U.P. v. Deoman Upadhyay ........ ...158, 173, 193, 200, 201 State of U.P. v. Harbans Sahai....................... 311 State of U.P. v. Hari Mohan and others .................................................. 359 State of U.P. v. Hari Prasad ............................. 61 State of U.P. v. Jagdeo................................... 520 State of U.P. v. Jaggu .................................... 585 State of U.P. v. Jodha Singh .......................... 518 State of U.P. v. Jogesar ........................ 187, 189 State of U.P. v. Krishna Gopal ...................... 311 State of U.P. v. M.K. Anthony ............ 166, 167 State of U.P. v. Madan Mohan ............ ....... 243, 247, 251, 253 State of U.P. v. Manoher ................................. 80 State of U.P. v. Mohd. Musheer Khan ........... 433 State of U.P. v. Nahar Singh and others ..................................... ............. 62 State of U.P. v. Punni .................................... 469 State of U.P. v. Raj Narain .......... 530, 532, 534 State of U.P. v. Ram Sagar Yadav ....... 242, 252 State of U.P. v. Ram Swarup ......................... 433 State of U P. v. Ratan Shukla ............................ 8 State of U.P. v. Ravindra Prakash Mittal (Dr.)............................................ 25 State of U.P. v. Satish ................................ 27, 30 State of U.P. v. Sheo Lal ........................ 81, 522 State of U.P. v. Shobhanath ........................... 520 State of U.P. v. Singhara Singh ........... 182, 183 State of U.P. v. Sukhbasi ........................ ........ 18 State of U.P. v. Sukhpal Singh ........................ 74 State of U.P. v. Saruamuhi.... .......................... 82 State of West Bengal v. Orilal Jaiswal ............ 31

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Evidence Act

State Rep. by Inspector of Police v. Saravanon ....................................15, 520 State through CBI New Delhi v. S.J. Chaudhary ........................................... 303 State v. Balchand ........................................... 163 State v. Chotte Lal ......................................... 433 State v. Dhanpal ............................................ 438 State v. Gopal Singh ...................................... 337 State v. Gopichand ........................................ 489 State v. Har Prasad Sharma ........................... 553 State v. Haris Chand ............................. 596, 597 State v. Kachara Sada ........................... ....... 557 State v. Kanchan .................. 223, 230, 247, 248 State v. Kartik Chandra ................................. 433 State v. Keshava Lal .................................... ..551 State v. Menon Md ........................................ 193 State v. Mohd. Husain ................................... 174 State v. Ocurli ................................................ 544 State v. Padmakant ............................................ 3 State v. Ram Bhai ................................... 82, 599 State v. Siddh................................................. 432 State v. Sohan Singh ...................................... 559 State v. Wahid Bux .......................................... 82 Steel Authority of India Ltd. v. Union of India ............................ 330, 478 Stephen Sereverantne v. The King ................ 590 Subaran Banik v. State .................................. 344 Subb Karan v. Kedarnath........... .................. 559 Subh Karan v. Durga Prasad.......................... 278 Subhash Ramchandra Wadekar v. Union of India ..................................... 440 Subhra Mukharjee v. Bharat Coking Coal Co ............................................... 445 Subhu Chettiar’s Family Charities v. Raghav Mudaliar................................. 492 Subrahmanya v. Lakshmi Narasamma....268, 269, 271 Subramania Gaunda v. State of Madras ................................... 170, 549 Subramanian Chettiar v. Kamnappa Chettiar ..........................................................99 Subrata Kumar v. Dipti Banerjee ............................ 158 Sucha Singh v. State of Punjab ............................... 437 Sudhir Chandra Gupta v. State of Assam ..........................................................437 Suganchand Bhikham Chand v. Margo Bai....................................................299 Sukhan v. Emperor....................................... 191, 284 Sukhar v. State of U.P ............................................... 47 Sukharaji v. State Transport Corporation .................................... ........... 565 Sukhdeo Singh v. Mathura Singh ............... ............ 280 Sukhpal v. State of Haryana .................................... 304 Sukhwant Singh v. State of Punjab ......................... 566 Sukumar Chakraborty v. Asst. Assesor Collector ........................................485 Suleman v. R ........................................................... 379 Sumitra v. Ramkumar .............................................. 4 2 Sundama v. King Emperor ...................................... 237 Sundara v. Gopala ................................................... 140 Sunder Lal v. Suja ................................................... 478 Sundrabai v. Devaji ................................................. 482

Sunil Chandra Roy v. State ..................................... 604 Sunil Chandra v. State............................................. 300 Sunil Dattatraya Vaskar v. State of Maharashtra ................................................ 310 Sunil Kumar Ghose v. State .................................... 484 Sunil Kumar v. State Govt, of NCT of Delhi ...................................................... 556 Suptd. & Remembrancer Legal Affairs W. B. v. S. Bhowmick .................... 539 Suraj Bali Ram v. Dhani Ram ................................. 509 Suraj Bhan v. Hafiz Abdul ...................................... 354 Suraj Pal v. State of U.P............................................ 94 Surajdeo Ojha v. State of Bihar................... 243, 253 Surendra Krishna Roy v. Mirza Mohammad .............................................. 3 8 6 Surendra Kumar v. Gyanchand ............................... 290 Surendra Pratap Chauhan v. Ram Naik ............................................................ 519 Surendra Singh Rahtela v. State of Bihar............................................................. 80 Surendra v. Mirza Mohd ......................................... 359 Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra ................................................ 208 Suresh Chand Bahri v. State of Bihar.........................................73, 186, 548 Suresh Kumar alias Suresh Chandra and others v. Mewa Ram ............................ 303 Surindar Kumar v. State of Punjab .......................... 167 Surinder Pal Jain v. Delhi Administration.............................................. 82 Suryanarain v. Jhabu Lal ......................................... 376 Swamy Shraddhananda v. State of Karnataka ....................................... ............ 27 Swaran Singh v. State of Punjab ............................. 159 Syam Sunder v. State of Chhattisgarh ..................... 519 Syed Askari Hadi Ali Angustine Imam v. State (Delhi Admn.) ..................... 290 T T. Subbiah v. Ramaswamy...................................... 368 T.K. Ghosh Academy v. T.C. Palit ......................... 476 T.K. Mohammed Abubacker v. P.S.M. Abdul Khader ................................. 427 T.N. Stem v. Mohd. Husain .................................... 278 T.W. King, Capt. v. Mrs. F.E. King ............................ 5 Tafiz Parmanik v. Emperor ..................................... 246 Tahsildar Singh v. State of U.P ............................... 572 Tahuri Shal v. Jhunjhunwala ................................... 397

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Evidence Act

Tamil Nadu Cauvery Nerppasanna v. Union of India ................................. 337 Tanu Kayaputra v. State ................................ 597 Tapindra Singh v. State ................................. 249 Tara Devi v. Sudesh Chaudhary .................... 280 Tara Singh v. State ........................................ 572 Tarsem Singh v. State of Punjab.................... 454 Tata Chemicals Ltd. Bombay v. Sadhu Singh ........................................ 328 Tej Bhan Madan v. Ilnd Additional D. J .............. .............................. 511 Thakur Amar Singh ji v. State of Rajasthan ............................................ 483 Thakur and others v. State ............................. 310 Thakur Gajendra Singh v. Thakur Shanker Bux Singh ....... . ................... 277 Thakurji v. Permeshwar Dayal ................. ..... 91, 264, 592 Thazhathethi Hamsa v. State of Kerala.................................................. 566 Thimmia v. State of Mysore .......................... 166 Thiruvengada Pillai v. Navaneethammal ................................ 301 Thyarapan v. Narayan Thevan....................... 259 Tika Ram v. The State ................................... 592 Tikaram v. Moti Lal ............................. 259, 284 Tilak v. State ................................................. 535 Timma v. Channava....................................... 366 Tirupati Tirumala Devasthanam v. K.M. Krishnaiah ................................. 292 Titli v. Jones .................................................. 370 Triambak v. Yadorao .................................. ...346 Tribhuwannath v. State of Maharashtra .................................86, 465 Trilochan Dandsena v. State .......................... 428 Trimbak v. State of M.P ................................ 462 Triro v. Deo Raj............................................. 428 Triveni Mishra v. Rampoojan ........................ 294 Tubarak Madal v. The King .......................... 592 Tufail alias Simmi v. State of U.P ................... 21 Tulsa v. Durghatia ......................................... 467 Tulsi Ram Sahu v. R.C. Pal ........................... 585 Tulsi Ram v. State ......................................... 461 Tulsi Ram v. State of Maharashtra ................ 566 Tulsidass v.Vithaldass v. Union of India .................................................... 438 Tumahole v. The King ................................... 464 Twarku v. Surti .............................................. 260 Tyaga Rage v. Vidathami .............................. 399 U.P Government v. C.M.T. Association Ltd ................. ................ 105 U.P. Government v. Lata Nanhoo ................. 416 U.P. Power Corporation Ltd. v. Sant Steels & Alloys (P) Ltd ....................... 508 U.P. State v. S.B. Singh ................................. 251 U.P. State v. Singhara Singh.......................... 205 Udai Pratap v. Krishna Pradhan..................... 511 Udai Raj Singh v. Ram Bahai Singh.............. 494 Uday Paul Singh v. State of U.P ...................... 61

U

Ugar Ahir v. The State of Bihar....................... 35 Uka Ram v. State of Rajasthan ...................... 221 Uma Rao v. Mansingh ................................... 494 Umesh Chandra v. State of Rajasthan ........... 279 Union of India v. Anglo Afgan Agencies .......... 487, 488, 499, 504, 505 Union of India v. Bhagat Ram ....................... 438 Union of India v. Delhi Cloth and General Mills Co. Ltd ......................... 438 Union of India v. Firm M.P. & Sons ............. 438 Union of India v. Kalinga Textile .................. 438 Union of India v. Shree Ram Richhpal ....... ...................................... 438 Union of India v, Sivram ............................... 493 Union of India v. T.R. Verma ........................ 565 Union Territory of Goa v. B. D'Souza ana others .............................. 460 University of Punjab v. Jaswant Rai .............. 536 Usufv. R ........................................................ 430 Uttam Chand v. Salig Ram ............................ 494 V. Narasayyanna v. Rattamma ...................... 268 V.D. Jhingan v. State of U.P................ 431, 436 V.M. Mathew v. V.S. Sharma & others .......................................... ...... 267 Vadivelu Thevar v. State of Madras ............................................... 556, 557 Vahula Bhushan alias Vehuna Krishnan v. State of Tamil Nadu.................................................... 556 Vaikuntan Chandrappa v. State of Andhra Pradesn ..................................... 75 Valkort v. Vetterela ....................................... 109 Vallabh Das v. Collector ............................... 179 Vallabh v. Madusudanam ................................ 13 Vandavasi Karthikeya v. S. Kamalamma ........................................ 123 Vankurutham v. State of Orissa ..................... 544 Varikuppal Srinivas v. State of A.P ............... 233 Varkey Joseph v. State of Kerala ................... 569 Vas Dev Sharma v. Milkhi Ram .................... 484 Vasantkumar RadhakishanVora v. The Board of Trustees of the Port of Bombay ......................... 505, 508 Vassiliades v Vassiliades ............................... 567 Veararaju v. Venkamma ................................ 510 Veera Ibrahim v. State of Maharashtra ...................... 142, 145, 153 Velaga Siraramma Krishna v. Velaga Veerbhadra Rao ...................... 301 Vella M. Goundan v. Emperor ...................... 204

V

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Table of Cases

Venkata Laxamma v. Venkatappa ................. 302 Venkata Subba Rao's case ............................. 100 Venkata v. Bhashya ....................................... 129 Venkata v. Thanchand ................................... 282 Venkatarayudu v. Ram Krishnaiyya ................................493, 494 Venkatesan v. State of Tamil Nadu ................. 18 Venkateshwarlu v. Bahayya .......................... 442 Venketeswarlu v. Vankta Narayan ................ 448 Vernereddy v. State of Hydrabad .................. 545 Victory Papers and Boards India Ltd. v. State of Kerala ......................... 507 Vidyamati v. The State .................................. 598 Vijay Sankar Sinde v. State of Maharashtra .......................................... 16 Vijayee Singh v. State of U. P ........33, 425, 430 Vikram v. State of Maharashtra ....................... 15 Vilas Pandurang Patil v. State of Maharashtra ........................................ 164 Villiammai Achi v. Nagappa Chettiar ............................................... 490 Vimbu Ambal v. Esakia ......................... ..... 369 Vinay D. Nagar v. State of Rajasthan ............ 228 Vinay Kumar v. State of Bihar ...................... 521 Vinayak Dutt v. State ............................66, 232 Vinayak Shivaji Rao Pd. v. State of Maharashtra ........................................ 150 Vineet Kumar Chauhan v. State of U.P ...................................................... 301 Vinod Kumar v. State of Delhi ...................... 198 Vinode Mohan v. Sham Chandra................... 362 Viranwally v. State ........................................ 156 Virayya v. Bapayya ....................................... 492 Vishnu v. State of Maharashtra ..................... 308 Vishunath Tewari v. Mst. Mirchi ........... ...... 294 Vishwa Nathan v. Abdul Majid ..................... 403 Vishwanath Prasad v. Dwarka Prasad........................................ 134, 573 Vishwanath v. Abdul ....................................... 13 Visnu Ram Krishna v. Nathu Vithal .............. 366 Viswanathan v. State ....................................... 76 Vithal Eknath Adlinge v. State of Maharashtra .......................................... 23 Vithal Pundalik Zendge v. State of Maharashtra ...................................... 5 5 8 Wali Mohammad v. Emperor ........................ 223 Waman Shriniwas v. Ratilal Bhagwandas ........................................ 484 Wasim Khan v. State of U.P .......................... 463 Wasiq Ali v. Director of Consolidation ...................................... 214 Westone and others v. Peary Mohan Das ........................................................ 31 Wilayat Khan v. U.P. State ............................ 310 Wingly v. State of Madhya Pradesh ............. 427, 428

W

Y

Y. Venkanna Chowdry v. Lakshmidevamma ............................... 275 Yunus v. Kariya............................................... 62 Yusuf Ismail v. State of Maharashtra ........................................ 590 Z.B. Bhukhari v. B.R. Mehra .............. 573, 597 Zahira Habibullah H. Sheikh v. State of Gujarat ......................... 425, 588 Zaibunnissa v. Irshad Husen ........... ............. 349 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra.................. 14 Zwinglee Ariel v. State of Madhya Pradesh......................................... 35, 182

Z

Page 1

THE INDIAN EVIDENCE ACT

(ACT NO. 1 OF 1872) (AS MODIFIED UP-TO-DATE) Received the Governor-General's Assent on March 15, 1872 Preamble.—Whereas it is expedient to consolidate, define and amend the Law of Evidence ; it is hereby enacted as follows :— The preamble consolidates laws which were existing from before in this area and also provides the aim of the Act as to define and amend the Law of Evidence. Notably it being the outcome of English principle, in case of need the Courts do have to follow them. Background of the Indian Evidence Act.—In ancient period, we do find elaborate discussion on the rules of evidence in the Sanskrit books. However during Muslim period not much material is available to throw light with respect to the Law of Evidence applied at that time. It was in 1726 when rules of evidence, which were prevailing in England under Common Law and Statute law came to be introduced in our country. During the period of 1835— 1855 atleast eleven enactments were in force which dealt with the subject of evidence. Later on, the draft prepared by Sir Henry Sommer Maine in 1868 was found unsuitable for our country. The Bill of the present Act of 1872 was prepared by Sir James Stephen who, as a law member was entrusted with this work in 1871. It may be relevant to mention that most of the States had already adopted this Act much prior to the Constitution of India coming into force. It is a matter of importance that the Law of Evidence which came to be enforced in 1872, still continues to be applicable with least changes being made during the past 130 years of its enactment. Relevance of the Law of Evidence.—In the process of delivering justice, the Courts have not only to go into the facts of the case but also to ascertain the truthfulness of the assertions made by the parties. The area of assertions and ascertainment of its truthfulness is governed by the Law of Evidence. It is the procedural side of law which lays down the rules for the guidance of the Courts upon the questions of reaching to the truth and getting the assertions and facts proved before it. Assertions consist of facts, some of which are disputed and some are proved ones. Thus, the Law of Evidence is relevant in deciding the above issue in reaching to a conclusion; decision upon some disputed issues, facts. In short it is a procedural law which provides, inter alia, how a fact is to be proved. It helps in preventing the wastage of court's valuable time upon irrelevant issues.

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PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY SECTION 1.—Short title, extent and commencement.—This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before any Court, including Courts-martial other than Courtsmartial convened under the Army Act, the Naval Discipline Act 1[* * *], the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator ; and it shall come into force on the first day of September, 1872. COMMENTS This section provides for the applicability of the Indian Evidence Act. It specifies the (1) territories to which the Act applies, and (2) the Courts and proceedings to .which the law applies. We shall take these two points separately. Territorial.—The Indian Evidence Act extends to the whole of India except the State of Jammu and Kashmir. Judicial proceedings.—(a) The Evidence Act applies to all judicial proceedings. The Law of Evidence is not to be applied to proceedings which are not judicial. Now it is very necessary to know the distinction between judicial and non-judicial proceedings. "An enquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the community generally." It should be borne in mind that, even a judge, acting without such an object in view, does not act judicially. According to Section 2, sub-clause (i), Criminal Procedure Code, 1973, a judicial proceeding includes any proceedings in the course of which evidence is or may be legally taken on oath. The following are held to be judicial proceedings, and so the recording of evidence in those proceedings, are governed by the rules of Evidence Act: (1) The proceeding under Chapter IX of Cr.P.C., 19732 ; (2) An execution proceeding3 ; (3) An enquiry conducted by a Magistrate into the truth of the allegation contained in a petition, presented to a Deputy Commissioner, Enquiries under Sections 97, 145, 340 of the Cr.P.C., 1973. Proceedings before Industrial Tribunal.4 ______________________ 1. The words "that Act as modified by" omitted by A.O. 1950. 2. 5 All. 224. 3. 23 All. 89. 4. Burrakar Coal Co. v. Labour Appellate Tribunal of India, AIR 1958 Cal. 226.

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Non-judicial proceedings.—"An enquiry about matters of facts where there is no discretion to be exercised and no judgment to be formed, but something is to be done in a certain event, as a duty, is not a judicial but an administrative enquiry."5 The following are held not to be judicial proceedings and so the Evidence Act does not apply to them :— (1) An enquiry by a Collector under Land Acquisition Act.6 (2) A departmental enquiry under Section 197 of Bombay Land Revenue Code. A departmental enquiry held by police officers.7 (3) An order passed by 1st Class Magistrate under Section 452(3) or 454 of the Cr.P.C., 1973. A contempt proceeding.8 Courts-martial.—The Evidence Act applies to Courts-martial except Courts-martial convened under :— (1) Army Act; (2) The Naval Discipline Act ; (3) The Indian Navy (Discipline) Act, 1934 ; and (4) The Air Force Act. This Act applies to native Court-martial and to proceedings before Indian Marine Act. Affidavits.—The Evidence Act does not apply to affidavits presented to any Court or officer. Although the Evidence Act does not apply specifically to affidavits there is no doubt that affidavits are used as mode of proof. It is always open to the court to take into consideration all facts alleged in an affidavit if they have not been controverted in the counter-affidavit. The provisions for affidavits are made in Civil Procedure Code [(Order 19, Rules 1, 2 and 3) and Sections 295, 296 and 297 (1)] of the Criminal Procedure Code, 1973. Arbitrators.—The provisions of the Evidence Act do not apply to proceedings before an arbitrator. The arbitrators are not bound by those strict rules of evidence which are applicable to Court of law. The object of submission to arbitrator is to avoid the elaborate procedure of a regular trial. An arbitrator is unfettered by technical rules of evidence and it is not valid objection to an award that arbitrator has not acted in strict conformity to the rules of evidence. Lex fory.—This phrase means the law of the place of the action. "The law of evidence is the lex fory which governs the courts whether a witness is competent or not; whether a certain fact requires to be proved by writing or not; whether certain evidence proves a certain fact or not; that is to be determined ______________________ 5. 5 Mad. 178 (FB). 6. 30 Cal. 136. 7. Sisir Kumar v. State of West Bengal, AIR 1955 Cal. 183. 8. Sheoraj v. A.P. Batra, AIR 1955 All. 638 ; State v. Padmakant, AIR 1954 All. 523 (FB); AIR 1954 SC186.

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[S.2

by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it."9 Where evidence is taken in one country in aid of a suit or action (proceeding) in another country, either on ordinary commission or with the assistance of the local courts, the law applicable to the recording of the evidence, would be the law prevailing in the country where the proceeding is going on. SECTION 2.—Repeal of Enactments.—The repealed section ran as follows:— "On and from that day the following laws shall be repealed : (1) All rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India ; (2) All such rules, laws and Regulations as have acquired the force of law under 25th section of the "Indian Councils Act, 1861" in so far as they relate to any matter herein provided for; and (3) The enactments mentioned in the Schedule hereto to the extent specified in the third column of the said Schedule. But nothing herein contained shall be deemed to 'affect any provision of any Statute, Act or Regulation in force in any part of British India not hereby specially repealed." COMMENTS Scope of section.—Sub-section (1) of the old Section 2 repealed all rules of evidence which were not contained in a Statute, Act or Regulation. Before passing of the Indian Evidence Act, the rules of evidence were governed by the Rules of English Common Law; of the Hindu and Mohammedan Laws, and the rules of justice, equity and good conscience. Section 2(1) repealed all those rules of evidence, sub-section (2) of the section repealed all those rules, laws and Regulations which acquired the force of law under Section 25 of Indian Councils Act, 1861, but only in so far as they related to any matter provided for in this Act. Sub-section (3) repealed previous enactments relating to evidence mentioned in the Schedule given in the Act to the extent specified in the 3rd column of the Schedule. The Act a complete Code.—The Indian Evidence Act is a consolidatory enactment repealing all rules of evidence except those which are exempted from being repealed by the proviso of Section 2. But it has been held that the Evidence Act does not contain the whole of the rules of the evidence. The law of Evidence is contained in the Evidence Act and in other Acts and Statutes which make specific provisions on matter of evidence. There are several laws relating to the subject of evidence which supply the omissions in the Evidence Act and supplement its provisions. We may take for instance (1) Bankers Books Evidence Act XVIII of 1891 ; (2) Civil Procedure Code, 1908, Order XXVI; (3) Commercial Documents Evidence Act XXX of 1939; (4) Criminal Procedure Code, 1973, Sections 291 and 292 ; (5) Divorce Act, 1889, Sections 7, 12 and 14 ; (6) ______________________ 9. Bain v. White Raven and Furness Junction Ry; (1850) 3 H.L.C. 1. at p. 19.

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Limitation Act, 1963, Sections 19 and 20 ; (7) Patna Regulation VIII of 1819, Section 8 ; (8) Registration Act, 1908 Sections 49 and 50 ; (9) Stamp Act, 1899, Section 35 ; (10) Succession Act, 1925, Section 63 ; and (11) Transfer of Property Act, 1882, Sections 59 and 123. Effect of the repeal of Section 2.—Under Section 2 all rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India were repealed. The repeal of Section 2 under a subsequent Amending and Repealing Act makes no difference because its repeal does not have the effect of re-enacting the rules which it repealed. As the provisions of this section were unnecessary it were repealed.10 Scope of Evidence Act.—The Evidence Act deals with the particular subject of evidence including admissibility of evidence and is a special law.11 Hence no rule about the relevancy of evidence contained in the Evidence Act is affected by any provision in the Criminal Procedure Code or any other enactment unless it is so specifically stated in the Code or it has been repealed or annulled by another statute. Evidence excluded by the Evidence Act as inadmissible, should not be admitted merely because it may be essential for ascertainment of truth.12 The parties cannot contract themselves out of the provisions of the Act. If evidence is tendered, the court is to see whether it is admissible under the Evidence Act.13 SECTION 3.—Interpretation clause.—In this Act the following words and expressions are used in the following senses unless a contrary intention appears from the context: "Court".—Includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. "Fact".—"Fact" means and includes— (1) any thing, state of things, or relation of things, capable of being perceived by the senses ; (2) any mental condition of which any person is conscious. ILLUSTRATIONS (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular ______________________ 10. T.W. King, Capt v. Mrs. F.E. King, AIR 1954 Alld. 190. 11. Ramnaresh v. Emperor, AIR 1939 Alld. 242. 12. Srichandra Nandy v. Rakhala Nandy, AIR 1941 PC 16. 13. Sago Rai v. Ramji Singh, AIR 1942 Patna 105.

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sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a man has certain reputation, is a fact. "Relevant".—One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. "Facts in issue".—The expression "facts in issue" means and includes—any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding necessarily follows. Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue. ILLUSTRATIONS A is accused of the murder of B. At this trial the following facts may be in issue :— that A caused B's death ; that A intended to cause B's death ; that A had received grave and sudden provocation from B ; that A, at the time of doing the act which caused B's death was, by reason of unsoundness of mind, incapable of knowing its nature. "Document".—"Document" means any matter expressed or described upon any substance by means of letter, figures or marks or by more than one of those means intended to be used, or which may be used for the purpose of recording the matter. ILLUSTRATIONS (a) A writing is a document; (b) Words printed, lithographed or photographed are documents ; (c) A map or plan! is a document; (d) An inscription on a metal plate or stone is a document; (e) A caricature is a document. "Evidence".—"Evidence" means and includes— (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry ; such statements are called oral evidence; (2) 14[all documents including electronic records produced for the inspection of the Court]; ______________________ 14. Subs, by the Information Technology Act, 2000, (Act No. 21 of 2000), S. 92 and Sch. II.

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"Proved".—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved".—A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not proved".—A fact is said not to be proved when it is neither proved nor disproved. "India".—"India" means the territory of India excluding the State of Jammu and Kashmir. 15[the expressions "Certifying Authority", 16[" electronic signature"], 17["Electronic Signature Certificate"], "electronic form", "electronic records", "information", "secure electronic record", "secure18[electronic signature]" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000.] COMMENTS "Unless a contrary intention appears from the context".—The section lays down that the terms defined under Section 3 should be interpreted according to the definition of them, given in the section, unless by doing so any repugnancy is created in the subject or context.19 But if the defined expressions are used in a context in which the definition will not fit, the words may be interpreted according to their ordinary meaning. Court.—The definition of 'Court' in this Act is framed only for the purpose of the Act itself and should not be extended beyond its legitimate scope. Special Laws must be confined in their operations to their special subject. The definition of the word 'court' in the Act is not meant to be exhaustive.20 So in a trial by jury, the Court does not exclude the jury. In such a case it means to include both the Judge and the Jury. A Court does not include an arbitrator though he is legally authorised to take evidence. Where the authorities under the M.P. Madhyasthan Adhikaran Adhiniyam are empowered to examine witnesses after administering oath to them, they are Court within the meaning of Evidence Act.21 Persons legally authorised to take evidence.—The word 'Court' according to Section 3, Evidence Act, includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence.22 The right to ______________________ 15. Ins. by the Information Technology Act, 2000, (Act No. 21 of 2000), S. 92 and Sch. II. 16. Subs, for "digital signature" by Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009), S. 52 (a) (w.e.f. 27.10.2009) 17. Subs, for "Digital Signature Certificate" by ibid. 18. Subs, for "digital signature" by ibid. 19. Partab Singh v. Gulzare Lal, AIR 1942 All. 185; Ram Bandhu v. Brahmanand, AIR 1950 Pat. 524.

20. 21. 22.

AIR 1941 Pat. 65. State of M.P. v. Anshuman Shukla, AIR 2008 SC 2454 at p. 2456. Jokhanram v. Ram Din, 8 Alld. 429.

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take evidence is not an incident of an appellate court. Whenever an appellate court possess the right to receive evidence it is by the virtue of an express enactment such as those contained in Section 391, Cr.P.C., 1973, and Order 41, R. 27, C.P.C. A District Magistrate hearing an appeal under Section 163 of the Municipalities Act is not legally authorised to take evidence and so it is not a court.23 A S.D.O. hearing election petition under Panchayat Raj Act is not a court.24 The definition of the word 'Court' as given in the Act is meant for the purposes of this Act and it cannot be said as a general rule of law that every officer who is entitled to take evidence is necessarily a court, within the meaning of Contempt of Courts Act. But Commissioner appointed under Public Servant Act is a court under Contempt of Courts Act.25 On the same principle Income Tax Officer is not a Court.26 Industrial Tribunal under Industrial Disputes Act is not court in the technical sense.27 Fact.—In the popular concept the term 'fact' means an existing thing. It does not refer to a mental condition of which a person is conscious. But as defined in the Evidence Act the meaning of the word "fact" is not limited to only what is tangible and visible or, is in any way, the object of senses. According to this definition, as it is also clear from illustrations, the statements, feelings) opinion and state of mind are as much fact as any other fact which is tangible and visible or any other circumstance of which, through the medium of senses we become aware. The fact may be classified as (1) Physical and Psychological, (2) Positive and Negative. (1) Physical and Psychological Facts.—'Physical' fact is a fact considered to have its seat in some inanimate or animate being, by virtue not of the quality by which it is considered animate, but of those which it has in common with class of inanimate things. A horse, a man, are physical facts. This clause refers to external facts, the subject of perception by the five senses, illustrations (a), (b) and (c) are examples of this physical fact. A psychological fact is considered to have its seat in some animate being, and that by virtue of the quality by which it is constituted animate. Thus the existence of visible object, the outward aspect of intelligent agents, range themselves under the former class while to the latter belong such facts as only exist in the mind of individuals, e.g., the sensation or recollection of which man is conscious, his desires, his intentions in doing particular acts, etc. This clause refers to internal facts the subject of consciousness, such as intention, fraud, good faith and knowledge. The illustrations (d) and (e) are examples of this clause. (2) Positive and Negative Facts.—The existence of a certain state of things is a positive fact, the non-existence of it is a negative fact. Matter of fact and matter of law.—'Matter of fact' has been defined to be anything which is the subject of testimony which can be proved by evidence ; ______________________ 23. State of U.P. v. Ratan Shukla, AIR 1956 All. 258. 24. AIR 1959 All. 43. 25. Jotinarain v. Brijnandan, AIR 1954 Patna 281. 26. Krishna v. Gobardhan Aiars, AIR 1954 Mad. 822.

27.

Bharat Bank v. Employees of Bharat Bank, AIR 1960 SC 188.

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matter of law is general law of land of which the court will take judicial notice. It is not to be proved by evidence. Relevant.—The word "relevant" has two meanings. In one sense it means 'connected' and in another 'admissible'. According to Stephen, 'relevancy' means connection of events as cause and effect. What is really meant by 'relevant fact’ is a fact that has a certain degree of probative force. Relevant under the Act.—This Act does not give any definition of the word 'relevant'. It only lays down that a fact becomes relevant only when it is connected with other facts in any of the ways referred to, in this Act relating to the relevancy of facts. Under Chapter II, Sections 5 to 55, deal with the relevancy of facts. A fact in order to be relevant fact must be connected with the facts in issue or with any other relevant fact in any of the ways referred to in Sections 5 to 55. A fact not so connected is not a relevant fact. The scheme of the Act seems to be to make all relevant facts admissible. Logically relevant and legally relevant.—When a fact is connected with another fact, it is logically relevant but it is legally relevant if the law declares it to be relevant. If it is not declared by the law to be relevant, it is not admissible in evidence. Every fact that is legally relevant is also logically relevant but every logically relevant fact may not be necessarily legally relevant. Under the Evidence Act, a fact is said to be relevant to another when it is relevant under the provisions of Sections 6 to 55 of Evidence Act. In Chamberlayne's Modern law of Evidence.28 Relevant, as applied to evidence, must be understood as touching upon the issue which the parties have made by their pleadings so as to assist in getting at the truth of the disputed facts. Whatever evidence will withstand this text should not be objected to. Facts in issue.—There is no difficulty at all in ascertaining what are the facts in issue. The facts in issue may by themselves or in connection with other facts constitute such state of things that the existence of the disputed right or liability would be a legal inference from them. The expression means the matter which are in dispute or which form subject of investigation. 'Facts in issue' are those facts which are alleged by one party and denied by the other in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case. The term "facts in issue" will become intelligible by examples. Examples (1) A is a cashier in a factory. It is his duty to bring money from bank and distribute it to the labourers. A case under Section 409, I.P.C., "Criminal Breach of Trust" is started against him. The case against him is that he brought Rs. 25,000 from the bank and misappropriated Rs. 13,000 out of it. A says, in his defence, that he brought the cash from the bank and as he was to go on leave that day, he according to the direction of the

Manager of the Company, handed over Rs. 25,000 to B, the Assistant Cashier. Now the question is whether A is liable for criminal breach of trust. Now we should know what is a Criminal Breach of Trust. ______________________ 28. Vol. I, Sec. 25.

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"Whoever being in any manner entrusted with property...... dishonestly misappropriates or converts to his own use that property, is guilty of criminal breach of trust."29 According to this definition, before a person is held guilty of criminal breach of trust, it is to be found : (1) That he has been entrusted with some property. (2) That he has dishonestly misappropriated that property. Now we refer to the aforesaid illustration. The question is whether A is liable for criminal breach of trust. Before the Court holds A liable for Criminal Breach of Trust, it has to decide : (a) Whether A handed over money to B. (b) Whether A worked that day in the office. (c) Whether B worked that day and distributed the money— (a) the fact that A handed over money to B, (b) the fact that A did not work in the office that day, The guilt or innocence of A follows and so these are facts in issue in the trial of A for criminal breach of trust. (c) that B worked and distributed money to labourers that day. (2) One A dies intestate. One D enters into possession of his property. S filed a suit for possession against D alleging that she is a sister of A, that she alone is the heir of A. D files a written statement contending that she is the daughter and the only heir of A and that S is not a sister of A. In this case the court in order to give a decision has to decide (1) whether S is a sister of A ; (2) whether D is a daughter of A ; (3) whether S is the only heir of A. If the court comes to the conclusion that S is not a sister of A, it will dismiss the suit. Again if it comes to the conclusion that D is a daughter of A the suit of S would be dismissed even if it is held that S is a sister of A, because under Hindu law a daughter is a preferable heir to a sister. The court can decree the suit of the plaintiff when it comes to the finding that D is not a daughter of A, that S is the sister of A and that no nearer heir than S is in existence. From the fact (1) whether S is a sister of A, (2) whether D is a daughter of A, (3) whether S is the only heir of A, the existence or non-existence of right of S to the property of A necessarily follows. Therefore they are facts in issue. What facts are in issue in a particular case is a question to be determined by the substantive law, or in some instances by that branch of the law of procedure which regulates the forms of the pleading, civil or criminal. Order XIV, Rule 1, C.P.C., lays down that "issues arise when a material proposition of fact or law is affirmed by the one party and denied by the __________________________ 29. See Section 405, I.P.C.

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other." Thus under the said Order issues are framed on the contest of the parties. Under the explanation to the definition of "facts in issue" when under Order XIV, Rule 1, issues of facts are recorded, the facts to be asserted or denied in the answer to such issue are also "facts in issue". Reverting to the example given in answer to issue 'whether S is the sister of A' the plaintiff has to lead evidence to the effect that 'S is a sister of A' and the defendant will give evidence to the effect that 'S is not a sister of A'. Thus the facts that 'S is a sister of A' are also facts in issue. Thus facts are relevant if they are—

Facts in issue

Relevant facts

Means and includes any fact from which either by itself, or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability asserted or denied in any suit or proceeding necessarily follows. No list is given in Evidence Act of the facts in issue. The court has to frame in every case.

One fact is said to be relevant to another when one is connected with the other in any of the following ways: (1) Facts forming part of the same transaction (Section 6). (2) Facts which are occasion, cause or effect of the facts in issue (Section 7). (3) Motive, preparation, conduct of a party (Section 8). (4) Facts, necessary to explain the facts in issue (Section 9). (5),Things, said or done by conspirators (Section 10). (6) Facts inconsistent with facts in issue (Section 11). (7) Facts helping in the estimate of damages (Section 12). (8) Transaction creating right, etc. (Section 13). (9) Facts stating of mind or body (Section 14). (10) Facts showing whether act is intentional or accidental (Section 15). (11) Existence of course of business (Section 16). (12) Admission (Sections 17 to 23 and 31). (13) Confession (Sections 24 to 30). (14) Statements of persons who are dead or cannot be found (Sections 32 and 33).

(15) Statements made under special circumstances (Sections 34 to 39). (16) Judgments (Sections 40 to 44). (17) Opinions of experts and others (Sections 45 to 47). (18) Opinions as to existence of custom and usages (Sections 48,49). (19) Opinion on relationship (Section 50). (20) Character (Sections 52 to 55).

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Document.—The definition of the term 'document' as given in this section is very wide. In general parlance the word 'document' is understood to mean any matter written upon a paper in some language, such as English, Hindi, Urdu and so on. But according to the definition given in this Act "document" means any matter expressed or described upon any substance, paper, stone, or anything by means of letter or marks. The term 'document' includes 'milkman's score.' Exchequer's tallies, a ring, or banner with an inscription, a musical composition, a savage tattooed with words intelligible to himself. Letters or marks imprinted on trees and intended to be used as evidence that the trees have been passed for removal by a Ranger, are documents. "Evidence".—The word "evidence" in the Act signifies only the instruments by means of which relevant facts are brought before the court. The instruments adopted for this purpose are witnesses and documents. Under this definition the evidence is divided in two clauses (1) oral and (2) documentary. Oral evidence.—The oral evidence means statement made by a witness before a court in relation to matter of fact under inquiry. Documentary evidence.—When a document is produced in a case in support of the case of the party producing it, the document becomes the documentary evidence in the case. A document is evidence only when it is produced for the inspection of the Court. Consequently a writing obtained by the court for the accused for comparison is not evidence as it is not a document produced for the inspection of the court.30 Definition defective.—As said above, the word 'evidence' under the Evidence Act includes only the statements of witnesses and documents produced. This definition is incomplete. There are so many things which are as good evidence as statements and documents but they are excluded from the definition of evidence. A Magistrate or a Sessions Judge may question the accused and the answer may be used against him. Every day at a trial questions are put to the accused as to whether they committed the crime with which they have been charged and very often the accused answers in the affirmative, i.e., he admits his guilt and his statement is considered by the court. But according to the definition in the Evidence Act this statement of the accused is not evidence. The demeanour of a witness is very often taken into consideration by a court but this is also not evidence according to the Act. The courts (criminal and civil) make local inspection, and the memorandum prepared by them forms part of the record and also utilised by the court in weighing the evidence but when tested by the definition of the Act it is not evidence. Thus it is clear that the definition of 'evidence' given in Indian Evidence Act is incomplete and defective. It excludes the statements and admissions of the parties, their conduct and demeanour before the court, circumstances coming under the direct cognizance of the court, facts of which, the court can take judicial notice of and the fact which the court must or may presume. ______________________

30.

Ram Swarup v. State, AIR 1958 All. 119.

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Affidavit if evidence.—When the court has not directed the proof of a fact by an affidavit it is no evidence.31 Affidavit is no evidence under the Evidence Act but it can be so used under Order XIX, C.P.C., and Sections 295 and 296 of the Criminal Procedure Code. The definition of evidence in Section 3 of Evidence Act does not include affidavit and the affidavit can only be included in the definition of evidence if the Court has passed orders under Order 19 Rules 1 and 2 on sufficient ground. The affidavit can not be read as evidence to prove some evidence (fact). Any such decree which is based on affidavit filed before the Court should not be deemed to be based upon any evidence and (that decree) should be treated as nullity.32 In, Nirmala v. Hari Singh,33 the Delhi High Court held the affidavits not included in Section 3 of Evidence Act. An affidavit cannot be used in evidence unless law specifically permits certain matters to be proved by affidavit. The reason is that the deponents of affidavit is not subject to cross-examination for the declaration made in such affidavit. Judge's personal knowledge and observation—No evidence.— Judge cannot impart his personal knowledge to take place of evidence nor can he rely on books (not being text books) if the books were not admitted in evidence or were inadmissible.34 When the Act speaks of matters before it, it means before it in legal manner.35 The Judge should not use his personal observation as evidence because in this way he becomes a witness without being cross-examined. The Sessions Judge ordered the accused to put on the pair of shoes recovered by the police. He then observed and got recorded. "To all appearance they quite fitted the feet of the accused even though he complained that the shoes were too tight for his "feet." It was held that the learned Judge was not entitled to allow his view or observation to take the place of evidence, because such view or observation could not be tested by cross-examination.36 Statement of accused if evidence.—In Hari Singh Bhagat Singh v. State of Madhya Pradesh,37 the Supreme Court has held that the statement of the accused under old Sections 208, 209 and 342 (new Section 313), Cr.P.C., have to be received in evidence and treated as evidence. Contrary to this, the High Court of Calcutta has held that when the accused makes a statement in answer to questions from the court it does not fall within the definition of the word 'evidence' as defined in the Evidence Act.38 It may be submitted that strictly speaking the statement of the accused is not evidence under Evidence Act. But whether evidence or not it is a matter ______________________ 31. Vishwanath v. Abdul, AIR 1963 SC 1. 32. Smt. Sudha Devi v. M. P. Narayanan, AIR 1988 SC 138 ; See also Jagdish Prasad v. Prem Lata Rai, AIR 1990 Rajasthan 87. 33. AIR 2001 H.P. 2001. 34. Vallabh v. Madusudanam, ILR 12 Mad. 495 ; Durga Prasad Singh v. Ram Dayal Chaudhari, ILR 38 Cal. 153. 35. Barindra v. Emperor, ILR 37 Cal. 467.

36. 37. 38.

Pritam Singh v. State of Punjab, AIR 1956 SC 415 : 1956 Cr.LJ 805. AIR 1953 SC 468. AIR 1958 Cal. 616.

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before the court and may be taken into consideration with the evidence adduced by the prosecution for deriving assistance to the prosecution case.39 No conviction can be based only on the statement of the accused.40 Recording of evidence through video conferencing.—Examination of witnesses through Video Conferencing has been approved by the Supreme Court in Civil Cases in State of Maharashtra v. Dr. Praful B. Desai case.41 This can be afforded in Criminal cases too as per the case of Bodala Murali Krishna v. Smt. S. Bodala Prathima.42 Tape-recorded version—Admissibility of.—In Ram Singh v. Ram Singh (Col.),43 the Supreme Court through Justice Fazal Ali laid down the following tests regarding the admissibility of tape-recorded version— "1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker. 2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence : direct or circumstantial. 3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded. 4. The tape-recorded statement must be relevant. 5. The recorded cassette must be sealed and must be kept in safe or official custody. 6. The voice of the particular speaker must be; clearly audible and must not be lost or distorted by other sounds or disturbances." In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra44 the Supreme Court examined the question of admissibility of tape recorded speech in which the Supreme Court referred to the judgment in R. v. Maqsud Ali,45 observed: "We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions : (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. _____________________ 39. Jammu Municipality v. Puran Prakash, 1975 Cr LJ 677; Parshotam Das v. State, 1975 Cr. L] 309. 40. Hari Kishan v. State, 1974 Cr. LJ1121. 41. AIR 2003 SC 2053. 42. AIR 2007 AP 43. 43. 1985 (Supp.) SCC 611: AIR 1986 SC 3. 44. AIR 1975 SC 1788. 45. (1965) 2 All ER 464.

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(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act." Classification of evidence.—Evidence may be classified under the following heads : (1) Direct and circumstantial evidence. (2) Real and personal evidence. (3) Original and un-original evidence. (4) Substantive and non-substantive. (5) Positive and negative. (6) Prosecution evidence and defence evidence. 1. Direct evidence.—Direct or Positive evidence is evidence about the real point in controversy, e.g., A. is tried for causing grievous hurt to B with a club. C deposes to the effect that he saw the accused, inflicting the blow which caused the grievous hurt. A is tried for setting fire to the house. B deposes that he saw A setting fire to the house. A files a suit against B on the basis of an agreement. C deposes that he was present when the agreement was entered into and he witnessed it. All these are instances of direct or positive evidence, as the witnesses are deposing exactly to the precise point in issue. Eye-witness.—When the evidence of eye-witnesses clearly bring out accusations against the accused, certain minor variations in their testimony cannot in any way corrode the credibility of the prosecution version.46 Eye witnesses—Some contradictions or omissions of details of incident.—Where the eye-witnesses were examined in the Court two and half years latter, some contradictions or even omissions to state the incident in great details by itself would not lead to a conclusion that the appellants had been falsely implicated in the case.47 The minor discrepancies on trivial matters without affecting the case of the prosecution evidence should not prompt the Court to reject evidence in entirety.48 Where three persons were murdered in two incidents on the same evening and the son of one of the accused persons in the latter incident was murdered in the first incident, some eye witnesses in the latter incident were mentioned in the FIR of first incident, the cogent and credible testimony holding the accused persons guilty of murder cannot be discarded.49 Irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions.50 The fact that the eye-witnesses, the son of the deceased, had not been able to spell out accurately the situs of injuries on the dead body, would not _________________________ 46. Ram Swaroop v. State of Rajasthan, AIR 2008 SC 1747 at p. 1749. 47. Vikram v. Stated Maharashtra, AIR 2007 SC 1893 at p. 1898. 48. State Rep. by Inspector of Police v. Saravanon, AIR 2009 SC 152 at P. 156. 49. Bathula Nagamalleswar v. State Rep. by Public Prosecutor, AIR 2008 SC 3227 at p. 3237. 50. State of Rajasthan v. Om Prakash, AIR 2007 SC 2257 at p. 2259.

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make his presence doubtful when the victim was under the attack from a group of persons armed with deadly weapons, one cannot expect that in such a situation, the witness would graphically describe the nature of injuries and spell out accurately the situs of injuries on the body of the victim.51 The testimony of eye-witnesses cannot be rejected merely on the ground of being criminal to the accused persons.52 The fact that the witness was inimical towards the accused persons as he had made a complaint to the police that the accused persons had attempted to kill him, it by itself would not be a valid ground to discredit him who is otherwise truthful.53 Credibility of testimony of injured witness.—The evidence of injured person lends more credence because normally he would not falsely implicate a person thereby protecting the actual assailant.54 Hostile Witness.—An outright rejection of evidence of a hostile witness is not called for and both parties are entitled to rely on such part of evidence which assists their case.55 Proof and evidence.—Evidence of fact and proof of a fact both are not synonymous terms. Proof is the effect of evidence. Proof considered as the establishment of material facts in issue in each particular case by proper and legal means to the satisfaction of the court is effected by— (a) evidence or statements of witnesses, admissions of confessions of the parties, production of documents; (b) presumptions; (c) judicial notice ; and (d) inspection. Standard of proof in Civil and Criminal Cases.—There is the marked difference as to the standard of proofs in Civil and Criminal cases. In the former, a mere preponderance of probability, due reference being had to the burden of proof, is a sufficient basis of decision. But in criminal proceedings a much higher degree of proof is needed before a person is convicted. In civil cases the burden may lie on either of the parties. The pursuation of guilt ought to amount to a moral certainty. It is better that ten guilty men should escape than that one innocent should suffer. Presumption of innocence.—In criminal cases, the presumption is that the accused is innocent till the contrary is established. It is often said that it is better that ten guilty men should escape than that one innocent man should suffer. Greatest possible care should be taken by the Court in convicting the accused. If there is an element of reasonable doubt as to the guilt of the accused the benefit of that doubt must go to him. A mere suspicion, however, strong cannot take the place of evidence.56 ________________________ 51. Paramjit Singh alias Mithu Singh v. State of Punjab, AIR 2008 SC 441 at p. 446. 52. State of Maharashtra v, Tulshiram Bhanudas Kamble, AIR 2007 SC 3042 at p. 3046. 53. Manilal Hiraman Chaudhari v. State of Maharashtra, AIR 2008 SC 161 at p. 163. 54. Vijay Sankar Sinde v. State of Maharashtra, AIR 2008 SC 1198 at p. 1199. 55. Sarvesh Narain Shukla v. Daroga Singh, AIR 2008 SC 320 at p. 325. 56. Sarvan Singh v. State of Punjab, AIR 1957 SC 637.

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Circumstantial evidence.—Circumstantial evidence is that which relates to a series of other facts than the fact in issue : but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. When footprints are found on sand it is inferred that some animate being has gone that way and also from the shape of footprints it can be ascertained as to whether those are of a man or of a bird or of an animal, similarly from the circumstantial evidence the fact in issue is inferred, e.g., (i) Mohd. Sabit was tried under Sections 377 and 302, I.P.C. for having committed sodomy and thereafter having murdered a boy Baboo, nine years old. There was no evidence to the effect that any person saw the accused committing the crime the only evidence led in the case was : (a) That the accused was seen with the boy going towards the place where the dead body was found at two stages of the journey. (b) After the alleged murder he was seen without the boy near the place where sodomy was committed and dead body was found. (c) He pointed out that the dead body was recovered in consequence of his pointing out. All these evidence are circumstantial evidence. There being no direct evidence, from the facts mentioned above it may be inferred that the accused committed the crime mentioned above. Circumstantial evidence is not to be confused with hearsay or secondary evidence. The circumstantial evidence is always direct and primary, i.e., the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence. In Meria Venkata Rao v. State of A. P.,57 it was held that where the prosecution case mainly rested on extra-judicial confession as one of the circumstance and the accused confessed commission of alleged crime 20 days after the incident but if no apparent reason was found for accused to do so, the possibility deposing about the confession at the instance of Police could not be ruled out. In the case of circumstantial evidence, all the circumstances should be established by independent evidence and they should form a complete chain, bring home the guilt to the accused without giving room to any other hypothesis. The giving of extra judicial confession was doubtful. Therefore the conviction was set aside. In State of Maharashtra v . Bharat Fakira Dhiwar,58 the Supreme Court held that where all the circumstantial evidence clearly and unerringly pointed to the guilt of the accused and the circumstances strongly lent the support to the evidence of child witness, ignoring and brushing aside those circumstance by the High Court and acquitting the accused was not proper. Case resting squarely on circumstantial evidence.—Sir Alfred Wills in his book on 'Circumstantial Evidence' has described following rules to be observed in case of circumstantial evidence— ________________________ 57. AIR 1994 SC 470. 58. AIR 2002 SC 16.

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"(1) The facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum ; (2) The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability ; (3) In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits ; (4) In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; (5) If there be any reasonable doubt of guilt of the accused, he is entitled of the right to be acquitted." A case which rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person.59 In C. Chenga Reddy v. State of A.P.,60 the Supreme Court observed : "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….” Proof by circumstantial evidence.—In Hanumant Govind Nargundkar v. State of Madhya Pradesh,61 the Supreme Court observed : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." ________________________ 59. Manjunath Chennabasappa Madalli v. State of Karnataka, AIR 2007 SC 2080 at p. 2082; Hukum Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu V. State of Hyderabad, AIR 1956 SC 316; Erabhadrappa v. State of Karnataka, AIR 1983 SC 446; State of U. P. v. Sukhbasi, AIR 1985 SC 1224; Balwinder Singh v. State of Punjab, AIR 1987 SC 330; Ashok Kumar Chatterjee v. State of M. P., AIR 1989 SC 1890; Bhagat Ram v. State of Punjab, AIR 1954 SC 621; State of U. P. v. Ashok Kumar Srivastava 1992 Cri LJ 1104; Hanumant Goind Nargendkar v. State of M. P., AIR 1952 SC 343; Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Rajasthan v. Rajaram, 2003 (8) SCC 180; State of Haryana v. Jagbir Singh, 2003 (11) SCC 261; Venkatesan v. State of Tamil Nadu, AIR 2008 SC 2369 at p. 2370; C. Chenga Reddy v.

State of A. P. (1996) 10 SCC 193; Padala Veera Reddy v. State of A. P., AIR 1990 SC 79. 60. (1996) 10 SCC 193. 61. AIR 1952 SC 343.

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Thus in dealing with circumstantial evidence the rule specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should (1) in the first instance be fully established and (2) all the facts so established should be consistent only with the hypothesis of the guilt of the accused, (3) again, the circumstances should be of a conclusive nature and tendency and (4) they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.62 In Sharad Birdichand Sarda v. State of Maharashtra,63 the deceased Manju was married to the appellant Sharad Birdichand on 11th February, 1982. The treatment of her husband and his parents was cruel and harsh. She was treated like a labourer. Things did not improve despite her protests to her husband. She wrote her woeful tale to her sister Anju in the letters and also to her friend but requested Anju not to reveal her sad plight to her parents. Nearly four months after her marriage on 12th June, 1982, she was found dead on her bed. The appellant, Sharad Birdichand Sarda, his brother Rameshwar Birdichand Sarda and their uncle were charged for the offence of murder by poisoning. Accused No. 3 was also charged of offence under Section 201 of I.P.C. read with Section 120 of I.P.C. On the basis of the letters written by the deceased and her statements to some witnesses and the medical report, the trial Court convicted the appellant and sentenced him to death under Section 302 of I.P.C. and all the three accused to rigorous imprisonment for two years and a fine of Rs. 2,000/- each under Section 120-B, I.P.C., but the Court did not award any sentence under Section 201 read with Section 120-B of I.P.C. The Bombay High Court allowed the appeal of accused Nos. 2 and 3 in full and acquitted them and dismissed the revision application of the State for enhancement of sentences of accused Nos. 2 and 3. The appellant whose conviction and sentence was confirmed by the High Court filed special leave to appeal to the Supreme Court. The Supreme Court gave the benefit of doubt to the accused as the possibility of the deceased having committed suicide by the defence could not be ruled out. Justice Syed Murtaza Fazal Ali of the Supreme Court held— "In the cases of murder by administering poison, the Court must carefully scan the evidence and determine the four important circumstances which alone ________________________ 62. Hanumant Govind Nargundkar and another v. State of MP., AIR 1952 SC 343 ; Queen v. Horh Nala, 1941 ALJ 416 ; Ram Bharose v. State of U.P., AIR 1954 SC 704 ; Mangaleshwar Prasad v. State of Bihar, AIR 1954 SC 715 ; Kutuhgli Yadav v. State of Bihar, AIR 1954 SC 720 ; Kedar Nath Bhajoria v. State of West Bengal, AIR 1954 SC 660 ; Bhagat Ram v. State of Punjab, AIR 1954 SC 621; Kalua v. State of U.P., AIR 1953 SC 180; Parshadi v. State of U.P., AIR 1957 SC 21; AIR 1960 SC 29 ; Chandmal v. State of Rajasthan, AIR 1976 SC 917 ; S.P. Bhatnagar v. State of Maharashtra, AIR 1979 SC 826 ; Sharad v. State of Maharashtra, AIR 1984 SC 1622 ; Lakshmi Raj Seth v. State

of Tamil Nadu, AIR 1988 SC 1274 ; State of Kerala v. Amemu, 1988 Cr.L.J. 107 ; State of U. P. v. Ashok Kumar, AIR 1992 SC 840. 63. AIR 1984 SC 1622.

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can justify the conviction : (i) There is a clear motive for an accused to administer poison to the deceased; (ii) that the deceased died of poison said to have been administered; (iii) that the accused had the poison in his possession; and (iv) that he had an opportunity to administer the poison to the accused." "In the instant case, taking an over all” picture on this part of the prosecution case the position seems to be as follows :" "1. If the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in his postmortem report has not found any mark of violence or resistance even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short while before the appellant. 2. Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her." "3. The third possibility is that as Manju had returned pretty late to the flat and she went to sleep even before the arrival of the appellant and then he must have tried forcibly to administer the poison by the process of mechanical suffocation, in which case alone the deceased could not have been in a position to offer any resistance but this opinion of doctor, has not been accepted by the High Court, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the doctor that Manju died by mechanical suffocation had not been proved or at any rate it is not safe to rely on such evidence." "4. The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the postmortem that the deceased died as a result of administration of potassium cyanide." "5. The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour his suspicion was aroused and therefore he called his brother from the adjacent flat to send for Dr. Lodha." "In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide as alleged by the defence cannot be safely ruled out or eliminated. It is clear that the circumstances of the appellant having been last seen with the deceased and has administered the

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opinion has not been proved conclusively so as to raise an irresistible inference that Manju's death was a case of blatant homicide."64 Circumstantial evidence and Weakness of defence.—Justice Murtaza Fazal Ali in Sharad Birdichand Sarda v. State of Maharashtra,65 held— It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link, it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. Before a false explanation can be used as additional link, the following essential conditions must be satisfied : 1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved; 2. The said circumstance point to the guilt of the accused with reasonable definiteness and ; 3. The circumstances is in proximity to the time and situation. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. On the facts and circumstances of the present case this does not appear to be such a case. There is a vital difference between an incomplete chain of circumstances and a circumstance, which, after the chain is complete, is added to it merely to reinforce the conclusion of the Court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction.66 ________________________ 64. Fateh Singh Bhagat Singh v. State of M.P., AIR 1953 SC 468 ; Shamu Balu Chagule v. State of Maharashtra, (1976) 1 SCC 438 and Harijan Meha Jesha v. State of Gujarat, AIR 1979 SC 1566 referred to. 65. AIR 1984 SC 1622. 66. The King v. Horry, (1952) NZLR III quoted with approval. Hanumant v. State of M.P., (1952) SCR 1091; Dharambir Singh v. The State of Punjab, Criminal Appeal No. 98 of 1958 decided on 4.11.58; Chandrakant Nyslchand Seth v. The State of Bombay, Criminal Appeal No. 120 of 1957 decided on 19.2.58 ; Tufail alias Simmi v. State of U.P., (1969) 3 SCC 198 ; Ramgopal v. State of Maharashtra, AIR 1972 SC 656 ; Naseem Ahmed v. Delhi Administration, (1974) 2 SCR 694/696; Mohan Lal Pangasa v. State of U.P., AIR 1974 SC 1144/46; Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCR 384/390 ; and M.C. Agarwal v. State of Maharashtra, (1963) 2 SCR 405/419

referred to. Denonandan Mishra v. The State of Bihar, (1955) 2 SCR 570/582 distinguished.

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Five golden principles of circumstantial evidence.—In Sharad Birdichand Sarda v. State of Maharashtra, 67 the Supreme Court described five golden principles laid down in Hanumant v. State of M.P.68, Panchsheel of the proof of a case based on circumstantial evidence. These rules are as follows: "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahehrao Babade v. State of Maharashtra,69 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that act must have been done by the accused." In Padala Veera Reddy v. State of A. P.,70 the Supreme Court laid down the following tests to be satisfied when a case rests on circumstantial evidence— (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain to complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of another hypothesis than that of guilt of the accused and such evidence should not only be ________________________ 67. AIR 1984 SC 1682 68. AIR 1952 SC 343. 69. AIR 1973 SC 2622 70. AIR 1990 SC 79.

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consistent with the guilt of the accused but should be inconsistent with his innocence. In Kusum Ankama Rao v. State of A. P.,71 the Supreme Court-has laid down the conditions precedent for basing conviction on circumstantial evidence as follows: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concurred 'must' or 'should' and not 'may be' established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.72 In Krishna Ghosh v. State of West Bengal,73 the accused persons were convicted for offences punishable under Sections 498-A, 302 read with Section 34 of I.P.C. The High Court dismissed the appeal. The appeal was made to the Supreme Court on the ground that the case rested on the circumstantial evidence and circumstances did not establish the guilt. The facts were that deceased woman had died of injuries caused by the physical assault on her whose dead body was found in her matrimonial home. The death took place within one year and four months of her marriage. The accused persons were absconding after the incident which was of considerable importance. The injuries noticed by the witnesses were fit with the evidence of autopsy surgeon. The plea of alibi set by the appellant could not be established. The report of the doctor was that the death was due to asphyxia resulting from throttling which was ante mortem and homicidal in nature. The Supreme Court held the appeal without merit and conviction was held to be proper. Dr. Justice Arijit Pasayat observed : "There is no doubt that the conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence as far back as in 1952."74 ________________________ 71. AIR 2008 SC 2819. 72. Ibid., at p. 2823. 73. AIR 2009 SC 2279 ; Also see Gamparai Hrudayaraju v. State of A.P., AIR 2009 SC 2364 ; Raju v. State, AIR 2009 SC 2171. 74. Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343 ; Mala Devi v. State of Uttarakhand, AIR 2009 SC 655 ; Baladev Singh v. State of Haryana, AIR 2009 SC 963 ; State of Goa v. Pandurang Mohite, AIR 2009 SC 1066 ; Arun Bhakta alias Thulu v. State of West Bengal, AIR 2009 SC 1228 ; Mohd. Azad Samin v. State of West Bengal, AIR 2009 SC 1307. Also see Vithal Eknath Adlinge v. State of Maharashtra, AIR 2009 SC 2067.

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In Pandnrang Patil v. State of Maharashtra,75 it has been held that it is not necessary in all cases that the commission of Crime be proved by ocular evidence by examining before the Court those persons who have seen the commission of crime. The principle of factum prohandum may be proved indirectly by means of certain inferences drawn from factum probans, i.e., through evidentiary facts. It is further not necessary that all the eye witnesses should specifically refer to distinct acts of each member. Even if there is discrepancy in this regard, the evidence cannot be rejected.76 In Kalua v. State of U.P.,77 Kalua was charged with the murder of deceased by shooting him with a pistol. The circumstantial evidence proved were : (a) few days before the killing of the deceased the accused had held out a threat against him, (b) a cartridge was found near the cot of the deceased, (c) a pistol was recovered from his house, (d) the firearm expert gave his opinion that the cartridge found near the cot of the dead body was fired from the pistol produced by the accused. It was held, that there could be no room for thinking in the circumstances established in this case, that anyone else other than the accused might have shot the deceased. He was convicted. In Parshadi v. State of U.P.,78 the accused was tried for the murder of Chimman Lal. It was found that there was motive to commit the murder, that the accused held out threats to the father of the deceased, that the appellant had an access to the deceased, that the clothes of the deceased were handed over by the appellant to the police and that the appellant falsely denied several relevant facts which had been proved. It was found that it was consistent only with the guilt of the accused. Where it was established that (1) there was bitter enmity with the accused and the deceased, (2) that the accused were carrying the dead body of the deceased, (3) they were also carrying Bhala and Pharsa at that time, (4) it was also proved that the deceased had injuries caused by the weapons which the accused were carrying. The accused could not explain as to how they happened to carry the dead body. The accused were held guilty.79 The circumstances proved were that the accused was seen at the place of occurrence and that he could not explain the injuries on his person. The guilt was not held to be proved.80 Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of another person. The circumstances, from which inference of guilt of accused is to be drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.81 ________________________ 75. AIR 2004 SC 3562. 76. AIR 2006 SC 831. 77. AIR 195S SC 180. 78. AIR 1957 SC 211. 79. Awadhi Yadawa v. State of Bihar, AIR 1971 SC 69. 80. Jagta v. State of Haryana, AIR 1974 SC 1545.

81. Shivaji alias Dadya Shankar Alhat v. State of Maharashtra, AIR 2009 SC 56 at p 61 ; Chhattar Singh v. State of Haryana, AIR 2009 SC 378, Asraf SC v. State of West Bengal, AIR 2009 SC 27.

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In State of U. P. v. Ravindra Prakash Mittal (Dr.),82 the accused, the husband of the deceased was charged of committing the murder. The medical evidence revealed the cause of death strangulation in the night or early hours of morning and thereafter her body was set on fire after sprinkling kerosene. The defence plea was that the deceased committed suicide when her husband was not at home. The letters written by the deceased to her near relatives showed that the relations between the husband and wife were not normal. The accused used to return to the house in the drunken state in the night. The evidence was also to the effect that deceased used to cook her food separately on being compelled by the accused. There was no direct evidence to connect the accused with the offence of murder. On the basis of evidence, it was found that on the ill-fated night both the husband and wife took their bed in the room which was in their exclusive possession. Barring the duo, no one was in their room and the deceased was found dead in the early morning. All the external and internal symptoms showed that death was homicidal and not suicidal. The accused was sentenced to imprisonment for life and rigorous imprisonment for 3 years under Sections 302 and 201 of I.P.C. with the direction to run the sentences concurrently. The High Court held the accused not guilty on the basis of circumstances but the Supreme Court agreed with the trial Court and held the accused guilty on the basis of circumstances. As regards the cause of death, the High Court rejected the defence version and with it, the Supreme Court agreed. The Supreme Court pointed out two important features to support the conclusion that the death was homicidal— (1) The dead body was found inside the scorched cot frame, and (2) the back portion of the body was not burnt indicating that the deceased could not have poured the kerosene over her body. Further, had the deceased put her to death by burning herself, she should have involuntarily moved hither and i thither under the agony and would not be lying on the back motionless. There was no sign of involuntary movement and any evidence of screaming and shrieking by the victim at the time of reeling under the terrible shock and agony on being engulfed in flames. On the basis of evidence, the defence of alibi was found to be false. It was for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end when the respondent was in the company of his wife on the previous night and was found in the bed room early morning. The conclusion arrived at by the trial Court was therefore, held to be correct.83 Justice S. Ratnavel Pandian of the Supreme Court stated the following essential ingredients to prove the guilt of an accused by circumstantial evidence— (1) The circumstances from which the conclusion is drawn should be fully proved. (2) The circumstances should be conclusive in nature. (3) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. ________________________ 82. AIR 1992 SC 2045. 83. Chandra Mohan Tiwari v. State of Madhya Pradesh, (1992) 1 JT (SC) 258 followed.

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(4) The circumstances should, a moral certainty, exclude the possibility of guilt of any person other than the accused.84 In K. T. Palanisamy v. State of Tamil Nadu,85 the deceased who was passing through tough times and his son also remained ill for a long time was advised by the appellant to perform poojas on the bed of the river. He went to perform pooja at that place along with the accused persons. The deceased at that time was said to be wearing a gold chain and two gold rings, he did not come back. The wife of the deceased to search her husband sought for the assistance of the appellant who in turn advised to perform a pooja. Then the parents of the deceased and his grand-mother left for the temple to perform the pooja in the company of the appellant but they also did not return home. The crime under Section 302/179 IPC was registered and the alleged confession made by the appellant, a gold chain and ring and some bangles were seized in connection with the murder of the deceased's parents and grand-mother were seized from the vendee and jewellery shop. The appellant was held not guilty of the offence of murder of the deceased due to following reasons— The dead body of the deceased was not recovered. There was no evidence of death. It was not shown that there was enough water in the river or current in the water so as to take a dead body away. All the prosecution witnesses were related to the deceased therefore the chances of their deposing falsely could not be ruled out. Regarding circumstantial evidence, justice S. B. Sinha observed: "It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete……"86 Not giving exact description of injuries.—Where the entire family was involved in the incident either one side or the other and the injuries were caused by several accused persons armed with different kinds of weapons and evidence of eye-witnesses was recorded more than five years ago, it would be unreasonable to expect a witness to give a picture of perfect report of the injuries caused by each witness to the deceased or the injured. With the passage of time, memory also tends to dim and it is difficult for a witness to recall events with precision. Not giving an exact description of the injuries would not detract from the substratum of their evidence.87 Material discrepancies.—Material discrepancies are those which are not normal and not expected of a normal person. Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. Such discrepancies are always there, ________________________ 84. Ramanand v. State of Himachal Pradesh, (1981) 1 SCC 511 ; Gambhir v. State of Maharashtra, (1982) 2 SCC 351 ; Erabhadrappa v. State of Karnataka, (1983) 2 SCC 330 and Ram Autar v. State of Delhi Adm., 1985 (Supp) SCC 440 referred to. 85. AIR 2008 SC 1095. 86. K. T. Palanisamy v. State of Tamil Nadu, AIR 2008 SC 1095 at p. 1097.

87.

Chandrappa v. State of Karnataka, AIR 2008 SC 2323 at pp. 2327-2328.

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howsoever, honest and truthful a witness may be. Normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.88 Want of explanation.—It is true, in a case of circumstantial evidence not only should be various links in the chain of evidence be clearly established but the completed chain should be such as to rule out the reasonable likelihood of the innocence of the accused. But in case where the various links have been satisfactorily made out and the circumstance points to the appellants as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation and he offers no explanation which if accepted, though not proved would afford reasonable basis for conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.89 Where the deceased died in her bed-room in an unnatural circumstance which was occupied only by her and her husband, the husband was required to offer an explanation in this behalf. Absence of any explanation by the husband would lead to an inference leading to a circumstance against the accused. However, it is not a general law. Much would depend upon the facts and circumstances of each case.90 Last seen theory.—In Kusuma Ankama Rao v. State of A. P.,91 the accused was having illicit affair with the deceased woman. He inquired the son of the deceased about the whereabout of the deceased. The son of the deceased took the accused to a place where she was working as a labourer. He took her with him asking her son not to follow him. He went with her to a black gram field. They were seen by two other persons while going to the field. His son waited sometime but when she did not come, he went to the hotel where he was working and to the house late night. In the morning, when he did not see her mother, he narrated the facts to his father. Meanwhile, they heard the people saying that a dead body was lying in the black-gram field. The body was of the deceased and the Investigating Officer on the receipt of FIR conducted Panchnama and held inquest over the report. Meanwhile, the accused confessed his guilt to the village Administrative Officer who after recording and duly attesting his statement took the accused to the police. The conviction of the accused was held to be proper. The High Court of Andhra Pradesh dismissed the appeal. The Supreme Court also dismissed the appeal. On the last seen aspect, the Supreme Court referred to State of 17. P. v. Satish,92 and Ramareddy Rajesh Khanna Reddy v. State A. P.,93 with approval that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person ________________________ 88. Kulesh Mondal v. State of West Bengal, AIR 2007 SC 3228 at p. 3230; Krishna Mochi v. State of Bihar, JT 2002 (4) SC 186. 89. Deonandan v. State of Bihar, AIR 1955 SC 801; Mohan Lal v. State of U.P., AIR 1974 SC 1144 ; Sarad v. State of Maharashtra, AIR 1984 SC 1622. 90. Swamy Shraddhananda v. State of Karnataka, AIR 2007 SC 2531. 91. AIR 2008 SC 2819.

92. 93.

2005 (3) SCC 114. 2006 (10) SCC 172.

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other than the accused being the author of the crime becomes impossible. Even in such a case, the Courts should look for corroboration. The witness did not state that he had seen the deceased and accused together but the accused was present at some distance nearby the field where the deceased was working. It was held not to bring the concept of the accused and deceased being seen together last.94 Mistake in giving period.—Where in a case of dowry death, the witness committed some mistake in giving the period during which dowry demand was made by the accused which was not consistent with the facts on record, the Court might not accept it but only for that reason, the court should not make disparaging remarks that there was falsehood on the part of the witness.95 Circumstantial evidence—Chain.—In Liyakat v. State of Uttaranchal,96 the parents of the deceased child of one and half year left the child in the custody of the accused persons on their offer to look after the child when the parents of the child went to feed fertilizers to the crops standing in the field. When they returned, they could not find the child. They searched the whole day but could not find him. The next morning, they searched the house or hut of the accused persons and saw in the northern corner of the hut foot of small child protruding out of the ground. The father reported to the police. The police recovered the body of the buried child from the northern corner of the hut. Since the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive possession. They were held guilty for murder. Dr. Arijit Pasayat J. of the Supreme Court observed: "It has been rightly noted by the Trial Court and High Court that the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive user." "Similarly the non-explanation of this vital circumstance adds to the chain of circumstances. It is now settled law that if the deceased was in the custody or in the company of the accused, then the accused must supply some explanation regarding the disappearance of the deceased".97 Chain of events not laid down with precision.—In a claim of maintenance by an illegitimate child alleged to be of the respondent, the claim was supported by the evidence of the mother and several other villagers. In the birth register, the name of the respondent was shown as her father. In the admission form of the school, the name of the father was kept blank as expected from an unwed mother. The evidence of the illiterate villagers that the claimant's mother and respondent had lived in her house long before could not be rejected on the ground that she had been in Sri Lanka at the relevant ________________________ 94. Harishchandra Ladaku Thange v. State of Maharashtra, AIR 2007 SC 2957 at p. 2960. 95. Kishan Singh v. State of Punjab, AIR 2008 SC 233 at p. 238. 96. AIR 2008 SC 1537.

97. Liyakat v. State of Uttaranchal, AIR 2008 SC 1537 at p. 1541, State of Rajasthan v. Raja Ram , 2003 (8) SCC 180.

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time and therefore, could not have been host as the chain of events with precision cannot be laid down by the illiterate villagers with no sense of time.98 Non-explanation of injuries on accused by the prosecution.—Non-explanation of an insignificant injury by the prosecution on the person of only one accused does not dislodge the prosecution story. It is well settled that the prosecution is not called upon to explain each and every injury on the person of an accused.99 Circumstantial and hearsay evidence.—Circumstantial evidence is not to be confused with hearsay or secondary evidence. The circumstantial evidence, is always direct and primary. The circumstantial evidence is merely a direct evidence indirectly applied, and the direct evidence when closely analysed is found to possess the inferential quality.1 Real or personal evidence.—Real evidence is that which is addressed to the sense of the tribunal, as where the object is presented for the inspection of the court. The seriousness of injuries may well be appreciated by the court seeing the injured man. So all the instruments by which offence is alleged to have been committed, all clothes of parties (wet with blood), from which inference may be drawn may be produced at the trial of the case. A court may inspect the locality of the offence to appreciate the evidence. It is alleged that B was murdered in front of his house. C, D and E allege that they saw the murder being committed from their houses. The accused contends that the place of murder is not visible from the houses of C, D and E. The court may make the local inspection and thereby know for itself if the witnesses were in a position to see. For obvious reasons there is no class of evidence so convincing and satisfactory to a court as that which is addressed directly to the sense of the court. Personal evidence is that which is afforded by human agency. A is charged with the murder of B. Witnesses come and depose before the court to the effect that they saw A killing B. Here the evidence reaches the court through human agency. (3) Original evidence.—By original evidence is meant the production of the thing proved in its original form, e. g., L bases his claim on a sale-deed. The sale-deed is the original evidence. (4) Unoriginal or second-hand evidence.—Unoriginal evidence is that which derives its force from other. In the above example if instead of the original sale-deed a copy is produced, it would be unoriginal evidence of the deed. (5) Substantive and non-substantive.—Substantive evidence is that on which reliance can be placed for the decision of a case. A non-substantive evidence is that which either corroborates the substantive evidence to increase its credibility or which contradicts a substantive evidence to discredit it. ________________________ 98. Dimple Gupta v. Rajiv Gupta, AIR 2008 SC 239 at p. 241. 99. Chandrappa v. State of Karnataka, AIR 2008 SC 2323 at p. 2328. 100. Gulab Chand v. Kudi Lal, AIR 1959 MP 151.

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(6) Positive and negative evidence.—Positive evidence tends to prove the existence of a fact whereas by a negative evidence non-existence of a fact is proved. But it should be borne in mind that negative evidence is ordinarily no good evidence.2 (7) Prosecution evidence and defence evidence—Prosecution witness.—A prosecution witness is that which is the witness of prosecution story. He supports the prosecution case by the testimony as the witness of crime or as expert witness or as an investigating agent etc. Delay in examination of prosecution witnesses during the course of investigation.—The delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution case. Unless the Investigating Officer is categorically asked regarding delay in examination of witnesses, the defence cannot gain any advantage therefrom. The delay in examination of a particular witness does not make the prosecution version suspect. It would depend upon several factors. If the explanation offered for delayed examination of the witness is accepted by the Court as plausible, there is no reason to interfere with conclusion.3 Defence Witness.—Like prosecution witness, the defence witness supports the defence version to shake the reliability of prosecution story.

Facts

Distinction between Facts and Evidence Evidence

1. Facts are those things which 1. are in existence of which a man is conscious of. 2. Facts can be positive or negative. 2. 3. Facts can be physical or 3. psychological. 4. All facts are not evidences unless they are not allowed to be produced before court in any legal proceedings. 4.

Evidence are those means (witness or document) by which the relevant facts are brought before court. Evidence can be oral or documentary. Evidences are only expressed facts. Psychological facts are evidence only when they are expressed by means of expression. All evidence are facts in some way or the others.

"Proved."—"Proof does not mean proof to rigid mathematical demonstration, because that is impossible. It means such evidence as would ________________________ 2. Rahim Khan v. Khurshed, AIR 1957 SC 290, para 40. 3. Abuthagir v. State Rep. by Inspector of Police, Madurai, AIR 2009 SC 2797 at p. 2S02 ; Ranbir V. State of Punjab, AIR 1973 SC 1409 ; Bodhraj v. State of J&K, 2002 (8)

SCC 45 ; Banti v. State of MP., 2004 (1) SCC 414 and State of U.P. v. Satish, AIR 2009 SC 261.

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induce a reasonable man to come to a conclusion"4. All that can be done is to adduce such evidence as that the mind of the tribunal is satisfied that the fact is so. In the ordinary affairs of life, the courts do not require demonstrative evidence. The true question in trials of facts is not whether it is possible that the testimony may be false but whether there is sufficient probability of its truth. "The law does not demand that you should act upon certainties alone….in our lives, in our acts, in our thoughts, we do not deal with certainties : we ought to act upon just and reasonable convictions founded upon just and reasonable grounds." The word "proof" seems properly to mean "anything which serves either immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition." Absolute certainty amounting to demonstration is seldom to be had in the affairs of life and we are frequently obliged to act on degrees of probabilities which fall very short of it indeed. Practical good sense and prudence consists mainly in judging a right whether in each particular case the degree of probability is so high as to justify one in regarding it as certainty and acting accordingly."5 In M. Narsingha Rao v. State of Andhra Pradesh,6 the Supreme Court held that a fact is said to be proved when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under circumstances of particular case, to act upon supposition that it exists. This is the definition of the word 'proved' in Evidence Act. What is required is production of such materials on which the Court reasonably acts to reach the supposition that the fact exists. Proof of facts depends upon degree of possibility of having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. The extent to which a particular evidence aids in proving the fact in controversy is called as probative force. This probative force must be sufficient to induce the court either (a) to believe in the existence of the fact sought to be proved, or (b) to consider its existence so probable that a prudent man ought to act upon the supposition that it exists. The test is of probability upon which a prudent man may base his opinion.7 In other words, it is the estimate which a prudent man makes of the probabilities having regard to what must be his duty as a result of his estimate.8 "On the question of standard of proof there is but one rule of evidence which in India applies to both civil and criminal trials, and that is contained in the definition of 'proved' and 'disproved' in Section 3 of the Evidence Act. The test in each case is, would a prudent man, after considering the matters before him deem the fact in issue proved or disproved? The court can never be bound by any rule but that which coming from itself dictates a conscientious, and prudent exercise of its judgment".9 In criminal cases, the standard of proof required is proof beyond reasonable doubt, yet it need not be absolute. Concept of probability cannot be ________________________ 4. State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418. 5. Hawkins v. Powells Coal Co., 1QB 988. 6. AIR 2001 SC 318. 7. Pershady v. State, AIR 1955 All. 443. 8. Government of Bombay v. Sakur, AIR 1947 Bom. 38.

9.

Westone and others v. Peary Mohan Das, ILR 40 Cal. 898.

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expressed with mathematical precision as it involves subjective element and it rests on common sense.10 The burden of proof in criminal trial never shifts. It is settled principle of criminal jurisprudence that the more serious is the offence the stricter is degree of proof, since a higher degree of assurance is required to convict the accused.11 Proof and suspicion.—It must be borne in mind that suspicion and conjecture cannot take the place of legal proof. Matters before it.—In order to decide as to whether a particular fact is proved, the court has to consider the 'matter' before it. The section does not say the 'evidence' before it. Thus the expression, "matters before it" in this definition includes materials which do not fall within the definition of 'evidence' as given in Section 3. The result of local enquiry by a court, material objects brought before the court, the demeanour of witnesses, admission by parties, confessions by the accused, statement of the accused, Commissioner's reports, are not evidence according to the definition given in Section 3. But they are all matters before the court to be considered while coming to conclusion. "Disproved and not proved".—The definition of the word 'disproved' is a converse of the definition of the word 'proved'. The expression 'not proved' indicates a state of mind in between the two, that is, when one cannot say whether a fact is proved or disproved. It negatives both proof and disproof. Section 3 of Evidence Act, while explaining the meaning of 'proved', 'disproved' and 'not proved' provides, the standard of proof. This standard should be of ordinary prudence in person, who will judge its existence or nonexistence from the standard of circumstances before him (the person of ordinary prudence). In Naval Kishor Somani v. Poonam Somani,12 Andhra Pradesh High Court held that a fact which is proved does not necessarily mean that it is false one. The expression 'proved' is followed by expression disproved. This is followed by definition of 'not proved'. The fact is said to be not proved when it is neither proved nor disproved. On the other hand the fact is said to be disproved when after considering the matters before it the court either believes that it does not exist or considers its non-existence. So probable that a prudent man ought, under the circumstances of this case, to act upon the supposition that it does. The word 'disprove' is akin to the word 'false'. What is disproved is normally taken to be false thing. It will be thus seen that a fact proved is not necessarily a fact disproved. A fact which is 'not proved' may be false or true. A doubt lingers about its truth merely because it is not proved or may not jump to the conclusion that it is disproved. A fact is disproved normally by the person who claims that alleged fact is not true. For proving a fact, burden is always on the person who alleges that the fact is not true. This section uses a kind of phraseology so that one can find out two states of mind. Firstly, this that about which he arrives at the firm and fixed ____________________ 10. State of M.P. v. Dharkole, 2005 SCC (Cri) 225. 11. Mousam Singh Roy v. State of West Bengal, (2003) 12 SCC 377. 12. AIR 1999 A.P. 1.

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decision. In other words, he believes firmly on the existence of that fact. Secondly, in which he does not believe in the firmness. In other words, he does not feel the existence of the fact with firm decision but he feels the probableness of the existence of that fact on the standard of a person of ordinary prudence who will work on presumptions (not on certainty). To say that a fact is proved before it, it is necessary that one has to arrive at the required standard of the existence or non-existence of fact and the standard will be the standard of man of ordinary prudence. A fact is said to be disproved when the Court believes that the fact in question does not exist and that the Court believes the non-existence of that fact from the standard of man of ordinary prudence. Now, we come to third phrase not proved where the fact is deemed to be not proved from the standard of a person of ordinary prudence. In other words, the man of ordinary prudence neither believes that the fact exists nor he believes that the fact does not exist. Thus the phrase NOT PROVED means neither the fact is proved with certainty nor the fact is believed to exist. The phrase NOT PROVED is between the phrase proved and disproved. And the phrase not proved is the result of careful scrutiny of the person of ordinary prudence that the fact neither exists with certainty nor its non-existence is proved with certainty. It is the provision between existence and non-existence of the fact in the mind of a man of ordinary prudence.13 Falsus in uno falsus in omnibus.—This maxim means if a thing is false in respect of one, it must be taken to be false in respect of all. This is some times argued that if a part of the evidence given by a witness has been disbelieved the whole of it should be disbelieved as a rule of law. The maxim does not occupy the status of law in India. This maxim has not received general acceptance in different jurisdiction in India ; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded.14 Because two of the four accused have been acquitted, though evidence against them was the same as against the appellant would not entitle them to acquittal only on that ground.15 The witnesses were disbelieved with regard to some accused but they were believed with regard to others. No rule of law was held to have been violated.16 In the case of N. Jayaraman v. State of Tamil Nadu,17 it was clear that due to mutual enmity amongst Trade Unions the deceased was injured and because of these injuries the deceased died. The prosecution case was that every accused caused the injury. But four accused were released and two were convicted. ____________________ 13. Vijaya Singh v. State of U. P., AIR 1990 SC 1450. 14. Nisar Ali v. State of U.P., AIR 1957 SC 366 ; 1957 SCA312 : 1957 SCR 637; 1957 SCJ 392 ; In re Srisevuga Moopan, AIR 1957 Mad. 750. 15. Gurcharan v. State of U.P., AIR 1956 SC 360 : 1956 Cr.LJ 427. 16. Gallu Shah v. State of Bihar, AIR 1958 SC 813 : 1958 SCJ 1257: 1958 MLJ (Cr) 970; Ram Ratan v. State of Rajasthan, AIR 1962 SC 424 ; (1962) 1 SCJ 371; (1962) 3 SCR 590 ; Jagdish v. State, AIR 1957 All. 532.

17.

AIR 1993 SC 777.

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It was held by Supreme Court that only because the testimony of some of the witnesses was not sufficient for conviction, the testimony of every (all) witnesses should be rejected, this is not correct and the phrase falsus in uno falsus in omnibus is not applied in toto. In Harischandra and others v. State of Delhi,18 the Supreme Court said : "While appreciating the evidence of witness in a criminal trial, especially in case of eye witness, the maxim falsus in uno falsus in omnibus cannot apply and the court has to make effort to sift grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of evidence is found acceptable, remaining part of the evidence has to be scrutinised with the care and the court must try to see whether the acceptable part of evidence gets corroborated from other evidence on record so that the acceptable part can be relied on." The Supreme Court further said when in a murder trial the evidence of injured eye witness regarding involvement of accused in question was corroborated by earliest recorded statement, one of them at hospital and also by the medical evidence, it could not be held that their statement could not be relied on regarding the accused in question on the ground that such statement were not relied as regarding the other accused who were acquitted by trial court and their acquittal were not interfered with by High Court. It was more so when such acquittal of other accused was based on the ground that there was no clear evidence regarding involvement of those accused and that in FIR it was mentioned that they were standing on the road outside the house in which occurrence took place. 'Falsus in uno falsus in omnibus' which is not a rule of law but a rule of caution has no application in India.19 "Falsus in uno falsus in omnibus" (false in one thing, false in every thing) is a merely rule of caution. It has not come to occupy the status of law in India. In case, the major portion of evidence is found to be deficient but if the residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of other co-accused persons, he can be convicted. It is the duty of the Court to separate the grain from chaff. Where chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilt of other accused persons.20 Falsity of material witness.—Falsity of particular material witness or material particular would not ruin it from the beginning to the end. It is the duty of the Court to separate the grain from the chaff and the witnesses cannot ____________________ 18. AIR 1996 July issue (Supreme Court). 19. Kalegura Padma Rao, v. The State of A. P., AIR 2007 SC 1299 at p. 1302 ; State of Maharashtra v. Tulshiram Bhanudas, Kamble AIR 2007 SC 3042; Kulwinder Singh v. State of Punjab, AIR 2007 SC 2868 at p. 2869. 20. Poonam Chandraiah v. State of A. P., AIR 2008 SC 3209 at p. 3211; see also Bathula Nagamalleswar Rao v. State Rep. by Public Prosecutor, AIR 2008 SC 3227; Dinesh Kumar v. State of Rajasthan, AIR 2008 SC 3259 ; Dalbir Singh v. State of Haryana, AIR 2008 SC 2389 at p. 2391.

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be branded as liars. It is open to the Court to convict the accused notwithstanding the fact that the other accused persons are acquitted because of the evidence found to be insufficient. The maxim falsus in uno falsus in omnibus is merely a rule of caution. All that it amount to is that testimony in such cases may be disregarded and not discarded. It is only when it is not feasible to separate truth from falsehood due to grain and chaff being inextricably mixed up and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution, the only available cause is to discard the evidence in toto.21 Single Witness.—There is no such rule which says that conviction cannot be based on testimony of only one eye witness if his testimony has passed the test of veracity (credibility). Where the only one eye witness is fully reliable there is no difficulty for the court to base conviction on his testimony only.22 It is well settled that if the case is rested entirely on the sole evidence of eye witness, such testimony should be wholly reliable. But in the case of State of Rajasthan v. Bhola Singh,23 the occurrence admittedly took place in the darkness. The two accused were also sleeping in the courtyard alongwith the other family members, out of whom three were unfortunately killed on the fateful night. The sole eye witness categorically stated that she woke up only when her mother-in-law was beaten by one of the accused but yet she added that she saw her father-in-law and husband who were sleeping in the courtyard of the house being murdered by the miscreants showing infirmity in her evidence. That apart, it is highly doubtful that there was any light with the help of which she could identify the accused. The plea taken by the witness that an electric bulb was burning, is not supported by any material. In case of non-examination of witness who immediately reached the place of occurrence, the evidence of sole eye witness is not reliable. SECTION 4.—"May presume".—Whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it; "Shall presume".—Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved; "Conclusive proof".—When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. COMMENTS Presumption.—Every fact, on the basis of which a party to a proceeding wants to take judgment, must be proved. No court can while deciding a case, ____________________ 21. Bur Singh v. State of Punjab, AIR 2009 SC 157 at p. 160; Sohrab s/o Beli Neyata v. The State of M. P., (1972) 3 SCC 751; Ugar Ahir v. The State of Bihar, AIR 1965 SC 277 ; Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh v.

The State of Punjab, AIR 1975 SC 1962 referred to ; Also see Jayaseelam v. State of Tamil Nadu, AIR 2009 SC 1901 at p. 1904. 22. Anil Phukan v. State of Assam, AIR 1993 SC 1462. 23. AIR 1994 SC 544.

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place reliance on a fact unless and until it has been proved according to the rules laid down in the Evidence Act. But the Law of Evidence has provided that a court can take into consideration certain facts even without calling for proof of them, i.e., the court may presume certain things. The word 'presumption' means things taken for granted. In the Law of Evidence the word 'presumption' is used to designate an inference, affirmative or negative, of the existence of some fact, drawn by a judicial tribunal by a process of probable reasoning from some matter of fact either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. The inferences or presumptions are based upon the wide experience of a connection existing between two facts. Presumptions are drawn from the course of nature for instance, that the night will follow day, the summer will follow the winter, death ensues from the mortal wound and the like. They may also be drawn from the course of human affairs, from the usage of the society and transactions in business, e.g., (i) A watch of Ram is stolen and soon after it is recovered from the possession of Shyam. There shall be a natural inference (presumption) that Shyam either stolen the watch himself or received it from some thief knowing it to be stolen, (it) From the fact that a letter has been posted, the natural inference (presumption) would be that it reached the addressee. (iii) A files a suit against B alleging that B borrowed Rs. 400 on the foot of the pronote. B admits that he executed the pronote : from it the natural presumption would arise that B borrowed a sum of Rs. 400 from A. Kinds of presumption.—Presumptions are of three kinds : (1) Presumption of fact or natural presumption, (2) Presumption of law (rebuttable and unrebuttable), and (3) Mixed presumptions, or presumption of law and fact. (1) Presumption of fact.—Presumptions of fact are inferences which are naturally drawn from the observation of the course of nature and the constitution of human mind. The examples given above are the examples of the presumption of fact. Section 114 of the Act and the illustrations under the section are examples of presumption of facts. Sections 86, 87, 88 and 90 also deal with the presumption of fact. These presumptions are generally rebuttable. Presumption of law.—As mentioned above the presumptions of Law are of two kinds : (1) irrebuttable or conclusive, (2) the rebuttable presumption of law. (1) Irrebuttable.—The conclusive or irrebuttable presumptions of law are those legal rules which are not overcome by any evidence that the fact is otherwise. A well-known instance of an irrebuttable presumption of law can be, found in Section 82 of the Indian Penal Code, wherein it is laid down that "Nothing is an offence which is done by a child under seven years of age." There the rules of estoppel are the other examples of this sort of presumption. Sections 115, 116 and 117 of the Act deal with the estoppel. There is said to be an estoppel where a party is not allowed to say that a certain statement of fact in nature whether in reality it is true or not. If in a criminal case it is proved that the accused is below seven years in age he shall be presumed innocent, no evidence will be allowed to prove that the accused was guilty. Where a man having no title obtains possession of land under lease by a man in possession

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who assumes him to give a title as a tenant he cannot deny his landlord's title. Thus it is clear that this kind of presumption of law is conclusive. (2) Rebuttable presumption.—This kind of presumption arises when presumptions of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, may be either explained away or rebutted by evidence to the contrary, but are conclusive in absence of such evidence. Legal presumptions of this kind are definitions of the quantity of evidence sufficient to make a prima facie case : in other words of the circumstances under which the burden of proof lies on the opposite party. A few examples will suffice. Thus a man is presumed innocent until he is proved guilty ; a child if born in a legal wedlock shall be presumed to be legitimate and one who questions his legitimacy must disprove it ; if a child is born during divorce he must be presumed illegitimate unless the contrary is proved ; again the presumption of law is that a man is alive unless nothing has been heard about him for 7 years when the presumption is that he is dead. Sections 107, 108,112 are the examples of this presumption. The distinction between presumption of fact and Presumption of Law is that the former is discretionary while the latter is mandatory.24 Distinction between Presumption of Fact and Presumption of Law Presumption of Fact

1. 2.

3. 4. 5.

6.

Presumption of fact is based on logic, human experience and law of nature. Presumption of fact is always rebuttable and goes away when explained or rebutted by establishment of positive proof.

Presumption of Law

1. Presumption of law is based on provisions of law. 2. Presumption of law is conclusive unless rebutted as provided under rule giving rise to presumption.

The position of presumption of fact 3. The position of presumption of law is is uncertain and transitory. certain and uniform. The court can ignore presumption 4. The court cannot ignore presumption of law. of law however strong it is. The presumptions of fact are 5. Presumption of law are derived on derived on basis of law of established judicial norms and they nature, prevalent customs and have become part of legal rules. human experience. The Court can exercise its discretion while drawing presumption of fact i.e. presumption of facts is discretionary presumption.

6. Presumption of law is mandatory i.e. court is bound to draw presumption of law.

Mixed presumptions.—Mixed presumptions of law and fact are chiefly confined to the English law of real property so it is not necessary to presume _______________________

24.

Gitika Bagchi v. Subbrao Bagchi, AIR 1996 Cal. 246.

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subject here. The Indian Evidence Act has made provisions for the presumptions of fact and the presumptions of law. In certain sections of the Evidence Act it has been provided that "the court may presume" certain facts. In some other sections the words "the court shall presume a fact" has been used. There are certain sections in which it is said that a certain fact is conclusive proof of a certain another fact. Section 4 of the Evidence Act controls these sections and gives a direction to courts as to how to proceed under those sections of the Evidence Act. "May presume".—Whenever it is provided that the court may presume a fact the court may take notice of the fact without calling for its proof or may call upon a party to prove that fact. Here the court has discretion to presume a fact or not to presume it. Section 90 of the Evidence Act provides that when a document purporting to be thirty years old is produced from a proper custody, the court may presume that the document was signed and written by the person by whom it purported and is said to have been written and signed. Generally when a document is filed in a case it is to be proved by adducing evidence as to who wrote the deed and who signed it. Unless and until it is done, the document cannot be read in evidence. If a document produced before the court is thirty years old, the court may dispense with the proof of it and read the document in evidence without calling for the proof of it. The court may also call for the proof of it and may order that the document will not be read in evidence without being proved. Section 88 of the Evidence Act lays down that when a telegram has been received the court may presume that the message forwarded from a Telegraph Office to a person is the same which was delivered for transmission at the office from which the message was sent. "Shall presume".—Whenever there is a provision to the effect "that the court shall presume a fact" the court cannot exercise its discretion. It is compelled to take the fact as proved, i.e., it shall have to presume the fact. But in this case the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the court shall not presume the fact. In the Indian Evidence Act the words "shall presume" indicate that presumption therein is unrebuttable. Section 89 of the Evidence Act provides "that the court shall presume that every document, called for and not produced after notice to produce, attested, stamped and executed in the manner required by law." Expressions "shall" and "may" explained.—According to Section 4 wherever the expression "may presume" has been used in the Act, a discretion has been given to the Court to presume a fact or refuse to raise such a presumption. If the Court finds that it is a fit case for raising presumption, in that event, such facts stand proved unless and until it is disproved by the other side. According to this section, in cases where a discretion lies with the Court and it refuses to exercise discretion, then it may call upon the parties to prove the fact by leading evidence. In those sections where the expression has been used that the Court "shall presume", in that event no discretion has been left with the Court and there is legislative command to it to raise a presumption and regard such fact as proved unless and until it is disproved. In such an

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eventuality, the question of calling upon the parties to formally prove document does not arise.25 Presumption and proof distinguished.—Proof considered as the establishment of material facts in each particular case by proper and legal means to the satisfaction of the court is effected by (a) evidence or statement of fact, admission or confession of the party as also production of the document; (b) presumption ; (c) judicial notice and inspection, etc. Every fact on which judicial judgment may be given must be proved. But the Law of Evidence has provided that court can take into consideration certain facts without calling for proof of them, i.e., the court may presume certain things. The word presumption means a thing taken for granted. In the Law of Evidence the word "presumption" is used to designate an inference, affirmative or negative of the existence of certain facts drawn by a judicial tribunal. Thus proof is the final stage in a proceeding which is arrived at by evidence or presumption. Presumption is one of the means of effecting proof. Conclusive proof.— Whenever it is mentioned that a fact is a "conclusive proof" of another fact, the court has no discretion at all. It cannot call upon a party to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. Section 41 of the Evidence Act provides inter alia that a final judgment, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character. For example, suppose A files a suit in a court of law for declaration that B is his legally married wife. The court gives a decree in favour of A and declares that B is his wife. After a few years in the lifetime of A, B files a suit against D for the property of one C, alleging that she is widow of C. In this case there will be an issue whether B is the wife of C. D files the copy of the judgment of the previous case (A versus B). This judgment will prove that B is legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the fact that she is not the wife of C. Therefore, after the judgment mentioned above has been filed, the court cannot allow B to adduce evidence to prove that she is wife of C and not of A. "Conclusive proof" in Section 4 of the Evidence Act shows that by declaring certain fact to be conclusive proof of another an artificial probative effect is given by the law to certain facts and no evidence is allowed to be produced with a view to combating that effect. These cases generally occur when it is against the policy of Government or the interest of society that a matter may be further open to dispute."26 _______________________ 25. Haradhan Mahatha v. Dukhu Mahatha, AIR 1993 Pat. 129. 26. Din Dayal v. State, AIR 1959 All. 420 ; Gopal Krishna v. Secretary, Board of Revenue, AIR 1954 Mad. 362.

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CHAPTER II OF THE RELEVANCY OF FACTS SECTION 5.—Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure. ILLUSTRATIONS (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A's trial the following facts are in issue :— A's beating B with the club ; A's causing B's death by such beating; A's intention to cause B's death. (b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure. COMMENTS Scope.—This section declares that in a suit or proceeding evidence may be given of the existence or non-existence of (1) facts in issue, and (2) of such other facts as are declared to be relevant in the following sections (Sections 6 to 55). "And of no others."—This section excludes everything which is not declared relevant under any of the Sections 6 to 55.1 All evidence tendered must be shown to be admissible under some of the following sections of the Chapter. A party trying to adduce a particular evidence has to show that the evidence desired to be adduced is relevant under one or more of the Sections 6 to 55.2 Evidence excluded by Evidence Act as inadmissible should not be admitted merely because it may be essential for ascertainment of truth.3 Any fact intended to be established has to be found to be relevant under a provision contained in the Act before it can be allowed to be proved, any argument based-on plausibility can have no effect. The court must therefore ignore any other _______________________ 1. R. v. Panchu, ILR 47 Cal. 671 (FB); R. v. Abdullah, ILR 7 All. 385 (FB). 2. Dwijesh v. Naresh, AIR 1945 Cal. 492. 3. Nanday v. Rakhala Anande, AIR 1941 PC 17.

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consideration and confine itself strictly to the provisions of the Act and come to a conclusion as to the relevancy of a fact on the interpretation of the relevant provisions of the Act regardless of the fact whether the conclusion ultimately arrived at is in accordance with commonsense view of things or not.4 Conversely, a court cannot on the ground of public policy, exclude evidence relevant under this Act.5 Distinction between relevancy and admissibility.—Relevant means, that which is logical probative. Admissibility is not based on logic but on law and strict rules. Many facts having no bearing on the facts to be proved are admissible. The proof of loss of original deed has no effect on the decision of issue but this is admissible in evidence before secondary evidence about the contents of the relevant document may be given. In the Indian Evidence Act the question of relevancy has been dealt with under Sections 5 to 55 and that of admissibility under Section 56 and onwards. The rules of relevancy declare certain facts relevant, rules of admissibility lay down as to whether a certain form of evidence about relevant fact, may be allowed or excluded. What is the material (Fact) which may be produced before a court in a case is a first question. Relevancy means what facts may be proved before a court. The facts that are allowed to be proved under Evidence Act (Sections 5 to 55) are called relevant facts. Thus under Evidence Act the terms "Relevant" or "the facts that may be proved" are synonyms. The admissibility is the means and the method of proving the relevant facts. In Ram Bihari Yadav v. State of Bihar,6 the Supreme Court speaking through Mohd. Quadari J., said that, more than often the expression relevancy and admissibility are used as synonym but their legal implications are different because more often than not facts which are relevant may not be admissibles ; for example, the communication made by spouse during marriage, the communication between an advocate and his client, though relevant are not admissible. So also the facts which are admissible, may not be relevant. For example, questions permitted to be cross examined to test the veracity or to impeach credit of witness though not relevant are admissible. Distinction between Admissibility and Relevancy Admissibility Relevancy 1. 2.

Admissibility is not based on logic but on strict rules of law. The rules of admissibility is described after Section 56 of Evidence Act, 1872.

1. 2.

Relevancy is based on logic and probability. The rules of relevancy is described from Sections 5-55.

_________________________ 4. Kashyap v. Emperor, AIR 1945 Lah. 28 (FB). 5. K.V.G.N. v. C. Venkataramayya, AIR 1946 Mad. 61. 6. AIR 1998 SC 1850.

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Admissibility

Relevancy

3. The rule of admissibility declares whether certain type of relevant evidence are admissible or are to be excluded. 4. Admissibility is means and of modes for admissibility of relevant Evidence. 5. The facts which are admissible are necessarily relevant.

3. The rules of relevancy declares what is relevant. 4. Under Evidence Act the rules of relevancy means where evidence are admissible. 5. The facts which are relevant and not necessarily admissible.

Relevancy how decided.—The question of relevancy is a question of law to be decided by the Judge. The questions of relevancy should be decided when raised and should not be reserved until the date of the judgment in the case.7 Where a court is in doubt as to the relevancy of a particular piece of evidence, he should declare in favour of relevancy rather than of non-relevancy.8 The Courts in India are bound to exclude evidence of irrelevant facts whether objected to or not. Evidence partly relevant and partly irrelevant.—If irrelevant evidence is so mixed up with relevant evidence as to make it impossible to separate one from the other the whole of the evidence is to be rejected. But where the relevant material is quite independent of the irrelevant material, the relevant will be admitted and the other part will be rejected.9 Objection to relevancy and admissibility.—An erroneous omission to object to the relevancy of evidence before the trial court does not make the evidence relevant, if the evidence is irrelevant and it has been admitted by the trial court, an objection can be taken at any stage even in the highest appellate court.10 The question of relevancy is a question of law and can be raised at any stage.11 But if the evidence is relevant but the proof is improper and evidence is one admitted no objection can be taken afterwards. Under Evidence Act, the secondary evidence of a document may be given when the loss of the primary is proved. If at the trial a secondary evidence is given of the contents of a relevant document and no objection is raised, afterwards it cannot be objected that the evidence has been given improperly. Question of relevancy is question of law and can be raised at any stage, but the question of proof is a question of procedure and is capable of being waived. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, ______________________ 7. AIR 1939 All. 61.

8. R v. Ram Chandra, 19 Bom 749 at 759. 9. Gurmukh Singh v. Commissioner of Income-tax, AIR 1944 Lah. 381 (FB) Mistri Fazaldin v. Karamat Husain, AIR 1936 Lah. 81. 10. Miller v. Madhava, 19 All. 76. 11. Sumitra v. Ramkumar, 57IC 571; AIR 1946 Bom. 193.

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it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie until the case comes before a court of appeal and then complain for the first time of the mode of proof.12 The objection that the copy of the mortgage deed is not legal, secondary evidence is merely to the mode of proof of a document and should be raised at the very time the document is sought to be tendered in evidence and proved.13 When a document has been exhibited, it cannot de-exhibited at a later stage on the ground of its being not legally proved.14 Explanation.—According to Section 5 a person has a right to produce evidence in a Court of law if that evidence is relevant under any of the Sections 6 to 55. But the explanation under Section 5 lays down that if some provision in Civil Procedure Code disentitles the person to give evidence to a fact, he will not be entitled as of right to adduce that evidence in the Court. SECTION 6.—Relevancy of facts forming part of same transaction.— Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. ILLUSTRATIONS (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or by the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate person successively. Each delivery is a relevant fact. COMMENTS Scope.—Under the definition of the word "relevant" in Section 3 one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of fact. These particular ways which the law regards as relevancy have been ______________________ 12. Gopaldas v. Sri Thakurji, AIR 1943 PC 83 ; Haji Mohd v. State of West Bengal, AIR 1957 SC 488. 13. Chandan Bai v. Jagjiwandas, AIR 1958 Raj. 110. 14. Ali Hasan v. Matiulla, AIR 1988 All. 57.

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described in Sections 6 to 55 which deal with relevant facts. Facts which are not themselves in issue may affect the probability of the existence of facts in issue and be used as the foundation of inferences respecting them; such facts are described in the Act as relevant facts. Facts relevant to the issue have been arranged in the following manner : (1) Things connected with the fact in issue as part of the same transaction, occasion, cause, effect, motive, conduct (Sections 6 to 16). (2) Things said viz., admissions, confessions (Sections 17 to 31). (3) Statements by persons who cannot be called as witnesses (Sections 32 and 33). (4) Statements under special circumstances (Sections 34 and 35). (5) Decisions in other cases (Sections 40 to 44). (6) Opinions about fact in issue (Sections 45 to 51). (7) Character and reputation of parties concerned (Sections 52 to 55). Basis of the rule.—Every facts is a part of other facts. There is no fact which is unconnected with other facts. "The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance and in its turn becomes the prolific parent of others and each during its existence has its inseparable attributes and its kindred facts materially affecting its character and essential to be known in order to right understanding of its nature." Section 6 lays down that the facts which are so connected with the facts in issue that they form part of the same transaction are relevant facts. Sections 6, 7, 8 and 9 give the various ways in which the facts are so related to each other to form component of the principal facts. These sections enact the law which is usually laid down in England in these terms, namely, that acts, declarations and incidents which constitute or accompany and explain the fact or transaction in issue are admissible for or against either party as forming parts of the res gestae. The section renders relevant facts which form part of the same transaction as the fact in issue. Even hearsay statements are admissible under this section if they form part of the transaction. "Same transaction."—The term 'same transaction' has not been defined in the Evidence Act. A definition of the word is given by Stephen who says, "A transaction is a group of facts, connected together to be referred to by a single legal name, a crime, a contract, a wrong or any other subject of enquiry which may be in issue." From its very nature the word 'transaction' is incapable of exact definition. It should be interpreted not in any strict or technical way but in its ordinary etymological meaning of "an affair" or "a carrying through." The rule of efficient test for determining whether a fact forms part of the same transaction or another "depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as probable and subsidiary

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acts as to constitute one continuous action." Proximity of time is not so essential as continuity of action and purpose. On the one hand, the mere proximity of time between several acts will not necessarily constitute them parts of the same transaction, on the other hand, the mere fact that there are intervals of time between the various acts will not necessarily import want of continuity. To ascertain whether a series of acts are parts of the same transaction, it is essential to see whether they are linked together to present a continuous whole.15 Section 6 lays down that facts, which form part of the same transaction are relevant. Res gestae.—The principle underlying Section 6, the following is sometimes termed as res gestae. This phrase means simply a transaction, 'thing done', 'the subject matter', 'res gestae' of any case properly consists of that portion of actual world's happenings out of the right or liability, complained or asserted in the proceeding, necessarily, arises. Apparently the phrase is well established in the Law of Evidence. It is necessary therefore, to understand what it really means. That has been used in two senses. In the restricted sense it means world's happening out of which the right or liability in question arises. In the wider sense it covers all the probative facts by which res gestae are reproduced to the tribunal where the direct evidence of witness or perception by the court are unattainable. In restricted meaning res gestae imports the conception of action by some person producing the effects for which the liability is sought to be enforced in action. To be clear, in the restricted sense "facts which constitute the res gestae must be such as so connected with the very transaction or fact under investigation as to constitute a part of it." Whatever act, or series of acts constitute, or in point of time immediately accompany and terminate in. The principal act charged as an offence against the accused from its inception to its consummation and whatever may be said by either of the parties during the continuance of the transaction, with reference to it, including herein what may be said by the suffering party, though in absence of the accused during the continuance of the action or the latter, form part of the principal transaction and may be given in evidence as part of res gestae of it. While, on the other hand, statements made by the complaining party, after all action on the part of wrong-doer has ceased and some time has elapsed do not form part of res gestae and should be excluded. "The res gestae may be defined as those circumstances which are the automatic and undersigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. A transaction may last for weeks. The incident may consist of sayings and doings ; they may comprise things left undone as well as the things done. They must be necessary incidents of the litigated act in the sense that they are not produced by the calculated policy of the actors. They are the acts talking for themselves not what people say when talking about the acts. In other words they must stand on an immediate casual relation to the actual relation not broken by the interposition of voluntary individual witness seeking to manufacture evidence for itself. The _________________ 15. AIR 1939 Bom. C. 129.

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test of the admissibility of evidence as part of res gestae is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal facts or even which it characterises as to be regarded as a part of the transaction itself and also whether it negatives any premeditation or purpose to manufacture testimony". "Facts forming part of same transaction."—The transaction consists both of the physical acts and the words accompanying such physical acts, whether spoken by the person doing such acts, the person to whom such acts are done or any other person or persons. Physical acts forming a part of a transaction.-The facts forming the part of the same transaction with the fact in issue are relevant. The expression 'res gestae' as applied to a crime means the complete transaction from its starting point in the act of the accused until the end is reached. What in any case constitutes a transaction depends wholly on the character of the act and the circumstances of the case. It frequently happens that, as evidence of circumstances may be resorted to for the purpose of proving the commission of a particular offence charged, the proof of those circumstances involves the proof of other acts either criminal or apparently innocent. In such cases it is proper that the chain of evidence should be unbroken. If one or more links of that chain consist of circumstances which tend to prove that the prisoner has been guilty of other crimes than the one charged, there is no reason why the court should exclude those circumstances. They are so intimately connected and blended with the main facts adduced in evidence that there is no reason why the criminalities of such intimate and connected circumstance should exclude them more than other facts apparently innocent. Thus, if a man be indicted for murder and there be proof, that the instrument of death be pistol, proof of that the pistol belonged to another man, that the prisoner was there on that night and the pistol was seen in his possession on the day of the murder, just before the fatal act, is undoubtedly admissible, although it has a tendency to prove the prisoner guilty of larceny. Where a prisoner was charged with stealing six marked shilling from a till and evidence was tendered of the taking of other money at the same time, it was held that the evidence was admissible as the several acts of the accused in taking the money were the parts of the same transaction. Such circumstances constitute a part of the transaction and whether they perfectly are innocent in themselves or involve guilt makes no difference as to their bearing on the main question which they are adduced to prove." A fact forming part of the same transaction with the fact in issue is relevant under Section 6 though left to itself it has no bearing on the fact in issue. It is a general rule that the evidence of connected precedent or surrounding circumstances is proper to show the probability that the principal fact has happened in all cases where it may naturally be assumed that a connection exists between the main fact and the subordinate fact. Where the transaction consists of several physical acts, in order that the chain of such acts may constitute the same transaction, they may be connected together by proximity of time, by proximity of place, continuity of action and community of purpose.

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Statements as res gestae.—In Gentela Vijay Vardhan Rao and Others v. State of Andhra Pradesh,16 the accused sneaked into passenger bus with most inflammable liquid, petrol and match-box and then set it at blaze as a result 23 passengers were roasted to death. The Magistrate recorded the statement of victim under expectation of death. In view of appreciable interval between acts of carnage and Magistrate's recording of statement, the statements recorded by Magistrate did not form part of res gestae. In State of Andhra Pradesh v. Panna Satyanarayan,17 the accused murdered his wife and daughter. The father of the deceased wife stated that father of accused told him on telephone that his son had killed the deceased. There was no finding as to whether the information given by accused's father to the deceased's father that the accused had killed the deceased was either of the time of commission of the crime or immediately thereafter so as to form the part of same transaction. The statement was held to be not relevant under Section 6. The time.—Section 6 of Evidence Act is an exception to the general rule whereunder the hearsay evidence is admissible for bringing hearsay evidence under Section 6, it has to be established that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter.18 No uniformity exists in the length of time over which the transaction shall properly be held to extend. The act or transaction may be completed in a moment of time, or, if there are connecting circumstances it may extend, through a period of days, or weeks or even months. If on a public street there is an unexpected collision between two men, entirely strangers to each other, the transaction of the collision is confined within the few moments it occupies. When there is a social fair in which two religious parties are arrayed against each other for weeks, then all that such parties do or say under such circumstances is as much part of the transaction as blows given in homicides for which particular prosecution may be brought. In case of direct evidence as to oral contract entered into at a particular interview, the transaction may cover only a few minutes. In a case where an agreement between the parties has been reached by a series of negotiations, extending over months or even years, the time covered by the transaction will be extended. Space.—No limitation can be imposed as to the territorial boundaries within which the transaction must occur. Those of sudden quarrel, shooting or stabbing may occur at one place even in a room. They may on the other hand, like a rebellion, or other movement may cover the breadth of a country or of a continent. Psychological acts forming part of the transaction, or—"words accompanying physical acts".—The words spoken by the person doing the _____________________ 16. AIR 1996 SC 2791. 17. AIR 2000 SC 2138. 18. Sukhar v. State of U.P.(1999) 9 SCC 507.

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act, or by the person to whom they were done or by the bystanders are relevant as a part of the same transaction, but it should be borne in mind that such statements or declarations, as they are called, in order that they might be admissible as res gestae should be contemporaneous with the transaction in issue, that is, the interval should not be made as to give time and opportunity for fabrication and connection and they should not amount to mere narrative of a past occurrence. They are admitted, when they appear to have been made under the immediate influence of some principal transaction relevant to the issue and are so connected with it as to characterise or explain, immediate influence of some principal transaction relevant to the issue. A bare statement of the complainant to the third person is not admissible, it is the power of perception unmodified by recollection that is appealed to and not of a recollection modifying perception. Whenever recollection comes in whenever there is opportunity for recollection and explanation the statements cease to be part of the transaction. A declaration must be substantially contemporaneous with the fact and if it is separated from the fact by an interval which, though however slight allows of fabrication, it cannot be treated as substantially contemporaneous with it and would not the statement of its effect as res gestae and would reduce it to the status of a complaint or narration of a past event.19 All spontaneous statements in some way connected with the transaction under investigation are not admissible. It must be shown that the statement is a part of the transaction. The statement is not admissible only because it is uttered in the course of the transaction. To be admissible it must be a part of the transaction. If 'A' assaults 'B' on the neck with a knife and this is seen by bystanders who exclaim, 'A' is killing 'B',20 the exclamation is as much part of the transaction of murder as the gushing out of the blood from the wound inflicted on the neck with the only difference that the latter is a physical reaction to the act whereas the former is the psychological reaction through perception. While no doubt the spontaneity of the statement is guarantee of the truth the reaction for its admissibility under Section 6 is that it is part of the transaction and not merely because it is spontaneous. In R. v. Bedingfied,21 a woman with a throat cut came out of the room suddenly and said to the witness "Aunt see what Bedingfied has done to me". C.J. Cockburn held it to be not admissible as res gestae because the statement was made after the incident was over. In R. v. Christie,22 an statement made by a young boy to his mother shortly after indecent assault on him by the offender was held not to be res gestae as it being so separate by the time and circumstances could not be said to be part of the same transaction. In Rutten v. Regina,23 the caller a woman giving her address in distress requested the telephone operator to connect the police but call could not be _____________________ 19. Kameshwar Prasad Singh v. Rex, 1951 ALJ 149. 20. Sawal Das v. State of Bihar, AIR 1974 SC 778. 21. (1695) 6 Skin 402. 22. (1914) AC 545, Per Lord Atkinson. 23. (1971) 1 WLR 801 (PC).

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completed as it ended suddenly. When the police came to her house, she was found there dead. Her husband, who was charged of killing her by shooting, took the plea that the fire was accidental but it was held to be intentional on the basis of her call to the operator to connect the police as no victim of accident would think of getting the police prior to the incident. The call by the woman and whatever she said was held to be res gestae. According to Lord Wilberforce Bedingfied's case was more useful as a focus of discussion than the decision on the facts. Statement in answer to a question.—As said earlier, the requirement of Section 6 is that the statement must have been made contemporaneously with the act or immediately after it and not at such an interval of time as to make it a narrative of past events. If the statement is answer to a query after lapse of some time, it cannot be treated as res gestae.25 At the time of murder, the cry of deceased 'save me' and that of the children that their mother was being killed are relevant as res gestae.25 Illustrations When a minor married girl was abducted by accused immediately on her recovery at the railway platform she told her uncle that she had handed over her ornaments to Ram Das who had placed them in his jhola and had run away with the ornaments. The statement is relevant under Section 6.26 Pratap Singh was charged with the murder of Ram Charan. One Sarfaraz Beg deposed before the court that at about 1.50 p.m. on the night of the alleged occurrence, he heard some row from his house which was at the distance of about 400 yards from the place of occurrence. He said that he went towards the place of occurrence near which a large crowd had collected. On going inside the house he found a dead body lying with fresh wounds. According to the witness, Mst. Mahadevi was there. When she was questioned about the murder she stated that her husband and brother had run away after committing the murder. It was held that as the statement was in answer to a query and was made after the lapse of some time after the murder, it cannot be treated either as spontaneous or as part of the transaction of the murder, and so was not admissible.27 K was staying in a hotel where there was a wine bar. Early in the afternoon he took brandy and upto 2 p.m. he consumed 5 pegs. J was employed as bearer of the hotel. It was alleged that the applicant asked him to bring hot water for bath. It was alleged that the applicant asked for one more peg. That was done. 'J' then asked 'K' what more could be brought for him. This annoyed the applicant who abused 'J' and shortly afterwards went inside his room and bringing a gun fired at 'J' who crouched down and the shot missed him. Some people came hearing the shots, and found 'J' crying. Upon enquiry he said that _____________________ 24. Pratap Singh v. State, 1971 Cr LJ 172. 25. Sawal Das v. State of Bihar, AIR 1974 SC 778. 26. Ram Das v. State, 1972 Cr LJ 57. 27. Pratap Singh v. State of M.P., 1971 Cr. LJ 172.

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he had been fired at by 'K'. It was held that the statement of 'J' did not form part of the same transaction as the act of firing and was not admissible.28 (i) Noor Mohd's case.29—One R practised fraud upon one M and thus took Rs. 8,000. M lodged a report and filed a complaint. One S a prosecution witness stated that M came to him and said that he had been deprived of about Rs. 8,000, that M again came to him and told him that he had neither filed a complaint against him nor had made a report against R and that after having robbed him, R was still trying to rob him of what he still had, that after he (the witness) once visited M and the latter said that R was making his life miserable and that the witness said that he would take steps to have his money recovered and thereupon M said "let that matter go. I have forgiven him but he should not touch what is left." This statement was held inadmissible as it was mere narrative of past occurrence. (ii) Richard's case.30—A dispute between A and B was whether A had agreed to make a purchase from Bona certain date. In support of B 's allegation that A had agreed to make the purchase, a letter, dated 23rd December, 1926 from him (B) to a solicitor was produced. In this letter B had made a mention that A had agreed to make a purchase. The letter was held inadmissible as there was no evidence to show whether the statement in the letter was made with reference to some events which had just happened. (iii) A is passing by a road. B is walking ahead of him. C comes from aside and stabs B from behind. A is awe-struck and cries instantaneously. 'O' wicked C what have you done. This utterance is a straight outcome of the feeling of A created by the shock of the stabbing upon the mind of A. (iv) 'A' begins assaulting 'B' , 'C and 'D' begin shouting that 'A' is assaulting 'B'. The fact that 'C and 'D' shouted that 'A' was assaulting 'B' is relevant.31 (v) The deceased and many others were celebrating Holi. The accused fired at the deceased. Some of the witnesses arrived at the scene of occurrence immediately after occurrence. The bystanders informed the witnesses that the accused fired at the deceased. The evidence of the witnesses to the effect that the person, present on the scene of occurrence told them that the accused fired at the deceased is relevant.32 (vi) The accused dragged the deceased from his house to Chowk area and began to beat him. 'Z' who was present when the beating began ran to the village Police Patel namely Lakshman, while the beating was in progress, and told him that the deceased was being beaten by the accused. The statement of the Patel before the court that Z told him that the accused were beating deceased was held relevant.33 _____________________ 28. Kameshwar Prasad v. Rex. 1951 ALJ 149. 29. Noor Mohd. v. Imtiaz Ahmad, AIR 1942 Oudh, 132. 30. Richard Gillie v. Posho Ltd., AIR 1939 PC 146. 31. M.P. Jairaj v. State of Karnataka, 1980 Cr. LJ NOC 13. 32. Jetha Ram v. State of Rajasthan, AIR 1979 SC 22 : 1979 Cr LJ 26.

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Rape.—Where the raped girl made a statement to her mother after the rape when the culprit had gone away and the girl came home from the scene of occurrence it was held not to be admissible under Section 6 as part of the transaction.34 Statements of bystanders.—As seen before a statement of a bystander is admissible under Section 6 it forms part of the same transaction with the fact in issue. The word 'bystanders' means the persons who are present at the time of incident and not the persons who gather on the spot after it. It must be noted that such statement is relevant only if is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker is still under the stress of excitement caused by his having seen the incident. The remark made by the persons other than the eye-witnesses could only be hearsay because they must have picked up the news from others.35 CASES (i) Nasiruddin v. Emperor.36—One Fakiria was killed in broad daylight in one of the crowded Bazars of Gujranwala. At the trial one Mst. Aishan Bibi was examined as witness. She stated that when she reached the spot, she heard the people present saying that Rajja, Nasiria and Jagari had committed the crime. It was not stated that the people who informed her of the names of the murderers were present when the murder was being committed. It was held that the statement was not admissible. (ii) Chhotka v. State.37—The accused were charged for the murder of Bhutu. Bhutu was sitting on the cemented ledge in front of the shop and had been served with tea, when the accused Chhotka came up and inflicted multiple injuries. Bhutu reeled into the open drain nearby from where he was picked by Shyama and Nero who placed him first on the Kachha flank of the road and shortly thereafter carried him to the dispensary. The injured was placed on the verandah of the dispensary where a large crowd was collected. One Kiran Bala informed Moti Bewa the mother of the deceased of the assault on her son by the appellant. Kiran Bala happened to have gone to the tea shop in front of which the occurrence is alleged to have taken place. At the moment of Kiran Bala's visit the injured Bhutu had just been picked up from the drain and placed on the flank of the Kachha road. Kiran Bala learnt from the bystanders shortly after the occurrence that the appellant had stabbed Bhutu. This statement of Kiran Bala was held inadmissible. The bystanders or the crowd from whom Kiran Bala heard the statement could not be presumed to have been present at the time the murder was committed. (iii) Mahendra Pal v. State.38—The place where a murder was committed was occupied by a number of persons apart from the deceased and eye-witnesses. Those persons came up immediately after and were informed by the eye-witness _____________________ 34. Gulam v. R., AIR 1930 Lah. 337. 35. Mahadeo v. State of M.P., 1975 Cr LJ 110. 36. Nasiruddin v. Emperor, AIR 1954 Lahore 46. 37. Chhotka v. State, AIR 1958 Cal. 482. 38. Mahendra Pal v. State AIR 1955 All. 328.

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witnesses as to who the two culprits had been. The statements of these persons were held to be admissible. F.I.R. when res gestae.—If a witness is present at the scene of occurrence sees the whole occurrence from beginning to end, makes cry about the offence being committed when people from vicinity reach he tells the story of occurrence and then after some time goes to police station and makes first information report. The making of the report is part of the transaction and so it amounts to res gestae. The fact that some time has elapsed between the occurrence and report is immaterial.39 SECTION 7.—Facts which are the occasion, cause or effect of facts in issue.—Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened; or which afforded an opportunity for their occurrence or transaction, are relevant. ILLUSTRATIONS (a) The question is whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third person, are relevant. (b) The question is whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. (c) The question is whether A poisoned B. The state of B's health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts. COMMENTS Scope.—Section 7 lays down that the facts which are cause or effect of the facts in issue or of relevant facts are relevant. It also lays down that the facts which are occasion or which afford an opportunity for the occurrence of the fact in issue or of relevant fact, are relevant.40 Causation.—"Such relations make it possible when the existence of the fact in the chain of causation is asserted to test the truth of the assertion by an inquiry as to existence of those facts, with which, had it existed, it would have been so connected as to make their own existence necessary, or at least highly probable". "There is a principle implied in the very statement of what induction is; an assumption with regard to the grace of nature and the order of universe, namely, that there are such things in nature as parallel cases that what ___________________ 39. Shyam Nandan Singh v. State of Bihar, 1991 Cr.L.J. 3350 ; Sawal Das v. State of Bihar, AIR 1974 S.C. 778. 40. Chhotka v. State. AIR 1958 Cal. 482.

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happened once, will, under a sufficient degree of similarity of circumstances happen again and only not again but as often as the circumstances recur. This, I say, is an assumption, involved in every case of induction and if we consult the actual grace of nature we find that the assumption is warranted. The universe so far known to us is so constituted that whatever is true in any one case is true in all cases of certain description. The only difficulty is to find out the description." Section 7 based on induction.—Under Section 7, the relevancy of facts is to be determined by human experience. What has been the effect of a particular cause and what has been a constant cause of a particular effect in the past, will be the same in future. The thing will be clear by taking examples. If a living being is cut into pieces on the ground there shall be bleeding and the blood will be found on the place of occurrence. By his induction whenever a man finds human blood in a great quantity on a particular place he may reasonably infer that some living being was cut into pieces or at least severely injured there. Section 7 embraces larger area than Section 6. Under Section 6 a fact to be relevant was to "form part of the same transaction." It may often be difficult for a judge to say whether a fact or action can be properly said to form part of the same transaction with the fact in issue. Section 7 leaving the transaction beside, provides for the admission of several classes of facts, which though do not possibly form part of the transaction, are yet connected with it in particular modes and so they are relevant with the transaction under enquiry. The facts which are connected with the fact in issue in the following modes are relevant under the section: (1) The facts as being occasion or cause of (the fact in issue) or of relevant fact. (2) Facts as being their effect. (3) Facts as giving opportunity for their occurrence. (4) Facts as constituting the state or things under which they happened. These modes of action mentioned above are in truth the different aspects of causation and the reason for admission of this nature of evidence is that if you want to decide whether a thing occurred or not, the most and the first natural step is to see whether there were facts at hand calculated to produce or afford an opportunity for its occurrence or facts from which its occurrence was calculated to be produced. Moreover properly to appreciate a fact it is necessary to know the state of things in which it occurred. Occasion, cause, effect and opportunity.—The elements are so connected together that it would be convenient to take them together, K was tried for the murder of K. The dead body of K was found near a bridge in a gunny bag. At the trial the facts proved were : (i) the wife of K deposited all her ornaments with J; (ii) f took all the money that K had for purchasing a truck that he never purchased ; (iii) K demanded money from J on the 17th May, 1947. J asked K to come on the 19th May ; (iv) K came and stayed with J on the 19th

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night, of these facts, the facts of J being indebted to K and K's demand for money are relevant as the cause of murder and the fact that K went and stayed there and slept are relevant as the occasion of murder and also opportunity for it.41 The falling of trees in large numbers in locality indicates the existence of a storm previously ; the tanks reservoirs found filled with water and rivers found in spate, indicate that there has been heavy rainfall. These are illustrations of inferences from effect back to the existence of cause. Foot prints.—The evidence that there were footprints, at or near the scene of offence, of the accused is relevant as the effect of the going of the accused that way.42 Injuries of accused.—The facts that the accused of a riot case had injuries on their person is relevant to show that they took part in the riot—this is relevant as the effect of taking part in riot.43 The state of things under which they happened.—In a murder trial evidence was led to the effect that when it became cloudy and stormy, when the electricity failed and when it became very dark the murder was committed. In this case the fact of murder is principal fact and the other facts show the state of things under which the principal fact happened. Distinction between possibility, capacity, tendency and cause.— The notion of causation is by no means easy to analyse correctly, but it is enough hereto point out that certain superficially different terms represent essentially the same evidential process. When it is asked, for example, whether certain factory-vapours were the cause of a destruction of herbage the notion of cause, simply as it seems, became upon analysis somewhat complex and at the same time indefinite. Stated in its broadest form, the notion of cause and effect is merely that of invariable sequence. It is only rarely however, if at all, that such an abstract assertion can be made in universal terms that will stand examination. Thus that a bullet shot from a pistol into the heart "cause" i.e., will invariably be followed by death, is a seemingly impregnable assertion, and yet not only may it not be true of bullet of every size, but it may not be true, even with ordinarily large bullets, in instances recorded here and there, and in the future, surgical skill may show that the instances of non-sequence of death might be made even more numerous. The assertion may then be amended by adding limiting conditions, so as to say that, provided this and that and the other be so, a bullet through the heart causes death. In short, instead of an absolute certainty or invariability of sequence, the assertion will be only of a very high probability of sequence. In most instances no one thinks of making an assertion in absolute form, and it is easy to say that an assertion of causation means easily only an assertion of high probability or strong tendency. Thus, the planting of seeds in good soil at the right time of the year will probably result in a harvest in due season, but the result is not invariably certain, because no ____________________ 41. Jai Nand Dr. v. Rex, AIR 1949 All. 291. 42. Sidik Sumar v. Emperor, AIR 1942 Sind 11. 43. Chandra Gopal v. State, AIR 1955 NUC 4845.

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rain may fall or the land may be built upon or other influences may intervene. Though we should feel justified in speaking of the seed as the cause of the harvest, yet it would not be intended to assert anything more than the seed has a tendency to produce the harvest. Coming now to an example of still weaker probability, suppose it to be asserted that gun powder may spontaneously, that it is without human meddling explode. This is not saying that it will probably so explode, but merely that under a rare combination of circumstances it will do so i.e., it has a capacity to do so. Capacity, then, is a quality representing the same process of thought as tendency, i.e., it represents the possibility of a result as compared with the probability of a result, and above them both is notion of a still highest degree, rarely realised in experience that of absolute certainty of result. All these are in the same category, the difference is that in the highest degree we think of the sequence as occurring under any and every combination of other circumstances, but on the middle degree under ordinary combinations only, and in the lowest degree under rare combinations only. The notion of causation is perhaps most commonly associated with the middle and highest degree only, i.e., one would naturally say a bullet through the heart will cause death" and "showing seed will cause a harvest," while in the lowest degree one would either not speak at all of cause or would qualify the statement for example, by saying 'gun powder may cause spontaneously an explosion'. The essential thing to note is that all these terms express only varying degree of certainty or probability or possibility and that they all belong to the same logical category of thought—" Wigmore. In Spencer Cooper's trial for murder, the body of the deceased was found in a river. The question in issue was whether she has committed suicide by jumping and drowning in the river or had been killed and thrown into the water. The stomach of the deceased contained no water. The prosecution wanted to adduce evidence of expert doctors to the effect that a person who dies in water the stomach must contain water. On the other hand the defence tried to adduce evidence to the effect that a person dying in the water does not necessarily take water inside his belly. Now in this case facts in issue are (1) whether the deceased was killed outside and thrown into the water, or (2) she jumped into the water and died of drowning. Now the evidence tried to be adduced by the parties is only to show as to what is the effect of a drowning. One party tried to prove by general happenings of the world that a man drowned must have water in stomach while other party tries to prove that a man may be drowned and still may not have water in the stomach. These facts which being the general consequences of drowning are relevant under Section 7. In another case the plaintiff brought an action against a barber for negligent use of razor by which he had caused the plaintiff to have barber's itch. The plaintiff adduced evidence to prove and he was allowed to prove that he never went to another barber's shop and that two other persons who had been shaved by the defendant acquired the itch. These facts were allowed as they constituted the state of things in which the plaintiff acquired itch. Similar Facts.—Generally speaking it is not admissible to prove the fact in issue by showing that, facts similar to it (fact in issue) have occurred on

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similar occasions. "It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person, likely from his criminal conduct or character to have committed the offence for which he is being tried." There are certain exceptions to this general rule. If the similar acts are so related with the main acts as to show the party's identity irrespective of any general propensity, they will be admissible, notwithstanding that they may also tend to show such propensity. So to show that A was a writer of a libellous letter, other letters written by 'A' to third persons are admissible to prove by comparison that the letter in question was written by A. In some other cases evidence of similar instances are admissible. CASES (i) The plaintiff filed a suit for injury received due to a defective stair case. The defendant was allowed to adduce evidence that 43,000 persons have passed from the stair-case and none received injuries. (ii) In a case the question was whether heap of refuse and earth, in a highway had a dangerous tendency to frighten horses. To prove this tendency to frighten horses the facts was received by the drivers of various other horses than the plaintiff in passing the heap.44 (iii) In another case the question being whether A's dog killed certain sheep belonging to B. The fact that the same dog had been seen killing one of B's sheep on a mountain on a Saturday and other sheep of B were found dead on the same evening was held admissible. (iv) Some footprints were found near the scene of occurrence. The prosecution led evidence of a tracker to prove those footprints were that of the accused. The evidence was held admissible.45 (v) A letter was despatched to one Joshi. He sent a letter in reply. The letter of Joshi was produced in evidence. But the contents could not be proved. It was held that though the contents of the letter could not be proved the fact of its receipt purporting to come from Joshi in reply to a letter sent to him would be relevant under Section 7.46 (vi) The plaintiff claimed certain sum of money from the defendant. Of that sum certain items were not recorded in the regularly kept account book of the defendant. It was held that the absence of entry is admissible to prove wan t of payment under Section 7.47 (vii) A is charged for poisoning B. The fact that A lives in the same house with B and had opportunity for tampering with his food and drink is relevant. (viii) A is charged for entering B's room in night for stealing money. The fact that A lived in the same house, and that there were interconnecting doors, are relevant facts as giving opportunity of having committed theft. ____________________ 44. 'Best on Evidence,' p. 467, See also Brown v. E.C.R. Co., 22 BD 391. 45. Lewis v. Jones, 1 TLR 153. 46. Pratap Singh v. The State, AIR 1955 Saurasthra 68. 47. Kasam v. Firm of Haji Jamal, 76 IC 327.

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Tape-recorded conversation.—Tape-recorded conversation is relevant under Sections 6, 7 and 8 of the Evidence Act, it is res gestae. It is also comparable to a photograph of relevant incident. Tape-recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. The tape-recorded conversation is relevant provided first the conversation is relevant to matter in issue, secondly, there is identification of voice and, thirdly, the accuracy of tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorded conversation.48 There should be no possibility of tampering of statement.49 SECTION 8.—Motive preparation and previous or subsequent conduct.—Any fact is relevant which shows or constitutes a motive or preparation for any act in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit, or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.—The word "conduct" in this section does not include statements, unless those statements, accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.—When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. ILLUSTRATIONS (a) A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C and that B had tried to extort money from A by threatening to make his knowledge public are relevant. (b) A sues B upon a bond for the payment of money, B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (c) A is tried for the murder of B by poison. The fact that before the death of B, A procured poison similar to that which was administered to B, is relevant. (d) The question is whether a certain document is the will of A. The facts that, not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate, that he ____________________ 48. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157 ; Pratap Singh v. State of Punjab, AIR 1964 SC 72 ; Ramo Reddy v. V.V. Giri, AIR 1971 SC 1162. 49. Lachmandas v. Deep Chand, AIR 1974 Raj. 79.

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consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant. (e) A is accused of a crime. The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. (f) The question is whether A robbed B. The facts that after B was robbed C said in A's presence—"the police are coming to look for the man who robbed B" and that immediately afterwards A ran away, are relevant. (g) The question is whether A owes B rupees 10,000. The facts that, A asked C to lend him money, and that D said to C in A's presence and hearing—"I advise you not to trust A, for he owes B, 10,000 rupees" and that A went away without making any answer are relevant facts. (h) The question is, whether A committed a crime. The fact that, A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant. (i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property, or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. (j) The question is whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under section 157. (k) The question is, whether A, was robbed. The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.

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COMMENTS Scope.—Section 8 deals with the relevancy of motive, preparation and conduct. It lays down that (1) a fact which shows or constitutes a motive for any fact in issue or relevant fact is relevant ; (2) a fact which constitutes or shows preparation for any fact in issue or relevant fact, is relevant ; (3) previous or subsequent 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 or relevant fact, are relevant provided such conduct influences or is influenced by any fact in issue or relevant fact ; (4) previous or subsequent conduct of any person an offence against whom is the subject of any proceeding or suit is relevant provided such conduct influences or is influenced by any fact in issue or relevant fact ; (5) statements accompanying and explaining acts (Explanation 1) ; (6) statements made in the presence and hearing of a person whose conduct is relevant provided the statement affects such conduct. Principle.—There is hardly any act without a motive. Motive is the moving power which impels one to do an act. It is the inducement for doing the act. The absence or presence of a motive and evidence of preparation, previous attempt, previous or subsequent conduct of the parties are relevant as they help in proving or disproving a fact in controversy. It may sometimes be important to know, whether a man charged with an offence, has any interest or motive to commit it. In determining the fact whether a man charged with an offence, committed it or not, it is important to know whether previous to the act he made certain preparations to do the act. Again, the conduct, antecedent or subsequent, of a person committing an offence or of a person against whom an offence has been committed, may be helpful in deciding as to whether a man has committed an offence. In Lakshmi v. State.50—The accused was addicted to smoking ganja and taking wine. He used to make demands for money from deceased Chhote Lal who was opposed to this habit of life of the appellant and would not accede to his request to advance him money to enable him to indulge in these vices. A few days before the accused had also beaten his mother and wife. At that the deceased had intervened and prevented him from doing so. On the appellant's refusal to obey him, the deceased had chained him. The accused had run away after breaking the chains. The accused stopped speaking to Chhote Lal. On the evening of 6th October, 1954, Chhote Lal was sitting at his door on a chabutra. The appellant took a pharsa and proceeded towards Chhote Lal. He began to assault Chhote Lal with the pharsa. Chhote Lal raised an alarm. A number of persons reached the spot on hearing the cry. On the arrival of these persons the appellant fled away outside the village with the pharsa. The accused tried to win over the witness of fact. In jail he gave a correct description of his address. At the trial at every stage, his statement was such as according to his conception was best calculated to subserve his purpose and to advance his own interest. At the trial the accused took the plea that he was of unsound mind at the time of the incident. All the facts given above were held to be admissible. The ____________________ 50. 1959 ALJ 287.

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facts given in the first para were admitted as motive of the murder, the contents of second para were allowed as the conduct of the accused, before the incident, at the time of the incident and after the incident. The facts given in third para were admissible as conduct of the accused during the trial in reference to the proceedings. (a) Motive—Meaning of.—A motive is that which moves a man to do a particular act. It is that which is in the mind of a man and which moves him to act. "The common inducement to acts, are the desires of revenging some real or fancied wrong; of getting rid of rival, or an obnoxious connection, or of escaping from the pressure of pecuniary or other obligation or burden ; of obtaining plunder or other coveted object; of preserving reputation or of gratifying some other selfish or malignant passion." Motive is an emotion, a State of mind, but it is often confused with events tending to excite, to emotion, the outward facts, which may be the stimulus and the cause of the emotion. Motive, in the correct sense is the emotion supposed to have led to the act. It is generally proved by two sorts of circumstantial evidence, namely : (1) conduct of the person, and (2) by events about that person which could excite that emotion. Conduct is effect and expression of that inward emotion. In State of M.P. v. Dhirendra Kumar,51 Munnibai was killed. Respondent Dhirendra Kumar had an evil eye on her. Respondent was tenant in the house of father-in-law of deceased (Munnibai). Munnibai reported the matter to her mother-in-law who in turn told her husband who asked respondent to vacate the house. Held, it could be taken as motive of murder. Intention and Motive.—Motive should not be confused with intention. Intention is an act of the will directing an act or a deliberate omission. It shows the nature of the act which the man believes he is doing. If a man fires at a tiger, but the aim is missed and a man is killed, he intends to kill the tiger. His intention is not to kill the man. The motive to kill the tiger might have been to get rid of the danger from it to men or to get its hide. A owes Rs. 1,000 to B. B puts pressure upon A for his money. A decides to kill B with a motive to get rid of the pressure of demand. He invites B to his house and strikes him with a sword and kills him. His act was prompted with the said motive and at the actual moment, the assault was with the intention to kill. Motive is reason which prompts the intention. It is the reason which induces him to do the act which he intends to do and does. Motive is relevant and may be proved in a case as it is of great importance to see whether there was motive for committing such and such a crime or whether there was none. It is always a right argument by the counsel of the accused that there is no apparent motive for the committal of the crime for his client. Proof of Motive.—No doubt, motive is helpful in deciding a case but often it is very difficult to prove the motive with which an act has been done, and so it has been laid down that if it is clear and certain that a crime has been ____________________ 51. AIR 1997 SC 318.

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committed, it is not essential to prove that there was a motive for the crime. Absence of motive or inadequacy of motive is of comparative unimportance where there exists absolutely cogent evidence that a crime has been committed by a particular person.52 But if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the particular crime could have been committed with the alleged motive.53 If there is no direct evidence of an offence but the court has to infer about the guilt from the circumstances, the question of motive becomes vital. If the motive is displaced or even made reasonably doubtful, it is enormously in favour of the prisoner.54 The prosecution is not bound to prove motive of any offence in any criminal case. If the prosecution proves motive court has to consider it and see whether it is adequate.55 Where the prosecution fails completely to prove motive and evidence regarding commission of offence is not clear and definite, the accused cannot be convicted. But even in case of circumstantial evidence, if after giving due consideration to the want of proof of motive the court is satisfied that the circumstances proved give one conclusion only that the accused is guilty, he may convict the accused.56 However improbable an alleged motive for the crime may be the prosecution is entitled to call evidence in support of it and nonetheless so because such evidence may suggest that the accused has committed some crime other than that with which he is charged.57 Where there is a clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very closely examined.58 Adequacy of Motive.—There cannot be one rule for every case, as regards adequacy of motive ; it must depend on the moral character of the person accused in each case. There can be no motive which can induce an honest man to commit a crime. In the case of debauch and immoral man the slightest motive may induce him to murder a man. The cases are not rare where men have murdered children for ornaments worth a few chips. Thus it is seen that adequacy of motive to commit crime depends upon the character of a man. Sufficiency or insufficiency of motive is not always of much significance in a criminal trial. Insufficiency of motive cannot be fatal to the prosecution case in every trial.59 Similarly a sufficiency of motive cannot be the basis of conviction if the case is not proved by the prosecution beyond reasonable doubt. ____________________ 52. Narayan v. State of Maharashtra, AIR 1971 SC 1656. 53. State of U.P. v. Hari Prasad, 1974 SC 1740. 54. Matadin v. Emperor, AIR 1937 Oudh 236 ; Bhaoji v. Govt. of Hyd., AIR 1954 Hyd 196 ; Uday Paul Singh v. State of U.P., AIR 1972 SC 54. 55. State of Haryana v. Sher Singh, AIR 1981 SC 1021. 56. Rajendra Kumar v. The State of Punjab, AIR 1966 SC 1322. 57. Natha Singh v. Emperor, AIR 1946 PC .187 ; Chhatra v. State, AIR 1958 Cal. 482. 58. Alley v. State of U.P., AIR 1955 SC 807 ; Prem Narain v. State, AIR 1957 All 177; Hari Bag v. State, AIR 1958 Cal, 118.

59.

Rangi Lal v. State of U.P., 1991 Cr.LJ. 911.

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Motive, absence of Motive or sufficiency or importance or significance of Motive.— Whether there is absolutely no motive or the motive alleged is not sufficient, is immaterial in a case where evidence is overwhelming. Absence of motive may not be relevant in a case where there is sufficient evidence to prove the case but in a case based only on circumstantial evidence absence of motive helps accused and negatives the proof, i.e., to say if any case is based only on circumstantial evidence and if there is no proof of motive the accused may not be found guilty of charge.60 When there is direct evidence. The evidence of motive is not of much significance. The evidence of motive becomes important to corroborate the circumstantial evidence. In State of Uttar Pradesh v. Nahar Singh and others,61 the Supreme Court held that where the participation of the accused in crime had been established by eye-witness the motive would pale into insignificance and could not be ground to justify acquittal of accused. Importance of significance or motive.—In State of U.P. v. Babu Ram,62 the accused himself admitted his motive of crime as the deceased had rejected his demand for property. The Supreme Court observed : "It cannot be laid down that the motive may not be very important in cases depending upon direct evidence, whereas motive is very much material only in the case which depends upon circumstantial evidence. There is no legal warrant to making such a hiatus. Motive is relevant factor in all criminal cases whether based on testimony of eye witness or circumstantial evidence. The question in this regard is, whether prosecution must fail because it failed to prove the motive, would weaken the prosecution to any perceptible limit. No doubt if the prosecution proves the existence of motive, it will be well and good for it. Particularly in a case depending on circumstantial evidence for such motive could then be counted as one of the circumstances. However it cannot be forgotten that it is generally difficult area for any prosecution to bring on record that what was in the mind of respondent. Even if the investigation officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. In Yunus v. Kariya,63 it was held by the Supreme Court where ocular evidence—(eye witness) was very clear and continuing, role of accused person in time stood and established failure to prove motive for the crime was of no consequence. Where there were earlier election disputes and the deceased had successfully contested the election against the candidate of accused party and the deceased had few months before the incident, quarrelled when the accused had diverted the sullage water towards the house of the deceased and the latter had frustrated their effort and in consequence of the obstruction the sullage water collected in a pool before the house of the accused which infuriated them and the proceeding on that score under Cr. P.C. were pending ____________________ 60. Sakharam v. State of MP., AIR 1992 SC 758. 61. AIR 1998 SC 1328. 62. AIR 2000 SC 1735. 63. AIR 2003 SC 539.

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the old enmity coupled with the incident over the passage of the sullage water could be the motive for the murder and the same could not be said to be so weak as not to prompt the accused to kill their rival.64 (b) Preparation.—Evidence tending to show that the accused made preparation to commit a crime, is always admissible. Preparation only evidences a design or plan to do a certain thing as planned. It is not always carried out but it is more or less likely to be carried out. The existence of the plan is always used in daily life as the basis of inferences to the act planned. In a case of burglary the four accused held a meeting to arrange for the crime; a bar of iron and pair of pincers were alone necessary; and these the accused brought; these facts were admitted to show preparation. The probative force, both of preparation and the previous attempts manifestly rests on the presumption that an intention to commit the offence was framed in the mind of accused which persisted until the power and opportunity were found to carry it into execution.65 The preparation on part of the accused may be, to accomplish the crime, to prevent discovery of crime or it may be to aid the escape of the criminal and avert suspicion. Illustrations (i) An inn-keeper and his wife were accused of murder of a guest. It is shown that on the night the murder was committed, they sent the maid-servant out of the house so that there may not be anybody to see the offence being committed. When she returned the next morning she was made to sleep in another part of the building. This is a relevant preparation to prevent the discovery of this crime. (ii) The accused was charged with cheating for importing goods in Karachi port without paying the proper custom duty. Evidence was adduced of previous visit of the accused to the port of Okha, where it was said he tried to make some arrangements with the customs whereby he could import other goods without payment of proper duty. The evidence was held admissible.66 (c) The conduct of a party.—The second paragraph of section 8 makes relevant the conduct of any person who is a party of a suit or proceeding in reference to any fact in issue therein or relevant thereto. The conduct of a party, interested in a proceeding at the time when the fact occurred out of which the proceeding arises is extremely relevant. The word 'party' includes not only the plaintiff and the defendant in a civil suit but parties in a criminal prosecution ; as for instance a prisoner charged with murder. Conduct—Meaning of.—The conduct is the expression in outward behaviour of the quality or condition operating to produce those effects. These results are the traces by which we may infer the moving cause. A man's conduct includes what he does and what he omits to do. Conduct may, in certain circumstances, include statements as is made clear by the explanation 1. ____________________ 64. Gurmej Singh v. State of Punjab, AIR 1992 SC 214. 65. Appu v. State, AIR 1971 Mad 194. 66. Mohan Lal v. Emperor, AIR 1937 Sind 293.

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The conduct of any person an offence against whom is the subject of any proceeding.—This section provides that the term 'party' includes any one an offence against whom is the subject of any proceeding. The reason why the Legislature said this was probably the fact that by pure legal technicality the State occupies in criminal matters a position analogous to that of a plaintiff in a civil suit.67 Technically speaking, a person against whom an offence is committed is not a party to a criminal proceeding. If this clause would not have been inserted in the section, there would have been a good deal of controversy as to whether the conduct of a person against whom an offence has been committed was relevant. The gestures of deceased in reply to questions put to him together with gestures in reply to them are admissible.68 The conduct in reference to the fact in issue or relevant thereto.—The conduct of any party to a proceeding in order to be relevant must be (1) in reference to any fact in issue or relevant thereto, or (2) to any suit or proceeding. The accused was charged with dacoity. He concealed a sum of money. He pointed out the place to the police and the money was recovered. The money was not the subject-matter of the dacoity the evidence was held inadmissible.69 Conduct in reference to the proceeding.—As the conduct of a party to a proceeding or suit in reference to the fact in issue or relevant fact, are admissible, similarly the conduct of a party in relation to the proceeding is also admissible. The fact that the accused has attempted to striffle or thwart at the investigation of the crime is relevant. S is suspected of having poisoned T. He tried in every way to prevent the body of T from being medically examined. This conduct of S in preventing the medical examination of the body of T is relevant. R disappeared while living in P's house. P was suspected of murder. It being proposed to dig the basement of the floor, P objected. The floor was dug and the dead body of R was found. The conduct of P in objecting was admissible. When a person is accused of a crime, the fact that before or at the time of or after the alleged crime he destroyed or concealed evidence or prevented the presence or procured the absence of the persons who might have been witnesses or suborned persons to give false evidence respecting it is relevant as a conduct in reference to the proceeding, conduct to referring the proceeding is illustrated when a party does something in the reference to the proceeding.70 The conduct of a party only admissible.—It must be borne in mind that the conduct of a party alone is admissible. The conduct of a person who is not a party to the suit or proceeding is not admissible. The conduct of a conspirator who was dead and so not an accused at the trial was held inadmissible.71 Against whom admissible.—The conduct of a man is admissible only against him. The conduct of one accused is not relevant against a co-accused.72 ____________________ 67. Queen-Empress v. Abdulla, 7 All. 385. 68. Emperor v. Moti Ram Rai Singh, AIR 1937 Bom. 372. 69. Bahman Vaje Ram Raghuram v. State, AIR 1954 Kutch 20. 70. King Emperor v. Bhagi and Others, AIR 1941 Oudh 359. 71. Sardul Singh v. State of Bombay, AIR 1957 SC 747. 72. Deshraj Sharma v. State, AIR 1951 Punjab 14.

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Influences or is influenced by.—A conduct is relevant if it influences or is influenced by any fact in issue or a relevant fact. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty or not.73 Previous or subsequent.—A conduct to be relevant under Section 8 need not be contemporaneous. It may be antecedent or subsequent to the fact in issue or relevant fact. In an adoption case deed of adoption found not to be clinching but as evidence of subsequent conduct of the parties is relevant.74 Complaints of the deceased to the police expressing apprehension of death made two months before death are admissible.75 The conduct of accused.—The conduct of an accused is relevant under Section 8. The immediate reaction of the accused having some bearing of the issue is relevant.76 Where the accused took the police and pointed out the article it was admissible as conduct of the accused.77 Sadho was tried for the murder of Srimati Manni. After arrest by the police he made a statement that he had the key of the house of co-accused Parasram and that he would recover the dead body of Srimati Manni from the house of co-accused where it was buried. Sadho opened the lock of the house of co-accused with a key which was in his possession and Sadho went inside the house and dug out the body of Smt. Manni from a corner of the Kothri. The fact of the opening of the lock by accused and digging out the body of Smt. Manni are relevant as conduct.78 The accused were tried for the murder of Boru under Section 302 I.P.C. and also under Section 201, I.P.C. for burying the dead body of Boru, in a sugarcane field. The accused were arrested by Investigation Officer who took them inside a Primary School where they gave information that they had murdered Boru, and would also produce his dead body, after digging it out from the field of Boru. The accused took the S.O. to the field of Boru, and they dug out his dead body which had been placed in a gunny bag, though the statement by the accused was not relevant under Section 27 of the Act as recovery, if any, was on a joint information but the fact of digging out the dead body is relevant as the conduct of the accused.79 It will be opposed to human conduct that an accused involved in a serious crime like murder would still be wearing blood stained clothes even four days after the murder.80 Similarly, sharing of plan to kill deceased with a stranger is opposed to normal human conduct, and also choosing a busy place to commit a crime of murder.81 ____________________ 73. Anant Lal p. State of Bombay, AIR 1960 SC 500. 74. Bishwanatha p. Dhapu Devi, AIR 1960 Cal. 494. 75. Alijan Munshi p. State, AIR 1960 Bombay 290. 76. Maha Singh p. State of Delhi, AIR 1976 SC 449. 77. Parkash Chand v. State of Delhi, AIR 1979 SC 400; Kuldeep p. State of Punjab, 1980 Cr LJ 71. 78. Paras Ram p. State, 1970 ALJ 149. 79. Babu Ram p. State, 1972 AWR 105. 80. Khalil Khan v. State of MP., AIR 2003 SC 4670. 81. Mausam Singh Roy v. State of W.B., (2003) SCC 377.

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F.I.R. by accused conduct.—If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct.82 Threat by accused.—A threat to do a criminal act, is relevant.83 The accused was disinherited by his father. His father was killed. The evidence that the accused did declare his intention to kill were held relevant. A woman and her paramour were charged for murdering her husband. Her statement, she lived a 'most unhappy life with her husband and she wished him dead or if that would not be she wished herself dead' made before the murder, were held relevant. Previous attempt.—Previous attempt to commit crime is relevant.84 Absconding.—The running away of an accused just after occurrence is evidence against him.85 But the absconding can never prove the guilt of the accused. A person though innocent may become nervous and run away.86 Through a deed one R purported to gift some property to the plaintiff. The document was presented to Sub-Registrar for registration. The document was received by R by post. He was illiterate. When the document was read over to him, he complained that he was defrauded, he meant to execute only a will but a gift was taken to be practising fraud upon him. This statement was held admissible under Section 8. Illustrations (i) Sardul Singh.87—The question was whether P was liable as partner of the firm of Dawn and Co., in respect of contracts which were made between the plaintiff and the firm in 1922 written by him to the agent of Chartered Bank of India, Australia and China. In that letter P said that he was writing to confirm that he had severed his connection with the firm Dawn and Co., from first of May, 1922. It was held to be relevant. (ii) Bhamara.88—One Bhagirath was ploughing his field. Bhamara was passing that way. He called Bhagirath to chat. During the talk the parties flared up. Scuffle ensued, Bhamara struck a stone against the head of Bhagirath. Ratiram and Lachhiman ran to the spot. The accused seeing these persons ran away but was caught by one Panna Lal. This conduct of accused was held to be admissible. (iii) In re Murugan.89—Where the accused took the police to a spot and pointed out a place from where incriminating articles were recovered, the conduct of the accused in taking the police and snowing the spot is admissible. ____________________ 82. A. Nagesia v. State of Bihar, AIR 1966 SC 119. 83. Vinayak Datta v. State, AIR 1970 Goa 96. 84. Appu v. State, AIR 1971 Mad 194. 85. Darbari Kumar v. Stale, AIR 1970 Orissa 54. 86. Matru v. State of UP., AIR 1971 SC 1050; Rahman v. State of U.P., AIR 1972 SC 110. 87. Sardul Singh v. State of Bombay, AIR 1957 SC 747. 88. Bhamara v. State of M.P., AIR 1953 Bhopal 1. 89. In re Murugan. AIR 1958 Mad 43 ; Jagdamba Prasad it. State, AIR 1957 MB 33.

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(iv) Mistri's case.90—M was charged with the murder of a girl. During the investigation M took the police to a place and pointed out and produced certain ornaments which the deceased was putting on at the time of her death. In the trial of M, the fact that he showed the police the place where the ornaments were hidden and the fact that he handed over the ornaments to the police will be relevant and allowed to be proved under Section 8 of the Evidence Act as it is the conduct of the accused after the occurrence. (v) N was tried for the murder of Srimati Shiama. No body saw Shiama being murdered. Her corpse was found in a well. When the police was investigating that matter the accused took the sub-inspector to a place, took out silver ornaments and coins amounting to Rs. 2.8 and handed them over to the police. He then took the S.O. to the sugarcane field where he picked out a bundle containing balance, chaddars, weights and other things. All these things the deceased had in her possession prior to her death. In the trial all these facts of taking out the ornaments and handing them over to the police and finding out the clothes from the sugarcane field and giving them to the police were allowed to be admitted as a conduct of the accused. (vi) Emperor v. Moti Ram.91—One Moti Ram and Rai Singh were tried for murder of Sita. She was found injured on her neck in a room. One Bhika reached the house and found the door chained from outside. On entering the house he found Sita reclining on the floor with her throat cut and bleeding profusely. By her side lay a vili. Bhika locked the door and went to the police station to make a report. When the sub-inspector entered the house with witnesses he found Sita reclining on the floor and holding her throat. When questioned as to who has cut her throat she tried to speak and with a great effort uttered the word "Moti". When asked further whether she meant Moti Ram she nodded her head in assent. She also pointed out her finger at the vili, and explained by signs that "Moti Ram" has cut her throat with it after putting his foot on her chest. Later on Sita was transferred to hospital where her condition became serious. In the hospital she answered Magistrate's questions by signs and pointing at the accused explained that it was he who had cut her throat with the vili at 10 a.m. All these facts were held to be admissible as conduct of the person an offence against whom was an inquiry under Section 8.92 (vii) The accused was charged with' the offence of bribery. It was deposed by the witnesses. Evidence was to the effect that at the time of raid by the police officer and trap witnesses, on the question "whether you have accepted bribe" the fact that the accused was stunned and did not reply, he was confused and began to appologise, or that he began to tramble were held relevant.93 (viii) A was accused of murdering his wife. The burnt dead body of the wife of accused was found in a closet. there was no direct evidence. The case depended on circumstantial evidence. The accused stated that he had gone for a morning walk with Dharmbir Mahajan and it was in his absence within short ____________________ 90. Mistri v. King Emperor, 6 ALJ 839. 91. Emperor v. Moti Ram Rai Singh, AIR 1936 Bom. 372. The facts of this case are similar. 92. Queen v. Abdullah, ILR 7 (All) 385.

93. Parakash Chand v. State of Delhi, Ad, 1979 Cr. L.J. 329 ; AIR 1979 SC 400 ; Shiva Bahadur Singh v. State of U. P., AIR 1954 SC 322 ; State of Madras v. Vaidyanath Iyer, AIR 1958 SC 61.

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span of half an hour that his wife committed suicide. The facts that he had gone for a walk and that his wife committed suicide were found to be false. The statement of the accused was held relevant.94 Statements of a party to a proceeding accompanying and explaining acts—Exp. 1.— Explanation 1 of Section 8 excludes the admissibility of the statement distinguished from conduct. But it allows the statement to be admitted under this section if the statements accompany and explain acts other than the statements. This explanation points to a case in which a person whose conduct is in dispute mixes up together actions and statements. In such a case those actions and statements may be proved as a whole. For instance suppose that a person is running down the street in a wounded condition calling out the name of his assailant and the circumstance in which the injuries were inflicted. Here what the injured person says and what he does may be taken together and proved as a whole. Here the statement of the person wounded explains his conduct. The conduct of running away and the cry of the person both show that he has been wounded by such and such person and in such and such condition. Only those statements which accompany and explain acts other than statements can be regarded as conduct.95 The relevancy of statements as to the facts stated.—Under Section 8 a statement would be relevant only if it explains a conduct. It would not be relevant as evidence of a fact stated.96 The statement must amount to complaint.—Illustrations (j) and (k) make statements of persons against whom an offence has been committed relevant but a mere statement is not relevant. The statements must amount to complaints to be admissible. A mere statement is not relevant. Statement in the shape of complaint is only relevant. There may be sometimes a difficulty in distinguishing a statement from a complaint. The essential difference between the two is that a complaint is made with a view to redress or punish and must be made to someone like the police, a parent or some other person to whom the complainant looked for assistance and protection. If A is running out besmeared with blood and crying helplessly to the people of vicinity to save his life from B who had wounded him and is about to beat more. This is certainly a complaint. But, if A leisurely walks down from a place with injuries on his person and when intervened and asked by a bystander he says that B has assaulted him, this is only a statement and not a complaint and is inadmissible. A woman was raped on 26th of August, 1929, when her husband was away. The husband came home on the 28th and then she told him that she had been raped. This was held not admissible.97 The applicant was staying in a hotel. Early in the morning he took brandy and upon being annoyed fired a gun on the bearer J. He crouched down and the shot missed him. Afterwards people gathered and J related the story on being asked. It was held not admissible.98 ____________________ 94. Kuldeep Singh v. State of Punjab, 1980 Cr. L.J. 71. 95. Pritam Singh v. State, 1972 AWR 521; Bhagwan Das v. State of Rajasthan, AIR 1974 SC 898. 96. Dwingly Ariel v. State of MP., AIR 1954 SC 15 : 1954 Cr LJ 930. 97. Ram Swami Reddi v. Emperor, AIR 1931 Mad. 235.

98.

Rameshwar Prasad v. Rex., 1951 ALJ 149.

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Complaints in answer to questions.—The complaints to be admissible must be volunteered and not in answer to question. But it must be borne in mind that the questions of a leading or suggestive character exclude the evidence. But the questions such as this put by mother or other persons "what is matter", "why are you crying" would not make the answer inadmissible. Statement of another affecting conduct of a party to a proceeding.—Expl.II.—Under this Explanation another class of statements i.e., the statements, affecting the conduct of a person, whose conduct is relevant under this section is admissible. In such cases the conduct of person shows nothing and becomes meaningless unless the statements are put before the court. Here the statements made in the presence of the party are admissible as the ground-work of that conduct. The conduct in such cases is equivocal and the statements are admissible to explain the conduct. The question is whether A murdered B. During the enquiry one C said in the presence of A "the sub-inspector is coming to arrest the man who has murdered B". Hearing these words of C, A runs away. At trial of A, the words spoken by C that the sub-inspector was coming to arrest the murderer, and after hearing that the conduct of A's running away are relevant together. If the words "The subinspector was coming to arrest the murderer" was said to A is not proved, merely saying that A ran away will be meaningless. Illustrations (i), (g) and (h) of the section are examples of such statements. If the statement has no bearing on the conduct it is not relevant.99 Illustrations (i) Emperor v. U. Daranpara.1—One A was murdered. Shortly after B rebuked C for having murdered A. B said "you have murdered A without any cause. You are to be damned for it". C keeps silent. This conduct of C keeping silent together with the words spoken to him are relevant. (ii) The accused was charged with the murder of his wife who was missing for some time. A photograph of a dead body recovered by the police was published in a newspaper. Soon after the photograph was published the accused said to B. "People are saying that the photograph is that of my wife. Please go and see". The accused appeared to be in a disturbed state of mind and tried to away from office taking leave. It was held that the statement of the accused was admissible under explanation.2 SECTION 9.—Facts necessary to explain or introduce relevant facts.—Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. ____________________ 99. Bai Khatija v. State, AIR 1962 Gujarat 1. 1. Emperor v. Daranpara, AIR 1937 Rangoon 83 (FB). 2. Arun Kumar Banerji v. State, AIR 1962 Cal. 504.

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ILLUSTRATIONS (a) the question is, whether a given document is the will of A. The state of A's property and of his family at the date of the alleged will may be relevant facts. (b) A sues B for a libel imputing disgraceful conduct to A ; B affirms that the matter alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B. (c) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant, under Section 8 as conduct subsequent to and affected by facts in issue. The facts that at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent. (d) A sues B for inducing C to break a contract of service made by him with A. C. on leaving A's service, says to A—"I am leaving you because B has made me a better offer." This statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue. (e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he delivers it—"A says you are to hide this." B's statement is relevant as explanatory of a fact which is part of the transaction. (f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of that transaction. Scope.—Under Section 9 the following facts are relevant:— (1) Facts which are necessary to explain a fact in issue or relevant fact. (2) Facts which are necessary to introduce a fact in issue or relevant fact. (3) Facts which support an inference suggested by a fact in issue or relevant fact. (4) Facts which rebut an inference suggested by a fact in issue or relevant fact. (5) Facts which establish the identity of anything or person whose identity is relevant. (6) Facts which fix the time or place at which the facts in issue or relevant fact happened.

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(7) Facts which show the relation of parties by whom any such fact was transacted. It should be borne in mind that these seven categories of facts are not admissible generally. They are relevant only in so far as they are necessary for the purpose indicated in each category. COMMENTS (1) Facts necessary to explain a fact in issue or relevant fact.— There is a kind of evidence which if considered separately and alone from other evidence would not amount to anything ; but if it is taken into consideration in connection with some other facts, proved in the case it explains and illustrates them. Sometimes it gives strength to the evidence given by one side and sometimes breaks the force of the evidence given by the other side. Such facts which are necessary to explain a fact in issue or relevant facts are relevant under Section 9 of the Evidence Act. The explanatory evidence is not relevant in itself. It is neither one of the res gestae nor probative in any direct line of proof to the existence of a fact in issue or relevant fact. The effect of the evidence of the nature is not, however, in all cases affirmative. An explanation made equally will be intended to diminish the force of the evidence produced by the adversary. Illustrations (i) Noor Mohammad v. Emperor.3—Noor Mohammad was tried for abducting Mst. Saidan. Once during the investigation Mst. Saidan was being taken to the police station. Noor Mohammad was loitering in the way. On seeing Noor Mohammed, Mst. Saidan at once cried out to her brother Kasim that this man was one of her abductors. Kasim told the head constable who was with them and the head constable forthwith arrested him. When the trial proceeded, Mst. Saidan was won over by the accused and she did not implicate Noor Mohammed nor anybody else. The prosecution wanted to produce Kasim, the brother of Mst. Saidan to depose that at the time when Mst. Saidan was being taken to the police station, seeing Noor Mohammad, she had cried of her own accord that he was one of her abductors. It was held that the statement by Kasim that Mst. Saidan denounced Noor Mohammad as one of the abductors was admissible as explaining the circumstances of Noor Mohammed's arrest and also for the purpose of establishing his identity. (ii) Rahan Lalu v. Emperor.4—The prosecution case was that Rahan Lalu killed his wife on one morning with an axe. Their son a child of 5 years was beside them. He made a cry and his cry attracted the witnesses who found Rahan with an axe in his hand and his deceased wife near him. The child's evidence was not recorded. The witnesses deposed as to what the child had said and upon that they reached. It was held that the witnesses could speak to the nature of the cry and even to what the child said so far as it explains their conduct. In the case of Rahan Lalu if the child had not said that his father was killing his mother, the witnesses would not have gone there. So the cry and the ____________________ 3. Noor Mohammad v. Emperor, AIR 1944 Sind 93. 4. Rahan Lalu v. Emperor, AIR 193S Sind. 97.

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words of the child explain as to why the witnesses went there. Similarly in Noor Mohammed's case the accused would not have been identified by the constable nor had he been arrested if Mst. Saidan had not said that he was one of her abductors. (iii) Emperor v. Abdul Ghani Bahadur Bhai.5—The accused managed to get four drafts from some bank. Accompanied by witnesses Beni Chand, he presented one draft at the bank and cashed it. Before he presented the second draft at the bank a telegram was received that four bank drafts were stolen from the bank and they need not be cashed. The telegram also contained the particulars of the drafts. The clerk concerned asked him to wait and informed the police. The police came and arrested the accused. It was held that the telegram was relevant to explain the conduct of the clerk and the police. If the telegram is not admitted, their conduct remains unexplained. Illustrations (a) to (f) are examples of explanatory facts. (2) Introductory facts.—It would be practically impossible, in conducting a suit or proceeding to jump directly on the main fact. A judge seeks for some introductory matter, just as one hearing the main incident of a story would like to know the circumstances leading up to it and the result that follow it. Facts which are introductory of a relevant fact are often of a great help in understanding the real nature of the transaction, and in supplying the missing link. Illustration Hunt v. Swyney.6—An action was brought by one Hunt executor of the will of one shop, against defendant Swyney to compel him, to convey certain lands alleged to have been held in trust for plaintiff's testator and setting out the facts relied on. Mrs. Sharp, the widow, intervened claiming that the defendant held that land in trust for her and claiming the rent and profits, setting out that the defendant, who was her husband's law clerk, has bought the land referred to with her money and for her, Mrs. Sharp, when in witness's box was asked, "During the year 1881 from December 1st, down to and including the month of October, 1882 was Mr. Swyney the defendant in this action, your agent in rents for you." Objection was raised that it was inadmissible. The objection was ruled out on the ground that it was introductory. (3) & (4) Facts which support and facts which rebut an inference.—There are certain other classes of the facts which are neither relevant as facts in issue nor as relevant facts. But they either support the inference suggested by the fact in issue or relevant fact or they contradict the facts in issue or relevant facts and for the purpose they are relevant. A is accused of committing robbery. Just after the committal of the offence, A runs away to Calcutta. At the trial of A for robbery the fact that he ran away just after the occurrence is a fact giving inference that he had some concern with the offence. If A adduces evidence to prove that he had a very urgent piece of work at Calcutta and in that connection he went there it will rebut the inference drawn from the fact that he ran away to Calcutta. ____________________ 5. AIR 1926 Bom. 71. 6. Hunt v. Swyney, AIR 1933 P.C. 854.

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Illustrations (i) R. v. Pearce.—The prisoner was charged with robbing the complainant of a coat by threatening to accuse him of an unnatural crime. The evidence was tried to be adduced to the effect that on the following night he was attempting to rob another person of his coat. The fact that the accused was trying to rob another man was not in issue in the present case, but this fact was allowed only because it supported the inference that the man must have committed robbery on the date in question. (ii) Emperor v. Wehiduddin.7—Where men are charged with committing of dacoity, evidence to show that prior to dacoity the accused were closely associating with the approver is relevant as supporting the statement of the approver that conspiracy to commit dacoity existed. (iii) Corpn. of Calcutta v. Province of Bengal.8—In arriving at the letting value of a building, the evidence afforded by the return of the accepted assessment of the neighbouring premises is admissible in evidence. (5) The facts establish the identity of anything or person.—In judicial proceeding, civil or criminal, the courts have very often to determine the identity of persons or things. Facts which establish the identity of a person.—"This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section." So when a party's identity with ascertained person is in issue, it may be proved or disproved not only by direct testimony or opinion but by similarity or dissimilarity of personal characteristics, (e.g., height, age, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, peculiarities, thumb-impression, footprints), as well as residence, occupation, family relationship, education, travel, religion, knowledge of particular people, place or facts and other details of personal history. It was held that identification of accused by witness in the Court is substantial piece of evidence where accused is not known previously by the witness. Test identification parade must be held at earliest possible opportunity with necessary safeguard and precaution. However, when accused had been seen by the witness for quite number of times at different point of time 'and places no test identification is necessary.9 In a case where there was murder and dacoity, the trial Court and the appellate Court placed much importance on the evidence of identify of the accused and convicted the accused; the Supreme Court held that until the exceptional circumstances are not proved the Supreme Court will not revalue the evidence (given before the Lower Court) because to give the importance of such kind of witness is subject matter of the Court of fact (not the appellate Court). In these circumstances due to lack of revaluation of fact the conviction of the accused is confirmed.10 ____________________ 7. Emperor v. Wahiduddin, AIR 1950 Bom. 157. 8. Corporation of Calcutta v. Province of Bengal, AIR 1940 Cal. 47. 9. Suresh Chand Bahri v. State of Bihar, AIR 1994 SC 2420. 10. Ram Deo Ram Yadav v. State of Bihar, AIR 1993 1780.

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Test Identification Parade.—There was no specific provision in the Evidence Act or Code of Criminal Procedure regarding identification parade of the accused till 2005. By the amendment of Cr.P.C. in 2005, a new Section 54A was inserted for identification of person arrested. Section 54A is as follows : "Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court, having jurisdiction, may on the request of the officer-in-charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit." This provision enable the police to seek permission of the Court for identification of the accused and the Court may determine the manner of identification. The manner of identification includes 'identification parade'. The police is not bound to hold identification parade. Test Identification Parade—Necessity.—Test Identification Parade is meant to test the veracity of the witness and his capacity to identify unknown persons. Test Identification Parade is not necessary where all the witnesses state that they otherwise know accused persons and they are not strangers to them and in the moonlight and lantern, they clearly identified them.11 Value and purpose of Test Identification Parade.—Regarding the purpose of Test Identification Parade Justice Dr. Arijit Pasayat in Heera v. State of Rajasthan,12 observed: "The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code13 and Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution."14 "As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its every nature inherently of a very weak character. The purpose of a prior test identification, therefore, is to test, and strengthen the trust worthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification ____________________ 11. State of U.P. v. Sukhpal Singh, AIR 2009 SC 1733 at p. 1733. 12. AIR 2007 SC 2425. 13. Cr. P. C. 14. Heera, State of Rajasthan, AIR 2007 SC 2425 at p. 2427.

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proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confer a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration."15 Object of Test Identification Parade.—In Ankush Maruti Shinde v. State of Maharashtra,16 which was a case of murder of five persons, the Test Identification Parade was held in the jail premises and all the five accused persons were made to stand in a queue in the Parade Hall. The Magistrate conducted the Test Identification Parade. He testified that he found the dummies to be acceptable and respectable persons selected by the police and were reliable. In his Explanation Report, he clearly stated that no police personnel or any of the employees of jail was allowed to stand in the parade hall when each of the witnesses was brought for identification of accused. The accused persons were asked to change their clothes on every time and the accused could not be seen by any of the witnesses prior to such witnesses being called for identifying the accused. In the cross-examination of the accused, nothing material was brought about to discredit his evidence. The trial Court awarded death sentence to six accused persons. The High Court confirmed the death sentence awarded to three persons and converted death sentence into life imprisonment of three persons. The basic question raised by the counsel for the accused-appellant related to Test Identification Parade and so-called dying declaration as having no relevance. Dismissing the appeal, Dr. Justice Arijit Pasayat, of the Supreme Court observed : "If potholes were to be ferreted out from the proceedings of Magistrate holding such parades possibly no Test Identification parade can escape from two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated, every Test Identification Parade would become unusable. Test Identification Parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting Test Identification Parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the subject is the real person whom the witnesses had seen in connection with the said occurrence."17 ____________________ 15. Heera v. State of Rajasthan, AIR 2007 SC 2425 at p. 2417 ; Kanta Prasad v. Delhi Administration, AIR 1958 SC 350: Vaikuntan Chandrappa v. State of Andhra Pradesh. AIR 1960 SC 1340, Budhsen v. State of U. P., AIR 1970 SC 1321 and Rameshwar Singh v. State of J & K., AIR 1972 SC 102 referred to. 16. AIR 2009 SC 2609. 17. Ibid, at p. 2613

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Test identification parade—Failure to hold.—In the First Information Report, the prosecutrix, a victim of gang-rape named four persons, accused Nos. 1 to 4 but in her deposition she named only accused Nos. 1 to 3. Only accused No. 1 was named by a prosecution witness and none other. She knew only four persons. She had not named accused Nos. 5 & 6 in the FIR or in her deposition. Accused Nos. 5 and 6 had been arrested on the basis of the statements made by their co-accused. The prosecutrix in her deposition before the Trial Court neither named nor identified accused Nos. 4 to 6. The Trial Judge and also the High Court did not deal with the aspect as to how their guilt was established. The Supreme Court through Justice S. B. Sinha observed: "In a situation of this nature, a Test Identification Parade was required to be held at least for the purpose of identification of accused Nos. 5 and 6. Some weight should have been given for arriving at a finding as regards the guilt of accused Nos. 5 and 6, as they had not been identified in the Court." "We, therefore, are of the opinion that in absence of any Test Identification Parade having been held or they having been identified in the Court, the accused Nos. 4 to 6 cannot be held guilty of commission of the said offence."18 A substantive evidence of identification of an accused is the one mode in the Court and a conviction can be based even if no identification parade is held but when a First Information Report has been lodged against unknown persons, the Test Identification Parade is held to test the veracity of the witness in regard to his capability of identifying the persons unknown to him. In such a case, it is incumbent upon the prosecution to arrange a Test Identification Parade as early as possible to exclude the possibility of the accused being identified either at the police station or at some other place with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.19 Where the victim identified the accused on the next day of the offence and she and her family members knew the accused, not holding of Test Identification Parade is inconsequential.20 Failure to hold identification parade was held to be not material as it would have not served any purpose when the accused remained in hospital for thirteen days.21 Neither the investigating agency is obliged to hold nor accused has a right to claim identification parade. The question of identification infact arises where the accused is not known to the witness.22 The identification parades belong to the stage of investigation and there is no provision in the Code obliging the investigating agency to held test identification parade or confers a right upon the accused to claim such parade. ____________________ 18. Viswanathan v. State, AIR 2008 SC 2222 at p. 2225. 19. Ravi alias Ravichandran v. State, AIR 2007 SC 1729 at p. 1731. 20. Jameel v. State of Maharashtra, AIR 2007 SC 971. 21. Patangi Balarama Venkata Ganesh v. State of A.P., AIR 2009 SC 3129 at p. 3136. 22. Simen v. State of Karnataka, (2004) 2 SCC 694.

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They do not constitute substantial evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.23 The injured eye-witnesses identified the accused in the Court. The Test Identification Parade (T I P) could not be held because the accused persons denied to participate in TIP. The evidence of eye-witnesses cannot be rejected without assigning any reasons.24 In Pammi alias Brijendra Singh v. Govt. of Madhya Pradesh,25 the eye witness did not see the accused for the first time. Names of some of the assailants were mentioned by eye-witness even in FIR which he lodged soon after occurrence. Failure to hold identification parade would not vitiate the evidence of eye-witness. In George and others v. State of Kerala and others,26 it was held by Supreme Court that the admissibility of the identification of accused in court was not affected for want of evidence of earlier identification in the test identification parade. In Rony alias Ronald James Alwaris v. State of Maharashtra,27 the witness was friend of the deceased. The witness had opportunity to interact with accused while entering the place of incident. It was held that the evidence of identification of accused at the trial by said witness could be relied upon without corroboration of identification parade. In Rajesh Govind Jagesha v. State of Maharashtra,28 the accused had beard and long hairs at the time of commission of offence as mentioned in FIR. The accused had removed the same at the time of test identification parade. No person with beard and long hairs was included in the parade. Witness alleged to have identified the accused at first sight though he had removed beard and long hairs. Possibility of witness having seen the accused between the date of arrest and identification parade was not ruled out. Identification parade was held after inordinate delay of about five weeks after the arrest of the accused. Explanation of delay was not truthworthy. The plea as to non-availability of Magistrate in the city could not be accepted because the investigation agency was not obliged to get parade conducted from the specified Magistrate. The accused was entitled to benefit of doubt. Where the moles, scars on the face of the accused covered to large extent with pieces of paper and similar paper covering was done on faces of other persons participating in parade. Such identification parade was rendered unreliable by extensive make-up on faces. The possibility of witnesses seeing ____________________ 23. Md. Kalam v. State of Rajasthan, AIR 2008 SC 1813 at p. 1815. 24. State of Haryana v. Surendra, AIR 2007 SC 2312 at p 2313. 25. AIR 1998 SC 1185. 26. AIR 1996 SC 1376. 27. AIR 1998 SC 1251. 28. AIR 2000 SC 160.

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accused before parade also could not be eliminated. The court held that in such case it was not safe to convict accused on the basis of such identification parade.29 In Ahmad Bin Salam v. State of Andhra Pradesh,30 Police asked witness as to whether he could identify the persons who were on scooter and who threw bomb towards the deceased. The witness replying in affirmative. The accused persons were shown to him for identification and he identified them. It could not be held to be test identification parade. Delay in holding identification Parade.—It is true that the test identification parade is a step in investigation, but it is the identification in the court that is an evidence. The test identification parade assumes importance particularly if held within a reasonable time after the commission of the offence.31 In fact there is no fixed rule as regards the period within which Identification Parade must be held. It is for the Court to decide on the facts of the case and evidence on the record whether to accept or reject the evidence of identification. The delay of one month in holding the parade was not held fatal to the prosecution as there was no motive present to be imputed by the defence nor did it allege any irregularity in holding the parade.32 Similarly, where witnesses had ample opportunity to see the features of the accused persons at the time of dacoity and accused had not been shown to the witnesses before the parade, delay in holding the parade would not affect the evidence of identification in the parade.33 In Brij Mohan v. State of Rajasthan34 test of good and reliable identification parade is promptness of holding the (identification parade) after arrest of culprits, it shows genuineness and fairness of test identification parade. The accused person were produced before Magistrate Baparda for remand and put on test identification parade within 24 hours of their arrest. The objection that they had been shown to the witness was not maintainable. Duty of prosecution to hold test identification at earliest but no time limit can be fixed. In a dacoity case in which four persons were killed in gruesome and callous manner, Test identification parade was held after three months of occurrence but within 24 hours of their arrest. Held, identification was reliable. In Daya Singh v. State of Haryana,35 two injured eye witnesses identified accused. Their evidence and cross-examination showed that they gained enduring identity of accused during incident. Thus, delay in trial and identification of accused in court after seven or eight years would not affect evidence of said witness. The fact that the Tahsildar who conducted the parade and police officer who recorded confessional statement of the accused failed to identify accused in Court would not be material. ____________________ 29. Chaman v. State of U.P., AIR 1992 SC 601. 30. AIR 1999 SC 1617. 31. Girja Shanker v. State of U. P., AIR 1993 SC 2618. 32. Pramod Mandal v. State of Bihar, 2005 SCC (Cri) 75. 33. Lal Singh v. State of U.P., AIR 2004 SC 299. 34. AIR 1994 SC 739.

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Power of perception and memory differs from man to man and also depends upon situation. However, it would depend upon strength and trustworthiness of witness who has identified the accused. Identification not admissible if accused was shown before Identification Parade or person making Identification has been tutored before Identification Parade.—In Prahlad Singh v. State of Madhya Pradesh,36 the factum of rape was established. However the identification of the accused by prosecutrix (on whom rape was committed) was not acceptable in view of her admission that she was tutored by her father and police and accused was shown to her prior to identification. Photographs shown to witness beforehand.—Where the photographs of the accused were shown to two of the child witnesses before the Test Identification Parade, that took away the effect of the Test Identification Parade.37 The absence of test identification parade.—The absence of test identification parade in all cases is not fatal.38 A person well known by sight even before the commission of occurrence need not be put before the identification parade in order to be marked out.39 Conviction on the basis of Test Identification Parade.—The accused was convicted although the witness deposing in the Court did not identify the accused out of fear and was trembling at the stare of the accused whereas the witness had identified him in the test identification parade. The Court relied upon the evidence of the Magistrate who had conducted test identification parade.40 In Ram Nath Mahto v. State of Bihar,41 there was dacoity with murder, the Supreme Court was to consider the credibility (importance) of evidence of identification. In this case, the prosecution witness recognised accused as dacoit in identification parade, conducted by Magistrate. However he denied to recognise him before trial court. The prosecution witness was trembling when the accused stared at him. The oral testimony of the Magistrate described the identification parade as successful one. The evidence of prosecution witness in identification parade conducted by the Magistrate constituted the substantive evidence. More so when it was supported by remarks of trial court regarding demeanour of identifying witness. Conviction based on such identification was held to be proper by the Supreme Court. In Ashish Batham v. State of Madhya Pradesh,42 the case was relating to identification of property. This was murder case. Chain worn by the deceased ____________________ 36. AIR 1997 SC 3442. 37. State of Madhya Pradesh v. Chamru @ Bhagwandas etc., AIR 2007 SC 2400 at p. 2402. 38. Jadunath Singh v. The State of U. P., (1970) 3 SCC 518; Harbhajan Singh v. State of J & K, (1975) 4. SCC 480. 39. Prakash Chand Sogani v. The State of Rajasthan, Cr.A. No. 92 of 1956 decided on 15-1-1957 (SC). 40. Ram Nath Mahto v. State of Bihar, (1996) 8 SCC 630. 41. AIR 1996 SC 2511. 42. AIR 2002 SC 3200.

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was recovered from the accused. It was alleged that the chain had iron wire in place of hook. The chain was not mixed with similar chains at the time of identification. Identification of chain by the parent of deceased was held to be doubtful. In Surendra Singh Rahtela v. State of Bihar,43 the accused fired at inmates of a car. Injured eye-witness identified him at test identification parade. Eye-witness stated in FIR that he could not identify the accused assailant. It was held that the conviction was liable to be set aside. Non-examination of Magistrate.—In Ayyub v. State of U.P.,44 Judicial Magistrate, in whose presence the identification was held, could not be examined since he had expired. The prosecution witnesses deposed in detail, steps taken in conducting 'Test Identification Parade'. Their evidences showed that all necessary precaution was taken. It was held by the Supreme Court that Test Identification Parade was not defective. No Conviction on the basis of Test Identification Parade Identity of physical features.—The age, size, height, hair, complexion are circumstances, that provide a material for proving the identity of a person. The other physical marks, such as, blindness, lameness and the like also help in fixing the identity of a person. Identity by voice and gait.—It is not safe to rely on identification of a person by his voice alone. Similarly it is not possible to recognise a person without mistake by gait. In some cases it had been held that in certain circumstances the identification by voice is reliable. By Tripura High Court it has been held that a well acquainted person can be correctly recognised by voice and face to face talk.45 The Supreme Court accepted the testimony based on gait and voice as the accused was related to the witnesses.46 The father of the deceased who was a prosecution witness stated that the deceased went to take bath in the canal and a jeep came on the bank of canal. He did not see the other occupants of the jeep and identified the appellant from his voice who was his grandson and nephew of the deceased who raised the lalkara to teach the lesson to the deceased for cultivating the land of his grand father. He did not recognise other appellants but he knew them. Since he did not know their names, he could not give their names. Due to infliction of injuries on the person of the deceased by the accused persons, the deceased succumbed to injuries in the hospital. The stand of the appellant was that in dark night recognition would not have been possible from voice, was held to be clearly untenable. In a dark night, ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice, identification is possible. Therefore, there was nothing to discard the evidence of prosecution witness.47 ____________________ 43. AIR 2002 SC 260. 44. AIR 2002 SC 1192. 45. Jamsher Ali v. State of Tripura, A.I.R. 1954 Tripura 11. 46. Kripal Singh v. State of U.P., AIR 1965 SC 712 ; State of U.P. v. Manoher, AIR 1981 SC 2073. 47. Dalbir Singh v. State of Haryana, AIR 2008 SC 2389 at p. 2391; Anwar Hussain v. The State of U. P., AIR 1981 SC 2073.

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Where the witnesses were not closely acquainted with accused, the identification of the accused by voice was unreliable.48 Identification by Fingerprint.—The accepted conclusion of science is that several fixed and typical varieties of ridges on finger-tips are clearly distinguishable and that the chance of two individuals bearing the same combination of such marks are so small as to be negligible. Hence identity of finger marks is the strongest evidence of the identity of person and such evidence is admissible. Identity of foot-marks.—Evidence of tracker is admissible if proved that the foot-prints in question are identical with the foot-prints of the accused. Identification of accused during night.—Where the two persons, one mason by profession and another, a petty seller of sarees came forward to depose against the accused persons and identified them by stating that they witnessed the incident of murder from a place just near to the Central Jail when the murder took place in a bright day light, there was no infirmity in the identification.49 Where the source of light for identification of accused was not mentioned in F.I.R. There were four witnesses and some were injured in the incident. The accused and eyewitnesses were closely related. It was held that their evidence could not be discarded on the ground of not mentioning the source of light.50 Conviction based on Identification of accused in court.—In Shaikh Umar Ahmad Shaikh and others v. State of Maharashtra,51 the question involved was whether an accused can be convicted on the basis of identification in the court, In this case the designated court recorded finding as to strong probability of accused having shown to witness before identification parade. The conviction was recorded by relying on identification of accused by said witness in the court. It was held by Supreme Court that the conviction was not justified when the accused were shown to the witness. Their identification in the court by said witness was meaningless. The conviction was set aside. Identity of family resemblances.—Family likeness has often been insisted upon as a reason for inferring parentage and identity. But such evidence is not to be relied upon.52 Evidence of sniffer dogs.—In G. Lakshmi Man Raju alias Ramesh v. State of Andhra Pradesh,53 it was held by the Supreme Court that the evidence of sniffer dogs or its master is first among them. The possibility of misunderstanding between dog and its master is close to its heels. The possibility of misrepresenting or wrong inference from the behaviour of dogs can not be ruled out. But it is a fact that from scientific point of view there is little ____________________ 48. Inspector of Police, T.N. v. Palanisamy, AIR 2009 SC 1012 at p. 1013. 49. Abuthagir v. State Rep. by Inspector of Police, Madurai, AIR 2009 SC 2799 at p. 2803. 50. State of U.P. v. Sheo Lal, AIR 2009 SC 1912 at pp. 1913-1914. 51. AIR 1998 SC 1922. 52. Anand Bahadur v. Deputy Commissioner, Barabanki, AIR 1933 Oudh 242. 53. AIR 2001 SC 2672

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knowledge and much uncertainty as to precise faculties which enable the police dogs to track and identify criminals. Police dogs are engaged in this action by virtue of instincts and also by training imparted to them. Criminal Courts, therefore, need not bother much about evidence based on sniffer dogs. Investigating exercises can afford to make attempts with the help of canine faculties but judicial-exercise can ill afford them. The services of a sniffer dog can be taken for the purpose of investigation but its faculties cannot be taken as evidence to establish guilt of an accused.54 Identity of things.—The identification of articles is capable of being established not only by direct evidence but also by means of circumstances. Some Judges have held that it is very difficult to fix any identity to things of common pattern. Where an article is of an ordinary type, for example, a jugunu (a small ornament), a lota, a dhoti and a torn coat and so on they can be found with anybody. There being no special feature or identifying marks on them it is not practicable to identify them.55 Contrary to this some Judges are of the view that identity of common property also can be fixed. It has been observed that small and even nice points of difference distinguishing one thing from other of the same kind may merely by the frequent sight of them make an impression on the mind and a person may identify his article and distinguish it from others even without any special marks on them.56 Orissa High Court has held that a woman can identify her necklace even without special mark on it if it is whole or unbroken, but they can never identify a piece of a necklace.57 In Supreme Court case of Surinder Pal Jain v. Delhi Administration,58 it was held that where on the day of murder of wife the accused husband had slept in the Verandah near the cot where the dead body of his wife was found had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of smell by the dogs and pointing towards the accused cannot be said to be a circumstance which can exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant. The pointing out by the dogs can as well lead to a misguided suspicion that the appellant had committed the crime. (6) Facts which fix the time or place of facts in issue or relevant facts.—Under this section facts which are necessary to fix time and place of the occurrence are relevant. The fact of time or place become very important when the accused pleads alibi. The question is whether murder of A was committed by B. It must be proved at what time, A was murdered because it is very necessary that B must be present near A at the time of murder. If the time and place of murder is not known it cannot be said that B murdered A. If A is murdered at Allahabad at 10 a.m. on 3rd of October, 1950, and if it is proved ____________________ 54. Dinesh Borthakur v. State of Assam, AIR 2008 SC 2205. 55. State v. Wahid Bux, AIR 1953 Alld. 314 ; State of U.P. v. Saruamuhi, AIR 1954 U.P. 42. 56. Public Prosecutor v. I.C. Lingial, AIR 1954 Mad 433 ; In re Govinda Reddy, AIR 1958 Mysore 150. 57. State v. Ram Bali, 1961 ALJ 412 ; Sadasivadas v. State, AIR 1958 Orissa 51. 58. AIR 1993 SC 1723.

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that B was at Calcutta at 10 a.m. on the same day, B cannot be the murderer of A. So these facts which fix the time and place of the facts in issue or relevant facts are relevant. In Bhim Singh v. State of Haryana,59 the question was as to time of death. Time was variation in evidence. Evidence of prosecution witness sought to be corroborated by stomach contents of the deceased as found in post-mortem report. This piece of evidence can be relied as conclusive evidence in absence of their being some other evidence to show when the deceased had his last meal or when the deceased went to answer the call of nature. So far as they are necessary for that purpose.—The words "are relevant in so far as they are necessary for that purpose" in Section 9 are important and should not be lost sight of in applying Section 9. Collateral facts enumerated under the section are ordinarily not admissible in evidence unless appears that such facts are directly connected with the facts in issue. In other words, explanatory or introductory facts can be proved if they have a direct bearing on the fact in issue.60 (7) Facts showing relations.—Facts showing relationship of parties by whom such facts was transacted are relevant. SECTION 10.—Things said or done by conspirator in reference to common design.—Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. ILLUSTRATION Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. COMMENTS Principles.—The basic principle which is underlined under Section 10 is the theory of agency and hence every conspitor is agent of this association in ____________________ 59. AIR 2003 SC 393. 60. Rajendar Singh v. The State. AIR 1955 NUC 2765; Lakshmandas v. State, AIR 1968 Bom 400.

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carrying out the object of conspiracy. Section 10 renders anything said or done or written by any one of the conspirators in reference to their common intention as relevant fact not only as against each of the conspirators but proving the conspiracy itself. Further the said fact can be used for showing that a particular person was party to the conspiracy. The only condition for application of the rule of Section 10 is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence. In State of Maharashtra v. Damu Gopinath Shinde,61 there was no doubt that there was reasonable ground to believe that four of the accused conspirators had conspired to commit the offence of abduction and murder of children involved in this case. So, when these accused had spoken to each other in reference to common intention as could be gathered from the said conspirators that could be regarded as relevant facts falling within the preview of Section 10. A dialogue between them could be proved through any permitted legal mode. When the confession was legally proved and found admissible in evidence the same could be used to ascertain what was said and done or written between the conspirators. Conspiracy defined.—Section 10 deals with the admissibility of evidence in a conspiracy case. Before discussing the section itself we must know the meaning of the term 'conspiracy'. The term 'conspiracy' means combination of two or more persons for unlawful purposes. "Conspiracy is the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful either as a means or as an end". Section 120-A of the Indian Penal Code lays down : "When two or more persons agree to do or cause to be done (1) an illegal act, or (2) an act which is not illegal but illegal by means, such agreement is designated as criminal conspiracy ; provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides an agreement is done by one or more parties to such agreement in pursuance thereof." Thus it is clear that when two or more persons agree together to do some illegal act or some act by illegal means they are said to have conspired. "That it is not necessary in order to constitute a conspiracy, that the acts agreed to be done should be acts which if done should be criminal. It is enough if the acts agreed to be done although not criminal are wrongful, i.e., amount to civil wrong." "A conspiracy consists of unlawful combination of two or more persons to do that which is contrary of law, or to do that which is wrongful towards other persons. It may be punished criminally, or civilly by action." It must be remembered that mere knowledge on the part of a man about a conspiracy will not make him a conspirator. The man may be in knowing of an existence of a conspiracy between others yet he may not have to do with the conspiracy. There must be a consent of will and endeavour between the conspirators. Scope of the section.—Under Section 10 anything done or written by any one of the conspirators in respect of their common intention is admissible ____________________ 61. AIR 2000 SC 1691.

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against all the conspirators for the purpose of proving (I) that the conspiracy existed, and (II) for the purpose of proving that a person was a party to it. Generally a thing done or statement made is admissible against the person who does the work or makes the statement. Under Section 10, a statement or act of one person is evidence against another. Section 10 lays down that anything said, done or written by one of the conspirators is relevant against each of the persons believed to be conspiring for two purposes (1) for the purpose of proving the existence of conspiracy, and (2) for the purpose of showing that any such person was a party to it. It must be borne in mind that everything said or done or written by one of the conspirators at any time will not be relevant under Section 10. The section puts certain limitations to the general rule of admissibility stated above. Under Section 10 a thing done, said or written after the time when such intention was first entertained by any one of them is relevant. Anything done, said or written before such intention of conspiracy was entertained by any one of them is not relevant under this section. Again each and everything said, done or written by a conspirator even after such intention was entertained by a member of the conspiracy will not be relevant under this section. The only thing said, done or written in reference to the common intention of the conspirators will be admissible. There is more limitation to the relevancy of evidence under Section 10. Before any evidence is entertained under this section there should be a reasonable ground for the court to believe that two or more persons have conspired together to commit, an offence or actionable wrong.62 Any statement made by accused after his arrest cannot fall within the ambit of Section 10. Confessional statement of accused who is not alive would not be of any evidentiary use.63 Analysis of Section 10.—Section 10 can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy ; (2) if the said condition is fulfilled, any thing said, done or written by any one of them in reference to their common intention will be evidence against the others; (3) any thing said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy, whether it was said, done or written before he entered the conspiracy or after he left; (5) and it can be used only against a conspirator and not in his favour.64 Reasonable ground of conspiracy.—As mentioned above the applicability of Section 10 is strictly conditional upon there being reasonable ground for a court to believe that two or more persons have conspired together to commit an offence. A court cannot use anything said, done or written by one alleged member of the conspiracy, in evidence against him or against all unless there is a reasonable ground to believe that the conspiracy between them existed. Thus, before bringing on record anything said, done or written by an ____________________ 62. H.H.B. Gill v. Emperor, AIR 1948 PC 128. 63. State of Gujarat v. Mohammed Atik and Others, AIR 1998 SC 1686. 64. Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682.

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alleged conspirator the court has to bring on record some evidence which prima facie proves the existence of the conspiracy. Once a reasonable ground to believe that several persons have conspired to commit an offence exists the acts and declarations of a particular person in reference to the common intention are relevant facts although that person may not so much as even know of the existence of many others engaged in the conspiracy or were utter strangers to him. And if the evidence is taken after a prima facie proof of conspiracy but at a later stage of the trial that reasonable ground of belief or prima facie proof is displaced by further evidence, the court must reject the evidence previously taken.65 In Ammani and Others v. State of Kerala66 it was held by Supreme Court that where there was reasonable ground to believe that the other accused had conspired together in committing murder, the confession made by accused could be used against other accused also. In Central Bureau of Investigation (CBI) v. V.C. Shukla & Others (Hawala case),67 the entries were made in the accounts book alleged to be showing conspiracy among all the accused. Evidence of prosecution witness only indicated that one of the accused in question was known to the other accused person and had gone to their residence on formal occasion. The witness did not speak a word about other accused in question. It was held that Section 10 could not be pressed into service for holding that conspiracy amongst all the accused was proved. Things said, done or written in reference to common intention.— It must be borne in mind that the thing said, done or written by one person will be admissible against him and others in a conspiracy case only when that thing is said, done or written in reference to the common intention of the conspiracy. Anything written by a conspirator will not be admissible against him or others if it is not done in reference to the common intention of the conspiracy.68 The word 'intention' implies that the act intended is in the future and the section makes relevant statements by a conspirator with reference to the future. The words "in reference to their common intention" mean in reference to what at the time of statement was intended in the future. Narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. Example A and B were committed under Section 120-B read with Section 165-A, IPC. The facts were when the inspector of police was on his way to police station, both A and B approached him and requested him to hush up a criminal case pending investigation against, B, for reward. The inspector asked them to see him in his office. The inspector reported the matter to his superiors. Some ____________________ 65. Samundar Singh v. State, AIR 1965 Cal. 598 ; L. Chorasia v. State of Maharashtra, AIR 1968 SC 743. 66. AIR 1998 SC 260. 67. AIR 1998 SC 1406. 68. Tribhuwannath v. State of Maharashtra, AIR 1973 SC 450; Bhagwandas v. State of Rajasthan, AIR 1974 SC 878.

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days afterwards A came to the police-station and offered Rs. 500 in currency notes saying that B had sent him with the money in pursuance of the talk which they had with him some days previously, to hush up the matter. When the money was offered there were some witnesses in the room. At the trial the question was whether the statement made by A, that he was sent by B with the money to be offered by way of a bribe to the police officer, was admissible against A. It was held that the incident when both A and B approached the inspector with the proposal that he should hush up the case against B for which he would be amply rewarded, was clear evidence of the two persons having conspired to commit the offence of bribing a police servant in connection with the discharge of his public duties. That being so anything said or done by any one of the two, with reference to the common intention, namely, the conspiracy to offer bribe, was equally admissible against both of them. The statement made by A that he has been sent by B to make the offer of the bribe in order to hush up the case which was then under investigation was admissible not only against the maker of the statement A but also against B whose agent the former was in pursuance of the object of the conspiracy. The statement was admissible not only to prove that B had constituted A his agent in the preparation of the crime, but also to prove the existence of the conspiracy itself.69 Act of one conspirator is act of another. Under the principle contained in Section 10 of Evidence Act, once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other.70 Evidence relating to acts outside the period of conspiracy.—It should also be remembered that the things done, said or written by a conspirator will be normally relevant only when it is done, said or written after the time when such intention was entertained by any one member of the conspiracy. If the thing was said, done or written in the past that is before such intention was entertained by any one of them, it is not relevant and cannot be proved.71 Again a thing done, said or written by any one of the members of the conspiracy after the conspiracy is over is not relevant under this section. This view of the Privy Council does not hold good in view of the opinion of the Supreme Court expressed in Ram Narayan Popti case,72 which has been followed in K. Hashim v. State of Tamil Nadu.73 Thus held that things said, done or written before the conspirator against whom the evidence is sought to be proved had entered the field of conspiracy or after he left it was clearly covered, inspite of the fact it being related to the period prior to commission of the offence. In State of Gujarat v. Mohd. Atik & Others,74 it was held by Supreme Court, that once the common intention ceased to exist any statement made by former conspirator, thereafter could not be regarded as one made in reference to ____________________ 69. Badri Bai v. The State of Bihar, AIR 1958 SC 953. 70. Sheo Narayan v. State of Maharashtra, AIR 1980 SC 439. 71. Ahai Lal v. Emperor, AIR 1949 PC 90. 72. (2003) 3 SCC 641 of 779. 73. (2005) 1 SCC 237. 74. AIR 1998 SC 1686.

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their common intention. In other words, the post arrest statement made to the police officer whether it is confession or otherwise touching his involvement in the conspiracy would not fall within the ambit of Section 10 of Evidence Act. In Mirza Akbar v. Emperor,75 Mirza Akbar, Mst. Mehr Laqa and Umar Sher were convicted for the murder of Ali Askar, the husband of Mst. Mehr Laqa. The prosecution case was that Mst. Mehr Laqa and Mirza Akbar desired to get rid of Askar so that they should marry each other. Umar Sher was hired for the purpose. Umar Sher shot Ali Askar dead. After the murder was committed, Mst. Mehr Laqa was arrested on the charge of conspiracy. She was examined before a Magistrate and there she made certain statement implicating Mirza Akbar. This statement was admitted in evidence both by the trial Judge and Judicial Commissioner as relevant against the appellant under Section 10, Evidence Act. It was held that the words of Section 10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed……Things said, done or written while the conspiracy, was on foot, are relevant. But it would be a very different matter to hold that any narrative, statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist, admissible against the other party. With this observation it was held that the evidence was not admissible under Section 10 of the Evidence Act. In short, past and future things said, done or written are not relevant under Section 10 of the Evidence Act. The principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is one the theory of agency. The rule in Section 10 of the Act confines that principle of agency in criminal matters to the acts of coconspirator within the period during which it can be said that the acts were "in reference to their common intention" that is to say, "things said, done or written, while the conspiracy was on foot" and "in carrying out the conspiracy." Evidence of coconspirators outside the period of conspiracy is not receivable in evidence.76 Appellant Mirza Akbar and Mst. Mehr Laqa were tried for conspiracy to commit the murder of Ali Askar, husband of Mst. Mehr Laqa. After the murder was committed Mst. Mehr Laqa was arrested. She made statement to the effect that there was conspiracy for murdering Ali Askar. It was held that the statement was made with reference to past act 'common intention' in the section signify common intention existing at the time when the thing was done, written or said. Things said, written or done while the conspiracy is at foot are relevant. The statement was held to be not admissible.77 SECTION 11.—When facts not otherwise relevant become relevant.— Facts not otherwise relevant are relevant— ____________________ 75. AIR 1940 PC 176. 76. Sardul Singh v. State of Bombay, AIR 1957 SC 747, 77. Mirza Akbar v. Emperor, AIR 1940 PC 176.

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(1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. ILLUSTRATIONS (a) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant. (b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant. COMMENTS Principle.—The object of a trial is to prove or disprove, by evidence, a particular claim or charge, therefore any fact which either disproves or tends to disprove that claim or charge is relevant. Section 11 attempts to state in popular language the general theory of relevancy and may therefore be described as the residuary section dealing with relevancy of facts. The words of Section 11 are very wide and it may be safely laid down that all evidence which would be held admissible by the English Law, would be properly admitted under this section of the Act. Collateral facts which by way of contradiction are inconsistent with a fact in issue or another relevant fact, that which make the existence of a fact in issue or a relevant fact impossible or highly improbable or which by way of corroboration are consistent with the existence of the fact in issue or a relevant fact, i.e., tend to render the existence of a fact in issue or a relevant fact highly probable are themselves made relevant by the section.78 Where two appeals are from two different forums namely the City Civil Court and the Family Court have been heard together for convenience of Court and parties, it would be impermissible as a matter of procedure to read the evidence recorded by one court in relation to the proceedings that has emanated from the other one.79 The sort of facts which the section was intended to include are facts which either exclude the fact in issue or another relevant fact (clause 1) or make the existence or nonexistence of the fact in issue or relevant fact highly probable (clause 2). ‘Highly probable' or improbable—Meaning of.—The words 'highly probable' point out that the connection between the facts in issue and the ____________________ 78. Ranagavyar v. Innasenulla Mudali, (1959) 2 MLJ 68. 79. Sangeeta Balkrishna Kadum v. Bal Krishna Ram Chandra Kadam, AIR 1994 Bom. 1.

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collateral facts sought to be proved must be so immediate as to render the coexistence of the two highly probable. No doubt, a fact admissible under this section is collateral to the fact in issue or a relevant fact, but all collateral facts having some remote and conjectural probative force are not to be admitted under Section 11. There are limitations to the admission of facts under this section. The Courts must exercise a sound discretion and see that the connection between the facts sought to be given in evidence under Section 11 to the facts to be proved must be so that the existence of the facts to be given in evidence excludes the possibility of the existence of the fact to be proved or the relation and connection between the facts to be proved and the facts to be given in evidence must be so immediate as to render the coexistence of the two highly probable. The section makes admissible only those facts which are of great weight in bringing the court to a conclusion one way or the other, as regards the existence or non-existence of the fact to be proved. The admissibility under this section must, in each case, depend on how near is the connection of the facts sought to be proved with facts in issue and to what degree do they render facts in issue probable or improbable when taken with other facts in the case. Section 11 controlled by other section.—The terms of Section 11 are no doubt wide, but they must be read subject to the other sections of the Act and, therefore, the fact relied on must be proved in accordance with the provisions of the Act. If the fact is a statement made by a person who is not called or cannot be called the statement cannot be admitted unless it comes within the subsequent sections of the Act (i.e., Sections 32 and 33). In Bela Rani and others v. Mahabir Singh and others,80 one Beni Ram, who died in 1866, owned the property in dispute. He was succeeded by his wife Mst. Mathuri who died in 1878 and was succeeded by her daughter Mst. Dasodari. Mst. Dasodari transferred the property in dispute to the ancestors of defendants. The plaintiffs purchased the property from the persons who would be entitled to the property on the death of Mst. Dasodari. The plaintiff filed the suit for possession. The main defence was that Mst. Dasodari died more than 12 years prior to the filing of the suit which was accordingly barred by limitation. At the death of Mst. Dasodari applications were made for mutation of some of the property in possession of which she had been. These applications were supported by depositions of the reversioners. Copies of the applications and the depositions were filed by the plaintiff in the present suit. In all these copies the date of the death of Mst. Dasodari was stated to be the 16th of March, 1898. It was argued that the depositions make it highly probable that Dasodari died on the 16th of March, 1898 and therefore they were admissible under Section 11 of the Evidence Act. It was held that the statements were simply the statements of persons who were dead and such statements are not relevant unless they come under one or more of sub-sections of Section 32 of the Evidence Act. The statement being not admissible under Section 32 of the Act were held inadmissible under Section 11 of the Act. ______________ 80. 19 ALJ 351.

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Controlled by Section 32.—As a general rule Section 11 is controlled by Section 32 where the evidence consists of the statements of persons who are dead or cannot be found. But this rule is subject to certain exceptions. The test whether the statement of that person who is dead or cannot be found is relevant under Section 11 though not admissible under Section 32, is that it is admissible under Section 11 when it is altogether immaterial whether what the dead man said was true or false, but highly material that he did say it. There is difference between the existence of a fact and statement as to its existence. Section 11 makes admissible the existence of facts and not the statements as to such existence unless the facts of making that statement is in itself a matter in issue.81 For example suppose that the person who died in 1885 can be proved to have said any time before he died : "A was mad when he made his will", that is material to show that there was a will of some sort before 1900 ; and it makes not the slightest difference whether the statement that A was mad when he made it is true or false. The evidence would have the same and no more or less value under Section 11 if the person had said "A was not mad when he made his will". Where the fact that is relevant under Section 11 is not what a deceased person chose to predicate about a thing, but that he mentioned it at all whether what he predicated of it were true or false, then and then only it is a case outside Section 32. Statements.—From the wording of this section it seems that facts not relevant under any of the section in the Chapter of Relevancy of Facts (Sections 6 to 10 and 12 to 55) are relevant under Section 11. A statement is included in the definition of the term "Fact" and statements can, therefore, be relevant under Section 11 of the Evidence Act. Sections 17 to 39 deal with the admission in evidence of the statements of persons. If a very wide interpretation is to be given to the words of Section 11, the statements of persons inadmissible under Sections 17 to 39 would be admissible under Section 11, for instance at a trial of 'B' of a crime it may be said by a witness that he heard A to declare that he had seen B committing the crime for which he had been charged. This statement of A certainly makes it highly probable that B did commit the crime. Therefore A's declaration may be said to be relevant under Section 11 (2). But this was not the intention of the section. Sections 17 to 39 deal with the relevancy of the statements. Statements not relevant under those sections cannot be said to be relevant under Section 11. The statement of A referred to above is not relevant under any of the Sections 17 to 39 and so it cannot be relevant under Section 11. Stephen, in his introduction has very rightly remarked that "the meaning of this section would have been more fully expressed if the words of the following effects had been added to it. "No statement shall be regarded as rendering the matter stated highly probable within the meaning of this section unless it is declared to be relevant fact under some other section of this Act". The reason why statements as to fact made by persons not called as witnesses are excluded except in certain specified cases under Sections 17 to 39 are various. In the first place it is a matter of common experience that statements in common conversation are made so lightly, and are liable to be misunderstood or __________________

81. Thakurji v. Permeshwar Dayal, AIR 1960 All. 839 ; Ambika Charan Kundu v. Kumud Mohan Chaudhari, AIR 1928 Cal. 893 ; Mst. Naima Khatun v. Basant Singh, AIR 1934 All. 406.

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misrepresented, that they cannot be depended upon for any important purpose unless they are made in special circumstances. The statements not admissible under Sections 17 to 39 are not admissible under Section 11. Section 11 makes the existence of 'fact' admissible and not 'statements' as to such existence, unless of course the fact of making that statement is itself a matter in issue.82 Analysis of the section.—Section 11 contains two clauses. The first clause lays down that the facts, which are inconsistent with the facts in issue or relevant facts, are relevant. Under the second clause the facts which by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable are relevant. We shall take up these two parts of the section separately. (1) Facts inconsistent with any fact in issue or relevant facts.— One fact is said to be inconsistent with the other when it cannot co-exist with the other. Let us take examples. The question is, whether A committed a crime at Calcutta on a certain day. The fact that A was at Lahore on that day is relevant as they cannot co-exist. A is illiterate is a fact, similarly A wrote a defamatory article damaging the fame of B, is another fact. Now these two facts are inconsistent with each other. They cannot co-exist. If A is illiterate, he cannot write an article, vice versa if he can write an article he cannot be illiterate. Therefore, if A charged with writing a defamatory article against B the fact A is illiterate is relevant under Section 11. So under the first clause of Section 11 facts are relevant only because they cannot co-exist with the relevant facts in issue. If their existence is proved the existence of fact in issue or relevant facts are negatived. In the above mentioned example the fact in issue is 'whether A wrote a defamatory article against B'.A is entitled to lead evidence of the fact that he is illiterate because illiteracy and writing of article cannot co-exist. There are generally five classes of cases that arise for consideration under this clause : (a) Alibi ; (b) Non-access of husband to show illegitimacy of issue ; (c) Survival—of the alleged deceased ; (d) Commission—of an offence by a third person ; (e) Self-infliction—of harm. (a) Alibi.—The plea of absence of a person, charged with an offence, from the place of occurrence at the time of the commission of the offence is called the plea of alibi. Plea of Alibi—When can be raised—Statements under Section 161 not admissible.— If the plea of alibi is raised by the accused, the burden to prove it lies on him which he could do by leading evidence in the trial and hot by filing some affidavits or statements purported to have been recorded under Section 161 Cr. P. C. The statements of the witnesses under Section 161 Cr. __________________ 82. Naima Khatun v. Basant Singh, AIR 1934 All. 436 : 1934 ALJ 318.

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P. C. are wholly inadmissible in evidence which cannot be taken into consideration. No finding of plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr. P. C.83 Where an alleged offence has been committed and the prosecution accuses a person of having committed the same, it would be a complete answer to the accusation for that person to plead that he was at that time elsewhere ; this has of course no reference to offence in which time or place are not material factors ; and if that person succeeds in establishing that plea technically called the plea of alibi, he will be entitled to an acquittal. Of course for the purpose of arriving at that conclusion, namely, the conclusion that the plea of alibi has been established not only to the defence evidence in support of the accusation should be examined. The reason is that what may appear on examination of the defence evidence alone to be proved may turn out really not to be so, viewed in the light of the evidence to the contrary adduced by the prosecution. On the other hand, even though the defence evidence may by itself fail to reach the standard of positive proof, yet the evidence taken alongwith the evidence laid by the prosecution may raise a reasonable doubt as to whether the accused was really present at the time when or at the place where the offence was committed in which case the accused would still be entitled to an acquittal. That being so where an accused pleads alibi it would be taking in their natural sequence to examine the defence evidence relating to the plea first. In Munshi Prasad and others v. State of Bihar,84 the presence of the accused at a distance of 400-500 yards between place of occurrence cannot be said to be presence elsewhere. It cannot be impossibility to be at place of occurrence and also at panchayat meeting. Where the accused set up a plea of alibi that he was on duty at another town on the date of occurrence, the burden of proof lies on him under Section 103, Evidence Act, to establish the plea and it is not for the prosecution to prove that the accused was absent from duty on the date of occurrence, of course, if there were anything on the record to support the allegation of the prosecution having tampered with the defence witnesses that taken along with the other fact and the circumstances of the case might have raised a doubt that after all the plea of alibi may be well founded and in that case the defence would be entitled to the benefit of that doubt but a mere allegation in an application without evidence in support of that allegation is of no consequence whatsoever.85 In order to establish the plea of alibi the accused must lead evidence to show that he was so far off at the moment of the crime from the place of occurrence that he could not have committed the offence.86 Failure of plea of alibi does not help the prosecution.87 Where the case of defence was that at the time of incidence the accused was injured at 1.30 p.m. (noon). He was taken to another village in a tractor. __________________ 83. Rajindra Singh v. State of U. P., AIR 2007 SC at p. 2791. 84. AIR 2001 SC 3031. 85. Satyavir v. State, AIR 1958 All. 746. 86. Doodhnath Pande v. State of U.P., 1981 SC 911 ; State of Maharashtra v. Nar Singh, AIR 1984 SC63. 87. State of Haryana v. Prabhu, AIR 1979 SC 1019.

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The injured was admitted in the hospital at 7.00 p.m. (evening) and not in the afternoon and he lodged the report of incidence on next day. The statement that the assault was on said time was not correct. The plea of alibi cannot be accepted.88 In Suraj Pal v. State ofU.P.,89 the prosecution examined 11 witnesses and mainly relied on PWs 1 to 4 who figured as eye-witnesses. Even examined under Section 313 Cr. P.C. all the accused denied their participation and pleaded that they were falsely implicated due to enmity. The appellant however pleaded alibi and DWs 1 and 2 were examined in support of his plea of alibi. DW 1 produced register Ex. kha 3 to prove an entry dated November 20, 1974 to show that appellant went to district jail Fatehgarh to meet one Rajendra Kumar an under-trial prisoner. The evidence of PW 1 and DW 2 would only at the most show that the appellant visited the jail to see DW 2. DW2 concealed that the appellant had no special reasons to meet him. The High Court had rightly rejected the evidence in support of plea of alibi holding it to be flimsy. We have also presumed the evidence of D.Ws. 1 and 2 and we do not think that any importance can be attached to the same. Burden of Proof.—In Binay Kumar and Others v. State of Bihar,90 it was held by Supreme Court that, it is basic law in the criminal case in which the accused is alleged to have inflicted physical injury to another person, the burden is on prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessen by mere fact that the accused has adopted the plea of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging its burden it is incumbent on accused who adopts plea of alibi to prove with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused has been established satisfactorily by the prosecution through reliable evidence, normally the court will be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when occurrence took place, the accused, would no doubt, for that purpose it would be sound proposition to be laid down that in such a circumstance the burden on accused is heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. In Brij Lal Prasad Sinha v. State of Bihar,91 the police officers were charged with murder in encounter. The plea was that the accused was transferred to some other places at the time of occurrence. The prosecution witness gave the evidence that the accused was present at the place of occurrence. There was no attempt by the accused to prove that he was present at another place on relevant date. Plea of alibi was rejected. __________________ 88. Amarappa v. State of Karnataka, AIR 1989 SC 2004. 89. AIR 1994 SC 748. 90. AIR 1997 SC 321. 91. AIR 1998 SC 2443.

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(a-1) When the defence of alibi fails.—Failure on the part of accused to establish plea of alibi does not help the prosecution and it cannot be held that the accused was present at the scene of occurrence, the prosecution must prove it by positive evidence.92 Thus the mere failure on the part of the accused to establish the plea of alibi, shall not lead to an inference that the accused was present at the scene of occurence.93 In a murder case under Section 300 I.P.C. the defence of alibi and suicide raised by the accused cannot be taken as circumstances against him. Simply because the pleas of suicide and alibi have failed at the trial no adverse inference can be drawn against the accused.94 (b) Non-access of husband to show illegitimacy of issue.—Since legitimacy of a child implies a begetting by the husband, in disproving legitimacy, it would be relevant to prove that the husband had no access to the wife at the probable time of begetting. (c) Survival of the alleged deceased.—A is accused of murdering B on the 6th of August, 1951, A tries to prove that B was alive till 31st August, 1951. This fact is relevant under Section 11, clause (1), only because this is inconsistent with the fact in issue that A murdered B on the 6th of August 1951. It is acceptable to a simple common sense that a man alive on the 31st of August, 1951, cannot be said to be murdered on the 6th of August, 1951. (d) Commission of a crime by third person.—A is charged with the murder of B. A can prove that one C murdered B. Because the fact C murdered B is inconsistent with the fact that A murdered him. (e) Self-infliction of harm.—A is charged with the murder of B. Here A can lead evidence under Section 11 (1) to prove that B committed suicide. (f) Plea of alibi in relation to co-accused.—The plea of alibi cannot be accepted in favour of an accused merely on the ground that the same was accepted in relation to coaccused. Where there was no material to show that on the date of occurence, the accused was present in the school, nor any appointment letter was produced. His plea of alibi was rejected.95 (2) Facts making the existence or non-existence of any fact in issue or relevant fact, highly probable or improbable.—'Highly improbable'.—As we have seen above under sub-clause (1) of Section 11, facts are relevant because they are inconsistent with any facts in issue or relevant fact. They are so diametrically opposed to the facts in issue that the existence of those facts make the existence of those facts in issue or relevant fact impossible. Under sub-clause (1) of Section 11 the facts are relevant because if they are proved to exist the facts in issue or relevant facts can in no case exist. In Brijlal Prasad Sinha v. State of Bihar,96 the police officials were tried for murder of some alleged culprits in encounter. It was alleged by police __________________ 92. Shankar Lal v. State of Maharashtra, AIR 1981 SC 765 ; Sakharam v. State of M.P., AIR 1952 SC 758. 93. Dasari Siva Prasad Reddy v. Public Prosecutor, High Court A.P., AIR 2004 SC 4383. 94. Sakharam v. State of M.P., AIR 1992 SC 758. 95. Bikav Pandey v. State of Bihar, AIR 2004 SC 997.

96.

AIR 1998 SC 2443.

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official that the occupants of vehicle used by deceased were also firing from their firearms. But ballastic report, showed that the pistol found near dead body, from which the deceased were alleged to have fired, were never used and also that those arms were deffective. Thus, the allegation that the deceased had fired from pistol and the ballastic report that pistol was never used and was deffective, were held inconsistent fact. The ballastic reports made it highly improbable that the deceased must have fired from alleged pistol. Thus, the ballastic report was admissible under this section, since it made the existence of fact in issue i.e., whether the deceased fired or not, highly improbable. It was more so when it was found that glasses of vehicle in which victims were travelling were broken and there were no marks of firing in which police officials were travelling. The accused were liable to be convicted. Under sub-clause (2), facts are relevant because if they are proved they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The facts proved under sub-section (1) of Section 11 only negative the existence of facts in issue or relevant facts. By the proof of those facts, the existence of the fact in issue or relevant fact is disproved. Sub-clause (2) deals with both the affirmative and negative aspects of the fact in issue. Under this clause, the facts proved are conclusive as under clause (1). Under clause (2) the facts are relevant only because if they are proved either it becomes highly probable for the fact in issue to exist or it becomes highly improbable for the fact in issue to exist. "Highly probable."—It must be borne in mind that in this clause only those facts are relevant which make the existence of the fact in issue or relevant fact highly probable or improbable. The words 'highly probable' are of great importance. Whether a fact is to be admitted under the clause or not, depends upon the weight to be given to such evidence. To be clear this clause allows the admission of those facts only, which after being admitted will be of great help in bringing the court to a conclusion as regards the existence or nonexistence of the fact in issue. If the facts are of little importance they cannot be admitted in evidence. The words 'highly probable' mean more than normal standard of probability.97 In a case of election petition on ground of mal practice, the evidence that truck drivers who were carrying the voters for a candidate were convicted is relevant under Section 11.98 Omission of important fact, which seriously affect the prosecution case from the first information report may be proved under Section 11.99 Relevancy of similar facts.—The section has been expressed in very wide language. But this does not mean that every fact, however remote, it may be is relevant only because it is shown to have some bearing on the fact in issue.1 Previous instances of a similar nature to one under inquiry are not relevant, __________________ 97. B. Chakravarti v. W.I. Theatre, AIR 1957 Cal. 709. 98. Pratap Singh v. Rajendra Singh, AIR 1975 SC 1145. 99. Ram Kumar v. State of MP., AIR 1945 SC 1126. 100. Rajendra Singh v. Ram Govind, AIR 1954 Pat. 556.

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various transactions of mala fide with a third person are not relevant to prove the mala fide of the present transaction.2 Recitals in deeds.—Recitals in a deed inter partes are relevant. But recitals in deed between strangers are not relevant to prove the truth of the facts stated therein. Recitals about boundaries in deeds between strangers are not relevant under Section 11.3 Illustrations 1. Emperor v. Yaqub4—A was charged with having obtained money from B by falsely representing that he was servant of one Akbari Begum, a wealthy lady of Rampur who was anxious to lend money on easy terms. B tried to lead evidence that at about the same time A made such a representation to others. It was held that this was admissible only because the fact that A at the same time made the same representation to others makes the fact "that A made such a representation to B" highly probable. 2. A is charged of handing over forged currency notes to B representing them to be genuine. B tries to prove that few days after and before A handed over currency notes of the same denomination to C, D, E and F. This fact is relevant because if it is proved that A handed over forged notes to a number of persons at about the time when he is alleged to have handed over a forged note to B it will make it highly probable that A might have handed over a forged note to B knowing it to be forged. 3. The question in controversy is whether a certain lease granted by A to B is perpetual. B tries to prove that many leases were granted by A to many other persons at the same time and all of which were perpetual leases. This fact is relevant because it makes the factum of the lease in question being perpetual, highly probable. 4. A is charged of forgery. It is tried to prove that the accused possessed many other forged documents. The evidence is admissible. SECTION 12.—In suits for damages, facts tending to enable court to determine amount are relevant.—In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant. COMMENTS Suits for damages.—Damages, which are the pecuniary satisfaction which a plaintiff may get in a suit are always a fact in issue. Damages are claimed either in an action based on contract or tort. The question as to when damages may be awarded and the amount of damages to be awarded is a question of the particular branch of the substantive law under the provisions of which such suits are brought. In a suit in which damages are claimed the __________________ 2. Chokani v. Western India Theatre, AIR 1957 Cal. 709. 3. R.C. R. Institute v. State, 1975 Kant. 75 ; Nihal Jha v. Derbdeo, AIR 1935 Pat. 167 (FB) ; Chandreshwer v. Ram Chandra Singh, AIR 1973 Pat. 215. 4. Emperor v. Yaqub, 15 ALJ 241.

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amount of damages is always a fact in issue. Section 12 lays down that evidence tending to 'determine' i.e., to increase or diminish the damages is admissible. Mitigation or aggravation of damages.—In an action for libel, the other defamatory statements by the defendant, whether made before or after the commencement of suit, are admissible for the plaintiff so as to enhance the damages. Similarly the evidence of fact which have the effect of mitigating damages admissible for the defendant. Where the defamatory statement concerned is an imputation of bad conduct towards a woman and truth is pleaded in defence, evidence to the effect that the woman herself made statements to that effect to a number of persons is relevant under this section. SECTION 13.—Facts relevant when right or custom is in question.— Where the question is as to the existence of any right or custom, the following facts are relevant:— (a) any transaction by which the right or custom, in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence ; (b) particular instances in which the right or custom was claimed, recognised, or exercised, or in which its exercise was disputed, asserted or departed from. ILLUSTRATION The question is, whether A has a right to a fishery. A deed conferring the fishery on ^4's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts. COMMENTS Scope.—Section 13 lays down as to what facts are relevant and may be proved when the question at issue is whether any right or custom exists. The section consists of two parts—clauses (a) and (b). The first part [clause (a)] deals with transaction. Where the question is as to whether a certain right or custom exists, any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence may be proved. The second part [clause (b)] deals with instances. Where the question is as to whether a right or custom exists, the particular instances, in which that right or custom was claimed, recognised, exercised, or in which its existence was disputed, asserted, or departed from, may be proved. Principle.—Section 13 deals with the proof of existence of any right or custom. Therefore, before discussing the section we have to know as to what is meant by 'custom' and 'right'. Custom defined.—A 'custom' is a particular rule which has existed from the time immemorial and has obtained the force of law in a particular

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locality.5 Generally all the sons succeeds to and inherit the properties of their father. But there was a custom among some zamindars that only the eldest son succeeded to the estate and others got only maintenance. Similarly as a matter of general law every man has a full freedom to sell his land to any body he likes. But in certain districts it was incumbent upon a person who wished to sell his land, to offer the land for sale to his blood relations and co-sharers and on their refusal he could sell it to strangers. In absence of such offer the sale could be pre-empted by the relations of the co-sharers on the payment of the real consideration.6 Suppose A sold his land to B for Rs. 500 without making any offer to E, a brother of A. E might bring a suit of pre-emption and on payment of Rs. 500 to B he would get the property. The chief characteristics of a custom is that it cannot extend to the whole realm nor can it embrace the whole of the public. To be concise "a custom is a rule which in a particular family, or in a particular district, has from long visage, obtained the force of law." Requisites of valid customs.—Under the English law, a valid custom must fulfil the following conditions :— (a) It must be ancient (it must be in existence beyond the memory of man or it must go back as far as the reign of Richard 1). (b) It must be continued, unaltered, uninterrupted, uniform and constant. (c) It must be peaceable and acquiesced in. (d) It must be reasonable. (e) It must be certain and definite. (f) Compulsory and not optional to every person to follow or not. (g) It must not be immoral, it must not be opposed to morality or public policy, the custom to marry daughter's daughter cannot be recognised and it must not be expressly forbidden by the legislature.7 The acts required for the establishment of customary law, must have been performed with the consciousness that they spring from a legal necessity. The law of valid custom in India.—"A custom to be valid must have four essential attributes : (1) it must be immemorial, (2) it must be reasonable, (3) it must have continued without interruption since its immemorial origin, and (4) it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons to whom it is alleged to affect."8 Antiquity.—The English rule "that a custom, in order that it may be legal and binding must have been used so long that memory of man runneth not to the contrary" cannot be applied to Indian conditions. It is undoubted that a custom observed in a particular district deserves its force from the fact that it __________________ 5. Subramanian Chettiar v. Kamnappa Chettiar, AIR 1955 Mad. 145. 6. Balusami v. Balkrishna, AIR 1957 Mad. 97. 7. Maha Manga Devi v. Haridas, ILR 42 Cal. 455 ; Bembala Subbay Rae v. Bhusangayya, AIR 1960 AP 412 ; Rajendra v. Devendra, AIR 1972 SC 268. 8. Maha Manga Devi v. Haridas, ILR 42 Cal. 455 ; Rajendra Ram v. Devendradas, AIR 1973 SC 268 ; Akram Sheikh v. Makid Sheikh, AIR 1971 Cal. 405.

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has, from long usage, obtained in that district, the force of law. It must be ancient but it is not of the essence of this rule that its antiquity must, in every case, be carried back to a period beyond the memory of man still less than it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before customs can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of particular district.9 In Homi P. Ranina v. Eruch B. Desai,10 the custom was of appointing Seniormost trustee as President of Trust. There was no provision in Scheme of trust for holding election of appointment of President. Manner, mode of appointment or tenure of President was not prescribed in trust deed. The Bombay High Court held that Seniormost trustee was entitled to hold office of the President. Though the period of Length of Practice is relevant in establishing custom. Case of custom cannot be rejected simply on the ground that it is not for sufficient long period. Usage.—Means habitual but not necessarily immemorial practice. The word 'usage' would include what people are now or recently, in habit of doing in a particular place. It may be that this particular habit is only of a very recent origin or it may be one which has existed for a very long time. If it is one which is regularly and ordinarily practised, there is a usage.11 So a business usage as distinguished from a common law custom need not be long established or strictly uniform. Kinds of custom.—Three classes of customs are dealt within the Act (I) private, (II) general, and (III) public. I. Private custom.—Private custom is that custom which governs a particular family, such as, the custom of an estate, the custom of pre-usage nature and impartibility prevailing in some estates or take an example from England the custom of a particular manner. II. General custom.—The expression 'general custom' is defined to include customs common to any considerable class of persons (Section 48 of the Act). These are : (a) Local custom.—Termed as deshachar, e.g., in the Broach and other Gujarat districts Waqf property which is inalienable according to Mohammedan Law, may be by custom of the district alienated. In Eastern Bengal the right of pre-emption which was based on Mohammedan Law was allowed and enforced by custom between Hindus also. __________________ 9. Mst. Subbani v. Nawab, AIR 1941 PC 21; Gokul Chand v. Pravin Kumari, AIR 1952 SC 231; Venkata Subba Rao's case, AIR 1960 AP 412; Ram Krishana v. Gajadhar, AIR 1958 Orissa 26; Puran Chand v. Durlava Chand, AIR 1983 Cal. 10. 10. AIR 1996 Bom. 141. 11. Dalgish v. Muzaffar Hussain, ILR 23 Cal. 427 ; Sariatullah v. Prannath, ILR 26 Cal. 184 ; Abbas Ali Shah v. Muhammad Shah, AIR 1951 HP 92.

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(b) Caste or class custom.—This kind of custom governs persons of a particular caste or class. For example the Khojas and Cutchi Memons (Mohammedans) in the Bombay presidency are governed in matters of inheritance and succession by the Hindu Law. (c) Trade, custom or usages. (III) Public custom.—Public custom has not been defined in the Evidence Act. It is not clear. In speaking of matters of public and general interest the terms 'public' and 'general' are sometimes used as synonymous meaning merely what concerns a multitude of persons [Section 32 (4)]. Under English law a distinction has been made between them ; the term 'public' being strictly applied to that which concerns every member of the State and the term 'general' being confined to a lesser, though still a considerable portion of the community. But the Indian Evidence Act makes no such distinction. Right.—There has been controversy among the different High Courts about the meaning of the word 'right' as used in Section 13, Evidence Act. According to Calcutta High Court the word 'right' in Section 13 means only public and incorporeal rights, such as, right to ferries, right to roads, right to fisheries and so on. According to this view the word 'right' in Section 13 does not include private and corporeal right, i.e., ownership of material objects, such as ownership of a house or a chattel and so on.12 Contrary to this view of the Calcutta High Court, the High Courts of Allahabad, Bombay and Madras have held that "rights under Section 13 must be understood as comprehending all rights recognized by law, and, therefore, including a right of ownership and not being confined to incorporeal rights only."13 Now it is almost settled that Section 13 applies to all kinds of rights, whether rights of full ownership or falling short of ownership, e.g., right of easement. A right may be public or private, corporeal or incorporeal.14 The section makes relevant the "transaction" and "instance". According to this section transaction and instances are facts. Section 3 contains the general definition of the term, "facts" as used in this Act. As stated above the particular facts which are made relevant under this section were "transactions", and "instances". Neither of these terms has been defined by this Act. For their meaning we have to depend on extraneous definition. "Transaction".—According to dictionary meaning a transaction is the doing or performing of any business, management of any affairs, performance which is done, an affair, as transaction in the exchange. A transaction is something already done and completed. A "transaction" as its derivation denotes is something which has been concluded between persons by a cross or reciprocal action as it were.15 Whatever may be done by one person which __________________ 12. Gujja Lall v. Fatteh Lall, 6 Cal. 171. 13. Ranchhoddas v. Bapu, 10 Bom. 439 ; Collector of Gorakhpur v. Akashwani, 12 All. 1 ; Rama Swami v. Appu, 12 Madras 96. 14. Rangayyan v. Innasimuthu, AIR 1959 Mad. 226. 15. Channo Mahto v. Jang Bahadur Singh, AIR 1957 Patna 293.

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affects another's right, and out of which a cause of action may arise is transaction. It is at broader term than the contract because every contract is a transaction, but every transaction is not a contract. The term "transaction" is not confined to a dealing with property between two persons inter vivos but can, without any strain on the language, be taken to include a testamentary dealing with the property. A statement, therefore, in a will that the property dealt with thereunder is the property of the testator is admissible under Section 13 as a transaction.16 A transaction contemplated by Section 13 is a genuine and bona fide transaction. A benami transaction which is not meant to be acted upon is fictitious and in the eye of law is not a transaction at all.17 Section 13 (a) lays down that any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or derived, or which was inconsistent with its existence is relevant to prove the existence of custom or right. "By which".—The words 'by which' are very material. Section 13 (a) speaks of transaction "by which" the right or custom is created, asserted, etc., and those 'in which' the right is asserted, etc. The nature and scope of the transaction is thus the pertinent consideration. Thus where the right in question was whether tenant held land under a Makadi or Dhovali system of rent, a statement in a deed of gift executed by a deceased ancestor of the tenant as to the Makadi nature of the tenancy was held not to be admissible as the Makadi nature of the holding was not asserted by the deed of gift though it was asserted in the deed of gift. Where the right in question was whether a certain tenancy was of a permanent nature or not a statement as to the permanent character of the tenancy in a deed of partition was held to be not admissible, as the partition could not be considered to be a transaction by which the right in question was asserted. On the other hand the statement as to the permanent nature of the tenancy in a sale-deed by the tenant is admissible because this is a transaction by which the right is asserted.18 A transaction by which a right is created, claimed and modified is admissible under Section 13 (a). On account of the governing qualification "By which" in regard to any transaction if it is a case which is sought to be made admissible on the ground of the right being created, claimed, modified, asserted or derived, then it must be shown to be a part of the transaction by which it was created, claimed, or modified. A case of creation or modification of right would be inconceivable apart from the transaction by which it was created or modified.19 "Claimed".—The word "claimed" denotes a demand or assertion in relation to a thing as against or from some person, showing the existence of a right to it in the claimant. A bare statement may not be a claim according to the __________________ 16. Peryasami Kachirayer v. Verdappa Kachirayer, AIR 1950 Mad. 486. 17. Anwar Ali Khan v. State of Assam, AIR 1944 Cal 67. 18. Narendra Nath v. Sanyasi Charan, AIR 1933 Cal. 398. 19. Rangayyan v. Innasimuthu, AIR 1956 Mad. 226.

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circumstance in which it is made. It may amount to a claim or be a mere statement of a claim. A mere assertion of right in a document to which the person against whom the right is asserted is not a party and which he knows nothing, is not to claim the right.20 But a different view has been taken by other High Courts. In a suit brought by the plaintiff for recovery of possession and in the alternative for the assessment of fair and equitable rent, the defendant pleaded that the land in suit was an old free Fakirana grant and produced two documents, namely, a patta of the year 1900 and a sale-deed of the year 1922 in favour of the predecessor in interest of the defendants mentioning the suit land as rent-free fakirana grant. The plaintiff or his ancestors were not party to the deed. He contended as these documents were not inter partes ; he had no concern with them and so they were not admissible under Section 13 as it could not be said that by the transaction of the patta and sale a right was claimed. It was held that "the claim used not necessarily be made in the presence and to the knowledge of the person to be effected thereby. A claim can very well be made in the absence and without the knowledge of the person to be affected. The papers were held admissible under Section 13."21 "Asserted."—The word 'assert' means to lay claim, to insistent upon anything, to affirm and so on. The word 'assertion' includes both a statement and enforcement by act. Ordinarily the evidence tendered under this section will be evidence of act done, but a verbal statement not amounting to and not accompanied by, any act would also be admissible if it amounted to a 'claim'.22 "Assertion and recital" distinguished.—"It is well settled now that there is a fundamental distinction between a mere recital and an assertion. A right is not asserted simply because it is recited in a certain document. It is asserted only \ hen the transaction concerned is itself entered into in the exercise of the right. For example, if a tenancy is not transferable unless it is permanent character, a transfer of the tenancy would be an assertion of a permanent right but if a tenancy is transferable, whatever its nature may be, accompanied by a statement in the deed that the tenancy was of a permanent character will not be an assertion of a permanent right." In the present case the executants were entitled to grant a usufructuary mortgage of the land, whether they held them under a revenue-free title or not. The executants mentioned in a deed of mortgage that they held revenue-free title in land mortgaged. It was held that in those circumstances the mere fact that in the document of the mortgage a revenue-free title was recited would not constitute an assertion of such title within the meaning of Section 13 of the Evidence Act.23 Illustration Moti Lal v. Baldeo DAS.24—There was one Har Prasad who died in 1829 without any issue. He had made a sort of will providing that his properties __________________ 20. Brojendra Kishore Roy v. Mohin Chandra, AIR 1927 Cal. 1. 21. Ashfaque Ali Khan v. Ashrafi Mahaseth, AIR 1951 Pat. 541; Kanhaiya Singh, v. Bhagwat Singh, AIR 1954 Patna 325. 22. Ram Krishna Ranga Rana Bahadur v. Venkata Suryanarayana Rao, AIR 1949 Mad. 439. 23. Kumud Kant v. Province of Bengal, AIR 1947 Cal. 290. 24. Moti Lal v. Baldeo Das, AIR 1952 VP 36.

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should be given to Baldeo temple. In his will Har Prasad has stated that this is a temple of Tameras. One of the questions of the trial was whether the temple in question had been created and had been controlled in the past by Tamera Community. The statement of Har Prasad in the will to the effect that this is a temple of Tameras, was sought to be proved as evidence under Section 13 (a) alleging that it was an assertion of the claim. It was held "that the most reasonable view would be that a transaction in which the right was directly asserted might be admissible, while one in which it was casually referred to, would not be. If this recital (this is temple of Tameras) is omitted it would make no difference on the transaction or of the document. If Har Prasad Tamera had said nothing about this matter or had even said that the temple was the private property of the defendant the paper would have still the same effect. On this view this is not a transaction in which this particular right was asserted and therefore it would be inadmissible. "Recognised."—The word "recognised" means to know again ; to see the truth of. To recognise is to take cognizance of that which comes again before our notice; to acknowledge is to admit one's knowledge whatever comes fresh under our notice. Where, therefore, the existence of a right is in question, it is permissible for the party relying on its existence to prove any transaction by which it was recognised, a particular instance in which it was exercised, by means of recitals of boundaries in documents not inter partes.25 Instance.—The term "instance" means an example ; something which has once occurred. This clause does not bring in the particular instance in which the right was asserted. The clause speaks of particular instances (1) in which the right was claimed, or (2) in which its existence was asserted. The word "claim" implies demand. The section does not bring in the statement itself but only the instances in which the exercise of the right was asserted. The mere statement in a deed of sale that the vendor had a particular right cannot be said to be instance in which the exercise of the right was asserted.26 It must be borne in mind that the instances in which the right or custom was claimed, recognised, exercised, etc., must be instances prior to the suit in question, because this clause is the past tense throughout. Document 'inter partes.’—An act of transfer by way of sale or mortgage of property necessarily involves in assertion that the transferor owns the interest transferred and is, therefore, a transaction by which such right is claimed or asserted. Sale deeds and mortgaged deeds are therefore admissible under this section.27 Documents not 'inter partes.'—Documents not inter partes are admissible in evidence in proof of the existence of any right or custom, when the right or custom in question was created, claimed, modified, recognised, asserted or denied or in which its exercise was disputed, asserted or departed from. __________________ 25. Jey Chander v. Shyam Chand, AIR 1952 Cal 455. 26. Brajendra Kishore v. Mohin Chandra, AIR 1927 Cal. 1. 27. Lachhmi Narain v. Manak Chand, AIR 1933 Lah 846 ; Hari Prasad v. Deo Narain, AIR 1956 SC 305.

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Illustrations The question was whether the relationship between A and B was that of partners or of employer or employee. In 1936, shortly after they started the business A had executed and handed over to B's lawyer a document in which A had stated that the relationship between the parties was that of employer and employee. The document was held to be admissible.28 In a suit for declaration of title and confirmation of possession the plaintiff produced a kabala to show that he purchased the land in suit from a certain person. It was contended that the entries in plaintiff's kabala were not admissible. It was held that it was admissible under Section 13, Evidence Act.29 For the purpose of proving a custom entitling the ryot to transfer their houses, sale-deeds by other ryots transferring their houses were held admissible under Section 13.30 The recital in document.—As mentioned above a document is admissible in evidence if it is a transaction by which a right is asserted or claimed, but recitals in it (not amounting to assertion or claim) are not admissible except when they amount to admission and are otherwise relevant.31 Recital of boundaries.—Recitals of boundaries in deeds not between the parties to the suit or proceedings were held to be inadmissible.32 However it has been held that recital of boundaries in document not inter partes are admissible.33 Admissibility of judgments and decrees as transaction or instances.—Judgments qua judgments or adjudications upon question in issue and profits of the particular points to decide are only admissible either (a) as res judicata (under Section 40) or (b) as being in rem (under Section 41) or (c) as relating to matters of public nature (under Section 42). Judgments of the class (a) are conclusive between the same parties ; those of class (b) are declared by law to be conclusive proof against all persons of certain matters only ; those of class (c) though not conclusive, are relevant as adjudications against persons not parties to them, the reason being that in matters of public right the new party to the second proceedings as one of the public has been virtually a party to the former proceedings. But judgments, orders and decrees, other than those admissible under Sections 40, 41 and 42 may be relevant under Section 43, if their existence is a fact in issue or is relevant under some other provisions of the Act. In the sections relating to judgment under Sections 40, 41 and 42 the __________________ 28. Hurbert P. James v. Gulam Hussain, AIR 1949 PC 151. 29. Bahadur Singh v. Barkatulla, AIR 1946 Cal.450. 30. Narain Singh v. Mait Ram, AIR 1940 All 535. 31. U.P. Government v. C.M.T. Association Ltd., AIR 1948 Oudh 54 ; Abdul Rahim Khan v. Faqir Mohd, AIR 1948 Nag. 401. 32. Saney Lal v. Darb Deo, AIR 1935 Patna 167 (FB); Abdul Rahim v. Faquir Mohd., AIR 1946 Nag. 401. 33. Ranggayyan v. Innasimuthu, AIR 1956 Mad 226 ; A. A. Nainar v. A. Chetiar, AIR 1972 Mad 154.

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judgment is admissible as the opinion of the court on the questions which come before it for adjudication. Ordinarily judgments are not admissible between persons who were not parties and do not claim under the parties, to the previous litigations. But there are exceptions to this general rule—the cases contemplated by Section 43 are those where a judgment is used not as res judicata or as evidence more or less binding upon an opponent by reason of the adjudication it contains. Under Section 43 a judgment, decree or order is admissible (1) when such judgment, decree and order is a fact in issue in a subsequent suit, or (2) when it is relevant under some other provisions of the Act. Judgments as held to be admissible under Section 13 also. This being so, the question arises whether, and if so how, previous judgments, orders and decrees not being between the same parties are admissible in evidence in proof of right and custom (not being of a public nature) under this section either as transactions under clause (a) or as particular instances under clause (b). There has been a controversy among the various High Courts of India as to the admissibility of a judgment, decree or order of a previous litigation not inter partes as transactions or as an instance. Some High Courts held that they were not admissible under Section 13, on the other hand, some High Courts were of the opinion that they were admissible under this section. But recently the trends of the decisions of the Supreme Court of India and the High Courts is towards holding that although a judgment in a previous case not inter partes may be admissible under the provisions of Sections 3 and 43 of the Evidence Act or establishing a particular transaction, the decisions arrived at, the reason upon which the judgment was founded are no part of the transactions and cannot be considered nor can any finding of fact be relevant evidence. A judgment is conclusive evidence for or against all persons whether parties or strangers only of its own evidence, date and legal effects distinguished from the accuracy of the decision rendered.34 A judgment in another suit which is not inter partes may be evidence under Section 13 of the Evidence Act for certain purposes, namely to prove the fact of judgment; to show the parties to the suit were ; to show what was the subject-matter of the suit; to show what was decided or declared by the judgment; to show what documents had been filed by the parties in the proceedings ; to. establish the transaction referred to in the judgments ; as evidence to show the conduct of the parties or particular instances of the exercise of a right of assertion of a title ; or to identify property or to show how property had been previously dealt with ; to establish a particular transaction in which a right is asserted and the name of the person, if any, who is declared in the judgment as entitled to possession but the judgment is not evidence to establish the truth of the matter decided in that judgment. The findings of fact arrived at on the evidence in one case are not evidence of fact in an another case. "The reason upon which a judgment is founded cannot be regarded as, nor can any finding of fact __________________ 34. Ram Kripal Chaudhari v. Musammat Manabasi Kumari, AIR 1958 Pat. 477.

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there come to other than the transaction itself, be relevant in another case."35 "The true point is not that the judgment themselves are transactions, but that the suit in which they were made was a transaction, and that to establish that such a transaction took place they are the best evidence.36 Illustrations (1) One Siddopant and Krishna Rao were real brothers and were members of joint Hindu family. Krishna Rao died in 1897 leaving behind a widow Rukmini Bai. Siddopant died in 1899 leaving behind his son Gundo who died in 1901 leaving behind a widow Lakshmi Bai. Lakshmi Bai adopted Deoji who died on 6th May, 1935, leaving three sons, defendants 1 to 3. On 26th April, 1944 Rukmini Bai adopted Shri Niwas, the plaintiff. Before adopting Shri Niwas, Rukmini Bai had filed two maintenance suits against the members of the family of her husband. In those suits Rukmini Bai mentioned certain property as joint family property and prayed that a charge of her maintenance may be declared on them. The same was granted. On 29th August, 1944, the plaintiff filed the present suit for partition claiming the half share in the family property. In order to prove that some of the properties were the joint family property, the judgments in two suits instituted by Rukmini Bai were produced. It was contended that the judgments were not admissible under Section 13 of the Evidence Act. It was held by their Lordships : "We are unable to accept the contentions. The amount of maintenance to be awarded would depend on the extent of joint family property and an issue was actually framed on that question. Moreover there was a prayer that the maintenance should be charged on the family properties and the same was granted. We are of opinion that the judgments are admissible under Section 13 of the Evidence Act as assertions of Rukmini Bai that the properties now in dispute belonged to the joint family."37 (2) One Kishore Das was last Mahant of Thakurdwara who died on the 4th of April, 1945. Kishore Das had granted a lease in respect of some land appurtenant to the endowment. Shital Das filed a suit for the cancellation of the lease on the grounds that it was colourable transaction executed without consideration and not supported by legal necessity. Shital Das based his claim on the ground that he was duly appointed Mahant. His case was that he is a Bhatija Chela of Mahant Kishore Das he being a descendant of the fourth degree from Ram Kishun Das through whom Kishore Das also traced his spiritual lineage. To prove his relationship Shital Das produced a judgment of the Court of Sub-judge in which Kishore Das along with one Vidya figured as plaintiff and Mangal Das who was, to say the spiritual grandfather of Shital __________________ 35. Govind Narain Singh v. Shyam Lal Singh, AIR 1931 FC 89 at p 92 : See also Lachhman v. Amrit, ILR 24 Bom 591 ; Dinaman Chowdhrani v. Braj Mohni Chaudhari, 29 IA 24 (PC); Mohd. Amin v. Hasan, ILR 31 Bom 143 at p. 155 ; Harihar Prasad Singh v. Mst. of Munshi Har Prasad, AIR 1956 SC 305 at 309 ; Kesho Prasad v. Mst. Bhaygana Kunwar, AIR 1937 PC 69 at p. 74 ; Gopica Raman Roy v. Atar Singh, AIR 1929 PC 99 ; Ramji v. Manahar, AIR 1961 Bom 169 ; State of Bihar v. Radha Krishna, AIR 1983 SC 684.

36. 37.

Collector of Gorakhpur v. Palakdhan, ILR 12 All 1. Shri Niwas v. Narain, AIR 1954 SC 379.

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Das was one of the defendants, Kishore Das asserted in the case his right to file the suit as the spiritual collateral of Mangal Das. It was contended that the judgment was not relevant. It was held that the judgment itself can be received in evidence under Section 13 of the Evidence Act in which Kishore Das from whom Iswar Das purports to derive his title, asserted his rights as a spiritual collateral of Mangal Das and on that footing got a decree.38 Proof of Custom.—Section 13 makes the instances and transactions relevant to prove or disprove a custom ; it has nothing to do with the mode of proof. A custom is a mixed question of law and fact. First certain facts are to be proved and from those facts an inference of the existence of a valid custom is drawn. Where a custom is pleaded by one party and denied by the other, the onus is on the party pleading it to show its existence. A custom may be proved or disproved in any of the following ways : (1) By opinions of persons likely to know of its existence of having special means of knowledge thereof. (2) By statement of persons who are dead or whose attendance cannot be procured without unreasonable delay or expenses, provided they were made before any controversy as to such custom arose and were made by persons who would have been or likely to have been aware of the existence of such custom if it existed. (3) By any transaction by which the custom in question was claimed, modified, recognized, asserted or denied or which was inconsistent with its existence. (4) By particular instances by which the custom was claimed, recognised or exercised or knowledge of its existence was disputed, asserted or departed from.39 Judgments, orders or decrees are relevant to prove a custom but they are not conclusive proof thereof. But when a custom has been repeatedly brought to the notice of the court and judicially recognised, it becomes a part of the law of the locality where it prevails and it is not necessary to prove its attributes in each individual case.40 Proof of family custom or kulachar.—In order to establish a family custom at variance with the ordinary law it is necessary that it should be established by clear and positive proof. And the more unusual the custom, the stricter must be the proof.41 To establish a family custom one at least of two things must be shown (1) either a clear, distinct and positive tradition in the family that the custom exists ; or a long series of a instance of the peculiar inheritance from which the kulachar or the custom may be inferred.42 __________________ 38. Shital Das v. Sant Rami, AIR 1954 SC 606. 39. Ramakrishna v. Gangadhar, AIR 1958 Orissa 26. 40. Jugal Kishore Birla v. Vishnu Harijan, AIR 1955 Cal 419 at p. 421 ; Raja Ram v. Raja of Pittapur, AIR 1918 PC 81; Banarsidas v. Sumati Prasad, AIR 1936 All 641. 41. Ganga v. Chedi, ILR 33 All 605.

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Proof of local custom or usage.—Usage or (deshachar) if it really exists, being a custom prevalent over a whole district and not confined to one particular family of estate, must from its universality, be more easily susceptible to proof than family custom. To prove a local custom the evidence must be precise and conclusive. Proof of usage of trade.—The evidence of general custom is not admitted to contradict the law of trade. A custom or usage of trade must in all cases be consistent with law. The law (law merchant) has, however, been gradually developed by judicial decisions, ratifying the usage of merchants in the different departments of trade : where a general trade usage has been judicially ascertained and established, it becomes the part of the law merchant, which the courts of justice are bound to know and recognise. Mercantile usage should be proved by evidence of particular instances and transactions in which it has been acted upon and by evidence of opinion only usage of trade may be proved by multiplying instances of usage of different merchants if it appears to be the same as that of the other merchants.43 The usage must be shown to be certain and reasonable and so universally acquiesced in that every body in the particular trade knows it or might know it if, he took the pains to enquire.44 SECTION 14.—Facts showing existence of state of mind, or of body or bodily feeling.—Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling, is in issue or relevant. Explanation 1.—A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. Explanation 2.—But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous convictions of such person shall also be a relevant fact. ILLUSTRATIONS (a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen. (b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant. __________________ 43. Valkort v. Vetterela, 11 Mad. 465. 44. Ibid.

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The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant. (c) A sues B for damage done by a dog of B's which B knew to be ferocious. The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant. (d) The question is whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person. (e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A's intention to harm B's reputation by the particular publication in question. The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it are relevant, as showing that A did not intend to harm the reputation of B. (J) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent C was supposed to be solvent by his neighbours and by persons dealing with him is relevant, as showing that A made the representation in good faith. (g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A's defence is that B's contract was with C. The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A. (h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing the fact that A knew of the notice

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(i) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A's having previously shot at B may be proved. (j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters. (k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts. (l) The question is, whether A's death was caused by poison. Statements made by A during his illness as to his symptoms, are relevant facts. (m) The question is, what was the state of A's health at the time when an assurance on his life was effected. Statements made by A as to the state of his health at or near the time in question, are relevant facts. (n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. The fact that, B's attention was drawn on other occasions to the defect of that particular carriage, is relevant. The fact that B was habitually negligent about the carriages which he let to hire, is irrelevant. (o) A is tried for the murder of B by intentionally shooting him dead. The fact that, A on other occasions shot at B is relevant, as showing his intention to shoot B. The fact that A was in the habit of shooting at people with intent to murder them, is irrelevant. (p) A is tried for a crime. The fact the said something indicating an intention to commit that particular crime, is relevant. The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant. COMMENTS Principle.—This section declares that facts which show the existence of any state of mind, such as, intention, knowledge, negligence, good faith, ill will, rashness, good will or body or bodily feeling are relevant when such state of mind or body or bodily feeling is in issue or relevant. Scope.—In some offences the state of mind is to be proved to constitute the offence. If the existence of a mental or bodily feeling is in issue or relevant it is clear that facts from which the existence of such mental or bodily state or bodily feeling may be inferred, are also relevant.

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State of mind or body or bodily feeling.—Facts are either physical or psychological (mental). The physical facts are perceived by senses. A assaults B. Here the facts of B being assaulted by A can be seen by eyes by anybody present on the scene of occurrence. C steals watch of D and delivers it to M ; N delivers a forged note to X as genuine. The facts can be perceived by senses by those who are present there, psychological facts are the subject of consciousness and mind of a man is their seat. A assaults B with the intention of killing him ; M received a stolen watch knowing it to be stolen ; N delivers a forged note to X fraudulently and knowing it to be so. In these cases the intention of A, the knowledge of M and fraud knowledge of N are in their minds. This mental state of their minds cannot be perceived by anybody else. They themselves know it and can state them. A person can testify to his own intent. But if he swears to the contrary to his intention it would not serve the purpose. If that would be the only manner of proof of a man's intent, most of the offenders would go unpunished of the offences in which the proof of a mental state is essential. But a man's intention is a matter of fact capable of proof. This kind of facts, however, are incapable of direct proof of the testimony of witnesses ; their existence can only be ascertained either by the confession of the person whose mind is their seat or by presumptive inferences from physical facts. But a witness must speak the facts and the inference from those facts be drawn by the court. Under this section evidence is admissible to explain the state of mind, though it does not otherwise bear upon the issue to be tried. As regards this principle there is no difference in civil and criminal cases. The subject of the existence of state of mind is one of the most important topics. In criminal cases sometimes they are the main considerations and in civil cases also they are often very material as for example in the cases of fraud, malicious intention or negligence. The proof of mental condition.—The state of mind of another person is proved by collateral facts. The admissibility of collateral facts to prove mental condition may be grouped under these heads : (1) Where the prosecution seeks to rebut a suggestion on the part of the prisoner of accident or mistake. (2) Where the prosecution seeks to prove knowledge by prisoner of some fact. (1) Proof of mental condition by evidence of person concerned.— As stated above the mental condition of a man may be proved by the statement of the person whose mental condition is in dispute. So in a case for malicious prosecution where the defendant himself was called and was asked in examination-in-chief : "Had you any other object in view in starting the criminal proceeding, than to further the ends to justice." It was held that the question was admissible. Similarly in cases of obtaining goods on false pretext, the prosecutor is asked, with motive, or for what reasons, or on what impression he parted with the goods. Problem—Question.—In a charge of murder of 'A' where the prosecution case is that on the day of incident, the accused uttered a threat that he would finish off 'A' and then after also kill himself. Is the evidence admissible to show that the accused after killing 'A' tried to kill himself.

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Answer.—The utterance of accused is admissible in evidence Section 14 makes the facts relevant which show the existence of any state of mind, such as, intention, knowledge, good-faith, negligence, rashness, ill-will or goodwill towards any particular person. In this problem, the accused on the day of incident threatened to finish off 'A' and then also to kill himself. It indicated, the state of mind of the accused. Therefore, this evidence will be relevant that the accused after killing 'A' tried to kill himself. (2) By evidence of other persons.—But it is clear that in many cases such evidence may not be reliable and in some cases it may not be even available. The mental and physical conditions of a person must then be proved by the evidence of other persons who speak to outward manifestations, known to them, of states of mind and body. Such manifestation may be either by conduct, correspondence. Contemporaneous manifestations.—To prove mental and physical conditions evidence may be given of all contemporaneous manifestations of the given condition, whether by conduct, conversation or correspondence as part of the res gestae. The answers of a patient to the questions by a doctor are evidence of state of his health provided they are confined to contemporaneous symptoms were caused. And if the condition of the patient be material his declarations at such times as to his present condition are equally admissible. A statement of an accused immediately after the occurrence may be relevant to show the state of his mind at a given time. Thus where the question was whether a person know that he was insolvent at a certain time, his own statement implying the consciousness of the fact as well as letters from third persons refusing to advance him money were held to be admissible. By collateral facts.—In addition to evidence of contemporaneous manifestations of the given conduct, collateral facts are admitted to show the existence of a particular state of mind. Acts unconnected with the act in question are frequently receivable to prove psychological facts such as intent. Similar acts.—In order to show the state of mind similar acts done by a party are admissible but similar acts are not admissible to prove the existence of a particular fact in issue. Under this section evidence of acts similar to but not part of the same transaction as the main fact cannot be received in evidence for the purpose of proving the occurrence of the main fact which must be established by evidence directly bearing on it.45 But when the existence of that fact has been so established and a question arises as to the state of mind of the person who did it, the evidence of similar acts may be adduced. Section 14, Evidence Act applies only to cases where a particular act is more or less criminal according to the state of the mind or feeling of the person who does it. It does not apply to cases where the question of guilt of innocence depends upon actual facts as it does at a trial for the offence of arson, Where a man is on his trial for a specific time such as uttering a forged note or coin or receiving a stolen property, the issue is whether he is guilty of that particular Act. To admit, therefore, as evidence against him to the effect that he, uttered __________________ 45. A.H. Gandhi v. King, AIR 1941 Rang 324.

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forged notes or received stolen articles in the past is to introduce collateral fact. This cannot be done with the object of inducing the court to infer that because the accused has committed a crime of similar description on other occasions he is to be presumed to have done the present act, but this evidence can be relied upon to establish to prove the criminal intent.46 In a Full Bench case of Allahabad High Court, where the accused was charged for taking bribe, Dar, J., held that evidence of previous bribe was not admissible as there was no controversy about the state of mind. Iqbal Ahmad, C.J. and Alsop, J, were inclined to hold that the evidence was admissible but they based their judgment on some other admissible evidence. It is respectfully submitted that the view of Dar, J, was correct.47 Illustrations (i) The accused was a clerk in the office of Municipal Board and it was his duty to deal with applications for renewal of licences for hand carts. He received rupees two for each such renewal, whereas he ought to have taken Rs. 1-14-0. He was charged with cheating. The evidence was produced showing that he had taken two annas in other cases. It was held that in the present case the accused knew what amount he was entitled to take and the only question is whether he represented to the complainant that he was bound to pay two annas more and on the strength of that representation induced each of them to pay rupees two instead of Rs. 1-14-0 and put the difference in his pocket. The evidence was held inadmissible.48 (ii) The accused were charged for having committed an offence of dacoity. Evidence of previous acts of dacoity committed by the accused was adduced in evidence. It was held that this section would not apply to the present case because what is relevant here is whether any of the accused committed dacoity with which they were charged and not whether they committed the offence with any particular intention or state of mind. (iii) The leading authority is the Full Bench decision of the Calcutta High Court.49 In that case the question was whether the previous acts which were alleged to have been committed by the accused consisting of paying visits to the houses of three prostitutes followed by theft of their ornaments would be admissible in a case where the accused was charged with the murder and theft of ornaments of another prostitute. It was held that the evidence that the accused had similarly introduced himself as wealthy person on previous occasions to three other prostitutes, that he introduced another person as his Durwan that both visited the woman and suddenly disappeared and that their disappearance was followed by discovery, by the woman in each case, of the loss of their money or ornaments was not admissible under Section 14 or 15 Evidence Act, in the subsequent case where he was charged with the offence or murder, robbery and theft relating to a different woman. Section 14 applies to __________________ 46. Gomo Rama v. Emperor, AIR 1945 Bom. 278 ; Ram Sumiran Panda v. Emperor, AIR 1942 Patna 291; Emperor v. Yaqub Ali, 15 ALJ 241. 47. Sheokali Goswami v. Emperor, AIR 1944 All. 257. 48. King-Emperor v. Abdul Wahid Khan, 8 ALJ 1269. 49. Emperor v. Panchu Das, ILR 47 Cal. 671.

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that class of cases where a particular act was more or less criminal or culpable according to the state of mind or feeling of the person who did it and that the court must be very careful not to extend the operation of the section to other cases, where the question of guilt or innocence depended upon actual facts and not upon the state of a man's mind or feeling. (iv) A is charged of receiving stolen property knowing it to be stolen. This offence is constituted of two facts : (1) that he received a stolen property, and (2) that at the time he received the property he knew it to be stolen. The fact that A was in possession of the stolen property it has to be proved by direct evidence. To prove that he received it knowing to be stolen evidence may be led to the effect that at the same time A was in possession of many other stolen properties. Similar acts may be proved under Section 14 to prove the state of mind of the accused, such as, intention, knowledge, etc., but they cannot be admissible to prove the commission of the actual act. (v) A is accused of fraudulently delivering to another person a counterfeit coin, which at the time he delivered it he knew it to be counterfeit. The fact that he delivered the counterfeit coin cannot be proved by leading evidence to the effect that (1) at the time of its delivery A was possessed of a number of counterfeit coins, or (2) that A was previously convicted of delivering to another person a counterfeit coin. Simply because a man possesses or has once possessed a counterfeit coin, it cannot safely be inferred that he delivered a counterfeit coin at a particular time to a particular individual. But once it has been established that A delivered the counterfeit coin to another the above facts may be proved to establish that he delivered it knowingly and fraudulently. "We have no right to prove that a man committed theft or any other crime on one occasion, by showing that he committed similar crimes on other occasions." Previous and subsequent events.—Both previous and subsequent events are admissible under this section to prove the state of mind but previous events are more important as showing the influences which have brought into existence the condition that was at the moment under investigation. Illustrations (j) and (a) are examples of previous events showing the state of mind. A was tried for contravening a Price Control Order by selling salt to dealers at a price higher than that fixed. B, the other accused, was tried for abetting the first. A number of dealers were called to speak of transactions, not the subject of any charge, which they had with the accused during or before or after, the period covered by the dates of the offence charged. It was held that the evidence was relevant showing the intention.50 Intention or mens rea.—The question of intention is very well illustrated by the illustrations (e), (i) and (j) of the present section. The fundamental principle of English Criminal Jurisprudence to use a maxim which has been familiar to English lawyers for nearly eight hundred years is actus non facit reum nisi mens sit rea. An act does not make a man guilty without a guilty intention to do the guilty act which is made penal by the

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statute or common law. But there is generally no room for the application of this doctrine in India. The penal Statutes in India define the offences precisely and contain within themselves the precise and particular elements that go to make up the offences referred to in those Statutes. So, in the Indian Penal Statutes where the doctrine of mens rea is intended to come in operation and a guilty mind is deemed essential for the proof of an offence the Statute itself uses the words like "knowingly", "willingly", "fraudulently", "negligently" and so on. Such knowledge can always be brought home by adducing circumstantial evidence. No question of mens rea arises where the legislature has omitted to prescribe a particular mental condition as an ingredient of an offence.51 Proof of intention.—Whether a man has or has not a particular intention is a matter of fact to be inferred from the surrounding circumstances and from the acts of the person concerned.52 A man must be held to intend the natural ordinary consequences of his acts, irrespective of his objects in such acts, if at the time he knew what the natural and ordinary consequences would be, and that if he does an act which is prima facie illegal, the fact that he did it with some other object will not make it legal, unless that object would, in the circumstances, make it legal.53 Knowledge.—Each fact which goes to prove guilty knowledge may be proved. The prisoner was charged for endeavouring to obtain an advance from a pawn-broker upon a ring by the false pretence that it was diamond ring, evidence was held to have been properly admitted to show that two days before the transaction in question the prisoner had obtained an advance from a pawn-broker upon a chain which he represented to be a gold chain but which was not so. The cases in which this has been acted upon are mostly common cases of delivering forged coins, notes, or documents; but they are not confined to those cases. Accomplice Evidence.—So far as the question about the conviction based on testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole, conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime. In a murder case under Section 300 I.P.C., the evidence of witness participating in test identification parade but not examined at trial is not sufficient to corroborate evidence of accomplice approver. The conviction was therefore set aside.54 Good faith, bad faith and fraud.—Fraud is not capable of being proved by positive and express proof. It is by nature secret in movement. A person's good faith in doing an act may generally be inferred from any facts which would justify its doing. In such cases the information on which he acted __________________ 51. Harish Chandra v. Emperor, AIR 1945 All. 90. 52. Ramzan v. Emperor, AIR 1935 Sind 203. 53. Sella Muthu v. Palla Muthu, ILR (1912) 35 Mad 186. 54. Chandap v. State of Rajasthan, AIR 1988 SC 599.

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will often be material. Where a person charged of theft alleges that he purchased the property in question the court should not convict him of theft if the claim was made in good faith and this should be determined by considering all the circumstances. Where the accused was charged under Section 206 of the IPC with fraudulently transferring three properties to three different persons on a certain day in order to prevent their (properties) being seized in execution of a decree and the prosecution tendered evidence of five other fraudulent transfers of properties effected by the accused on the same day, apparently with the same object. This evidence was held admissible under this section to prove fraudulent intent.55 If the Government delayed in the issue of a certificate to the petitioner to practise as a Notary it cannot be inferred that in doing so the Government acted mala fide.56 Mala fide can be proved by circumstances.57 State of body and bodily feeling.—As to state of body and bodily feelings illustrations (o) and (m) of this section are examples. In a divorce case a letter written by the wife to her paramour is good evidence under this section for her feelings towards the paramour at the time the letter was written. Explanation 1.—The Explanation 1 means, "the state of mind to be proved must not be a general tendency or dispositions, towards conduct of a similar description to that in question, but a condition of thought and feeling having distinct and immediate reference, to the matter which is under enquiry. The fact that a man is generally dishonest, generally malicious, generally negligent or criminal in his proceeding does not bear with sufficient directness on his conduct on any particular occasion, or as to any particular matter, to make it safe to take it as a guide in interpreting the state of mind with immediate reference to that particular occasion or matter. Illustrations (a) and (b) make this clear. A man is accused of receiving stolen goods with guilty knowledge, if he is merely shown to be generally dishonest, the probability of his having been dishonest, in this particular transaction is perhaps increased, but in a vague and indefinite way ; but if, at the time he is found in possession of a number of other stolen articles, this fact throws a distinct light on his knowledge and intentions as to the articles of which he is found in possession. It would be dangerous to infer, because a man was generally dishonest, he was dishonest in any single case ; but it is not dangerous to infer that a man, who is found in possession of 50 articles, which are shown to have been stolen from different people, came by each and all in a dishonest manner." This explanation narrows the application of Section 14. Under the section similar facts showing the state of mind (intention, knowledge, etc.) are relevant. This explanation lays down that facts showing the mental state in reference to the fact under enquiry are relevant. The matter will become crystal clear by studying the illustrations of the section. __________________ 55. R. v. Vigiram, ILR 16 Bom 414. 56. Kashi Prasad v. State, AIR 1969 All 195. 57. Aluminium Corporation v. L.R.C. Mills, AIR 1970 Alld. 452.

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A is accused of receiving stolen goods knowing them to be stolen….The fact that, at the same time he was in possession of many other stolen properties, is relevant. The reason for this is not far to seek. A man may be in possession of one single article of stolen property by chance, mistake or incident. A thief may sell a stolen cycle to an honest man and the purchaser may buy it in good faith believing it not to be stolen. But if one man is in possession of twenty stolen cycles there are little chances of his having them in his possession not knowing them to be stolen. Example A is accused of fraudulently delivering to another person a counterfeit coin, which at the time he delivered it he knew to be counterfeit. The fact that at the time of delivery A was possessed of a number of other pieces of counterfeit coins is relevant. In this case too the same argument would apply. The possession of many counterfeit coins almost excludes the possibility of his having them by chance, incident or in good faith. A man may possess a counterfeit coin by chance and he may also pass it on, in good faith, to others believing it to be genuine. But if one is found delivering counterfeit coins on a number of times the greater chances are that even on the time in enquiry also he was delivering it knowing to be counterfeit. Facts showing general state of mind would not at all be helpful in determining the state of mind at enquiry and so they are excluded. A man may be a habitual thief but he may not be liking to deal in counterfeit coins. Similarly a man may habitually be dishonestly dealing in counterfeit coins but he may be hating the act of committing theft. Both of these acts are dishonest but they may not coexist in an individual. Therefore, at the trial of a man charged with delivering counterfeit coins evidence to the effect that he had committed many thefts in the past would be dangerous. Examples (1) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen property. The mental state remains to be proved, i.e. it is to be proved further that A received the property knowing it to be stolen. In order to prove that guilty knowledge, suppose, evidence is led to the effect that A has in his possession a number of counterfeit coins. The possession of counterfeit coins show the existence of a state of mind that A is dishonest. But this state of mind is too general. A man may be dealing in counterfeit coins but still may not be liking to receive stolen goods. So from the fact that A has in his possession counterfeit coins it cannot safely be inferred that when he received the stolen goods he knew them to be stolen.

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(2) A sues B for damages done by a dog of B, which B knew to be ferocious. The fact that the dog had previously bitten X, Y and Z and they had made complaints to B that his (that very) dog (which bit A) had bitten them, certainly gives rise to an inference weak or strong that B was aware of the ferocious nature of the dog. But suppose that in this very case evidence is adduced that some other dog of B had bitten X, Y and Z previously, it would not be admissible. If one dog of a person goes mad and bites people, he is to take precaution in respect of that particular dog and if after its ferocious nature is known, it bites people, knowledge can safely be attached to the owner. But if one of his dogs goes mad he cannot be on guard in respect of another. Illustration A is tried for the murder of B by intentionally shooting him dead. In this case as in all murder cases the intention would be material. If A shot B dead intentionally he will be punished for murder and if it is proved that it was accidental, some minor offence would be committed. The fact that A on other occasions shot at B will show that A intended to shoot B and kill him thereby. But the fact that A was in habit of shooting people will not prove the intention of his shooting at B. He may have shot others intentionally but this shot at B still might have been accidental. SECTION 15.—Facts bearing on question whether act was accidental or intentional.—When there is question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. ILLUSTRATIONS (a) A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several houses successively, each of which he insured in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental. (b) A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether his false entry was accidental or intentional. The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant. (c) A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the delivery of the rupee was accidental.

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The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental. COMMENTS Scope.—Section 14 lays down the rules relating to the evidence showing the existence of any state of mind, such as, intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person. Thus it is clear that all cases, in which proof or disproof of intention in doing an act is necessary, are covered by Section 14 Evidence Act. Section 15 lays down rules as to admissibility of evidence in cases where the question is whether a particular act was accidental or was done with a particular intention or knowledge. Thus it is clear that Section 14 is a general section dealing with all cases in which mental state is involved whereas Section 15 picks out only those cases where the question is whether a particular act is accidental or intentional. The section is a particular application of the general rule laid down in the previous section.58 It applies to cases where there is conduct indicating a system.59 In general, where it is necessary to rebut, even by anticipation the defence of accident, evidence may be given to prove that the accused had been concerned in a systematic course of conduct of the same specific kind and proximate in time to the conduct in question.60 The words of the section as well as of Illustration (a) show that it is not necessary that such acts should form part of one transaction. It is only necessary that all the acts should form part of a series of similar occurrences.61 On a charge against the accused of cheating by falsely representing that they were the servants of a wealthy lady and were entrusted to act on her behalf in the arrangements for loans to be made to the complainants out of the money she possessed and thereby obtaining money from them on one pretext or another in connection with this affair. It was held that evidence of instances of similar but unconnected transactions with other persons during the period covered by the evidence of the complaints is admissible under Sections 11, 14 and 15 of the Evidence Act. Under this section as under Section 14 the prosecution cannot use the evidence as to the commission of other acts of a similar nature to prove the existence of specific acts which form the subject-matter of the charge. But when the existence of the acts in issue has been established by other evidence and the only question which remains to be decided is whether they were done accidentally or intentionally or with a particular knowledge or intention, then and then alone the evidence of other similar acts is admissible to prove the state of mind. The similar facts are admissible under this section provided : (a) it is shown that such acts were of the same specific kind, (b) they formed part of a series of occurrences in each of which person committing the act was concerned.62 __________________ 58. Emperor v. Devendra, ILR 36 Cal. 573. 59. Raghunath v. R., AIR 1919 Cal 1084. 60. R. v. Harigurvan Balaji, AIR 1926 B 231. 61. Emperor v. Cakut, 15 ALJ 241. 62. M.L. Prit Chand v. Emperor, AIR 1923 Lah 382.

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The applicant was tried on a charge of arson. The applicant .was the principal shareholder and managing director of Burma Soap Co., which had a factory for the manufacture of soap at Banktaw. Three insurances were effected by the Burma Soap Co., with the National Fire Co., on 17th February, 1940. The factory was burnt down in the early hours of 12th April, 1940. The fire being discovered at about 2 A.M. The question was whether the setting on fire was accidental or it was intentional. At the trial the evidence was sought to be introduced by the prosecution that the applicant was also the principal share-holder in a company known as a Burma Timber Co. Ltd., that this company had a fire in premises in the year 1932 and in consequence of the Fire New India Insurance Company had to pay to the Burma Timber Co. a sum of Rs. 51,290 of Fire Insurance Policy for Rs. 90,000. This evidence was held to be inadmissible because Section 14, Evidence Act applies only to cases where a particular act more or less culpable according to the state of mind or feeling of the person who does it ; not to cases where the question of guilt or insurance depends upon actual facts, as it does at a trial for arson. Parts of series of similar occurrences.—The section lays down that in order to prove that an act was intentional or not accidental, the fact, that such act former part of series of similar occurrences, in each of which the person doing the act in question was concerned, is relevant. From that it is obvious that in order to be admissible under this section the similar occurrences must be many ; one single instance cannot constitute a series of similar occurrences and so it is not admissible. The accused who was entrusted with collection of money from the debtors of a bank, collected a certain amount from a debtor and did not credit it in the cash book of the bank. To charge under Section 408, IPC, his defence was that there was no misappropriation but owing to pressure of work he forgot to credit the amount in the cash book. To prove dishonest intention on his part evidence was led in of another instance of a similar omission by him to credit an amount collected from another debtor. It was held that such evidence was inadmissible as one instance could not constitute 'a series of similar occurrences' within the meaning of Section 15 of the Evidence Act.63 The Rangoon High Court has, however, held that evidence of a single act will be admissible under Section 15 and in this sense one evidentiary fact can form a series within the meaning of the section.64 It may be submitted that the Rangoon High Court's view is not correct for two reasons:— (1) the act itself speaks of series of occurrences ; (2) one single instance of similar occurrences may be the outcome of a slip. Proximity of time.—Calcutta High Court has held that acts tendered in evidence must have been proximate in time to that in question.65 But the __________________ 63. Moti Lal Roy v. Panch Bihi Industrial Bank Ltd., AIR 1946 Cal. 440. 64. A.H. Gandhi v. King, AIR 1941 Rangoon 324. 65. Amrit Lal Hazara v. Emperor, ILR 47 Cal 998.

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English courts have held that the acts are admissible even though they are not proximate in time to the fact in question. According to this view proximity is important to test the weight of the evidence and not their admissiblity.66 Similar acts.—The acts of which evidence is tendered must be of the weight of the same specific kind as that in question.67 This section must be read as subject to Section 14 so far as evidence of knowledge and intention is concerned. The fact that a man generally dishonest, generally negligent or criminal or does not bear with sufficient directness on his conduct on any particular occasion to make it a safeguard for interpreting his conduct. Accident or intention.—A distinction must be made between accident and intention. The appellant was found, in a dwelling house about 1 o'clock in the morning. He was tried for burglary. In his defence, he pleaded that he had no recollection of entering the house and must have done so in a state of automatism. It was held in this case, the real defence was, that the act was involuntary. It was not the defence of accident.68 Accidental or incidental.—The question was whether Z (wife) murdered A (her husband) by poison in September, 1948. The prosecution alleged that it was intentional whereas Z pleaded that it was accidental. The facts that B, C and D (Z's sons) had the same poison administered to them in January 1948, March 1948 and April 1948 and that meals of all four (A, B, C, and D) were prepared by Z were held to be relevant to show that the administration of poison to A was intentional and not accidental. But it must be remembered that before these facts may be proved to show the intention it has to be proved that Z administered poison to A. Similar facts cannot be relied upon to prove the act in question. After the act has been proved they may be proved to show that the act was intentional. Illustrations The accused was tried for the murder of a woman named Ayesha by poisoning her. Evidence was given to show that the accused had previously murdered another woman under a similar circumstance. This evidence was held to be inadmissible as there was no direct evidence that the accused had administered the poison. If the accused was proved to have administered poison to Ayesha in circumstances consistent with accident, the proof that he had previously administered poison to any other in similar circumstances might well have been admissible.69 It is true that there is always a possibility, where a boy of twelve gets drowned in a tank, that there has been an accident but previous attempts by the accused, to kill the boy, would be admissible to rebut a suggestion of accidental drowning.70 In a trial for forgery, evidence of similar transaction not included in the charge, is relevant as proof of intention though not as a proof of forgery.71 __________________ 66. Rex v. Rhoder, (1889) 10 B 77. 67. A.H. Gandhi v. King, AIR 1941 Rangoon 324. 68. R. v. Harissan Orient, (1951) 2 All ER 726. 69. Mohammad v. King, AIR 1949 PC 161. 70. Emperor v. Shankaraya Gurshedhavay, AIR 1940 Bom 365. 71. Kedarnath v. Emperor, AIR 1953 Alld. 521.

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SECTION 16.—Existence of course of business when relevant.—When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. ILLUSTRATIONS (a) The question is, whether a particular letter was despatched. 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 that particular letter was put in that place, are relevant. (b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead Letter Office, are relevant. COMMENTS Scope.—Under Section 16 it has been laid down that when the existence of any course of business is natural to produce a certain result, the mere proof of such existence of the course of business will give a presumption that the result was produced. In commercial transactions the presumption is that the usual course of business was followed by the parties thereto. In Henry v. Bencita, it was observed "where the maxim of ommia proesummunntrrite set solemnier essa actus (all acts are presumed to have been done rightly and regularly) applies, there indeed if the event ought probably to have taken place on Tuesday, evidence that it did take place on Tuesday or on Wednesday is strong evidence that it took place on Tuesday." To prove that an act has been done it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course of business will be followed in a particular case. This probability is stronger in case of public officers. A alleges in a case of ejectment of house that he gave a notice for the termination of lease to B on 1st December, 1951, writing therein that the tenancy terminating on 31st December and that the house be vacated by that time. B denies having received any such notice. A files a postal receipt showing that a registered letter was sent by A to B on 1st December, 1951. Now this will give a presumption under Section 16 that the letter was received by B as in the natural course of business if a letter is posted or registered in a post office it must reach the addressee. There must be evidence that the letter reached the post office.72 Where the invitation cards bear the postal stamps of the place of posting and also the place of destination, except a bare suggestion that they are concocted, nothing was brought on record to indicate the suspicious nature of other documents, the inference can be drawn that in the normal course they were posted and received by the addressees. Under Section 16 all these documents are admissible in evidence.73 The presumption under this section is only permissible and not an inevitable presumption. Section 16 does not compel a court to draw presumption.74 __________________ 72. Bank of Bihar v. Tata Sub-dealers, AIR 1960 Cal. 475. 73. Vandavasi Karthikeya v. S. Kamalamma, AIR 1994 AP 108. 74. L.M.G. Saleema, Smt. v. B.B. Gujaral, 1981 ACC 293.

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The presumption attaches to the postal peon's report "refused." The writing of endorsement "refused", falls within the ambit of "common course of business" of the postman and therefore even without any formal proof, evolves the presumption that it was written on refusal by the addressee.75 In Dr. Kripa Ram Mathur v. State of U.P.,76 the procedure adopted by Selection Committee showed that the selection was made on merit and ranking to selected candidates was given accordingly. Merely because, the State failed to produce marks obtained by each candidate at such a belated stage, it could not be said that selection process was not based on comparative merit of candidates appearing before Selection Committee. Appellant challenged the merit list after success it was held by Supreme Court that the presumption of genuineness of official would also apply. ADMISSION SECTION 17.—Admission defined.—An admission is a statement, [oral or documentary or contained electronic form]77 which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. SECTION 18.—Admission by party to proceeding or his agent.— Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. By suitor in representative character.—Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by— (1) By party interested in subject-matter.—Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (2) By person from whom interest derived.—Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements. SECTION 19.—Admissions by persons whose position must be proved as against party to suit.—Statements made by persons whose position or liability it is necessary to prove as against any party to the suit are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability. __________________ 75. Balbhaddar v. I.T. Commissioner, AIR 1957 Punjab 284 ; Kunnabdulla v. Krihnam, AIR 1957 Kerala 33 ; Budha v. Bedaruja, AIR 1981 MP 76. 76. AIR 2001 SC 3071. 77. Subs, by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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ILLUSTRATION

A undertakes to collect rents for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B. SECTION 20.—Admissions by persons expressly referred to by party to suit.— Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. ILLUSTRATION The question is, whether a horse sold by A to B is sound. A says to B—"Go and ask C, C knows all about it". C's statement is an admission. COMMENTS Admission.—Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceeding proves that the other party has admitted his case, the work of the court becomes easier. A files a suit against B alleging that B is not the last male owner's daughter's son and that he (A) is, the last male holder's sapinda. B files a document in which A admitted B to be the daughter's son of the last male holder. This document is not only admissible in evidence but is a very strong and important piece of evidence. Admission has been dealt with in Sections 17 to 23. The intervening sections, i.e., 24 to 30 are devoted to confession. Admission cannot be inferred it is positive acknowledgement.— Admission is positive act of acknowledgment or confession. It is conscious and deliberate act and not something which would be inferred. A party by voluntary acknowledgement of the existence of certain facts during the judicial or quasi judicial proceedings can concede as true or valid the allegation made in proceeding or in the notice. This formal act of acknowledgement during the proceedings dispenses with the production of evidence by conceding for the purpose of litigation that the proposition alleged by the opponent is true. Merely the failure by respondent by denial or silence or inaction in respect to the notice cannot be treated as admission. No acknowledgement or implied admission can be inferred from silence or no implied admission can be inferred from silence, inaction, or failure to act. Admission with respect to the existence of certain fact which is in issue or relevant to an issue in the case should be in expressed terms. Merely because the allegation has not been denied it cannot be admitted to be established. The omission to answer the notice' by itself cannot be treated as evidence of truth of (statement) allegation made in notice. The allegation can be said to be proved only when there is conscious and deliberate admission in expressed terms.78 Sections 17 to 20 define 'admission'. Section 21 gives as to which party to a proceeding can use admission, i.e., it gives as to when an admission by one __________________ 78 Mukesh Kumar Ajmera v. State of Rajasthan AIR 1997 Rai 250.

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person can be proved by another and when and in what circumstances it can be proved by the person making the statement. Section 22 excludes the oral evidence against the contents of documents. Section 23 deals with relevancy in civil cases of admission made upon an expressed condition that it shall not be given in evidence. Admission—Defined.—Sections 17, 18, 19 and 20 taken together define 'admission' Section 17 lays down that statements, oral or documentary, which suggest any inference to any fact in issue or relevant fact made by admissions. The definition of the term 'admission' as used in the Indian Evidence Act will be clear by reading all these four sections together. If all these sections were to be written in one sentence, they would read as follows :— An admission is a statement Which suggests any oral or documentary; inference as to any fact in issue or relevant fact and is made by:

(1) A party to the proceeding ; (2) An agent to any party whom the court regards under the circumstances of the case, as expressly or impliedly authorised by him (the party) to make them. (3) Parties to suits, suing or being sued in representative capacity if the party making the statement held that representative capacity while making the statement. (4) Persons who have proprietary or pecuniary interest in the subjectmatter of proceeding and who make the statement in their character of persons so interested and also if the statements are made during the continuance of the interest of the person making the statements. (5) Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, if the statements are made during the continuance of

the interest of the persons making the statement— Section 18. (6) Persons whose position and liability it is necessary to prove as against any party to the suit, if such statements would be relevant as against such persons making the statement in relation to such position or liability in a suit brought by or against them and if such statements are made while the person making them occupies such position or is subject to such liability—Section 19. (7) Persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute— Section 20.

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According to the definition given above, the statements of parties to the suits or proceedings and also of persons who are not parties to such suits or proceedings, i.e., of strangers are admissions if they are made under the circumstances mentioned above and suggest any inference as to any fact in issue or relevant fact. The statement of person making admission should be read completely (not partly) and the statement drawn from reference cannot form admission.79 The admission of a party will be admitted against him and to make his statement admissible, it is not necessary that the attention of person making admission should be brought to the said fact (admission).80 Admission is a prior statement adverse to ones interest and not a prior statement in ones interest.81 Admission of Law.—In India, admission of fact is a proof against the party making the admission but admission on a pure question of law is not binding on the maker. An admission on a point of law is not an admission of a "thing" so as to make the matter of estoppel.82 Counsel's admission on question of mixed law and fact are not binding. The lawyer of the plaintiff made an admission to the effect that the parties were governed by custom under which a mother could have alienated the property of her minor sons for their benefit. This was held not binding because it was a pure question of law or at least a mixed question of law and fact.83 The admissions of law by a counsel are not binding on a court and the court is not precluded from deciding the rights of the parties on a true view of the law.84 Under the English Law admission of law is relevant. __________________ 79. Dharmavati Bai p. Shiv Singh, AIR 1991 MP 18. 80. Maimuna Bibi v. Rasool Mian, ADR 1991 Pat. 203. 81. Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju, (2006) 1 SCC 212. 82. Jagwant Singh v. Sitan Singh, ILR 21 All 285. 83. Kesar v. Bular, AIR 1945 Lah 356. 84. Society Belge De Benque v. Girdhari Lal, AIR 1940 PC 90.

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Admission to parties to proceedings.—It has already been discussed that the statements of a party amounting to admission are, as against such party, admissible in evidence. Under the designation of 'parties' the law includes not only those who appear on the record in that capacity, but also persons who are actually parties without so appearing. Persons who are not parties on the record but who are interested in the subject-matter of the suit are considered by the law as real parties in interest and accordingly their admissions have the same weight as though they were parties on the record. Conversely, a party on record who has no beneficial interest in the issues of the litigation will not be permitted to effect by his admission the substantive right of one for whom he is acting. In other words, in all these relations, substantive interest rather than form of record is regarded as determining factor. For example, in a suit brought by a guardian for a minor the statement of the guardian will not be an admission against the minor. The admission of a fact in dispute by a party to a suit or proceeding is a very important piece of evidence. It has been held that what is admitted by a party to be true must be presumed to be true 'unless' the contrary is shown.85 Admission by Agent.—The statements by agents are admissible against their principals for the reasons similar to those which govern the statement of coparceners. The principal constitutes the agent as his representative in the transaction of certain business. Therefore, whatever the agent does, in the lawful transaction of that business, is the act of the principal, the statements and the admissions respecting the subject-matter will also bind him if made at the same time. It should be borne in mind that admission of the agent binds the principal only when made during the continuance of the agency. When the agent's tight to interfere in the particular matter has ceased, the principal can no longer be affected by his declarations. As the rule admitting the admission of the agent is founded upon his legal identity with the principal, such declarations bind the principal only so far as the agent has the authority to make them. The section lays down that a statement by an agent, whom the court regards under the circumstances of the case as expressly or impliedly authorised, is admissible. From it, it becomes clear that the fact of agency must be proved before the admissions of the agents are received in the evidence. The second point which is material for the relevancy of agent's admission is that the agent must be authorised to make that statement. The third point to be taken into consideration before receiving an admission of an agent is that the statement must be made during continuance of the agency. By termination of agency his authority to make admission ceases. Admission by agents in criminal cases.—The rules of admissibility are, in general, the same for the trial of civil and criminal cases. Whatever the agent does, within the scope of the authority binds his principal and is deemed his act. It must be shown that the agent has the authority, and that the act is within his scope. It is known and familiar principle of criminal jurisprudence ____________________ 85. Nathulal v. Durea, AIR 1954 SC 355 ; Abdul v. Baijan, AIR 1932 Alld. 199.

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that he who commands or procures a crime to be done, if it is done is guilty of the crime and the act is his act. Sometimes it so happens that the agent is quite innocent and the principal is held guilty as in the cases of infants and idiots employed to administer poison. According to the Indian Evidence Act admission of an agent is admissible against the principal if made within his authority but the confession of the agent is not so admissible. But in a criminal trial, if it is intended to bind a principal by the statement of his agent, the relation of master and servant must be strictly proved.86 Admissions by pleaders, attorneys and counsels in civil cases.—If client appoints a pleader, attorney or counsel and gives him full authority to conduct his case and gives him full information about facts, then the admission made by such a counsel under his signature without some serious mistake is conclusively binding upon the client and cannot afterwards be withdrawn. When a person engages an advocate or a vakil to conduct his case, it must follow that he authorises his advocate or vakil to make binding admission before the court in the course of his conduct of the case.87 But an admission of law, where it is erroneous, by the vakil is not binding on the client.88 It must be borne in mind that before the admission of party's agent is taken into consideration, the fact that the person making the admission is the agent and is authorised to make the statement must be proved.89 In S. Bhattacharjee's case,90 it was held "where A is sought to be bound by an admission made by B the relation of agency between A and B should be pleaded and established." Admission by counsel in criminal cases.—The law makes no provision for admission by a counsel in a criminal case. No admission by counsel can relieve the prosecution of the duty to prove the case.91 But when the counsel of the accused appears as witness to prove some facts the above principle does not apply. One Raghunath Prasad got a sale-deed executed by unknown lady in respect of the property of one Smt. Sukhdei. The unknown lady had been put forward to personate Smt. Sukhdei, Raghunath and others were tried before the Court of Session for offences under Sections 419, 465 and 466, I.P.C. etc. Thumb impression of Smt. Sukhdei had been taken in the court of Magistrate for examination by handwriting expert. The expert compared thumb impression on the deed in dispute with the specimen of the thumb impression of Sukhdei taken in the Court of the Magistrate. Shri Bhairo Prasad Srivastava, counsel for the accused appeared as P.W. and deposed specimen impression was of Smt. Sukhdei. It was contended by the accused that the identity of thumb impression of Smt. Sukhdei admitted by the counsel of the accused was not binding on them so the prosecution had failed to prove that specimen thumb impression were of ____________________ 86. Rit Varma v. Emperor, 19 Cr LJ 789 ; Kedar Nath Bejoria v. State of West Bengal, AIR 1954 SC 660. 87. Jang Bahadur Singh v. Shanker, 13 Alld 272 ; Venkata v. Bhashya, 22 Mad. 533 ; Sen v. Chunni Lal, 15 Cal 385. 88. Krishna Swami v. Rajya Pal, 18 Mad 73; Kamta v. Chait, AIR 1934 All 531. 89. Kedarnath Bajoria v. State of West Bengal, AIR 1954 SC 660. 90. S. Bhattacharjee v. Sentinel Assurance Co., AIR 1955 Cal. 594.

91. S.C Miter v. State, AIR 1950 Cal 435; Ganesh Das Milani v. King, AIR 1955 NUC 755.

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Smt. Sukhdei. The Supreme Court held that in face of sworn testimony of the counsel for the accused, it was wholly out of place to apply the rule, that the accused are not bound by the admission of their counsel and the statement was held to be relevant.92 Statements made in representative character.—Where the party sues or is sued in a representative capacity, i.e., as trustee, executor, administrator or the like, the representative is different from the ordinary capacity and only admissions made in former quality are receivable. Statements made before or after incumbency are inadmissible. Conversely his admission as executor or the like could not be receivable against him as a party in his personal capacity. Persons having any proprietary or pecuniary interest.—"Where several persons are jointly interested in the subject-matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and fellows, whether they all be jointly suing or sued, or whether an action be brought in favour of or against any one or more of them separately, provided the admissions relate to the subject-matter in dispute and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered." The rule is founded on the legal principle that persons seized jointly are seized of the whole. The admission of the one is the admission of other. A foundation first be laid by showing prima facie that a joint interest exists. As apparent, joint interest is obviously insufficient to make the admission of the one party receivable against his companion where the reality of that interest is the point in controversy. The existence of joint interest which is disputed cannot be established by the admission of one of the parties sought to be charged but this fact must be established by independent proof. In general the statement of defence made by one defendant cannot be read in evidence for or against his co-defendant. If it were allowed, the plaintiff might make one of his friends a defendant and thus may gain a most unfair advantage. It is plain, therefore, on principle and policy that the statement of a co-party (while useable against him) are not useable against a co-party.93 Admissions of persons having joint interest.—As mentioned above an admission is ordinarily in evidence against the party making it. But admission of one party may be given in evidence against another, when the admission is sought to be used has a joint interest with the party making the admission, in the subject-matter of the thing to which his admission relates the statement made by a person who has any proprietary or pecuniary interest in the subject-matter of the proceeding or persons having derivative interest during the continuance of the interest or admissions.94 "The principle is that when several persons are jointly interested in subject-matter of the suit, an admission of any one of these persons is receivable ____________________ 92. Raghunath v. State of U.P., AIR 1973 SC 1100. 93. Azizullah Khan v. Ahmad Ali Khan, 7 All 343. 94. Shrichand Gupta v. Guljar Singh, AIR 1992 SC 123.

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not only against himself but also against other defendants, whether they be all jointly suing or being sued provided their admission relates to the subject-matter in dispute and be made by declarant in his character of a person jointly interested with the party with whom the evidence is tendered. The requirement of identity in legal interest between the joint owners is of fundamental importance. It must be borne in mind that the joint ownership must have existed at the time when the statement was made. Admission of one person cannot be admitted in evidence against another on the ground of a joint interest in the subject unless the interest is a subsisting one at the time of the admission.95 One Narayan died. Dispute arose for his succession. There was an inquiry before the Revenue Inspector. One D made the statement as follows— "K, C and G residents of Sankatipali are the principal heirs to the deceased. There are no others except these." Afterwards a suit was filed by one Q against K, C and G alleging that he and his brother D were the heirs of Narayan. The statement mentioned above was proved in the case by the defendants. It was held. "In this case D is the brother of the plaintiff. He is, therefore, jointly interested in the subject-matter of this litigation along with plaintiff and this statement of his, affects title to the property which is the subject-matter of this litigation for if that statement is true, then he will have no right in the property as also the plaintiff." The statement was held admissible in evidence under Section 18 of the Evidence Act. Persons from whom the parties derive interest.—A former owner of a land is so identified in interest with a subsequent owner, holding under the same title, that his (the former owner's admission) respecting the title, made while in possession and vested with title, are receivable in evidence. This evidence is based on the theory that the self-interest involved in the ownership of title is a sufficient guarantee for the truthfulness of the statement against an interest made by the owner. Generally a man does not make a statement against his own interest. A is the owner of a house and he is in possession of it. While in possession and vested with the ownership of the house he makes a statement that he has mortgaged the house to B for Rs. 1,000. Afterwards A sells the house to C. B files a suit to recover Rs. 1,000 by the sale of the house, C contends that the house was never hypothecated to B. Here B can prove the statement of A. This statement of A will be admissible against C because it was made by A, from whom C derived title and because it was made by A when he was vested with the ownership and possession of the house in question and also because it was made against his own interest. It is essential that the statement be made while the prior owner is vested with the title. If made after the title has been disposed of the guarantee of the truthfulness is lost and it has been always held that such statement is inadmissible. In the above mentioned example suppose A makes the statement referred to above after he has sold the house to B the statement will not be admissible. It must be borne in mind that the statement of one person is binding upon the other only when the latter derives his title through the former. A admits in a judicial proceeding that his deceased brother's widow adopted C and he ____________________ 95. Ambika Devi v. Bal Mukund Pandey, AIR 1981 Pat. 111.

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(C) was entitled to the property left by his (A's) brother. After the death of the widow of A's brother A's sons filed a suit for a declaration that their uncle died leaving no son and that they were the reversioners. At the trial C tried to prove the admission of A. It was held that the admission of A was not binding on the plaintiffs since they claim in their own right and not through their father.96 Admission by a person whose position must be proved as against a party to a suit.— When two parties are litigating, statement of any of them made prior to the litigation may be proved at the trial if it amounts to admission. Ordinarily statements by strangers to a suit or proceeding are not relevant as against the parties. A files a suit against B for possession of a house alleging that it belongs to him. B contends that the house belongs to him. A can lead evidence to the effect that B admitted his title to the house in dispute out of court. Similarly B can prove A's admission. If any one of them tries to prove that one C, who is not a party to the proceeding, admitted his title to the house in dispute, he will be stopped from doing so. But in some cases admissions of strangers to a proceeding are relevant. When in a suit a party to it in order to achieve success in the litigation, has to prove the position of liability of a stranger to the proceeding, the statement of such stranger would be relevant against a party to the proceeding as admission, if the statement is of such a nature that if a suit is brought against him in relation to that position or liability against or by that person who made the statements it would be relevant provided when the statement was made, the person making the statement occupies such position or subject to such liability about which the statement was made. Under Section 19 the party to a suit can use the statement of even a third party, if the statement of that third person contained an admission against the interest of that third person, and could have been used against the third person if he sued or was sued in connection with a matter involving the position or liability affected by that admission. In the illustration given under the section the liability of 'A ' to pay 'B' arises from the liability of C to B. Therefore, if A states that he owed rent to B will be admissible as against A, provided that the statement was made while the liability against C was existing. If at the time when C admitted the liability when the debt against him was time barred, the statement will not be relevant. Admission by persons expressly referred by party to a suit.— Section 20 deals with another class of admission of persons other than the parties when a party refers to a third person for some information or an opinion on a matter in dispute, the statement made by third person are receivable as admission against the person referring. The reason is that when a party refers to another person for statement of his view, he approves of his statement in anticipation and adopts as his own. "If a man refers another upon any particular business to a third person, he is bound by what the third person says or does concerning it as much as that it had been said or done by himself." A says to B "I will pay you the sum of Rs. 200 if C says I owe it to you", on ____________________ 96. Gopal Singh v. Hukum Singh, AIR 1950 All 644.

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reference C says, "A owes Rs. 200 to B". This statement of C will be proved against A as his admission under Section 20. The declarations of the persons referred to will be admissible only when they relate strictly to the subject-matter in relation to which the reference is made. Thus where a defendant stated that a book-keeper would furnish whatever information was contained in the book. The book-keeper instead of giving the information contained in the book stated that in his opinion certain entries in the book were false. It was held that this was not admissible because the matter referred to the bookkeeper was what was the entry and the statement as to the correctness or incorrectness of the entries examined and the statement as to the correctness or incorrectness of the entries were not referred to. In a suit the plaintiff stated that the defendant may be examined and the suit may be decided on the basis of what he says. The defendant made a statement against the plaintiff. It was held that the statement of the defendant was admissible under Section 20 of the Evidence Act.97 Parties to a suit made a joint application to the effect that the Munsif may decide the suit after he has made a local inspection. The suit was decided on the mere memorandum of the local inspection of the Munsif. It was held that the report of the Munsif is admissible in evidence as admissions of the parties under Section 20 of the Evidence Act.98 It must be borne in mind that when before the statement is made by the referee, a party resiles from the agreement, the statement of the referee cannot be proved as admission. At the trial on 19th of December, 1927, the parties agreed that they would abide by the statement of one Bhagwant Singh. Bhagwant Singh was accordingly ordered to be summoned and 9th of January, 1928, was fixed for recording his statement. The next day, i.e., on the 20th of December, 1927, the defendant made an application to the court stating that he had learnt that Bhagwant Singh was related to the plaintiff and that he would not like to be bound by Bhagwant Singh's statement. On 9th January, 1928, the Munsif held some inquiry and came to the conclusion that Bhagwant Singh was not related to the plaintiff. The court proceeded to take down the statement of Bhagwant Singh and ultimately passed a decree in terms suggested by Bhagwant Singh. The defendant appealed in the High Court. Their Lordships of the High Court held that the statement was not admissible.99 Section 20 is the second exception to the general rule laid down in Section 18. It deals with one class of vicarious admissions that demand of persons other than the parties. Where a party refers to a third person for some information or an opinion on a matter in dispute, the statements made by the third person are receivable as admission against the person referring.1 In K. M. Singh v. Secretary Indian University Association,2 it was said that resignation given by the plaintiff was not voluntary. The resignation was obtained under fraud, coercion, threat and inducement. During the proceeding an ____________________ 97. Kesho Ram v. Pyare Lal, 21 ALJ 209. 98. Sitaram v. Piari, 47 All 621. 99. Jumman Singh and others v. Sheo Darshan Singh, 52 All 235. 1. Hira Chand Kothari v. State of Rajasthan, AIR 1985 SC 998. 2. AIR 1992 SC 1356.

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application was given by the plaintiff that if the officials of association, namely Sardar Amrik Singh and R. B. Mahindru by taking oath in Gurudwara and temple respectively say that plaintiff's resignation was not under fraud, coercion, inducement and threat, (referred to Amrik Singh and R. B. Mahindru) then the portion of this case may be dismissed or deemed to be withdrawn. Sardar Amrik Singh and R. B. Mahindru accepted this challenge. A local commission was issued. Both the references were ready to take oath in Gurdwara and temple. The local commissioner administered the oath. On the next day oath was administered to the referred person. But it was prayed by plaintiff that the decision of the case should be made on the basis of merit of the case. This later application was rejected by the trial court. The trial court held that Section 20 of Evidence Act will be applied in this case. The High Court confirmed the decision of trial court. The Supreme Court also relied on Section 20 of the Evidence Act and held that the plaintiff was bound by the statement of the person whom he had referred to. The case of Ram Sahai and others v. Jai Prakash and others3, was for ejectment. A person who had the power of attorney for the tenant accepted the arrears of rent. This acceptance was made binding upon tenant because this was the statement of person referred by plaintiff. Admission is substantive evidence.—Where in a civil suit a party produces documents containing admissions by his opponent, which documents are admitted by the opponent's counsel and the opponents enters the witness-box it is not obligatory on the party producing those documents to draw in cross-examination the attention of the opponent to the said admissions, before he be permitted to use them for the purpose of contradicting the opponent, provided that the admissions are clear and unambiguous but where the statements relied on as admissions are ambiguous or vague, it is obligatory on the opponent to the said statement before he can be permitted to use them for purposes of contradicting the evidence on oath of the opponent.4 Admission are substantive evidence by themselves, though they are not conclusive proof of the matters admitted. The admissions duly proved are admissible in evidence irrespective of whether the party making them appeared in the witness-box or not and whether such party when appearing as a witness was confronted with those statements, in case, he made a contradictory statement. But the admissions must be clear, if they are to be used against the persons making them.5 Admission is not admissible against a person other than the person making it unless such person can be said to be bound by such admission.6 SECTION 21.—Proof of admissions against persons making them, and by or on their behalf.—Admissions are relevant and may be proved ____________________ 3. AIR 1973 MP 147. 4. Ayodhya Prasad Bhargava v. Bhawani Shankar Bhargava, AIR 1967 All I (FB) ; Vishwanath Prasad v. Dwarka Prasad, AIR 1974 SC 117. 5. Bharat Singh v. Bhagirathi, AIR 1966 SC 405 ; Beer Basabaradhya v. Devotees Lingadagudi Matt, AIR 1973 Mys 280. 6. Sita Ram v. Satanee Prasad, AIR 1966 SC 1967.

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as against the person who makes them, or his representative-in-interest; but they cannot be proved by or on behalf of the person who makes them or by his representative-ininterest, except in the following cases : (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. ILLUSTRATIONS (a) The question between A and B is, whether a certain deed is or is not forged, A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged ; but A cannot prove a statement by himself that the deed is genuine ; nor can B prove a statement by himself that the deed is forged. (b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under Section 32, clause (2). (c) A is accused of a crime committed by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post mark of that day. The statement in the date of the letter is admissible, because, if A were dead, it would be admissible under Section 32, clause (2). (d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue. (e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.

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A may prove these facts for the reasons stated in the last preceding illustration. COMMENTS Proof of admissions against the person making them and by him.—Section 21 lays down that an admission may be used against a person who makes them or his representatives in interest, but generally cannot be used by the person who makes it for his own use. Further it gives three exceptions to this general rule that admission cannot be used by a person who makes it. Besides the three cases mentioned in the section an admission cannot be used by a person who makes it.7 The principle underlying this rule of law is very clear, it is natural for a man to make statements in his favour. If a man makes a certain statement against his own interest it means that the statement must be true. On the other hand, a man wants to make statements favourable to himself even if the statements are altogether false. It is on this principle that the law has laid down that the statement will be used against the persons who make them and only in certain exceptional cases by the person who makes them. It has been remarked very ably by a judge that "it would be manifestly unsafe to allow a person to make admissions or statements in his own favour which would affect his adversary: whereas we have a sufficient safeguard for admitting statements against interest from the assurance that according to ordinary experience people do not speak untruths against themselves. If admissions were allowed to be used by a party who makes them it will be very easy for one to make a favourable statement beforehand and then use it at the time of the trial." Such statements are rejected because if a man might bring evidence to prove statements made by himself favourable to his own case nothing would be easier than for a party who had a week case to strengthen it by making such statements beforehand or by suborned witnesses to speak to having heard him to make such statements. Proof of admission by the maker.—Thus we see that the admission cannot be used by the persons making them but Section 21 has given three exemptions to this general rule. In these exceptional cases the person making admission may use it at the trial and may derive benefit out of it. The exceptions are as follows : Admission falling under Section 32.—Clause (1) lays down that an admission by a person may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32. Section 32, Evidence Act, lays down that statements made by persons who are dead or who cannot be found, may be proved if the statement was made under the circumstances mentioned in sub-clauses (1) to (8) of that section. Sub-clause (2) of Section 32 lays down that when the statement was made by such persons in the ordinary course of business and in particular when it consists if an entry made by him in a book kept by him in the ordinary course of business, it is relevant. Thus sub-clause (5) ____________________ 7. Shamsher v. Rustam, AIR 1988 Raj. 188.

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lays down that when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making it had special means of knowledge and when the statement was made before the question was raised, it is relevant. The question is, what was the price of grain on a certain day in a particular market. The plaintiff tries to prove the entries relating to the price made by him in the ordinary course of business in his account book. This entry is the admission of the plaintiff but he will be allowed to prove his own admission only because if he were dead the statement would have been admissible under Section 32, subclause (2). The plaintiff sought to establish his pedigree by proving inter alia that A and B were brothers. One of the plaintiffs made a statement long ago before the controversy in the present suit in which he had stated that A and B were brothers. The plaintiff wanted to prove that statement in the present case. Though the statement was plaintiff's own admission, it was allowed to be proved only because if the plaintiff after making that statement was dead, the statement would have been admissible under Section 32, sub-clause (5). State of mind or body.—When the admission of man consists of a statement of existence of any state of mind or body relevant, and when it was, made at or about the time when such state of mind or body existed and is recommended by conduct rendering its falsehood improbable, it may be used by the person who, makes it even for his own benefit. A executes a deed of gift in favour of B. After a year or so A files a suit against B for the cancellation of the deed with the allegation that at the time of the execution of the gift-deed he was seriously ill so much so that he could not understand the contents of the gift-deed. In this case a real point at issue would be whether at the time of the execution of the gift-deed the state of mind and body of A was healthy enough so that he might have understood the contents of the gift-deed. One day before the execution of the giftdeed A had written a letter to C, a friend of his, alleging that he was losing the balance of mind and was suffering from some severe disease and which the doctors of his town could not correctly diagnose. In the very letter he had asked C to bring some expert doctor from his own city. The doctor came that very evening, prescribed medicine for A and charged Rs. 1,000 for his fee and price of medicine. This letter of B though his own statement will be allowed to be proved by A because it was made at the time when the state of body and mind existed and also the subsequent conduct of A in getting advice of the doctor and paying a very heavy sum for the treatment rendered its falsehood improbable. Admission made in ignorance of law.—Any admission made in ignorance of law or under duress cannot bind the maker of the admission.8 Statement relevant otherwise than as admission.—An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. The plaintiffs filed suit for partition in respect of certain properties against the defendants. They alleged that the plaintiffs and defendants were co-owners of the properties in suit. The defendants contested the suit that there has been a partition between the ____________________ 8. Shri Krishna v. Kurkshetra University, AIR 1975 SC 376.

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parties and the defendants came in possession of a specific property in lieu of these shares in all the properties. Now in this case there was an issue whether the property was joint or there had been a partition according to which the defendant was in possession of that specific property separately. The defendant had filed a written statement in a previous litigation alleging that there was a partition and that he was in exclusive possession of that specific property. In the present suit he tried to prove his previous written statement in which he himself had stated that there was partition and that he was in exclusive possession of the property. Now this statement of the defendant is his own admission but this was admitted under Section 21, clause (3) because this statement was admissible under Section 11 of the Evidence Act. The plaintiff brought a suit against his son for recovery of possession of land which stood in the name of the latter alleging that the same was acquired benami, by him. The defendant alleged that the land was purchased for him by his paternal grandfather. The plaintiff answered that his father had died before the property was acquired. The plaintiff produced a mortgage bond executed by him long before the date of purchase of the land in suit, in which he described his father as dead. It was held that the statement made by the plaintiff in the mortgage bond was admissible in evidence under Section 21, sub-clause (3) as this statement was admissible under Section 11, sub-clause (2). Thus this is clear that this clause is intended to apply to the cases in which the statement is sought to be used in evidence otherwise than as an admission. No admission of law.—Admission of facts only bind the person making them. The admission of law are not contemplated by the chapter of admissions.9 SECTION 22.—When oral admissions as to contents of documents are relevant.— Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuiness of a document produced is in question. COMMENTS Principle.—Under Section 22 it has been laid down that when there has been a document, nobody can be allowed to prove oral admission about the contents of that document e. g., A executed a deed of mortgage in favour of B. B files a suit for the possession of the property mortgaged on the basis of that mortgage. During the trial A denied the execution of the mortgage. Now in this case B cannot prove by oral evidence that he had before some persons admitted that he had mortgaged the property to him. B can prove the execution of the mortgage and can get possession of the property only when he files that deed of mortgage in the court and proves it. There are two exceptions to this rule : (1) when a person is entitled to give secondary evidence of the contents of some documents he will be entitled to rely on oral admission, (2) Under Section 65 secondary evidence of the contents of a ____________________ 9. Banarasi Das v. Kashiram, AIR 1963 SC 1165.

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document can be given when the original is lost or when it is in possession of the opposite party and so on. Thus we see that under Section 22 a party can prove oral admission of the contents of the document when he proves that the document has been lost, destroyed or that it is in possession of the opposite party. Oral evidence of admission can also be given when a document is produced and its genuineness is disputed,10 SECTION 11[22-A.—When oral admission as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.] SECTION 23.—Admission in civil cases when relevant.—In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. Explanation.—Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126. COMMENTS Admission in civil cases when relevant.—Section 23 is applicable to civil cases. It lays down that in civil cases if a person admits the liability upon an express condition that evidence of such admission should not be given or if it is made in such circumstances that the court can infer that there was some sort of agreement that the admissions will not be proved in evidence in a case, such admission will not be relevant and will not be allowed to be proved. Very often for the purpose of buying peace and settling disputes by a compromise people make so many statements. If such statements are allowed to be proved in court, it will become impossible for people to talk of compromise and peace. When there is a dispute between two persons and one of them writes to the other making an offer of certain terms, he may stipulate that in case his offer is not accepted his letter is not to be used against him an admission of liability. Such a letter is generally described as written without prejudice and is not admissible in evidence. Then an admission has been made to the opposite side on the understanding that it is not to be used against the party making it, is privileged. Such admission are commonly made in the course of negotiations between the parties or their agents with a view to the compromise of the claim which afterwards becomes subject-matter of litigation, and the usual way by which the person making the admission secures the privilege is by stipulating that the communications are without prejudice. Under Section 23, in order to sustain the plea of privilege it must be shown that both the addressor and addressee intended to claim the same.12 ____________________ 10. Jaigopal Singh v. Divisional Forest Officer, AIR 1952 Patna 310. 11. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II. 12. Lucknow Improvement Trust v. P. L. Jaitly, AIR 1930 Oudh 105.

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In a dispute between the two parties letters and negotiations between their respective solicitors which are written declared to be without prejudice are irrelevant. The rule under consideration does not apply where admissions are made not under condition of their being without prejudice or where an agreement though purporting to be compromise has been finally concluded as where it has been signed by the parties and executed. It must be borne in mind that this section has application only in civil cases. It is not extended to criminal cases. Admission must be taken as a whole.—An admission must be used either as a whole or not at all. An admission made by a person cannot be split up and part of it used against him. It must be accepted as a whole.13 But if there is other evidence which disproves a part of admission, the other part may be relied upon.14 Admission on matter of law.—Parties cannot by their admission of law arising out of an undisputed state of facts, bind the court to adopt their view. An admission on point of law by a party is not binding on him.15 An erroneous admission by the counsel on a point of law is of no effect and does not bind the party.16 Classes of person not exempted from giving evidence.—Under the Explanation the legal advisor of the party will not be prevented from giving evidence of any communication made in furtherance of any illegal purpose or any fact showing that crime or fraud has been committed since his employment. SECTION 24.—Confession caused by inducement, threat or promise when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. COMMENTS 'Confession' defined.—The word 'confession' appears for the first time in Section 24 of the Indian Evidence Act. This section comes under the heading of 'Admission' so it is clear that the confessions are merely one species of admission. Now the question is as to what admission amount to confessions. The word 'confession' has not been defined in the Act. Mr. Justice Stephen in his Digest of the Law of Evidence defined confession as "confession is an admission made at any time by a person charged with a crime stating or suggesting the ____________________ 13. Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343; Palvendra Kaur v. State of Punjab, AIR 195 SC 354 ; Raj Bahadur v. Raghuvir, 49 All. 707 : Kali Charan v. Hardya Nath, AIR 1935 Pat. 24 ; Sundara v. Gopala, AIR 1934 Mad. 100 ; Jwala Das v. Sant Dasi, AIR 1930 PC 245. 14. Shiv Ram v. Sh Charn, AIR 1963 Raj. 126. 15. Serain v. Sunder, AIR 1929 Lah 879. 16. Beni Prasad v. Dood Nath, 27 Cal. 156.

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inference that he committed that crime." According to this definition a statement of an accused will amount to a confession if it fulfills any of the following two conditions: (1) If he states that he committed the crime he is charged with, or (2) if he makes a statement by which he does not clearly admit the guilt, yet from the statement some inference may be drawn that he might have committed the crime. Where a confession is made by a person before a report was made to the police and before he was accused of an offence by others. The confession must be regarded as one made by an accused within the meaning of this section. A confession, if voluntary and truthfully made is an "efficacious proof of guilt". It is an important piece of evidence and therefore it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy.17 A confession which is voluntary and free from any pressure can be accepted.18 Confession to be voluntary.—A confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. The Court has to be satisfied that at the time of making the confession the accused was a free man and his movements were not controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession.19 Some High Courts adopted the definition of Mr. Justice Stephen and held that statement of accused amount to confession even though he did not in term admit the guilt nor did he admit substantially the facts which constituted offence, but by the facts admitted an inference may be drawn that the accused might have committed the crime. Some other High Courts were of the view that a statement amounted to confession only when it admitted the guilt. The controversy has been set at rest by the Privy Council which defined confession as below: "No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner and was in recent possession of the knife or ____________________ 17. Shivappa v. State of Karnataka, AIR 1995 SC 980. 18. Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvanathapuram, AIR 2007 SC 794 at p. 796. 19. Kusuma Ankama Rao v. State of A. P., AIR 2009 SC 2819 at p. 2824.

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revolver which caused the death with no explanation of any other man's "possession". Second part of definition of Justice Stephen is no confession according to this decision. This case has been followed by the Courts in India in the following cases :"20 On 23rd of March, 1937 a body of a deceased man was found in a steel trunk in a compartment at Puri. The body was identified to be of a peon the father-in-law of the accused Pakalo Narayana Swamy. The accused was charged with the murder of the deceased man. The prosecution story was that the deceased man came to the house of the accused on the 21st March ; the accused cut him into pieces, placed the dead body in a trunk and took it to the Railway Station. The prosecution tried to prove a statement of the accused. The accused stated that the deceased came to his house on the evening of the 21st March, slept in one of the out house rooms for the night and left on the evening of the 22nd by the evening train. That on the morning of 23rd March the accused went to the station and went off by the passenger train to Chatrapur in connection with some private business. It was contended that the above statement amounted to confession. Their Lordships of the Privy Council repealed that contention and held that the statement that contains selfexculpatory matter can amount to a confession, if the exculpatory statement is of some facts which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms of the offence, of at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating facts, even a conclusively incriminating fact is not itself a confession, e.g., an admission that the accused is owner of and was in recent possession of the knife or the revolver which caused the death with no explanation of other man's possession. Their Lordships referred to the definition of confession given by Lord Stephen (an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime) and remarked : "The definition is not contained in the Evidence Act, 1872 and in that Act it would not be consistent with the natural use of language to constitute confession as a statement by an accused "suggesting the inference that he committed" the crime."21 The appellant Om Prakash was charged with and tried for offences under Sections 165-A and 468/109, I.P.C. The charge against him was that he paid Rs. 300 on or about 4th of December, 1948 to Roshanlal Gupta, unit clerk in MJ's Office, Bulandshahar to issue to him fictitious permit for bricks and which were issued to him. The following statement of the appellant were relied on as confession by the prosecution "I beg to submit that I stood in need of some bricks for construction of a house. I came to know that bricks, cement, etc. could be had from the office of the Mechanical Inspector of Bulandshar. Babu Roshanlal, head clerk had told me this thing. Thereupon I made a request to him that, if ____________________ 20. Om Prakash v. State of U.P., AIR 1960 SC 409 ; Sahoo v. State of U.P., AIR 1966 SC 40 ; Padyachi v. State of Tamil Nadu, AIR 1972 SC 66 ; Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167; Nagesia v. State of Bihar, AIR 1966 SC 119. 21. Narayana Swamy v. Emperor, 1939 PC 47; Gadha Purni v. State, 1980 Cr LJ 188.

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possible, he should get the permit for bricks, issued to me from his office. Thereafter Roshanlal came to my house on the 4th December, 1948. He took Rupees 300 from me and gave me four permits. I could not get the bricks. I searched for Roshanlal. He assured me that those permits had been finished by his department. He was on leave and he would give me fresh permit when he joins his office." "When I did not get the goods I demanded the money (Rs. 300) from Roshanlal he said that he would give me the money when he would have got back the same from the Inspector, Mr. Bhatnagar (to whom according to him he had given) thereafter, "I demanded the money from Mr. Bhatnagar who promised to return the money after returning from Bareilly. I have not received that money as yet." Their Lordships held that these statements did not amount to confession and remarked, "It may be that the two documents read as a whole suggest an inference, but it is not what this Court and Privy Council have laid down as a test for basing a conviction of an accused on his own admission. On the facts a suspicion may arise, that money was paid as a bribe, but we cannot successfully repel the suggestion that the appellant might have been cheated and had no intention of paying a bribe : Their Lordships of Privy Council have laid down that unless there be a plenary admission of guilt the facts must be interpreted reasonably and an admission of all the facts which constitute the offence should be present."22 In Ammini and Others v. State of Kerala,23 the accused sustained injury. He was examined by the doctor before whom he stated the cause of injuries. It was held to be not confession. The statement was not hit by provisions of this Act. In State of Gujarat v. Mohd. Atik and Others,24 it was held by the Supreme Court that, when there was no statutory prohibition for using confession fulfilling the requirement of Section 15 of Terrorist Disruptive Activities Act (TADA), 1987, on the premises that it was not recorded during the investigation of particular offence, which was under trial, there was no need or reason for the court to introduce a further fetter against the admissibility of confessional statement. It often happens that a confession would disclose very many acts and events including different facet of his involvement in preparation, attempt or commission of crime including the acts of his co-participation therein. But to expel other incriminatory disclosure than those under investigation of particular crime from the ambit of admissibility is not mandated by any provisions of law. Therefore, when a confession was usuable under Section 15 of TADA it would not become unusable merely because the case was different. If the confession covers that different crime it would be relevant item of evidence in the case in which that crime is under trial and it would then become admissible in the case. Illustration Accused B, P and M were charged with intentionally causing death of D with spears and lathis. M, one of the accused, voluntarily made a report to the ____________________ 22. Om Prakash v. State of U.P., AIR 1960 SC 409. 23. AIR 1998 SC 260. 24. AIR 1998 SC 1686.

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effect that he and B had found a thief lying on the ground under the Neem tree behind his house and that B struck him with lathi. It was then found that the thief had died and the corpse was identified as that of D. M could not say that he was actually D. He had called the Chaukidar and came with him to the police station to make a report against D that he had tried to break into the house to commit theft. M was charged with murder of D. He in the said report made a statement that he and B were at least present when D was given a blow of lathi and that shortly after that, D was found dead. Now if the definition of Justice Stephen is to be applied, this statement does amount to confession, because by this statement of M there does arise some suggestion that he had to do something with the murder of D, but as M does not admit in terms the offence nor does he admit at any rate substantially the facts which constitute the offence, and so it was held that the statement did not amount to confession. If M would have made a report to the effect that he murdered D or that he assaulted D with lathis and D died, it would have amounted to confession. A statement of the accused in which he does not implicate himself directly or indirectly is not a confession.25 The appellant Behera of Tanti was charged with the offence of committing murder of his wife by severing her head from the body with ‘falsia'. The evidence against him was his retracted confession. The statement of the accused was as follows : "There was an altercation between me and my wife. I did not know what I did with her though I saw my wife stained with blood. I, therefore, ran to the police station where I realised that I had killed my wife." It was argued by the learned Counsel for the State that the appellant's statement amounted to an admission of a guilt, firstly, because the appellant said that he found the knife to have contained the stains of blood on it and secondly because of his statement that shortly after he realised that he had killed his wife. Their Lordship said : "We are unable to accede to this contention because his statement purports to convey what appears to have been an impression created in his mind regarding the occurrence and cannot amount to a categorical admission that he had actually killed the deceased."26 If Tanti had made the report to the effect that he stabbed his wife it would have amounted to confession. In Palvinder Kaur v. State of Punjab,27 one Palvinder Kaur was convicted under Section 302, I. P. C., for having committed murder of her husband by administering potassium cynide poison. She stated "my husband was fond of hunting as well as of photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. He fell down and died." It was held that "the statement did not amount to confession." ____________________ 25. Chobar v. State , AIR 1960 Cal. 723. 26. Behara Tanti v. State, AIR 1959 Orissa 202; Pandru Khadia v. State of Orissa, 1992 Cr.LJ 762. 27. AIR 1952 SC 354.

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A confession must either admit in terms the offence or at any rate substantially the facts which constitute the offence. Any statement short of this will not amount to confession even if by that some inference of implication of the accused in the crime may be drawn.28 A is charged with murder of B. He makes a statement that he committed the crime. This will amount to confession. Again he may state, "I and B both were taking bath in a tank. B abused me severely. I was angry so I got hold of his neck and drowned him in the tank." Here the accused substantially admits the facts which constitute the offence so his statement amounts to confession. He may state that he, B and C were bathing in the tank when B and C quaralled. In spite of the fact that he asked C not to drown B, C did not mind his words but he pushed B down in the tank and B was drowned. By this statement of A some sort of inference can be drawn about the implication of A in the murder of B. It may be at least shown that he was present at the time of the murder but at any rate it cannot be said to be confession because he neither admits the guilt nor does he admit substantially the facts which constitute the offence. A statement which contains an exculpatory assertion of some fact, which if true would negative the offence alleged cannot amount to a confession. The accused was charged under Section 135 of the Customs Act. The accused made a statement to the Custom Inspector. Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods and alleged that the goods were not loaded under his instructions. The deponent claimed to be an innocent traveller in the truck. It was held that the statement did not amount to confession.29 The accused a woman stated that she stabbed the deceased as he tried to commit rape on her. The statement did not amount to confession because the statement taken as a whole does not amount to confession. A lady has right to kill a person in self defence if the latter attempts to commit rape on her.30 Confession at a later stage of trial.—A confessional statement not retracted even at a later stage of the trial and even accepted by the accused in his examination under Section 313 of Cr. P. C. can be fully relied upon.31 Need not be communicated to others.—A confession is a statement by the accused. Communication to another is not an essential ingredient of a concept of confession. The murmuring of the accused all alone to himself that he has killed Sundarpali was held to be confession.32 In the case of Pandru Khadia v. State of Orissa,33 it has been held that the confession must be addressed to some one. In view of the above Supreme Court case it is not correct law. Admission and confession : Distinguished.—Sections 17 to 31 deal with admissions generally and include Sections 24 to 30 which deal with confession as distinguished from admission. From this it would appear that ____________________ 28. Gadhapurna v. State, 1980 Cr. LJ 188. 29. Veera Ibrahim v. Maharashtra, AIR 1976 SC 1167. 30. State of Orissa v. Nirupama, 1989 Cr. L.J. 621. 31. Bishnu Prasad Sinha v. State of Assam, AIR 2007 SC 848 at p.853. 32. Sahu v. State of U.P., AIR 1966 SC 40.

33.

1992 Cr. L.J. 762.

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confessions are a species of which admission is a genus.34 All admissions are not confessions but all confessions are admissions.35 Thus a statement amounting under Sections 24 to 30 to confessions in a criminal proceeding may be an admission under Section 21 in a civil proceeding. Sections 18 to 21 are not confined in their application to civil cases only. Incriminating statements not hit by Section 162, Cr. P.C. may be admissible as admissions even in criminal cases.36 Distinction between Confession and Admission Confessions

Admissions

1. A confession is a statement made by an accused person which is sought to be proved against him in criminal proceeding to establish the commission of an offence by him.

1. An admission usually relates to civil transaction and comprises all statements amounting to admission defined under Section 17 and made by person mentioned under Sections 18, 19 and 20.

2. Confession if deliberately and 2. Admission are not conclusive as to the voluntarily made may be accepted as matters admitted it may operate as an conclusive of the matters confessed. estoppel. 3. Confessions person making it.

always go against the 3. Admissions may be used on behalf of the person making it under the exceptions provided in Section 21 of Evidence Act.

4. Confessions made by one or two or 4. Admission by one of the several more accused jointly tried for the same defendants in suit is no evidence against offence can be taken into consideration other defendants. against the co-accused (Section 30). 5. oral suit.

Confession is statement written or 5. Admission is statement oral or written which is direct admission of which gives inference about the liability of person making admission.

A confession differs from an admission : "The distinction between a confession and admission, as applied in Criminal Law, is not a technical refinement but based upon the substantive differences of the character of the evidence deduced from each. A confession is a direct acknowledgement of guilt, on the part of the accused, and by the very force of the definition excludes an admission which of itself as applied in Criminal Law, is statement by the accused direct or implied, of facts pertinent

________________________ 34. Siddheshwar Nath v. Emperor, AIR 1934 All. 351. 35. Nitai Chandra Jaria v. Emperor, AIR 1937 Cal. 433. 36. Akal Sahu v. Emperor, AIR 1948 Patna 62 ; Narayan Swami v. Emperor, AIR 1939 PC 47 ; Faddi v. State of M.P., AIR 1964 SC 1850.

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to the issue, and tending in connection with a proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction." The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to authorise a conviction, then it is an admission.37 An other test is that if the prosecution relies on the statement as being true it is confession and if the statement is relied on because it is false it is admission.38 In criminal cases a statement by accused, not amounting to confession but giving rise to inference that the accused might have committed the crime is his admission.39 Examples of Admission.—(1) 'A' is charged with the murder of 'B' by drowning. If he states that he drowned 'B' it is confession. But if he states that 'Y’ and 'B' were bathing in the river 'C’ came and began to drown 'B' ,I tried to save 'B' but could not" it is admission and not confession. (2) 'F’ was charged with the murder of 'G' whose corpse was recovered from a well. ‘F' stated that on peeping into the well near the pipal tree a day before the recovery of the dead body he saw the dead body of Gulab floating in it. This was admission but not confession.40 Had he stated that he killed Gulab and threw the dead body in the well it would have amounted to confession. (3) P was charged with having committed murder of N on the night of 10th July, 1969, he stated that the deceased Natesa caused injury on his toe at about midnight on 10th July, 1969 by biting him, this was an admission.41 N was charged with the murder of J in the running train, he stated that he was travelling with the deceased one L entered in the train, he took J into lavatory and began to beat him. I wanted to save him but could not though I received injuries in attempting to save J. Statement is admission not confession.42 Had he stated that he killed J or that he cut the throat of J by knife it would have amounted to be a confession. (4) 'R' was charged with murder of his wife and three daughters. He wrote on a piece of paper that they (the wife and the daughters) were not in this world. This was an admission. Had he stated that I killed them it would have amounted to confession.43 Judicial and extra-judicial confessions.—Confessions have been divided by English text-writers into two classes, namely, judicial and extrajudicial. Judicial confessions.—Judicial confessions are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial ________________________ 37. Ram Singh v. State, AIR 1959 Alld. 518. 38. In re Seshaparo, AIR 1937 Mad. 209. 39. K. Padyachi v. State of Tamil Nadu, AIR 1972 SC 66 ; Nishikant v. State of Bihar, AIR 1969 SC 422. 40. Faddi v. State of M.P., AIR 1964 SC 1850. 41. K. Padyachi v. State of Tamil Nadu, AIR 1972 SC 66. 42. Nishikant v. State of Bihar, AIR 1969 SC 422. 43. State of Assam v. U.N. Ragkhova, 1975 Cr LJ 354.

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confession has been defined to mean "plea of guilty on arrangement (before a tribunal) if made freely by a person in a fit state of mind."44 A is accused of having killed G. He may, before the trial begins confess the guilt before some Magistrate who may record it in accordance with the provisions of Section 164, Cr. P.C. At the committal proceedings before the magistrate or at the trial before Sessions Judge, A may confess his guilt. All these are Judicial confessions. Extra-judicial confessions.—Extra-judicial confessions are those which are made by the accused elsewhere than before a magistrate or in court. An 'extra-judicial confession' can be made to any person or to a body of persons. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. A confession to a private person is extra-judicial. An extra-judicial confession has been defined to mean "a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or Magistrate seized of the charge against himself." A person was charged with the slaughter of a cow which he had stolen. When the report was to be lodged against him a man of the village asked as to why he has committed the crime. He apologized and said "I am very sorry for my action. I may be excused." This is certainly an extra-judicial confession. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may also amount to an extra-judicial confession. Extra-judicial confessions are those which are made elsewhere than before a Court or Magistrate. Extra-judicial confession is generally made before private individuals which includes even judicial officer in his private capacity. It also includes a Magistrate not empowered to record confessions under Section 164 of the Cr. P.C. or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply.45 Extra judicial confessional evidence.—It is not necessary that the witness should speak the exact words but there cannot be a vital and material difference.46 A conviction on the basis of extra judicial confession can be based only after subjecting the evidence of witness, to whom confession was made, to rigorous test on the touchstone of credibility. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.47 Communication to another not essential.—For extra-judicial confession communication to another is not an essential component to constitute 'statement.' The dictionary meaning of the word 'statement' is "act of stating; that which is stated; a formal account, declaration of facts etc." The word 'statement' includes both oral and written statement. An accused overheard uttering to himself or saying to his wife or any other person in confidence makes the statement. He may also utter something in soliloquy. He may a keep a note ________________________ 44. Bala Majhi v. State of Orissa, AIR 1951 Orissa 168 (FB). 45. State of Punjab v. Harjagdev Singh, AIR 2009 SC 2693 at p. 2695. 46. Ajay Singh v. State of Maharashtra, AIR 2007 SC 2188 at p. 2189. 47. Kusuma Ankama Rao v. State of U. P., AIR 2008 SC 2819 at p. 2824.

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in writing. Such statement being an admission of guilt amounts to confession whether it is communicated or not.48 Where the extra-judicial confession was alleged to have been made before two prosecution witnesses, one of whom was the brother of the deceased, there was no reason for the accused to repose faith in him to seek his protection and another witness testified that he was not even acquainted with the accused, the case of the prosecution that the accused had made extra judicial confession was rejected.49 A truthful and voluntary extra-judicial confession made to a stranger for whom there is no reason to state false, cannot be eschewed from being considered.50 In Shiva Karam Payaswami Tewari v. State of Maharashtra,51 the accused who used to prepare spices in a hotel was charged of murdering the deceased, the Manager of the hotel and after breaking open the cash-box stealing Rs. 35,000/- from it. The accused was convicted on the basis of circumstantial evidence, particularly on the ground of extrajudicial confession. The High Court dismissed the appeal. The extra-judicial confession was made to his friend by the accused. However, the conviction under Section 302 of I.P.C. was altered to Section 304 of I.P.C. because assault was made in the course of sudden quarrel without premeditation, the accused being is not armed prior to the assault but he picked up the wooden log lying there and made the assault. Regarding extrajudicial confession, Justice Dr. Arijit Pasayat observed : "Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, Court has to satisfy itself that the same was voluntary and without any coercion and undue influence. Extra-judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the Court should not accept such evidence if actual words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession ________________________ 48. Ajay Singh v. State of Maharashtra, AIR 2007 SC 2188 at p. 2190, Per Dr. Arijit Pasayat J.; Sahoo v. State of U. P., AIR 1966 SC 40; 1966 Cr. LJ 68 referred to. 49. State of Rajasthan v. Kashi Ram, AIR 2007 SC 114 at p. 148. 50. Ram Singh v. Sonia, AIR 2007 SC 1218 at p. 1232. 51. AIR 2009 SC 1692.

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has to be thrown out as unreliable and not useful, that cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may be many who are possessed of normal memory and do so. It is for the Court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied that confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, specific and unambiguous."52 Examples of Confession.—A confession can be excluded when it is made before a police officer. A Village Administrative Officer does not come under it. He does not fall even under the category of Magistrate. Therefore, confession before him amounts to extra-judicial one and is not inadmissible. This may not be treated always to be a weak one. Each case has to be examined on its own facts and circumstances.53 However confession made before two witnesses who were known to the brother of deceased. The evidence was held unbelievable and unnatural as they were neither sarpanch nor a ward member.54 In the instant case, the extra-judicial confession of murder was made to the prosecution witness had been Village Administrative Officer for ten years standing. Where extrajudicial confession is given to the Village Administrative Officer, he is required to go to the scene of occurrence, observe the dead body as well as the scene, to satisfy himself about the truth of the statement given by the person concerned and then prepare the material records, to prepare duplicate of extra-judicial confessional statement, prepare a Yadast which must be sent to the Court by him. The failure on his part to prepare the documents when he was aware of his duty was held to create the doubt regarding the entire case of prosecution.55 In Balwindar Singh v. State of Punjab,56 accused having made confession to one of his relatives. Such person lodging complaints after delay of three to five days, though being social worker, she was with the police for two days in connection with some other case. The confession was held to be surrounded by suspicious circumstances. In Vinayak Shivaji Rao Pd. v. State of Maharashtra,57 the confession was made by accused, an army Sepoi, to his senior. The confession was found to be voluntary. The Senior was not enimical to the accused. The Supreme Court held that minor variation between confession and his evidence did not make confession unreliable. In Ram Khilari v. State of Rajasthan,58 the extra judicial confession was made to relative after 20 days. Delay in recording the statement was explained by investigation officer. Conviction based on this confession was proper. ________________________ 52. Shiva Karam Payaswami Tewari v. State of Maharashtra, AIR 2009 SC 1692 at pp. 1693-1694. 53. Shiv Kumar v. State, (2006) 1 SCC 714; See also State of Rajasthan v. Raja Ram, (2003) 8 SCC 180. 54. State of Rajasthan v. Kashi Ram, AIR 2007 SC 144. 55. State of Tamil Nadu v. Mamatharaj, AIR 2009 SC 1757 at p. 1759. 56. AIR 1996 SC 607.

57. 58.

AIR 1998 SC 1096. AIR 1999 SC 1002.

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An unambiguous extra-judicial confession has got value of high probability because this type of confession is made by that person who had committed the crime and it will be taken into consideration if it is free from doubt and its untruthfulness is free from any doubt. But for confession made about charge in question the court has to satisfy itself that the (extra-judicial) confessions voluntary and the confessions should not have been caused by inducement, threat or promise or the confession should not have been taken under the circumstances which came under the preview of Section 25 or 26.59 Before accepting the extra-judicial confession, it should be seen that it is not made under unfair or collateral notions. For this the court has to enquire all the relevant facts, such as to whom the confession was made, the time and place of making confession and the phraseology used by the accused.60 In a murder case, where the prosecution case hinges upon extra-judicial confession as one of the circumstance, the confession of accused twenty days after the incident and there being no sufficient reason as to why the accused should go to a witness who himself is an accused in another case and make a confession. It was suggested by the defence that the witness was deposing at the instance of police is not without force. It was held that this circumstance is of doubtful nature. The prosecution failed to establish all circumstances by independent evidence to form a complete chain bringing home the guilt to the accused without giving room to any other hypothesis. Therefore the conviction was set aside.61 Distinction between Judicial confessions and Extra-judicial Confessions Judicial Confessions

Extra-judicial Confessions

1. Judicial confessions are those which are made to a judicial magistrate under Section 164, Cr. P. C. or before the court during committal proceeding or during trial.

1. Extra judicial confessions are those which are made to any persons other than those authorised by law to take confession. It may be made to any person or to police during investigation of an offence. 2. Extra judicial confessions are proved by calling the person as witness before whom the extra judicial confession is made. 3. Extra judicial confession alone cannot be relied it needs support of other supporting evidence.

2. To prove judicial confession the person to whom judicial confession is made need not be called as witness. 3. Judicial confessions can be relied as proof of guilt against the accused person if it appears to the court to be voluntary and true.

4. A conviction may be based on judicial 4. It is unsafe to base conviction on extra confession. judicial confession. _____________________

59. 60. 61.

Kishore Chand v. State of H. P., AIR 1990 SC 2140. Ibid. Kailash v. State of U.P., AIR 1994 SC 470.

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Principle underlying Section 24.—The ground upon which confessions are received in evidence is the presumption that no person will voluntarily make a statement which is against his interest unless it be true. But the force of the confession depends upon its voluntary character. There is always a danger that the accused may be led to incriminate himself falsely. Very often the police, while seeking to obtain a character for activity and zeal, harass and oppress prisoners and compel them to make confessions of guilt although they are innocent. Sometimes a prisoner is induced, by hope held out, to confess. Voluntary and non-voluntary confession.—The confession of an accused may be classified as voluntary and non-voluntary. A confession to the police officer is the confession made by the accused while in custody of a police officer and never relevant and can never be proved under Sections 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some Magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be proved against the person making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are made non-voluntarily. In Lokman Shah and others v. State of West Bengal,62 it was held by Supreme Court that voluntariness of confession recorded by Magistrate cannot be doubted. Confession can be acted upon for the purpose of entering conviction. In this case, the confession of the accused showed that accused got himself involved in the episode, that he shared common object of unlawful assembly. In Gulam Husain Seikh Chaughle v. Rynolds Superintendent of Custom,63 the case of appellant was that since the confessional statement was made under inducement, threat or promise, which the High Court declined to accept on the facts emerging from the evidence in the case. There is no escape of this Court to interfere with the order in regard in exercise of Jurisdiction under Article 136 of the Constitution. According to Supreme Court, the statement recorded by custom officer under Section 108 of Customs Act is admissible in evidence. The Court has to test whether the inculpating portion were made voluntary or whether it is vitiated on account of any premises envisaged in Section 24 of Evidence Act. Confession when irrelevant.—If a confession comes within the four corners of Section 24 it is irrelevant and cannot be used against the maker. The ingredients of Section 24.—To attract the prohibition enacted in Section 24 the following facts must be established :

______________ 62. 63.

AIR 2001 SC 1760. AIR 2001 SC 2930.

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(1) that the statement in question is a confession, (2) that such confession has been made by the accused, (3) that it has been made to a person in authority, (4) that the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority, (5) such inducement, threat or promise must have reference to the charge against the accused, and (6) the inducement, threat or promise must in the opinion of the court be sufficient to give the accused ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.64 (1) Confession caused by inducement, threat or promise.—The term of inducement involves a threat of prosecution if the guilt is not confessed and a promise of forgiveness if it is so done. It is very difficult, to lay down any hard and fast rule as to what constitutes inducement. It is for the Judge to decide in every case. An inducement may be expressed or implied, it need not be made to the accused directly from the person in authority. Before a confession can be received as such, it must be shown that it was freely and voluntarily made. This means that the confession must not be obtained by any sort of threat or violence, not by any promise either direct or indirect, expressed or implied, however slight the hope or fear produced thereby, not by the exertion of an influence. The grounds on which confessions made by the accused under promises of favour or threats of injury are excluded from evidence is not because any wrong is done to the accused in suing them but because he may be induced by pressure of hope or fear to confess the guilt without regard to their truth in order to obtain relief or avoid the threatened danger. Thus it is clear that if threat or promise from persons in authority is used in getting a confession it will not be taken into evidence. Every threat or inducement may not be sufficient to induce the accused to confess a guilt. The proper question before excluding a confession is whether the inducement held out to the prisoner was calculated to make his confession untrue one. The real enquiry is whether there had been any threat of such a nature that from fear of it the prisoner was likely to have told an untruth. If so, the confession should not be admitted. Confession recorded on oath.—If any person in authority records the confession of an accused on oath, the statement becomes non-voluntary. Giving oath to the accused would by itself amount to a concealed threat because if the statement was found to be false, the appellant may have entertained a genuine belief that he might be prosecuted.65 It appears to the court.—An important question arises to the meaning of the words "appears to the court". The use of the word "appears" seems to show that this section does not acquire positive proof, "within the definition of Section 3," of improper inducement to justify the rejection of the confession.66 ______________ 64. 65. 66.

Veera Ibraham v. State of Maharashtra, AIR 1976 SC 1168. Brij Lal v. State of M.P., AIR 1979 SC 1080. R. v. Baswanta, 25 Bom. 68.

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The word "appears" indicates a lesser degree of probability than the word "proof". When once the voluntary character of a confession is challenged by the defence, the Judge could make a thorough inquiry whether in fact the confession was voluntary.67. The inference of the nonvoluntariness may be suggested by the confession itself or by the evidence of the prosecution or by the evidence adduced by the accused person or by the surrounding circumstances which the court is always bound to take into consideration. A confession, may appear to the Judge to have been the result of inducement on the face of it and apart from direct proof of that fact. A court might perhaps in a particular case fairly hesitate to say that it was proved that the confession has been unlawfully obtained, and yet might be in a position to say that it appears to the court had been so obtained.68 As said above that section does not require proof. Wellgrounded conjecture is insufficient and if there is a doubt then the prosecution must satisfy the court that the confession was voluntary.69 To reject a confession it is not necessary that there should be a positive proof to establish that the confession was obtained by use of threat, etc. Anything from a best suspicion to positive evidence would be enough for confession being rejected.70 If the circumstances create a probability in the mind of the court that the confession was improperly obtained it should be rejected.71 "It appears" means "it seems".72 The burden of proof.—In case of an ordinary confession there is no initial burden on the prosecution to prove that the confession sought to be proved is not obtained by inducement, threat, etc. It is the right of the accused to have the confession excluded and equally the duty of the court to exclude it even suo motu.73 In the absence of an evidence to show that any threat, promise or inducement was made to the accused and when he had continuously questioned all the time but only at intervals during the period the mere fact that it took two or three hours from the time that the accused was brought to the house of the Mukhia to the time when he made the confessional statement cannot make his confession one other than free and voluntary.74 It is idle to expect that an accused should produce definite proof about beating or pressure. But he must point out some evidence or circumstance on which a well-sounded conjecture at least, that there was beating or pressure may reasonably be based.75 (2) Inducement must have reference to the charge.—The inducement must have reference to the charge against the accused person, that is the charge of offence in the criminal courts and inferencing the mind of the

______________ 67. 68. 69. 70. 71. 72. 73. 74. 75.

Nasir v. Emperor, AIR 1933 All. 31. R. v. Baswanta, 25 Bom. 1683; Raggha v. R, AIR 1925 Alld. 627. R. v. Panchkawari, AIR 1925 Cal. 587 ; Ms. Bhagwant v. State, AIR 1955 Pepsu 33 ; Ms. Bhukkhin v. Emperor, AIR 1948 Nag. 344. Raggha v. Emperor, AIR 1925 All. 627 (FB). Nazir v. Emperor, AIR 1933 All. 31. Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094. Bala Majihi v. The State of Orissa, AIR 1951 Orissa 168 (FB). Ratan Govind v. State of Bihar, AIR 1959 SC 18. Roshan Lal v. Union of India, AIR 1965 HP 1.

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accused with respect to the escape from the charge. The inducement must have reference to escape from the charge. Mere exhortation to speak the truth in name of God cannot in itself amount to an inducement.76 M, K, were threatened in a Panchayat of their castefellows that they would be excommunicated from caste for life if they did not tell whether they murdered B. Upon this they confessed the guilt, which was afterwards sought to be proved against them on their trial for the murder of B as confessions. It was held that there was no threat made having reference to any charge against them. The inducement must have been made for the purpose of obtaining a confession of the offence, the subject of that charge. It must reasonably imply that the prisoner's position with reference to the particular charge will be rendered better or worse, accordingly as he does or does not confess, and if the inducement be made as to the one charge, it will not affect the confession as to a totally different charge. An inducement relating to some collateral matter unconnected with the charge will not exclude a confession. Thus promise to give the prisoner a glass of spirits or to strike his handcuffs or to let him see his wife will not be a bar to admissibility of the confession. Express or implied.—The inducement need not be necessarily expressed. It may be implied from the conduct of the person in authority, from the declaration of the prisoner or the circumstances of the case. Similarly it need not be made to the prisoner directly ; it is sufficient to have come to his knowledge provided it appears to have induced to confession. (3) Threat, inducement and promise from a person in authority.— The threat, inducement and promise on account of which, the accused admits the guilt must come from a person who has got some authority over the matter. To be clear the person giving different promises, threatening the accused or inducing him to make the confession must be a person in authority.77 If a friend of the accused induces him to make a confession or a relation if he makes him a promise that if he confesses he will get him released or even if he threatens him and the accused on that account admits his guilt this statement will not be excluded by Section 24 as the threat, inducement or promise do not emanate from a person in authority. Accused induced by his own belief.—If the accused makes the confession thinking that by so doing the authorities would soften the attitude towards him the confession cannot be said to be non-voluntary.78 Person in authority.—The term "a person in authority" within the meaning of Section 24 was held to be one who has authority to interfere in the matter charge against the accused. If this definition is to be accepted that term "a person in authority" would mean only the police who are in charge of the investigation and the magistrate who is to try the case. This view appears to be too restrictive. It appears that a person in authority within the meaning of Section 24 should be one who by virtue of his position wields some kind of influence over the accused so a Patel was to be a person in authority.79 ______________ 76. 77. 78. 79.

Chaman Lal v. State of J. and K., 1976 Cr LJ 1310. Pyare lal v. State of Rajasthan. AIR 1963 SC 1094. R. K, Dalmia v. Delhi Administration, AIR 1962 SC 1821. Motilal v. Kailash Narain, AIR 1960 MP 132.

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The term ‘a person in authority' includes master of the accused, the zamindar of the accused or any other person wielding some influence over the accused. A mukhia of a village or a ziledar serving in a great estate is a person in authority within the meaning of Section 24. This is more specially so if these persons are closed with the further authority from the investigating officer deputing them to arrest the accused person.80 A supervisor, Post-Raid Information Service was held to be a person in authority.81 The President of a village Vigilance Committee is a person in authority.82 Village numberdar whose duty is to make report of cognizable cases.83 It must be borne in mind that a person in authority is one who exercises some influence or authority. It would be doing violence to the terms of Section 24 to hold that a co-villager who does not exercise any influence or authority, in the village is a person in authority.84 The question as to whether a person to whom a confession has been made is a person in authority would naturally depend on the circumstances of each case having regard to the status of the accused in relation to the person before whom the confession is made. A house surgeon of the hospital is a person in authority in relation to nurse of the same hospital.85 (4) Sufficiency of the inducement, threat or promise.—Before a confession is excluded, inducement, threat or promise would in the opinion of the court be sufficient to give the accused person ground which would appear to the accused (and not the court) reasonable for supposing that by making the confession he would gain an advantage or avoid an evil of the nature contemplated in the section. Consequently the mentality of the accused has to be judged and not that of the person in authority. That being the case, not only the actual words, but words followed by acts or conduct on part of the person in authority, which may be taken by the accused person as amounting to an inducement, threat or promise, will have to be taken into account. A perfectly innocent expression, coupled with acts or conduct on the part of the person in authority together with the surrounding circumstances may amount to inducement, threat or promise.86 It does not turn upon as to what may have been the precise words used ; but in each case, whatever the words used may be it is for the judge to consider whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime, or worse for him if he does not." The expressions, "What you say will be used as evidence against you", will not exclude a confession. On the other hand, expressions "you had better pay the money, than go to jail", "If you do not tell the truth I will send for the constable

______________ 80. 81. 82. 83. 84. 85. 86.

Ram Din v. Emperor, AIR 1948 All. 101. Ganga Prasad Gupta v. Emperor, AIR 1945 Cal. 360. In re Battu Sathalvendan, AIR 1939 Mad. 515. Bhason v. State of Pepsu, AIR 1958 Pepsu 33 ; P. Rustamji v. State of Maharashtra, AIR 1971 SC 1087. Emperor v. Kutub Bux, AIR 1930 Cal. 633. Viranwally v. State, AIR 1961 JK. Emperor v. Panchkauri, AIR 1925 Cal. 587; Pyare Lal v. State of Rajasthan, AIR 1963 SC 1097.

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to take you". "If you tell me where my goods are I will be favourable to you". "If you confess the truth nothing will happen to you." "The watch has been found and if you do not tell me who your partner was I will commit you to prison", "I will get you released if you tell the truth", have been held to be sufficient to give the accused grounds for supposing that by making the confession he would gain an advantage or avoid an evil. The Advantage to be gained or the evil to be avoided.—As mentioned above the inducement, threat or promise would in the opinion of the court be sufficient to give the accused person grounds which would appear to the accused person reasonable for supposing that by making the confession he would gain advantage or avoid an evil. It must be borne in mind that the advantage to be gained or the evil, to be avoided must be of a temporal nature ; therefore any inducement having reference to a future state of reward or punishment does not affect the admissibility of confession. A confession will not be excluded which has been obtained by the accused by moral "or religious exhortation.87 The expressions "you had better as good boys tell the truth". "Kneel down and tell me truth in the presence of the Almighty", "Do not run your soul in more sin but tell the truth", do not give out any temporal gain and so the confession derived on these confessions are not excluded by Section 24. Confession obtained on the allegation by the panches that if the accused does not confess he shall be excommunicated will not exclude the confession. It should be borne in mind that the gain or evil must be in reference to the proceeding against him. Accused person.—The expression "made by an accused person" in the section includes, any person who subsequently becomes accused, provided that at the time of making the statement criminal proceedings were in prospect. Section 24 of the Evidence Act would apply even if the person who is said to have made the confession was not an accused person at the time when he made the confession. A person who afterwards becomes an accused may have made the confession. It is sufficient if the person ultimately comes to be an accused person with reference to the charge in respect of which he is said to have made statements amounting to confession and such confession would be controlled by Section 24. The test which has to be applied in deciding whether Section 24 applies is the position of the person at the time when it is proposed to prove the admission and not position at the time when he is alleged to have made it. A confession, therefore, made to police officer by a person when he is not accused of an offence is inadmissible in evidence against him when he is accused of an offence. A dacoity is committed in the house of one Mohan. Nobody is identified to have committed the crime. The police arrests one Sohan. He is assaulted by the police very severely and he is threatened that if he does not admit to have committed the crime his limbs will be cut off. Sohan admits that he committed dacoity. Till the time of confession there was no case against him. As the statement was made under threat, it is not admissible as laid down in Section 24 of the Evidence Act. The expression 'accused person' in Section 24 describes the person against whom evidence is sought to be led in a criminal proceeding. It does not predicate a formal accusation against him at the time ______________ 87.

In re Karumari China Mallayya, AIR 1948 Mad. 324.

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of making the statement sought to be proved as a condition of its applicability.88 Confession must be voluntary and true.—The confession is really a very valuable piece of evidence. If the person charged with an offence admits the guilt, certainly he can be convicted on that basis. Before a confession can be a basis of conviction the courts have to come to the conclusion that (1) the confession was made voluntary, (2) that it is consistent, and true.89 A confession which is inconsistent and untrue will not be enough for conviction of a person making the confession. There are two stages, (1) admitting the confession in evidence and (2) convicting on it. If it appears to the court that the confession was not made voluntary it will be inadmissible in evidence and it will not be brought on record and, if by mistake it is brought on record it cannot be looked into. A confession cannot be used against an accused person unless the court is satisfied that it was voluntary and while the court is considering this question, the question whether it is true or false does not arise. It is abhorrent to the notions of justice and fair play, and is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntary and unless he realises that anything he says may be used against him, and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate if the fear was still operating on his mind at the time when he makes the confession and if it would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Even if it is proved that the statement was made voluntarily, and even if it is proved and the court is competent to read it, the court cannot base its conviction on such confession, if his confession is inconsistent and seems to be false. When the confession is wrong in material particulars it is difficult to hold that the rest of the confession is true. And it has been laid down that it is very unsafe to rely on such confession. Where the accused stated that he had strangulated the deceased but the medical examination found no marks of strangulation the confession was not relied upon.90 If there is no reasonable doubt that the confession is voluntary and genuine, it is legal, and sufficient proof of guilt, under ordinary circumstances. It must be repeated that before accepting a confession it must be scrutinized to find out whether it is true, or not. In Harold's case,91 their Lordships of the Privy Council have laid down : "Confessions are not always true, and that they must be checked, more particularly in murder cases in the light of the whole of the evidence on the record in order to see if they carry conviction. It would be dangerous in the extreme to act on a confession put into the mouth, of the accused by the witness, having motive for implicating some one, and uncorroborated

______________ 88. 89. 90. 91.

State of U.P. v. Deoman Upadhyay, AIR 1960 SC 1125. Subrata Kumar v. Dipti Banerjee, AIR 1974 Cal. 61 ; Shankaia v. State of Rajasthan, 1978 Cr LJ 1251; Dendra Pasad v. State of U.P., 8 Cr. LJ 1614; State of M. P. v. Daya Ram, AIR 1981 SC 2007 ; Sewanti Lal v. State of Maharashtra, AIR 1979 SC 705. Jagmul v. Emperor, AIR 1948 All 211. Harold v. King, AIR 1945 PC 181.

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from another source." Thus we see that though there is no legal bar for convicting an accused person on the sole testimony of his own confession but it has been held to be the rule of prudence not to base the conviction of the accused on his confession unless and until there is more corroboration by some in dependent evidence. It means that besides the statement of the accused admitting his guilt there must be some sort of evidence on the record to show that he committed the crime. Let us take an example : A is charged of murder of B. He makes a confession that "on the night between the 19th and the 20th June, 1945, I entered the house of the deceased when she was away, by breaking the lock, I waited there till 11 a.m. the next day and in the day time when the deceased went up stairs to sweep the room I pounced upon her and killed her with a dagger and took away her ornaments. This statement does not seem to be true. The story has some inherent improbabilities and seems to be untrue. Why the woman, when she came to the house and found her house open, did not make any hue and cry ? And again why the accused waited up to the next day and did not kill her in the night ? "It must be established that a confession is voluntary and also that it is true. For the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case."92 In Ram Chand v. State of U.P.,93 it has been observed, "the confession in this case was not safe to be acted upon, at least, in so far as the commission of murder was concerned. We are not satisfied that the murder, if any, had been committed at the time and the place and in the manner indicated in the confession and hence the accused whether entitled to the benefit of doubt." Points to be determined—Voluntariness of confession recorded.—A judicial confession is recorded under Section 164 of the Criminal Procedure Code. A magistrate before recording a confession must explain the person making it that he is not bound to make confession and that if he does so confession may be used against him. Besides these two points the magistrate must give some time to the accused and keep him out of the police custody before recording his confession. It would naturally be difficult to lay down any hard and fast rule as to the time which should to be allowed to an accused person in any given case before recording his confession. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that accused has been persuaded or coerced to make a confession, even longer period may be given to him before his confession is recorded.94 The object of giving such time for reflection to the accused is to ensure that he is completely free from police influence, if immediately before recording of the confession the accused was in judicial custody beyond the reach of the investigating police for some days, then such custody from its nature may itself be a factor dispelling fear or influence of police from the mind of the accused. In such a case it may not be necessary to send back the accused for any prolonged period to jail or Judicial lock up before

______________ 92. 93. 94.

Swaran Singh v. State of Punjab, AIR 1957 SC 637. AIR 1957 SC 381. Swaran Singh v. State of Punjab, AIR 1957 SC 637 : 1957 Cr L.J. 1014.

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recording his confession.95 Another precaution to be taken by the magistrate is that he should not hand over the accused to the custody of the police if he says that he is not willing to make confession. Confession as a whole.—It has been laid down that where the confession is the only evidence and there is no other evidence incriminating the accused, the confession must be taken as a whole. That is to say that if the statement of the accused is such that a part of it incriminates him whereas the other part of it exculpates him from the liability, the court is not free to take that part only which brings the guilt home to the accused and exclude the other part of it. The court is bound to consider the whole of the statement made by the accused. It was held : "Where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false the courts must accept or reject the confession as a whole and cannot accept only exculpatory element while rejecting the exculpatory element as inherently incredible".96 Their Lordships of the Supreme Court have held that confession and admission must either be admitted as a whole or rejected as a whole and the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.97 In this case the lady stated that the husband took poison by mistake and died and that she out of fear put his body in a trunk and threw it into a well. The lower court relied upon the latter part of her statement and she was convicted under Section 201, I.P.C., for destroying the evidence of an offence by throwing the body into a well. But the first part of her statement that the death of her husband was accidental exonerated her of any offence and if that is taken into consideration no offence under Section 201, I.P.C. is made out. Their Lordships held that admission or confession must be taken as a whole and the judgment of the lower court was set aside. Similarly in Hanumant's case,98 it has been laid down that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. There are two exceptions to the rule that confession should be taken as whole : (i) It is permissible to believe one part of confessional statement which is inculpatory if there is other evidence to prove its correctness.99 (ii) If the exculpatory part of the statement is inherently improbable it may be rejected and inculpatory part may be admitted.1 But it should be borne in mind that when the statement of the accused contains inculpatory and exculpatory statement the accused is entitled to insist that the entire statement including exculpatory part must be tendered in evidence, but this principle is of no ______________ 95. 96. 97. 98. 99. 1.

Abdul Razak v. State of Maharashtra, AIR 1970 SC 283; Shankaria v. State of Rajasthan, 1978 Cr LJ 1251: AIR 1978 SC 1247. Balmukund v. Emperor, AIR 1931 All. 1 (FB) and A Nagesia v. State of Bihar, AIR 1966 SC 119. Palvinder Kaur v. State of Punjab, AIR 1952 SC 354. Hanumant v. State of M. P., AIR 1952 SC 343. Bhagwan Singh v. State of Haryana, 1976 Cr LJ 1378 : AIR 1976 SC 1979. Nishikant v. State of Bihar, AIR 1966 SC 422 ; H.H. Advani v. State of Maharashtra, AIR 1971 SC 44 ; Mohan Lal v. Ajit, AIR 1979 SC 1183.

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assistance to the accused where no part of statement is self-exculpatory. In such cases the court may rely on a part of the confession,2 and reject the other. Bhagwan Singh appellant was working as sub-Postmaster in Sohana Post Office, in leave vacancy of Raghu Ram. Navtej Singh delivered parcel containing a wrist watch, the watch was not received by the addressee. A complaint was filed by the addressee to postal authority and an enquiry was made. During the enquiry the appellant himself recorded a statement in his own handwriting. He admitted that he was working as sub-Postmaster at Sohana Post Office on 21st March when a Sikh boy (Navtej Singh) came to the Post Office and delivered a parcel under postal certificate. The appellant also admitted that the parcel was opened by Tej Ram (Post Office packer) and that Tej Ram took out a wrist watch from it and gave it to him. These were inculpatory statements. Appellant however stated that he had asked Tej Ram not to open the parcel but he opened it without his consent. The inculpatory part of the statement of the appellant was corroborated by other satisfactory evidence on the record in the material particulars. Consequently the inculpatory part of the statement was admitted and exculpatory part was rejected.3 Nishi Kant who was student of a school in Jha Jha was charged with murder of a fellow student of the same school on 12th October, 1961. The case of the prosecution was as follows : When the Barauni Sealdah passenger train reached Madhupur Station the dead body of a person was discovered in the lavatory of the first class compartment, the dead body was found with the neck cut and besmeared with blood and there was plenty of blood on the floor of the lavatory. The appellant was noticed by one Ram Kishore Pandey washing blood-stained clothes with soap one hour before sun set on 12th October, 1961. Pandey noticed that the left hand of the appellant was cut. Being questioned about the injury the appellant said that when he was coming from the side of Gangamarni a cowboy assaulted him and cut his finger with glass. Rumour was afloat in village that a murder has been committed in Barauni train and murderer was missing. Nishi Kant the accused, was suspected of murder he was chased and arrested and was brought before Mukhia where he stated, "when I boarded first class compartment in Barauni Passenger at Jha Jha, an unknown, person was sitting in it. When the train reached near Simultala, Lal Mohan Sharma entered into that compartment. When train stopped at Jasedeeh station and when I wanted to get down Lal Mohan Sharma did not allow me to get down. When train moved ahead Lai Mohan Sharma took that outsider in the lavatory and began to beat him. At this I caught hold of his hand as a result of which my left forefinger got injured with knife. Then, on being afraid I sat quietly in that compartment. He further said, that I should not open the window and door. At that very time, he killed him. When the train was reaching near Mathurapur Lal Mohan Sharma jumped down from running train and fled away. I also jumped down on ______________ 2 3.

A. Nagesia v. State of Bihar, AIR 1966 SC 119 ; Ram Chandra v. State of U.P., AIR 1957 SC 381 ; Keshva Ram v. State of Assam, AIR 1978 SC 1096. Bhagwan Singh v. State of Haryana, AIR 1976 SC 1797.

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the other side near Madhupur and fled away because I apprehended that I j would be the person who would be arrested. A blood stained knife was recovered from accused and his books were also . found besmeared with blood. In this statement the inculpatory part was admitted and the exculpatory part was rejected. It was observed by their Lordships of the Supreme Court that the exculpatory part of the statement was not only inherently improbable but was contradicted by other evidence. According to his statement, the injury which appellant received was caused by the appellant's attempt to catch-hold hand of Lai Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused under Section 342, Cr. P.C. (313 now) to the effect that he had received injuries in a scuffle with a herdsman, the injury found on his person negative both of these versions. Neither of these versions accounts for the profuse bleedings which led to his washing his clothes and having bath in river, the amount of bleeding and washing of blood stained clothes so considerable as to attract the attention of Ram Kishore Pandey. The bleeding was not a simple one as his all clothes got stained with blood and also his books, his exercise books, his belt and his shoes. The knife that was recovered from his person was stained with human blood and it could have been the cause of injury on the victim. In circumstances the exculpatory statement which was inherently improbable and was contradicted by other evidence was rejected and the inculpatory statement was admitted.4 One Ram Chandra was convicted for having committed various offences i.e. 302, 364, 368 and 201, I.P.C. The case against him was that he along with six others conspired to extort a sum of Rupees 10,000 from Chauhan by kidnapping and murdering his son Om Prakash. The accused made a confession, in his confession he made two part of inculpatory statement, in the first part he made the statement about the story of kidnapping the boy by himself, and other accused, in the second part he confessed the manner in which he and other accused committed the murder of the boy. The court rejected the confession in respect of murder as it did not appear to be true, but it admitted confession in respect of kidnapping of the boy.5 According to prosecution Kalinath Bora was uprooting pulses from his land when accused Kesho Ram Bora and some others reached there and attacked him. Kalinath fell down and afterwards died. The accused stated in his statement under Section 342, Cr, P.C. (313 now), "Rahim and Mohammad were ploughing in our land Kalinath came there and chased me, raising a dao to assault me as soon as he came near to me by raising dao, I having found no means started assaulting him with holanga taken for bringing paddy. After a little he fell down." In this case the prosecution case was also that the accused assaulted Kalinath with holanga. The court accepted the inculpatory part of the statement of the accused to the effect that he assaulted Kalinath with holanga and rejected the other part to the effect that the accused assaulted Kalinath in his own field in exercise of right of self-defence which was ______________ 4. 5.

Nishikant v. State, AIR 1969 SC 422. Ram Chand v. State of U.P., AIR 1957 SC 381.

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exculpatory. It was held that where a confession or admission is separable in parts there can be no objection to taking one part into consideration which appears to be true and reject other parts which are false.6 EVIDENTIARY VALUE OF CONFESSIONS Value of judicial confession.—Judicial confessions should be distinguished from extra-judicial confessions. It may be doubted whether a conviction can be based solely upon an extra-judicial confession but there is no reason for hesitating to base conviction on a judicial confession. A case where there is no proof of corpus delicti must be distinguished from another where that is proved. In the absence of the corpus delicti a confession alone may not suffice to justify conviction.7 A confessional statement made by the accused before a Magistrate is a good evidence and accused be convicted on the basis of it.8 A confession can obviously be used against the maker of it and is in itself sufficient to support his conviction.9 Rajasthan High Court has also held that the confession of an accused person is substantive evidence and a conviction can be based solely on a confession.10 If it is found that the confession was made and was free, voluntary and genuine, there would remain nothing to be done by the prosecution to secure conviction. If the court finds that it is true that the accused committed the crime, it means that the accused is guilty and the court has to do nothing but to record conviction and sentence him. No question of corroboration of confession arises in a case. Even if there is corroboration the court's finding would still be the same, e.g., that it is true that the accused committed the crime. If the finding remains the same it is evident that the corroborative evidence was quite redundant. Corroborative evidence certainly does not add to the efficacy of the finding of guilt at all.11 "Normally speaking, it would not be quite safe, as a matter of prudence if not of law to base a conviction for murder on the confession of the alleged murder by itself and without more. It would be extremely unsafe to do so when the confession is open to a good deal of criticism and has been taken in the jail without adequate reason and when the story of murder as given in the confession is somewhat hard to believe."12 The above observation was made by the Supreme Court in the case of retracted confession and therefore it cannot be said to be good law in the case of a judicial confession not retracted. Moreover in that case the confession relied upon did not appear to be voluntary and true. Thus it may be submitted that the view taken by Desai, J., as then he was, in Birey's case is the correct one. ______________ 6. 7. 8. 9. 10. 11. 12.

Keso Ram v. State of Assam, 1978 Cr LJ 1089 : AIR 1978 SC 1096. Birey Singh v. State, Cr. App No. 1065 of 1950, decided on 25th September, 1951 (All). Emperor v. Lal Baksha, AIR 1945 Lah 43. Sharif v. Emperor, AIR 1944 Lah 472. State v. Balchand, AIR 1960 Raj 101. Birey Singh v. State, Cr Appeal No. 1065 of 1950, decided on 25th September, 1951 (All). Ram Chandra v. State of U.P., AIR 1957 SC 381.

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Now the settled law is that a conviction can be based on confession only if it is proved to be voluntary and true.13 If corroboration is needed it is enough that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is enough.14 Extra-judicial confession.—Extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which support his statement, should not be believed.15 The value of extra-judicial confession.—The evidence of extrajudicial, confession is a weak piece of evidence.16 The extra-judicial confession must be received with great care and caution. It can be relied upon only when it is clear, consistent and convincing. The court has to decide whether the person before whom the admission is said to have been made are trustworthy witnesses. The extra-judicial confession is open to the danger of mistake due to the misapprehension of the witness before whom the confession was made, to the misuse of the words, and the failure of the party to express his own meaning. This is also open to another sort of danger. There being no record, and there being no sanction behind, it is very easy for the prosecution to catch-hold of any witness who may come and depose that the accused admitted his guilt in his presence on some particular time. Due to those reasons it is very dangerous for courts to base conviction on the sole basis of extra-judicial confessions. It may be relied upon only when it is very clear and convincing and the truthfulness of the witness is proved beyond any doubt or when it has been corroborated by other evidence on the record. It has been very rightly observed : "The only real difficulty is in the proof of the fact that an alleged extra-judicial confession has been made. Such a fact is proved by somebody's testimony. Such testimony is often furnished by paid informers, treacherous associates angry victims and overzealous officers of law. As regards testimony of these persons the suspicion of the court is aroused and its caution is stimulated."17 Usually and as a matter of caution courts require some material corroboration to an extra-judicial confessional statement, corroboration which connects the accused person with the crime in question.18 A confession made before a classmate and ex-schoolmate who also used to live close to each other, was clear, cogent and appeared to have been made in the normal course without any pressure, hence was held to have been unjustifiably discarded by trial Court.19 When the attempt is made to rely upon an extra-judicial confession, every precaution should be taken to ascertain as exactly as possible the very words

______________ 13. 14. 15. 16. 17. 18. 19.

Darshan Lal v. State of J. & K., AIR 1975 SC 858. Madi Ganga v. State of Orissa, 1981 Cr LJ 628 (SC). Ram Singh v. State of U.P., AIR 1967 SC 152. State of Punjab v. Bhagwan Singh, 1975 Cr. L.J. 282 : AIR 1975 SC 258 ; Indir Kumar V. State of Tripura, 1992 Cr. L. J. 13. Hawaldar v. Emperor, AIR 1932 Oudh 324. Bhagwat Gond v. State of Bihar, AIR 1959 SC 18 ; Aneppa v. State of Karnataka, 1978 Cr LJ 462. Vilas Pandurang Patil v. State of Maharashtra, AIR 2004 SC 3562.

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used by the prisoner. Extra-judicial confessions have to be received with great care and caution, and when the foundation of the conviction is the confession alleged to have been made by the accused, there are three things which the prosecution must establish. First, that a confession was made, secondly, that evidence of it can be given that is to say that it was voluntary, and thirdly, that it is true. Such a confession must be proved by an independent or satisfactory evidence.20 In State of Karnataka v. A.B. Nag Raj,21 there was allegation that the deceased girl was killed by her father and step-mother in National Park. The alleged extra judicial confession was made by accused during detention in forest office. No mention of said confession in report given to Police nor any witness present there mentioning about the same confession. This extra judicial confession cannot be relied on. An extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence convicting the accused. The confession is to be proved like any other fact. The value of the confession depends upon the veracity of the witness to whom it is made. It is true that the court requires the witness to give actual words used by the accused as nearly as possible, but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given.22 It is for the court having regard to the credibility of the witness, his capacity to understand the language in which the accused made confession to accept the evidence or not. A mere general statement to the effect that the prisoner had confessed is too uncertain a foundation to sustain a finding against him.23 In Kishan Lal v. State of Rajasthan,24 it was held by Supreme Court that before the (extra judicial) confession can be relied on it must be proved that it is clear and unequivocal. In this case, the alleged confession made by large number of persons before Panchayat was more in general and vague form therefore no reliance could be placed on such confession. In State of Karnataka v. M.N. Ram Das,25 the extra judicial confession was made to a stranger which falsely implicated accused. Respondent was charged of committing murder of his companion at a room in a Lodge. Extra judicial confession was made by an accused to the witness who was friend of proprietor of Lodge who had come to stay in the lodge during relevant period. Factum of compensation was brought to the knowledge of owner of lodge. The Police sen after came. Conduct of accused committing murder and remaining in the lodge after incident and immediately relieving this fact to stranger though not ordinarily consistent with ordinary human conduct, did not necessarily shake credibility of witness who spoke for such confession. Moreso, it was corroborated by circumstantial factor and by evidence of other witness who had no reason to falsely implicate the accused. ______________ 20. 21. 22. 23. 24. 25.

Gayaprasad v. State, AIR 1957 All. 459. AIR 2003 SC 666. Mulk Raj v. State of U.P., AIR 1959 SC 902 ; See also AIR 1960 Mad. 187. Angnu v. State, 1960 ALJ 28. AIR 1999 SC 3062. AIR 2002 SC 3109.

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In such confessions, the question whether the accused did make the confession or not is to be considered.26 Usually, as a matter of caution courts require some material corroboration which connects the accused with the crime.27 Evidence about extra-judicial confession is a weak kind of evidence.28 If it is not probable it must be rejected.29 Now the settled law is that the law does not require that evidence of an extra-judicial confession must be corroborated in all cases. Where the extra-judicial confession is proved by an independent witness who bore no animus against accused it may be basis of conviction without corroboration.30 If the court believes the witnesses before whom the confession is made and if it is proved to be voluntary, conviction can be based on confession alone.31 The accused was a resident of Kerala. He was a clerk in Cash Office of Central Railway at Jhansi. One V.S. Radha Krishnan Nair was friend of the accused. The wife of the accused was seriously ill and she was admitted in a hospital. A minor operation was performed on her. While the wife of accused was hospitalised the accused left his two minor children with Nair. After the minor operation, it was revealed that she had tumour in the uterus and a major operation which may cost around Rs. 600 was considered necessary. After consulting with Nair, it was decided that the wife of accused be taken to Kerala for arranging the major operation. The accused had to pay to the hospital concerned Rs. 206 in all. He had no money. Somehow arrangement was made for Rs. 206, the wife was brought to home from hospital. On the way respondent picked up the two children from the house of Nair. The accused requested Nair to send his wife to his house to look after his ailing wife. On 27th February, 1973 at 10.00 a.m. Nair went to the house of the accused with wife and children. They knocked the door but no response. Through the back door people entered the house and they saw the wife of accused and two children were lying on the ground and their clothes were besmeared with blood. They were declared dead by the doctor. On March 1, 1973 at about 7-15 a.m. Nair went to the home of accused and while they were discussing how the tragedy occurred in the course of which Nair stated that whoever was responsible for the murder of such charming dear children would not be forgiven by God. At that stage the accused started weeping, got up and went near the Photo of Jesus Christ, muttered something and confessed to Nair in Malayalam language in the following words : "My wife had fatal disease. I was in trouble without money. Just now I would have required Rs. 600/- for operation. I was already debated. I already borrowed Rs. 200 from you and could not get help any more from others. Therefore I murdered my wife and children." It was argued ________________ 26. 27. 28. 29. 30. 31.

In re Venal. AIR 1970 Mad. 298. Ram Singh v. State of U.P., AIR 1967 SC 152 ; Thimmia v. State of Mysore, AIR 1971 SC 1871. State of Punjab v. Bhajan Singh, 1975 Cr LJ 282. Jagta v. State of Haryana, AIR 1974 SC 1545. State of Rajasthan v. Mangi Lal, 1981 Cr. LJ 852 ; Piara Singh v. State of Punjab, AIR 1976 SC 2274 ; 1974 Cr LJ 1941 ; Darshan Lal v. State of J.K., AIR 1975 SC 858 ; Magher v. State of Punjab, AIR 1975 SC 1320 ; State of U.P. v. M.K. Anthony, AIR 1985 SC 48. Magher Singh v. State, 1975 Cr LJ 1102 ; Darshan Lal v. State of J. & K., 1975 Cr LJ 773 ; AIR 1975 SC 858 ; Piara Singh v. State of Punjab, 1977 Cr LJ 1941 (SC) ; State of Rajasthan v. Mangi Lal, 1981 Cr LJ 852.

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that conviction could not be had on the extra-judicial confession. It was held that the evidence of the witness read as a whole had a ring of truth. The witness being a friend and a well-wisher of the family of accused there could be no hesitation in accepting his testimony.32 An unambiguous extra-judicial confession is admissible in evidence provided it is free from suspicion and suggestion of its falsity but in case of extra-judicial confession the court has to be satisfied that it is voluntarily and does not appear to the result of inducement, threat or promise or was brought about in suspicious circumstances to circumvent Sections 25 and 26.33 Circumstances to be considered in testing the veracity of extrajudicial confession.—Before relying on extra-judicial confession, it must be considered whether the confession was really made. It should also be considered as to why the accused reposed confidence in the witnesses stating about the confession. It was alleged that the accused made confession to a witness who was the widow of one of the conspirators and was helping her husband in making spears and other weapons. It was held that the confession was not reliable.34 In Surindar Kumar v. State of Punjab,35 where the accused persons were alleged to have confessed to a person not related or connected with them, it was held to be improbable that all the accused confessed at one and the same time. The person to whom the confession was made did not disclose it to the wife of the deceased though he was close to the family of the deceased. Allegation that he had disclosed the confession to the police officer was not corroborated. It was held by the Supreme Court that this extra judicial confession was not trustworthy. In C.K. Ravindran v. State of Kerala,36 the prosecution witness failed to reproduce extra judicial confession made to him in exact words or even in the words as nearly as possible and further his statement showed that he consumed liquor along with the accused and therefore the accused discussed entire incident to him. It was held by the Supreme Court that the statements of the accused could not be said to be voluntary and truthful one. On the other hand, it was outcome of consumption of liquor by both the witness as well as accused. Retracted confession—Meaning of.—A retracted confession is a statement made by an accused person before the trial begins, by which he admits to have committed the offence, but which he repudiates at the trial. After the commission of a serious offence some police officer makes investigation into the matter, examines witnesses and the accused. If in his opinion the accused is proved to have committed the offence, he submits a report (charge-sheet) to a magistrate having jurisdiction in the matter. The court takes evidence and examines the accused. If during the investigation, the ________________ 32. 33. 34. 35. 36.

State of U.P. v. M.K. Anthony, AIR 1985 SC 48. Kishore Chand v. State of H.P., AIR 1990 SC 2140 ; Baldeo Raj v. State of Haryana, 1990 Cr. L.J. 2643 (S.C.). Kanan v. State of Kerala, AIR 1979 SC 1127. AIR 1999 SC 215. AIR 2000 SC 369.

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accused on being examined by the police officer is willing to admit the guilt, the police officer sends the accused to some magistrate for recording his statement. The magistrate after being satisfied that the accused is making the statement voluntarily, takes his statement. If the accused admits in his statement to have committed the offence, this recorded statement by the Magistrate may be proved at the trial. When the trial begins the accused on being asked as to whether he committed the crime, he may say that he did not commit the crime. The question may again be put to him as to whether he made statement before a Magistrate during the investigation confessing the guilt. He may deny to have made the statement at all or he may say that he made that statement due to undue influence of the police. In this case the confession made by the accused to the Magistrate before the trial begins, is called retracted confession. Value of the retracted confession.—It is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence, not to rely on retracted confessions, unless corroborated. Courts have convicted persons on retracted confessions when they have been of the opinion that the confession when it was made was voluntary or consistent and true but the real rule of law about the retracted confession is "where the retracted confession is the sole evidence it can be of little value specially when made during the competition for a pardon which sometimes occurs where a number of persons are suspected of an offence." It very often happens that a number of persons are accused of murder or dacoity or of any other offence. The person incharge of the investigation falling on direct and independent evidence chooses some of the accused to admit the guilt on the promise of making him a witness in the case. Instances are not rare when a young man is made to admit some guilt due to pressure or fear. The best proposition of law about retracted confession is found in the following passage : "I always suspect these confessions which are supposed to be the off-spring of penitence and remorse and which are nevertheless repudiated by the prisoners at the trial. It is remarkable that it is very rare occurrence for evidence of confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory, but when it is not clear and satisfactory the prisoner is not unfrequently alleged to have been seized with a desire born of penitence and remorse to supplement it with confession, a desire which vanishes as soon as he appears in a court of justice." It is really very strange for an accused to confess before the investigating authority that he has committed a murder. That statement, if made without any pressure, fear or hope must be either due to the remorse or godly fear or it is so because the accused is as truthful as Harish Chandra and Yudhisthir. If that is so, and if the statement was made because the witness was remorseful or because he made the confession due to fear of God or because he was truthful, there is no reason as to why he resiles from that statement when he is put to trial. Due to this suspicion a retracted confession can always be suspected to have been extracted by pressure, undue influence, inducement or threat by some person in authority. It cannot in many cases be said to be voluntary and so as laid down in the above

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passage from the judgement of Queen's Bench Division, it is always wise not to convict an accused on the sole testimony of the retracted confession and in 99.9 recurring cases retracted confession cannot form the basis of conviction. A judge can convict an accused on the sole testimony of retracted confession only when he is fully satisfied about the truthfulness of the statement and entertains no doubt about its being voluntary. The general rule as mentioned above and supported by the opinions of the High Courts in India and also the Privy Council, had been that it is always unsafe to base the conviction on the sole testimony of retracted confession. Apart from general rule of prudence where the circumstances of a case cast a suspicion on the genuineness of confession, corroboration is needed.37 In State of Tamil Nadu v. Kutty alias Laxmi Narsimhan,38 the Supreme Court said that, it is not law that once the confession was retracted the Court should presume that confession is tainted. Non retracted confession is rarity in criminal cases. To retract from confession is right of confessor and all the accused against whom the confession were proved by prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on mere premise that its maker has retracted from it. The court has duty to evaluate the confession by looking all the aspects. The twin test is to ascertain whether confession is voluntary and that once the test is found positive, the next endeavour is to see whether there is any other reason which stand in the way of acting on it. Even for that retraction is not ground to throw confession over-board. The settled view of the Supreme Court of India is that as a matter of prudence and caution, which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated, but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, nor is it essential that the corroboration must come from the circumstances discovered after the confession was made.39 It would be sufficient that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to compare a retracted confession with the evidence of an approver. In the case of an approver, on his own showing, he is a depraved and debased individual who after having taken part in the crime wants to exculpate himself and tries to fasten the liability on another. In such circumstances, it is absolutely necessary that what he has deposed must be corroborated in material particulars. A person who makes a confession stands on a different footing. In the case of a retracted confession one has only to find out whether the earlier statement, which was the result of repentance, remorse and contrition was voluntary and true or not and it is with that object that corroboration is sought for. In the case of the person confessing who has resiled ________________ 37. 38. 39.

Muthu Swami v State of Madras, AIR 1954 SC 4 : In re Karun Karan, 1975 Cr LJ 798 ; Latik Chand v. State, 19S8 Cr L.J. 24 ; State of Kerala v. Ammini, 1988 Cr, L.J. 107 (F.B.). AIR 2001 SC 2778. State of Maharashtra v. P.K. Pathak, AIR 1980 SC 1224 ; State of Delhi v. Vijai Pal, AIR 1980 SC 1621.

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from his statement, general corroboration is sufficient, while an accomplice's evidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of confession are false. Subramaniya Gaunda was tried for murder. At the time of the investigation he made a confession giving full details as to the manner in which he committed the murder. From him a bloodstained drawer and a banian worn by him were seized. On the information of the accused a bloodstained bed-sheet was recovered. At the trial, the accused denied to have made the confession voluntarily. The confession was held to be voluntary, the reason for retraction untrue. On the above finding and also in absence of any other evidence, the evidence of blood on the drawer, banian and bedsheet were held to corroborate the confession and his conviction was upheld.40 In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration is necessary in such a case would always be a question of fact to be determined in the light of the circumstances of the case.41 Even if a confession is inculpatory, corroboration is necessary if the confession is retracted.42 If the retracted confession is generally corroborated by circumstantial evidence it can be acted upon.43 The rule of prudence requires that a confession must be corroborated before conviction can be based upon it. But the rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused person in the crime must be separately and independently corroborated, nor is it essential that the corroboration must come from the fact and circumstances discovered after the confession was made. If the rule required that each and every circumstances mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless inasmuch as the independent evidence itself would afford sufficient basis for conviction and it would be unnecessary to call the confession in aid. Illustrations 44

(i) Balbir Singh v. State. .—Balbir Singh and one Jagir Singh were tried with having murdered one Mst. Chinti and her two sons. Mst. Chinti was the wife of one Sharda Singh. About a fortnight prior to the date of occurrence Sharda Singh went away in search of work. The prosecution case was that on that night Mst. Chinti and her two sons were sleeping in the house. Balbir ________________ 40. 41. 42. 43. 44.

Subramania Gaunda v. State of Madras, AIR 1958 SC 66. Sarvan Singh v. State of Punjab, AIR 1957 SC 637. P.K. Singh v. State of Manipur, AIR 1956 SC 9 ; Darbari v. State, AIR 1970 Orissa 54 ; Panu v. State, 1978 Cr LJ 690 ; Abdul Ghani v. State of U.P. , 1973 Cr LJ 280 ; Shankaria v. State of Rajasthan, 1978 Cr LJ 1251 : AIR 1978 SC 1218. Henry West Huller v. State of Assam, 1985 Cr LJ 1079. Balbir Singh v. State of Punjab, AIR 1957 SC 216.

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Singh and Jagir Singh effected an entrance into the house through an opening. Balbir Singh strangulated Mst. Chinti by twisting her 'dupatta' round her neck ; when she almost strangled to death, Balbir committed rape and then made sure that Mst. Chinti was really dead. The trunks and the boxes kept in the house were ransacked and some gold and silver ornaments were removed. The two boys of Mst. Chinti got up, they were also killed by means of kirpan. After the murder Balbir left the village at about 4 or 5 a.m. and did not come back till the night of next day. The only evidence in the case was (a) the confession alleged to have been made by Balbir Singh, (b) the identity of the chaddar, (c) the recovery of blood-stained shirt from the person of Balbir Singh, and (d) the recovery of gold and silver ornaments on the information of Balbir Singh. These materials were held to be sufficient corroboration of the confession ; it was observed, "as a matter of fact, three circumstances found against the appellant, namely, (1) recovery of blood-stained chaddar from the room where the murder took place, (2) the recovery of the gold rings which belonged to the deceased woman, and (3) the recovery of a blood-stained shirt from the person of the appellant, were all circumstances, which if believed would connect the appellant with the crime. (ii) Hem Raj v. The State.45—One Hem Raj was tried and convicted for the murder of Mangli Lai. On 16th July, 1952, Mangli Lal, a shop-keeper of Vijai Nagar received a letter. The letter purported to have been sent by "Bhayanker Daku Dal" demanding payment of Rs. 5,000 at 6.30 p.m. on 17th of July and saying that, "if you do not pay or if you inform the police you shall be shot dead." The letter was sent to the police department but no action was taken. On the 17th of July at about 9-30 p.m. when Mangli Lal was sitting at his shop two persons came from the neighbouring street. One was dressed in Khaki suit and the other in blue. They demanded money from Mangli Lal. The man in Khaki entered the shop and took out the gun hanging on a peg. The person dressed in blue fired from pistol and shot Mangli Lal dead. The only evidence in the case was (a) the confession of the accused, (b) certain articles were recovered from Hemraj's house, a hat, a mask, a bush shirt and a pistol. These recoveries were held to be good independent evidence in corroboration of the confession. Certain other articles were recovered on the information of Hemraj. The gun and the gun-case were also recovered. It was contended that the recovery of clothes and delivery of arms and ammunition by Hemraj to the police had been made before the 30th of July when the confession was made and that the facts within the knowledge of the police before the confession was made, could not be used as evidence corroborating the confession. It was held that a confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the Court of the committing magistrate and the material already in possession of the police may well be used for purposes of corroboration. The contention that a confession can only be corroborated by evidence discovered by the police after a confession had been made and any material that is already in the possession cannot be put in evidence in support of it is not valid. ________________ 45.

Hemraj v. State of Ajmer, AIR 1954 SC 462.

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(iii) In Sakharam v. State of Maharastra,46 it was held by the Supreme Court. It is well settled now that the retracted extra-judicial confession though a piece of evidence on which reliance can be placed but the same has to be corroborated by independent evidence. That apart, the court must be satisfied that the confession alleged to have been made was true and voluntary one and in judging the same the conduct of the PW and circumstances which impelled the accused to make such statement to PW should be above suspicion. Unless, the extra-judicial confession itself is true, voluntary and reliable the Court cannot proceed further to examine whether there is any other independent corroboration evidence. Proof of judicial confession.—Under Section 80 of the Evidence Act a confession recorded by magistrate according to law shall be presumed to be genuine. It is enough if the recorded judicial confession is filed before the court. It is not necessary to examine the magistrate who recorded it to prove the confession.47 But the identity of the accused has to be proved. Proof of extra-judicial confession.—Extra-judicial confession may be in writing or oral. In the case of a written confession the writing itself will be the best evidence but if it is not available or is lost, the person before whom the confession was made, be produced to depose that the accused made the statement before him. When the confession has not been recorded, person or persons before whom the accused made the statement should be produced before the court and they should prove the statement made by the accused. M is murdered. Before any person is named as the murderer X and Y were gossiping in a drawing room of X. During the course of the conversation Y said to X 'I murdered M because he had molested my mistress'. Afterwards Y is tried for the murder of M. At the trial X may be produced as a witness and he may depose that Y said to him : "I murdered M because he had molested my mistress". SECTION 25.—Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of any offence. COMMENTS Principle.—The principle upon which the rejection of confession made by an accused to a police officer or while in the custody of such officer is founded is that a confession thus made or obtained is untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession.48 A police officer, on receiving information of the occurrence of a dacoity or other offence of a serious character, failing to discover the real culprits often endeavours to secure himself against any charge of neglect by implicating person who are innocent. The police officer in order to secure conviction in a case very often puts the person so arrested to severe torture and makes him to confess a guilt without having committed it and when such ________________ 46. 47. 48.

AIR 1994 SC 1594. Kashmira Singh v. State of MP., AIR 1952 SC 159 ; Bandhu Kechei v. State, 1976 Cr LJ 325. Paulose v. State of Kerala, 1990 Cr.L.J. 108 Ker.

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steps are taken there is impunity for the real offender and great encouragement to crime. A police officer who is armed with large powers, may willingly excite terrors in their minds and extort false and involuntary confession ; and his duty to investigate criminal cases and to detect offenders and to bring them to justice may make him feel tempted to obtain confession from accused persons by threat, promise or other improper influence. On these grounds confessions made to police officers and those made while the accused is in custody of police officers are excluded from evidence by Sections 25 and 26 of the Evidence Act. Section 25 lays down that no confession made to a police officer shall be proved as against person accused of an offence. A is murdered on the 6th April, 1954. The sub-inspector of police arrests B for having committed murder of A. B states before the sub-inspector that it is he who murdered A. At the trial the prosecution wants to prove the confession of A made to the sub-inspector. This statement cannot be proved. In Section 25 criterion for excluding the confession is the answer to the question as to whom the confession was made ? If the answer is that it was made to a police officer, the law says that such confession should be absolutely excluded from evidence, because the person to whom it was made is not to be relied on for proving such confession and he is moreover suspected of employing coercion for obtaining confession. In a trial for murder the prosecution proved the panchnama prepared by the police the day the murder was committed and signed not only by the Panches but purporting to have been signed also by the accused persons. That document was a record which was a complete confession of the crime from the beginning to the end, by all the accused persons. It was held that this was highly irregular as the provisions of Section 25 Evidence Act, were not observed.49 A confession made to a police officer is inadmissible even if the police officer is invested with the power of a Magistrate. Confession before or after the investigation.—This section makes no distinction between a confession made before investigation and a confession made after investigation. It is confession to a police officer made at any time which is not admissible.50 A person accused of any offence.—The expression person accused of any offence' in Section 25 describes the person, against whom evidence is sought to be led in criminal proceeding, whether or not he was so when he made the statement.51 The test which has to be applied in deciding whether Section 25 of the Evidence Act applies, is the position of the person (making the confession) at the time when it is proposed to prove the confession, not his (accused) position at the time when he is alleged to have made it. A confession, therefore, made to a police officer by a person when he is not accused of any offence is inadmissible in evidence against him when he is accused of an offence. A murder is committed on a dark night. Nobody is named as the murderer. The ________________ 49. 50. 51.

Narain Rao v. State of Andhra Pradesh, AIR 1957 SC 737. Pakala Narain Suram v. Emperor, AIR 1939 PC 47; Husaniya v. Emperor, AIR 1936 Lah 380. State of U. P. v. Deomani Upadhyay, AIR 1960 SC 1125 ; Devi Ram v. State, AIR 1962 Punj. 70 ; Negesia v. State, AIR 1966 SC 119 ; Padam Pradhan v. State. 1982 Cr LJ 534.

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sub-inspector of police goes to the locality to investigate. While he is investigating one B comes to him and says that it was he who committed the murder. After that he is arrested and becomes accused in the case and is tried for that. Though the confession was made by B to the police officer when he was not an accused, his confession will not be admissible at the trial because at the time of proving the confession he had become an accused.52 Statement made to a police officer by one accused is inadmissible against a coaccused.53 Confession only excluded.—It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. All the statements made to the police officers are not excluded. The statements that do not amount to confessions are not excluded by Section 25 of the Evidence Act and can be brought on record and proved against any accused.54 There was a fight between two parties in which death was caused. Several persons of one party drove several cattle belonging to the deceased to the cattle-pond. Two of them made a statement to the police that the cattle of the deceased damaged their crops. They were bringing the cattle to the pond, the deceased interfered with the carrying of the cattle and so there was fight. These persons were afterwards charged with murder of the man who had died in the fight. The statement referred to above was tried to be proved by the prosecution. An objection was raised by the accused that the statement could not be proved as it was excluded by Section 25 of the Evidence Act. It was held that the statement did not amount to confession inasmuch as it was only an exculpatory statement of the circumstances, under which the cattle had been seized and was an admission of guilt but rather in the nature of a complaint against the deceased was not therefore inadmissible in evidence. Consequently it was proved against the accused. The statement which is not confession cannot be excluded by the provisions of Section 25. Where this statement happens to have been made to the police prior to the commencement of the investigation of the case it cannot possibly be hit by Section 162 of the Criminal Procedure Code and therefore is admissible.55 The Supreme Court also had endorsed the same view. Explaining Nasir Ali Khan, case56 the Supreme Court has held that where the person, who lodged the first information report, regarding the occurrence of a murder is subsequently himself an accused and the report lodged by him is not a confession but is an admission by him of certain facts which have a bearing on the question to be determined by the court, the first information report is admissible to prove against him as his admission which are relevant under Section 21 and the fact of reporting as conduct. The corpse of a boy Gulab was recovered from a well. Faddi lodged a report at the police station stating therein that on peeping into the well he

________________ 52. 53. 54. 55.

P. Rustamji v. State of Maharashtra, AIR 1971 SC 1087. Nagu Jhalla v. Emperor, 36 IC 480. Jailal v. Emperor, 81 IC 347 ; Sajdar v. Emperor, AIR 1941 Lah. 82. Shital Chandra v. State, AIR 1956 Cal 82 ; State v. Mohd. Husain, AIR 1959 Bom. 534 ; Jasoda Haldar v. Saitendranath. AIR 1957 Cal 37.

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found Gulab lying dead in the well. Afterwards Faddi was tried for the murder of Gulab. It was held that the report was not a confession rather it was only admission of certain facts which had bearing on the question to be determined by the court.57 The same view has been upheld in A. Nagesia v. State of Bihar.58 A murder was committed in a compartment of a running train. The accused stated that he also was travelling in the same compartment. A stranger entered the compartment and began to assault the deceased, he (the accused), tried to save the deceased but could not. The statement was not a confession so it was admitted in evidence.59 The accused denied to have committed the murder. But he stated that it was the deceased who caused injury on his toe. The statement was held to be relevant;60 a confession made to a police officer in any circumstance is not relevant.61 It often happens that a person after making the report in a police station becomes an accused. If such report amounts to a confession it would not be relevant62 ; if it does not amount to confession, but is only admission of certain fact it is relevant.63 If it amounts neither to confession nor admission it would not be relevant. Made to police officer.—In Section 25 the criterion for excluding the confession is the answer to the question to whom the confession was made. If the answer is that it was made to police officer the law says that such confession shall be absolutely excluded from evidence, the person to whom it was made is not to be relied on for proving such a confession and he is moreover suspected of employing coercion to obtain confession. This observation of Mahmood, J., lays down clearly that before a confession is excluded it must be shown to have been made to some police officer. A confession which is not made to police officer will not be excluded. The statement to be excluded must be made to the police officer. The mere presence of the police officer will not make the statement irrelevant if it was made to some other person. A confession made to the village people in the course of inquiry about the deceased even if made in presence of the chaukidar would not be inadmissible under Section 25 as it was not made to the chaukidar.64 In order that a statement may be said to be made to a police officer must be near the person making the confession, rather the statement must be made in presence of the police officer. In Murli alias Denny v. State of Rajasthan,65 the confession was made in F.I.R. This cannot be used for any purpose in favour of prosecution and against ________________ 57. 58. 59. 60. 61. 62. 63. 64. 65.

Faddi v. State of M.P., AIR 1964 SC 1856. A. Nagesia v. State of Bihar, AIR 1966 SC 119. Nishikant v. State of Bihar, AIR 1969 SC 422. K. Padyachi v. State of Tamil Nadu, AIR 1972 SC 66 Ibid. A. Nagesia v. State of Bihar, AIR 1966-SC 119 ; K.H. Amulak v. State of Gujarat, AIR 1972 SC 922. Faddi v. State of M.P., AIR 1964 SC 1850. Mst. Maharani v. Emperor, AIR 1948 All. 7 ; Chunni v. Emperor, AIR 1934 All. 132 : Jagjit Singh v. State, AIR 1956 Kutch I; Sri Devi v. State, 1974 CLJ 126, AIR 1994 SC 610

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the accused. However the admission in favour of accused can be taken into account to examine whether the case falls under exception 1 to Section 300 I.P.C. particularly when there is no evidence disclosing as to how the quarrel ensued and attack took place. Sitaram accused wrote a letter as follows : "My dear Darogaji, I have myself committed the murder of my wife Smt. Sindora Rani. Nobody else perpetrated this crime. I would appear myself after 20 or 25 days and then will state everything. One day the law will extend its hands and will get me arrested. I would surrender myself." (Signed) Sitaram. This letter was kept near the dead body of Sindora and found by the S.I. It was held to be admissible.66 Police officers, who are.—Section 25 of the Evidence Act provides a healthy protection (Security). This section should not be interpreted in narrow and technical sense ; but it should be understood in popular and wide perspective. But at the same time its interpretation should not be made in such a wide sense that those persons should be included in as police officer who had been given some powers of Police Officer. The important quality (feature) of a Police Officer is that he must not only have power to make investigation of crime but to file a report against criminal and to have the power to prosecute the criminal. Unless and until a person has power to make investigation and frame charge against accused under Section 173 of Cr. P. C, he cannot be called a Police Officer within the meaning of Section 25 of Evidence Act. Under Section 53 of Narcotic Drugs and Psychotropic Substance Act 1985, if some person, other than incharge of Police Station, is conferred some powers of officer of Police Station, he has no power to exercise all the powers granted under Chapter XII of Cr. P. C. He has neither power to file report nor has he power to frame charge under Section 173 of Cr. P.C. Thus he is not police officer within the meaning of Section 25 of Evidence Act.67 The primary test for determining whether an officer (not belonging to police force) is a police officer is whether the officer concerned under Special Act, has been conferred upon all the powers of investigation on offences including the power to initiate prosecution by submitting charge-sheet under Chapter XV of Criminal Procedure Code. In order to bring him within the purview of 'police officer' for the purpose of Section 25 of Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting investigation under Criminal Procedure Code.68 Confession before an officer under Exercise Act.—In Abdul Rashid v. State of Bihar,69 the confession was made by an accused to Superintendent of Excise under provisions of Bihar and Orissa Excise Act. The Supreme Court

________________ 66. 67. 68. 69.

Sitaram v. State of U.P., AIR 1966 SC 1906. Raj Kumar Karwal v. Union of India, AIR 1991 SC 45. Bal Kishan v. State of Maharashtra, AIR 1981 SC 379 :1980 Cr LJ 1424. AIR 2001 SC 2422.

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held that the confessional statement made to Superintendent of Excise was inadmissible because excise officer was police officer under Section 25 of Evidence Act. Conviction, based only on the fact that accused was found together with co-accused from whom the offending article was received and on basis of confession of accused, the conviction was liable to be set aside. Confession before an officer under Customs Act, etc.—Custom Officer, Forest Officer in Madras, Prohibition Sub-Inspector in Madras, Mukhia are not Police Officer, Choukidar, and Excise Officer are not Police Officers.70 Confession before an officer of Reserve Police.—In State of Gujarat v. Anirudh Singh and Others,71 the Reserve Police Officer was on duty at the time of flag hoisting on the independence day and at the end of the function the deceased was done to death by shooting. The fact that he remained on duty till in the evening until D.O.S.P. has come and started investigation and thereafter he left the place would not be sufficient to term him as investigating officer, he not being police officer, he was witness to the occurrence. A Senior reserve police officer (Officer of RPF) appointed under the State Reserve Police Force Act, though he is police officer under the Bombay Police Act and officer in charge of a police station, he is incharge only for the purpose of maintaining law and order and tranquility in society and the power of investigation envisaged in Chapter XII of Cr.P.C. have not been invested with him. Section 25 would not get attracted in regard to confession made by accused to him. It was contended that the accused will not be in position to distinguish as to who is or who is not police officer invested with the power of investigation but will assume the person in uniform to be police officer, therefore all the officer performing the police duty may be required to be treated to be police officers within the meaning of Section 25 of Evidence Act. The Supreme Court said that though this argument is prima facie attractive, on deeper probe, the court found that it is difficult to give acceptance to the same. Confession before an officer under N. D. P. S. Act.—A confession made before an officer under Narcotic Drugs and Psychotropic Substances Act, 1985 who is an officer in the Department of Revenue Intelligence is not hit by Section 25 of The Evidence Act but such a confession must be subject to closer scrutiny than a confession made to a private person or official having no investigating powers under the Act.72 An officer vested with the powers of an officer-in-charge of a police station under Section 53 of the N. D. P. S. Act is not a Police Officer within the meaning of Section 25 of The Evidence Act. An statement made under section 67 of the N. D. P. S. Act is not the same as a statement made under section 161 of

________________ 70. 71. 72.

Ballahabdas v. Collector of Custom, AIR 1965 SC 481; State of Maharashtra v. P. K. Pathak, 1980 Cr LJ 923 : AIR 1980 SC 1224 ; E. C. Richard v. Forest Officer, AIR 1980 SC 31 ; In re Sriniwas Narshimma. AIR 1955 NUC 686 ; Ram Charan v. State, AIR 1935 All. 549 ; Deokinandan v. Emperor, 1936 All. 753 ; Ram Jaiswal v. State of Bihar, AIR 1964 SC 828. AIR 1997 SC 2780. Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvanathapuram, AIR 2007 SC 794 at pp. 796-797; Raj Kumar v. Union of India, (1990) 2 SCC 409; AIR 1991 SC 45.

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the Cr. P. C. The statement made under Section 67 of the N. D. P. S. Act is allowed to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act. Conviction can be based on it when it is corroborated by other evidence.73 Motive, etc. also to be excluded.—A confession may consist of several parts which may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapon used, the intention, the concealment of the weapons and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as non-confessional statement. Each part discloses some incriminatory fact, i.e. some fact which by itself or along with another suggests the inference that the accused committed the crime. If a statement contains an admission of an offence not only that admission but also every other admission of an incriminating facts contained in the statement in part to the confession. If proof of such confession is excluded by Sections 24, 25 and 26 the entire confessional statement in all its parts including the admissions of minor incriminating facts has also to be excluded. N made a report in the police station as "My aunt gave her property to her daughter X, quarrels have been occurring among us. Today in the morning. I found Somra (son-in-law of my aunt) grazing cattle. I dealt him a Tanga blow. He died. Then I came to the field where Ghamni (daughter of my aunt) was weeding grass. I killed her. Thereafter, I went to the house of my aunt. I struck her on head. She died. Near her was Somra's son. I killed him also. I finished the life of my aunt so that no one could take share in her properties. My aunt had all along been quarrelling like a fool." All the dead bodies and the Tanga with which I have killed them are lying where I have concealed them. I can point them out." All these were held to be inadmissible except the fact that the accused went to the police station and made the report. Then the facts leading to discovery were made admissible under Section 27 of the Act.74 The accused made a report to the effect that he killed his wife as she was a woman of bad character, all was held to be inadmissible.75 Apart from any technical meaning occurring in any particular act, in more comprehensive and popular meaning, the expression "police-officer" means other than a Magistrate whose duty is to prevent and detect crime, the latter duty involving the duty of holding investigations. It is in this sense that the term "police-officer", should be read in construing Section 25 of the Indian Evidence Act. It includes Excise Officers exercising powers of detection and investigation of crimes committed against excise laws.76 A confession, therefore, made to a Deputy Commissioner of Police was held to be

________________ 73. 74. 75. 76.

Kanhaiyalal v. Union of India, AIR 2008 SC 1044 at p. 1052. A Nagesia v. State of Bihar, AIR 1966 SC 119. Gopal v. State, 1977 SCJ 358. Amin Sharif v. Emperor, ILR 61 Cal. 607; Raja Ram v. State of Bihar, AIR 1964 SC 828.

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inadmissible.77 In order to determine whether a person is the "Police Officer" or not, the material thing to consider would be, not the name given to him nor the colour of the uniform he is required to wear, but his functions, powers and duties.78 The following persons are "Police Officers" within the meaning of this section—Police Patel, Bombay,79 Police Sub-Inspector, Police-Constable, Polite-Head Constable and Chaukidar.80 Custom Officers are not police officers."81 Cannot be proved against the accused.—The prohibition contained in this section applies only to confessions which are to be proved as against the accused that is in support of the prosecution case, and does not apply to statement on which the accused himself wishes rely for his defence. In short the confession made by an accused to a police officer cannot be utilised by the prosecution but it can be used by the accused for his defence. One Hassan was charged with murder of Ata Mohommad. Just after the occurrence Hassan made a report. In this report he admitted that he murdered Ata. But he mentioned certain facts that mitigated the offence. At the trial the accused tried to prove the report. "The trial court disallowed this evidence holding that it was excluded by Section 25, Evidence Act." In appeal their Lordships of Sindh High Court held, "The prohibition contained in Section 25 can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence."82 Confession of one guilt during the inquiry of another.—The confession under this section need not be confession of the crime which the police is at the moment investigating. In course of investigation of one case a man may confess to have committed another offence. That confession too is excluded under Section 25, Evidence Act. Suppose A is accused of a dacoity committed at the house of Z at Allahabad. During the inquiry of this case A makes a statement to the Sub-Inspector making the inquiry that he took part in dacoity committed at Banaras. This statement too is excluded under Section 25, Evidence Act. The terms of Section 25 do not limit its applicability only to confession of offences with which accused was charged. This section applies equally to confession of offences not under investigation.83 In civil cases.— Statement made to a police officer cannot be admissible as an evidence of confession of guilt in a criminal case. But a statement made before a police officer can be proved as an admission in a civil case. It has been held by Supreme Court in Commissioner of Police, New Delhi v. Nandan Singh,84 that the Sections 25 and 26 operate in different fields. These sections are not applicable to disciplinary or departmental proceedings.

________________ 77. 78. 79. 80. 81. 82. 83. 84.

R. v. Hurri Bob, ILR I Cal, 207. Public Prosecutor v. Paramasivan, AIR 1953 Mad. 917. R. v. Bhim, 17 Bom. 485 ; Daroga R. v. Pancham, 4 All. 198 ; Chaukidar Deoki Nandan v. Emperor, AIR 1942 Lah. 37. Hasain v. Emperor, AIR 1942 Lah. 37. Vallabh Das v. Collector, AIR 1965 SC 431. Ali Gauhar v. Emperor, AIR 1941 Sindh 134. In re Seshampam, AIR 1937 Mad. 209. (2006) 4 SCC 265.

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SECTION 26.—Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation.—In this section "Magistrate" does not include the Head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such Headman is a Magistrate exercising the powers of Magistrate under the Code of Criminal Procedure, 1882. COMMENTS Object.—The object of Section 26 of the Evidence Act is to prevent the abuse of their powers by the police, and hence confessions made by accused persons while in custody of police cannot be proved against them unless made in presence of a Magistrate. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused persons through any undue influence being received in evidence against them. Confession of an accused in police custody to any one else.— Section 26 provides that a confession which is made in the custody of a police officer cannot be proved against him. Unless it is made before a magistrate.85 In Kishore Chand v. State of Himachal Pradesh,86 the extra judicial confession was made to Pradhan who was accompanied by Police (enquiry) Officer. The only inference which could be drawn from the circumstance of the case, is that the confession was made at the time when the accused was in the custody of Police and it could not be proved against the accused. It could not be believed that, when a Police Officer has seen the accused with deceased at last occasion, he will not take the accused in the custody. In this case it is evident that the Police Officer has created a scene and to avoid Sections 25 and 26, the Police Officer has left the accused in the custody of village head man (Pradhan). The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and to take extra-judicial confession under Section 164 of Cr. P.C. which has got more probable value and it gives an opportunity to make the confession faultless because under Section 164 Cr. P. C. the magistrate gives required warning, that this confession will be used against the accused and after this warning he records the confession. Under Section 26, no confession made by an accused to any person while in custody of a police officer shall be proved against him. Section 25 deals with the confessions made to some police officers, and this section has always been taken to apply to confessions made to some person, other than police officer. "The present section deals with confession made in presence of a police officer who has the custody of an accused, i.e., of a police officer who is concerned more or less in the investigation of the case ; and those confessions are absolutely excluded

________________ 85. 86.

Kishore Chand v. State of Himachal Pradesh, AIR 1990 SC 2140. AIR 1990 SC 2140.

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whether made to any police officer or to any other person, unless made in the immediate presence of a Magistrate. The proper construction of Sections 25 and 26 is one which excludes confessions to a police officer under any circumstances or to any one else, while the person making it is in a position to be influenced by a police officer unless the free and voluntary nature of the confession is secured by its being made in the immediate presence of a Magistrate, in which case the confessing person has an opportunity of making a statement uncontrolled by any fear of police."87 The criterion adopted in Section 26 for excluding confession is the answer to the question under what circumstances was the confession made ? If the answer is that the confession was made whilst the accused was in the custody of a police officer, the law lays down that such confession shall be excluded from evidence unless it was made in the immediate presence of a Magistrate. Police custody.—Having seen that a confession made by a person, in police custody to any person other than a Magistrate is excluded from evidence, it becomes necessary to know what is a police custody ? The word 'custody' is used here in wide sense. A policeman may lay his hand on a person, hand-cuff him or tie his waist with a rope and may take him with him. Again a police officer may not even touch a person but may keep such a control over him that the person so controlled cannot go any way he likes. His movement is in the control of the police officer. A police officer comes to A and asks him to follow to the police station as he is wanted in connection with a dacoity case. A follows him. He is in custody of the police officer. Again a police officer who has taken some persons in his custody may leave him away from him for a short time. Suppose a chaukidar arrests B and starts with him to the police station. In the way he leaves the arrested person with some villagers and goes to some neighbouring village for some purpose. In this case too the police custody is intact.88 The police custody in the real sense commences from the time where the movements of the accused are restricted or controlled and is direct or indirect under police surveillance.89 Thus it is settled that "The custody of a police officer for the purposes of Section 26, Evidence Act, is no mere physical custody. A person may be in custody of a police officer though the other may not be physically in possession of the person of the accused making the confession. There must be two things in order to constitute a custody. Firstly, there must be some control imposed upon the movement of the confessioner, he may not be at liberty to go any way he likes, secondly such control must be imposed by some police officer indirectly. The crucial test is whether at the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them for the purpose of securing such confession. The word 'custody' in this and the following section does not mean formal custody but includes such state of affairs in which the accused can be ________________ 87. 88. 89.

Bishwanath v. Dhapu Debi, AIR 1950 Cal. 494 ; Mahabir v. State of Bihar, AIR 1972 SC 1331. Abdulla v. Emperor, AIR 1937 Lah. 620 ; Emperor v. Jagia, 124 IC 525 ; Maharani v. Emperor, AIR 1948 All. 7 ; Brija v. Emperor, AIR 1941 Oudh 532 ; Harbans Singh v. State, AIR 1970 Bom. 790; N. Nagarjan v. State of T.N. 1996, Cr.L.J. 1007 Mad. Moddovdare Rawthor Smile v. State, 1982 Cr LJ 2102.

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said to have come into the hands of a police officer, or can be said to have been some sort of surveillance or restriction,90 In R. v. Lester,91 the accused was being taken in a tonga by a police constable. In the absence of constable, the accused confessed to the tanga-driver that he had committed the crime. The confession was held to be in police custody as the accused was in the custody of constable and it made no difference of his temporary absence. Where a woman, charged with the murder of her husband, was taken into the custody of the police, a friend of the woman also accompanied her. The policeman left the woman with her friend and went away to procure a fresh horse. The woman confessed her guilt to her friend while the policeman was away. This confession would not be admissible against the accused as the prisoner should be regarded in custody of the police in spite of the fact that he was absent for a short time. But where the accused is not arrested nor is he under supervision and is merely invited to explain certain circumstances, it would be going further than the section warrants to exclude the statement that he makes on the grounds that he is deemed to be in police custody. Where the accused had consumed poison and so she was removed to the hospital for treatment and from the moment of her admission to the hospital till her discharge from there, the police personnel were neither present in the room wherein the accused was kept for treatment or even in the vicinity of the hospital nor they frequently visited the hospital, it could not be said that the accused's movements were restricted or she was kept in some sort of direct or indirect police surveillance and she was in police custody for the purpose of Section 26 of Evidence Act.92 The appellant demanded a bribe of Rs. 500. A trap was arranged and it was decided that the appellant should be invited at Bedia Bungalow. And he was so invited. After the tea while the appellant emerged from the Bedia Bungalow, he was followed by Sri Joshi a first class Magistrate, Sri Deo, the Assistant District Magistrate and Sri S.D. Pandey, the Sub-Inspector. Sri Joshi called out to him to stop. And on coming up to him told him that he was going to be searched because he had accepted an illegal gratification. The appellant begged to be saved and implored for kindness, as he was a family man with children. It was held, "if these alleged statements are to be regarded as confessions they will be hit by Section 25, Evidence Act, for they were made to Pandey, the police officer, who was there. If they are sought to be brought in under Section 26 as confessions made in the immediate presence of a Magistrate then also they will not be admissible in evidence in that they were not recorded by the Magistrate in the manner prescribed by Section 164, Criminal Procedure Code.93 Confessional Statement Under Terrorist and Disruptive Activities (Prevention) Act, 1987.—The confessional statements are not admitted in

________________ 90. 91. 92. 93.

Mst. Maharani v. Emperor, AIR 1948 All. 7. ILR (1895) 20 Bom. 165. Ram Singh v. Sonia, AIR 2007 SC 1218 at p. at p. 1224. Zwiagle Ariel v. State of MP., AIR 1954 SC 15 ; State of U.P. v. Singhara Singh, AIR 1964 SC 358.

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evidence or are not reliable on the ground that the accused were in Police custody. The custodial interrogation in such cases is under law to meet the grave situation arising out of terror unleashed by terrorist activities by person residing within and out of country. In the present case when the accused were produced before Magistrate, they did not make a complaint that confessional statement were recorded under coercion. Further Rule 15 of TADA rules was complied with and accused making the confession was explained that he was not bound to make it and in case he makes it, it would be used as evidence against him. Further the officer has verified that the accused was making the confessional statement voluntarily and certificate to that is also attached to the said confessional statement and for its reliability and truthfulness, Prosecution produced on record other corroborative evidence.94 As the confessional statement under Section 15 of TADA Act is made admissible in evidence. The strict procedure laid down therein for recording confession should be followed. The following confessional statement made in defiance of the safeguard cannot be accepted by Court as believable evidence. The confession should appear to have been made voluntarily and public officer who records confession should satisfy himself that the same has been made voluntarily. The recorded confession must indicate that these safeguard have fully been complied with. In the instant case the confession made by appellant have not indicated that the same was voluntary in nature and the police officer who recorded the same have not confirmed that he believed that the confession was voluntarily made. Therefore it is made inadmissible. It was further held that Section 15 of TADA Act altered the fundamental rules of evidence given in Evidence Act, which stood, the test of time over a century. Under Section 25 of Evidence Act, the confession made to a police officer by a person accused of an offence should not be proved against the accused. The power to record judicial confession is given to the Magistrate and strict and rigorous judicial lines have been laid down in Section 164 Cr.P.C. This apart many High Courts have framed rules gave detailed procedure for recording confession. Nobody will like to admit the guilt as he is fully aware that it will be admissible against him. Apart from it, there is constitutional right of accused that he shall not be under any Testimonial compulsion. Under Act 20 (3) of Constitution accused has protection against compulsion to be witness against himself.95 Confession recorded by a Second Class Magistrate.—Where a second class Magistrate, not specially authorised by the State Government to record a statement of confession, under Section 164, Criminal Procedure Code has recorded the confession of the accused under Section 164, Criminal Procedure Code is not admissible. His oral evidence to prove the confession will also be inadmissible.96

________________ 94. 95. 96.

Lallu Singh v. State of Gujarat, AIR SC 246. Ayyub Etop v. State of U.P., AIR 2002 SC 1192. State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358.

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In Pritam Singh v. State of M.P.,97 the Supreme Court said that, when magistrate cautioned the accused as required, that he was not bound to make confession and that if he did make the confession, it might be used against him however not fulfilling other requirement of putting the question to the accused to satisfy himself that the accused was making confession voluntarily the confession cannot be entertained as a piece of evidence. Confession to custom officer in inquiry under Sections 107 and 108, Customs Act.—Confession by a person summoned as a witness in a proceeding under Sections 107 and 108, Customs Act is admissible as the person summoned is not an accused nor the custom officer is a police officer. But if confession is exercised by issuing third degree method it would be inadmissible.98 In Ammani & Others v. State of Kerala,99 the Supreme Court asserted that the Magistrate recording confession under Section 164 Cr.P.C. need not give reasons for taking the confession to be voluntary. Confession in Departmental Enquiry.—In Kuldip Singh v. State of Punjab} the Supreme Court held that, it is true that confession or admission of the guilt made by a person accused of an offence before or while in police custody is not admissible in court of law according to Section 25 or Section 26, but it is equally well settled that rule of evidence does not apply in the departmental enquiry. In departmental enquiry it would perhaps be permissible for authority to prove that appellant did make confession during course of investigation. It would be for disciplinary authority to decide whether it is voluntary confession or not. If the disciplinary authority comes to conclusion that it is voluntary and true he may well be entitled to act upon the said statement. In the instant case a police official had link with terrorists and criminals. He was supplying secret information of police department to the terrorists. It was impossible to hold enquiry against him as no will dare to give evidence against such police officials. He confessed to have link with terrorists and supplying information to them. The High Court and Supreme Court held his dismissal proper even without holding departmental enquiry on basis of his confession as Section 25 or Section 26 of Evidence Act, 1872 does not apply to disciplinary enquiry since there was no proof of mala fide. SECTION 27.—How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

________________ 97. 98. 99. 1.

AIR 1997 SC 445. Roshan Bibi v. Joint Secretary Government of T.N., 1984 Cr LJ 134. AIR 1998 SC 260 AIR 1997 SC 79.

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COMMENTS Principle.—This section of the Act is founded on the principle that if the confession of the accused is supported by the discovery of a fact then it may be presumed to be true and not to have been extracted. It comes into operation only— (1) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody, and (2) if the information relates distinctly to the fact discovered. This section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. In Pandu Rang Kallu Patil v. State of Maharastra,2 it was held by Supreme Court that Section 27 of Evidence Act was enacted as proviso to. The provisions of Section 25 and Section 26, which imposed a complete ban on admissibility of any confession made by accused either to police or at any one while in Police custody. Nonetheless the ban would be lifted if the statement is distinctly related to discovery of facts. The object of making provision in Section 27 was to permit a certain portion of statement made by an accused to Police Officer admissible in evidence whether or not such statement is confessional or non-confessional. Scope.—Sections 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24 lays down that if a confession appears to have been caused by threat, promise or inducement from some man in authority it will be irrelevant and cannot be proved against the confessioner. Section 25 excludes a confession made to a police officer. Section 26 lays down that if a person while in custody of a policeman, confesses his guilt to any other person not being a Magistrate, his statement will not be proved against him. Section 27 lays down that when at any trial, evidence is led to the effect that some fact was discovered in consequence of the information given by the accused of an offence in custody of the police officer, so much of the information as relates to the facts discovered by that information, may be proved irrespective of the facts whether that information amounts to confession or not. Let us take an example, R is accused of murder of P. He is arrested and kept in custody of the sub-inspector of police. In course of the investigation, R confesses his guilt and says that he murdered P with a bhujali and that after murder he buried the bhujali in a tank. The subinspector proceeds to that particular tank with the accused and some independent witnesses. The bhujali is recovered from the tank from that very place where the accused said that he had buried it. Now, the statement of the accused that he murdered and buried the bhujali in the tank is a confession to a police officer and according to Section 25, it must ________________ 2.

AIR 2002 SC 739 :Bhodh Raj alias Bodha v. State of Jammu & Kashmir, AIR 2002 SC 3164.

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not be proved against the accused. But Section 27 lays down that if some fact is discovered in consequence of an information given by an accused, that much of the information which leads to the discovery will be proved. Consequently, in the above example the sub-inspector will depose in the court that in consequence of the information given by the accused the bhujali was recovered and then the statement of accused "I have buried the bhujali in the tank" will be proved. The requirements under the section.—The conditions necessary for the application of Section 27 are : (1) The fact must have been discovered in the consequence of the information received from the accused. (2) The person giving the information must be accused of an offence. (3) He must be in custody of a police officer. (4) That portion only of the information which relates distinctly to the fact discovered can be proved. The rest is inadmissible. (5) Before the statement is proved, somebody must depose that some articles were discovered in consequence of the information received from the accused. In the example given above, before the statement of the accused could be proved, somebody, such as Sub-Inspector, must depose that in consequence of the information given by the accused, some facts were discovered. (6) The fact discovered must be a relevant fact, that is, to say it must relate to the commission of the crime in question.3 In Suresh Chandra Bahri v. State of Bihar,4 it the discovery and seizure of articles used in wrapping the dead body and pieces of Sari belonging to the deceased was made at the instance of one accused. Such discovery was made soon after the arrest of the accused. Articles recovered were neither visible nor accessible to the people but were hidden under the ground. No public witness was examined by the prosecution in this behalf. However, the evidence of Investigation Officer did not suffer from any doubt or infirmity. Articles discovered were duly identified by the witnesses. It was held that in these circumstances, failure of Investigating Officer to record the disclosure of statement was not fatal. In State of Maharashtra v. Bharat Ehagan Lal Raghani,5 it was held by Supreme Court that, the fact that seized weapons were displayed by police in press conference was not a ground to disbelieve the factum of recovery. In Limbaji and others v. State of Maharashtra.6 it was held that presumption as to possession of stolen article concealed under earth in the field of third party was an evidence of discovery of confessional statement of accused that he had hidden article at particular places. Accused further led the investigation officer and panchas to the spots where the stolen property was concealed. Statement as to concealment was admissible. Accused could be deemed to be in exclusive possession of articles concealed under earth though spots at which they were concealed could be accessible to public. Discovery is guarantee for reliability.—The section seems to be based on the view that if a fact is actually discovered in consequence of information

________________ 3. 4. 5. 6.

Md. Inayatullah v. State of Maharashtra, AIR 1976 SC 483 ; See also Earabha Drappa v. State of Karnataka, AIR 1983 SC 446. AIR 1994 SC 2420. AIR 2002 SC 1409. AIR 2002 SC 491.

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given by the accused some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence.7 But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.8 In State of U.P. v. Arun Kumar Gupta,9 the dead body, weapon and bloodstained earth were recovered from the house of accused the witness to recovery was not resident in immediate proximity of house of accused. There was discrepancy over whether the witness by himself came to the scene of occurrence or was called. This evidence as to recovery was doubtful. The witness belonged to biradari of deceased and was friend of father of deceased. Extraordinary interest was taken by witness in investigation and remaining were present at every important place and time during course of investigation. Held-The evidence did not inspire confidence. In State of Maharashtra v. Damu Gopinath Shinde,10 the Supreme Court held that the basic idea embodied in Section 27 of Evidence Act was the doctrine of confirmation by subsequent events. The doctrine is favoured on the principle that if any fact is discovered in search made on the strength of any information obtained from the prisoner. Such discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results as discovery of fact, it becomes reliable information. Hence, the legislature permits such information to be used as evidence by restricting the admissible portion to the minimum. In a rape case, the waist chord was recovered which was used in strangulating the victim. Its non-production in the Court was held fatal and the Court gave benefit of doubt to the accused.11 If Fact is known to the person other than accused.—It is most essential condition of admissibility under Section 27 that the fact must be discovered in consequence of information supplied by the accused against whom the fact is tried to be proved. If the fact is known to other person also, i.e., to the investigation officer (Police) it cannot be said that the fact was discovered in consequence of information given by accused. Facts discovered—Meaning of.—"It is fallacious to treat the fact discovered" within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and information given must relate distinctly to this fact.12 Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

________________ 7. 8. 9. 10. 11. 12.

Ram Kishan v. Bombay State, AIR 1955 SC 104. Kattaya v. Emperor, AIR 1947 PC 67 ; See also State of Maharashtra v. Damu Gopinath Shinde, AIR 2000 SC 1691. AIR 2003 SC 801. AIR 2000 SC 1691. State of Rajasthan v. Kanshi Ram, AIR 2007 SC 144. Md. Inayatullah v. State of Maharashtra, AIR 1976 SC 483 ; State of U.P. v. Jagesar, AIR 1983 SC 349.

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13

In Pulukuri Kottayya v. Emperor, in a case of rioting and murder there were two statements given by the two accused relating to information and discovery of facts alongwith confession. One of the accused stated that he and Kottayya alongwith the people of his party lay in wait for Sivayya and others and they beat Sivayya and Subayya to death. Ramayya in his party after receiving blows in his hand gave spear to him and he hid the spear and his stick in the rick of his village. The other accused stated that he after stabbing Sivayya with a spear hid it in a yard in his village and he would show those articles. These things were recovered by the police from the places as stated. The Madras High Court held the whole statement admissible in evidence.14 The Privy Council through Sir John Beumont held that the case wrongly decided by the Madras High Court. The statement of the accused that he hid spear given by Subayya and his stick in the rick of his village was admissible and so the statement of another accused that he hid spear in a yard in his village was admissible. Except these statements rest of the statement which related to admission of offences committed by these accused persons was held to be not admissible in view of Section 27 of the Evidence Act. Information supplied by a person in custody was that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" ; these words are inadmissible since they do not relate to the discovery of the knife in the house of the informer.15 In Pandu Rang Kalu Patil v. State of Maharashtra,16 the statement of accused in memorandum was "I have kept the firearms concealed behind old house in the heap of wood", The fact discovered before police officer before whom the statement was made, was certainly not the gun (weapon). The fact discovered was that the accused had concealed the gun behind the old house under heap of wood. It was same gun with which the accused had fired and that aspect was proved with the help of other evidence. The appellant Prabhoo was charged with the offence of murder. It was the prosecution case that on arrest by the police the appellant stated that the axe with which the murder had been committed and his blood-stained shirt and dhoti were in the house and the appellant was ready to produce them. It was said that the appellant produced them. The statement that the axe had been used to commit murder and that the shirt belonged to the appellant were held to be inadmissible.17 In State of Maharashtra v. Damu Gopinath Shinde,18 the Supreme Court laid down the limitation of admissibility of information admissible under

________________ 71 14. 15. 16. 17. 18.

AIR 1947 PC 67. Athappa Goundan v. Emperor, AIR 1937 Mad 618. S. Babbu v. State of M.P., 1979 Cr LJ 908. AIR 2002 SC 733. Prabhoo v. State of U.P., AIR 1963 SC 1113 ; Parshadi v. State of U.P., 1957 SC 211; Rajanikant v. State, AIR 1967 Goa 21 (FB). AIR 2000 SC 1691.

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Section 17 in these words : "no doubt the information permitted to be admitted in evidence is confined to that portion of information which distinctly relates to the fact thereby discovered but to get admissibility the information need not be so transacted (extended) as to make it insensible. The extent of information admitted should be considered with understandability." No lawful recovery statement under Section 27 useless.—Where a recovery is alleged to have been made on the information of accused the recovery must be legal and must be proved beyond reasonable doubt. If the seizure of property said to be recovered at the information of the accused failed, the statement attributed to the accused would not help the prosecution. The law is settled that unless in fact any lawful seizure of any object is made, the mere statement under Section 27 of Evidence Act can prove nothing.19 Article concealed at Public Place.—In this regard a question may arise that if the article is concealed at public place and recovered in consequence of information given by the accused in Police custody will whether it reduce the efficacy. The Supreme Court considered this question in State of Himachal Pradesh v. Jeet Singh,20 and observed : "There is nothing in Section 27 of Evidence Act which renders the statement of accused inadmissible if the recovery of evidence was made from any place which is open or accessible to others. It is fallacious notion that when recovery of any article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of Evidence Act. Any object can be concealed in places which are open and accessible to others. For example if it is buried on main road side or if it is concealed under dry leaves, lying on public place or kept hidden in public office would remain out of visibility of others no normal circumstances until such article is disinterred, its hidden state would remain unhampered. The person who hide it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others, if it is not then it is immaterial that the concealed place is accessible." In State of Maharashtra v. Bharat Farika Dhiwar,21 one of the articles used in commission of offence was found in tall grass and other was buried. They were out of visibility of others in normal circumstances. Their hidden state remained unhampered and accused alone knew where the articles were until he disclosed it. Thus, the plea that since the recovered article was found from open place, no reliance could be placed on such recovery, would not be tenable. In Limbaji and others v. State of Maharashtra,22 the accused led the investigation officer and panchs to the spots where the stolen property was concealed. The statement relating to concealment was held to be admissible.

________________ 19. 20. 21. 22.

State of UP. v. Jogesar, AIR 1983 SC 349 : 1983 Cr LJ 686; State of MP v. Ram Prakash, 1989 Cr LJ 1585. AIR 1999 SC 1293. AIR 2002 SC 16. AIR 2002 SC 491

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The accused could be deemed to be in exclusive possession of articles concealed under earth though the spots at which they were concealed might be accessible to public. The fact discovered must be a relevant fact.—The object of the section is to admit evidence which is relevant to the matter under enquiry, namely, the guilt of the accused and not to admit evidence which is not relevant to that matter. The discovery of material object is of no relevancy to the question whether the accused is guilty of the offence charged against him unless it is connected with the offence. It is, therefore, the connection of the thing discovered which renders its discovery a relevant fact.23 Where the accused produced gandasa from a pond and the gandasa was not blood stained and was not proved to have been connected with the crime, it was held that the statement was not admissible.24 Article not concealed on discovery.—If the article is not concealed and in the normal course the police officer is bound to see it, it cannot be said to have been recovered on the information of the accused.25 If the article is so concealed that it could not be known to others, the statement leading to discovery is relevant under this section.26 But if the place of recovery is accessible to all, it cannot be said to have been recovered on the information of the accused.27 In Brij Mohan and others v. State of Rajasthan,28 recovery of crime article pursuant to the information given by three appellants from the house of one of them, held that there was nothing unnatural. The discovery does not connect accused with the offence.—The discovery of an article does not connect the accused with the crime. It has to be proved that the material fact about which recovery has been made is connected with the crime and that the accused has committed the crime concerned. The evidence of recovery of a pistol at the instance of an accused cannot by itself prove that he who pointed out the weapon wielded it in offence.29 Whether "amounts to confession or not".—The words "whether amounts to confession or not" clearly indicates that this section renders inculpatory statement given to police officer admissible in evidence.30 Statement which relates distinctly to the facts discovered.—An information received from the accused can be received in evidence only when it fulfils two conditions : (1) the information must be such that has caused the discovery of the fact, and (2) the information must relate distinctly to the fact discovered. The requirements of both the conditions specified above must be

________________ 23. 24. 25. 26. 27. 28. 29. 30.

Puran Singh v. Emperor, AIR 1947 Patna 162 ; In re Venkanna, AIR 1948 Mad. 61. Kashi Ram v. Emperor, AIR 1955 Lah 433; Jafar Hussain v. State of Maharashtra, AIR 1970 SC 1934. Amin v. State, AIR 1958 All 293. Narpal Singh v. State of Haryana, AIR 1977 SC 1066 ; Earabha Drappa v. State of Karnataka, AIR 1983 SC 446. Md. Inayatullah v. State of Maharashtra, AIR 1976 SC 483. AIR 1994 SC 739. Doodh Nath Pandey v. State of U.P., AIR 1981 SC 911. State of Himachal Pradesh v. Jeet Singh, AIR 1999 SC 1293.

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satisfied before an incriminating statement can be received in evidence. Thus only that portion of the information is provable which was the immediate or approximate cause of the discovery of the fact. Anything which is not connected with the facts as its cause or is connected with it not as its immediate or direct cause, but as its remote cause does not come within the ambit of the section and should be excluded.31 The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably.' The statement of the accused had to be split up into its components to separate that leading to discovery from that which do not lead to discovery. Then the portion leading to discovery is to be proved.32 The accused stated, "I will tell the place of deposits of the three chemical drums which I took out from the Haji Bunder on 1st August." The only portion relevant is "I will tell the place of deposit of the three chemical drums."33 A was being tried under Section 302, IPC, for having committed the murder of D who was proved to have suddenly disappeared from the house and whose dead body was recovered from a well two days later. At the time of his disappearance D was wearing certain ornaments, but these ornaments were not found on his body at the time of its recovery from the well. During the investigation A was alleged to have made a statement to the police in these terms, "I have removed the karas, have pushed the body in the well and have placed the karas with Alladin" and in consequence of the information so received the karas were recovered from Alladin which were identified as those worn by D at the time of his disappearance. It was held that the statement that the accused has placed with Alladin the karas subsequently recovered from the latter is admissible under Section 27 but that the rest of the incriminating statement that "I have removed the karas and pushed the body in the well" cannot be received in the evidence. Information supplied by a person in custody is that "I will produce a knife concealed in the roof of my house with which I stabbed A". In the statement the words that "I will produce a knife concealed in the roof of my house" does lead to the discovery of the knife and may be proved in the evidence. The words "with which I have stabbed A" are inadmissible and cannot be proved against the accused since they do not relate to the discovery of the knife in the house of the informant. The accused on being arrested made a statement that "about fourteen days ago I, Kotyya, and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pull Pak tank. We all beat Baddupati, China, Sivayya and Subayya to death. The remaining persons Pollayya, Kotayya and Narayana ran away. Dondapati Ramtayya who was in our party received blows on his hand. He had a spear in his hand. He gave it to me then. I hid ________________ 31. 32. 33.

Sukhan v. Emperor, (1929) 20 Lah 283 (FB). Md. Inayatullah v. State of Maharashtra, 1976 SC 483. Ibid at p. 483.

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spear and my stick in the rick of Venkata Narasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya."34 Out of the whole of the above mentioned statement the passage "I hid the spear and my stick in the rick of Venkata Narasu in the village ; I will show if you come" is admissible because this leads to the discovery of stick and spear. The other part of the statement to the effect that the accused and his party lay in wait for the deceased and his party and that they killed them so on and so forth has nothing to do with the discovery of the stick and spear and so cannot be proved against the accused.35 An accused stated to the Sub-Inspector that "I stabbed Sivayya with a spear, I hid the spear in the yard of my village. I will show you the place." The first sentence of this statement, i.e., "I stabbed Sivayya with a spear" must be omitted and cannot be proved. The sentence "I hid the spear in a yard of my village, I will show you the place" will be proved as on this information spear was recovered. Thus it is a settled principle of law that of information received from an accused in the custody of a police officer, only that part is to be proved which leads to the discovery. The part of the statement which has nothing to do with the discovery of the fact but relates to the manner of the committal of the crime, to the part taken by the accused person in it, to the place of occurrence etc., will not be proved. To make the matter clearer we may take one more example. From the words of the section it clearly follows that simple statement or statements while pointing out the scene where the crime was committed, or while producing articles and showing the connection of the place or thing with offence are not rendered admissible under Section 27 but only the statement preceding the finding, upon search or enquiry, of articles or other facts connected with or referable to the crime. The test is, was the fact discovered by reason of the information and how much of the information was the immediate cause of the fact discovered and as such a relevant fact. The information given by a person, body produced by him is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be inadmissible because they do not relate to the discovery of a fact rather they relate to the commission of a crime. If Section 27 would allow the admission of such statements into evidence little substance would remain in the bar imposed by Sections 25 and 26 on confessions made to police officer or by persons in police custody. That bar presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the bar be included in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive power of the police will prove equal to the occasion and that in practice the bar will lose its effects. If upon the discovery of a fact upon the information of an accused the whole of his confession is to be ________________ 34. 35.

Md. Inayatullah v. State of Maharashtra, 1976 SC 483. Pulukuri Kottayya v. Emperor, AIR 1947 PC 67.

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proved, no confession to a police officer will be excluded. The police officer will extract confessions and then will make false recoveries and prove the confessions and the provisions of Sections 24, 25 and 26 will be negatived. A statement made by the accused to the police that the articles recovered in his house were articles of loot is not admissible in evidence.36 Section applies when statement is tried to be proved.—If however, the police officer does not want to prove the information or any part thereof, Section 27 does not come into operation at all. The evidence of the investigating officer was that on a certain day the accused A made a certain statement as a result of which he took accused A and B to Itava and leaving the accused B there the party proceeded to Bhagwasi with the accused A and that the accused A pointed out Balram who at the instance of the accused A dug out from a mud house a tin box containing three revolvers and two tins containing live cartridges. It was held that the statement of the police officer was admissible without attracting the provision of Section 25, Evidence Act.37 Accused of any offence.—The expression 'accused of any offence' is descriptive of the person concerned against whom evidence relating to information alleged to be given by him is made provable by Section 27, Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved against him as a condition of its applicability. The expression "accused of any offence" covers a person accused of an offence at the trial, whether or not he was accused of an offence when he made the confession.38 Accused in custody.—Before the decision in State of U.P. v. Deomani,39 for the application of Section 27 it was necessary : (1) that the person giving information must be an accused at the time of the giving of information, and (2) he must be in police custody. Consequently if the person was in custody but not the accused or he was an accused but not in custody or neither an accused nor in custody, Section 27 was not applicable.40 But now since the decision of Supreme Court in Deomani's case the only necessary factor for application of Section 27 is that the person giving the information must be in a custody. The term 'custody' does not necessarily mean under physical arrest. A person directly giving information by word of mouth may be deemed to have submitted himself to the custody of the police.41 Article 20 (3) of the Constitution and Section 27.—Article 20 (3) of the Constitution reads as "No person accused of an offence shall be compelled to be a witness against himself."

________________ 36. 37. 38. 39. 40. 41.

Gaya Prasad v. State, AIR 1957 All 459 ; Jhimma v. State of Mysore, AIR 1971 SC 1871. Ram Kishen v. Bombay State, AIR 1965 SC 104. State of U.P. v. Deomani, AIR 1960 SC 1125 ; State v. Menon Md., AIR 1959 B 534 ; State of Assam v. U.N. Rajkhowa, 1975 Cr LJ 354. State of U.P. v. Deomani Upadhyay, AIR 1960 SC 1125 ; A. Nagesia v. State of Bihar, AIR 1966 SC119. Queen-Empress v. Babul, ILR 6 All 509. State of Assam v. U. N. Rajkhowa, 1975 Cr LJ 354.

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The information given under Section 27 may be either voluntary or extracted from him by compulsion. In either case before the Indian Constitution was enforced, it was admissible in evidence if the conditions laid down in the section were complied with. But Article 20 (3) of the Constitution embodies the principle of protection against compulsion of selfincriminating and the protection afforded under that article extends to compelled testimony previously obtained from him. Information given to the police by the accused is certainly testimony previously obtained from him for that is intended to be used in a court of law. If that information is not voluntary but is compelled testimony, Article 20 (3) prohibits the user of the said evidence in court. Section 27 of the Evidence Act, and Article 20 (3) of Constitution may be reconciled. Information voluntarily received from an accused relating distinctly to the fact thereby discovered is not hit by Article 20 (3) and is relevant under Section 27. Such information obtained by compulsion was admissible before the Constitution. After the enactment of Article 20 (3) they must be excluded from evidence for otherwise the accused would be compelled to be a witness against himself.42 Article 20 (3) applies to discoveries under Section 27, Evidence Act, if these discoveries are the results of compulsion. The scope of Section 27, Evidence Act is thus restricted by Article 20 (3) of the Constitution and the discoveries which follow a confession brought about by compelling an accused person cannot be used against him.43 A similar view was taken by another Bench of Allahabad High Court.44The Bombay High Court has also held that Section 27 is hit by Article 20 (3).45 Contrary to this it has been held by the Mysore High Court that Section 27 is not controlled by Article 20 (3).46 It is submitted that the Mysore view is wrong. But the mere fact that the accused while making the statement was in police custody will not attract the provision of Article 20. It has to be decided whether or not the accused has been compelled to make the statements.47 Section 162 (1) Cr. P.C. and Section 27 of Evidence Act.—In State of Rajasthan v. Teja Ram & Others,48 the Supreme Court held—If any investigation officer ignorant of Section 162 (1), Cr. P.C. procures the signature I of the person concerned in the statement, it does not mean that witness's testimony in the court thereby becomes contaminated or vitiated. The court will only reassure the witness that he is not bound by that statement albeit his signature finding place thereon, thus apart, the prohibition contained in subsection (1) of Section 162, Cr. P.C. is not applicable to any proceedings made as per Section 27 of Evidence Act. Thus the investigation officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing the seizure memo for recovery of any article covered by Section 27 of J_ Evidence Act but if any signature has been obtained by investigating officer,

________________ 42. 43. 44. 45. 46. 47. 48.

In re Madugula Jermiah, AIR 1957 AP 611. Amin v. State, AIR 1958 All 293. Bhoom Singh v. State, AIR 1957 All 197. Amrut v. State, AIR 1960 Bom 488. In re Govinda, AIR 1958 Mysore 151. State of Bombay v. Kathe Kalu, AIR 1961 SC 1808 ; R.K. Dalmia v. Administration of Delhi, AIR 1962 SC 821. AIR 1999 SC 1776.

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there is nothing wrong or illegal about it. Hence, it could not be said that the signature of the accused in seizure memo would vitiate the evidence regarding recovery of axes. Deposed to.—It is necessary in order to bring a case of discovery within Section 27 that the fact discovered should be deposed to by the person to whom the statement was made.49 A report is made against one Hari that he murdered a man with a knife. Hari is arrested by the police. He states that he murdered the man with a knife and has buried it behind his house. The knife is recovered on his information. At the trial of Hari if the prosecution wants to prove the relevant part of his statement, some witness has to depose the discovery first. The Sub-Inspector or any other witness will state that the knife was recovered in consequence of the information of Hari. Then it will be proved that Hari said that he had buried the knife in his house. The discovery statement to be used only against the maker.—The statement leading to discovery can be used only against the maker of the statement. It cannot be used against non-makers.50 In State of Haryana v. Ram Singh,51 the question before Supreme Court arose as to evidentiary value of discoveries made in presence of interested witness. Discovery was made as a result of disclosure by the accused. No independent witness was found out for the purpose. It was held by Supreme Court that it created doubt as to whether the same had been tailor-made or not. Benefit of doubt must go to the accused. It was more so when in instant case High Court had acquitted one of the accused persons on the basis of discrepancy between oral testimony and documentary evidence as to such recovery. Information by two or more accused.—It may happen that two or more persons may be accused in a criminal case. Anyone of the accused may give information in consequence of which a fact may be discovered. The other accused may also give like information. In such cases the statement made by the first person under Section 27 may be treated as evidence against him but it is not allowable to treat it the evidence against the other persons who have afterwards made the statement of the same description as has been done by the first accused. A, B and C are accused of murder of D. A makes a statement to the Sub-Inspector while in the custody that "I together with 6 and C murdered D and have concealed his body under a culvert." Afterwards B and C also make the similar statements. The dead body was recovered in consequence of their information. The statement of A that "I concealed the dead body of D under a culvert" is admissible against him. The statements of B and C to the same effect cannot be proved against them for the simple reason that it cannot be said that the dead body was discovered in consequence of the information given by all the accused. When a fact is discovered in consequence of the information received from one of several persons charged with an offence, and others give like information of that fact should not be treated as discovered from the information of them all. It should be deposed that a particular fact has been

________________ 49. 50. 51.

Kottayya v. Emperor, AIR 1967 PC 67. Mahendra Mondal v. State of Bihar, 1991 Cr LJ 1030. AIR 2002 SC 620.

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discovered from the information of the particular accused and this will let in so much of the information as relates distinctly to the information therein discovered.52 Section 27 ought to be strictly construed. The use of the words "a person" in singular in Section 27 is somewhat significant. The words are used in singular designedly because the joint statement of a number of persons cannot be said to be an information received from anyone of them. When a fact is discovered in consequence of information received from one of several persons charged with an offence and others give the like information it is impossible to treat the discovery as having been made from the information received from each one of them. Simultaneous information by many accused.—If the prosecution is in a position to establish that the statement by two or more persons which led to the discovery of certain facts were actually made simultaneously the evidence with regard to this simultaneous statement would not be entirely shut out by the provision of this section.53 But there must be clear and satisfactory evidence on this point such as enables the court to decide specifically as to whether the evidence is admissible against both of the accused or either and if so against which. That is the view of the High Courts of Allahabad and Calcutta.54 The Orissa High Court has taken a different view. It has held, where as a result of joint statement of accused persons the dead body of the deceased is discovered but the evidence is not clear as to who gave the information first and who next, it cannot be said that either of the accused made the crucial statement which led to the discovery and, therefore, the joint statement would not be admissible in evidence to admit the guilt of the accused.55 Statement by one accused in presence of his co-accused in leading to the discovery of an axe is admissible only against the accused making it. It cannot be used against the other accused. A statement of one accused leading to the discovery of certain facts and inculpating other accused has a very little evidentiary value against the co-accused. The point came for determination before the Supreme Court in Lachiman Singh v. State,56 but was not decided. On the evening of 16th December, 1948, Achhar Singh went to the house of one Inder Singh for getting paddy husked. Darshan Singh his brother also went there. While the two brothers were returning home they were attacked by the three appellants and two of their relatives. The five assailants inflicted a number of injuries on the two victims as a result of which they died then and there. After the murder the appellants and their companions tied the two dead bodies in two wrappers and took them to village Salimpura where two other persons Ajit Singh and Banta Singh joined them, and the dead bodies after being dismembered were thrown into a stream known as Saki Nala.

________________ 52. 53. 54. 55. 56.

R. v. Babul, 6 All 509. Puttu v. Emperor, AIR 1945 Oudh 285 ; Fakira v. Emperor, 1929 Lah 665 ; Emperor v. Sheopujia, AIR 1930 Bom. 244 ; Kuddu v. Emperor, AIR 1925 Nag. 407; Pashki v. State, 1953 ALJ 115. Abdul Qadir v. Emperor, AIR 1946 Cal. pp. 452 to 456 ; Queen-Empress v. Babul, 6 All. 509 (FB). Guru Baru Paraia v. King, AIR 1949 Orissa 67. Lachiman Singh v. The State, AIR 1952 SC 167; Abdul Hafiz v. State of A.P., AIR 1983 SC 367.

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According to the prosecution, all the three accused were interrogated by the police. They made certain statements which were duly recorded by the police. In these statements it was disclosed that the dead bodies were thrown in the Saki Nala. Thereafter, the police party with the three accused went to Saki Nala, where each, of them pointed out the place where the different parts of the dead bodies were discovered. It was observed : "It seems to us that if the evidence adduced by the prosecution is found to be open to suspicions and it appears that the police have deliberately attributed similar confessional statement relating to facts discovered to different accused persons, in order to create evidence against all of them, the case undoubtedly demands a most conscious approach. But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in Section 27, Evidence Act having been made by several accused persons either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the case relied upon by the accused have perhaps gone further than is warranted by the language of Section 27.57 It has been held by the Kerala High Court that where individual statements recorded from each of the accused were of the same pattern and referred to same articles, and all of them declared that if the inspector accompanied them they would point out the place at which the articles were hidden. It was held as there was no knowledge on whose information the material fact was discovered, the statements were not admissible.58 Discovery on the information of the accused.—The discovery to be admissible under Section 27 must be based on the information given by the accused. Discovery of incriminating articles alleged to have been recovered by the accused is not admissible in evidence, if the police already knew where they were hidden. The accused was tried for murder. It was in evidence that he was bearing a false beard and a mask at the time of murder. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of Panchas. Dewayat said that appellant confessed the murder to him and told him that he had gone there wearing a false beard and a mask and that he had buried these articles under the Shammi tree. Dewayat said, "Next the police called me to go to Kalawad. At that time Raja (accused) had been arrested. I was interrogated. I spoke about the beard at that time. Then the police came to my field with Raja". It was held that the discoveries were inadmissible in evidence because the police already knew where they were hidden.59 Seizure of weapon not material when there is direct evidence.— In a case where there is direct evidence, even the seizure of weapon is not very material.60 Mere recovery of weapon is not a proof that the accused had committed the crime.61

________________ 57. 58. 59. 60. 61.

Kurappa v. State, AIR 1960 Ker. 238. Raja Khime v. State of Saurashtra, AIR 1956 SC 217. Ibid; Jaffar Hussain Dastager v. State of Maharashtra, AIR 1970 SC 1934. Pradumansingh Kalubha v. State of Gujarat, AIR 1992 SC 881. Nirmal Kumar v. State of UP, AIR 1992 SC 1131.

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In Sanjay alias Kaka v. State of Delhi, Nawabuddin alias Nawab v. State of Delhi and Vinod Kumar v. State of Delhi,62 the recovery of article was made on the basis of disclosure statement by the accused alleged to have committed robbery and murder. After recovery of the article, the daughter of the deceased stated that she identified the article as belonging to her mother which was stolen on the day of murder. Held—It cannot be said that recovery of article had preceded the making of disclosure of statement. Discovery a weak kind of evidence.—Discovery is a weak kind of evidence and cannot be wholly relied upon in a serious matter so where the prosecution discovered some articles ten days after murder barely 300 feet away from the dead body of the deceased and no attempt was made by the prosecution to prove that discovered articles belonged to the accused and there was also no evidence of motive of murder, it was held to be a clear case of benefit of doubt.63 When the sword, the weapon of murder, was alleged to be recovered on disclosure statement made by the accused but it was not sent for any examination by the Forensic Science Laboratory and the report, if any, was not exhibited and even no question in that regard was put to the accused when he was examined under Section 313 Cr. P. C., the conviction of the accused on the basis of this evidence could not be upheld.64 Where the prosecution witness stated in cross-examination that the waist-cord which had been used for strangulating the deceased was recovered much earlier from the scene of offence by the police itself and the waist cord was not even produced before the Court and it might be that some other witness had stated that the waist-cord was not recovered from the spot, the benefit of doubt must go to the accused.65 Section 27—Proviso to the preceding sections.—Section 27 is very unhappily worded. The section begins with the words "provided that". It appears that it is not an independent section because had it been an independent section, it would not have begun with the word "provided" which is always given in the beginning of some proviso of some section. At the same time, it is numbered as independent section. Sections 24,25 and 26 exclude confession under certain circumstances. Section 24 lays down that if the confession appears to have been caused by threat, or promise, or inducement, it cannot be proved. Section 25 lays down that confession made to the police officer cannot be proved against an accused. Section 26 lays down that a confession made by any person while in custody of a police officer to any person other than a Magistrate will not be proved. Section 27 is a proviso, that is, a controlling section and furnishes an exception to the rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact. Now, if Section 27 is proviso to Sections 25 and 26 only, the statement of the accused leading to the discovery of the fact will be proved only if the accused was in the custody

________________ 62. 63. 64. 65.

AIR 2001 SC 979. Mani v. State of Tamil Nadu, AIR 2008 SC 1021 at p. 1025. State of Rajasthan v. Wakteng, AIR 2007 SC 2020 at p. 2023. State of Rajasthan v. Kashi Ram, AIR 2007 SC 144 at p. 148.

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of the police when he made the statement. According to this view if a statement is made due to inducement, threat or promise and in consequence of which some fact is discovered, the statement will not be proved. But if Section 27 is proviso to Sections 24, 25 and 26 that will be admissible. The Bombay High Court has held that Section 27, Evidence Act is an exception to Section 26 only. On the other hand, the High Courts of Allahabad,66 Calcutta and Patna have held that Section 27 is a proviso to Sections 24, 25 and 26. The accused B and R were charged under Section 414, I. P. C. They stated to one constable Hafizullah to the effect that they had stolen the cows and cock and sold them in Mauza Madanpur to one Abdul Rahman and had stolen the goat in Bhelupur and sold it. The cattle were recovered in consequence of the information given by the accused. This confession was made to the police officer and must be excluded according to Section 25, if Section 27 does not control it. The question whether these confessions as they were made to the police officer were admissible in evidence against them under Section 27 of the Evidence Act was referred to the Full Bench for opinion. The Full Bench held that Section 27 of the Indian Evidence Act is a proviso not only to Section 26 but also to Section 25 and that therefore so much of the information given by the accused to the police officer whether amounting to confession or not as distinctly related to the fact thereby discovered might be proved.67 M, a woman was charged with the murder of a girl. On the hope of pardon being given to her, she took the police to a place and pointed out and produced certain ornaments which the deceased was wearing at the time of her death. Now this confession was taken from the accused by promising pardon to her and is clearly excluded by Section 24 if, that section is not controlled by Section 27. Their Lordships of the Allahabad High Court held that the statement leading to discovery of ornaments was admissible.68 Accordingly if a confession comes within the purview of Section 27 and leads to the discovery of certain fact it would be admissible in evidence even if it is hit by Section 24 as having been obtained by inducement, threat or promise. A similar view was held by Patna High Court.69 Other High Courts are of the same view. It is now clear beyond all doubt that Section 27 controls the three earlier sections, namely Sections 24, 25 and 26.70 The Bombay High Court has held that statements leading to discovery are admissible under Section 27, Evidence Act, although they are statements made to the police in the course of investigation.71 But the principle of Section 24 applies to the statements under Section 27 and if the statement is involuntary, it would be excluded. Where the statements leading to discovery were made to the police as a result of harassment and continuous interrogatories for several hours after the person is treated as an offender and accused, such statements must be regarded as involuntary and must, therefore, be excluded

________________ 66. 67. 68. 69. 70. 71.

Queen-Empress v. Babul Lal, 6 All. 509 (FB). Queen-Empress v. Babul Lal, 6 All. 509 (FB), Mst. Misri v. King-Emperor, 6 ALJ 8, 9. Emperor v. Remisheistian, AIR 1947 Patna 152. Hakim Khan v. Emperor, AIR 1940 Lah 129. Amrut v. State of Bombay, AIR 1960 Bom. 488.

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from evidence. In this case the Judge of the Bombay High Court relied upon Ramkishan v. State of Bombay.72 In this case it was held that Section 27, Evidence Act is an exception to the rules enacted in Sections 25 and 26 of the Act.73 By this observation it cannot be said that Section 27 is not a proviso to Section 24. If a fact is discovered upon the information of an accused, it is almost certain that the accused has the knowledge that the particular article was concealed at particular place. It will not make any difference at all whether the information by the accused was given voluntarily or it was outcome of some inducement, threat or promise. In my opinion, Section 27 is proviso to Section 24 also. In an Allahabad case, it has been held that where facts disclosed point to the accused having been subjected to third degree methods prior to the discovery of a dead body, the genuineness of the discovery is rendered doubtful and the discovery becomes worthless as a piece of evidence, the reason is that although discovery by itself is a guarantee of the genuineness of the discovery there may be cases where the circumstances are such that the fact that the discovery was induced by a promise would raise a doubt as to genuineness of this discovery and render the evidence almost worthless.74 It may be submitted that the decision of this case is not an authority to the effect that Section 27 is not a proviso to Section 24. In this case, the very discovery was doubted. Whether Section 27 is proviso to Section 24 or not, as seen above the statements made by the accused leading to discovery obtained by pressure are hit by Article 20 of the Constitution of India and is not admissible. Supreme Courts views.—Supreme Court has held that Section 27 is an exception to Sections 24 to 26.75 It may be submitted that ingredients of Section 24 are so embracing that it may co-exist with the cases covered by Sections 25 and 26. The correct position is that Section 27 is proviso to Sections 24 to 26. Section 27 and Article 14 of the Constitution.—In State of U.P. v. Deoman Upadhyay,76 Deoman was married to one Dulari, Dulari's parents had died in her infancy, and she was brought up by Sukh Dei her cousin. Sukh Dei gifted certain agricultural land inherited by her from father to Dulari. The land gifted to Dulari and the land of Sukh Dei were cultivated by Mahabir, uncle of Deoman. Mahabir and Deoman entered the negotiations for the sale of some of these lands situated at a village to Anand Din. Sukh Dei refused to agree to the proposed sale. According to the case of prosecution in the evening of 18th June, 1958, there was an altercation between Deoman and Sukh Dei. Deoman slapped Sukh Dei on her face and threatened that he wouldsmashher face. Early in the morning of June, 19 Deoman made a murderous assault with a gandasa upon Sukh Dei who was sleeping in the court-yard near her house and killed her on the spot. Thereafter he threw the gandasa in the village tank washed himself and absconded from the village. He was arrested in the

________________ 72. 73. 74. 75. 76.

AIR 1955 SC 104 ; Delhi Administration v. Bal Krishna, AIR 1972 SC 3. Dhoom Singh v. State, AIR 1957 All. 197. Dhoom Singh v. State, AIR 1957 All. 197. Inayatulla v. State of Maharashtra, AIR 1976 SC 483. AIR 1960 SC 1125.

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afternoon of the 20th June. On 21st June, he offered to hand over the gandasa which he said he had thrown in the village tank and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa which on examination by the serologist was found to be stained with human blood. He was convicted by the Sessions Judge and was sentenced to death. In appeal it was held that inasmuch as Section 27 of the Evidence Act, creates an unjustifiable discrimination, between "persons in custody" and "persons out of custody" and in that may offend Article 14 of the Constitution and Deoman was acquitted. The State of U.P. appealed against the judgment of High Court in Supreme Court. It was held that the distinction arising in the matter of admissibility of such statements made to the police officer in the course of an investigation between person in custody and persons not in custody, has little practical significance. When a person not in custody approaches a police officer investigating an offence and offers to give an information leading to the discovery of a fact, having a bearing on the charge which may be made against him. He may appropriately be deemed to have surrendered himself to the police. Exceptional cases may certainly be imagined in which a person may give information presenting himself before a police officer who is investigating an offence. For instance he may write a letter and give such informations of send a telephonic or other message to the police officer. But in considering whether a statement is the constitutional on the ground that the law has given equal treatment to all persons similarly circumstanced, it must be remembered that the Legislature has to deal with the practical problems. The question is not be judged by merely enumerating other theoretically possible situations to which the statute might have been put is not applied. In that promise and considered in that background that "persons in custody" and "persons not in custody" do not stand on the same footing nor require identical protection is the mere theoretical possibility of some degree of unequality of the protection of law relating to the admissibility of evidence Between persons in custody and persons not in custody by itself a ground for striking down a solution or problem of law of evidence. It was held that Section 27 did not offend Article 14 of the Constitution. The appeal was allowed.77 SECTION 28.—Confession made after removal of impression caused by inducement, threat or promise, relevant.—If such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. COMMENTS Confession after removal of threat or promise.— Under Section 24 we have seen that if in the opinion of a court a confession seems to have been

________________ 77.

State of U.P. v. Deoman, AIR 1960 SC 1125.

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caused by any inducement, threat or promise having reference to the charge and proceeding from a person in authority, it is irrelevant and cannot be proved even against a person making the confession. Section 28 provides that if there is inducement, threat or promise given to the accused in order to obtain confession of guilt from him but the confession is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, the confession will be relevant because it becomes pre and voluntary. It must be borne in mind that there must be strong and cogent evidence that the influence of the inducement has really ceased. A female servant was suspected of stealing money. Her mistress on Monday told her that she would forgive her if she told the truth. On Tuesday she was taken before a Magistrate and as no one gave any evidence against her she was let off. On Wednesday she was again arrested. The Superintendent of Police went with her mistress into Bridewell and told her in the presence of her mistress that "she was not bound to say anything unless she liked and that if she had anything to say, her mistress would hear her" (not knowing that her mistress had promised to forgive her). He did not tell her that if she made a statement it might be given in evidence against her. The prisoner then made a statement confessing the guilt. It was held that this evidence was not admissible in evidence as the promise of the mistress must be considered as still operating on the prisoner's mind at the time of her statement. Had the mistress not been present on the spot it might have been otherwise. The mistress had promised her that she would forgive her if she told the truth. It is very probable that the servant made the statement in pursuance of that inducement of her mistress and so it cannot be said that impression caused by the inducement of the mistress had been fully removed before confession was made. The general principle is universally conceded that the subsequent ending of an improper inducement must be shown. It is assumed to have continued until the contrary is shown, i.e. if it is proved that there has been some inducement, threat or promise towards the accused and after that he made certain confessions it should be presumed that confession was made in the existence of the impression of inducement, threat or promise and it lies very heavily on the prosecution to prove that at the time when confession was made the impression of inducement, threat or promise had already been removed. 78 The fact that the accused had been 12 days in police custody after the police beating or threat and had time to reflect before making a confession to a Magistrate, will not necessarily lessen the effect of the influence which had been brought to bear on him.79 Impression produced by promise or threat may be removed (1) by lapse of time, or (2) by an intervening caution given by some person of superior (but not of an equal or inferior) authority to the person holding out the inducement, where a prisoner confessed some months after the promise and after the warning his confession was received. ____________________ 78. Bhagirathi v. State of M.P., AIR 1959 M.P. 17, 79. Narain v. Kutch Government, AIR 1959 Kutch 27.

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ECTION 29.—Confession otherwise relevant not to become irrelevant because of promise

of secrecy, etc.—If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. COMMENTS Confession on promise of secrecy, etc.— Section 29 lays down that if a confession is relevant, that is, if it is not excluded from being proved by any other provision of Indian Evidence Act, it cannot be irrelevant if it was taken from the accused by (1) giving him promise of secrecy, or (2) by deceiving him, or (3) when he was drunk, or (4) because it was made clear in answer to question which he need not have answered, or because no warning was given that he was not bound to say anything and that whatever he will state will be used against him. Section 24 lays down that a confession which is the outcome of inducement, threat or promise from a person in authority would not be relevant. Section 25 lays down that a confession to a police officer is irrelevant. Section 26 excludes the statement of an accused in a police custody to any person other than a Magistrate. Section 29 lays down that if a confession is not excluded by Sections 24, 25 or 29 it will not be excluded on the ground of the promise of secrecy or of deception or of being drunk, or for being made in answer to question or without warning that it will be used against him in evidence. To be clear it may be said that if a confession is made voluntary without any inducement, threat or promise from a person in authority and if it is not made to a police officer nor was it made while the accused was in police custody to any person other than a Magistrate, it will be received in evidence even if it was made by a promise of secrecy, in consequence of deception, in a state of drunkenness, or in answer to questions or without any warning that it may be used against him. Section 29 assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provision, viz, Sections 24 to 26 and it then proceeds to invalidate or negative other positive objections or bars that may be raised against its admissibility.80 A confession obtained from an accused by promise of secrecy is relevant under this section. A is accused of murdering B. C is a friend of A. While sitting in a lonely place C asked A whether he had killed B. A hesitated to answer, C said "I swear by God that I will not tell it to anybody if you tell me the truth." A confessed to his friend C that it was really he who committed the murder of B. This statement has been obtained by a promise of secrecy but this will not be excluded and may be proved under Section 29 because it is otherwise relevant

_____________ ____________________ 80. Rangappa Hanamppa v. State, AIR 1954 Bom. 285.

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that is to say it is neither obtained by inducement, threat or promise in connection with the crime of the accused from a person in authority. A is arrested for the murder of B and is kept up in jail. A writes a letter to his father expressing his regret for having committed a very heinous offence by murdering B. The gatekeeper made a promise to the accused that he will give the letter to his father and to nobody else, but when he got the letter from the accused, he delivered it to the authorities. Here though the confessional statement of the accused, was taken by the gate-keeper by practising fraud upon him, the statement is admissible as it was not taken by inducement, threat or promise emanating from a man in authority nor was it made to any police officer nor to anybody else while the accused was in custody of the police officer. Generally when a man is under intoxication he confess the guilt. If confessional statement is made by some accused person while he was drunk, it will be admissible if he had not become quite senseless for the very reason that it has not been obtained by inducement or threat nor was it made while he was in custody of a police officer. When a statement is made voluntarily without inducement, threat or promise from a man in authority ; and when it is not made to a police officer or made while the accused was in custody of the police officer, it is admissible notwithstanding the fact that the person who took the confessional statement did not warn the accused that he was not bound to make the statement and if he did so, it may be used in evidence against him and upon that he may be convicted. Want of warning.—A voluntary confession is admissible, though it does not appear that the prisoner was warned, and even though it appears on the contrary that he was not so warned. Section 164 (2), Criminal Procedure Code, 1973 and Section 29.— Section 164 (2), Criminal Procedure Code, 1973 [corresponding to old Section 164 (3)] Magistrate shall before recording a confession made to him during the course of an investigation under Chapter XII of the Cr. P. Code, 1973 explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him. There is a conflict of authority as to whether this provision overrides Section 29 of the Evidence Act. In some cases it has been held that Section 164 (2), Criminal Procedure Code does not override Section 29 and that even if the provisions of Section 164 (3), Criminal Procedure Code are not complied with, the confession is admissible.81 In other words, according to these decisions a confession otherwise admissible does not become inadmissible merely because the accused was not warned that he was not bound to make the confession and that if he does so it may be used as evidence against him. By a full Bench of Orissa High Court it has been held that where the requirements of Section 164 (2) [corresponding to old Section 164 (3)] of the Code have not been provided substantially complied with, what

_____________ ________________

81. Vella M. Goundan v. Emperor, AIR 1932 Mad. 431 ; Emperor v. Nanua, AIR 1941 All. 145 ; Rangappa Hanamppa v. State, AIR 1954 Bom 285 ; Dhula v. State, AIR 1957 Raj 141 : 1957 AP 729.

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purports to be the confessional statement cannot be treated as a validly recorded confession under Section 164 which could be brought in under Section 26, Evidence Act and there is thus no scope for invoking the Section 29, Evidence Act.82 A similar view was expressed by the High Court of Andhra Pradesh.83 The Madras High Court has, in a later case, held that though Section 29, Evidence Act, makes a confession made by an accused person who had not been warned according to the provisions of Section 164 of Criminal Procedure Code, admissible in evidence still the court must find out how far such confession can be acted upon.84 The Orissa High Court has held that where there is substantial compliance with the provision of Section 164, Cr. P.C., reliance can be placed on Section 29, Evidence Act.85 The Patna High Court has held that Section 29 covers the field of confessions other than those dealt with in the preceding Sections (24 to 28) or in other words extra-judicial confessions. Section 29 was meant to dispel doubts with regard to extra-judicial confession made under circumstances similar to those which make judicial confession inadmissible and with respect to confessions relevant otherwise than as confessions. For example, an admission under conditions not requiring proof of guilt.86 The Supreme Court in Singhara Singh's case87 has definitely held that if confession recorded by a Magistrate is not recorded as directed under Section 164, Cr. P.C. would not be admissible. Therefore, it would be implied that a confession recorded under Section 164, Cr. P.C, without warning would not be admissible. It is, therefore, submitted that the correct view is that Section 29 applies to extra-judicial confessions.

S

ECTION 30.—Consideration of proved confession affecting person making it and

others jointly under trial for same offence.— When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.— "Offence " as used in this section includes the abetment of or attempt to commit, the offence. ILLUSTRATIONS (a) A and B are jointly tried for the murder of C. It is proved that A said.—"B and I murdered C." The Court may consider the effect of this confession as against B.

____________________

82. Bala Manjhi v. State of Orissa, AIR 1951 Orissa 168 (FB). 83. AIR 1957 Andhra Pradesh 729. 84. In re Karuna Thambi, AIR 1950 Mad 579. 85. Shanti v. State, 1977 Cr. LJ 2053. 86. Emperor v. Jamna Singh, AIR 1947 Patna 305. 87. U.P. STATE V. SINGhara Singh, AIR 1964 SC 358.

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(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—"A and I murdered C." This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. COMMENTS Use of confession by one accused against others.—As seen before, a confession may be used as evidence against the person making it, and it is strong piece of evidence against him. Section 30 lays down that when two or more persons are tried jointly for the same offence, and the confession made by one of them is proved at the trial, the Court may take into consideration that confession against the other accused as well as the accused confessing the guilt. Principle underlying.—Where more persons than one are jointly tried for the same offence, the confession made by one of them, if admissible in evidence at all, should be taken into consideration against all the accused, and not against the person alone who made it. It appears to be very strange that the confession of one person is to be taken into consideration against another. Where the confession of one accused is proved at the trial, the other accused persons have no opportunity to cross-examine him. It is opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross-examine the person making the statement. This section is an exception to the rule that the confession of one person is entirely inadmissible against another. The principle underlying this section is thus stated by Phear, J. : "It seems to me that it is the implication of himself by the confessing person which is intended by the Legislature to take the place, as it were of the sanction of an oath, or rather which is supposed to serve as some guarantee for the truth of the accusation against the other. Where a person admits guilt to the fullest extent and expose himself to the pains and penalties provided for his guilt, there is guarantee for his truth and the Legislature provides that his statement may be considered against his fellow prisoners charged with the same offence." But this principle is not very sound. In the first place the confession of a crime is not an absolute guarantee of its truth as the person making it, for it may have been made from a sense of hopelessness of contending against the array of circumstantial evidence against him. At the same time, it does not necessarily follow that because a man has truly implicated himself, therefore his implication of another is also true. In Kashmira Singh v. State of M.P.,88 the accused Kashmira who was an Assistant Food Procurement Inspector, his services along with the services of another Food Inspector were terminated on a report of the Food Officer when they were found getting the rice polished in a rice-mill. Kashmira was heard twice saying that he would teach a lesson to the Food Officer. After few months, the son of the Food Officer went missing and his body was found in a well. Kashmira, Gurudayal brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw-puller in this case were tried for conspiracy and killing the child. The prosecution story was that Prithipal led the child, ____________________ 88.

AIR 1952 SC 159.

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when he was playing near a Gurudwara, for some distance and then the child was taken on cycle by Kashmira to a house where he was murdered. The dead-body was packed in a gunny-bag taken on head and rickshaw and then thrown into the well from where it was recovered. Gurubachan confessed his crime and he was sentenced to death and was ultimately executed. Kashmira was also sentenced to death on the basis of confession made by Gurubachan. It was held by the Supreme Court following Privy Council decision in Bhubani Sahu v. King89 that the confession of co-accused is a very weak type of evidence. It is not recorded on oath nor it is tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver as the approver gives his testimony under oath and is subjected to cross-examination. Therefore, the confession of co-accused cannot be made the basis of conviction of accused. According to Justice Bose of the Supreme Court the proper test in such a case is first to marshall the evidence against the accused excluding the confession altogether from consideration and see, whether, if it is believed, conviction could be safely based upon it. If it is capable of belief independently of the confession, then of course it is unnecessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence, as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus satisfy himself in believing that "which without the aid of confession, he would not be prepared to accept". According to the judgment of the Supreme Court Gurubachan was not a rickshaw puller by profession and it appeared that rickshaw was hired only for that night for disposal of body of the deceased. He was like an accomplice and not an independent witness. His confession could not be corroborated by the evidence as he was not reliable witness because hiring the rickshaw by the accused and taking Gurubachan to the place where the body was thrown into well and he becoming witness of crime when the body had already been taken for more than half distance on the head did not show the witness being independent. As regards motive of the accused, it was held that the accused had strong motive to take revenge but other persons dismissed from their services had also similar motives. The Supreme Court referred to Bhubani Sahu v. King,90 in which the Privy Council observed that there was a peculiar tendency prevalent in India to mix innocent with guilty and the only safeguard against the danger of condemning the innocent with guilty could be only by insisting on independent witness. Before the confession of one accused may be taken into consideration against others, it has to be shown that (1) the person confessing and the others are being tried jointly, (2) they are being tried for the same offence, (3) the confession (to be taken into consideration) is affecting the confessioner and the others. Tried jointly.—One of the tests as to whether the confession of an accused person can be used as against his co-accused is, whether they are tried jointly.

____________________ 89.

AIR 1949 PC 257.

90.

76 IA 147.

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[S. 30

A, B and C commit murder of D. Out of them only A is arrested. B and C abscond. A makes a confession. He is tried and convicted. Afterwards B and C are arrested and sent for trial. At their trial the confession of A cannot be taken into consideration for the simple reason that they are not tried jointly. Under Section 30 the statement of one accused is admissible as against his co-accused only when they are tried jointly.91 Persons originally charged with accused but discharged on withdrawal of case against him is a competent witness and his confession cannot be used against the other accused. If the person making the confession died and was never brought to trial, his confession would not be admissible under this section as the confession of a coaccused.92 But where during the course of joint trial of two accused, one died but before his death his confession had been put on the record, it was held that the confession could be used against the other accused.93 In Suresh Budharmal Kalani alias Pappu Kalani v. State of Maharashtra,94 it was held by Supreme Court that when accused making confessional trial was discharged not facing trial. His statement cannot be used against co-accused. For the same offence.—For using confession of one accused against the other only their joint trial is not necessary. It is also necessary that they should be tried for the same offence. The expression 'same offence' in Section 30 means the identical offence and does not mean offence of the same kind. Offences are of the same kind when they are punishable with the same amount of punishment under the same section of Indian Penal Code or of any special or local law. If two persons are charged under Section 325, I.P.C., they are said to be charged with the offence of same kind. A is charged under Section 325,I.P.C., for having caused grievous injury to B,C is charged for having caused grievous injury to G. Suppose A and G are tried jointly and A makes a confession to the effect that he caused grievous hurt to B. This confession of A cannot be used against C, because they are not tried for the same offence. But if A and C are tried jointly and both of them are charged for having caused grievous injury to B and if A makes a statement that he and C caused grievous hurt to B, the statement may be used against both of them. Section 30 does not cover different offences in the same transaction by different persons. If different offences are committed in course of same transaction and many persons are tried jointly for different offences, the confession of one of such persons cannot be used against the others. Where two persons are tried jointly, but one is charged with offences under Section 372 and other under Section 373, I.P.C., a confession made by one of them cannot be admitted against the other under Section 30, Evidence Act.95 Where two persons are accused of an offence under Section 411, I.P.C. and another of offence under Section 457, I.P.C., the offences arising out of the same transaction, it was held that the confession of

____________________

91. AIR 1937 Sind 218. 92. Dengo Kendero v. Emperor, AIR 1938 Sind 94. 93. Ram Swaroop v. Emperor, AIR 1937 Cal 39. 94. AIR 1998 SC 3258. 95. Dy. Legal Remembrancer v. Karuna Baisstoki. 22 Cal 164

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the third accused would not be used under Section 30, Evidence Act against the other two accused.96 Where three accused persons are tried jointly, two of whom were charged for offences under Sections 302 and 457, I. P. C. and the third offence under Section 411, I.P.C., it was held that confession of the third accused would not be taken into consideration to determine the guilt of the first two accused.97 A number of persons were charged under Section 302,I. P. C. One of them was charged of offence under Section 201 of the same Code, the confession of the latter of the offence under Section 201 cannot be taken into account against the other accused with regard to charge under Section 302.98 Statement by one accused leading to discovery.—A statement of one accused leading to discovery cannot be used against a co-accused under Section 30 of the Act.99 Affecting himself and some other.—To render the confession of the one person jointly tried with another admissible in evidence against the latter, it must appear that the confession implicates the confessing person and the other accused. As to the extent of implication there is controversy between the High Courts. Some High Courts have held, before the confession of a person jointly tried with a co-accused can be taken into consideration against such co-accused, it must appear that the confession implicates the confessing person substantially to the same extent as it implicates the person against whom it is to be used in the commission of the offence in which they are jointly tried,1 while some other High Courts have held that a confession is admissible against the co-accused whether the maker ascribes to himself major or minor part in the crime. They have also held the confession need not implicate the maker to the same extent as the other co-accused.2 The controversy seem to have been almost settled by the Supreme Court. So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other accused if it fulfils the conditions laid down under Section 30 of Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration.3 Where on reading the confession as a whole it appears that he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator of the crime committed by the other accused, the utmost that can be stated is that the confession cannot be used at all against the other accused.4 Retracted confession of co-accused.—It is clear from the terms of the section that where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of

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96. Kundan v. Emperor, AIR 1950 Sind 65. 97. Bhagi v. Crown, AIR 1950 HP 35. 98. Ganganna v. Emperor, AIR 1946 Mad 124. 99. Nabi Md. v. State of Maharashtra, 1980 Cr LJ 860. 1. Sheroo v. Emperor, AIR 1925 Nag 78 ; Emperor v. Chhatrapal Singh, AIR 1930 Oudh 502 ; Kunja Subudhi v. Emperor, AIR 1929 Patna 275 ; Shamboo v. Emperor, AIR 1932 All 228. 2. Dhanpal v. Emperor, AIR 1946 Cal 156. 3. Balbir Singh v. State of Punjab, AIR 1957 SC 216. 4. Rajani Kant v. State, 1967 Goa 21 (FB); C. Das v. State. AIR 1971 Orissa 100.

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his co-accused can be taken into consideration by the court not only against the maker of confession but also against his co-accused. The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. The Act does not prevent the court from taking into consideration retracted confession against the confessing accused and his co-accused.5 But it is a very weak evidence.6 May take into consideration.—Section 30 does not say that the confession of one accused will be evidence against the co-accused. It only says that the court may take into consideration such confession. The confession of a co-accused is not evidence. No conviction can be based upon it solely. It can be used only to corroborate other evidence of the record. "A confession of co-accused can be used to corroborate other evidence. It might assist the court in coming to the conclusion that the other evidence is true and therefore, an accused is guilty. The conviction must be based on other evidence. The confession can only be used to help to satisfy a court that the other evidence is true.7 In Kashmira Singh v. State of M.P.,8 one L.P. Tiwari was the Food Officer at Gondia. The appellant Kashmira Singh was an Assistant Food Procurement Inspector there. On 1st July, 1949 Tiwari found the appellant getting rice polished at certain rice mill. At that date the polishing of rice was prohibited by the State Law. Tewari reported the matter to the higher authorities. The appellant was suspended and later on his services were terminated by an order of the State Government with effect from the 7th July. This embittered the appellant who on atleast two occasions was heard to express a determination to be revenged. Ramesh was the son of L.P. Tiwari. In pursuance of this determination, Kashmira Singh got into touch with Guru Bachan Singh and enlisted his services for murdering the boy Ramesh. On 26th December, 1949, religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and from there was enticed to the house of the appellant's brother Gurdayal Singh and was done to death in the middle of the day at about 12. The boy was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal's house till about 7 p.m. At about 7 p.m. the body, wrapped as above, was carried by Guru Bachan Singh on his head to a chowkidar's hut near the Sikh Gurudwara and it was left there till about midnight. Shortly before midnight the appellant and Guru Bachan engaged the services of rickshaw coolie Shambhu. They took him to chowkidar's hut, recovered the bundle of bedding and went in the Rickshaw to a well there. The body was thrown into the well. .Guru Bachan Singh made a confession in which he implicated himself and the appellant. The appellant and Guru Bachan Singh were tried jointly for the offence of murder. They were convicted by trial

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5. Ram Prakash v. State of Punjab, AIR 1959 SC 1; Hussain v. Daleep Singh, AIR 1970, SC 45. 6. Haroon Haji v. State of Maharashtra, AIR 1968 SC 832. 7. Chandra Das v. State, AIR 1952 Cal 618 ; Bhuboni Sahu v. Emperor, AIR 1949 PC 527. 8. AIR 1952 SC 159.

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court and the conviction was upheld by the High Court. The appellant went in appeal to the Supreme Court. Evidence on which the prosecution relied, was the confession of Guru Bachan Singh and the testimony of witnesses. The evidence was of circumstantial nature and the Supreme Court was of opinion that even if believed, no conviction could safely be based on it. As for the evidentiary value of the confession of the co-accused they held : "That the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, conviction should safely be based on it. If it is capable of belief independently of the confession, then of course, it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and used it to lead assurance to the other evidence, and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. The appellant was acquitted. The confession of a co-accused is not a substantive evidence, it can be pressed into service only when the court is inclined to accept the other evidence and feels the necessity of seeking for an assurance in support of his conclusion deducible from the other evidence.9 As proved.—As discussed before there are many stages for an accused person to make a confession. After an offence is committed a police officer begins investigation. The person suspected of the crime is arrested by the police. If the person so arrested expresses his desire to confess, the police officer taken him to some Magistrate, who records the confession. Then, at the trial that confession is proved. Again an accused person who had not made any confession during investigation as mentioned above, may confess it at the trial. The question for consideration is as to whether both kinds of confessions mentioned above, are to be taken into consideration under Section 30. There is divergence of judicial opinion on this point. Some High Courts have held that Section 30 does not refer to confessions made at the trial. According to them Section 30 applies to confessions made before and proved at the trial.10 Some other High Courts have held that the confessions at the trial can also be taken into consideration.11 It should be remembered that the first kind of opinion seems to be correct. This section uses the word "proved." A confession can be proved at the trial only if it was made before the trial. If a confession is made at the trial it does not require any proof. The section says, "when a confession is proved." This makes it clear that the section refers to the confession made prior to the trial and not one made at the trial. In Nathu v. State,12 Nathu, Bhola and Ram Singh were charged with the murder of Sumer Singh aged about ten or eleven years. The prosecution story

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9. Hari Charan v. State of Bihar, AIR 1954 SC 1184 ; Mohd. Hussain v. Daleep. AIR 1970 SC 45. 10. Govind v. Emperor, AIR 1929 Mad, 285; Empress v. Mahadeo Prasad, AIR 1923 All 322. 11. Ganpat v. Emperor, AIR 1931 Nagpur 169 ; Jana v. Mohd. Akbar, 1976 Cr LJ 1947. 12. AIR 1956 SC 56.

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was that on the day previous to occurrence the appellant Nathu told them to bring deceased Sumer Singh and promised to pay Rs. 5 to each of them (Bhola and Ram Singh). Accordingly on 17th May, 1952 Ram Singh and Bhola enticed the boy away to an outlaying garden stating that they might eat mangoes there. While they were in garden, the appellant Nathu came there, tied an 'angochha' round the neck of Sumer Singh and strangled him, while Bhola and Ram Singh were holding the deceased by the hand and feet ; after killing the boy they threw him in the well. Bhola and Ram Singh made confessional statements before a special Magistrate. These confessions, though subsequently retracted have been found by both the Courts to have been true and voluntary, and it was on the strength of these confessions which received corroboration in the material particular from the evidence in the case that accused Bhola and Ram Singh were convicted. These confessions of Bhola and Ram Singh were relied on in support of the conviction of the appellant Nathu. One of the contentions urged on his behalf in the Supreme Court was that the confessions .of Bhola and Ram Singh were inadmissible in evidence against him and the conviction based thereon was illegal. It was held that such statements were not evidence as defined in Section 3 of Evidence Act, that no conviction could be founded thereon, but based they could be referred to as lending assurance to that conclusion and fortifying it.

S

ECTION 31.—Admissions not conclusive proof, but may estop.— Admissions are

not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. COMMENTS An admission is a voluntary acknowledgment made by a party or someone identified with him in legal interest of the existence of certain facts which are in issue or relevant to an issue in the case. The predominant characteristic of this type of evidence consists in its binding character. Admissions are broadly classified into two categories : (a) judicial admissions, and (b) extra-judicial admissions. Judicial admissions and extra-judicial admissions.—Judicial admissions are formal admissions, made by a party during the" proceedings of the case. Extra-judicial admissions are informal admissions not appearing on the record of the case. Judicial admissions being made in the case fully binding on the party that makes them. They constitute a waiver of proof. They can be made the foundation of the rights of the parties. Example A files a suit against B challenging a sale deed executed by his (A's) father in respect of joint Hindu family property. A alleges that the property was sold by his father without any legal necessity and so it was not binding upon him. R admits in his written statement there was no legal necessity to sell

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the property. He may even after filing the written statement admit that the sale deed was executed without any legal necessity. Contrary to this at any time after the saledeed was executed by A's father and before A filed the suit, B may make a statement, written or verbal, admitting that A's father sold the property without any legal necessity. The admission at the trial are designated as a judicial admission. The admission at the trial operates as a waiver. It relieves the opposite party from the need of any evidence. The other party may apply to the court for such judgment or order as upon such admission he may be entitled to. In the above mentioned example when B admits at the trial that the sale deed was executed without any legal necessity, A need not produce any evidence to prove that the sale deed executed by his father was without legal necessity. "So the judicial admission is a formal act, done in the course of judicial proceeding, which waives or dispenses with the production, of evidence, conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true." Admissions dealt with in the Indian Evidence Act (in Sections 17 to 23 and 31) are different from the judicial admissions. Admission in the Evidence Act is nothing but a piece of evidence. According to Section 1 admissions as dealt with in Sections 17 to 23 are only a piece of evidence. They are not conclusive proof of the facts admitted like the judicial admissions, but they may operate as estoppels under Sections 115 to 117 of the Act. Admissions of a party to a suit are strong evidence against him but he is at liberty to prove that such admissions were mistaken or were untrue and is not estopped by them unless another person has been induced (by admissions) to alter his condition. Admission not conclusive.—According to this section admissions are not conclusive proof of the matters admitted against any party. If from the facts it could be shown that the admission was wrong, it would fail to have any effect. It is only prima facie evidence against the party making the statement and shifts the burden of proof.13 An admission is not conclusive as to the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment in which case it might become conclusive by way of estoppel. It is no doubt true that what a party himself admits to be true may reasonably be presumed to be so. But before this rule is invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. A statement by a party in the certain proceedings were fraudulent and not conclusive in character would not be sufficient, without more, to sustain a finding that the proceedings were collusive.14 ____________________ 13. Rahmanul Hassan v. Zahurul Hassan, AIR 1974 Alld. 281 ; Davind v. Lachmi, AIR 1930 Lah. 985. 14. Nagu Bai v. Shama Ran AIR 1956 SC 593.

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An admission shifts the onus on the person admitting the fact, on the principle that what a party himself admits to be true, may reasonably be presumed to be so and until the presumption is rebutted the fact stated must be taken to be true. But admissions are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or untrue. Admissions are mere pieces of evidence and if the truth of the matter is known to both parties, it has little value.15 An admission is the best evidence that an opposite party can rely upon and though not conclusive is the decisive of the matter unless successfully withdrawn or proved erroneous.16 The principle underlying the evidentiary value of an admission may be summarised thus: An admission constitutes a substantive piece of evidence in the case and for that reason can be relied upon for proving the truth of the facts incorporated therein. An admission has the effect of shifting the onus of proving to the contrary on the party against whom it is produced with the result that it casts an imperative duty on such party to explain it. In the absence of satisfactory explanation it is presumed to be true. An admission, in order to be competent and to have the value and effect referred to above should be clear, certain and definite and not ambiguous, or confused. Evidentiary value.—From what has been said above, it is not to be inferred that admission of a party is of no or little evidentiary value.17 When the admission is duly proved and the person against whom it is proved does not satisfy the court that it was mistaken, untrue, there is nothing to prevent the court from deciding the case in accordance with it. Admissions are very strong piece of evidence against the party making it unless they are proved to be false. Admission by a party in plaint may be used against him in other suits. But such admission cannot be regarded as conclusive and the party can show it to be wrong.18 Admission in a book19—Statements made in a book, though cannot be considered as conclusive admissions, yet they can be taken as additional circumstance alongwith other circumstances for determining whether the conduct of the appellant amounts to waiver and/or abandonment of right in respect of the articles in question. Admission does not create title.—No title can pass from one person to another by mere admission.20 Admission is substantive evidence.—Admission is a substantive evidence though they are not conclusive proof of matter. If the admissions are ____________________ 15. Kishori Lal v. Mst. Chalti Bai, AIR 1959 SC 504 ; K. S. Srinivasan v. Union of India, 1958 SC 419. 16. Narayan v. Gopal, AIR 1960 SC 100. 17. Ayodhya Prasad v. Bhavani Shanker, AIR 1957 All. 1 (FB). 18. Basant Singh v. Janki Singh, 1967 SC 341 ; Narain v. Gopal, AIR 1960 All. 100 ; Wasiq Ali v. Director of Consolidation, AIR 1974 All. 46. 19. Karan Singh (Dr.) v. State of J. & K., (2004) 5 SCC 698. 20. Ambika Prasad v. Ram Iqbal, 1966 SC 605.

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not explained by the person by whom it was made it is a very strong piece of evidence against the matter.21 The admissions are not to be put to the matter for contradiction if he appears as a witness if they are not ambiguous.22 It is true that evidentiary admissions are not conclusive proof of the facts admitted and be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof to the person making them or his representative-in-interest unless shown or explained to be wrong, they are efficacious proof of the facts admitted.23 Admission may estop.—Admissions which have been acted upon by others are conclusive against the party making them. He cannot prove that admissions are mistaken or false.24 Distinction between Admission and Estoppel Admission

Estoppel

1. Admission is written or verbal statement which gives inference to rights and liability of parties, i.e., fact in issue 2. Admission is not conclusive evidence. It can be rubutted by positive proof. 3. In some circumstances, the admission of third person binds the parties to the suit (Section 19 and Section 20 of Evidence Act). 4. Admission is weakest kind of evidence. 5. In case of admission, it is not necessary that a party has changed his position on inducement of person making admission. 6. The rule regarding admissions is laid down under Sections 17 to 23 and Section 31 of Evidence Act.

1. Estoppel is rule of evidence and it prevents a person from retreating his earlier representation. 2. Estoppel is conclusive. 3. Estoppel operates only against person making representation and his legal representative. 4. Estoppel is regarded a decisive evidence of high quality. 5. In case of estoppel, the person to whom representation is made has changed his position to his detriment. 6. The rule regarding estoppel is laid down under Section 115 of Evidence Act.

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES Principle.—As a general rule, oral evidence must be direct, that is to say, a fact to be proved by oral evidence must be stated before the court by the person who has got first hand knowledge of the facts to be proved. A is murdered by B,

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21. Bharat Singh v. Bhagirath, AIR 1966 SC 405. 22. Ayodhya Pershad v. Bhawani, AIR 1957 All. 1 (FB). 23. Oudh Kishore v. Ram Gopal, AIR 1979 SC 861. 24. Gulab Bhai v. Collector of Daman. 1970 Goa 59.

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C is present on the scene of murder. B is sent up to stand his trial in the Court of Sessions Judge. In this case C may appear as a witness and depose that he saw B assaulting A with dangerous weapon. One D may try to depose as "C told me that he saw B assaulting A". Here the statement of C is direct evidence as he himself saw the occurrence. The statement of D is second hand or derivative evidence. The second-hand evidence is loosely termed as 'hearsay evidence'. When a witness appears before the court to give evidence of a fact about which he has got first rate knowledge, he has to take oath and also the opposite party is given an opportunity to cross-examine him. At the same time, every witness must give his testimony, under such circumstances as may expose him to all the penalties of falsehood. A second-hand, that is hearsay evidence is generally excluded from evidence on the grounds : (1) that it is not stated on oath, (2) that the party against whom the proof is offered, has no opportunity of cross-examining the original source whence it is derived, and (3) that the person putting the fact before the court is immune from all sorts of penalties of falsehood. In the example given above if C appears before the court, he will have to take oath that he will tell the truth. When he has deposed that he saw B assaulting A, the counsel for B will cross-examine him to show that he is not telling the truth. Besides this, the evidence of C is given under personal responsibility and if he deposes falsely he may be criminally liable. None of these sanctions can be availed of against D when he says "C told me that he saw B attacking A". In this case 'B attacked A' cannot be stated on oath by D. He can only state on oath that C told him like that. Again he cannot be crossexamined on the fact of assault On every question he will plead ignorance and say that C knows it. And also there is no fear for him to be prosecuted for perjury. The purpose and reason of the hearsay rule are based on two considerations : (1) a necessity for the evidence, and (2) a circumstantial guarantee of trustworthiness. As said above, hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely the oath and cross-examination. But when there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The theory is that there are two principles as the basis of the necessary exceptions, (1) necessity, (2) special circumstances which render the evidence more trustworthy than hearsay evidence in general. It may be impossible, or it may cause unreasonable expense or delay to procure the attendance, of a witness who, if present before the Court, could give direct evidence on the matters in question ; and it may also be that this witness has made a statement either written or oral with reference to such matter under such circumstances that the truth of this statement may reasonably be presumed. In such a case the law as enacted by Sections 32 and 33 dispenses with direct oral evidence of the fact and with the safeguard for truth provided by cross-examinations, and the sanction of an oath, the probability of the statement being true depending upon other safeguards which are mentioned in

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the sections. All the clauses of Section 32 are based upon the principle that the statements are of such nature or were made under such circumstances as to guarantee their being true.25 Exception to the general rule.—There are several exceptions in the rule excluding hearsay evidence. Sections 32 and 33 of the Indian Evidence Act are exceptions to the rule. Under Sections 32 and 33 derivative, i.e., hearsay evidence is admissible. These two sections give different instances where indirect evidence is relevant.26 V^ECTION 32.—Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases :— (1) When it relates to- cause of death.—When the statement is made by a person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Or is made in course of business.—When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty ; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him. Or against interest of maker.—When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. Or gives opinion as to public right or custom, or matters of general interest.—When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. Or relates to existence of relationship.—When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or

____________________ 25.

Soney Lal v. Daribdeo, 1935 Pat 167.

26.

Mst. Biro v. Atma Ram, AIR 1937 PC 101.

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adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. Or is made in will or deed relating to family affairs.—When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. Or in document relating to transaction mentioned in Section 13, clause (a).—When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, clause (a). Or is made by several persons and expresses feelings relevant to matter in question.— When the statement was made by a number of persons, and expressed feelings or impressions on their part, relevant to the matter in question. ILLUSTRATIONS (a) The question is, whether A was murdered by B ; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B ; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts. (b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact. (c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact. (d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

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(e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders is a relevant fact. (f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. (g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. (i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. (j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased baniya in the ordinary course of his business, is a relevant fact. (k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. (l) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. (m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact. (n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. COMMENTS Principle.—Under Section 32, statements written or verbal, of relevant facts when made by a person (a) who is dead, or (b) who cannot be found, or (c) who has become incapable of giving evidence, or (d) whose attendance cannot be procured without an amount of delay or expenses which under the circumstances of the cases, appears to the court unreasonable and inadmissible (1) when it relates to the cause of his death, or to any of the circumstances of the transaction which resulted in his death, or (2) when it is made in course of business, or (3) it is made against the interest of the maker, or (4) when it gives its opinion as to public right or custom or matters of general interest, or (5) when it relates to existence of relationship, or (6) when it is made in will or deed relating to family affairs, or (7) when it is made in document relating to

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transaction mentioned in Section 13, clauses (a) or (b), or (8) when it is made by several persons, and expressed feelings to the matter in question. But before statements can be admitted under this section, it must be proved that the makers of these statements are either dead or for any other reason are not available as witness. Dying declaration would not lose its value on ground that deceased died long after making dying declaration.27 A dying declaration made by a person who is dead as to cause of her death or as to any of the circumstances of the transaction which resulted in his death, in case in which cause of his death comes in question, is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay evidence, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.28 It must be borne in mind that in order to make a statement admissible under Section 32, Evidence Act, one of the conditions mentioned in the groups (a) to (d) and one of the conditions mentioned under the headings 1 to 8 must be fulfilled. Now we shall deal with these headings separately. (a) Who is dead.—Before admitting evidence under Section 32 the death of the person whose statement is to be proved must strictly be proved. Death is universally considered to be sufficient to satisfy the necessity of the principle. The statements of dead persons are admitted as relevant upon the principle that by the death of the person the better evidence cannot be laid. Where person making a dying declaration survives, his statement will not be admissible under Section 32. It may be admitted in any other section of the Act.29 (b) Who cannot be found.—If a person after making a certain statement disappears and is unheard of, no person can compel his presence as a witness. If a party to a proceeding is able to prove that some person has disappeared, his previous statement, if relevant, can be proved. The only objection to admitting of evidence on this ground is the possibility of collusion between the party and the witness. Before a statement can be admitted on this ground it must be proved that the person seeking to adduce the previous statement of such person, has made an honest effort to examine that person. Incapable to give evidence.—Sometimes it so happens that a man after making certain statement becomes physically unfit to depose. In such a case his previous statement, if it fulfils any of the conditions laid down in the clauses (1) to (8), may be proved in a proceeding. Delay or expenses.—When the appearance of a witness cannot be procured without unreasonable delay or expenses, his previous statement if

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27. Najjam Faraghi v. State of W.B., AIR 1998 SC 682. 28. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850. 29. Chalianadan v. Rex, AIR 1942 Mad. 450.

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relevant is admissible. Plaintiffs were the agents of the defendant for the sale of certain produce shipped to Europe. Such produce was disposed of by the plaintiff's sub-agents, at various markets abroad, who were submitting accounts to the plaintiffs for the sums realized by the sale of the produce. These accounts of sales were admitted in evidence under Section 32 of the Evidence Act without summoning the agents, because the persons who had prepared the accounts could not be produced before the court without unreasonable delay and expenses. But the mere fact that a person is living far away from the place of trial is not a ground for admission in evidence under Section 32 of the Evidence Act of a previous statement made by him. Before doing so, it has to be proved that the attendance cannot be procured without unreasonable delay or expenses. In the case of Prithi Chand v. State of H. P.,30 the lady doctor who had examined the victim being on long leave was not available for giving evidence. The learned Session Judge felt that her presence would not be procured without unreasonable delay. Therefore, the Court permitted the prosecution to prove certificate through another doctor who was conversant with her handwriting and signature. Clause (1)—Dying declaration Definition.—The term 'dying declaration' has not been defined in Evidence Act but reading Section 32 and sub-section (1) of Section 32, the term "dying declaration" may be defined as follows : "A dying declaration is statement made by a person who is dead; as to cause of his death or as to any circumstances of transaction which resulted in his death, in cases in which his death comes into question, such statements are relevant under Section 32 of Evidence Act, whether the person who made there was or was not, at the time when they were made, under expectation of death and whatever may be the nature of proceeding in which the cause of his death comes into question."31 Dying declaration is admissible in evidence being a hearsay evidence. This piece of hearsay evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no evidence in eye of law and it should be discarded as general rule because the evidence in all cases must be direct. A dying declaration is admitted in evidence on the principle 'nemo moriturns proesumitur mentiri' (a man will not meet his maker with a lie in his mouth).32 In Uka Ram v. State of Rajasthan,33 it was held by Supreme Court that the admissibility of dying declaration rests upon principle that a sense of impending death produces in man's mind the same feeling as that of conscentious and virtuous man under oath. Dying declaration is admitted upon consideration that the declaration is made in extremity; when the maker of declaration is at the point of death and when every hope of this world is gone; ____________________ 30. AIR 1989 SC 702. 31. Ram Bihari Yadav v. State of Bihar, AIR 1988 SC 1850. 32. Shakuntala v. State of Haryana, AIR 2007 SC 2709 at p. 2711. 33. AIR 2001 SC 1814. Smt. Laxmi v. Om Prakash. AIR 2001 SC 2383.

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when every motive of falsehood is silenced and mind induced by the most powerful consideration to speak the truth. The principle on which the dying declaration is admitted is based upon the maxim Nemomoriturus Praesumitur Mentire which means 'the man will not meet his maker with a lie in his mouth'. It has always to be kept in mind that though dying declaration is entitled to a great weight yet it is worthwhile to note that as the maker of the statement is not subject to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of statement being either the result of tutoring, prompting, or conducive, or product of imagination. By Section 32(1) two categories of statements are made admissible in evidence. They are (1) cause of death (2) statement as to any circumstances of transaction which resulted in death.34 In Sharad Birdichand Sarda v. State of Maharashtra,35 the Supreme Court through Justice Syed Murtaza Fazal Ali laid down following propositions— Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined to a straight-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn form the context. Sometimes, statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where death takes place within a very short time of the marriage or the distance of time is not spread over more than 3- 4 months, the statement may be admissible under Section 32. The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law, the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge ____________________ 34. PatelHira Lal Joita Ram v. State of Gujarat, AIR 2000 SC 2944. 35. AIR 1984 SC 1622.

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of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of section 32 and, therefore admissible. The distance of time alone in such cases would not make the statement irrelevant."36 Cause of death.—This clause lays down that when the statement is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death, his statement would be relevant in a case in which the cause of his death is the point at issue. A is assaulted and dies. Before his death he makes a statement that "B assaulted him with spear." This statement of A is admissible as it relates to the cause of his death. The fact that the deceased lingered for some days after receiving fatal injuries does not deprive the statement of its character as a dying declaration admissible under this section. The interval between the statement and the death is immaterial. If the statement relates to the cause of deponent's death it is admissible.37 But if there is nothing to show that the injuries to which the statement of the deceased related were the cause of his death the statement is not admissible as dying declaration. If the deceased stated that he was injured by X but he did not die of the injuries rather he died of some illness such as pneoumonia, his statement that X caused him injuries cannot be admitted under this section.38 If a woman is raped and makes statement that X raped her and three days after she commits suicide, the rape is not the cause of her death and therefore her statement that X raped her is not admissible as dying declaration.39 A girl was ravished. Soon after the occurrence she committed suicide by setting fire to her body. Her statement about rape was held not admissible as the rape on the girl could not be said to be cause of her death.40 Declarant died of injury to be proved.—Before the statement of a person as to cause of his death may be used as dying declaration it must be

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36. Hanumant v. State of Madhya Pradesh, (1952) SCR 1091; Dharambir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958 decided on 4.11.58 : AIR 1958 SC 152 ; Ratan Gond v. The State of Bihar, (1959) SCR 1336 ; Pakala Narayana Swami v. Emperor, AIR 1939 PC 47 ; Shiv Kumar and others v. The State of Uttar Pradesh, Crl. Appeal No. 55 of 1966 decided on 29.7.66 : (1966) Crl. Appeal SC 281 ; and Protima Dutta and another v. The State, 41 CWN 713 referred to. Manohar Lal and others v. State of Punjab, (1981) Cr.LJ 1373 ; Onkar v. State of Madhya Pradesh, (1974) Crl. LJ 1200; Allijan Munshi v. The State, AIR 1960 Bom. 290; Chinnavalayan v. State of Madras, (1959) MLJ 246 ; Rajindera Kumar v. The State, AIR 1960 Punj. 310; and State v. Kanchan Singh and another, AIR 1954 All. 153 approved. Gokul Chandra Chatterjee v. The State, AIR 1950 Cal. 306, overruled. 37. Abdul Gani v. Emperor, AIR 1943 Cal 465. 38. R v. Rudre, ILR 29 Bom 45 ; Wali Mohammad v. Emperor, AIR 1930 Oudh 249. 39. Kapeviah v. Emperor, AIR 1931 Mad. 233. 40. Narain Singh v. State of Bihar, 1961 SC 137.

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proved that his death was caused by the injury he received in the incident for which accused is being prosecuted. Moti Singh was tried for the murder of Gayacharan, a statement of deceased Gyacharan to the effect that Moti and one man fired gun shots at him was used as dying declaration at the trial. The incident took place on 4th February, 1960. Gayacharan's injuries were examined by doctor, same day. He found two gun shot wounds dangerous to life. Gyacharan left hospital either he was discharged on healing of the injury or he left hospital before injuries were healed up. He died on 1st March 1960. There was no evidence on the record as to what caused Gayacharan's death. It was held that the statement of Gayacharan could not be used as dying declaration.41 Chandra Bhan Singh was tried of the murder of Shaitan Singh. The deceased Shaitan Singh himself lodged report in which he narrated the story of incident. After the medical examination the deceased developed tetanus and died of it, it was held that the statement of deceased could not be used as dying declaration.42 Circumstances of the transaction which resulted in his death.— The words "resulted in his death" do not mean 'caused his death.' The expression "any of the circumstances of the transaction which resulted in his death" are wider in scope than the expression "cause of death." A statement not relating to the cause of death of its maker may be admissible if it relates to the circumstances of the transaction which resulted in his death.43 In a case of robbery a statement made by a person before her death regarding the circumstances of the robbery is admissible. Although remotely, her death was caused by wounds received at the robbery.44 In Patel Hiralal Joita Ram v. State of Gujarat,45 it was held by Supreme Court that the words "Statement as to any circumstances" are by themselves capable of expanding the width of scope of admissibility. When the word 'circumstances' is linked to transaction which resulted in his death, the subsection casts the net in very wide dimension. Any thing which has nexus with his death proximate or remote, direct or indirect can also fall within the purview of sub-section. In Pakalanarain Swami v. Emperor,46 the deceased was a man of about 40. He had been a peon in the service of the Dewan of Pithapur. Pakala Narain Swami, the accused, was married to one of the daughters of the Dewan of Pithapur. After marriage, the accused Narayan Swami and his wife went to live at Berhampur about 250 miles from Pithapur. In the year 1933, they came back to Pithapur where they stayed with the Dewan. They seemed at that time to have been in need of money, and during 1936 the wife of the accused borrowed from the deceased at various times an amount of Rs. 3,000. On Saturday 20th March, 1937, the deceased received a letter from the accused inviting him to come that day or next day to Berhampur. The deceased left his ______________________________________________________________________

41. Moti Singh v. State of UP, AIR 1964 SC 900. 42. Chandra Bhan Singh v. State, 1971 Cr LJ 94. 43. Danu Singh v. Emperor, AIR 1925 All 227. 44. Nga Ba Mim v. Emperor, 1935 Rangoon 418. 45. AIR 2001 SC 2944. 46. AIR 1939 PC 47.

i

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house on Sunday 21st March, in time to catch the train for Berhampur. He did not come back. On Tuesday 23rd March, 1937, at about noon, the body of the deceased was found in a steel trunk in a third class compartment at Puri. The body had been cut into seven portions. The body of the deceased was identified by his widow. The accused was tried and convicted for murder and was sentenced to death. During the trial, the widow of the deceased stated before the Court that on that day her husband showed her a letter and said that he was going to Berhampur as the appellant's wife had written to him to come and receive payment of his dues. The evidence was objected to. Their Lordships of the Privy Council held that this statement related to the circumstances of the transaction which resulted in his death and so it was relevant. They also held that the statement made by the deceased that he was proceeding to the spot where he was killed or as to his reason for proceeding or that he was going to meet a particular person or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person was unknown or was not the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae." Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant, though as for instance in case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal date. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant's) death comes into question." In the present case the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March, and his body was found in a trunk proved to be brought on behalf of the accused. The statement made by the deceased on 20th or 21st March, that he was setting out the place where the accused lived and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be statement as of some of the circumstances of the transaction which resulted in his death.47 The Supreme Court in Koshal Rao v. State of Bombay,48 followed Pakala Narayana Swami v. Emperor.49 In Pakala Narairt Swami's case, there were two rival factions of labourers of a mill in Nagpur who used to fight. In one such fight at 7.00 p.m., the deceased Baboolal sustained injuries. He was taken to the hospital at about 9.45 p.m. While being taken to the hospital he told the witnesses including his father that he was attacked by four persons with swords and spears. He also told two persons' name as Tukaram and Kaushal. Immediately, thereafter ____________________ 47 22.

Ganga Singh v. Emperor, AIR 1944 Lah 837; Kunwarpal Singh v. State, AIR 1957 All 387. 48

AIR 1958 SC

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doctor recorded his statement and in the statement he told the same names and then the statement given to the police Inspector, he repeated the same names. The Magistrate recorded the statement of the deceased at about 11.45 p.m. which was certified by the doctor that the deceased was in a fit condition to make the statement. In this statement, he named the same two persons. The next morning at about 10.00 a.m., the deceased passed away. Before being arrested, these two persons had absconded. On the basis of the statement given by the deceased in quick succession before responsible persons supported by the fact that named accused persons were absconders, the trial Court sentenced Kaushal Rao to death and Tukaram to life imprisonment. Kaushal Rao was acquitted by the High Court on the ground that the deceased had named Kaushal as Teli in his statements but the person tried by the Court was Kaushal Kohli. Further, there were four persons living in the same locality by the name of Kaushal and some of them were Teli. The sentence of Tukaram was maintained. Justice Sinha, (afterwards C.J.) of the Supreme Court upholding the judgment of the High Court against conviction of Tukaram observed : "The Legislature in its wisdom has enacted Section 32 (1) of the Evidence Act. Thus the statement by a person who is dead is itself a relevant fact. The provision has been made by the legislature, advised as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination is not admissible. The purpose of cross-examination to the veracity of statements made by a witness. In the view of the Legislature, that test is applied by solemn occasion, when the statement was made when the person was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies." It is to be borne in mind that general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of death will not be admissible and so will be irrelevant.50 The deceased long before the death made application to authorities that she was threatened by her brother-in-law. This was. held relevant.51 In a case of dowry death the statement of the deceased to her relation to the extent that she was harassed for dowry is relevant under Section 32(1) Evidence Act. In Kans Raj v. State of Punjab,52 the Supreme Court made the following observation : The words "as to any circumstances of transaction which resulted into his death." appearing in Section 32 makes it clear that the circumstance resulting in death must have proximate relation to actual occurrence. In other words, the statement of the deceased relating to cause of his death or circumstances of transaction led to his death must be sufficiently and clearly related with the actual transaction.

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50. D.B. Desh Mukh v. State, AIR 1970 Bom 438. 51. S.B.S. v. State of Maharashtra, 1984 Cr LJ 1738; P.B. v. State of A.P., 1989 Cr LJ 1186. 53. AIR 2000 SC 2324.

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Intention to use statement as dying declaration not necessary.— The Supreme Court in Bhagirath v. State of Haryana,53 held that it was not necessary that while recording statement of deceased there must have been intention to use the statement as dying declaration. In this case, the deceased sustained gun-shot. He was admitted in the hospital. Police constable took statement from victim for purpose of registering the case. There was no intention to use the statement as dying declaration. Then the constable called Magistrate to record dying declaration. Before the Magistrate came, the victim died. Held— The statement recorded by constable could be relied as dying declaration. When the person making statement not dead.—In a case of suspected case of consumption of poison by the accused person, she was sent to the hospital for treatment. The records of the hospital also showed the case of suspected consumption of poison. She survived and there was no danger to her life. It cannot be said that sending Judicial Magistrate for recording dying declaration was not right. It would be relevant as a confessional statement if recorded according to procedure prescribed in Cr. P. C.54 Statement about the death of another.—The dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. Statement of the deceased as to the cause of the death of another person is not admissible under Section 32. The statement of the deceased to the effect that another person who had died was stabbed by the accused is inadmissible under Section 32. Where there are cross cases for deaths of persons of two parties a dying declaration of a member of one party could not be used as evidence in the case against the member of his own party. The appellant was a resident of village Urte. One Mst. Jatari who was a widow also lived in the same village. She had two young daughters one named Baisakhi and the other named Aghni. the appellant was charged with the murder of Baisakhi. On Tuesday 7th May, 1957 the two sisters Baisakhi and Aghni had gone out to pluck wild berries in a hilly jungle. On the same day Mst. Jatari had herself gone to pluck berries at place. When she left the house in the morning her two daughters were in the house. Mst. Jatari came back about noon and found Aghni alone in the house. She enquired from Aghni about the elder sister Baisakhi and Aghni made certain statement to her mother as well as to other persons later that day and the next day, which related to the circumstances of the transaction which resulted in death of Baisakhi. Aghni, however, died before her statement could be recorded in any Judicial proceedings. The courts below and the High Court relied upon the statements of Smt. Aghni referred to above. It was held that as the statement made by Aghni did not relate to the cause of her death or any of the circumstances relating to her death ; on the contrary, the statements related to the death of her sister. Therefore, they were not admissible under Section 32 (1).55

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53. AIR 1997 SC 234 54. Ram Singh v. Sonia, AIR 2007 SC 1218 at pp. 1225, 1226. 55. Ratan Gond v. State of Bihar, AIR 1959 SC 18.

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Statements not connected with the cause of death.—The dying declaration is the statement made by a person to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by Section 32 (1) of the Evidence Act and unless absolutely necessary to make a statement coherent or complete should not be included in the statement. Where the dying declaration is a long document and is a narrative of a large number of incidents which happened before the actual resort, such long statement being more in the nature of first information reports than recitals of the cause of death or circumstances resulting in it, are likely to give impression of their being not genuine or not having been made unaided without prompting.56 Where the statement made by the deceased was not in regard to cause of his death or as to any of the circumstances of the transaction resulting in his death and the statement related to the accused's involvement in the abduction of a boy having no remote connection or reference to the death of the deceased, it would not be admissible under Section 32 of the Evidence Act.57 In Bhairon Singh v. State of M.P.,58 the body of the deceased lady was found in a well in a village. The cause of death was asphyxia due to drowning. She was married to accused-appellant about 10 years before her death and Gauna ceremony took place about three years' after marriage. The trial Court held the death accidental. Since the marriage of the deceased had taken place with the accused-appellant more than seven years before the date of her death, the presumption under Sections 113-A and 113-B of the Indian Evidence Act was not attracted and acquitted the accused of offence under Sections 304B and 306 of I.P.C. but the trial Court held the accused guilty under Section 498-A of I.P.C. and Section 3 of Dowry Prohibition 'Act, 1961 and sentenced the accused with rigorous imprisonment of three years along with a fine of Rs. 5,000/- for the offence under Section 498-A of I.P.C. and rigorous imprisonment of five years along with fine of Rs. 15,000/- for the offence under Section 3 of Dowry Prohibition Act. The High Court set aside the conviction and sentence under Section 3 of the Dowry Prohibition Act but maintained conviction under Section 498-A of I.P.C. The basis of conviction was the only evidence of P.W.-4 and P.W.-5, the brothers of the deceased that their deceased sister told them that the accused used to torture her as he wanted her brothers to arrange a job for him or a house be given to him or a cash of Rs. 1 lakh be given to him to enable him to do some business. On the deposition they stated that as and when their sister came to their house, she would tell them that the accused used to insert cloth in her mouth and give beatings for dowry. The Supreme Court set aside the conviction of the accused appellant. Justice R.M. Lodha observed : "In our considered view, the evidence of P.W.-4 and P.W.-5 about what the deceased Ranjana Rani alias Raj Kumari had told them against the ____________________ 56.

Bakshi Singh v. State of Punjab, AIR 1957 SC 904.

57.

Vinay D. Nagar v. State of Rajasthan, AIR 2008 SC 1558 at p.15 64.

58.

AIR 2009 SC 2603.

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accused about torture and harassment is inadequate under Section 32 (1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32 (1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which cause of death comes into question. What has been deposed by P.W.-4 and P.W.-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani alias Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid evidence of P.W.-4 and P.W.-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted."59 Death by injuries caused.—When the deceased is not proved to have died as a result of injuries received by him in the incident where the deceased is said to have been killed, his statement cannot be said to be a statement as to the cause of his death and thus is not admissible. One Gaya Charan received gunshot injuries. He was admitted into a hospital. His declaration was recorded. He went out of the hospital and afterwards died. It was not proved that he died of the injuries received at the incident. His evidence did not amount to dying declaration and was excluded.60 In Om Prakash v. State of Punjab,61 the death was caused by injury. Two doctors had examined the deceased. She was found able to make dying declaration. The deceased was alive for 12 days after the incidence. The statement of deceased cannot be rejected only because she was burnt badly. Statement before injury.—A statement falling under this sub-section may be made before the cause of death has arisen or before the deceased had any reason to anticipate being killed. The only condition is that the circumstances must be the circumstances of the transaction which resulted in the death of the declarant.62 Where the fact in issue was whether J had committed murder of K. A statement of K before he was assaulted that J had taken cash and ornaments from him and that he was going there to demand, is admissible as dying declaration.63 Expectation of death.—The section declares that such statements are relevant whether the person who made them was or was not at the time when he made the statements under the expectation of death.64 Though the expectation of the death does not affect the relevancy of dying declaration but it will certainly affect the weight attached to the

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59. Bhairon Singh v. State of MP., AIR 2009 SC 2603 at p. 2607, Inder Pal v. State of M.P., (2001) 10 SCC 736 referred to in support. 60. Moti Singh v. State of U.P., AIR 1964 SC 900. 61. AIR 1993 SC 138. 62. Emperor v. Sheo Bhai, AIR 1976 Bom 513. 63. Jainand v. Rex, AIR 1949 All 291. 64. Bharat v. State of Raiasthan. 1981 Cr LJ 1274.

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declaration. If the person making the declaration is conscious that he is dying soon the possibility to speak the truth is very great.65 In Najjam Faruqui alias Najjam Faruqui v. State of West Bengal,66 the Supreme Court held that there was no merit in the contention that the appellant (deceased) died long after making dying declaration and therefore those statements had no value. The second para of Section 32 (1) reads as follows : "Such statements are relevant whether the person who made the statement was or was not at the time, when the statement was made, under expectation of death and whatever be the nature of proceeding in which the cause of his death comes into question." The Supreme Court further held—No doubt it has been pointed out that when a person is expecting his death to take place shortly, he would not be indulging in falsehood, but that does not mean that such statement would loose its values if the person lives for longer time than expected. The question has to be determined in each case on the facts of circumstance established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of statement, the court can certainly accept it. It is not necessary that maker of the dying declaration should be under shadow of death and should entertain the belief that his death was imminent. There was no delay in recording dying declaration. Thus the question of deliberation or false implication on account of previous enmity would not arise.67 Section 32 does not require that the statement sought to be admitted in evidence should have been made in immediate expectation of death.68 In a trial for murder a written declaration of the deceased made under the following circumstances, was tendered in evidence for the prosecution ; the declaration was made on oath to a Magistrate's clerk about 1 hour before death ; the clerk asked the deceased before he took down her statement whether she felt she was likely to die; she said "I think so from shortness of my breath"; her breath was then extremely short; the clerk said, "It is with the fear of death before you that you make these statements? Have you any present hope of your recovery?' She said "none". The clerk then wrote out her statement and added to it the above conversation in the form of a statement by the deceased, but he omitted the word "present" before "hope". He then read over to the deceased what he had written, and she then added, the words "at present" after "hope" and signed the declaration. It was held that the statement was not admissible, as it did not appear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the word "no hope" by inserting after them words "at present".69

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65. State v. Kanchan, AIR 1954 All 153 ; Enayat Khan v. Emperor, AIR 1935 Lah. 94. 66. AIR 1998 3C 682. 67. State of Haryana v. Mangeram, AIR 2003 SC 558 68. Kans Raj v. State of Punjab, AIR 2000 SC 2324 69. R. v. Jenkins, (1869) ILR CC. Q. 187.

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The nature of proceeding—Civil or Criminal.—It also does not limit the application of this rule to any particular proceeding.70 The proceeding may be Civil or Criminal. Wherever the cause of that person's death is a point at issue, the statement will be admissible. As mentioned above, the statement as to the cause of death or as to any circumstances of the transaction which resulted in his death, is relevant. The nature of the proceeding in which the cause of his death comes into question need not necessarily be a charge of murder or homicide. It may be a charge of a different nature or it may be a civil action. The only material point is that the cause of death (of the person whose statement is sought to be proved) must come into question irrespective of the nature of the proceeding in which it comes into question.71 The mere facts that the charge of murder failed would not make the statement inadmissible. Proximate and not remote cause.—As observed by the Privy Council in Narain Swami v. Emperor,72 the circumstances must have some proximate relation to the actual occurrence. One Swarnlata was maltreated by the members of her father-in-law and other relations. She was driven from the house. She wrote many letters to her father-in-law and mother-in-law. Being sick of their treatment she committed suicide by being run down by a train. The father-in-law and others were tried for abetting the commission of suicide. At the trial, letters written by the deceased, were produced in evidence as dying declaration. The first of these letters was written 8 months before the suicide and the last at about 5 months before incident. They were held inadmissible as they could not be said to be the circumstance of the transaction which resulted in her death. In other words, they were not sufficiently closely enough connected with the actual transaction. But it should be remembered that statements are not admissible to previous or subsequent transactions. At the same time the statement of that person only is admissible whose death is a subject of the inquiry at the trial. The statement of the person other than one whose death is at inquiry is not admissible. The statement as to the cause of the death or as to any of the circumstances of the transaction resulting in deponent's death is called his 'dying declaration.'73 Injuries in bed head ticket.— In the bed head ticket of hospital, it was written on the representation of the deceased that her brother-in-law caused blows on him. The statement was held to be dying declaration.74 Form of dying declaration.—There is no particular form to be employed in making a dying declaration. It may be oral or in writing or may even be partly oral and partly in writing. On the other hand, it may be neither oral nor written, that is to say, it may consist of some signs or gestures made by the deceased. There must, however be a distinct and definite assertion on the part of the maker however it may be affected. Possibly the declaration should be

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70. Khushal Rao v. State of Bombay, AIR 1958 SC 22. 71. Parmanand v. Emperor, AIR 1940 Nag. 340 72. AIR 1939 PC 47. 73. Kunwarpal v. Emperor, 1947 ALJ 627. 74. Ashok Kumar v. State of Rajasthan AIR 1990 S.C. 2134

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written in the exact words of the person making it.75 But simply because the very words of the injured are not written dying declaration cannot be rejected.76 When a Magistrate writes a dying declaration, preferably it should be in question and answer form.77 If there is nothing to doubt that the person recording the dying declaration recorded exactly what was stated by the deceased it would not make any difference merely because the same was not recorded in form of question and answer. It is certainly better to record the dying declaration in the language of the maker. But it would not affect the evidentiary value or the dying declaration because it was recorded in another language if the person recording it is well conversant into the languages.78 Simply because the dying declaration has not been recorded by a Magistrate, it cannot be disbelieved.79 In Kajal Sen v. State of Assam,80 the question arose as to credibility of dying declaration made in a language and translated in another language by the person to whom the dying declaration was made. In this case the dying declaration was translated into English by the person recording the dying declaration though he admitted that he knew other language also. The person recording dying declaration admitted that deceased was surrounded by many attendants who were talking with him. This fact that he heard entire statement of the deceased in other language and keeping it in memory wrote it down in English was not mentioned in dying declaration. The fact that the deceased had stated that his statement could be taken as dying declaration could not be believed. It was held that entire story of recording dying declaration was doubtful. In Ram Bihari Yadav v. State of Bihar,81 the Supreme Court made following observation with reference to form and acceptance of dying declaration : "Generally the dying declaration ought to be recorded in question and answer but if dying declaration is not elaborate, it consists of only few sentences and is in actual words of the maker. The mere fact that it is not in question answer form cannot be ground against its acceptability or reliability. The mental condition of the maker of dying declaration, alterness of mind, memory and understanding of what he is saying are the matter which can be observed. To lend assurance to those factors having regard to the importance of dying declaration, the certificate of medically trained person is insisted upon. In absence of availability of doctor to certify abovementioned factors, if there is other evidence to show that recorder of statement has satisfied himself about the requirement, before recording dying declaration, there is no reason as to why the dying declaration should not be accepted.

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75. Majan Miyan v. State, AIR 1970 Assam 121; Vinayak Dutt v. State, AIR 1970 Goa 96 ; Pritam Singh v. State, 1972 AWR 521. 76. Bakshis Singh v. State of Punjab, 1957 SC 904. 77. Ravi Chandra v. State of Orissa, AIR 1980 SC 1738. 78. State of Maharashtra v. Gopichand, 1985 Cr LJ 784. 79. Balbir Singh and another v. State of Punjab, AIR 2006 SC 3221. 80. AIR 2002 SC 617. 81. AIR 1998 SC 1850.

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The dying declaration not recorded in question answer form cannot be discarded on that ground alone. Statement recorded in narrative form is more natural and gives version of incident as it has been perceived by the victim.82 Deceased while making statement speaking in Kannada and Urdu languages. Statement cannot be discarded on ground that it was recorded only in Kannada language. Dying declaration in the form of questions and answers.—In the dying declaration made by the deceased, in some of her statements, she did not state the actual part played by the appellant. She merely answered the questions put to her. Held—When questions are put differently, answers would also appear to be different. At a first glance, the detailed description of the offence may appear to be missing but the statement of the deceased must be construed reasonable.83 Dying declaration made before Judicial Magistrate.—A dying declaration made before a Judicial Magistrate has higher evidentiary value as he is presumed to know how to record a dying declaration and he is a neutral person.84 Statement written by doctor.—A dying declaration written by doctor is reliable. Where the dying declaration was recorded by the doctor in question and answer form in the presence of other witnesses and it was corroborated with the testimony of other eye witnesses, it was held that it was sufficient to convict the accused.85 Dying declaration as basis of conviction.—If dying declaration is found to be true and voluntary, it can be made the basis of conviction without any further corroboration.86 A conviction can be based on dying declaration found to be true and voluntary without any corroboration. Corroboration is only a rule of prudence.87 Where there are more than one dying declaration.—In Harbansh Lal v. State of Haryana,88 two dying declarations were presented. One dying declaration was recorded by the doctor to whom the deceased was brought for treatment and other dying declaration was that upon which there was thumb impression of deceased. This dying declaration was written by a person and attested by Sarpanch. In the statement made to doctor the deceased had given full description of accused and that was not with any inherent fault. The statement was duly written (recorded) by the doctor and attested by two other doctors who were looking after the deceased. It was certified that the deceased was in fit state of

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82. State of Karnataka v. Shariff, AIR 2003 SC 1074. 83. Maniben v. State of Gujarat, AIR 2007 SC 1932 at p. 1933. 84. Samadhan Dhudaka v. State of Maharashtra, AIR 2009 SC 1059 at p. 1062. 85. Malik Ram Bhai v. State of Orissa, 1993 Cr.L.J. 984; Munna Raja v. State of M.P., AIR 1976 SC 2199. 86. S.P. Devaraji v. State of Karnataka, AIR 2009 SC 1725 at p. 1728. 87. Varikuppal Srinivas v. State of A.P., AIR 2009 SC 1487 at p. 1488 ; Satish Ambanna Bansode v. 88. State of Maharashtra, AIR 2009 SC 1626 at p. 1628. 89. AIR 1993 SC 819.

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mind while making dying declaration and she remained in that state till the dying declaration was recorded. As far as second dying declaration was concerned it was not mentioned in F.I.R. and it was not exactly known when it came into existence. It was held that in absence of any proof, the second dying declaration was not reliable. But the dying declaration recorded by the doctor fulfils all the essential conditions of dying declaration and it was more reliable. Defence case of suicide cannot be merely accepted on the face of two dying declarations recorded by Magistrate and police constable and their clear evidence. The contradiction in statement and a accident register was explained by the doctor who based it upon information received. Hence it was creditworthy.89 In Ganpat Mahadeo Mane v. State of Maharastra,90 there was one dying declaration recorded by doctor, the other recorded by Police and the third recorded by Magistrate; there was no inconsistency between these three dying declarations. Conviction was made. It was meaningless that the third dying declaration was not in question answer form. In this case husband was tried for causing death of his wife and was convicted under Section 302 I.P.C. by trial Court. It was held by the Supreme Court that we see no reason to interfere with the decision of trial Court. Appeal was rejected.91 The case of Maniram v. State of M.P., was bride burning case. Bride burning by pouring kerosene and setting fire alleged. Prosecution case is resting entirely on two dying declarations. First dying declaration recorded by Sub-Inspector being in the part of F.I.R. is not inspiring confidence, second dying declaration neither attested by doctor nor signature or thumb impression of the declarer taken. Dying declaration is showing that it was recorded by Sub-Inspector and not Tehsildar. Tehsildar only making endorsement. It was held that such dying declaration was not reliable. In Pratap Neni Ravi Kumar alias Ravi Kumar and others v. State of Andhra Pradesh,92 the dying declaration was recorded by police immediately after deceased gained consciousness after attack; names of the accused not given in said dying declaration. Second dying declaration recorded by Magistrate, after half an hour. Names of all accused stated in secand dying declaration. There was no evidence to show that in between the two dying declarations any one was allowed to go near the deceased. Further details as given in second dying declaration cannot be treated as improvement over the first one. In Harji Kaur v. State of Punjab93 the circumstances clearly showed that the deceased was not a free person at the time of making first dying declaration. The reasons given, for not considering dying declaration as voluntary and true were convincing. The second dying declaration cannot be

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89. Ravi Kumar alias Kotti Ravi v. State of Tamil Nadu, AIR 2006 SC 1448. 90. AIR 1993 SC 1180. 91. Maniram v. State of M.P., AIR 1994 SC 840. 92. AIR 1997 SC 2810. 93. AIR 1999 SC 2571.

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regarded as untrue merely because it is contradictory to her statement made earlier. In Kishan Lal v. State of Rajasthan,94 the oral dying declaration was made her (deceased) to her father, uncle and grandfather. Names of the accused mentioned therein. However she could not mention the name of accused in second dying declaration made before the Magistrate 5 days after on the ground that she could not recognise any accused because of fire darkness coming to her eyes. Second dying declaration not only giving to conflicting version but there was interse discrepancy in deposition of witness given in support of dying declaration ; it was held by Supreme Court that the conviction based on such conflicting and discrepant dying declaration was liable to be set aside. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka,95 the deceased made four dying declarations two before the Medical Officers, one before the Executive Magistrate and one before the Police Officer. In the dying declarations before the Medical Officer, she told the cause of death as accident due to bursting of stove while cooking. In the dying declaration recorded by ASI, she told that she was being harassed by mother-in-law, father-in-law and husband to bring golden chain. They used to torture her. On the day of incident, the husband thrashed on back and as soon as she fell down, they (the husband, father-in-law and mother-in-law) poured kerosene from the stove on the body and lighted the match-box and, burnt her. Thereafter, she did not remember what happened and found herself in the hospital availing medical treatment. In the statement recorded by the Executive Magistrate, she narrated that her husband asked her to put his shirt in Inayetha. Having not obliged him, he started her to thrash from the handle of a broom stick and abusing her took to the stove, poured kerosene on her from it and put fire. When the body started to burn high, her husband and her father-in-law poured water on her. Her husband brought a vehicle and took her to the hospital for treatment. In the first and second dying declaration, she did not accused her parents-in-law. In the two dying declarations, she accused primarily her parents-in-law. The parents-in-law had already been acquitted. The Supreme Court allowed the appeal and held— The conviction can be based on a dying declaration but it must be voluntary and truthful. Consistency in the dying declaration is relevant factor for placing full reliance thereupon.96 Where there are more than one dying declaration and the nature of inconsistencies between them is such that they are certainly material, it is unsafe to convict on the basis of dying declaration.97

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94. AIR 1999 SC 3062. 95. AIR 2007 SC 2666. 96. Mahboob Abasabi Naddaf v. State of Karnataka, AIR 2007 at pp. 2668-2669, per S. B. Sinha J. Mohammad Arshad v. State of Maharashtra, 2006 (12) Scale 370, Balbir Singh v. State of Punjab, 2006 (9) Scale 537, State of Maharashtra v. Sanjay, (2004) 13 SCC 314 ; Muthu Kutty v. State by Inspector of Police, T. N. (2005) 9 SCC 113 and Maniben v. State of Gujarat, 2007 (7) Scale 93 referred to. 97. Gopal v. State of M.P., AIR 2009 SC 2111 at p. 2112 ; Kundula Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684.

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The victim committed suicide. There were two dying declarations. In one dying declaration she stated that the accused persons committed rape on her twice. In another dying declaration, she stated that the accused persons committed rape on her in a hotel and in the second incident, the accused had only taken her to a garden. The dates of rape were also stated to be different in two dying declarations. Due to these inconsistencies in dying declarations, the acquittal of accused was justified.98 Dying declarations in different languages.—Where the two dying declarations were recorded in different languages one in Marathi and another in Hindi and the deceased was proficient in both languages, dying declarations could be the basis of conviction.99 Statement by signs.—In Queen-Empress v. Abdullah,1 the appellant Abdullah was charged before the Court of Session with a murder of one Dulari, a prostitute by cutting her throat with a razor. It appeared that on the morning of 27th September, 1884, Dulari, with her throat cut, was taken to the police station and from there to the dispensary. She lived till the morning of the 29th. The post-mortem examination showed that the wind pipe and the anterior wall of the gullet had been cut through. The deceased had also a cut on the left thumb. When she was taken to the police station, she was questioned by her mother, in presence of the sub-inspector. She was also at the same time questioned by the sub-inspector of police and again subsequently, by Deputy Magistrate and the Assistant Surgeon. She was unable to speak but was conscious and able to make signs. The Magistrate asked Mst. Dulari as to who had wounded her. She closed her lips. Then the Magistrate mentioned several names and asked regarding them one by one if they had wounded her. She waved her hand backwards and forwards and thus making a negative sign. Then she was questioned whether Abdullah had wounded her. On this she moved her hand up and down. This was understood to be a sign of affirmation by the Magistrate recording the statement. Question was put to her if she been wounded with sword or knife. She made a negative sign with her hand. The question was put if she had been wounded with a razor. She in answer to this made an affirmative sign with her hand. The question was, was she awake when her throat was cut. She made a negative sign. On the question if she had been asleep at that time she made an affirmative sign. On the question whether she had been wounded in the night, she made a negative sign. To question whether she was wounded in the morning she made affirmative sign. On the question whether she recognised Abdullah she made affirmative sign. The evidence was offered by the prosecution to prove the above questions put to Dulari and above mentioned signs in answers to them. Objection was taken to the reception of their evidence on the ground that under Section 32 of Evidence Act only written or verbal statements made by a deceased as to the cause of his death were admissible, and that signs were not verbal or written statement within that section. Overruling this objection it was held by the Full

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98. State of Punjab v. Chatinder Pal Singh, AIR 2009 SC 974 at p. 976. 99. Amar Singh Munnasingh Suryawanshi v. State of Maharashtra, AIR 2008 SC 479 at p. 484. 1. ILR 7 All 385.

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Bench through Patheram C.J. that the questions and signs taken together might perfectly be regarded as 'verbal statement' made by a person as to cause of the death within the meaning of Section 32 of the Evidence Act, and therefore, admissible in evidence as dying declaration. In another case, the victim whose throat was cut by the accused was alive for some time and being questioned regarding the accused she answered the questions by signs and nods not being able to speak. She described the accused by signs and she was asked whether that person was the accused, she showed assent by a nod. It was held that the statement made by the deceased constituted a verbal statement resembling the case of a dumb person and was relevant and admissible in evidence.2 Thus it is clear that 'a dying declaration may be communicated by any adequate method of communication whether by words or by signs or otherwise provided the indication is positive and definite and seems to proceed from the intelligence of its meaning'.3 Statement to police.—The statement of a deceased as to cause of his death does amount to dying declaration. A clear and corroborated dying declaration cannot be rejected just only because it was recorded by a police officer.4 The statement recorded by police officer cannot be challenged on the ground that it was recorded by investigating officer. The police officer did not possess the capacity of investigating officer because investigation had not commenced then.5 Where the evidence was that the deceased was not in a position to make any statement and the alleged statement of the deceased was recorded by the Investigation Officer, it was not a dying declaration. The conviction recorded only on the basis of this statement was therefore not correct.6 Dying declaration oral or written.—When she gives names of assailants to person present. If it is written by any of them it is relevant dying declaration. People present may depose orally that the deceased has told the name of his assailants.7 Section applies to homicide and suicide both.—Section 32 is an exception to the rule of hearsay and makes admissible a statement of a person who dies, whether the death is a homicide or suicide provided the statement relates to the cause of death or exhibits circumstances leading to the death of the person making the statement.8 The declarant must be in a fit state of mind.—At the time of the declaration the person making the statement must be in a fit state of mind.9

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2. Alexender v. The King, AIR 1937 PC 24 ; Sundama v. King Emperor, AIR 1949 Nag 405. 3. Gokul Chandra v. State, AIR 1950 Cal 306. 4. Ram Singh v. State (Delhi Admn.) 1995, Cr.L.J. 3838. 5. Gulam Hushain v. State of Delhi, AIR 2000 SC 2480. 6. State of Rajasthan v. Ashfaq Ahmad, AIR 2009 SC 2307 at p. 2308. 7. Nanhu Ram v. State of M.P., AIR 1988 SC 512. 8. Sharad v. State of Maharashtra, AIR 1984 SC 1622. 9. Lalloo Bhai v. State of Gujarat, AIR 1972 SC 1776 (Pat) ; State of Haryana v. Harpal, AIR 1978 SC 1530

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Where victim sustained brain injury and his brain function was impaired, dying declaration made by him cannot be relied on.10 If the court has slightest doubt about the mental soundness of the author of dying declaration, it is unsafe to base conviction on such statement.11 The dying declaration was recorded by Magistrate within few hours of the victim stated was admitted to hospital. The Magistrate in his examination stated that victim was conscious. Medical officer was present at the time of recording dying declaration also made endorsement about consciousness of victim. Mere non-examination of doctor in whose presence dying declaration was recorded does not affect its evidentiary value.12 Mere fact that victim in his dying declaration did not make any reference to injuries received by accused is not a ground that merits the rejection of dying declaration. Where the dying declaration was recorded by doctor who himself certified that patient was in fit condition for reading the statement, his non-mentioning that the patient was in fit mental condition and throughout remained conscious would be of no consequence.13 In State of M.P. v. Dhirendra Kumar,14 the mother-in-law of the deceased was in position to reach upstairs within 5 to 6 minutes after hearing the cry of deceased. According to opinion of the autopsy surgeon, the deceased was able to speak about 10 to 15 minutes. The Supreme Court did not agree with the view of High Court that the deceased being not in position to talk could not have made dying declaration. The Supreme Court held that it was clear from the autopsy report and circumstances of case that deceased was in fit state to talk when her mother-in-law reached at the spot where deceased was lying. In State of Orissa v. Parasuram Naik,15 the accused, husband was alleged to have poured petrol on the body of wife and lit fire. Whereof extensive burn injury was sustained by the deceased wife. Held—Oral dying declaration to her mother cannot be accepted because there was no certificate by medical officer certifying that deceased was medically fit to make the statement. It is improper to reject the dying declaration on the ground that the fitness of the maker of it depended solely on the certificate of the doctor and the Magistrate himself did not inquire independently as to whether the deceased was in a fit state to make dying declaration.16 In Arvind Kumar v. State of Rajasthan,17 in a case of accusation of the offences under Sections 304-B and 498-A of I.P.C., the dying declaration was recorded by Naib-Tahsildar but did not take any certificate from the doctor 10. State of Rajasthan v. Teja Ram, AIR 1999 SC 1776. 11. Dandu Laxmi Reddy v. State of Andhra Pradesh, AIR 1999 SC 3255. 12. Sanmugam alias Kulandai Vellu v. State of Tamil Nadu, AIR 2003 SC 209. 13. Heeralal Yadav v. State of M.P. and others, AIR 2006 SC 2535; See also Ashok Laxman Gaikwad v. State of Maharashtra, AIR 2006 SC 1773. 14. AIR 1997 SC 318. 15. AIR 1997 SC 3569. 16. State of Tamil Nadu v. Karuppasamy, AIR 2009 SC 948 at p. 949. 17 AIR 2009 SC 2703.

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regarding fit state of mind of the deceased nor there was any endorsement by him on the statement regarding fit state of mind of the deceased. The doctor testified that the dying declaration was recorded by the Reader of Naib-Tahsildar and not by the Naib Tahsildar. No preliminary questions were asked from the deceased before recording his dying declaration. The Naib-Tahsildar also stated that he did not seal the recorded statement of the deceased. During the cross-examination he did not produce the original copy of 'Tahreer', a request by the constable to record dying declaration but he produced carbon copy of it. The mother of the deceased categorically refused putting her signature or thumb-impression on the dying declaration which showed that the dying declaration was not recorded in the hospital room where the deceased was lying. There was no endorsement on it that it was read over and explained to the deceased. All these facts created doubt and truthfulness of dying declaration. It was held that the alleged dying declaration could not be admissible and reliable document because it suffered from a number of infirmities although the accused were convicted on the basis of entire evidence. Justice Lokeshwar Singh Panta observed : "It is well settled that one of the important tests of the credibility of the dying declaration is that the person, who recorded it must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, Court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution."18 In Dhan Raj and others v. State of Maharashtra,19 the dying declaration was challenged on the ground that no medical certificate was attached about the condition of deceased. Deceased however went to hospital all alone by changing different vehicles in the way. The statement of doctor and Magistrate was on record to indicate that deceased was in a fit state of mind to give statement. Such circumstances can be used as supporting evidence about mental condition of deceased along with other evidence. Moreso, when case did not solely rest upon dying declaration and eyewitness account was also available. Proof of dying declaration.—When the dying declaration is verbal, it can be proved by examining the person in whose presence the statement was made. But where the dying declaration is recorded, the person recording the statement is to be examined before the court and he will prove the writing before the court. If it is in writing of scribe, he must be produced and if it is verbal it should be proved by examining the person who have heard it.20 Conviction on uncorroborated dying declaration.—In Khusal Rao v. State of Bombay,21 it was held—It cannot be laid down as an absolute rule of ____________________ 18. Arvind Kumar v. State of Rajasthan, AIR 2009 SC 2703.at pp. 2708-2709. 19. AIR 2002 SC 3302. 20. Kans Raj v. Punjab, AIR 2000 SC 2324. 21. AIR 1958 SC 22.

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law that a dying declaration cannot form the sole basis of conviction unless it is corroborated each case must be determined on its own fact, keeping in view the circumstances in which the dying declaration was made ; it cannot be laid down as a general proposition that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the forms of question and answers, and as practicable in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control ; that the statement has been consistent throughout if he had several opportunities of making a dying declaration, apart from the official record of it ; and that the statement had been made at the earlier opportunity and was not the result of tutoring by interested parties. In this case, there were two rival factions in what has been called the Mill area in Nagpur. The appellant Khusal Rao and co-accused Tuka Ram who had been acquitted by the High Court were leaders of one faction and P.Ws. Ram Gopal, Inayatullah and Tantu were said to be the leaders of the opposite faction. Before the time and date of the occurrence, there had been a number of incidents between the two rival factions in respect of some of which P.Ws. Inayatullah and Tantu had been prosecuted. The appellant was on bad terms with Baboolal (deceased ) who was on very friendly terms with the leaders of the opposite faction. Being infuriated by the conduct of Baboolal, in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tuka Ram suddenly attacked Baboolal with swords on different parts of his body. The occurrence took place in a narrow lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo Hospital where he reached at about 9.25 p.m. Dr. Kanikdale at once questioned him about the incident and Baboolal is said to have made a statement to Doctor that he had been assaulted by Khushal and Tuka Ram. After noting the statement, the doctor telephoned to the Police Station where the information was noted at 9.45 p.m. On receiving the information, Sub-Inspector immediately went to the Hospital where he found Baboolal in a serious condition and suspecting that he might not survive and apprehending that it might take time for the Magistrate to be informed and to be at the spot, Sub-Inspector decided that it would be more advisable for him to record the dying declaration without any delay. He recorded Baboolal's statement at 10.15 p.m. In the meantime, Mr. M.S. Khetkar was called and he also recorded the dying declaration between 11.15 and 11.35 p.m. Besides these, three dying declarations were recorded in quick successions, Baboolal is said to have made oral statements to a number of persons. All the witnesses of facts were

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disbelieved by the High Court. It was argued by the accused that conviction could not be based solely on dying declaration but that was not accepted. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by crossexamination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration and the dying declaration can form the basis of conviction;22 if on the other hand, the court, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case has come to the conclusion that the particular dying declaration was not free from the infirmity.23 If the court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, it was written in suspicious circumstances or that declarant's friends or relations or accused's enemies had been with the declarant before his statement was recorded.24 The court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of declaration alone.25 It cannot be laid down as an absolute rule of law that there can be no dying declaration without corroboration. The rule requiring corroboration is merely a rule of caution.26 In the case of dying declaration, the rule requiring corroboration is merely a rule of caution. It can form the sole basis of conviction.27 It was held by Supreme Court that, the dying declaration must be certain and from dying declaration the identification of the accused must be ascertained. The declaration must ascertain the cause of death to base the conviction.28 Sometimes attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted and as against others, even though not retracted. But it is not right in principle to do so though under Section 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Act lays down as a rule of prudence based on experience, that an accomplice is unworthy of

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22. Jaswant Singh v. State, AIR 1979 SC 190. 23. Khushal Rao v. State of Bombay, AIR 1958 SC 22. 24. Lallu Bhai v. State of Gujarat, AIR 1972 SC 1776. 25. Pompiah v. State of Mysore, AIR 1965 SC 939 ; Rashid Beg v. State of M.P., AIR 1974 SC 332. 26. Shakuntala v. State of Haryana, AIR 2007 SC 2709 at p. 2711. 27. Dashrath alias Champa v. State of M. P., AIR 2008 SC 316 at p. 319. 28. Bhupan v. State of Madhya Pradesh, AIR 2002 S.C. 820.

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credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not unlike a confession, or the testimony of an approver, come from a tainted source. Generally speaking, the maker of a dying declaration cannot be varnished with the same brush as the maker of a confession an approver.29 There may not be corroboration of the nature contemplated by Section 157 or matters provable under Section 158 and the only direct evidence may be a statement by the deceased made admissible under Section 32. It does not however, necessarily follow that this evidence is insufficient to support a conviction. In such a case the surrounding circumstances will have an important bearing. If the evidence of an accomplice is tainted, the court may under Section 114, presume that he is unworthy of credit unless corroborated, but a dying declaration is on a much higher place and the Act places no restriction on its acceptance. It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the court after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The court must of course be fully convinced of the truth of the statement and naturally, it cannot be fully convinced if there is anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility.30 A dying declaration if true and voluntary can be the basis of conviction without any further corroboration. The rule requiring corroboration is merely a rule of prudence. If there is no ground of suspicion about its truthfulness, it can be acted upon. It should not be the result of tutoring, prompting or imagination. In Shaik Nagoor v. State of A. P.,31 the Supreme Court through Dr. Arijit Pasayat J., in a two Judges' Bench judgment has summarised the law relating to credibility of dying declaration as follows: "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.32 (ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration.33 (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make declaration.34 ______________________________

29. Khusai Rao v. State of Bombay, AIR 1958 SC 22; Kori v. State, AIR 1960 Cal 509. 30. In re Guruswamy, AIR 1940 Mad 196 (FB) ; Asan Tharayil v. State of Kerala, 1981 Cr LJ 1165 : State of Assam v. Merajuddin, AIR 1983 SC 274; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850. 31. AIR 2008 SC 1500. 32. Mannu Raja v. State of M. P., (1976) 3 SCC 104, 33. State of U. P. v. Ram Sagar Yadav, (1985) 1 SCC 552.

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(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.35 (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.36 (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.37 (vii) Merely because a dying declaration does not contain details as to the occurrence, it is not to be rejected.38 (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.39 (ix) Normally, the Courts in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.40 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.41 (xi) Where these are more than one statement in the nature of dying declaration, one first in point of tie must be preferred. Of course, if the pluarity of the dying declaration could be held to be trustworthy and reliable, it has to be accepted."42 In a case of alleged dowry death leading to suicide, the dying declaration should be wholly reliable for conviction and if there is suspicion the Court should go for corroboration.43 Fitness of the deceased—Certificate of Doctor.—In Sambhu B. v. State of Madhya Pradesh,44 the dying declaration was recorded by the Magistrate. Doctor had certified that the deceased was in fit state of mind to make statement. The deceased had stated in the declaration that accused had poured kerosene on her body and set on fire. Declaration was corroborated by the fact that deceased was found with burn injuries near the house of accused. The accused was held is liable to be convicted for offence of murder. The fact whether Magistrate had gone to the hospital on scooter or any other vehicle or whether he noticed percentage of burn injuries on the body of the deceased were irrelevant matters and could not form basis for disbelieving dying declaration.

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35. Rasheed Beg v. State of M. P., (1974) 4 SC 264. 36. Kake Singh v. State of M. P., 1981 Supp. SCC 25. 37. Ram Monorath v. State of U. P., (1981) 2 SCC 654. 38. State of Maharashtra v. Krishnamurthy Laxmipati Naidu, 1980 Supp. SCC 455. 39. Surajdeo Ojha v. State of Bihar, 1980 Supp. SCC 769. 40. Nanhau Ram v. State of M P., 1988 Supp SCC 152. 41. State of U. P. v. Madan Mohan, (1989) 3 SCC 390. 42. Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700. 43. P. Mani v. State of Tamil Nadu, (2006) 3 SCC 161. 44. AIR 2002 SC 1307.

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In Shanmugam alias Kulandai Vellu v. State of Tamil Nadu,45 the dying declaration was recorded by the Magistrate within few hours of victim being admitted to hospital. The Magistrate stated in his examination that at the time of making dying declaration, the victim was conscious. Medical Officer present at the time of recording dying declaration also made endorsement about consciousness of the victim. Held—Mere non-examination of doctor in whose presence dying declaration was recorded does not affect its evidentiary value. In number of cases the Supreme Court has held that if the statement of a dying person passes the test of carefully applied by the court it becomes more reliable evidence and does not require corroboration. The two things which a court must take care of for examining a dying declaration are that (1) it is not the result of coaching, tutoring or prompting of some body, (2) and that deceased was in a lit state of mind to make the statement and made the statement without any enmity.46 The dying declaration must inspire confidence hence from medical evidence it becomes doubtful that the declarant was conscious the dying declaration cannot be relied upon.47 Where dying declaration was recorded by the doctor in the hospital, evidence of doctor cannot be discarded merely because the deceased had suffered 100% burns and her general condition was poor, when doctor stated that she was in a fit of state of mind and was able to make the dying declaration.48 At the time of recording of dying declaration by the SHO, it was not found whether the deceased was in a fit state of mind and health to give dying declaration. The doctor's statement was that he did not remember at what time dying declaration was recorded and he also did not know whether the deceased was in a fit state of mind to make the statement and he also did not remember the language in which the deceased answered questions put to him. The dying declaration was held to be unreliable.49 Dying declaration without certificate of Doctor—Certificate of doctor as to fitness— Only a rule of caution.—Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind but where the person recording the statement of the deceased states that the deceased was in a fit and conscious state, the medical opinion will not prevail nor can it be said that there being no certification of the doctor as to fitness of the mind of the declarant, the dying declaration is not acceptable. A certificate of doctor is essentially a rule of caution. Where the testimony of the Magistrate is to the effect that the declarant was fit to make the statement, it can be acted upon without there being certificate of doctor provided that the Court ultimately held the same to be voluntary and truthful.50

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45. AIR 2003 SC 209. 46. Kusa v. State of Orissa, AIR 1980 SC 559 ; Preetam Singh v. State of U.P., 1985 Cr LJ 10 ; Gangotri Singh v, State of U.P., AIR 1992 SC 948. 47. Darshan Singh v. State of Punjab, 1983 Cr L) 985. 48. Smt. Chandrawati v. State 1996 Cr.L.J. 975 (Delhi). 49. State of Rajasthan v. Wakteng, AIR 2007 SC 2020 at p. 2022. 50. Sher Singh v. State of Punjab, AIR 2008 SC 1426 at pp. 1430-1431.

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Where there was no certificate of doctor about fitness of the deceased making dying declaration before the Investigating Officer but the doctor was present at the time of making dying declaration and the dying declaration and thumb-impression of the deceased was attested by him, the holding that there could not have been any attestation of such document was technically held to be too wrong.51 Contradictions in the statements of Doctor.—The dying declaration was taken in the presence of Medical Officer whose endorsement was taken on it. There were contradictions in his statement before the Court. In his first statement, he said that the endorsement was made by him after, dying declaration was recorded but in his second statement when he was recalled stated that the endorsement was made by him on a blank paper and dying declaration was recorded thereafter. Held—The contradiction was liable to be ignored because the doctor was examined more than six months after date of making endorsement.52 Dying declaration incomplete.—A dying declaration is inadmissible in evidence if it is incomplete. When the condition of the deceased had become grave and at his own request a statement made by him in the presence of the doctor was taken by the police but it could not be completed as he fell into coma from which he could not recover, it was held that dying declaration was inadmissible because on its face it was incomplete and no one could tell what the deceased was about to add.53 But if the statement, though incomplete in the sense that the declarant could not state all what he wanted to state, yet whatever, he stated is complete in respect of a certain fact the statement would not be excluded on the ground of its being incomplete. The deceased stated, "I was going home, when I came near the house of Abdul Majid, Sattar shot me from the bush. He ran away. I saw." This was the dying declaration and dying man was in no condition to answer further questions. It was held that "there was no question of any incomplete statement so far as that aspect of the case was concerned. The statement in regard to Sattar having shot the deceased was complete in itself and it could not be said that any further question would have elicited any information which would run counter to the same. Under the circumstances the dying declaration, though incomplete, was complete in so far as the accused Sattar having shot the deceased was concerned and could certainly be relied upon by the prosecution.54 A dying declaration in a case was as follows :— "Sir , This day 24th January, 1960 in the noon at 12.30 Muniappan son of Kola Goundan of Kamnav-Kurechi stabbed me in my body with knife." Soon after the deponent said these words his speech stopped and he died. His thumbimpression was taken after he was dead. It was held that in this

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51. State of Rajasthan v. Parthu, AIR 2008 SC 10 at p. 11. 52. Amarsingh Munnasingh Suryavanshi v. State of Maharashtra, AIR 2008 SC 479 at p. 482. 53. Cyril Waugh v. King, 1950 ALJ 412 (PC). 54. Abdul Sattar v. State of Mysore, AIR 1956 SC 168.

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dying declaration the accusation against the appellant Muniappan was complete and so it was admissible.55 Circumstances which belie the dying declaration.—In Jagga Singh v. State of Punjab,56 the deceased deposed in dying declaration that rape was attempted on her and next day she was burnt by the accused. Further, she stated in her statement that after the deceased had been set on fire, which was in the courtyard, she rushed to her room which was bolted from outside by the accused. The brother of deceased did not say anything about the attempted rape so also the neighbour of the accused also did not say anything about the same. The occurrence witness did not say that deceased ran inside the room after being put on fire. The dying declaration was not signed by the doctor present at the time of recording of dying declaration. All these circumstances were held to belie the dying declaration. In Mehrban v. State of Maharashtra,57 the injured died in the way while being taken in bullock cart by prosecution witness. Dead body was then directly taken to police station. The injured while being taken in the cart allegedly have disclosed the prosecution witness that he was assaulted by accused persons. Evidence of the said witness coupled with medical evidence and other surrounding circumstances, proved that dying declaration given by deceased was true. The Supreme Court held that conviction of accused should not be interfered with. To be taken as a whole.—There is a controversy on this point. In some cases it has been held that it must be taken as a whole while in other cases a contrary view has been taken. A dying declaration must be taken as a whole. If statement is admissible, it must either go in a whole or not at all.58 Under Section 32, the whole of the statement must be taken into consideration. Parts of the statements made here and there cannot be divested from their context for the purpose of propping up the prosecution case.59 Contrary to this it had been laid down if a portion of dying declaration is untrue the rest of it cannot be necessarily rejected. However if part of it is shown to be false, the court may decline to believe the rest without corroboration.60 The point cropped up before a Bench of Allahabad High Court. In this case the dying declaration of the deceased mentioned A and B as his assailants. But no sufficient description of A was given in it to connect it with A. The description of B was enough to identity. Desai , J, (as he then was) observed : "without meaning to lay down that a dying declaration must be accepted or rejected in toto I do not think that accepting it against one and not against the other amounts to accepting it in part and rejecting it in part." With this observation the dying declaration was accepted against B and rejected

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55. Muniappan v. State of Madras, AIR 1962 SC 1252. 56. AIR 1995 SC 135. 57.AIR 2002 SC 299. 58.Tafiz Parmanik v. Emperor, AIR 1930 Cal 229. 59. In re Maneem Edukondalu, AIR 1957 Andhra Prdesh , 729. 60. Lala Ram v. State. AIR 1953 MB 249 : Provincial Government v. Jagan Bhat, AIR 1946 Nag 301.

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against A.61 In my opinion if a part of the dying declaration can be separated without losing its sense it may be accepted or rejected ; but if the statement is so worded that one part of it controls the other and if a part is separated it may mean differently than what it meant as a part of the whole, the statement must be taken as a whole. Oral dying declaration.—Unless one is certain about the exact words of the deceased no reliance can be placed on verbal dying declaration.62 Ordinarily an oral dying declaration is by itself insufficient for sustaining conviction.63 The impeachment of dying declaration.—A dying declaration being in effect a testimonial statement made out of court the maker is open to impeachment in the same way as other witnesses so far as this process is possible. Therefore, impeachment by bad testimonial character is permissible or by conduct showing a revengeful or irrelevant state of mind at the time of commission of crime, or by subsequent or prior inconsistent statements. In State of Rajasthan v. Teja Ram & others,65 it was held by Supreme Court that one of the permitted modes of impeaching the credit of witness is proof of former statement is inconsistent with any part of his testimony as indicated in Section 155 (3) of Evidence Act. Contradictions with other statements.—A dying declaration has to be considered in circumstances and light of other evidence.65 It has to be consistent with other evidence on record if there is a clear discrepancy between the facts mentioned in dying declaration and those in statements of witnesses it would be unsafe to place complete trust on the dying declaration.66 In face of this case law the decisions of Allahabad High Court,67 to the effect that a dying declaration cannot be contradicted by reference of the witnesses is erroneous. In State of U.P. v. Madan Mohan,68 Madan Mohan was tried for the murder of two persons. The trial Court convicted three respondents. The High Court quashed the conviction. Hence, the appeal was filed to Supreme Court by special leave. The High Court took the view that the incident occurred at 7.30 p.m. while the deceased Satya Narain in his dying declaration gave the time of incident at 6.00 p.m. The version regarding the statement of P.W. I and P.W. II also materially differed from the version found in dying declaration. The name disclosed by the deceased was also different. It was held by Supreme Court that the High Court was right in coming to conclusion that the prosecution version regarding the incident stated by P.W. I and P.W. II materially differed

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61. State v. Kanchan Singh, AIR 1954 All. 153. 62. Ramnath v. State of M.P., AIR 1953 SC 42. 63. Bhagwan v. State of Rajasthan, AIR 1957 SC 589 ; Pritam Singh v. State, 1972 AWR 521. 64. AIR 1999 SC 1776. 65. In re Guru Swamy, AIR 1940 Mad. 196 (FB). 66. Deo Rao v. State of Maharashtra, 1969 ALT 381 (SC) 67. Moti v. State, AIR 1968 All 83 ; Pritam Singh v. State, 1985 Cr LJ 10. 68. AIR 1989 SC 1519.

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from the version unfolded by dying deceased and therefore it was difficult to say that High Court was not justifying in taking the view it took. Therefore, the appeal was dismissed. Identity of accused to be established by dying declaration.— Before conviction can be based on dying declaration, the identity of the accused must be established by it. It should contain the same parentage and address of the accused.69 But if there is corroborative evidence to prove identity, the conviction is possible.70 Dying declaration in England and in India.—In England, the rules relating to dying declaration are different from those in India : (1) In England dying declaration is not admissible in civil cases but as said before in India it is admissible in civil cases into question. As far its admissibility in criminal case, (2) In England dying declaration is admissible only in the single instance of homicide, that is, murder or manslaughter where the death of the deceased (who had made the statement) is the subject of the charge and the circumstances of the death are the subject of the dying declaration ; whereas in India whatever may be the nature of the proceeding if the cause of the death of the deponent comes in question his dying declaration is relevant . It is admissible even, if the trial is not for his death,71 (3) According to English law certain conditions are required to have existed at the time of declaration, viz (a) it is necessary that the declarant should have been in actual danger of death, that is to say, the statement must be made after he received the injuries, (b) and he should have been aware of this danger and have abandoned all hope of recovery, and (c) that death should have caused. In India the existence of the last condition is certainly necessary because under Section 32 the statement is admissible only in cases where the deponent dies and the cause of his death comes in question. But the existence of the conditions (a) and (b) are not necessary in India. Under Section 32 the statement is relevant whether the deponent was or was not in actual danger of life and whether he was or was not at the time when the statement was made under expectation of death. Therefore (in India), whether the declarant was or was not in actual danger of death and knew or did not himself to be in such danger, are considerations which will no longer affect the admissibility of the evidence.72 But these considerations are to be taken into consideration in estimating the value of the declaration.73 Under English Law the admissibility of dying declaration rests on the principle that a sense of impending death produces in man's mind. Some feeling as that of conscientious and virtuous man under oath. The general principle on which this species of evidence is admitted is that they are declaration made in extremity. When the party is at the point of death and when every hope of

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69. Khushal Rao v. State of Bombay, AIR 1953 SC 22 ; Gopal Singh v. State of M.P., AIR 1972 SC 55. 70. Preetam Singh v. State of U.P., 1985 Cr LJ 10. 71. Parmanand v. Emperor, AIR 1940 Nag. 340. 72. State v. Kanchan, AIR 1954 All 155. 73. Khusal Rao v. State of Bombay, AIR 1958 SC 22., Kishan Lal v. State of Rajasthan, AIR 1999 SC 3062

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world is gone when every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak only truth. If the evidence in the case reveals that declarant has reached this state while making dying declaration then within the sphere of Indian Law, while testing the credibility of such dying declaration weightage can be given of course depending on other relevant facts and circumstances of case. F.I.R. as dying declaration.—A report made by the deceased relating as to the cause of his death or as to any of circumstances of the transaction which resulted in his death shall be relevant as dying declaration under Section 32 (l).74 Statement under Section 161, Cr.P.C.—Dying declaration.— Section 162 which prohibits the use of statement recorded under Section 161 makes an exception in sub-section (2) which reads, "Nothing in this section shall be deemed to apply to any statement falling within the purview of Section 32 (1) of Indian Evidence Act 'Consequently Section 162 (2) in expressed terms excludes from its purview statements falling within purview of Section 32 (1) and a statement amounting to dying declaration recorded during investigation by investigation officer will be relevant under Section 32(1).75 Dying declaration recorded by police.—Although a dying declaration recorded by police officer during the course of investigation is admissible under Section 32 of the Evidence Act, it is better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by a Magistrate or a doctor.76 Where it shows that an attempt was made to procure the services of a Magistrate for recording the dying declaration but since the Magistrate was not available it was recorded by the Head Constable which fact finds support from several witnesses including independent witnesses, it was held that there is no hesitation in accepting the same.77 In Ram Bihari Yadav v. State of Bihar,78 the Supreme Court held that where the dying declaration was recorded by police officer and the original thereof was not found on record and the official who recorded it was not examined, the entries in case diary as to said original dying declaration could not be taken as evidence. In State of Karnataka v. Shariff79 the Supreme Court held that dying declaration recorded by police officer could not be discarded solely on that ground. There is no requirement in law that dying declaration shall necessarily be recorded by Magistrate. The deceased was alleged to have been set on fire by the accused person after pouring kerosene on him as he refused to keep his daughter-in-law with

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74. Mahmood Ilahi v. State of U.P., 1990 Cr LJ 885, Pancham Yadav v. State of U.P., 1994 Cr.L.J. 848 (All). 75. Tapindra Singh v. State, AIR 1970 SC 1566 ; Moti v. State, AIR 1968 All. 83. 76. Dileep Singh v. State of Punjab; 1979 Cr. LJ 700 ; Munnu Roja v. State of M.P., AIR 1976 SC 2199. 77. Chari Patti Shankararao v. Public Prosecutor A.P. High Court, AIR 1995 SC 777. 78. AIR 1998 SC 1850. 79. AIR 2003 S.C. 1074.

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him. The dying declaration was alleged to have been recorded by the ASI who on receipt of intimation proceeded to the Burn Ward of the Hospital where he found that the deceased had suffered burn injuries. He inquired from the deceased who narrated the story. He obtained the signature of the deceased on the dying declaration after reading over it to him. The ASI who had been serving the department for the last thirty years was aware of the procedure of recording dying declaration and he was also aware of the fact that the Special Executive Magistrates were available for recording dying declaration but he did not call any of them. He was accompanied to the Burn ward by the Medical Officer to identify the deceased but he did not take certificate from the doctor regarding the fitness of the deceased to give dying declaration. He also did not record the time of recording of dying declaration. Held—The dying declaration and the manner in which it was recorded cannot be relied upon.80 In Prem Chand and others v. State of U.P.,81 dying declaration was recorded by Magistrate when the deceased was conscious. There was no discrepancy regarding the names of assailants. The contents of dying declaration was in conformity with version given by eye witness. Therefore, dying declaration was relied on. The deceased due to multiple burn injuries was unable to see or speak and the declaration recorded by the Police Officer immediately after incident was not adduced in evidence and the Magistrate later recorded second declaration in the presence of doctor which was a lengthy and detailed. The doctor present at the time of incident was neither named nor examined. The eye-witnesses who were close relations of the deceased being the son, daughter, wife and daughter-in-law of the deceased did not see as to who sprinkled acid on the deceased. The deceased was unable to speak and whatever was recorded was by the gestures made by him. The witnesses told that deceased had been tutored by his relatives and they did not see the accused persons committing the crime. The son also told that he gave complaint to the police at the instance of his relatives and his father had told him that the Naxalites had been threatening him. Held—The dying declaration allegedly made by the deceased is not free from doubt and embellishment. The suppression and withholding of the first dying declaration by itself creates suspicion. It has to be considered only as a piece of evidence of which no implicit reliance can be placed and conviction cannot be rested solely on the basis of such dying declaration.82 May be proved to be false by leading evidence.—Section 158 of the Evidence Act lays down that whenever any statement relevant under Section 32 or 33 is proved, all matters may be proved, either in order to corroborate or contradict it or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person might have been called as witness and had denied upon cross-examination in the truth of the matter suggested. Therefore, dying declaration may be corroborated under

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80. Shaikh Rafiq v. State of Maharashtra, AIR 2008 SC 1362. 81. AIR 1994 SC 1534. 82. J. Ramulu v. State of A.P., AIR 2008 SC 1505 at pp. 1509-1510.

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Section 157 of the Act and its credit may be impeached under Section 157 of the Act, either (a) by the evidence of the persons who testifies that, they from the knowledge of witnesses, believe him to be unworthy of credit or by proof of former statement of the deceased inconsistent with any part of his evidence which is liable to be contradicted. One S.B. Singh was tried for the murder of Brinda. The dying declaration of Brinda was only evidence. The case of the prosecution that murder was committed in railway compartment and there was light therefore deceased could identify his assailants. The defence filed the copy of the statement of deceased Brinda made about 7 years prior to the murder. In this Brinda Ban had stated that his eye sight was poor and his vision was blurred. The statement was held relevant.83 Dying declaration tainted.—A dying declaration would be tainted if the circumstances show that there was discussion between the interested person and deceased as to who could be assailants,84 if it is delayed,85 if it is proved that accused had already been named and the fact is known to the declarant,86 when the identity of the person named by the deceased is doubtful.87 In Cherlopalli Cheliminabi Saheb v. State of Andhra Pradesh,88 the dying declaration was recorded by police inspector in hospital. The doctor stated that deceased at the time of recording of dying declaration was not in serious condition. Magistrate residing near hospital was not called. Deceased did not explain nature of attack on him in dying declaration. There is correction in the nature of weapons used. Thumb impression was taken by using grease of motor cycle and not from inkpad taken on dying declaration. Dying declaration was tainted. Held—Dying declaration cannot be relied on for basing conviction, moreso, when all other witnesses turned hostile. Use of statement when the injured survives.—Sometimes the dying declaration of an injured person is recorded expecting that he shall succumb to injuries but he survives. In such cases his statement recorded as dying declaration cannot be used as a substantive piece of evidence as the dying declaration is used. The statements in such cases can be used for corroboration under Section 157 of the Act or for contradiction under Section 145 of the Evidence Act in case the declarant appears as a witness.89 Ram Prasad v. State of Maharashtra,90 is an important case on this point. In this case Supreme Court made the following observation : "If a person making dying declaration survives his statement cannot be used as dying declaration under Section 32 of Evidence Act, though it was recorded as dying declaration, at the time when the person made statement, he may be under expectation of death. But that is not significant to wriggle it into

___________________ 83. U.P. State v. S.B. Singh, 1964 ALJ 1134 at 1138 (SC); See also State of U.P. v. Madan Mohan, AIR 1989 SC 1519. 84. Khusal Rao v. State of Bombay, AIR 1958 SC 22 paras 11,16. 85. In re Guruswamy, AIR 1940 Mad. 196 ; Khusal Rao v. State of Bombay, AIR 1958 SC 22. 86. Muzzafar v. Emperor, 99 I.C. 322. 87. Harbans Singh v. State of Punjab, AIR 1962 SC 439. 88. AIR 2003 SC 1014. 89. Moqsoodan v. State of UP, AIR 1983 SC 218. 90. AIR 1999 SC 1969.

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the cosset of Section 32. As long as the maker of the statement is alive it would remain only in realm of a statement recorded during investigation." Sharwam Bhadaji Bhirad v. State of Maharashtra,91 was the case of unlawful assembly and murder. Accused were seven in numbers and armed with swords. After forming unlawful assembly, they chased the victim and caused multiple injuries on him which were found sufficient to cause the death of the victim. The victim, however, they survived because of efforts of team of doctors. Statement of victim recorded in details of the incident itself gave details of assault and disclosed names of the accused assailants. The statement of dying declaration need not stand strict scrutiny in facts of the case and at the best be deemed statement under Section 164, Cr.P.C. Statement was corroborated by evidence of eye-witness. Conviction of accused was held to be proper. Should not be under compulsion.—Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration free from compulsion or pressure to be relied up. The deceased said that she was not burnt by her husband in-laws. She was believed.92 Rule of Dying Declaration.—In Kalawati v. State of Maharashtra,93 Justice Dr. Arijit Pasayat referred to Paniben (Smt.) v. The State of Madhya Pradesh,94 and summed up the rule of dying declaration as follows— "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon with corroboration.95 (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.96 (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.97 (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.98 (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.99 (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.1

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91. AIR 2003 SC 199. 92. Kishan Lal V. Jagun Nath, AIR 1990 SC 1357. 93. AIR 2009 SC 1932. 94. AIR 1992 SC 1817. 95. Munnu Raja and another v. The State of Madhya Pradesh, (1976) 2 SCR 764 : AIR 1976 SC 2199. 96. State of Uttar Pradesh v. Ram Sagar Yadav and others, AIR 1985 SC 416 and Ramavati Devi v. State of Bihar, AIR 1983 SC 164. 97. K. Ramachandra Reddy and another v. The Public Prosecutor, AIR 1976 SC 1994. 98. Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264. 99. Kaka Singh v. State of M.P., AIR 1982 SC 1021. 1. Ram Manorath and others v. State of U.P., 1981 (2) SCC 654 : AIR 1974 SC 332.

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(vii) Merely because a dying to the occurrence, it is not to be rejected.2

declaration

does __

contain

the

details

as

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.3 (ix) Normally the Court in order to satisfy whether the deceased was in a fit mental Condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.4 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.5 (xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted.6 No requirement of oath and cross-examination.—The requirement of oath and crossexamination, in case of dying declaration are dispensed with. The situation in which a person is on death-bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. The exclusion of dying declaration may result in miscarriage of justice where the victim is the only eye-witness in a serious crime. The exclusion of the statement would leave the Court without a scrap of evidence.7 Clause (2).—Statement made in the course of business.—Subclause (2) deals with relevancy of statements made in course of business by a person who is dead or who cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which is unreasonable. This clause lays down that the statement made by such person in ordinary course of business is admissible. This clause declares that the statement made in the course of business is a better piece of evidence when it consists of an entry or memorandum made by such person in a book kept in ordinary course of business or in discharge of professional duty or when it is an acknowledgement written or signed by such person of the receipt of money goods, securities or property of any kind or when this statement is made in a document used in commerce written or signed by such person or when this statement is about a date of letter or other document usually dated, written or signed by him.

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2. State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617. 3. Surajdeo Oza and others v. State of Bihar, AIR 1979 SC 1505. 4. Nanahau Ram and another v. State of Madhya Pradesh, AIR 1988 SC 912. 5. State of U.P. v. Madan Mohan and others, AIR 1989 SC 1519. 6.Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 and Mohan Lal and others v. State of Haryana, 2007 (9) SCC 151 : AIR 2007 SC (Supp) 1139. 7. Darshan v. State of M. P., AIR 2008 SC 316 at p. 319.

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In the course of business.—The expression "in the course of business" means in the way that business (which may be of a purely private and even trivial nature) is conducted. It has no connection with a course of business which suggests a series of acts of business, the section would, therefore, apply to an act or acts of simple or private nature.8 The expression "statement made in the ordinary course of business" means a statement made during the course not of any particular transaction of exceptional kind but of business or professional employment in which the deceased was ordinarily or politically engaged. The phrase is apparently used to indicate the current routine of business which is usually followed by the person whose statement is tried to be proved. So where there is not only no evidence that there was any such current routine of business but actually no evidence that the practice had ever been adopted on any other occasion, the statement by a person since deceased that the defendants had asked him to lend them money and that he had lent them money is inadmissible. The post-mortem report of a Civil Surgeon who unfortunately died before his examination in the court, admissible under Section 32, sub-clause (2) as it is statement made by a dead person in the ordinary course of business and in discharge of his professional duty.9 It is not necessary that the occupation should be a mercantile nor that it should be a secular one. The register of marriage kept by a priest is admissible. Statement verbal or written.—The statement under sub-clause (2) may be written or verbal. The effect of the statement as to weight may be very different in two cases, but both are equally relevant. The words "and in particular" in this sub-section point to the superior force of 'written' over 'verbal' statement. Contemporaneous.—According to English law the entry should have been made at or near the time of transaction recorded. But the provisions of the Indian Evidence Act contain no such restriction. According to this clause an entry made even after the occurrence of the fact about which it relates is admissible if it is made in course of business or in a book of account. But in determining the weight to be attached to such entries in particular cases it will always be important to consider how far the statement or entry was contemporaneous with the fact it relates. English Law.—According to English Law the subject-matter of the entry must have been within the direct and personal knowledge of the person making it. It must be an entry not of something that was said, not of something that was learnt, not of something that was ascertaining by the person making the entry, but an entry of a business transaction done by him to him of which he makes a contemporaneous entry. But the Indian law simply requires that the entries in account books should in order to be relevant be regularly kept in the course of a business; a person making the entry may or may not have personal knowledge about them, he might have learnt or ascertained it from somebody else. It is important to note that the fact that the person making or dictating the entries has or had no personal knowledge of the fact he states, or dictates will help in ___________________ 8. Rammurti v. Subbarao, AIR 1937 Mad. 90. 9. Makkan Singh v. Emperor, AIR 1925 All. 430

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believing or disbelieving the entries. It is proved that the entry was made on the personal knowledge of the maker, then greater value will be attached to his statement. The statement must have been made in discharge of a duty to a third person according to English Law ; the mere personal custom of involving responsibility is not enough. Thus to prove the purchase of shares for a client an entry made by the deceased stock broker in his day book that he had bought the shares for a client is inadmissible under English Law there being no duty to make the entry. Again under the English Law the declarations are only evidence of the precise facts that it was the writer's duty to record and not of the other matters which though contained in the same statement were merely collateral thereto. But under the Indian Law under sub-section (2) of Section 32 the entry in order to be admissible must relate to relevant fact and it would appear to make no difference so far as the question of admissibility is concerned, whether the fact is connected with performance of a duty or is merely an independent collateral matter. Whether this fact naturally finds a place in the narrative, what is the nature of its connection with the fact, the statement of which was a matter of duty ; and where this connection was such as to raise a presumption of accuracy of information or observation, must, however, be question of importance in estimating the weight due to such evidence when it relates to collateral matters merely. Value of the entries.—Entries in books of account admissible under Section 32, sub-clause (2) need no corroboration with reference to the facts mentioned therein. They are in law sufficient evidence in themselves. Proof.—Extrinsic evidence must be given by the party tendering the evidence to prove the declarant's death, etc., and where the statement is written, the handwriting of the declarant and that it was made in the ordinary course of business. If all these things are not proved, the entries by a person dead or incapable of giving evidence, will not be admissible. This clause relates only of the relevancy of evidence, not to the manner of proof.10 Before a relevant statement is admitted into evidence its authorship is to be proved.11 Clause (3)—Statement against the interest.—Sub-clause (3) lays down that when the statement of a person who is dead or who cannot be found, or who has become incapable of giving evidence and so on, is against the pecuniary and proprietary interest of the person making it; or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages, it is admissible. Principle.—Ordinarily a person is not expected to make a statement to his detriment unless it is true. "The principle upon which hearsay evidence is admitted under clause (3) is that a man is not likely to make a statement against his own interest unless it is true."12 It is on this principle that a statement coming under sub-clause (3) is made admissible in evidence.13 This

___________________

10. Naga Rega v. Koothuppan, AIR 1941 Mad. 602. 11. Pratap Singh v. State, AIR 1955 Saurashtra 68. 12. Sabitri Devi v. R.R. Bijay Prasad Singh, AIR 1950 PC 1. 13. Dal Bahadur v. Bijai Bahadur, AIR 1930 PC 79.

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section makes three sets of statements against interest relevant, namely, (1) where the statement affects the declarant's pecuniary interest, (2) where it affects his proprietary interest, and (3) where it affects his personal liberty or property by tending or charging him with a crime or to subject him to payment of damages. Under this clause it is the statement and not the document containing the statement which must be against the proprietary interest of the person making it.14 The tests of admissibility of statement against the interest of the maker since dead under sub-clause (3) are (1) that the deceased must have had personal knowledge of the facts he was stating, (2) the facts stated should have been to the immediate prejudice of the deceased, (3) the statement must have been to the knowledge of the deceased to be contrary to his interest, and (4) the interest must be either pecuniary or proprietary.15 The question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would depend in most cases on the circumstances under which the statement was made.16 English Law.—According to English law declarations against interest or statement made by the deceased affecting his pecuniary or proprietary interest are admissible but declarations against the interest in other sense that is declaration making the person liable for criminal prosecution or subjecting him to damages for civil suits are not admissible. Statement against pecuniary interest.—A statement is against the pecuniary interest of the maker when its tendency is to make away or lessen his pecuniary interest. A statement is against pecuniary value of the property of the person making the statement if it imposes upon him the pecuniary liability of any kind. Similarly, a statement is against the pecuniary interest of the maker if it has the effect of charging him with a pecuniary liability to another or discharging some other person upon whom he would otherwise have a claim, he may concede that he had received money or other things of value. The declarant may assert that he has misappropriated a sum of money belonging to another. He may admit that he owes a certain sum of money to others. In short, any statement to the effect that his financial position was so worse that it would prima facie appear to be had he not made the statement, will be received as a declaration against his interest. In order to determine whether a particular statement is against the pecuniary interest of the person making it, the declaration itself and not the nature of the transaction in the course of which the statement is made, is to be considered.17 Though the statement under this clause includes both verbal or written statement, it is more frequently exemplified in written statement and especially in books of account. Against proprietary interest.—By declaration against proprietary interest is meant statement made by a person while in possession of an estate

___________________

14. Karupanna v. Rangaswami, AIR 1928 Madras 105. 15. Ramanathan v. Karuguppa, 33 Indian Cases 969. 16. Kamla Kuar v. Dwarka Prasad, AIR 1967 SC 1134 ; R.C.B. Institution v. State, AIR 1976 Kant. 75. 17. Markhu v. Sharai, AIR 1940 Patna 16.

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asserting a more limited interest in the land or an inferior interest and denying some higher title which he would have been thought to possess had he not made the statement. When a party in possession of a land admits that he is not that owner of the land but only he is a lessee of it or when he admits that he is not a permanent tenant but a tenant for a life or a tenant only for a few years or tenant at will, he clearly cuts down his own interest in the land. He damages his own title. And it is not natural that a person would do this if he actually had a larger interest than he claimed or stated. Any declaration by an occupier tending to cut down, charge, or fetter his presumably absolute interest will be admissible under this head. So, where a Hindu widow executed in favour of A a deed of heirship, this deed was held admissible in a suit between A and a mortgagee of a certain property covered by the deed as the deed was against the interest of the widow.18 The statement of a particular person that he is separated from a joint family, of which he was a coparcener and that he has no further interest in his joint family property would be a statement against his interest. In this case the assertion that there was separation not only in respect of himself but between all coparceners would be admissible as connected matter and an integral part of the same statement.19 It must be remembered that in order to take statement against proprietary interest in land admissible after the death of the declarant it must be proved that he was at the time of statement in actual possession of the property. A declaration or written statement by a person since deceased when he occupied a house to the effect that he was only a tenant at some rent, and that he has paid it, is admissible, as a statement against pecuniary interest to prove the fact of payment as well as the tenancy. Criminal prosecution and suit for damages.—Under this clause the third case in which declarations against interest are admissible, are such as to subject the declarant to prosecution or civil action. If the entry of a deceased person is such that he would have been criminally liable for that or he would have been liable to pay damages in a civil suit the statement will be admissible. But in order to make such statement admissible the fact stated must expose him to a criminal prosecution or to a suit for damages at the time it was made. It was hardly intended, that a statement made after the risk had passed away, as for example after a suit for damages had become time barred or after the expiry of time, if any, within which a prosecution for an offence must be instituted would be admitted. The idea behind this principle is that when a person makes statement rendering him liable to criminal prosecution, the statement is likely to be true statement, but when before he made the statement in question there was, already evidence against him which would lead to his prosecution and conviction, a statement made by him cannot be admitted in evidence under Section 32 clause (3).20 This clause cannot be applied to a statement made by a deceased person after proceedings have been instituted against him. The moment a criminal proceeding has been started against the person making the statement, the words of sub-clause (3) cease to apply.21 ___________________ 18. Hari v. Mose, ILR 11 Bom 89. 19. Bhagwati Prasad v. Dubari Rameshwari, AIR 1952 SC 72. 20. Achtai Lal v. Emperor, AIR 1947 Patna 90. 21. Janu Quadir v. Emperor. AIR 1947 Sind 122.

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[S. 32

All facts contained in the statement admissible.—It must be remembered that the statement may be accepted not merely as to the specific part against the interest of the maker, but also as to every fact contained in the same statement. If the entry is admitted as being against the party making it, it carries with it the whole statement. It is admissible as evidence not merely of the precise fact which is against interest but of all matters involving in or knit up with the statement.22 So the statements of tenants have been admitted to prove not merely the fact that they were tenants but also both the amount and payment.23 Recital of boundaries in documents.—Recitals of boundaries in documents not inter partes were admitted under this clause in several cases.24 The mortgage deeds and sale deeds having been held to be statement against the pecuniary or proprietary interest of the executant of the deed the document is made evidence not only of the precise fact against the interest but of all the collateral facts mentioned therein and consequently of the possession or ownership of persons who are mentioned in the deed possessing or owning the land adjoining the property mortgaged or sold.25 Clause (4)—The statement about opinion as to public right or custom.—Where a person was likely to be aware of the existence of any public right or custom or matter to public or general interest, and being so aware makes a statement giving his opinion about the existence of such public right, etc., before any controversy as to such right arose and dies after making such statement, it shall be admissible under Section 32 clause (4). In order to prove a public or general right or custom, or matter of public or general interest, statements made by deceased person of competent knowledge as to the existence of such right, etc., and to the general reputation thereof in the neighbourhood (if made ante litem mortem before the dispute arose) are admissible. Such statements are known as a declaration as to public and general right. Public rights are generally those common to all the members of the State, e.g., rights of highway and ferry or of fishery in tidal rivers. General rights are those affecting any considerable section of the community, e.g., questions as to boundaries of a parish or manor. This clause applies in case of any public right or custom.26 Opinion.—"What is offered must be in effect a reputation not the mere assertion of an individual. But the reputation includes and is often learnt through the assertion of individual. It is therefore, constantly necessary to distinguish between assertion involving some individual credit and assertion involving a community reputation.

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22. Bhagwati Prasad v. Rameshwari, AIR 1952 SC 72. 23. Ambar Ali v. Lutfe Ali, ILR 45 Cal 159. 24. Thyarapan v. Narayan Thevan, AIR 1940 Mad 480 ; Tikaram v. Moti Lal, AIR 1930 All 299. 25. Riayaddi Shankar v. Ganga Charan, AIR 1919 Cal 419 ; Ram Nadan v. Tilak Dhari, AIR 1933 Patna 636 ; Rangayyan v. Innasemuther, AIR 1955 Mad 226. 26. Mati Lal v. Baldeo Das, AIR 1952 V.P. 36.

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The common form of question put to a reputation witness was 'what have you heard from old man, now deceased, say as to the reputation on this subject.' Thus though in form the information may be merely what deceased person have been heard to say about a custom, yet in effect it comes or ought to come from them as a statement of reputation." "The judges constantly speak of reputation from deceased person, but reputation is no other than the hearsay of those who may be supposed to have been acquainted with the fact handed down from one to another. So in such a case it is usual to admit the evidence of the old persons, who are deceased, and have been heard to say on those occasions. Opinion must be of competent persons. The opinion to be admissible under this clause must have been formed among a class of persons who were in a position to have a perfect sense of information and to constitute intelligently to the formation of the reputation." Declaration ante-litem mortem.—To make a statement relevant under this clause it is not only necessary that the declarant was possessed of adequate knowledge but also that the latter was not at the time of making his statement under a controlling motive or mis-representation. The declarant must be disinterested at the time when he made the statement. If it is proved that the speaker had some interest to misrepresent, his declaration would be rejected. It is, therefore, necessary to the admissibility of declarations of this description that they should be made before the dispute had arisen in regard to which they are tendered in evidence. The reason why the statements of deceased persons are admitted upon the public right made ante-litem mortem (when there was no existing dispute respecting them) is that these declarations are considered as disinterested and dispassionate and made without any intention to serve a particular cause or mislead the posterity. Clause (5)—Statement as to existence of relationship.—Under this clause, the statement of a dead person or one who cannot be found, etc., relating to the existence of relationship between persons, are relevant if the person making the statement had special means of knowledge about the relationship and the statement was made before the question in dispute was raised. On 3rd of March, 1950 A purchases some property from B. On 10th of May, 1950. H files a suit for recovery of half of the property sold. He sets up the following pedigree. S D (Daughter) R (Son) P (Son) M (Daughter) B H (Son) The allegations in the plaint are that the property in dispute belonged to S. He left only one issue D, a daughter. After S his property was inherited by D After the death of D the property in dispute came to R and P, her sons each getting one-half. After P's death his half share devolved on B. After R his

Page 260 EVIDENCE ACT [S. 32 half share went to M, his daughter, and after her death it devolved upon H. He alleged that B could sell only half of the property and so the sale in respect of his share was null and void. A contests the suit on various grounds. One of the grounds set up by A is that D had only one son P and that R was not a son of D and so H has no interest in the property sold. Now one of the facts in issue at the trial would be whether R was son of D ? At the trial one K is produced by H as a witness. He says, "R told him about 40 years ago that he and P were brothers and that D was their mother." Here the plaintiff wants to prove the statement of R to prove relationship between R and P and that between him and B. If R was son of D he must be supposed to have special means of knowledge about the relationship. This statement was made long before the dispute arose. Therefore the statement is relevant. Clause (5) requires (1) that the statement sought to be tendered in evidence must be made by a person having a special means of knowing the relationship to which it relates, and (2) that it must have been made ante litem mortem. Special means of knowledge.—Before the statement of a deceased person relating to relationship may be proved, it has to be established that the person, whose, statement is to be proved, had special means of knowing the relationship. The burden of proof lies upon the party who offers such evidence. "Where, in order to prove a family pedigree the statements of a deceased person are tendered, but there is nothing to show that he had any special means of knowledge in the matter, the statements are not admissible."27 In Twarku v. Surti,28 the entry in family register was maintained under rules. The name of first wife therein was deleted on the basis of divorce deed and name of the wife subsequently married was found mentioned. Representation made by the husband and recorded as entry in register was very much relevant under Section 32 (5) to prove that person mentioned in entry had married the second wife. It should be borne in mind that to have special means of knowledge the declarant should be related to the family, by blood or marriage. In India for the purposes of proving relationship, statements of deceased relatives, servants and dependants of the family are admissible and in every instance it must be a question of fact as to whether the person who made the statement had the special means of knowledge.29 It should be remembered that in the case of statement, as to relationship of certain persons of the family, by an old member of the family, it is not necessary for him to depose to any particular source of knowledge. His special knowledge may be presumed.30 Similarly, a person married in the family and a family bard have been held to have special means of knowledge of the relationship.31

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27. Mata Baksh Singh v. Ayodhya Baksh Singh, AIR 1942 Oudh 340. 28. AIR 1997 H.P. 76. 29. S. Ram Krishna Pillai v. Tirunarayan, AIR 1932 Mad 198. 30. Md. Asad Ali v. Sadiq Ali, AIR 1943 Oudh 91. 31. Lakshmi Reddi v. Venkata Reddi, AIR 1987 PC 201; Anandi v. Nandi Lal, 22 ALJ 657.

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Ante Litem Mortem.—The statement must be made before the dispute arose.32 Declarations made after the controversy has arisen are to be regarded as lacking the guarantee of truthfulness. "The line of distinction is the origin of controversy and not the commencement of the suit." A dies in 1915 A. D. issueless. After his death B enters into possession of all his properties. One C claims half of the property alleging that he and B are agnates of A of an equal degree. He states a pedigree and tries to prove that his grandfather, B'& grandfather and grandfather of A were real brothers all being sons of X. He (C) does not file any suit in his lifetime. After his death his son D files a suit against B for partition and possession of half the property left by A. At the trial D tries to improve the statement of his father mentioned above. The statement is inadmissible as it was made after the dispute arose. It should be borne in mind that the only two conditions laid down by this clause are that the statement should be made by a deceased person who had special means of knowledge and that it was made ante litem mortem. No third conditions can be laid down. It cannot be said that the statement should have been relevant to the matter in issue in respect of which it was made. If the statement fulfils the two above-mentioned requirements, it is immaterial as to in what connection it was made. It might have been made in course of gossip only still it is admissible. It is well settled that the declarations or statements made post litem mortem would not be admissible because in cases made ante litem mortem, the element of bias and concoction is eliminated. Before, however, the statements of nature being ante litem mortem they must be not only before the actual existence of any controversy but they should be made even before as the commencement of legal proceeding.33 Joint statement—Some persons making, dead.—If a statement is made by many persons and some of them are dead while others are alive at the time when the statement is sought to be proved it is admissible under this clause if made ante litem mortem.34 Clause (6)—Pedigree Evidence.—Clause (6) is regarding the evidence of pedigree under which a statement in a Will or deed relating to family affairs is relevant. This clause lays down that when the statement of a person who is dead or who cannot be found, etc., (1) relates to the existence of any relationship (by blood, marriage or adoption), (2) between persons deceased, and (3) is made in any will or other deed relating to the affairs of the family to which any of such deceased person (about whose relationship it relates) belonged or when it is made in a family pedigree or upon any tomb stone, family portrait or in any other thing on which such statements are generally made, and (4) when the statement is made ante litem mortem, it is relevant.35 As seen above clauses (5) and (6) both deal with the statements of persons relating to relationship of persons. To avoid confusion it would be important to note the difference between the two clauses. ___________________ 32. AIR 1935 PC 199. 33. State of Bihar, v. Radha Krishna Singh, AIR 1983 SC 684. 34. Dalgovind v. Nimai Charan, AIR 1959 SC 915. 35. Banwari Lal v. Trilok Chand, AIR 1980 SC 419.

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Difference between clauses (5) and (6).—Both of these clauses are similar in so far as they relate to the admissibility of evidence relating to relationship. But there are many differences between the two. (I) In clause (5) the evidence is the declaration of a person deceased or otherwise unproducible, whereas in clause (6) the evidence is that of things such as wills, family genealogical trees, tombstone, etc.. (II) Clause (5) refers to relationship between any persons alive or dead whereas clause (6) to the relationship between persons who are dead, A and B are both alive. The question is whether A and B are related to each other as cousins. This can be proved by adducing evidence in conformity with clause (5). Again suppose A is dead and B is alive, the question is whether A was grandfather of B. In this case also the evidence can be brought on record provided by clause (5). Again suppose C and D are both dead, the question is whether they were cousins. In this case both the clauses may be invoked. But in the cases where one of the persons or both, about whose relationship the controversy arise, are alive, clause (6) cannot be of any help. (III) Statement under clause (5) may be oral or written, whereas under clause (6) can never be oral, it must be written, (IV) Under clause (5) the persons making the statement must have special means of knowledge about the relationship. But under clause (6) it is not necessary that the statements in wills, document, portrait, etc., should have been made by a person having special means of knowledge about the relationship. English Law.—According to English law declaration made by deceased relatives are admissible if made ante litem mortem to prove matters of pedigree only. They are relevant only in cases in which pedigree to which they relate is in issue, but not to cases in which it is only relevant to the issue. Thus, where the question was whether A sued for the price of horses and pleading infancy, was on a given day an infant or not, the fact that his father stated in an affidavit that A was minor on a certain date was held to be irrelevant. The terms matters of pedigree under English Law appears to be confined to primarily issues involving family succession, descent, relationship and legitimacy. Indian Law.—Minority, age and date of birth and legitimacy all can be proved.36 Clause (7)—Statement made in a document relating to transaction.—Under this clause statements of relevant facts made by persons who are dead or who cannot be produced before a court are admissible if they (statements) are contained in any deed, will or other document which relates to such transaction as is mentioned in Section 13, clause (a). Under clause (7) only that statement is relevant which is contained in any deed or will or other documents relating to any transaction by which any right or custom was created, claimed, modified, recognised asserted or denied or which was inconsistent with its existence. It must be borne in mind that the right created by the transaction may or may not be relevant in the present controversy. Any

___________________ 36.

Mukti Prasad, v. Akkma, AIR 1950 Cal 553 ; Kanahiya v. Mst. Ram Din Kuar, AIR 1944 Oudh 162,

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statement in the deed relating to the transaction, which is relevant in the present controversy, may be proved. A deed of mortgage containing an assertion of title as owner by the mortgagor is relevant as evidence of title. A statement of boundaries in document of title is legal evidence in suit between third parties if the persons who made the statements are dead. Example A and B were two plots adjacent to each other ; B lay towards the north of A, A belonged to Mohan and B belonged to Sohan. Mohan sold his plot A to one Ram in 1865. In his sale-deed he gave the boundary of his field, while giving the boundary Mohan stated in the deed that towards the north of his field was situated the field of Sohan. Somewhere in 1950 dispute arose between one Shyam and Pyare the son of Sohan about the ownership of plot B, and a litigation began. In the trial court Pyare tried to prove the sale-deed executed by Mohan that the plot belonged to him. It was held that the deed was admissible under Section 32, clause (7). Clause (8)—Statements by several persons expressing feeling relevant to the matters in question.—This clause lays down that the statement made by a number of persons, expressing feeling or impression, i.e., opinions relevant to the matter in question are admissible when such persons are dead or incapable of giving evidence, and they may be proved by the testimony of other persons. Section 32 and Section 11.—Section 32, Evidence Act controls Section 11 of the Act. That is to say if the statement made by a person since deceased, is not admissible under Section 32 it cannot be admitted in evidence under Section 11 of the Act. The property in suit belonged to one Beni Ram. He died in 1866 and his wife succeeded him. She also died in 1878 and then Mst. Dasodari her daughter came into possession of the property. The plaintiffs purchased the property from the persons who would be entitled to the property on the death of Mst. Dasodari as heirs. The defendants are the transferees from Mst. Dasodari. The plaintiffs filed a suit for possession of the property in suit on the 4th of March, 1910. They alleged that Mst. Dasodari died on 16th of March, 1898 and so the suit was within 12 years from the death of Mst. Dasodari and so it was within time. The defendants contended that suit was not brought within 12 years after the death of Mst. Dasodari so it was time barred. Some documents purporting to be statements of dead persons were produced by the defendants to prove that Mst. Dasodari died on 16th March, 1898. It appears that on the death of Mst. Dasodari applications were made for mutation of names in respect of some of the property in the possession of which she had been. The applications were supported by depositions of reversioners, two of whom were sons of the Musammat, and the date of her death was stated to be the 16th of March, 1898. These depositions were offered in evidence. It was held, "the persons who made the depositions are dead and the depositions accordingly are simply the statements of relevant facts by persons who were dead. Such statements are not

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relevant fact unless they come under some one or more of the sub-sections of Section 32 of the Evidence Act. It has to be admitted that under the circumstances of the present case the depositions are not admissible under Section 32. The learned advocate for the appellant argues that while the depositions cannot be admitted under Section 32 nevertheless the fact that these persons made the statement that Mst. Dasodari died on the 16th March, 1898 made it highly probable that she died on that date and that therefore the depositions are admissible under Section 11 of the Evidence Act. I think it impossible to hold that a statement of a relevant fact which would be inadmissible under Section 32 could be admissible under Section 11." The evidence was rejected as inadmissible.37 To this general rule there is one exception. A statement inadmissible under Section 32 will be admissible under Section 11 when it is altogether immaterial whether what that dead man said was true or false but highly material that he did tell that.38

S

ECTION 33.— Relevancy of certain evidence for proving, in subsequent proceeding,

the truth of facts therein stated.— Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable : Provided— that the proceeding was between the same parties or their representatives in-interest; that the adverse party in the first proceeding had the right and opportunity to crossexamine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. COMMENTS Sections 32 and 33 are exceptions to the

Hearsay rule.—As discussed under Section 60 there are several exceptions to the rule of excluding hearsay evidence. Sections 32 and 33 are also exceptions to that rule under these sections derivative, i.e., hearsay evidence is relevant.39 Relevancy of certain evidence in subsequent stage of a proceeding or in other proceedings.—If a person makes a statement in a judicial proceeding or before any person authorised by law to take evidence and

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37. Bela Rani v. Mahabir Singh, ILR 34 All 341. 38. Thakuiji v. Parmeshwar Dayal, AIR 1960 All 339. 39. Mt. Bino v. Atma Ram, AIR 1937 All 131.

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OF THE RELEVANCY OF FACTS

afterwards he dies or cannot be found or becomes incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an unreasonable amount of delay or expense, and if the fact stated by him becomes relevant at the later stage of the same proceeding or another subsequent judicial proceeding that previous statement can be proved without calling that person as a witness. But it should be remembered that the previous statement of such person can be admitted in evidence only, when— the first proceeding was between the same parties as in the subsequent one, or their representatives-in-interest ; the adverse party in first proceeding had the right and opportunity to cross-examine; and that the questions in issue were substantially the same in the first as in the second proceeding. A criminal trial or inquiry shall be deemed to a proceeding between the prosecutor and accused within the meaning of this section. Previous statement in the same proceeding.—Section 33 lays down that the statements of persons (dead etc.) in an earlier stage of the same proceeding is relevant at a later stage of the same proceeding. The statements of witnesses at the stage of an inquiry under Order 22, Rule 5 C.P.C. are relevant at the stage of the final hearing of the case.40 The statement recorded before the ex parte decree set aside.— When an ex parte decree is set aside the evidence recorded becomes illegal. Moreover the defendant had no opportunity to cross-examine the witnesses. Therefore the evidence of plaintiff recorded prior to the setting aside of the decree is not relevant under Section 33.41 Thus the previous deposition of a witness is admissible in a subsequent judicial proceeding in proof truth of the fact stated therein, where all the following conditions are fulfilled :— (1) that the evidence was person authorised by law to take it;

given

in

a

(2) that the proceeding representative-in-interest ;

was

between

judicial the

proceeding same

or

parties

before

any

or

their

that the parties against whom the deposition is tendered had right and full opportunity of cross-examining the deponent, when the deposition was taken in the previous proceeding ; that the issues involved are the same or substantially the same in both proceedings; that the witness is dead or cannot be found or has become incapable of giving evidence or is kept out of the way by the adverse party or his presence cannot be obtained without an unreasonable amount of delay and expenses.

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40. Mohinder Kuar v. Piara Singh, AIR 1981 Punjab 130. 41. Aziz Ahmad v. S.A. Patel, AIR 1974 AP 1; Malkhan Singh v. Raghubir Singh, AIR 1981 All 96.

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Difference between Sections 32 and 33.—Both the sections make provisions for admission of previous statement of the persons who are dead, or who cannot be found or who have become incapable of giving evidence or whose presence cannot be obtained without unreasonable delay or expense. Besides these similarities there are some differences : (i) unlike Section 32 under Section 33 a previous statement of a witness can be used also when he is prevented from appearing in court by the adverse party, (ii) Under Section 32 any statement covered by the sub-sections of this section are relevant whether it is written or verbal, whether it is made in a judicial proceeding or not, but under Section 33 only evidence of a witness in a judicial proceeding or before a person authorised to take evidence is relevant. Judicial proceedings.—Section (2), clause (i), Cr. P.C., 1973 defines judicial proceeding as "judicial proceeding includes any proceeding in course of which evidence is or may be legally taken on oath." This section does not give an exhaustive definition but it only gives the test of judicial proceedings. According to this section any proceeding in which oath is given to a witness is a judicial proceedings. No definition of the term, judicial proceeding, is given in C.P.C. The meaning of the term will be clear by examples. Settlement proceedings before Settlement Deputy Collector are not judicial proceedings within the meaning of this section and as such the statements made before a Settlement Deputy Collector are not admissible under Sections 83 in subsequent judicial proceedings though all other conditions mentioned before are fulfilled,42 where certain proceedings were conducted before a Magistrate who had no jurisdiction to conduct them, the evidence of witnesses examined in such proceeding cannot be proved on a retrial before a competent court.43 Section 299 of Cr. P.C. and Section 33 of Evidence Act.—In Nirmal Singh v. State of Haryana,44 the Supreme Court held that on mere perusal of Section 299, Cr.P.C. which deals with record of evidence in absence of accused and Section 33 of Evidence Act, it must be concluded that the precondition in both the sections must be established by prosecution. It is only the statement of witness recorded under Section 299 of Cr.P.C. before arrest of the accused can be utilized in evidence in trial after the arrest of such accused if the person making the statement is dead or would not be available or any other condition enumerated in the second part of Section 299 (1), Cr.P.C. is established. Before any person authorised by law.—It is not necessary that the evidence should have been given in a judicial proceeding. A deposition taken by Magistrate in his magisterial capacity could be receivable if not excluded on any of the grounds mentioned in this section. So a coroner, an arbitrator, a Commissioner appointed under C.P.C. to take down evidence, or a revenue officer in mutation proceedings are authorised to take evidence and depositions before them are admissible in subsequent cases. The evidence of a witness examined in an inquiry held by a sub-registrar under Section 41 (2) of the

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42. Shri Krishen Dutt Dubey v. Musammat Ahmadi Bibi and others, AIR 1935 All 187. 43. Boota Singh v. Crown, AIR 1927 Lah 582. 44. AIR 2000 SC 1416.

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Registration Act regarding the genuineness of a will is admissible in evidence in subsequent suit between the same parties raising an issue to the genuineness of a will, if it is proved that witnesses are dead at the time of suit, and the adverse party of the inquiry before the subregistrar had an opportunity to cross-examine the witnesses.45 In general the principle is clearly accepted that the testimony taken before a tribunal or officer not empowered to compel or not in practice employing cross-examination as a part of its procedure is inadmissible if in fact cross-examination was practised under its procedure.46 (2) Identity of parties.—The deposition of a witness who is dead or who cannot be produced due to some other reasons, in a previous litigation are admissible under Section 33, Evidence Act when the proceedings have been between the same parties or their representatives-in- interest. So a deposition cannot be given in evidence against any person who was not a party to the suit.47 In deciding the identity of parties it makes no difference that the parties are differently arrayed in the two proceedings, the plantiff in the first proceeding being defendant in the second or vice versa : nor if there have been plurality of parties in one case and not in the other. In V.M. Mathew v. V.S. Sharma & others,48 the Supreme Court held that adverse party is the party against whom the witness is produced in first proceeding. Party producing the witness and having advantage of examining the witness is not such adverse party as referred to in 2nd proviso. Representative-in-interest.—The first proviso to Section 33 reads as "That the proceeding was between the same parties or their representatives-in-interest." There is no difficulty in the interpretation of the proviso when the parties of both the proceedings are common. But where the parties are not identical, the question becomes a bit intricate. The proviso in this respect would read as "that the proceeding was between their representativesin-interest." From the words of this proviso it is not clear whether the party to the first proceeding must have been a representative-in-interest of the party to the second proceeding (or the party to the second proceeding must be a representative-in-interest of the party to the first proceeding). This is crucial question, because if the latter view be the true one, it would seem that the proviso could only be fulfilled where an interest vested in the party to the first proceeding at the death thereof had become vested in the party to the second proceeding, in other words where, according to the well-known terms of the English Law, the party to the proceeding was privy in estate with the party to the first proceeding and so claimed title through and under him. On the other hand, if the former view prevails, the words representatives-in-interest may cover a much wider field and include persons who have no privity of estate with and do not claim through or under the propositus. Their Lordships of the Privy Council held that "The person who is called by proviso (1) 'representative-ininterest' of another is a person who was the party to the

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45. Lanka Lakshmanna v. Lanka Vardhanamma, ILR 452 Mad 103. 46. K. Papparao v. Satyanarayan, AIR 1980 AP 257. 47. Kripa Ram v. Ayodhya Prasad, AIR 1960 Punjab 261. 48. AIR 1996 SC 109.

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first proceeding." The first proviso requires that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which "the facts which the evidence states" were relevant. It covers not only cases of privity in estate and succession of title but also cases where both the following conditions exist, viz. (i) the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding, and (ii) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical. There may be other cases covered by the first proviso ; but if both the above conditions are fulfilled, the relevant party to the first proceeding in fact represents in the first proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in the issue in the first proceeding, and may grammatically and truthfully be described as representative-in-interest of the party to the second proceeding.49 Illustration (1) Raja of Pittapur adopted Ram Krishna in 1873. It is alleged that on 5th October, 1885, the late Raja's wife gave birth to a son P. The late Raja executed a will in favour of P in which the described P as his auras putra (natural born son) and died in 1890. In 1891 Ram Krishna, who was adopted by Raja, brought a suit against the Court of Wards and P in which he prayed for the relief that it may be declared that was not son of deceased Raja together with many reliefs. In that case it was held by the High Court that P took under the will as persona designata and that the question of his sonship did not arise. The late Raja had a brother Venkata Rao. He died in 1871 childless. In 1914 his widow adopted as son Krishna who was one of the sons of Ram Krishna, the plaintiff of the previous suit. Thereupon P instituted a suit against Krishna and widow of Venkata Rao claiming that he was the nearest reversioner entitled to succeed to the properties of Venkata Rao after his wife's death and praying for a decree declaring that adoption of Kishna was invalid and not binding on him. By their written statements defendants denied that he was the auras son of late Raja. At the trial there was tendered on behalf of the defendants, the evidence recorded in the suit of 1891 brought by Ram Krishna which was claimed to be admissible under and by virtue of Section 33 of the Evidence Act. The evidence was rejected by the Trial Court and the High Court but it was admitted by Privy Council. It was observed : "the determining factor is to answer the question whether the relevant party to the proceeding (Ram Krishna) was representative-in-interest of relevant party to the second proceeding (Krishna). In their Lordships' opinion he was. He claimed possession of properties which in his hands would be joint family property and in which ___________________ 49.

Krishnaya v. Venkata Kumar, AIR 1933 PC 202 ; Ganpati Rao v. Naga Rao, AIR 1940 Nag. 382 ; V. Narasayyanna v. Rattamma, AIR 1957 AP 378 ; Subrahmanya v. Lakshmi Narasamma, AIR

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(under Mitakshara law) all his after-born sons, upon birth, acquire an immediate interest as copartner. It is difficult to see how it could be said that Ram Krishna in asserting his claim to that property upon that footing was not the representative-in-interest of his sons born and to be born.50 What the first proviso aims at securing is that the evidence shall not be admitted unless the person who tested of had the opportunity of testing the evidence by cross-examination, either is himself or represented the interest of the party to the latter proceeding against whom the evidence is tendered, i.e., he was (in the latter case) in effect fighting that person's battle as well as his own. When the party to the latter proceeding was not himself a party to the first proceeding, admissibility of the evidence in favour of such a party must be tested by its admissibility if tendered against him. If not admissible against him it cannot be admissible in his favour.51 One T possesses some property movable and immovable. After his death one V filed a suit against one P a debtor of T. In this suit V claimed to be an adopted son of T and so entitled to realise the debt from P. The defendant P contended that V was not adopted by T. In that case V examined six witnesses on the point that it was adopted by T. Afterwards D a daughter of T filed a suit for the declaration that V was not adopted by T. By the time the case came up for hearing, five out of six witnesses examined by V had died. D the defendant tried to prove the statement of the five witnesses examined by V. The evidence was rejected. It was held that the tests of principle of the Supreme Court case applied. P who was a debtor of T, fought the battle of the plaintiff in this suit that V was not adopted son of T. He represented the interest of the party to the second suit that is D. The interest of D herein in the subject matter of the first proceeding (viz., the estate of T) is not antagonistic to but consistent with the interest therein of P who fought the battle in the first proceeding on behalf of the estate of T, viz., that V not being the son of T was not entitled to recover the debt which belonged to T.52 (ii) A died leaving a widow M. One B claimed that he was adopted by A. Another man C claimed that he and not B was adopted by A . C filed a case against B for declaration that he and not B were adopted by A. In that case B examined witnesses. Afterwards M filed a case against B alleging that B was adopted by A. In that case B wanted to prove the statements of the witness who had been examined by him in the previous suit and who had since died. The evidence was rejected on the ground that the interest of the plaintiff in the former suit was not consistent with the interest of the plaintiff of the second suit rather it was antagonistic to it because if the plaintiff of that would have won the case the plaintiff of the present case would have got nothing.53 (3) Parties in a criminal proceeding.—Theoretically all prosecutions are conducted in the name and on behalf of the State, but in practice in every

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50. Krishnayya v. Venkata Kumar, AIR 1933 PC 202. 51. Krishnayya v. Venkata Kumar, AIR 1933 PC 202. 52. 52. Narasoyyanna v. Rattamma, AIR 1957 AP 378. 53. Subramanya v. Lakshmi Narasamma, AIR 1958 AP 22.

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criminal case there is a complainant who may be named as prosecutor. A is murdered. His brother D makes a report of the occurrence and looks after the case. B is accused of the murder. Though the case will be titled as State v. B , but D will be said to be prosecutor and for the purposes of Section 33 the parties of the case would be D and B. Suppose in the criminal case B is acquitted and afterwards he files a suit for damages against D for malicious prosecution and at the trial he wants to prove the statement of defence witness of the murder case. If the witness is dead or cannot be produced the statement would be admissible as the criminal and civil cases were between the same parties. Cross-examination.— Under this section one of the conditions to be satisfied is "that the adverse party in the first proceeding had the right and opportunity to cross-examine." Two things, the right and opportunity must coexist, if the adverse party had a right but was not given an opportunity to cross-examine or if he had no right to cross-examine but was given an opportunity to cross-examine, the statement will not be allowed to be proved in subsequent proceeding 54 but it should be borne in mind that it is not necessary for the admission of the evidence of a previous proceeding in a subsequent one that the witness must have actually been cross-examined in the first proceeding, all that is necessary is that the adverse party had a right to cross-examine and he was given an opportunity to do so. The true reading of Section 33 is that the party had both the right and opportunity to cross-examine. Mere opportunity is not enough. There must also be the right to do so.55 If the adverse party had a right to crossexamine and he was allowed to cross-examine but he failed to do so, the statement may be proved in the subsequent proceeding.56 In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan and others,57 the question arose as to admissibility of evidence of a person with unfinished cross-examination only partly heard as in the meantime the witness died. This evidence could not be admissible. There is no provision under the law that if evidence is not examined either in full or part, his evidence could be absolutely rendered inadmissible. How much weight should be attached, should be decided considering other facts and circumstances surrounding it. It was held by Calcutta High Court that provisions of Section 33 of Evidence Act would not apply in this case. (4) Identity of issues.—(1) The deposition of a witness, in a prior litigation is admissible under Section 33 only when the question in issue is substantially the same in the two proceedings. The "question in issue" referred to in Section 33 being required to be substantially the same depends on whether the same evidence is to be adduced, although different consequences may follow from the same act. C was assaulted by D with a spear. A case under Section 324, IPC, was started against D. The case was being tried before a Magistrate, C deposed before the court. After that he died. The charge was amended and D was charged for murder. The case was committed to the Court of Session. In the

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54. Abdul Rahim v. Emperor, AIR 1946 Lah. 275. 55. Dalbahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79 ; Brahmachari v. Anadh Bandhu, AIR 1954 Call 395. 56. Jahanar Ali Khan v. Emperor, AIR 1946 Avadh 26. 57. AIR 2002 Cal. 281.

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Court of Session the statement of C was admitted under Section 33 though the charges in both the courts were under different sections. In both of the courts one question in issue was whether D assaulted C.58 The principle involved in enquiring identity of the matter in issue is to secure that in the former proceedings the parties were not without an opportunity of examining on the very point on which their evidence is adduced in the subsequent proceeding. Though separate proceedings may involve issues, of which some only are common to both, the evidence on those common issues given in the former proceedings may, on the conditions mentioned in Section 33 arising, be given in the subsequent proceedings.59 It is not necessary that all the questions in issue in the two proceedings should be substantially the same. If one of the issues in the two proceedings is substantially the same the deposition in the prior suit on that issue can be proved in the subsequent proceeding. In a suit of 1891 there were many issues. One of the issues was the question of the sonship of the plaintiff and the very same question was in issue in the subsequent suit. The deposition in prior suit was held admissible.60 It should be borne in mind that the subject-matter of suits need not be identical, it is only the question in issue which is to be identical. If in a suit representing lands, any fact comes directly in issue, testimony given to that fact is admissible to prove the same point in another suit between the same parties though the subsequent suit related to different lands.61 Deposition of a witness in a mutation proceeding was held to be admissible in a subsequent suit between the same parties in which the same question of jointness of the family came to be determined.62 (5) Inability of witness to appear before the court.—The statement of a witness in a prior suit may be proved in subsequent suit or proceeding if the witness is (1) dead, or (2) cannot be found, or (3) has become incapable of giving evidence, or (4) is kept out of the way by the opposite party, or (5) his presence cannot be obtained without an unreasonable amount of delay or expense. Death.—Before the prior deposition can be proved, the fact of death must be proved like any other fact; mere report of assertion that the witness is dead is not enough. The deposition would not become admissible merely because of the death of the witness at any stage of proceeding. If the party tendering the evidence had made no attempt before the death occurred to examine the witness and if before closing his case, he had not established any of the grounds other than death mentioned in Section 33 which would make it receivable in evidence, the deposition could not be taken into consideration because the witness died during the trial of the suit.63 Cannot be found.—A person may be said to have been not found when it is known who he was and if in spite of search he was not found. But he may

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58. Empress v. Rachia Mahto, 7 Cal. 42. 59. Ram Reddi v. Seshu Reddi, 3 Mad 48. 60. Krishnayya v. Venkata Kumar, AIR 1933 PC 202. 61. R. v. Rami, ILR 2 Mad 48. 62. Fakirnath v. Krishna Chandra, AIR 1954 Orissa 418. 63. Subrahmanyya v. Lakshmanarasamma, AIR 1958 AP 22.

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equally be said not to have been found if his identity cannot be traced or found and who therefore on account of the absence of his identity cannot be found. The courts should be very cautious to admit prior deposition of a witness on the ground that he cannot be found. There shall always be possibility of collusion between the party (whose duty it is to produce) and the witness. Before a previous statement of a witness can be admitted every attempt to produce him before the court should be made. The court should be satisfied that the witness cannot be found on any effort. Where the only evidence is that the witness is a man of another district and cannot be found or that he could not be found at the previous address, or that the witness has gone away and so could not be found,64 the prior statement cannot be proved. Before admitting the prior statement of a witness, a sincere effort to produce him is to be made and if in spite of that the witness cannot be found his prior deposition may be proved. The use of Section 33 is improper where the whereabouts of the witness is known, but his failure to appear is due to the negligence of the prosecution.65 The statement of a doctor made before committing Magistrate was brought on record before the Sessions Judge under Section 33. At the trial the prosecution produced a head constable who deposed that he took the summons for this witness to the hospital where he was previously employed and the Superintendent of the hospital made a report that he was no longer in service and it was not known where he was. This witness also stated that "From the inquiries made by me I learnt that his whereabouts are not known". In cross-examination he again stated that he made enquiries but he could not discover the whereabouts of this witness. After this statement the Public Prosecutor made a statement that the doctor's whereabouts were not known and prayed that his statement be transferred under Section 33 of the Evidence Act on the ground that there was likelihood of the witness being available without unreasonable delay and expenses and no objection was shown to have been taken by the defence at that stage. Thereupon the trial judge ordered the statement to be transferred under Section 33, Evidence Act. It was held that though the Judge might have been well advised to give further reasons for making the order transferring the statement it was clear that he transferred it on the ground of unreasonable delay and expenses and that there was no infirmity in this order of transfer.66 Incapable of giving evidence.—The words "incapable of giving evidence" denote an incapacity of a permanent nature. Where a witness is proved to be incapable of giving evidence his previous deposition is to be admitted. This incapacity may be due to insanity, blindness, dumbness, paralysis, nervousness and so on. If the illness is temporary, the court should consider whether it is unreasonable on account of delay or expense to postpone the trial for obtaining

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64. Hari Prasad v. State, AIR 1953 All 660. 65. Nasib Singh v. Emperor, AIR 1943 Lah. 89. 66. Bakhshish Singh v. State of Punjab, AIR 1957 SC 904.

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the presence of the witness.67 If short adjournment can procure the attendance of the witness, previous deposition cannot be brought on record.68 When the evidence given by a witness in a judicial proceeding is sought to be given in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving evidence that fact must be proved strictly.69 Incapacity may not be permanent. Incapacity however must be proved and proved strictly. Where a person has become very old, and blind and cannot move he must be held to be incapable.70 Is kept out of way.-—When a witness, who has made a statement in a prior proceeding, is in collusion with a party and avoids appearance before a court in a subsequent proceeding, his previous statement may be proved. The proof, that the witness was kept out of the way, is essential for admission of his or her previous statement. Unreasonable amount of delay or expense.—If the presence of a witness cannot be obtained without unreasonable expense or delay, his prior statement may be proved in the subsequent proceeding. The provisions of proving prior statement on this ground should be sparingly used. Therefore they are not to be used in a case where the witness is alive and his evidence is reasonably procurable.71 Whether the expenses are unreasonable or not depends on the importance of, and vital nature of the deposition. If it is of a formal nature it would be unreasonable to incur much delay and expenses; but where it is vital to the success of litigation, or prosecution, it would be reasonable to submit to much expense and delay. It is only when all reasonable efforts to secure the attendance of a witness have failed that it can be said that there would be unreasonable delay.72 It is only in extreme cases or expenses or delay that the personal attendance of a witness should be dispensed with.73 The provision of this section should be sparingly applied. The expenses of Rs. 500 were not held to be unreasonable.74 The witness was at a distance or had joined army were held not to be a ground enough to admit previous deposition on the pretext of unreasonable delay.75 Waiver in civil cases.—In a civil proceeding if the previous statement is tried to be proved without proving the five conditions mentioned before and no objection is made by the opposite party, the statement will be taken in evidence. Also if the party to a proceeding agrees to the proof a statement in a

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67. Emperor v. Gajendra Mohan, AIR 1943 Cal 222. 68. Hariprasad v. State, AIR 1953 All 660. 69. Chanchal Singh v. Emperor, AIR 1946 PC 1. 70. Mandal v. Manga Ram, AIR 1961 Patna 21. 71. Kala v. Emperor, AIR 1944 Lah 206. 72. Murli Singh v. Rex, 1951 ALJ 67. 73. R. v. Mulu, ILR 2 Alld. 646. 74. R. v.Barke,6 Alld.224. 75. In re Siluvai, AIR 1944 Mad 318 ; Kudappa Chetti v. Tirupathi, AIR 1925 Mad 444.

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previous proceeding, the statement will be taken in evidence though the witness is alive and no condition of Section 33 has been fulfilled.76 There is nothing in Evidence Act to show that in a civil case the parties cannot waive the benefit conferred by Section 33. This section exists of the benefit of the parties but if they do not avail of that protection, then in a civil matter they are certainly entitled to have the matter decided in the manner they agree.77 In a criminal trial consent of the accused cannot entitle the prosecution to prove previous statement without complying with the five conditions. In a criminal proceeding before admitting previous deposition under Section 33, the requirements of Section 33 must be complied with and the consent of the accused does not make any difference.78 Deposition in a criminal case used in a civil case and vice versa.— A deposition taken in criminal proceeding may be used in a civil suit and a deposition taken in civil proceeding may be used in criminal proceeding provided the conditions of the section are satisfied. A prosecution was instituted by D against N at the instance and on behalf of F for criminal trespass in respect of a certain house belonging to F. D gave evidence at the trial for F. Afterwards F brought a civil suit against N for the possession of the house. D died before the civil suit came for hearing. At the trial of civil suit deposition of D in the criminal court was tendered by F as evidence on the point of possession. It was held that D being dead and proceeding being between the same parties the issue being substantially the same, and D having been crossexamined by N in the previous case, the deposition was admissible.79 STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES SECTION 34.—80[Entries in the books of account, including those ^maintained in an electronic form] when relevant.—81[Entries in books of account, including those maintained in an electronic form] regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. ILLUSTRATION A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

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76. Dalim Kumar v. Nand Ram, AIR 1970 Cal 292. 77. Bhushan Chand v. Hiranmay, AIR 1957 Tripura 17; K.P.M. Bank v. Dulhan Bibi, AIR 1966 SC 1072. 78. Chanchal Singh v. Emperor, AIR 1946 PC 18. 79. Phoolkishori v. Nobin Chandra, ILR 23 Cal 441. 80. Subs. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II. 81. Subs. By Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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COMMENTS Principle.—This section is based upon the principle that entries made regularly in the course of business are sure to be accurate. In all such entries the writer has full knowledge, no motive to falsehood, and there is the strongest improbability of untruth. According to Section 34 the entries in books of account regularly kept in the ordinary course of business are admissible in evidence if they refer to a matter in dispute. At the same time the section states that such entries alone shall noi be sufficient to charge a person with liability. Let us take an example. A is a merchant of cloth. He maintains accounts of his shop in an account-book. On 5th of May, 1950 he makes an entry in his account-book to the effect that B purchased cloth worth Rs. 2,000 on credit. In 1953 A files a suit against B for the recovery of Rs. 2,000 as the price of the cloth. B contends that he never purchased any cloth from A's shop and that nothing is due to A from him. A produces the account-book and proves the entry mentioned above. The entry is admissible. As stated above, the section makes entry of an account-book relevant, but as for its evidentiary value, it states that the entry alone is not sufficient to charge anybody with liability. In order to charge anybody with liability some independent evidence (evidence besides the account book) must be adduced. Reverting to the above example, by merely proving the entry of the account book B will not be saddled with the liability. Suppose A examines one C and he deposed that B purchased cloth worth Rs. 2,000 from A's shop on credit. There being an independent evidence, B may be charged with the liability. Thus it is clear that the entries of account-books are of little evidentiary value unless corroborated by some independent evidence. But it should be clearly borne in mind that the entries in account-books regularly kept, are relevant and admissible in evidence without corroboration. They will be admitted in evidence, and if there is corroborative evidence their probative value will be good and if there is no evidence in support, its evidentiary value will be nil. Section 34 does not make books of account inadmissible unless corroborated. In order to be admissible an entry should be (1) in a book of account, (2) regularly kept, (3) in the course of business.82 Any book of account regularly kept and entries made therein in course of business are relevant but are not sufficient by themselves to charge any person with liability where the books of account are maintained by the Managing Partners regarding which other partners made objections regarding entries and if found to vague and false, it is necessary for managing partner to adduce evidence to substantiate entries and prove its genuineness.83 Books of account.— The term 'book' in Section 34 may properly be taken to signify ordinarily, a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively m one volume. Unbound sheets of paper, in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of Section 34. ___________________ 82.

Ashudani Kumar v. Union of India, AIR 1969 Tripura 26.

83. Y. Venkana Chowdry v. Lakshmidevamma, AIR 1994 Mad. 140.

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In Iswar Das Jain (dead) (through legal representatives) v. Sohan Lal (dead) (through legal representatives),84 it was held by Supreme Court that extracts from account books which are not account books falling within Section 34 of the Evidence Act and are inadmissible. The sanctity is attached to the books of account in law, if the books are indeed account books, i.e., in original if they are on their face, that they are kept in regular course of business. Such sanctity cannot be attached to private extracts of alleged account books, where the original account books are not filed into the courts...if the account books have not been produced, it is not possible to know whether entries relating to payment of rents are entries made in regular course of business. In Devendra Kumar Sharma v. State of Rajasthan,85 the Supreme Court held that the register kept at the counter of Hotel is not book of accounts unless it is shown that such register also pertains to pecuniary transaction involving customers of hotel, even otherwise entry therein cannot become sole premise to charge a person with liability. In Laxmi Shahu v. Ganeshi Shahu,86 it was held by Patna High Court that creation of Jamabandi in favour of a person would not create a title. It is only a corroborative evidence. In Ajit Chandra Bagchi and others v. Messrs Harishpur Tea Company,87 it was a question that the incidence of giving advance of some money had actually taken place. In such cases, a personal entry has got no value, if this entry was done on a paper which is not the part of account book or balance sheet only because a sum of money is shown due on some account book or balance sheet at the end of the year, merely on the basis of this entry no decree can be obtained. In Rakesh Kumar alias Suresh Chandra v. Mewa Ram son of Kala Ram,88 it was alleged by tenant that the payment of rent was made against the entries made in receipt book. It was held that only because some entry was made in receipt book no liability was created and Section 34 did not apply in such cases. The account consisting of loose sheets of papers cannot have the same force as accountbooks.89 A collective unity of sheets even at the time the entries came to be made is implied in the conception of a book. It connotes an intention that it should serve, as a permanent record.90 In account-books regularly kept in due course of business, usually the pages are inter-connected, and particularly in daily accounts the balance of one day or one page is carried over to the other page or day. So that interpolation or replacement of a particular page becomes very difficult. Where the account-book is not a bound book but stitched book and each customer is allotted a particular page, the sheet and entries can be

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84. AIR 2000 SC 2126 85. AIR 2001 SC 93 86. AIR 1990 Pat. 201. 87. AIR 1991 Gau. 92. 88. AIR 1991 P. & H. 254. 89. Mahsava Ganesh Peasad v. Narendra Nath Sen, AIR 1953 SC 431, 90. Awabalvana Pillai v. Gowri Ammal, AIR 1936 Mad 871.

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substituted or interpolated and therefore it cannot be taken to be an account-book regularly kept in the course of business to be relevant under Section 34.91 In Central Bureau of Investigation (CBI) v.Vidya Charan Shukla, (Hawala Case),92 the Supreme Court held that the spiral pads and spiral note-books are books within the meaning of Section 34 of Evidence Act but not loose sheets of paper contained in files. Spiral note book recording monetary transaction, entries of receipt of money from certain person on left side of page and payment to certain person on the right side of page, entries totalled and balanced and thus daily reckoned note book is account book. Regularly kept.—The "books of account regularly kept in the course of business" means the books entered from day to day or from hour to hour as the transactions take place. The words 'regularly kept' are not synonymous with correctly kept in accordance with certain fixed method or form referring to system of book-keeping. Books are regularly kept, if they are maintained in pursuance of some continuous and uniform practice in the current round of business of the particular person they belong to. Whether a book of account is regularly kept or not, is a question of fact and it may be solved by reference to the entries in the books.93 Practice of noting transactions of either days at one time, though defective, are regularly kept within the meaning of the section. The fact that they were not filed before the Income Tax Officer, would not show that they were not maintained in the regular course of business.94 Entries need not be made in account books at or about the time the related transaction took place so as to enable book to pass test of regularly kept.95 In the course of business.—The entry must be made in a books of account regularly kept. Stray entries not in course of business would not be relevant. Note of transaction in a diary will not be admissible. Proof of accounts.—Previously it was held that the clerk who had kept those accounts or some body else competent to speak to the fact should be called to prove that they were regularly kept.96 But an Allahabad Bench held to the contrary.97 Evidentiary value.—The books of account when not used to charge any body with liability (civil or criminal) may be used as independent evidence requiring no corroboration, but when it is sought to be used to charge a person with liability, they must be corroborated by some other substantive evidence independent of entries.98 In such cases the value of the entries is only

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91. AIR 1958 Orissa 4. 92. AIR 1998 SC 1406. 93. Emperor v. Narabada Prasad, AIR 1930 All 38. 94. Ram Lochan v. Makha Sethani, AIR 1960 Patna 271. 95. CBI v. V.C. Shukla, AIR 1998 SC 1406. 96. Thakur Gajendra Singh v. Thakur Shanker Bux Singh, AIR 1935 Oudh 16. 97. Emperor v. Narbada Prasad, AIR 1930 All 38 ; Hangami Lal v. Bhura Lal, AIR 1961 Raj 52 ; Jai Narayan Das v. Jubeda Khatun, AIR 1972 All 494. 98. Dwarka Prasad v. Sant, 18 All 92 ; Emperor v. Narbada Prasad. AIR 1930 All .38 ; Hangami Lal v. Bhura Lal, AIR 1961 Raj 52.

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corroborative and independent evidence is to be given to fix the liability. He will have to show further by some independent evidence that the entries represent real and honest transaction and the arrears were paid according to those entries.99 The correct and authentic entries in the books of account cannot fix liability of a person in absence of independent evidence of their trustworthiness.1 Although a register kept on hotel counter cannot be treated as books of account under Section 34 unless it contains pecuniary transaction. The Supreme Court held that even if it contains pecuniary transaction it cannot form a sole premises to charge a person with liability.2 Admissibility and probative value of document.—Admissibility of a document is one thing and its probative value quite another. A document may be admissible yet may not carry any conviction and weight or its probative value may be nil. Even if a document may be admissible or ancient one it cannot carry the same weight or probative value as document which is prepared either under any statute or ordinance or an Act which require certain conditions to be fulfilled.3 In State of Rajasthan v. Sharad Shankar Alias Bhantu and Manish Dixit v. State of Rajasthan, Devendra Kumar Sharma v. State of Rajasthan,4 it was held by the Supreme Court that books of account, or Hotel Register kept on counter of Hotel cannot be treated as books of account unless it is shown that register also pertains to pecuniary transaction involving customer of hotel. Even otherwise entry therein cannot become sole premises to charge a person with liability.

S

ECTION 35.—Relevancy of entry in public 5[record or an electronic record] made in

performance of duty.—An entry in any public or other official book, register or 1[record or an electronic record] stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact. COMMENTS Scope.—Section 35 speaks of relevancy of entries in public or official book made by a public servant. An entry to be admissible under this section (1) must be contained in any public or other official book, (2) must be made by a public servant, (3) in the discharge of his official duty or by a person in _____________________________ 99.

T.N. Stern v. Md. Husain, AIR 1933 Mad 756 ; Jai Narain Das v. Jubeda Khatoon, AIR 1972 All 494 ; Subh Karan v. Durga Prasad, AIR 1972 Gujarat 208. 1. CBI v. V.C. Shukla, AIR 1998 SC 1406. 2. Devendra Kumar Sharma v. State of Rajasthan, AIR 2001 SC 93. 3. State of Bihar v. Radha Krishna, AIR 1983 SC 684. 4. AIR 2001 SC 93. 5. Subs. By Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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performance of duty specially enjoined by the law of the country, and (4) must be stating relevant facts or fact in issue.6 Contained in a public or official book.—-The section does not give any definition of the term 'public or official book.' Section 74 of the Evidence Act gives a list of public documents. Commonly speaking, a public document is that document which is made for the purpose of the public uses ; the public may make use of it and may refer to it on occasions. Death and birth registers kept in police stations and municipal offices are public books. In a case of alleged kidnapping, birth register extract from Municipality was held to be a valuable piece of evidence as regards the age of the victim.7 An entry in a private book or register is not admissible under this section. Made by public servant.—The term 'public servant' has not been defined in this Act. But for the purpose of interpretation, reference may be made to Sections 74 and 78 of the Evidence Act and to Section 21 of the Indian Penal Code, in which the term 'public servant' has been defined. Certain Acts declare that the officers appointed under them are deemed to be public servants. An entry in a book or register by a person who is not public officer, being not an entry as enjoined by the law, is not admissible. To be concise an entry by a person in an individual capacity is not relevant. Entries relevant under this section.—Entries in birth and death register are relevant.8 Duty specially enjoined by law.—Two classes of entries are contemplated by this section—(a) by the public servants, (b) by persons other than public servants. In the case of the latter, the duty to make the entry must be specially enjoined by the law of the country. But the entry must have been made by a person whose duty it was to make. It is not necessary that the duty should be prescribed by any enactment. It is enough if if is prescribed by rules under authority of an enactment.9 The registers of births and death kept under police regulation or under the rules made under the Municipal Act have been held admissible under this section.10 Under Section 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. Consequently, records maintained by a public school, according to Rules, should be presumed to be correct under Section 35 of the Act.11 Contemporaneously.—It is not necessary that the entries should have been made contemporaneously with the facts recorded.12 _____________________________ 6. Devendra Kumar Sharma v. State of Rajasthan, AIR 2001 SC 93. 7. Goverdhan v. State of MP., 1995 Cr.L.J. 632 (MP.). 8. Harpal Singh v. State of MP., AIR 1981 SC 361 ; Daleem Kumar v. Nand Rani, AIR 1970 Cal 292 ; Record of right ; Noor Mohammad v. Kareem, AIR 1970 Manipur 7; Ram Prasad v. Magan Singh, AIR 1981 All 52. 9. Bishnath Prasad v. Emperor, AIR 1948 Oudh 1 ; Shyam Pratap Singh v. Collector of Etawah, AIR 1946 PC 103. 10. Sheo Mishra v. Ram Prasad, AIR 1925 Alld 79 ; Jai Bhagwan v. Gutto, AIR 1934 Oudh 167. 11. Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057. 12. Bishnath Prasad v. Emperor, AIR 1948 Oudh 1.

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By whom to be made.—The entries must be made by, or under the direction of the person whose duty it is to make them at the time. An entry in the book of the chowkidar, not made by him is not admissible under Section 35.13 In a Patna case, a book kept by Chowkidar in a prescribed form was held to be admissible.14 Proof of such entries.—If the entry states a relevant fact, the entry itself becomes by force of the section, a relevant fact and it can be given in evidence.15 The entry is evidence though the writer is not called. Facts of which the entries are evidence.—This section does not make the public book evidence to show that a particular entry has not been made in It.16 An entry is relevant of those matters which it is the duty of a particular person to enter in a register. But the entries of the matters for which there is no duty to record are not admissible. Statement about a person's family in a wajib-ul-arz, arid the statement that A is an adopted son in a record of right have been held inadmissible.17 Personal knowledge not necessary.—An entry of a particular fact is nonetheless evidence, though the person enjoined to make that entry has no personal knowledge of the fact reported to him.18 Entry of date of birth in school register.—The entries in Government school about age are relevant. It often happens that the persons give false age of their children at the time of their admission. Consequently, its evidentiary value is very little.19 In a writ petition by a Government servant for correction of date of birth at the fag end of his service and when he is due for retirement from his service, it was held that the High Court should not entertain such petition.20 In Manoranjan Das Gupta v. Suchitra Ganguli and others,21 a witness made a statement about age after he had been administered oath. This was not only the description made by a witness but it was a statement and that also after taking oath. Held—It would be deemed to be proper evidence and it Should not be excluded. But entries in school registers and transfer certificates of schools which is not a Government school is not admissible.22 In Tara Devi v. Sudesh Chaudhary23, the Rajasthan High Court held that entries of date of birth in school register was correct one particularly when _____________________________ 13. Sheobalak v. Gaya Prasad, 20 ALJ 601; Brij Mohan v. Priyabrat, AIR 1965 SC 282. 14. Madho Saran v. Manna Lal, AIR 1933 Patna 473. 15. Lekhraj v. Malupal. 5 Cal 754 ; Parbati v. Purno, 9 Cal 596. 16. Ali Nasir v. Manik, 25 Alld 90; K. Rama Rao, In re, AIR 1960 Andh Pra 441. 17. Sukhdeo Singh v. Mathura Singh, AIR 1933 Lah 412 ; Harihar Singh v. Deo Narain Singh, AIR 1954 Nag 319. 18. Khadem v. Tejarunnisa, 10 Cal 607. 19. Brij Mohan v. Priyabrat, AIR 1965 SC 282. 20. Burn Standard Co. Ltd. v. Dinabandhu Majumdar, AIR 1995 SC 1499. AIR 1989 Cal. 14. 21. Anant Ram v. State of Punjab, AIR 1975 Punj 198. 22. AIR 1998 Raj. 59.

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the claimant failed to prove that the entries of date of birth in horoscope was correct one. The Court did not interfere with entries of date of birth in school register in this case. In Ram Deo Chauhan alias Raj Nath,24 the entry in school register showing the accused to be juvenile was relevant. School register however was not shown to be maintained by public servant (officer) in discharge of his official duty or by any other competent authority. Held—Entry in school register cannot be accepted as positive proof regarding date of birth of accused person. An entry in the school register showing date of birth is relevant and admissible but not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.25 Entries in Birth Register.—The documents, namely, the application made by the father, for admission in school about 40 years back birth register extracts, and Village Pariwar Register cannot be said to have no evidentiary value to determine the caste of the candidate seeking election.26 Entries in Death Register.—In Chitru Devi v. Smt. Ram Davi,27 The question was about the admissibility of the entries made in birth and death register. It was held by the Punjab and Haryana High Court that if the entires were made at about the time of birth or death and the entry is incorporated in register kept and maintained by competent authority under Birth and Death Register Act, 1969, such entries about date of birth or death would be admissible in evidence. Entries in electoral roll.—The electoral roll is a public document and is prepared by a public servant in discharge of his public duty and hence is admissible in evidence under Section 35 and it is not necessary to prove source of information on the basis whereof the facts stated in roll were recorded nor persons prepared it to be summoned.28 Voters list prepared by competent authority of election department in discharge of his official duty, not challenged by the plaintiff voter list is admissible.29 In case of age of the delinquent being in question under Juvenile Justice (Care & Protection of Children) Act, 2000, an entry in the voters list showing the age is a public document in terms of section 35 but it is not sufficient to prove the age without summoning any member of the Board and recording his statement thereon.30 Entries in Revenue Records.—In Balwant Singh v. Daulat Singh,31 the entries in revenue records do not convey or extinguish any title. In this case, widow mutated land in favour of her adopted son. Neither adopted son nor _____________________________ 24. AIR 2001 SC 2231. 25. Biard Mal Singhvi v. Anand Purohit, 1988 (Supp) SCC 604 : AIR 1988 SC 1796, 26. Desh Raj v. Bodh Raj, AIR 2008 SC 632 at p. 639. 27. AIR 2002 P&H. 59. 28. Linga v. Ayodhya, AIR 1974 Orissa 107. 29. AIR 2002 SC 59. 30. Babloo Pasi v. State of Jharkhand, AIR 2009 SC 314 at p. 319. 31. AIR 1997 SC 2719.

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widow would require title in the property nor widow's title in the property would get extinguished, since no title as such was passed on under alleged mutation. In Damru Ram v. Madanlal and others,32 the question arose as to presumption attached to the truth of revenue entries. It was held that reliance could be placed on revenue records. Entries by pencil not verified by revenue officer.—In Sohan Singh v. Guljari,33 it was held by Himachal Pradesh High Court that pencil entries not verified or attested by revenue officer, could not be relied on. Reports of election meetings.—When the C.I.D. Officers made reports of election meetings held by candidates, they were in discharge of their official duty and chart furnished by Inspector-General of Police giving details as to the dates and places of the public meetings held in connection of election meeting of the opposite candidate and name of speaker are relevant under Section 35.34 Evidentiary value.—An entry in the register of death is evidence of the fact of death. Other particulars, such as, the cause of death, the age of the deceased cannot be treated as evidence.35 A birth certificate does not prove itself and is no proof of age of any particular person unless the person making the entry of the person on whose information the entry is made comes forward and speaks to the entry and connects the entry with the individual concerned.36 Entries of school register for age have very little value.37 If the entries are suspicious no value is to be attached.38

S

ECTION 36.—Relevancy of statements in maps, charts and plans.—Statements of facts in

issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State

Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts. COMMENTS Scope.—Section 35 is the general section dealing with public records, while Section 36 deals with particular classes of public documents, namely, maps, charts or plans. Published maps generally offered for sale in the nature of public documents and are admissible to show the relative positions of towns, countries, and other geographical matters. They may be one which are prepared for public purpose and not for private purpose. Maps prepared by private persons and not under the authority _____________________________ 32. AIR 2002 H.P. 59. 33. AIR 1997 H.P. 12 . 34. Kunwar Lal v. Amar Nath, AIR 1975 SC 308. 35. Manik Lal v. Hira Lal, AIR 1950 Cal 377; Guruswami v. Inulappa, AIR 1934 Mad 630. 36. Bisessar Mishra v. King, AIR 1949 Orissa 22 ; Hemant Kumar v. Alauzund, AIR 1938 Cal 120. 37. Brij Mohan v. Priyabrat, AIR 1965 SC 282. 38. Venkata v. Thanchand, AIR 1964 SC 818.

Page 283 S. 39] OF THE RELEVANCY OF FACTS

of Government are irrelevant unless proof of fact that they were generally offered for public sale is given. There shall be no presumption for accuracy about them.39 SECTION 37.—Relevancy of statement as to fact of public nature contained in certain Acts or notifications.—When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act, or a State Act, or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of His Majesty is a relevant fact. COMMENTS Scope.—This section makes the Government Act and Notifications admissible in evidence.

S

ECTION 38.—Relevancy of statements as to any law contained in law books.—When the

court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of such country contained in a book purporting to be a report of such rulings, is relevant.

S

HOW MUCH OF A STATEMENT IS TO BE PROVED

ECTION 39.—40[What evidence to be given when statement forms part of a conversation,

document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.] COMMENTS Principle.—The real meaning of a sentence or a passage can be understood by reading the whole of the literature of which the sentence or the passage forms a part. We must read the whole, not because we desire the remainder for its own sake, but because without that we cannot be sure that we have the true sense and effect of the first part, "It is at all times a dangerous thing to admit a portion only of a conversation in evidence because one part taken by itself may bear a very different construction and have a very different tendency to what _____________________________

39. Ram Kishor v. Union of India, AIR 1965 SC 645. 40. Subs, by the Information Technology Act, 2000

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would be produced if the whole were proved ; for one part of conversation will frequently serve to qualify and to explain the other." For this reason Section 39 lays down that when a statement, to be proved, is part of a longer statement, or conversation, or is contained in a book, or is part of a series of letters, the evidence shall be given of so much of the statement, conversation, document, book or series of letters, or papers as the court considers in that particular case, necessary to the full understanding of the nature and effect of that statement and of the circumstances in which it was made. But that part which is not helpful in understanding the meaning of the relevant statement shall not be proved. What is rendered admissible under this section is that which the court finds necessary in order that the statement may be intelligible.41 But it cannot be said that because a document is admissible for a certain purpose all recitals, statements and references therein can be used as proof of the facts to which they relate.42 But it must be remembered that an evidence which has been debarred by some Section of Evidence Act cannot be brought on record under Section 39 43 Judgment of Courts when relevant Ordinarily, the judgment in previous case will not be admissible in subsequent cases because the Court has to form its own opinion depending upon the fact and circumstances of the case. This rule is true both for criminal and civil cases. But in K.G. Prem Shankar v. Inspector of Police and others,44 it was held by Supreme Court that previous judgment which was final could be relied upon as provided under Sections 40 to 43 of Evidence Act. In civil cases between the same parties, principles of res judicata may apply. In criminal case, Section 300 Cr.P.C. makes the provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the condition mentioned therein are satisfied. Kinds of judgment.—Judgments are of two kinds (1) Judgment in rem and (2) Judgment in personam. Judgment in rem.—Judgments affecting the legal status of some subject-matter, person or thing are called judgment in rem (e.g.) divorce court judgment, grant or probate or administration. Such judgments are conclusive evidence against all the persons whether parties to it or not. Judgment in personam.—Judgments in personam are all the ordinary judgments not affecting the status of any subject-matter, any person or any thing. In such judgments, the rights of the parties to the suit or proceeding are determined. The judgment is binding only on the parties to the suit or the proceeding and their privies. Privies may be divided into three classes : (1) privies in interest (or estate) as donor, donee, lessor, lessee, mortgagor, mortgagee or vendor, vendee, (2) privies in blood as ancestor, heir or coparcener,. _____________________________ 41. Kiran Din v. Emperor, AIR 1929 Lah 338. 42. Tikaram v. Moti Lal, AIR 1930 Alld 299. 43. Sukhan v. Emperor, AIR 1929 Lah 344 ; Mistri Fazal Din v. Mian Karim Hussen, AIR 1936 Lah 81. 44. AIR 2002 SC 3372.

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(3) privies in law (or representation) as a testator or executor. The same rule applies to these privies as to original parties, i.e., a person claiming through another is bound by the judgment in the same manner as the original party. Distinction between judgment in rem and judgment in personam.—Where a tribunal has to determine between two parties and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the rights of third parties ; and if in execution of the judgment of such a tribunal, process is issued against the property, of one of the litigants and some particular thing is sold as being his property, there is nothing to prevent any third person setting up his claim to that thing, for the tribunal neither had jurisdiction to determine nor did determine anything more than that the litigant's property should be sold and did not do more than to sell the litigant's interest, if any, in the thing. All proceedings of the court of common law are of this nature, and it is everyday's experience that where the Sheriff under a jery facias against A has sold a particular chattel, B may set up his claim to that chattel either against the Sheriff or the purchaser from the Sheriff. But when the tribunal has jurisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing, and does in the exercise of that jurisdiction direct that the thing, not merely the interest of any particular party in it, be sold or transferred, the case is very different. Whatever it settles as to the right or title, or whatever disposition it makes of the property (by sale, transfer or other act), will be held valid in every other country as against all the persons where the question comes directly or indirectly in judgment before a tribunal. A judgment in rem has been described as "an adjudication upon the status of some particular matter by tribunal having competent authority for that purpose." A judgment in rem is a conclusive proof against all the world of the existence of that state of thing which that judgment had determined. The difference between judgment in rem and judgment in personam will be cleared by examples. Examples—A is indebted to more than hundred persons to the extent of a lakh of rupees. He makes an application in an insolvency court for being declared an insolvent. As he is required to show that he is not able to pay his debt and that his debt amounts to more than, Rs. 500, he mentions the debt of only five of his creditors amounting to Rs. 25,000 and makes them parties to the petition. The court adjudicates him an insolvent and discharges him. Now in this decision the court will not adjudicate A an insolvent as against the persons who were parties to the petition but it will declare that A is insolvent. Here the decision does not affect the interest of A in some property ; but affects his status. His status changes from that of a solvent to that of an insolvent and this decision shall be binding upon all the persons of the world whether they were party to the insolvency proceeding or not. Suppose, in the above example after A was adjudicated insolvent and discharged, one B who was not made a party in the insolvency proceeding tries to execute his decree by sending A to civil prison. A files the judgment of the insolvency proceeding. The execution application of B will be dismissed. He cannot be allowed to say that he was not party to the insolvency proceeding and so he is not bound by the decision

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therein. Suppose A dies and after his death B applies to a competent court for the probate of a will in his favour. B alleges that A had executed a will by which he had made B his successor. The proceedings are started, C, D, and E are made parties and they make objections but it is declared by the court that A has executed a will in favour of B. B is declared the owner of the estate of A through the will and a probate is granted to him. Afterwards one X takes possession of some of the properties. B files a suit alleging that he was the owner of it through the will. X contends that A executed a will in his favour and that it was his last will and so he is the owner of the property not B. B files the probate granted to him. Now this probate will be binding on X and he caivnot be heard to say that A executed a will in his favour. This is so because in a probate proceeding the court does not decide the dispute between the parties in respect of something or some properties rather it declares that the will executed in favour of a person was the last will and that the property has vested in him and so it is a judgment in rem and is binding upon all the persons. Suppose A sues B in the court of a Munsif alleging that he is the owner of the house situated in George Town, Allahabad, B contends that he is the owner of the house and is in possession. The suit is fought to the end and decided that A is the owner of the house. When the court Amin goes to the spot to deliver the possession of the house to A, it is found that one C is in occupation of the house. C is not a privy to B that is to say C is not an heir of B nor a transferee from him. He occupies the house in his own right. Now he cannot be ejected from the house. Another litigation begins between A and C. In this case A files the judgment of the previous case A v. B and by that tries to show that he is the owner of the house. Now this judgment will not be binding upon C and by proving that judgment A will not get the house. He will have to prove his case against C by independent evidence. And in spite of the fact that once the court has decided that A was the owner of the house, if in the present suit, A fails to prove his title against C or if C proves a superior title in the house, the court will dismiss the suit of A, will declare C to be the owner of it and previous decision that A was the owner of it will not be a bar. This is so because the decision in this case only decided the interest of A in a particular thing and so it could be binding only upon the party or his privy. In the above mentioned example if, after the first judgment between A and B was delivered, any dispute arose between the son of A and son of B for the same very house the judgment will be binding. JUDGMENTS OF COURTS OF JUSTICE, WHEN RELEVANT

S

ECTION 40.—Previous judgments relevant to bar a second suit or trial.—The existence of

any judgment, order or decree which by law prevents any courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. COMMENTS Principle.—When any judgment, order or decree, by law, prevents any court from taking cognizance of a suit or holding a trial and when the question

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arises whether such court ought to take cognizance of such suit to hold such trial, the existence of previous judgment or order is relevant fact. Section 40 lays down that when once there has been a judgment about a fact and the law provides that when there has been such a judgment, no subsequent proceeding would be stated, the previous judgment relevant and can be proved. Section 11, C.P.C. , lays down that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit. Thus this section bars a second suit between the same parties for the same subject-matter. A sues B for the possession of a house. Both of the parties claim to be the separate owner of the house. The suit is decided in favour of B who is held to be the owner of it. Five years after A again files suit against B alleging to be the owner of the house. B contends again to be the owner of it. B also contends that due to the provisions of Section 11, C.P.C. the court cannot take cognizance of the case. The judgment of the previous case is admissible. Section 403 of Cr. P.C. bars a subsequent trial of a man and it lays down that a person who has once been tried by a competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to trial again for the same offence. Suppose a case is started against A to the effect that he entered the house of B in the dead of night and committed theft. A is tried by a competent court and is acquitted. After a few months a case is again started on the same facts. Here A can prove the judgment of the previous case to show that the court was not competent to proceed with the case. Thus it is clear that a judgment which bars a subsequent proceeding is relevant. Section 40 applies to a case in which the court has jurisdiction to decide a matter and one party says it would not do so because the matter has been decided before. It must be remembered that for a previous judgment being admissible under Section 40 the parties must be the same or their representatives-in-interest. Admissibility of Judgment inter partes.—In Raman Pillai v. Krishna Pillai,45 it was held by Kerala High Court that recital made in judgment between predecessors of the plaintiff and predecessors of defendent regarding right in suit property are admissible for deciding title to the property between plaintiff and defendant. Judgment of civil court if admissible in criminal courts and vice versa.—A finding on certain facts by a civil court in an action in personam is not relevant before a criminal court when it is called upon to give finding on the same facts. Similarly, a finding on certain facts by the criminal court is not relevant before the civil court when it is called upon to give finding on the same facts.46 R was charged with the offence of defamation and convicted. The complainant, then sued R in damages for defamation but the suit was _____________________________ 45. AIR 2002 Ker. 132. 46. Kashyap v. Emperor, AIR 1945 Lah 23 (FB).

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dismissed. Against the judgment in criminal case R went in revision to the High Court. The High Court has set aside the conviction and ordered retrial. Again the trial court convicted R. He preferred an appeal to the court of the Sessions Judge. R filed the judgment of the civil court in the appeal. The Sessions Judge held the judgment of the civil court to be conclusive proof of his innocence and acquitted, R. The complainant went in revision. The High Court held that the judgment was not relevant.47 The Bombay High Court has held that where an accused is charged with criminal breach of trust with reference to certain items and the question of civil liability with respect to those items had been decided by a competent civil court, the judgment of civil court is admissible. With due respect it may be said that the view taken by the Bombay High Court is not sound. Section 40 allows the proof of only those judgments which bar the courts from taking cognizance of the present case. There is no provision which forbids a criminal court from deciding a point in a criminal proceeding upon which a civil court has given its finding, consequently the judgment cannot be admitted in evidence under Section 40. In a civil proceeding the decision of a criminal court is not res judicata,48 judgment of criminal courts is relevant only about conviction and acquittal.49 Admissibility of a previous judgments in a criminal case.—When the previous acquittal did not operate as bar to the second trial of the accused and where both trials were separate and two incidents were viewed as distinct transactions and the offences were different and required different charges neither reasons for acquittal in earlier case nor evidence on record are relevant in the second case. The earlier could be admissible only if it fulfils the conditions laid down under Sections 40 and 41 of the Act. The earlier judgment is admissible to show the parties and decision.50

S

ECTION 41.—Relevancy of certain judgments in probate, etc. jurisdiction.— A final

judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof— that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person ; _____________________________ 47. Ramanamma v. Golusu, AIR 1932 Mad 254. 48. Ade Feroz Shah v. H.M. Seerbae, AIR 1971 SC 20. 49. Radhe Mohan v. Bare Lal, 1972 ALJ 15 ; Pira Mall v. Dev Rajan, AIR 1974 Mad 14. 50. Kharkan v. State of U.P., AIR 1955 SC 83 ; Ali Hassan v. State, 1965 Cr. LJ 345.

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that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease ; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. COMMENTS Judgment in rem and judgment in personam.— A judgment in rem decides a legal character of a person. It declares that the person has a legal character or that a person has ceased to have a legal character. Judgment in personam decides the rights and liabilities of the parties to the proceeding as contested therein, the judgment in rem is binding against the world and on the parties to the case. But judgment in personam binds only the parties to them if it operates as res judicata. A judgment in rem e. g., judgments or orders passed in admiralty, probate proceedings etc., would always be admissible irrespective of whether they are inter partes or not. A judgment not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject-matter of the suit . The recital in judgments like finding given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor defendant were parties.51 Relevancy of judgment in election petition.—In a case52 where the election petitioner failed to establish his claim, it could not be said that it amounted to a declaration of the status of the respondents in that election petition or the successful candidate and that such a finding on status would operate as a judgment in rem so as to bind the whole world. Thus it is not a judgment recognised under Section 41 of the Act. Even if the earlier judgment is admissible in evidence, no objection was raised during trial. So neither it could be brought under Section- 42 of the Act on the basis that it relate to a matter of public nature nor under Section 43 of the Act. Relevancy of judgment in probate, etc.—A final judgment, order or decree of competent court in the exercise of probate, matrimonial, (admiralty or insolvency) jurisdiction which (order, decree or judgment) confers upon or takes away from any person any legal character or which (judgment, order or decree) declares any person to be entitled to any such character or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any such legal character or the title of any such person to any such thing is relevant. The condition necessary for making a judgment in rem relevant may be considered under two heads : (1) those having reference of the contents of the judgment, (2) and those to the nature of proceeding in which the judgment is sought to be relied upon afterwards. A judgment to be relevant under Section 41 must be : (1) of a competent) court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction ; (2) it must confer upon or _____________________________

51.

State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684.

52.

Satrucharla Vijaiya Rama Raju v. Nimanaka Jaya Raju and others, (2006) 1 SCC 212.

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take away from any person any legal character or declare any person to be entitled to any such character or to be entitled to any specific thing, not as against any specified person but absolutely. With regard to the proceeding in which the said judgment is sought to be relied upon as a piece of evidence, the existence of any such legal character or the title of such person to any such thing must be relevant. The judgment of a probate court granting probate of a will in favour of the petitioner must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem.53 The judgment in rem is conclusive proof only for showing (A) that the judgment has conferred a legal character, or (B) that it has declared that the person has such a legal character, or (C) that it has declared that the legal character of a person which subsisted had ceased to exist. So a decree of divorce, though conclusive upon all persons that the parties have been divorced and that the parties are no longer husband and wife is not relevant to prove the cause for which the decree was pronounced. Judgment—Pendency of.—For attracting, Section 41 of the Evidence Act, a judgment has to be pronounced. Mere pendency of two proceedings, whether civil or criminal by itself would not attract the provisions of Section 41.54

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ECTION 42.—Relevancy and effect of judgments, orders or decrees, other than those

mentioned in Section 41.—Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. ILLUSTRATION A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists. COMMENTS Scope.—Judgments, orders or decrees other than those mentioned in Section 41 are relevant if they relate to the matters of public nature, but such judgments, orders or decrees are not conclusive proof of that which they state. Under Section 42 judgments are admissible not as res judicata but as evidence although they may not be between the same parties provided they relate to matters of public nature relevant to the enquiries. Judgments inter-partes are relevant under Section 40, they are conclusive and bar subsequent proceedings. Judgment, in rem though not inter-partes are _____________________________

53. Surendra Kumar v. Gyanchand, AIR 1975 SC 875. 54. Syed Askari Hadi Ali Angustine Imam v. State (Delhi Admn.), AIR 2009 SC 3232 at p. 3239.

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admissible under Section 41 and are conclusive for any legal character. Judgments neither inter-partes nor in rem axe relevant under Section 42 if they relate to matters of public nature and if that matter of public nature is relevant to the enquiries. But it should be remembered that judgments relating to matters of public nature relevant under Section 42 neither work as res judicata nor they are conclusive as judgments in rem. They can be used as any other evidence in the proceeding. Section 42 is intended for judgments, orders or decrees which relate to matters of public nature. Under this section the judgments are admitted as a piece of evidence. Under Sections 40 and 41 judgments are admitted as a conclusive proof about the matters they relate to. But under this section judgment is admitted as a piece of evidence. On a question of custom, a decision in a case as regards the existence or non-existence of the custom is good evidence in other cases.55 SECTION 43.—Judgments, etc. other than those mentioned in Sections 40, 41 and 42 when relevant.—Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of this Act. ILLUSTRATIONS (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C. (b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife. The judgment against B is irrelevant as against C. (c) A prosecutes B for stealing a cow from him, B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant. (d) A has obtained a decree for the possession of land against B, C, B 's son murders A inconsequence. The existence of the judgment is relevant, as showing motive for a crime. (e ) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue. (f) A is tried for the murder of B . The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

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Scope.— Section 40 deals with judgments which render the matter conclusive between the parties ; Section 41 deals with judgment in rem, which are conclusive against all the world ; Section 42 deals with judgments which as relating to matters of a public nature, are relevant though not conclusive, between strangers to the suit. Section 43 lays down a general rule that all judgments, decrees and orders not mentioned under Sections 40 to 42, are irrelevant. To this general rule of exclusion the section provides two exceptions. The judgments, decrees or orders not relevant under the three preceding sections, are relevant (1) when the existence of such judgment, order or decree is a fact in issue ; (2) when the judgment, decree or order is relevant under some other provisions of the Act. A was the managing director of a Co-operative Bank, which went into liquidation. As a result of certain proceeding taken against A by the liquidator of the bank, a payment order was made by the Deputy Registrar of Cooperative-societies. In the finding given by Deputy Registrar in his payment order, the liability of A was, inter alia, based on breach of trust. In pursuance of this order a bungalow belonging to A was attached and sold. In a suit brought by a son of A for partition of a joint-family property and possession of this separate share it was contended that the debt incurred by A was avyavharik. In support of his contention, the son attempted to prove that the debt fell within this term avyavaharik by relying upon the payment order and the findings given by the Deputy Registrar in the payment order. It was held that any opinion given in the order of the Deputy Registrar as the nature of the liability of A could not be used as evidence in the present case to determine whether the debt was avyavaharik or otherwise. The order was not admissible to prove the truth of the fact therein stated and except that it may be relevant to prove the existence of judgment itself, it would not be admissible in evidence.56 (1) Judgment a fact in issue.— If the object of producing the judgment be merely to prove the existence of the judgment, its date or its legal consequences, the proof of a certified copy is conclusive evidence of those facts. A was prosecuted by B for cheating. He is acquitted. Afterwards A filed a suit for malicious prosecution against B. Now in the Suit for malicious prosecution A has to prove :— that A was prosecuted by B; that he was prosecuted without any reasonable and probable cause; that he was acquitted. In this case the judgment of the criminal case is relevant to show that A was proseciited by B.57 In Tirupati Tirumala Devasthanam v. K.M. Krishnaiah,58 the Supreme Court said that the judgment produced as evidence to prove the title in regard _____________________________ 56. S.M. Jakati v. S.M. Borkar, AIR 1959 SC 282. 57. Jogendra v. Lingaraj, AIR 1970 Orissa 91. 58. AIR 1998 SC 1132.

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to the suit property is admissible in evidence even though plaintiff was not party to that suit if it is fact in issue. (2) Relevant under some other provision of the Act.- The existence of a judgment will sometimes be a relevant fact under some of the other provisions of the Act as to relevancy. For example, the fact that A has obtained a decree of ejectment against B may be a motive for B's murdering A. Therefore the decree of ejectment will be admissible to prove the motive of murder at the trial of B for the murder of A. Motive is relevant under Section 8 of the Act and therefore a decree showing motive is admissible under Section 43. Where in a proceeding for revocation of the grant of probate under Section 263, Succession Act, the question is whether the son of the testator murdered him, cannot be assumed on the basis of a previous judgment of a criminal court convicting the son of the murder of his father and sentencing him to transportation for life, that the son was murderer of the testator. The judgment of the criminal court is relevant only to show that there was such a trial resulting in the conviction and the sentence of the son to transportation for life. It is not evidence of the fact that the son was the murderer of the testator. That question has to be decided on evidence.59 In a suit between A and B , the question was, whether C or D was heir of H. If C was heir of H, then A was entitled to succeed, otherwise not. The same question in a former suit brought by T against A and decided against A ; and this former judgment was admitted in evidence in this suit between A and B, and dealt with by the courts below as conclusive evidence against A upon the point so decided. It was held that a former judgment which is not a judgment in rem, nor one relating to matters of a public nature, is not admissible in evidence in a subsequent suit, either as a res judicata or as proof of the particular point which it decides, unless between the same parties or those claiming under them.60 Judgment of a Criminal Court.—A judgment of a criminal Court is not admissible in a civil suit but an admission of guilt made by a party in a criminal proceeding is admissible in subsequent civil proceeding.61 A settlement between the debtor and creditor in a civil proceeding regarding the recovery of loan is not of much relevance in a criminal proceeding. Civil proceeding and criminal proceeding can proceed simultaneously.62 SECTION 44.—Fraud or collusion in obtaining judgment, or incompetency of court, may be proved.— Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion. _____________________________ 59. Anil Behari v. Latika Bala Dasi, AIR 1955 SC 566. 60. Gujju Lal, v. Fateh Lal, ILR 6 Cal 172. 61. Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463 at p. 2468. 62. Rumi Dhar v. State of West Bengal, AIR 2009 SC 2195 at pp. 2197-2198.

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COMMENTS Judgment without jurisdiction or obtained by fraud is void.— Under Sections 40, 41 and 42 previous judgments are made relevant and the production of such judgments operates as res judicata. But the judgment to operate as res judicata has to be of a competent court and not obtained by fraud or collusion. If a judgment is not by a competent court or if it is obtained by collusion or fraud, it cannot operate as res judicata even if it is judgment in rem.63 It is not necessary for the party against whom such judgment, order or decree is sought to be used to bring a separate suit to have it set aside, but it is open to such party in the same suit in which such judgment order or decree is sought to be used against him, to show that the judgment, order or decree relied upon by the other side was delivered by a court not competent to deliver it, or was obtained by fraud or collusion. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. Where a litigant obtaining preliminary decree for partition of property but did not mention at trial as to his having executed before filing of suit a release deed in respect of the property ; the court held the decree as vitiated by fraud.64 No separate suit to set aside such judgment.— When an order or decree of a previous suit which is relevant under Sections 40 or 41 is set up by one party to a suit as a bar to the claim of the other party in a subsequent suit or proceeding it is not necessary for the other party to bring a separate suit to have the judgment set aside. But it is open to him in the same suit or proceeding to show that the judgment was delivered by a court not competent to deliver it or was obtained by fraud or collusion.65 In cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend, it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceedings by invoking Section 44 of the Evidence Act without taking resort to and separate suit for setting aside the decree or judgment.66 Relevancy of a previous judgment on an issue (issue estoppel).— The question is whether, where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such finding would constitute an estoppel or res judicata against prosecution as precluding the reception of evidence to disturb that finding of fact when accused is tried subsequently even for different offence. The answer to the question is in the affirmative. There is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence that the same point was determined in favour of a prisoner in _____________________________ 63. Satya v. Teja Singh, AIR 1975 SC 105. 64. S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853. 65. Vishunath Tewari, v. Mst. Mirchi, AIR 1955 Pat 66 ; Triveni Mishra, v. Rampoojan, AIR 1970 Patna 13. 66. Asharfi Lal v. Koili, AIR 1995 SC 1440.

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previous criminal trial which is brought in issue on the second criminal trial of the same prisoner. When the same issue of fact and law have been determined in the previous situation this finding cannot be disturbed. The accused was tried under Section 7/16 of the Prevention of Food Adulteration Act for selling adulterated milk. He was acquitted as being held that sale was not proved. He was again put to trial for the same transaction for selling milk without licence. It was held that the rule of issue of estoppel did arise and no evidence to the effect that he was selling milk on that date could be given.67 The judgment of the previous trial would be admissible to show what was the issue in question in the former case and decision thereon.68 OPINIONS OF THIRD PERSONS, WHEN RELEVANT What a person thinks in respect to the existence or non-existence on a fact is opinion; and whatever is presented to the senses of a witness and of which he receives direct knowledge without any process of thinking and reasoning is not opinion. A claims to have a right to take water from a particular well. B sees A taking water every day from the well. His seeing A taking water is not opinion. If B says that he has been seeing A taking water from the well; he does not give his opinion rather he states a fact of which he received direct knowledge through his eyes. But if he says that in his opinion A has right to take water from the well he gives an inference at which he had arrived by thinking and reasoning. That a man has acquired a certain right cannot be perceived by any of the senses. It can be only the subject of thinking and reasoning. The question is as to whether particular letter was written by B. One A says that B wrote the letter in his presence. Here A sees the letter being written by B and he receives direct knowledge about the identity of the writer. But suppose C says, "I did not see B writing the letter but in my opinion the letter was written by B." Here C did not receive direct knowledge about the identity of the writer but he thinks that it was written by him. Before giving the above statement C compares the writing of the letter with that of B in his mind and finds them similar and then expresses it in form of opinion. Let us take another example. The question is whether a certain injury was caused by a spear, A states that he saw the accused causing the injury by a spear. This is not A's opinion. But if a doctor, who did not see the injury being caused, says that he thinks that the injury was caused by a spear, it is his opinion. What one sees, hears, feels by touch, and knows is not opinion and on the contrary what is the conclusion of an individual is his opinion. Relevancy of opinion.— As a general rule the opinion is not admissible. The reason for this is not far to seek. The witnesses are to place before the court the facts observed by them and it is for the court to form its opinion. A and B quarrel and cause injuries to each other. Both start criminal cases. A says that B was plucking mangoes from his (A 's ) tree. He (A ) went and forbade. B began to assault him with spear and so he (A ) assaulted him in self-defence. B on the contrary alleges that A was plucking his (B's ) mangoes, he went and tried to stop him. A began to assault him With spear and so he also assaulted him, (A ) _____________________________

67. Banshi v. State, 1969 AWR 31. 68. Brij Basi Lal, v. State of M.P., AIR 1979 SC 1080.

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in self-defence. In this case the man who is aggressor will be convicted and he who exercised the right of private defence shall be acquitted. Now what will be the state of affairs if opinions of persons are taken into evidence. Suppose A produces witnesses who depose that in their opinion B was aggressor and A assaulted in exercise of right of private defence, and B produces witnesses who state that in their opinion A was aggressor and B assaulted in selfdefence. If such evidence is allowed the court has to decide a case on the opinion of third persons. The witnesses are generally interested in the parties to the litigation and if their opinion is admissible, grave injustice would by caused. The witnesses are to bring to the court the raw material of fact and then on them the mind of the court is to work. In the example referred to above the witnesses of A should place before the court the bare fact they saw. They may state that the tree, in dispute belonged to and was in possession of A ; B came, all of a sudden and began to pluck mangoes from it; A tried to stop upon which B began to assault him (A ) and then A also caused injuries to B in self-defence. Similarly, witnesses for B will support the story set up by him. On these raw facts, untainted by any sort of conclusion, the court will give its own finding as to who is guilty. For this reason and many others the laws lays down that opinions of third persons are not to be allowed in evidence. The opinion or belief of third person is as a general rule irrelevant and therefore inadmissible. The witnesses are allowed to state facts and facts alone, i. e. what they themselves saw or heard. It is the duty of the judge to form his-own conclusion or opinion on the facts stated. Therefore, the opinion of a witness that it appeared to him from the conduct of a mob that they had collected there for an unlawful purpose is not admissible to prove the object of the assembly. There are, however, cases in which the court is not in a position to form a correct opinion., e. g. when the question involved is beyond the range of common experience or common knowledge, or when special study of a subject or special experience therein is necessary. The question is whether A died of poisoning. Generally a judge or a magistrate by examining a dead body of A cannot form any correct opinion as to the cause of death. Again, this is question whether certain impression is of A. Generally a court will not be able to form a correct opinion about the matter in issue. In such cases help of an expert is required, because to form an opinion in such matters special study or training or experience is necessary. In these cases, the rule is relaxed and expert evidence is admitted to enable a court to come to a proper decision. In the first example mentioned above, a doctor will be required to give his opinion as to the cause of his death and in the second example a document expert will be consulted. Science, art, trade, handwriting, finger impressions and foreign law, are the examples of matters for understanding of which special study, or special experience is necessary. SECTION 45.—Opinions of experts.—When the court has to form an opinion upon a point of foreign law or of science or art, or as to

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identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. ILLUSTRATIONS (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. (b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant. COMMENTS Scope.— Section 45 makes the opinion of persons specially skilled in some science, art, foreign law, identity of handwriting and finger-impressions is relevant. An expert witness.— The section also gives a definition of an expert witness. An expert is one who has acquired special knowledge, skill or experience in any science, art, trade or profession : such knowledge, may have been acquired by practice, observation or careful studies.69 In Bal Krishna Das Agrawal v. Radha Devi and others,70 an expert was defined as a person who by his training and experience has acquired the ability to express an opinion but an ordinary witness does not possess this quality. The evidence of an expert is such evidence which is based on expertise and experience. In view of the language of Section 45 of Evidence Act it is necessary that before a person can be characterised as an expert there must be some material on record to show that he is one who is skilled on that particular science and is possessed of particular knowledge concerning the same. He must have special study of the subject or acquired special experience therein. Thus before a testimony of witness became _____________________________ 69. Collector of Jabalpur v. A.R. Jahangir, AIR 1971 MP 32 ; K. Krishna Chettiar v. Ambal & Co, AIR 1970 SC 146 ; Mahmood v. State of U.P., AIR 1976 SC 69. 70. AIR 1989 All. 133.

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admissible his competency as an expert must be shown, may be by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. The appellant Baldeo filed a petition under Section 12 of Hindu Marriage Act for annulment of his marriage with respondent Urmila on the ground that on the date of marriage (8th October, 1962) the respondent was already pregnant by some another man of which he was ignorant then. The suit was decreed by the trial court. On appeal the High Court reversed the judgment and dismissed the suit. The respondent Urmila Kumari contended that she became pregnant by the appellant. During the trial Dr. Daljeet Dhillon, woman assistant surgeon was examined as plaintiff witness. According to her on October 30th, 1962 Smt. Urmila Kumari had pregnancy of 2 1/2 months and in the certificate Ext 1 that uterus was two finger above the sumphysis pubis per abdomen. According to her evidence the pregnancy in the case has started between August 11th and 16th 1962. Dr. Daljeet Dhillon had admitted in her evidence that she was not specialised in the branch of medical treatment of women diseases. The High Court held that as she has not a special study on the subject she was not expert and her evidence was not admissible. The Supreme Court reversed the finding and held that the witness may not have specialised in the branch of medical treatment of women's disease but her knowledge of midwifery as an obstetricin was proved to be of the high order in the case itself for her cross-examination done on 4th April, 1963, she clearly stated that Urmila Kumari's delivery might take place in 1963 which ultimately turned out to be true for the respondent did delivery on 20th May, 1963.71 From this decision of Supreme Court it is clear that an expert in order to be competent as a witness need not have specialized in certain branch of science or art. It is sufficient, so far as admissibility of evidence goes if he or she has acquired a special experience therein. In Durand Didier v. Chief Secretary, Union Territory, Goa,72 an expert was criticised on the ground that she did not know the difference between Narcotic drug and Psycotropic drug. This was admitted by her. But the Supreme Court held that these arguments have got no significance because the medical officer is not expected to know the difference in legal parlance. And this ground in our view is no ground for ruling out the evidence of P.W. 6. The medical expert is not expected to know the difference in legal parlance. The opinion of an expert must be given orally and a mere report or certificate by him is not evidence73 Senior Scientist (Chemistry), Central Forensic Science. Laboratory was held to be an expert in science, though not falling in the category of officers mentioned in Sec. 293 Cr.P.C. His opinion would be a relevant piece of evidence in view of section 45.74 Prerequisites of expert evidence.— Before expert testimony can be admitted two things must be proved, namely, (1) the subject is such that expert _____________________________ 71. Baldeo Raj v. Urmila Kumari, AIR 1979 SC 879. 72. AIR 1989 SC 1966. 73. Ahmedabad Municipality v. Shantilal, AIR 1961 Guj. 196. 74. Amarjeet Singh v. State (Delhi Admn.) 1995, Cr.L.J. 1623 (Delhi).

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testimony is necessary ; and (2) that the witness in question is really an expert,75 and that he is a truthful witness.76 1. Expert (Testimony) Opinion was necessary.—Where the court was able to form its own opinion from facts and circumstances of the case it can be said that expert opinion was not necessary. But wherein some technical question is involved which can be answered by a person specially skilled it can be said that expert opinion was necessary. In L.C. Goyal v. Mrs. Suresh Joshi,77 it was held by Supreme Court that when the circumstantial evidence was so potent that it led to only one conclusion that the signature on cheque was not forged, there was no need for an opinion of handwriting expert. 2. The Witness in question is really an expert.—In order to bring the evidence of a witness as that of an expert it has to be shown that he made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. An expert is not witness of fact, his evidence is only of advisory character. The duty of an expert witness is to furnish the judge with necessary scientific criteria for testing the accuracy of circumstances so as to enable the Judge to form his independent judgment by the application to that criteria to the facts proved by evidence of the case. The scientific opinion evidence if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The creditability of such witness depends on reasons stated in support of his conclusions and the data and material furnished which form this basis of his conclusion.78 Foreign law.— When the court has to form an opinion as regards the law of foreign country; an expert in that law may be called upon to state to the court what the law of a foreign country on that particular point is. The foreign law must be proved like a fact.79 In India such law may be proved under Section 38 by the production of book printed under authority of the foreign Government. An expert may be called to state what the law of a foreign country on a subject is but where it is laid down in a Code of that country it is a duty of a court in this country to interpret as best as it can. The judgment of the highest tribunal of that country is the best evidence.80 The function of nautical (naval) assessors is to advise the court upon nautical manner and their advice is expert evidence admissible in admiralty court, on all issues of fact about the seamanship. The decision of the case however, rests entirely with the court and even in solely nautical matters the court is not bound to follow the advice of assessors but on question of nautical _____________________________ 75. Parat V. Bissessar, 39 Cal 245. 76. Kanchan Singh v. State of Gujarat, 1979 SC 1011 : Central Excise Department v. Somasundaram 1980 Cr LJ 533. 77. AIR 1999 SC 2222. 78. State of Himchal Pradesh v. Jai Lal and others, AIR 1999 SC 3318. 79. Khode Gangasar v. Swaminanda Madali, AIR 1926 Mad 218. 80. Suganchand Bhikham Chand v. Margo Bai, AIR 1942 B 145.

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science and skill great attention must obviously be paid to the opinion of the assessors since they are the only source of information on these points and some reason should be given for disregarding them.81 Science or art.—When the court has to form an opinion upon a point of science or art, the opinion upon that point of persons specially skilled in such science or art is admissible. It would be physically impossible to deal with every branch of science or art in which expert evidence may be given. We propose to take examples. Medical evidence.— The opinion of a physician or a surgeon may be admitted to show the physical condition of a man, the nature of a disease, the nature of injuries and the weapons with which they were caused. In Ram Swaroop and others v. State of U.P.,82 it was held by Supreme Court that doctor's evidence can never be absolutely certain on point of time so far as duration of injuries are concerned. Medical expert not a ballistic expert.—The medical expert being not a ballistic expert is not expected to answer as to whether the injury would have been caused by bullet alone.83 No conviction on expert evidence.—It would be highly unsafe to convict a person on the sole testimony of an expert.84 Opinion of doctor as to age.— The opinion of a doctor is an important piece of evidence.85 The effect of the medical testimony is to render the other evidence adduced in the case as to the age of a person probable.86 When the opinion is based only on the physical features, it is worthless.87 Where the age of the prosecutrix driven to the flesh trade was given in FIR as well as in her supplementary affidavit as 18 years but in medical examination her age was determined to be between 14 to 16 years and the birth certificate also revealed her age below 16 years, her age was held to be below 16 years as the prosecutrix at the time of her arrest might be trying to shield her prosecution.88 In Ammini and Others v. State of Kerala,89 the Supreme Court held the rejection of certificate on the ground that the certificate was on piece of plain paper and not printed form, was not proper when it is shown that printed forms were in short supply in Government Hosiptal of particular district. D.N.A. Report.—In Pantangi Balarama Venkata Ganesh v. State of A.P.,90 which was a case of murder, the expert in D.N.A. report suggested that _____________________________ 81. Asiatic Steam Navigation Co. v. Sub-Lieutenant, AIR 1955 SC 597. 82. AIR 2000 SC 705. 83. Mahmood v. State of U. P., AIR 2008 SC 515 at p. 520. 84. Mahmood v. State of U.P., AIR 1976 SC 69. 85. Sunil Chandra v. State, AIR 1954 Cal 304. 86. Banwari Lal v. Mahesh, 41 All 63. 87. Mohd. Sedal v. Yuhode, AIR 1916 PC 242. 88. State of Maharashtra v. Md. Sajid Husain, Md. S. Husain, AIR 2008 SC 155 at p. 159. 89. AIR 1998 SC 260. 90. AIR 2009 SC 3129 at p. 3136.

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the blood group of the appellant and the one found on the pink shirt worn by him was similar. The expert did not use the term identical. It was held to be of not much consequence in this case when the Court had not taken into consideration the evidence of D.N.A. experts alone for recording the conviction. D.N.A. report was considered with other evidence. Gun-shot—Exact time of death cannot be established.—In case of death by gun-shot injury, the exact time of death cannot be established scientifically and precisely because of presence of rigor mortis or in the absence of it.91 Ballistic Expert.—Where the offence is alleged to have been committed by the use of firearm, it cannot be laid down as a general proposition that the prosecution must lead the evidence of a Ballistic Expert. If direct evidence is of an unimpeachable character and the nature of injuries, disclosed by postmortem notes is consistent with the direct evidence, the examination of Ballistic Expert may not be regarded as evidence.92 Handwriting On the dispute regarding the execution of promissory note by the denial of the defendant and his signature thereon, it is essential that such document should be sent to expert for comparison of signatures.93 In case of positive denial by the person said to have affixed his thumb impression on the disputed document and the impression on the document being vague and smudgy or not clear, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impression. The' recording of finding about its authenticity, without benefit of any expert opinion, merely based on a mere casual or routine glance, or perusal should be avoided.94 In case of a disputed thumb impression which is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal. When there is a positive denial by the person alleged to have affixed his finger impression, the Court should hesitate to venture a decision based on its own comparison of disputed and admitted finger-impression. Even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain characteristics, similarities and dissimilarities. If the Court chooses to record a finding thereon, the judgment should contain the reasons for any conclusion based on comparison of thumb-impression.95 When the court has to form an opinion as to writing, the opinion of a writing expert is admissible. It should be borne in mind that the opinion of an expert in writing is the weakest and the least reliable evidence. So it has been _____________________________ 91. Baso Prasad v. State of Bihar, AIR 2007 SC 1019 at p. 1023. 92. Vineet Kumar Chauhan v. State of U. P., AIR 2008 SC 780 at p. 782. 93. Velaga Siraramma Krishna v. Velaga Veerbhadra Rao, AIR 2009 AP 47. 94. Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541 at p. 1545. 95. Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541 at p. 1547.

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held that it is not safe to base conviction upon the opinion of writing expert alone.96 Apart from question that report of handwriting expert may be read as an evidence what is necessary is that the expert should be subject to cross-examination because an expert like other witnesses is fallible.97 In Venkata Laxamma v. Venkatappa,98 the person making attestation has denied to sign on Vakalatnama and plaint so there was application for handwriting expert. Application accepted. The hand-writing expert is not necessary to prove or disprove the handwriting because the court is competent to compare the disputed handwriting with handwriting taken in the Court. But this does not mean that the court will not permit to prove the disputed handwriting by handwriting in any case. It may happen that the court may compare disputed handwriting with the admitted handwriting and arrive at decision. But when the defendant had preferred to take the benefit of handwriting expert then he should not be deprived of this benefit unless the application for it has been made after undue delay or for doing this there was some malice or some special motive specially where the person has said that the signature on plaint and Vakalatnama is not his signature. In Keshav Lal v. State of Madhya Pradesh,99 Examination of finger print was made by expert in order to connect accused with weapon of offence. Accused was alleged to have stabbed his mistress. Weapon of offence was handled by many persons before its seizure. Held—nonexamination of finger print expert would be of no consequence. In M.K. Usman Koya v. Santha and others,1 the Kerala High Court held—The comparison of handwriting is imperfect science and expert would not be able to state with 100% certainty that particular signature is that of the person who purportedly signed. He can only state that there is high probability. In L.C. Goyal v. Smt. Suresh Joshi,2 the Supreme Court held that when it was established by circumstantial evidence that it led to only one conclusion that the signature on the cheque was not forged there was no need for an opinion of an handwriting expert. Difference in opinion of experts.—In Balwinder Kumar v. Bawasingh and other,3 contradicting opinion was given by two experts. Cogent reason for opinion that the document is forged was given by one expert who was qualified and had vast experience in the field. Reason given by another expert was not cogent. The court was entitled to rely upon opinion of expert giving cogent reason.

________________ 96. 97. 98. 99. 1. 2.

Godavarthy, In re, AIR 1960 AP 164 ; Kanchan Singh v. State of Gujarat, AIR 1979 SC 101. Balkrishna Das v. Radha Devi, AIR 1989 All. 133. AIR 1991 Mad. 399. AIR 2002 SC 1221. AIR 2003 Ker 191. AIR 1999 SC 2222.

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In Suresh Kumar alias Suresh Chandra and others v. Mewa Ram,4 there was a difference of opinion amongst two handwriting experts. In such case, the court itself can compare the disputed handwriting with the admitted handwriting. When the request for handwriting expert can be made.—Where the request for handwriting experts was made at appellate stage and that too after a period of 10 years after filing an appeal and the delay was not explained, the rejection of request was held to be proper.5 Typewriting.—Sometimes the question arises that whether the evidence of typewriting expert is admissible as expert opinion under Section 45. In State through CBI New Delhi v. S.J. Chaudhary,6 the Supreme Court said that the word 'science' occurring independently and in addition to word 'handwriting' in Section 45 is sufficient to include that the opinion of a person specially skilled in the use of typewriter and having scientific knowledge of typewriter would be an expert in this science and his opinion about the identity of typewriting for the purpose of identifying particular type writer on which the writing is typed is relevant under Section 45 of the Act. Further, the type-writing is to be read within the meaning of handwriting in the Act. Since type has become more common than handwriting on account of availability of typewriters. Foot prints.—In Brij Mohan v. State of Rajasthan,7 where there was nonproduction of moulds of foot prints and cartridges on the spot, it was held by the Supreme Court that even excluding circumstances prosecution has proved its case beyond reasonable doubt. Court's have refused to act upon it unless corroborated. The opinion of an expert is seldom conclusive.8 Finger impressions.— The identification of finger prints has become most important branch of criminal investigation. In civil law also to prove the identity of a person the finger-impression plays an important role. In some cases the opinion of a fingerprint expert has been considered to be superior to handwriting expert opinion.9 Fire-arms expert.— The accused was tried for the murder of deceased by shooting him with a country-made pistol. A cartridge was found near the cot of deceased. The accused was arrested fourteen miles away from his village which was the place of occurrence. He produced a pistol from his house in circumstances which clearly showed that he only could have known of its existence there. In Jurnail Singh v. State of Punjab,10 it was held by Supreme Court that expert evidence was not necessary in case of double barrel gun which could be fired by first filling it with gun powder. ________________ 4. 5. 6. 7. 8. 9.

AIR 1991 Punj. 254. Girish Vinayak Rao Naik v. S. Sagramappa Khadla AIR 2001 Kant. 210 AIR 1996 SC 1491. AIR 1994 SC 739. Banerjee Store v. President of India, AIR 1953 All 318 : Ram Narain v. State of U.P., AIR 1973 SC 2200. Golam Rahman v. King, 1950 Cal 66.

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The evidence of fire-arms expert showed that he had fired four test cartridges from the pistol produced by the accused. He found the usual characteristics of the chamber to have been impressed upon the test cartridges and that exactly identical marks were present on the paper tube of the evidence cartridge. He made microphotographs of some of the evidence marks on the test cartridge and the evidence cartridge, and gave his opinion that cartridge found near the cot of the deceased was fired from the pistol produced by the accused. The evidence was held to be admissible under Section 45, Evidence Act.11 In a case under Section 300 IPC the doctor who conducted the post-mortem, has stated that the injuries found on the deceased must have been caused by firearms. As a matter of fact some pellets also were removed from the body. Therefore there cannot be any doubt that the firearms were used. He was cross-examined but he asserted that the distance from where the pellets were recovered from the entrance wound on the head may be more than 6" and that some of the injuries were caused from a very close range. It was held that in view of aforesaid positive testimony deposition of ballastic expert that certain recovered weapons could not have been used, by itself would not be serious infirmity.12 In the case of Sukhpal v. State of Haryana,13 the accused was found in possession of rifles and cartridges for which he had no licence, it was observed that making of test of firing by the expert for purpose of ascertaining whether or not rifle was capable of firing is not at all necessary. High Courts on Narco-analysis and brain-finger mapping Test-Validity.— The Bombay,14 Madras,15 Kerala,16 Gujarat,17 Andhra Pradesh,18 and Allahabad19 High Courts held the Narco-analysis and use of P300 or brain-finger printing, lie-detector tests and use of mouth serum to be valid under Article 20 (3) of the Constitution. The Karnataka High Court20 held it to be unconstitutional. In State of A.P. v. Inapuri Padma,21 the Andhra Pradesh High Court held— Where the petitioners are not the accused arrested by the Court, there is no need to obtain any permission from the Court to undergo Narco-analysis if they express no objection to undergo the same. Where the witnesses are not willing to undergo the test, the police is required to seek permission from the Court undertaking a test against such person. The police has to convince the Court as to what are the circumstances that made the police to gain the ________________ 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Kallu v. State of U.P., 1958 SC 180. Lakhbir Singh v. Sate of Punjab, AIR 1994 SC 1029. AIR 1995 SC 578. Ram Chandra Reddy v. State of Maharashtra, 2004 All MR (Cr) 1704. Dinesh Dalmia v. State, 2006 Cr LI 2401 Mad. Rajo George v. Dy. Supdt. of Police, 2006 (2) KLT 197. Santokhben Sharmnbhai Ladeja v. State of Gujarat, 2007 Cr. LJ 4566. State of A.P. v. Inapuri Padma, 2008 Cr LJ 3992 (AP). Abhay Singh v. State of U.P., 2009 Cr LJ 2189 (All) (LKO Bench). Selvi v. State, 2004 (7) Kar LJ 501. 2008 Cr LJ 3992 (AP).

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impression that there is likelihood that the persons proposed to be put to test knows something about the commission of the offence. In Santokhben Sharmanbhai Ladeja v. State of Gujarat,22 the Gujarat High Court held— "The Narco-analysis test is conducted under supervision of doctors and proper care is taken and there is constant surveillance of the state of the accused, and, as such, the element of risk is minimal. Risk is in fact part of life and pervades in most of human activities and on this ground alone, therefore, the impugned test cannot be condemned. In Abhay Singh v. State of U.P.,23 Justice Barkat Ali Zaidi held— "It is now well settled that hairs and nails of the accused can be taken for utilization during investigation even if the accused does not agree for the same. If that invasion of the accused is permissible, the principle should be applicable to Narco-Analysis and Brain Mapping Test also." The discovery of truth is the desideratum of investigation, and, all efforts have to be made to find out the real culprit, because, one guilty person, who escapes, is the hope of one million. Courts have, therefore, to adopt a helpful attitude in all efforts, made by the prosecution for discovery of the truth. If the Narco-analysis and Brain Mapping Test can be helpful in finding on the facts relating to the offence, it should be used and utilized and the Courts should not obstruct the conduct of the exercise."24 In Meera Walia v. State of Himachal Pradesh,25 the petitioner was a Principal in the Government College and her husband was an IAS officer. An FIR was registered under Sections 13 (1) (c) and 13 (2) of the Prevention of Corruption Act against the petitioner and her husband for possessing disproportionate assets to the known sources of their income. Her bail was objected by the prosecution, inter alia, on the ground of her requirement for Narco-test. The Narco Test of the petitioner was said to be required for extracting self-incriminating evidence as to what had been kept in lockers and how the amount of Rs. ten lacs was deposited by the vendor in her account next day after she purchased the landed property in a benami transaction. The petitioner and her husband were extensively interrogated and her husband remained 8 days in police custody. The bail was directed to be given in case of her arrest as the grounds for denial of bail were held to be not sufficient. The Narco-analysis Test was held to be totally irrelevant for the said purpose. Holding the test to be unconstitutional the H. P. High Court through Justice Surender Singh held— This type of test for inculpatory statement under the spell of mental deprecants or drugs which affects the mental faculty is inadmissible in law and in the given circumstances would be against the spirit of Article ________________ 22. 23. 24. 25.

2007 Cr LT 4566. 2009 Cr LJ 2189 (All) (LKO Bench) Ibid., at p. 2190. 2009 Cr. LJ 1524 (HP).

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20 (3) of the Constitution of India. Section 53 of the Code talks about legal evidence, so any incriminating statement made by the accused during such examination cannot be said to be a legal evidence which could be used against him. The field of criminology has expanded rapidly in recent years and demand for supplemental methods of detecting decepting and improving the efficiency of interrogation have increased concomitantly. The investigating agency has a statutory right to interrogate the crime and to find out the truth. It is a valuable technique in blind murder cases, terrorists activities like bomb blast to reach the actual accused where he is not known. Where the accused is known and the prosecution has collected the evidence against him and statutory onus lies upon him to explain the known sources of income, in that case, he cannot be compelled by making him dormant by drugs to state against him as it would be against the spirit of the Constitution as aforesaid.26 Narco analysis of the persons not accused of crime.—In State of A. P. v. Inapuri Padma (Smt.).27 the persons whose narco-analysis test was sought, were not accused persons arrested by the police. It was held that there was no need to obtain any permission from the Court to undertake a narco-analysis test. In case the witnesses are not willing to undergo such test, the police is required to make an application to the Court seeking permission for undertaking a test against such person. The police are required to convince the Court as to what are the circumstances that made the police to gain an impression that likelihood of knowing something about the commission of the offence by the persons proposed to be put to such test. Since in this case, the persons proposed to be put to such test were not accused or suspects, the question of putting the test of testimonial compulsion did not arise.28 Supreme Court on Narco Test.—A three Judges' Bench of the Supreme Court comprising C.J. K.G. Balakrishnan, Justice R.V. Raveendran and Justice J.M. Panchal has held forcible narco-analysis polygraph and brain electrical activation profile or brainmapping test unconstitutional. According to the Supreme Court, its individual should be forcibly subjected to any of these techniques in question, whether in the context of investigation in any criminal cases or otherwise.29 "The compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to cruel, inhuman or degrading treatment with regard to the language of evolving international human rights norms."30 In Selvi v. State of Karnataka,31 the Supreme Court in a batch of criminal appeals relating to the involuntary narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) tests for the purpose of improving investigation in criminal cases summing up the legal position has held— ________________ 26. Meera Walia v. State of Himachal Pradesh, 2009 Cr. LJ 1524 at p. 1527 (HP). 27. 2008 Cr. LJ 3992 (AP). 28. Ibid., at p. 3997. 29 The Times of India 6.5.2010 (LKo. Ed. p. 1). 30. Ibid., p. 7. 31. AIR 2010 SC 1974, Per K.G. Balkrishnan C.J.I. ; R. v. Raveendran and J.M. Panchal JJ.

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"Forcing an individual to undergo any of the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of 'ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to 'cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination'. No individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, voluntary administration of the impugned techniques provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. The Supreme Court referred to the guidelines published by The National Human Rights Commission for the Administration of Polygraph Test (Lie detector Test) on an Accused' in 2000 which should be strictly adhered to and similar safeguards should be adopted for conducting the "Narco analysis technique' and the 'Brain Electrical Activation Profile' test. These guidelines are as follows :— (i) No Lie-Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for a Lie-Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the

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(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the Lie-Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer, (viii) A full medical and factual narration of the manner of the information received must be taken on record. Track evidence.— The science of identification of footprints is no doubt a rudimentary science and much reliance cannot be placed on the result of such identification. The track evidence, however, can be relied upon as circumstances which along with other circumstances would point to the identity of the culprit, though by itself it would not be enough to carry conviction in the mind of the court.32 In Mohammad Aman v. State of Rajasthan33 it was held by Supreme Court that, it was unsafe to accept foot prints evidence when the sample foot prints were not taken before Magistrate. This part of science of identification of foot prints is not fully developed science and therefore in given case evidence relating to the same is found satisfactory it may be used only to reinforce the conclusion as to identify culprits already arrived at on basis of other evidence. Conviction on basis of foot print is not proper. Distinction between Expert witness and Ocular witness Expert witness 1. Expert witness gives evidence of his opinion.

Ocular witness 1. Ocular witness, is witness of fact and gives evidence of those facts which are under enquiry. 2. The expert supports his evidence 2. Ocular witness is witness of fact by the experiments which has and is available to opposite been performed by him in absence party for testing veracity. of opposite party. 3. The expert gives the rules and 3. Ocular witness gives evidence of reasons which supports his what he has perceived by his opinion. He may site text book of senses. accredited authority in support of his opinion and may refresh his memory by reference to them. 4. Expert opinion is to assist the 4. Ocular evidence is a witness of Court is merely of advisory fact and prevails upon expert character. opinion.34 Facts and Statement in old Gazette.-—In the case of Bhola Shankar Maha Shankar Bhattjee v. Charity Commissioner, Gujarat,35 a question arose as to whether Kalika Mataji temple on Payagadh Hill near Champaner town,

________________ 32.

Pritam Singh v. State of Punjab, AIR 1956 SC 415.

34.

Vishnu v. State of Maharashtra, (2006) 1 SCC 283. The opinion of Medical Officer as to age though supported by scientific tests cannot override the fact .about age given by father and mother. AIR 1995 SC 167.

33.

35.

AIR 1997 SC 2960.

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Gujarat whose origin was lost in antiquity is a public or private trust. The Supreme Court observed that the Gazette of the Bombay Presidency Vol. III published in 1879 is admissible under Section 35 read with Section 81 of Evidence Act. The Gazette is admissible being official record evidencing public affairs and the Court may presume their contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under Section 45 and the Court may in conjunction with other evidence and circumstances take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence. Value of expert evidence.—The real value of his (experts) evidence consists in rightful inferences what he draws from what he himself observed and not from what he merely surmises. Expert evidence is only piece of evidence and weight to be given to it has to be judged along with other evidences of this nature is ordinarily not conclusive. Such evidence therefore cannot be taken as substantial piece of evidence unless corroborated by other evidence. The testimony of expert is usually considered to be of slight value since they are proverbially biased in favour of the side which calls them. So evidence of expert should be approached with considerable caution specially where much depends upon this evidence. The opinions of experts are not binding upon the judge. The weights due to their testimony in a matter to be determined by the judge, and it will be proportionate to the soundness of the reasons. A tribunal should not accept the mere untested opinions of experts in preference to direct and positive testimony as to fact. In Darshan Singh v. State of Haryana,36 the Supreme Court held that where there is inconsistency between eye witness on the point as to how the injury was caused, the evidence of doctor cannot override unimpeachable testimony of eye witness. In S. Gopala Reddy v. State of Andhra Pradesh,37 the Supreme Court held that an expert evidence is weak type of evidence. Courts do not consider it as conclusive and therefore it is not safe to rely upon it without seeking independent and reliable corroboration. Expert evidence and direct or ocular evidence Medical evidence and ocular evidence.—Where there is a conflict between the medical evidence and oral testimony of witnesses, the evidence can be assessed only in two ways. A court can either believe prosecution witness unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated incidence or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the

________________ 36.

AIR 1997 SC 364.

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only safe and judicial method of assessing evidence is the second method.38 The medical evidence should be consistent with oral evidence. If oral evidence is totally inconsistent with medical evidence, the ocular evidence is to be discarded.39 In case the eye-witness account is found to be credible and trustworthy, the medical opinion suggesting an alternate possibility is not conclusive.40 In case of conflict between ocular evidence and the medical evidence, ocular evidence shall be preferred to the medical evidence in case ocular evidence is acceptable, trustworthy and reliable then medical evidence shall be preferred.41 In case of variance between medical evidence and ocular evidence, ocular evidence gets primacy but when there is total inconsistency, the evidence is appreciated in different perspective by the Court and medical evidence assumes importance while appreciating the evidence.42 In Shivappa v. State of Karnataka,43 the doctor's opinion was that the death occurred within 24 hours of the time of the post-mortem. The autopsy took place between 12.30 p.m. and 2.30 p.m. whereas the incident of murder was alleged to have taken place at about 8.30 p.m. on v the previous day of autopsy. The eye-witness stated that the incident had taken place at the time the food had been prepared and the deceased had taken food at about 10 A.M. The medical opinion was that semidigested food was found in the stomach showing that the deceased might have taken food four to five hours prior to his death. The Supreme Court quoted Modi's Medical Jurisprudence, P. 185, that the food contents remain for long hours in the stomach and duration thereof depends upon various factors and held— Medical opinion is admissible in evidence like all other types of evidences. There is no hard and fast rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct. The variation between the medical evidence and the testimony of the eye witnesses is not such which would lead to a conclusion that the prosecution case was not correct. As observed by Dr. Arijit Pasayat, J., "A doctor is usually confronted with such questions regarding different possibilities or probabilities of causing injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by witnesses to such questions need not become the last word on such possibilities. After all, he gives only his opinion regarding such questions. But to discard the ________________ 38. 39. 40. 41. 42. 43.

Thakur and others v. State, AIR 1955 All 189. Wilaya t Khan v. U.P. State. AIR 1953 SC 122; Lakshmi Singh v. State of Bihar, 1976 ACC. 372. Ramkant Rai v. Madan Rai, 2003 AIR SCW 5633 ; Sunil Dattatraya Vaskar v. State of Maharashtra, AIR 2009 SC 210 at p. 214. Malappa Siddappa Alakamur v. State of Karnataka, AIR 2009 SC 2959 at p. 2963. Kapildeo Mandal v. State of Bihar, AIR 2008 SC 533 at pp. 537, 538. AIR 2008 SC 1860 at p. 1863.

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testimony of an eye-witness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice.44 Ganesh K. Guive v. State of Maharashtra,45 There was no mention of certain injuries in postmortem report that the dead body was dragged by accused person. Postmortem report did not speak of injuries on back of deceased. Injuries on back of deceased were however mentioned in inquest Panchnama. It was held by the Supreme Court that theory of dragging of the bodies could not be discarded only on account of non-mention of injuries on back of bodies in the post mortem report. In the circumstances of the case the court can refuse to place any reliance on the opinion of an expert which is not supported by any reason.46 It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. It may be, however, relied upon along with other various items of external and internal evidence relating to the document in question.47 Where ocular evidence is found to be trustworthy, medical evidence pointing to the alternative possibility is not accepted as conclusive. It is erroneous to accord undue privacy to the hypothetical answers of medical witnesses to exclude the eye witnesses account which has to be tested independently and not treated as "variable" keeping the medical evidence as the constant.48 Opinion of medical experts.—For an expert opinion, the opinion must be based on a person having special skill or knowledge in medical science which could be admitted or denied. To admit it or to give how much weight to it is within the domain of the Court. The evidence of expert should be interpreted like any other evidence.49 The proof of expert opinion.—The opinion of an expert will not be read into evidence unless he is examined before the court and is subjected to cross-examination. An expert is not witness of fact. His evidence is only of advisory character. Non examination of expert in the court.—In State of Maharashtra v. Damn Gopinath Shinde,50 the Supreme Court ruled that without examining the expert as witness in the court, no reliance can be placed on expert evidence. Certificate of a doctor on a plain paper.—Certificate by doctor regarding injuries caused to accused persons was rejected on the ground that they were on plain piece of paper and not on printed form. It was held not proper

________________ 44. 45. 46. 47. 48. 49. 50.

Ram Swaroop v. State of Rajasthan, AIR 2008 SC 1747 at p. 1749; Mange v. State of Haryana, 1979 (4) SCC 349 ; State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 ; Ram Dev v. State of U.P., 1995 Supp (1) SCC 547 ; State of U.P. v. Harbans Sahai, 1998 (6) SCC 50 and Ramanand Yadav v. Prabhu Nath Jha, 2003 (12) SCC 606 referred to. AIR 2002 SC 3068. Haji Old Eovamulha v. State of W.B., AIR 1959 SC 488. Ram Chandra, v. State of U.P., AIR 1957 SC 481. Chhotanney v. State of U.P., AIR 2009 SC 2013 at 2014. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162 at p. 1178. AIR 2000 SC 1691.

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when it was shown that printed forms were in short supply in Government Hospitals in the particular district.51 Evidence of handwriting expert and direct evidence.—In Dulal Chandra Adak and others v. Gunadhar Patra & others,52 relief claimed was for declaration that gift deed in question was forged and fabricated document. The lower court declared the document as forged one relying the finger print expert. The court did not take into account the other evidence and direct oral evidence though available. The Calcutta High Court held that discarding the evidence of defendant regarding attestation and execution of document in question was not proper. The Calcutta High Court propounded the rule that evidence of expert cannot outweigh direct evidence. SECTION 53[45A.—Opinion of Examiner of Electronic Evidence.— When in a proceeding, the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 is a relevant fact. Explanation.—For the purposes of this section, an Examiner of Electronic Evidence shall be an expert]. SECTION 46.-—Facts bearing upon opinions of experts.—Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. ILLUSTRATIONS (a) The question is, whether A was poisoned by certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant. (b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls began to be obstructed at about the same time, is relevant. Sufficient weightage should be given to the doctor who had conducted the post-mortem as compared to the statement found in text book. But giving weightage does not ipso facto mean that each and every statement made by medical witness should be excepted on its face value where it is self contradictory.54 The credibilty of expert witness depends upon reasons stated in support of his conclusions but the data and materials furnished which form the basis of his conclusion 55

________________ 51. 52. 53. 54. 55.

Ammini and others v. State of Kerala, AIR 1998, SC 260. AIR 1998 Cal. 150. Section 45A inserted by the Information Technology (Amendment) Act 2008 (Act No. 10 of 2009), Section 52 (b) (w.e.f. 27.10.2009). AIR 1999 SC 2416. AIR 1999 SC 3318.

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In Mohd. Jahid v. State of Tamil Nadu,56 is an important case on this point. In this case the credibility of doctors' opinion conducting post mortem vis-a-vis statement found in text book was compared. The prosecution made suggestion to the doctor on basis of statement found in authoritative text book. The doctor disagreed with the statement of authoritative text book without giving any reasons. No other authority was produced in support of opinion. The Evidence of doctor was self contradictory regarding her opinion about cause of death of victim, cannot be relied. SECTION 47.—Opinion as to handwriting, when relevant.— When the court has to form an opinion as to the person by whom any document was written or signed the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. Explanation.— A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. ILLUSTRATION The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B"s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon. The opinions of B, C, and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write. Proof of handwriting Proof of handwriting by a person acquainted with the writing of the writer.— Under Section 47 the authorship of a writing may be proved by the opinion of a witness who is familiar with writing of a person who is said to have written a particular document.57 But before such evidence is admitted the witness must prove that he is acquainted with the writing of the person concerned. The opinion evidence is hearsay and the evidence under Section 47 becomes relevant only when the witness has spoken to his familiarity with the handwriting of the person concerned.58 The main part of Section 47 is intended to apply to those cases where the disputed signatures or writings are not written in the presence of the persons

________________ 56. 57. 58.

AIR 1999 SC 2416. Fakiruddin v. State of M.P., AIR 1967 SC 1326. Mubark Ali Ahmad v. State of Bombay, AIR 1957 SC 857.

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[S. 47

appearing to prove them, who although have not seen the person writing the disputed signature, are competent to recognise writing on account of their familiarity and acquaintance with the character of the writing of the person concerned.59 In Bal Krishna Das Agrawal v. Radha Devi and others,60 it was held that report of handwriting expert would not be admissible in evidence in absence of formal proof and examining the expert. In Allauddin v. Shishir Kumar Datta,61 it was held that in order to prove the hand-writing the opinion of a hand-writing expert and opinion of a person who has become acquainted with hand-writing in question is received under Sections 45 and 47 respectively. Both under Sections 45 and 47 the opinion is only a piece of evidence and opinion about hand-writing is not conclusive but it should not be avoided presuming it to be useless. There is no rule which denies the right of judge to make comparison of the hand-writing in question with admitted hand-writing. The opinion of court is also not conclusive. There is a chance of mistake also. So the court should neither be hasty to base the decision on his opinion nor the court hesitate to arrive at decision and the court can use its own opinion to arrive at decision if its opinion is corroborative with decision of other hand-writing expert. The proof of the genuineness of a document is proof of the authorship of the document and is a proof of fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature, by one of the modes provided in Sections 45 or 47 of the Act. It may also be proved by actual evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links of which are proved to the satisfaction of the court. In such a situation the person who is a recipient of the document, be it either a letter or a telegram, would be in reasonably good position both with reference to his prior knowledge of the writing or signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence to speak to his authorship.62 Evidentiary value of.— Sections 45 and 47 of Evidence Act prescribe the method in which signatures can be proved. Under Section 45 the opinion of the handwriting experts is relevant while under Section 47 opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. This is, therefore, the manner in which the alleged signature of a person can be proved but even assuming that the signature of the person could be legally held to be proved on circumstantial evidence, the principle which governs the appreciation of such circumstantial evidence, in

________________ 59. 60. 61. 62.

Girja Prasad, v. Sardar Labh Singh, AIR 1977 Patna 241. AIR 1989 All. 133. AIR 1989 Gau. 42. Rahim Khan v. Khursheed Ahmed, AIR 1975 SC 290.

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case of this kind cannot be ignored. It is only if the court is satisfied that the evidence irresistibly leads to the inference that the person must have signed the document in question that the court can legitimately reach a conclusion.63 Statement of person in whose presence document written.— Section 47 does not cover the statement of a person who deposes that writing or signature in dispute was written in his presence. But such statements are relevant to prove a writing. The plaintiff stated that the defendant signed the credit memos in his presence. The statement was held to be relevant.64 SECTION 47-A.—65[Opinion as to electronic signature when relevant.—When the court has to form an opinion as to the 66[electronic signature] of any person, the opinion of the Certifying Authority which has issued the 67[Electronic Signature Certificate] is a relevant fact..] SECTION 48.—Opinion as to existence of right or custom, when relevant.— When the court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant. Explanation.—The expression 'general custom or right' includes customs or rights common to any considerable class of persons. ILLUSTRATION The right of the villagers of a particular village to use the water or a particular well is a general right within the meaning of this section. COMMENTS Scope.— Section 13 applies to all rights and customs , public, general and private and refers to specific facts which may be given in evidence. Section 32 clause (4) refers to the reception of second-hand opinion evidence in case in which the declarant cannot be brought before the court, whether in consequence of death or due to some other cause, upon the question of the existence of any public right or custom or matter of public or general interest made ante litam mortam ; and the seventh clause of Section 32 refers to statement contained in certain documents. The present section also deals with opinion evidence, but it refers to the evidence of living person examined before the court. It is clear that only the persons who are likely to know about the custom in question are competent to give opinion evidence contemplated by this section. It is absolutely necessary for the person that he should have personal knowledge about the facts to be proved. But it must prove that his opinion is based on some information.68

________________ 63. 64. 65. 66. 67. 68.

Babu Ram v. Shrimati Parsanni, AIR 1959 SC 93. Girja Prasad v. Sardar Labh Singh, AIR 1977 Patna 241. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. H. Subs, for "digital signature" by Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009), Sec. 52(c) (i) (w.e.f. 27.10.2009). Subs, for "Digital Signature Certificate" by ibid., Sec. 52 (c) (ii) (w.e.f. 27.10.2009). Brijlal v. V.M. Chandra Prabha, AIR 1971 Guj 188.

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EVIDENCE ACT

[S. 49

SECTION 49.—Opinions as to usages, tenets, etc, when relevant.— When the court has to form an opinion as to.— the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular district or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts. COMMENT Scope.—When the court has to form an opinion about the matters, referred to in the section ; the opinion of persons having special means of knowledge thereon is relevant. These matters can only be proved by persons having special means of knowledge. ECTION 50.—Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XLV of 1860). ILLUSTRATIONS (a) The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

S

COMMENTS Scope.—Section 32, Clause (5) and Clause (6) make provision for proving relationship. Under that section the statements of dead persons having special means of relationship are admissible. Under Section 50 the opinion of a person alive is relevant. The person having special means of knowledge has to appear before the court and State. Under Section 50 the opinion of a person expressed by conduct is relevant. Let us take an example. The question is whether B is son of A. One P appears before the court and states that B is the son of A. This statement is not admissible under Section 32 as under that section statements of dead persons are relevant. It is not admissible under Section 50 because Section 50 needs opinion expressed by conduct of a person having special means of knowledge. Now suppose P states that A is his uncle ; both of them live in one and the same house ; B has been living with A since his birth ; B has been brought up by A as son. B addresses A as father. In this statement P has special means of knowledge and has

also given the conduct and so it is admissible under

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It is very important to note that Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. A was the father of C and V is the father of R as stated by witnesses was held not admission under Section 50.69 In order to make an evidence admissible under this section : (1) the witness must show that he had special means of knowledge to the relationship; (2) and he must place before the court the conduct of those persons, about whose relationship he deposes. In the above example if the witness says, A was his friend, they lived in the neighbourhood for long, A treated C as his son, C addressed A as father, his evidence becomes admissible. Under Section 50(1), "The person whose opinion is sought to be given in evidence must be proved to have special means of knowledge on the subject"; (2) the conduct alone can be given in evidence ; (3) from the conduct, the court is to judge about the relationship.70 In order to admit the evidence under Section 50 three conditions must be fulfilled : (1) the person must be proved to have special means of knowledge ; (a) the opinion alone is evidence, (b) the opinion as expressed by conduct only is evidence ; or in other words, conduct only can be given in evidence, from the conduct given in evidence the court is to see whether it is a result of an opinion held by the person ; (2) the opinion which is relevant must be one as to the existence of the relationship. Under Section 50 when the court has to form an opinion as to relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship if any is a relevant fact. The conduct must be proved in the manner laid down in Section 60, if the conduct relates to something which can be seen, it must be proved by a person who saw it if it is something which can be heard, then it must be proved by the person who heard it and so on.71 The opinion must be of a member of the family or an outsider. It is enough if he has special means of knowledge.72 A person who, although not a member of the family, has special means of knowledge about the relationship of the parties, can speak in the witness-box of what he has been told and what he has learnt about relationship of the parties provided what he says is an expression of his own independent opinion.73 A man and a woman were living together for long time and they were not only known as husband and wife by the neighbours but also by their relations. In addition to this there was sufficient evidence that the man and woman had got married according to social customs. In these circumstances, there must be

________________ 69. 70. 71. 72. 73.

Rokham Lakshmi v. Rokham Venkata, AIR 1937 PC 201. Chandu Lal v. Khalemonnesia, AIR 1948 Cal 76. Dalgovind v. Nimai Charan, AIR 1959 SC 914. Ram Adhar v. Janki, AIR 1956 Pat 49. Sita Ji v. Bijendra Narayan, AIR 1954 SC 601; Dalgovind v. Nimai Charan, AIR 1959 SC 914 ; Bal Ram v. Jayakrisha, AIR 1972 Orissa 141.

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EVIDENCE ACT [S. 51

presumption that they were husband and wife and the opinions of neighbour would be relevant under Section 50 of Evidence Act and the presumption would be under Section 114 of Evidence Act.74 Where there was no documentary evidence to show that the women whose legal representatives were claiming shares in the land, were the daughters of the land owner, oral evidence of an old co-villager was not sufficient to infer their relationship particularity because he had no relationship with the family of the owner of the land.75 Proviso.—The section provides an exception to the admissibility of evidence by conduct. It lays down that in the cases under Sections 494, 495, 497 and 498 of IPC and a proceeding under Divorce Act, the evidence of marriage cannot be given by opinion of an expert. In these cases strict proof of marriage is necessary. In such case witnesses in whose presence the marriage was celebrated must be produced. SECTION 51.—Grounds of opinion, when relevant.—Whether the opinion of any living person is relevant the grounds on which such opinion is based are also relevant. ILLUSTRATION An expert may give an account of experiments performed by him for the purpose of forming his opinion. COMMENT Scope.—The opinion of an expert by itself may be relevant, but would carry little weight with a court unless it is supported by a clear statement of what he noticed and upon what he based his opinion. CHARACTER WHEN RELEVANT

S

ECTION 52.—In civil cases character to prove conduct imputed, irrelevant.—In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant. COMMENTS Character—Meaning of.—"Character is a combination of quality distinguishing a person, the individuality of which is the product of nature, habits and environment." "Is a man honest, is he good-natured, is he of a violent temper, is he modest and retiring or imprudent and forward. These all constitute traits of character." Although strictly speaking character is to be distinguished from reputation, yet reputation is more commonly considered as having reference to the dispositions or character of a person. Thus it is said of a person that he bears a good reputation meaning that the person in question has reputation for being a person of good character. The explanation to Section 55 defines character as including reputation and general disposition both.

________________ 74.

Khageshwar Naik v. Damuni Bewa, AIR 1989 Orissa 10.

75.

Sankhali Dhal v. Nilmani Dei, AIR 1994 Orissa 298.

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Relevancy of character in civil cases.—It may be laid down as a general rule that in civil action evidence of character of any person concerned (a party to a suit) is not admissible for the purpose of raising an inference as to his conduct. In other words, that a party did or did not act may not be established in civil actions, by showing that his character is such as to pre-dispose him to one course or to the other. So the exclusion of evidence of character of a party as a basis of inference as to his conduct is practically absolute in civil cases. If a man is sued for breaking his promise or for wrongful detaining of another's goods or selling an article inferior to the sample, evidence cannot be given that it was likely for him to do from his disposition and reputation. A files a suit against B for possession of a house alleging that he (B) has taken forcible possession of it. In this A cannot lead evidence about B's character to show that it was likely for him to trespass. Where the contention that certain pronotes had been obtained from the insolvent while he was under the influence of drink has been found to be baseless, mere general bad character of the insolvent would be quite irrelevant in a civil case to prove want of consideration.76 Character admissible in civil cases.—There are certainly cases in which character is a fact in issue or a relevant fact, e.g., in a suit for libel, if the libel consisted in attributing bad qualities, to the plaintiff and the defendant justifies the existence of these qualities, this would be a fact in issue and evidence of character may be led. The character of a female chastity has been received in evidence in action for breach of promise for marriage. Person concerned.—The term 'person concerned' in this section refers to the character of the parties to the suit and not to character of witnesses. Except in so far as character appears from facts otherwise relevant.—Though no evidence can be given as to character of a party to a suit, the Court may form its own conclusion as to the character of a party to a suit as exhibited from by the relevant facts proved in the case, and the Court is competent to draw, from the opinion it has so formed about the character of a party, an inference that he might probably have been guilty of the conduct imputed to him or that he might not be worthy of credit. A files a suit against B alleging that he (A) and not B is the elected president of a college and praying that B should be stopped from managing the affairs of the college and he (B) should be ordered to hand over the papers relating to the college to him (A). B contends that he is the elected president. At trial the proceeding book, register of members and many other papers are proved as relevant documents. These papers were produced from the custody of A. In these papers, it is found that there are a number of over-writings, interpolations and forgeries appearing to be made by A. The Court can form an opinion from this evidence about the character of A and from that it may conclude that A is unworthy of credit. In civil cases the evidence of character is generally inadmissible unless the character is of the substance in issue.77 76.

AIR 1958 Alld 54.

77.

AIR 1952 Alld. 408.

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[S. 53

SECTION 53.—In criminal cases previous good character relevant.— In criminal proceedings, the fact that the person accused is of a good character, is relevant. COMMENTS Principle.—The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability that a man who has uniformly pursued an honest and upright course of conduct will depart from it and do an act so inconsistent with it. In criminal inquiries the case is different (from civil cases). There is a broad line between crime and innocence, and when the question is whether a man has committed an offence, or not, his character becomes a material consideration, sometimes it becomes conclusive. Suppose for instance that a murder is committed under such circumstances that one of two persons must be the murderer : one of them is a habitual robber, notorious, of civil life, of ferocious disposition, of lawless habits : the other is a person of refinement, delicacy and saintliness. Who can doubt that in such a case the character of the person concerned is a main element in consideration of the element of innocence or guilt. Evidence of good character is accordingly always admissible. In criminal proceedings a man's character is often a matter of importance in explaining his conduct and in judging his innocence or criminality.78 The allegation against the accused was that he was acting in pursuance of the policy of the Ittehad-ul-Muslameen, that his state of mind was to exterminate the Hindus. It was held that the accused was entitled to lead evidence to show that he did not possess that state of mind. When the accused in a bribery case pleads and produces evidence of good character, which the court regards as satisfactory, it must be taken in consideration to decide whether the guilt is proved beyond reasonable doubt.79 But in any case the character evidence is a very weak evidence ; it cannot outweigh the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused.80 SECTION 54.—Previous bad character not relevant, except in reply.—In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. Explanation 1.—This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 1.—A previous conviction is relevant as evidence of bad character.

COMMENTS Previous bad character.—It has been seen in the preceding lines that the general evidence of good character of the accused is always relevant. This

________________ 78. 79. 80.

Hubib Muhammad v. State of Hyderabad, AIR 1954 SC 59. AIR 1947 Lah 410. Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682.

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S. 55]

OF THE RELEVANCY OF FACTS

is not so with regard to general evidence of bad character. In criminal proceeding the fact that the accused person has a bad character is irrelevant and cannot be proved. When the previous bad character is relevant.—The previous bad character of the accused in criminal cases is relevant in the following circumstances: (1) When the accused has adduced evidence that he has been of good character, the prosecution can lead evidence to the effect that he has been a bad character. (2) Where the bad character of the accused itself is a fact in issue the evidence of bad character of the accused may be given. Under Section 110, Cr. P.C. a person is to be bound down if he is by habit a robber, a house-breaker or is so desperate and dangerous as to render his being at large hazardous. In an enquiry under Section 110, Cr.P.C., the very character of the accused is in question and so the evidence to that effect is admissible. The evidence that the accused had committed similar criminal acts previously is admissible upon the issue to decide whether the act was intentional or accidental.81 If the evidence of bad character is introduced in order to establish a relevant fact which cannot be proved separately the evidence of bad character is admissible.82 (3) Where the previous conviction is relevant as evidence of bad character, evidence of bad character is relevant. Under Section 71, I.P.C. if it is proved that a person is a previous convict he shall be sentenced to much longer term of imprisonment than would ordinarily have been awarded to him. Under such circumstances the previous conviction of the accused will be proved. On the trial of a prisoner for wounding a constable who had arrested him on suspicion of felony, the counsel for the prosecution asked the constable "what do you know has been the prisoner's previous character." It was held that the answer of the constable was not admissible in evidence. A person is prosecuted for theft, evidence is sought to be produced to prove that the accused is a bad character and has been suspected of theft and other similar offences on several occasions in the past. It was held that this evidence was not admissible. The evidence which disclosed certain unpleasant things about the accused in the past was examined by the Court in order to ascertain the motive for the murder and not for the purpose of determining as to whether the accused were persons of bad character likely to commit murder. It was held that the evidence was admissible.83 SECTION 55.—Character as affecting damages.—In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant.

________________ 81. 82. 83.

AIR 1942 Patna 291. AIR 1949 PC 161. Mangal Singh v. State of M.B., AIR 1957 SC 199.

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EVIDENCE ACT

[S. 55

Explanation.—In Sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition, but except as provided in Section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown. COMMENTS Character defined.—-According to this section 'character' as used in Sections 52, 53, 54 and 55 includes reputation and disposition. Reputation.—Reputation means what is thought of a person by others and is constituted by public opinion ; it is the general credit which a man has obtained in that opinion. When a man says that another man has a good character, in this sense he means that he has heard many people speak well of him. The distinction between admissible evidence of reputation and inadmissible hearsay evidence can be stated thus : If the evidence is of those persons who are living in the locality where the reputation is prevailing and where people take of their beliefs about him who themselves believe it, it is 'admissible.' But if the evidence is of a man who does not know about the reputation himself but has heard it from others it will be hearsay. In other words, the evidence of those, who know the man and his reputation is admissible. Evidence of those, who do not know the man but have heard of the reputation is not admissible.84 Disposition.—When a man says that another has a good character in this sense he gives the result of his own personal experience and observation or his own individual opinion of the prisoner's character, as is done by a master who is asked by another for the character of his servant. There are two forms in which a question as to character of a man may be put to a witness. If an accused be charged with theft, a witness to character might be asked either (1) what was the general reputation of the accused for honesty, or (2) was the accused generally of an honest disposition ? The witness would answer the first question from what was generally known about the accused in the vicinity where he lived. But he would answer the second question from his own personal knowledge of the accused. Evidence may be given of general reputation.—As for evidence of character, evidence may be given only of general reputation. Evidence of particular acts, as of honesty or benevolence or the like are not receivable, "for it is not probable that a man who has uniformly sustained a character for honesty or humanity will forfeit that character by the commission of dishonest or cruel acts. But the mere proof of isolated facts can afford no such presumption. None are all evil and the most consummate villain may be able to prove that on some occasion he has acted with humanity, fairness or honour." As seen before, Section 52 of the Act lays down that in civil cases character of a party is not relevant. Section 55 provides an exception to that general rule. According to this section character is relevant in civil cases, when it affects the amount of damages to be recovered, as in an action for libel,

________________ 84. Baso Rao v. Emperor, AIR 1948 Patna 84.

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S.55]

OF THE RELEVANCY OF FACTS

seduction or in a proceeding in a divorce court. In enquiries of such nature the compensation to be given must depend to a large extent, on the character of the concerned, and the court must, accordingly, take notice of this in assessing the damages to which such person is entitled. It should be clearly borne in mind that evidence of character is not relevant in every suit for damages. In a suit in which the character is to affect the amount of damages, the evidence of character is relevant. In suits of damages where the character of the plaintiff has no bearing on the amount of damages, it is not relevant. A while driving his car on the road, runs over B and breaks his knee. B files a suit against A for damages. In this suit character of B cannot be taken into consideration in assessing the amount of the damages and so his character is not relevant. The Explanation of the section defines character. It states that the word 'character' used in Sections 52, 53, 54 and 55 includes both reputation and disposition. The Explanation also lays down that evidence may be given only of general character and not of particular acts by which the character is shown. Relevance of Character (Sections 52 to 55 ).—The general rule about the admissibility of character is that from a party's character his liability cannot be presumed. In civil cases a party's character as an evidentiary fact is totally excluded (Section 52). Evidence of character can be given in civil action only when the suit is for damages and not in all the damages suits but only in those cases in which the amount of damages depends on the character of the party (Section 55). Good character of an accused person as an evidence is admissible as from this his innocence or guilt may be inferred (Section 53). Bad character of an accused is not admissible generally. But: (1) When evidence of good character has been adduced by the accused, the evidence of bad character can be given by the prosecution : (2) Evidence of bad character of a party may be in issue in a criminal case as in a proceeding under Section 110, Cr. P.C.; the character in such cases is also relevant. (3) When previous conviction is relevant at the trial bad character is admissible (Section 54). The word 'character' in Sections 52, 53, 54 and 55 includes both reputation and disposition. It is also to be noted that while proving character, evidence may be given of general repute and general disposition and not of particular acts by which the reputation is to be shown.

Page 324

PART II ON PROOF In Part I of the Evidence Act (from sections 5 to 55) it has been dealt with as to what facts may, and what facts may not be proved in civil or criminal cases. After ascertaining that question, the framers of the Act now propose in this Part of the Act to deal with the question as to what sort of evidence must be given about the facts which may be proved, or in other words this part deals with the manner in which a fact in issue or relevant fact may be proved. In a proceeding the court in order to decide a point in controversy has to take some evidence. What sort of evidence i.e., what facts a party may be allowed to prove in a particular case or proceeding has been given in sections 5 to 55. Now sections 56 to 99 deal with the method of proving those facts which are allowed to be proved by the preceding Chapter. To be clear, sections 5 to 55 give a sort of list as to what kind of facts may be proved in case or proceeding. Sections 56 to 99 give the method as to how those facts may be proved. Let us take examples. A files a criminal case against B alleging that he (B) assaulted him (A). B denies the allegation. Before the court, the question to be decided is whether A was assaulted by B. Now in this case the fact that B assaulted A may be proved. This is the work of sections 5 to 55. How this fact will be proved is the question. The person before whom A was assaulted by B may be produced to prove the fact that A was assaulted by B and this method of proving the fact of A being assaulted by B is the province of section 60. Again A files a suit against B for recovery of Rs. 600 on the allegation that B borrowed Rs. 600 from him on the basis of a pronote. At the trial B denies the allegation. In this case the point at issue would be whether B borrowed Rs. 600 from A. A will be allowed to prove that B borrowed Rs. 600 from him. Now how that fact is to be proved is to be decided by Part II. Thus we see that the preceding Chapter decide the question as to what sort of facts may be proved and what not. When a party to proceeding wants to prove certain facts in a case the court is to see whether those facts are relevant or not and that point is to be decided according to sections 5 to 55, and when it has been decided that a certain fact may be proved then again it is to be seen as to what shall be the method of its proof. Suppose A files a suit against B for the possession of certain plots on the allegation that B executed a sale in his favour for Rs. 1,000 on the 10th October, 1951, in respect of those plots. B denies having executed any sale-deed in favour of A. In the suit the question at issue is whether the plots in suit were sold by B to A. Now A will be allowed to prove the fact of a saledeed being executed by B for Rs 1,000 in his favour on 10th October, 1951. This is done according to the rules laid down under sections 5 to 55. This being decided the part to be played by Part II comes in. The court will allow A to bring evidence about this sale. It is

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ON PROOF

to be decided what sort of fact A may prove that is to say the method of proof adopted by A is the question. (1) A may produce certain persons to say that a sale-deed was executed by B in favour of A for Rs. 1000; or (2) He may get a certified copy of the sale-deed from the Registration Department and file it; or (3) He may file the original sale-deed executed in his favour by B. Sections 61 to 65 lay down the rules about the method of proving the contents of such deeds. They lay down that the contents of the sale-deed must be proved by original sale-deed and if the original sale-deed is lost or destroyed its copy or oral evidence about its execution may be given. Thus in the above example A cannot produce a copy of the sale-deed nor can he produce witnesses to depose that the sale-deed was executed by B in their presence in favour of A before it is provided that the original sale-deed has been lost or destroyed. While studying this Chapter we should always have in our mind that this chapter deals only with the method of the proof of a fact which is allowed to be proved by the preceding Chapter. Some facts need not be proved because court will take judicial notice of them if they are relevant to the issue. There are some facts which are so notorious and well known that they require no proof. If it becomes relevant in a case to know as to who is the President of India or the Chief Minister of U.P. a party need not adduce any evidence to that effect. Again if it is a question at issue as to what is the distance between Banaras and Allahabad a party need not prove it. The court may take a judicial notice of these facts. But where a fact requires proof it can be proved either by oral or documentary evidence. According to different methods of proof Part II of Evidence Act has been divided in 4 Chapters. Chapter III (sections 55 to 58) deals with facts which need not be proved ; Chapter IV (sections 59 to 60) deals with oral evidence ; Chapter V (sections 61 to 90) deals with documentary evidence and Chapter VI (sections 91 to 100) deals with the cases in which documentary evidence excludes oral evidence.

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CHAPTER III FACTS WHICH NEED NOT BE PROVED

SECTION 56.—Fact judicially noticeable need not be proved.—No fact of which the court will take judicial notice need to be proved. SECTION 57.—Facts of which court must take judicial notice.—The court shall take judicial notice of the following facts : (1) All laws in force in the territory of India; (2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed; (3) Articles of War for the Indian Army, Navy or Air Force ; (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any laws for the time being in force in a Province or in the States; (5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland; (6) All seals of which English Courts take judicial notice ; the seals of all courts in India and of all courts out of India established by the authority of the Central Government or the Crown representative, the seals of Courts of Admiralty and Maritime jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India; (7) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any official Gazette ; (8) The existence, title, and national flag of every State or Sovereign recognised by the Government of India; (9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette ; (10) The territories under the dominion of the Government of India ; (11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons; (12) The names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers

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S. 57]

FACTS WHICH NEED NOT BE PROVED

acting in execution of its process, and of or all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it. (13) The rule of the road on land or at sea. In all these cases, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. COMMENTS Scope.—In order to understand the correct meaning of sections 56 and 57 they should be taken together. Section 56 lays down that when a fact, which is relevant in a case, is of such a nature that the court must take judicial notice of it, no evidence in proof of it should be given. The Supreme Court has held that the Court can take judicial notice of alternative sources.1 The Court can take judicial cognizance of the fact that a certain area is terrorist stricken.2 Section 57 gives a list of facts of which the courts must take judicial notice of. Thus both the sections taken together mean that when controversy arises with regard to the facts enumerated in section 57, the parties who assert their existence, need not produce any evidence to prove the existence of such fact. The judge shall try to know about such facts and if the judge's own knowledge will not help him, he can call upon the parties to assist him. The Judge may resort to any source of information which he finds handy and which he thinks will help him. Thus he might consult any book, or obtain information from any person. Judicial notice can be taken of a notification issued by the Government or any competent authority in the exercise of any delegated power of legislation. Judicial notice cannot, however, be taken of a notification issued by any authority in the exercise of its executive functions.3 No judicial notice can be taken of facts which are not mentioned in section 57. The court cannot take judicial notice of the fact that a report has been sent under section 157 Cr. P.C.4 The sanction for prosecution being on the file, judicial notice of it may be taken without any proof under clause (7).5 The court can take judicial notice of the fact that many blind persons have achieved academic distinctions.6 The judicial notice of a fact can be taken that in a particular State the Government is of one particular party and in other particular State the Government is running by two political parties.7

________________ 1. 2. 3. 4. 5. 6. 7.

Assistant Collector Central Excise v. Dunlop India Ltd., AIR 1985 SC 330. Abdul Malik o. State of U.P., AIR 1994 All. 376. State v. Gopal Singh, AIR 1956 MB 138 (FB). Bir Singh v. State of U.P., AIR 1978 SC 55. Dhanpal v. State, AIR 1960 All. 40. Jai Shanker Prasad v. State of Bihar, AIR 1993 Pat. 22. Tamil Nadu Cauverv Nerppasanna v. Union of India, AIR 1990 SC 1316.

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In Stall of Travancore Tiruppa Brand v. K. Vinay Chandran and others,8 it was held by the Kerala High Court that all notifications of a legislature are equivalent to law. The notification in question is proviso of Section 34 and the court is bound to take judicial notice of this fact under Section 57 of Evidence Act. In the absence of any evidence, the Court can take judicial notice of the practice that sale deeds are generally under-valued.9 In State of M.P. v. Dhirendra Singh,10 it was held by the Supreme Court that judicial notice can be taken of fact that many a time prescribed registers are not available and so they are kept in non-prescribed way. Many a time, even a case diary is not kept in prescribed way. In Guru Baswa v. Iswara,11 it was held by Karnataka (Mysore) High Court that judicial notice about custom cannot be relied upon without much evidence. In District Bar Association, Kurukshetra v. State of Haryana,12 the Punjab and Haryana High Court held that in case of creation of new district, the court may take judicial notice of the fact that judicial complex was not constructed and the inconvenience was being caused to public. In Bharat Kumar K. Palien and others v. State of Kerala,13 the Kerala High Court held that in case of calling and holding of bandh by political party or organisation, the court can take judicial notice of what actually happens when bandh is called out. In Nityanand Sharma v. State of Bihar,14 the Supreme Court held that the community of Lohar was wrongly included as Scheduled Tribe in Hindi translation; the court should take judicial notice of Parliament and interpret the Schedule in the light of English version being an authorised text of the Act and Second Schedule. In Debashish Kar Gupta v. State of West Bengal,15 it was held by Calcutta High Court that the High Court can take judicial notice of the fact that the State Government alone cannot make effective measures for imparting education to children of the country. It has been held by the Supreme Court that transactions in relation to stock exchange are regulated by statute and statutory rules. Transaction of purchase and sale of shares is matter of confidence and hence not disputed. Courts can therefore take judicial notice of this fact.16 Under Clause (10) judicial notice can be taken of the fact that the local areas which now constitute a particular State or part of a State or Union of

________________ 8. 9. 10. 11. 12. 13. 14. 15. 16.

AIR 1989 Ker. 302. Tata Chemicals Ltd. Bombay v, Sadhu Singh, AIR 1994 All. 66. AIR 1997 SC 318. AIR 1997 Kar. 87. AIR 1997 P&H. 231. AIR 1997 Ker. 291. AIR 1996 SC 2306. AIR 1999 Cal. 300. M.S. Narayanan Menon v. State of Kerala, AIR 2006 SC 3366.

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India today, prior to independence they were different independent States of different dimensions and the local conditions and the needs of the people inhabiting those areas considerably varied.17 The Court can take judicial notice of custom in terms of Section 57. If the custom has been repeatedly reorganized by the Courts, the same need not be proved.18 SECTION 58.—Facts admitted need not be proved.—No fact need be proved in any proceeding which parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings : Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. COMMENTS Principle.—-Section 58 lays down that if the parties to a proceeding or their agents agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, or which by any rule of pleading in force they are deemed to have admitted by their pleadings, it need not be proved by the opposite party. A sends a notice to B in writing that B is a tenant in his house on a rent of Rs. 8 per month, that he had not paid the rent for 6 months and so he should pay the rent and vacate the house. B sends a notice in reply that he is tenant of B but has paid the rent up to date. Afterwards A files a suit against B for ejectment and for arrears of rent, B denies the contract of tenancy between the parties. Here B has admitted the fact of tenancy in writing before the hearing and so A may rely only on that notice and need not adduce any other evidence to prove the contract of tenancy. A files a suit against B for Rs. 1,000 on the basis of pronote. B admits to have borrowed the debt but pleads the payment of debt. In this case A need not prove the execution of the pronote as that has been admitted by B on the hearing. As we have seen above the party to a proceeding may either before the proceeding begins or at the proceeding may clearly admit the claim of the opposite party need not adduce any evidence to prove that fact. There is an admission by conduct given by Order 8, C.P.C. According to that Order if while filing the written statement the defendant does not specifically deny the allegations in the plaint, he should be deemed to have admitted that allegation in that plaint, and the plaintiff need not adduce any evidence in that fact according to section 58. Let us take an example. A files a suit against B for the recovery of certain property. He gives a pedigree on the foot of his plaint alleging that he and the last male holder X descend from the same common ancestor and that B has no interest in the plots in dispute. A files a written statement contending that he is X's sister's son. Nowhere in his written statement he specifically alleges that A is not from the

________________ 17.

Municipal Board of Abu Road v. Jai Shiva, A.I.R. 1988 S.C. 388.

18.

Magan v. State of M.P., AIR 2007 SC 2317 at p. 374.

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family of the last male holder. Now according to Order 8, B shall be presumed to have admitted the pedigree given by A, and so he need not adduce any evidence to prove that he and the last male holder come down from the same ancester. Criminal cases.—In a civil case there is no doubt that the party or his pleader may at any time relieve his adversary from the necessity of proof. It has been suggested that the section applies to civil suits only. Though it is not in terms so strictly limited the suggestion receives support from the phraseology employed which is more suitable to civil than to criminal proceedings. In criminal cases the rules of evidence are subject to the general principles of jurisprudence that it is the duty of the prosecution to prove the case against the accused and that they should not rely upon admissions made by him in the course of the trial for convicting him.19 It is a well-established principle of Criminal Law that the prisoner can consent to nothing.20 It is an elementary rule that except by a plea of guilty admissions dispensing with proof are not permitted in a criminal trial. No consent or admission by the prisoner to his counsel can dispense with proof.21 Once the fact was admitted by the workmen that they worked under contractors, they cannot be allowed to change their stand.22

__________________ 19. Annavi Mutherayyar v. Emperor, AIR 1916 Mad. 851. 20. K.K. Umar Haji, in re, AIR 1933 Mad. 32 ; Au Mu v. Emperor, AIR 1924 Lah. 104. 21. Ramgapa Govindam v. Emperor, AIR 1926 Mad. 426. 22. Steel Authority of India Ltd. v. Union of India, AIR 2006 SC 3229

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CHAPTER IV OF ORAL EVIDENCE ECTION 59.—Proof of facts by oral evidence.—All facts, except the 1 [contents of documents or electronic records] contents of documents, may be proved by oral evidence. COMMENTS In the previous Chapter we have dealt with facts for the proof of which no evidence is to be adduced. Now in present Chapter and the Chapter following, we will deal with the manner of adducing evidence to prove facts which are to be proved. Chapter IV lays down as to how a fact may be proved by oral evidence. Oral evidence.—Oral evidence is the evidence which is confined to words spoken by mouth. Oral evidence, if worthy of credit, is sufficient without documentary evidence to prove a fact or title. Where a fact may be proved by oral evidence it is not necessary that the statement of the witness should be oral. Any method of communicating thought which the circumstances of the case or the physical condition of the witness demand may, in the discretion of the Court, be employed. Thus a deaf may testify by signs or by writing. Proof of fact by oral evidence.—All facts except the contents of documents may be proved by oral evidence. This section lays down that where written documents exists, they shall be produced as being the best evidence of their own contents and no oral evidence can be adduced to prove as to what is wrong in the document. A and B enter into a contract that B shall be supplying 20 maunds of wool to A every month. This contract was reduced into writing. If controversy arises between the parties about the terms of the contract it can be proved only by the document. Oral evidence will not be allowed. The document must be produced before the court. Distinction between 'Relevancy' and 'admissibility'.—The rules of leading evidence may be classified under three heads, (1) the first dealing with the probative value of specific facts, (2) the second including artificial rules which do not profess to define probative value but yet aim at increasing or safeguarding it, and (3) the third covering all those rules which rest on extrinsic policies irrespective of probative value. The first group of rules attempts to define for legal purposes, the probative value which suffices to entitle, a fact to be regarded as evidential. Here the law is concerned with the rules of logic and inference as applied in practical experience, i.e., with relevancy. The second group of rules, lays down auxiliary test and safeguard, usually for particular kinds of facts, over and above the required minimum probative value. The hearsay rule, the rules of quantity, the rules of oath and a

__________________ 1.

Subs, by the Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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dozen others, belong to this group. These two groups together are rules of probative policy. The third group of rules invokes, for exclusion of certain kinds of facts on extrinsic policies which override the policy of ascertaining the truth by all available means. These rules concede that the evidence in question has all the probative value that can be required and yet exclude it because its admission would injure some other cause more than it would help the cause of truth and because the avoidance of that injury is considered of more consequence than the possible harm to the cause of truth. Most of these rules consist in giving certain kind of person an option i.e., a privilege to withhold the evidential fact. This third group as contrasted with the first and second, represents the rules of extrinsic policy." Wigmore. Relevant means according to English jurists, that which is logical probative. Admissibility is not based on logic but on law and strict rules. Many facts having no bearing on the facts to be proved are admissible. The proof of loss of original deed has no effect upon the decision of the issue but this is admissible in evidence before secondary evidence about the contents of a relevant document may be given. In the Indian Evidence Act the question of relevancy has been dealt with under sections 5 to 55 and that of admissibility under Sec. 56 onwards. The rules of relevancy declares a certain fact relevant, rules of admissibility lays down as to whether a certain form of evidence about a relevant fact may be allowed or excluded. This exclusion may be due to some auxiliary list or due to some extrinsic policy. The secondary evidence of the contents of a document is not admissible till the loss of the original is proved. The hearsay evidence of a relevant fact is not allowed. The privileges given under sections 121 to 127 are the examples of exclusion of evidence on extrinsic policy. In a judicial proceeding the courts have to give decisions about the existence or nonexistence of a right or liability to reach at the conclusion they need materials. What is material (fact) which may be produced before a court is the first question because if there is no limitation and restriction the introduction of irrelevant facts will waste the time of the court and will also hamper justice. Therefore the first thing in the rules of the evidence is the point of relevancy. Relevancy means what facts may be brought before court i.e., may be proved. The facts that are allowed to be proved under the Evidence Act are called relevant facts. Thus under the Evidence Act the terms "relevant" and "the facts that may be proved" are synonyms. And the term "irrelevant" is a synonym of the term "the fact that shall not be proved." In Indian Evidence Act instead of giving a definition of a relevant fact it is said that facts declared relevant under the Chapter of relevancy are relevant facts. The sections in the Chapter of relevancy make it clear that by "relevancy" is meant the rules allowing a fact to be proved or disallowing the proof of a certain fact. In the Chapter of relevancy some sections say that such and such fact is relevant, Sees. 6, 7, 8, 9,

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10, 11, etc., some sections lay down that certain facts are irrelevant; sections 52, 54; certain sections mention that a certain set of fact shall not be proved (Sees. 25, 26); then some sections lay down that some facts may be proved (Sec. 27). Thus it is clear that according to the Indian Evidence Act relevant fact means that fact which may be allowed to be proved under some of the sections from 6 to 55 of the Act, and relevancy means the rules of allowing or disallowing the facts tried to be proved. As seen above the Chapter of relevancy determines as to what facts may be proved in a judicial proceeding by a party. That having been decided the question arises as to what would be the means and the method of proving those facts. 'A' sues 'B' for possession of a house on the basis of a sale deed for Rs. 1000/- executed by 'A' in his favour. 'B' denies 'A's' claim. At the trial 'A' seeks to prove the fact that he took sale of the house from 'B'. The fact that 'B' executed a sale deed in favour of 'A' is not only a relevant fact but is a fact in issue and must be allowed by the court to be proved. But the question is what shall be the means and, the method of the proving of that fact of sale. Will 'A' be allowed to lead oral evidence to the effect that 'B' executed a sale deed for Rs. 1000/- in respect of the house in his favour. The answer is 'no'. Section 59 allows oral evidence of fact except the contents of a document. Section 91 of the Evidence Act lays down that when the terms of a contract or of a grant or of other disposition of property have been reduced to the form of a document no other evidence except the document itself is admissible. Thus the admissibility means, the rules of method of proof, rules of exclusion of certain type of evidence, the rules of giving privilege to certain persons to deny the production of certain evidence. Relevancy and admissibility are not the same thing. "Strictly speaking admissibility is a quality standing between relevancy or probative value on one hand and proof or weight of evidence on the other hand." Sections 6 to 55 give the definition rather a list of relevant facts. Part II, Sees. 56 to 100 is devoted to the means of proof. This Chapter lays down auxiliary test for deciding as to whether a particular kind of evidence would be allowed to be adduced to prove a relevant fact. To be clear this Chapter makes provisions as how relevant fact may be proved. This is a Chapter dealing with admissibility. SECTION 60.—Oral evidence must be direct.—Oral evidence must, in all cases whatever, be direct, that is to say— if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

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if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable : Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. COMMENTS Scope.—Section 60 lays down that oral evidence must be direct. By direct it is meant that (1) if evidence is to be led about a fact which can be heard, a witness must be produced who says that he heard it; (2) if the evidence is to be led about the fact which can be seen the witness produced must say that he himself saw it ; (3) if the evidence is to be given about a fact which can be perceived by any other sense or in any other manner the witness produced must say that he perceived it himself by that sense or in that manner; and (4) if the evidence is to be given about an opinion or as to the-ground on which opinion is to be held the witness produced must say that he holds that opinion and on those grounds. The provisions of law laid down by this section will be clear by taking examples. A files a suit against B for defamation. The allegations in the plaint are that B said that A had committed burglary in Calcutta. In this case the witnesses who may come for A must say that B said in their presence that A committed theft and they heard it. A witness who wishes to depose that B said those defamatory words before C and then C told him about that, will not be allowed to say so because here the evidence will not be direct. This witness derives knowledge from C and his evidence is forbidden by this section. Examples (i) A files a complaint against B alleging that B belaboured him with lathis, C and D are produced as witnesses. C says that he was present when the occurrence took place and B gave four lathi blows to A in his presence and he saw it. He will be allowed to say so. D tries to depose that when B assaulted A he was neither present there nor could he see the occurrence but he was told about the occurrence by C, D will not be allowed to say so because he himself did not see the occurrence and this evidence will not be direct. (ii) In a suit there is an issue whether a letter has been written by B, X, an expert of handwriting compares a genuine writing of B with the letter in question and gives his opinion that both are identical. Another expert cannot be allowed to say that in opinion of-X the writings are identical.

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According to section 60 only a direct evidence of a fact which can be perceived by senses can be given. To be technical it may be said that hearsay evidence is not admissible. Hearsay.—The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say ; sometimes it means whatever a person declares on information given by someone else—Stephen. The term 'hearsay' is used with reference to that which is written as well as that which is spoken, and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the competency of some other person. In the above mentioned example when the witness says that he himself did not hear the defamatory words but another person told him about it, the credit for hearing the statement does not go to the witness but to somebody else. Similarly, when the witness says that he did not see the occurrence himself but somebody told him, the credit of seeing the occurrence does not go to witness but it goes to somebody else. Hearsay evidence is that evidence which comes indirectly that is to say which comes not from the knowledge of the person who deposes it but through some other person. The evidence of a statement made to a person who himself is not called as a witness may or may not be hearsay. It is 'hearsay' and inadmissible when the object of the evidence to establish the truth of what is contained in the statement by examining some other person. It is not 'hearsay' and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that the statement was made. The fact that the statement was made is quite different from the fact that the statement was made. The fact that a statement was made, apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence the statement was made.2 The accused was a cashier in the State Bank of India. One Kausal withdrew Rs. 500 from his savings bank account. When he came to take back his pass book he noticed that Rs. 1500 have been debited from his account. He orally complained in presence of many persons that he submitted a withdrawal form of Rs. 500 only to the accused and not of Rs. 1500/. In inquiry the accused confessed that he had made Rs. 1500 for Rs. 500, the entries were found to be altered. The fact that Kausal had made an oral complaint that Rs. 1000 were wrongly debited to his account was proved by other evidence as Kausal was not examined. It was held that the evidence was not hit by the rule of 'hearsay.'3 The reason of being discarded.—'Hearsay evidence', as thus described, is uniformally held incompetent to establish any specific fact which, in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. That this species of testimony supposes something better, which might be adduced in the particular case, is not the sole ground of

__________________ 2.

J.D. Jain v. Management, State Bank of India, AIR 1982 SC 673.

3.

J.D. Jain v. Management, State Bank of India, AIR 1982 SC 673.

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its exclusion. Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule that hearsay evidence is totally inadmissible. The principle of this rule is, that such evidence requires credit to be given to statement made by a person who is not subject to ordinary test enjoined by the law for ascertaining the correctness and completeness of his testimony, namely, that oral testimony should be delivered in the presence of the court or a magistrate, under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motives and the demeanour of the witness can be examined, and his capacity and opportunities for observation, and his memory, can be tested by a cross-examination. Such evidence, moreover as to oral declarations, is very liable to be fallacious and its value is, therefore, greatly lessened by the probability that the declaration was imperfectly heard, or was misunderstood, or is not accurately remembered or has been perverted. It is also to be observed that the persons communicating such evidence are not exposed to the danger of a prosecution for perjury, in which something more than the testimony of one witness is necessary, in order to result in conviction." In addition to these defects there are other faults in a hearsay evidence. "The greatly increased expense and the vexation which the adverse party must incur in order to rebut or explain it, the vast consumption of public time thereby occasioned, the multiplication of the collateral issue for decision by the jury and, the danger of losing sight of the main question and of the justice of the case if this sort of proof were admitted, are considerations of too grave a character to be overlooked by the court or the legislature, determining the question of changing the rule." In the abovementioned example of suit for defamation if a witness is allowed to say that B defamed A in presence of C and C told him about it the following consequences would follow : 1. C might have told lies to the witness. 2. The witness and not C will be given oath. 3. The witness will be put to cross-examination and he can avoid questions only by saying that he was not present when B defamed A. 4. C will not be put to cross-examination. 5. If the witness is tried for perjury it will be very vexatious and lengthy process because first it is to be proved that C did not tell those words to the witness and again that B did not utter those words in presence of C. For all these reasons it has been laid down that hearsay evidence is not admissible. Exceptions to the rule of hearsay.—The correct rule as to hearsay therefore is that, statement, oral or written reported to have been made by persons not called as witnesses are not admissible in evidence subject to certain exceptions. These exceptions are to be found in sections 17 to 39, (1) Admissions, and (2) confessions are exceptions to the hearsay rule. So are (3) certain statements, made by persons dead or who cannot be called as witnesses which include dying declarations, statements made in due course of business, statements against interest, statements giving opinion as to public right or

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custom, statements relating to pedigree (section 32); (4) previous deposition of a witness who is dead or cannot be called as a witness (section 33) ; (5) entries in books of account kept in the course of business (section 34) ; entries in public registers or record (section 35); maps and charts, etc. Direct and circumstantial evidence distinguished.—An evidence is direct if, to act upon it, the court has to rely upon only the witness, whereas it is hearsay, if it has to rely upon not only the witness but some other person also. Where in prosecution under section 42 read with section 123 Motor Vehicles Act for not issuing tickets to the passengers, the head constable deposed when they demanded tickets, they were informed by the passengers that none had been issued to them, the evidence was held to be hearsay.4 Hearsay and circumstantial evidence.—A circumstantial evidence though not a direct evidence of the facts of issue or relevant fact, cannot be said identical with hearsay evidence. A is charged with murder of B. C says that he saw A killing B. This is direct evidence. H says that Y told him that A killed B. It is hearsay evidence. H says that he saw A coming out of the room, where B's body, was found, with a blood-stained knife. This is a circumstantial evidence. Circumstantial evidence must be proved by direct evidence and not hearsay evidence. Evidence of a living person.—In the case of living person his evidence in judicial proceeding must be recorded by calling the person to the witness box. It cannot be substituted by affidavit except in special provisions permit it.5 The rule of best evidence.—It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. The provisions of sections 60, 64 and 91 are based on this rule. Under section 60 oral evidence must be direct, that is to say if the fact to be proved is a fact which can be seen it must be proved by the evidence of a witness who says that he saw it, if it could be heard, it must be proved by the person who heard himself, if it could be perceived by any other sense the person who perceived it must be examined and if the fact to be proved is an opinion or the grounds on which the opinion is based the person who holds that opinion must be examined. Section 64 lays down that documents must be proved by the primary evidence except where secondary evidence is allowed by the Act. Section 91 lays down that when the terms of a contract, grant or any other disposition of property have been reduced to the form of writing and in all cases in which a matter is required by law to be reduced to the form of writing, no proof of them can be given except the document itself, except the secondary evidence when it was permissible by the law. In Mukhtiar Singh v. State of Punjab,6 which was a murder case, the witness stated that he saw the accused persons running towards the village carrying weapon. He chased two of them to a certain distance but he did not see

_________________ 4. 5. 6.

Jagroop v. Rex, AIR 1952 Alld. 276. Munir Ahmad v. State of Rajasthan, A.I.R. 1989 S.C. 705. AIR 2009 SC 1855 at p. 1858.

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the occurrence of attack as it happened when he chased two accused persons but when he came immediately thereafter he learnt from eye-witnesses that the accused persons attacked the deceased and he informed the police, his evidence although hearsay was admissible for corroborating substantive evidence of eye-witnesses as evidence of such nature could be used to corroborate substantive evidence.7 Distinction between Direct Evidence and Hearsay Evidence Direct Evidence Hearsay Evidence 1. Direct evidence is that which the witness is giving on basis of his own perception. 2. Direct evidence is best oral evidence of the fact to be proved. 3. The liability of veracity of direct evidence is on person who is giving its evidence. 4. The person giving direct evidence is available for cross examination for testing its veracity. 5. The source of direct evidence is the person who is present in court and giving evidence.

1. 2. 3.

4.

5.

Hearsay evidence is that which has been derived by other person. Hearsay evidence is secondary one and it is admitted in exceptional cases. In case of hearsay evidence the person giving evidence does not take the responsibility of its veracity. The person giving hearsay evidence is not author of original evidence. It is derived from original author. In case of hearsay evidence the person giving hearsay evidence is not original source of evidence given by him.

_________________ 7. Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 relied on.

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SECTION 61.—Proof of contents of documents.—The contents of documents may be proved either by primary or by secondary evidence. COMMENTS Documentary evidence.—The word 'document' has been defined in section 3 of the Evidence Act. Document means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter. The most common document with which we have to deal is a document which is described by letters. Generally we have to deal with things written in some language like Hindi, Urdu and English etc. Under the following sections we have to see as to when there is a document the contents of which is material for the decision of a case how those contents are brought before the court. The subject of documentary evidence can be for purpose of intelligible reading, divided into three parts: 1. How the contents of a document are to be proved ? (Sections 61 to 66). 2. How the document is to be proved to be genuine ? (Sections 67 to 90). 3. How far and in what cases the oral evidence is excluded by documentary evidence ? (Sections 91 to 109). The contents of documents must be proved either by primary or secondary evidence. It means that there is no other method allowed by law for proving the contents of documents. An ex-parte affidavit without affording an opportunity to the other party to test the veracity of its contents by cross-examination, cannot be a proof of its contents.1 SECTION 62.-—Primary evidence.—Primary evidence means the documents itself produced for the inspection of the court. Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document: Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all of copies or a common original, they are not primary evidence of the contents of the original.

_________________ 1.

Kripa Shankar v. Gurudas, AIR 1995 SC 2152.

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EVIDENCE ACT ILLUSTRATION

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

COMMENTS Primary evidence.—Primary evidence means the (original) document itself produced for the inspection of the court. Where a judgment originally written in English was translated into Urdu and the judge signed the translation. It was held that it was a primary evidence of its contents.2 If accounts be merely memoranda and rough books from which regular accountbooks are prepared the former can hardly be said to be primary evidence. Explanation.—The first portion of the first explanation of the section refers to what are known as duplicate, triplicate or the like original. Sometimes it is convenient that each party to transaction should have a complete document in his possession. To fulfil this purpose, the document is written as many times as there are parties and each document is signed by all the parties. All of them are originals. SECTION 63.—Secondary evidence.—Secondary evidence means and includes— (1) Certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it. ILLUSTRATIONS (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

_________________

2. Jai Gopal v. Sheo Sagar, 8 I.C. 579.

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(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. COMMENTS Primary evidence.—Primary evidence is that which is called as the best evidence, or that kind of proof which under any possible circumstances, affords the greatest certainty of the fact in question; and it is illustrated by the case of a written document, the instrument itself being always regarded as the primary or best possible evidence of its existence and contents. The primary evidence means the document itself produced for the inspection of the court. A executes a sale-deed in favour of B for Rs. 1,000. B files a suit for the possession of the property on the basis of the sale-deed mentioned above. A denies to have executed the sale-deed. B produces the very sale-deed before the court. This is the best evidence and so is the primary evidence of the contents of the document. All evidence falling short of this in its degree is termed secondary. The primary evidence is that evidence which is produced in the court there remains nothing better to be produced. Evidence which carries, on its face; no indication that better remains behind, is primary. In the example given above if instead of producing the very sale-deed its copy is produced or somebody, who has read it, makes oral statement about its contents there may always be some possibility of something being omitted or wrongly described. Documents in several parts.—There are three persons A, B and C. They partition their property in three equal shares. Partition deed is to be executed and registered. All of them want to have one document with them. Now three deeds each describing the distinct shares of the partners will be prepared and signed by all and each one of them. All the three deeds will be original. Documents in counterparts.—Part 2 of Explanation 1 to section 62 lays down that where a document is executed in counterparts and each counterpart is executed by one of the parties to the deed, each counterpart is a primary evidence against the party executing it and secondary against the other party. A common instance of a document in parts is a Patta and Qabuliat or Muchilka. In this case one party sublets land to the other. The person granting the lease executes a deed stating the terms of the lease called Patta. The person accepting the lease executes a deed called Qabuliat accepting all the terms of the Patta. In this case the patta is primary evidence as against the lessor because he executes it and the Qabuliat is primary evidence against the lessee. Document made by uniform process.—Explanation 2 to section 62 lays down that when a number of documents are prepared by one uniform process such as printing or photography each is primary evidence of the contents of other but where they are all copies of a common original they are not primary evidence of the contents of the original. A person is shown to have been in possession of a number of placards printed at one time. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

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Let us take another example, A files a suit against B for defamation alleging that B published a defamatory statement against him in a newspaper through which a defamatory matter was published to about 2,000 persons. Now in this case A need not prove the contents of all the newspapers. He may prove one copy of newspaper and that document will be the original in respect of the contents of the other newspapers. But when the question arises whether the document on the basis of which the news was published in the paper was written by B the contents of that original document is to be proved. The newspapers, which have been prepared by machine will not be original evidence but will be only secondary evidence of the original document. In nutshell the things, prepared by an automatic process, such as, printing or photography, are primary evidence of the things prepared by such process but they are secondary evidence of the original. Section 62 is exhaustive of the kind of secondary evidence admissible under the Act. This secondary evidence may be one of the kinds mentioned below. In the case of Harendra Nath Burman v. Suprova Burman and others,3 a question arose as to admissibility of certificate of date of birth on basis of entry in the register of certain church. It was held by Calcutta High Court that such type of certificate could not be admissible as secondary evidence under Section 63 of Evidence Act. The court held assuming that entry in the Birth Register of that Parish Church even though not maintained under any statute, could go in evidence. What could go was the relevant entry or, at least a true copy of that entry and not the certificate to have been prepared by some one in 1984 on the basis of alleged entry in birth register. 1. Certified copies under the provision given in the Evidence Act.—Section 76 of the Evidence Act lays down that every public officer having custody of a public document shall give to a person, on demand of, and on payment of legal fees, a copy of it (public document). The public officer after preparing the copy from the original will affix a certificate at the foot of such copy that it is true copy of such document and will give the date of the copy. The name of the public officer in custody of paper will also be given on the copy. A seal of the office will be affixed to the copy. Accordingly if a copy of a public document with the above-mentioned certificate will be produced before a court it shall be admitted as a secondary evidence. In Harendra Nath Burman v. Suprova Burman and others,4 it was held by Calcutta High Court that the entries in the register of a church about date of birth should not be admitted as secondary evidence. In Kalyan Singh v. Smt. Chhoti and others,5 it was held by the Supreme Court that under Evidence Act five kinds of secondary evidences are mentioned. Sub-sections (1), (2) and (3) mention certified copies of a document. Clause (4)

_________________ 3. 4. 5.

AIR 1989 Cal. 120. AIR 1989 Cal. 120. AIR 1990 SC 396.

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refers to counter parts of documents. Sub-section (5) is concerned with the oral statement about the contents of document. Under sub-section (1) the certified copies of document under Section 79 of Evidence Act is presumed. But other copies should be proved by proper evidences. A certified copy of a sale deed can be presented as a secondary evidence in absence of original copy. But in this case the copy which is presented by the party is not certified copy. It is an ordinary copy. There is no evidence for the contents of original sale deed. The ordinary copy of sale deed cannot be secondary evidence. The court has right and duty to exclude this kind of evidence. Let us take an example. Example The question before the court is whether A is the owner of a certain plot situate in village Maharajgunj. A takes a copy of khatauni, jamabandi (register of records of tenancy) from the record room of Collectorate, with the certificate mentioned above. This copy will be a secondary evidence of the revenue records. 2. Copies made from the original by mechanical process.— According to this clause, (a) copies made from the original by mechanical process; (b) copies compared with such copies, are secondary evidence of original. The copies must be made from the original by such mechanical process as in themselves insure the accuracy of the copy such for example the printing, lithography or photography. Where the original report which was typed to dictation was lost and a copy of it, which was neither carbon copy nor a copy compared with the original, was produced. It was held that it was not secondary evidence of the original.6 ILLUSTRATIONS (a) must be read with the first portion of this clause and means that, if it can be shown that the original which is sought to be proved was really photographed or printed, such photograph or printed matter will be secondary evidence of the original. The negatives and photographic prints are secondary evidence.7 Under the second portion of this clause a copy of the copies prepared by mechanical process is admissible; (b) should be read with the second portion of the clause. The reason for the admission of a copy or copies of this kind is that the accuracy of the first copy being insured the mechanical process it is not necessary to compare it with the original. Photostat copy.—A photostat copy of a document is not admissible in evidence. Only certified copy is admissible.8 In case of a photo copy of a document before it is admitted in evidence it has to be explained as to what were the circumstances under which the photostat copy was preferred and who was in possession of the original

_________________ 6. 7. 8.

R. M. Pande v. Automobile Products of India, AIR 1956 Bom. 115. Shamsher Jang Bahadur v. Chartered Bank of India, AIR 1956 Cal. 399. Manorama v. Saroj, A.I.R. 1981 All. 17.

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document at the time its photograph was taken and that would be above suspicion.9 A photostat copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or by some other evidence.10 A photostat copy of a document can be permitted to be given in evidence as secondary evidence when it is proved that the original document was in possession of adversary.11 In Government of Andhra Pradesh v. Karri Chinna Venkata Reddy,12 two questions arose one being that if the additional documents could have been admitted in writ jurisdiction and second if reliance could be placed on them as they were only photostat copies and the High Court admitted the documents without recording any finding that the respondents made out a case for acceptance of secondary evidence. It was observed that the admission of additional documents by the High Court in writ jurisdiction was an exercise of discretion with which the court did not normally interfere. But the genuineness of documents was an aspect which went to the root of the matter. If the records had been tampered and fictitious documents were produced before the High Court then it certainly vitiated the finding. It was further held that in absence of any finding on it, probably having not been raised in the High Court yet being a fundamental question which if found to be correct would render the entire proceeding bad. Therefore, the case was remanded with a direction to decide the dispute afresh after examining the original record and recording the finding if the documents filed by the respondents were genuine or not. Photograph.—A photograph can be proved by examining the photographer and by proving the negative.13 3. Copies made from or compared with the original.—If a copy is prepared word to word from the original, it is secondary evidence of the original. In this case, even a copy of a document which is not a public document can be given in secondary evidence. The register of a doctor in which he enters the names of the patients and the treatment, is not a public document but its contents may be proved. A copy prepared from it and compared by it will be secondary evidence of its contents. A copy prepared by another copy but compared with the original is a secondary evidence. Copy of a copy.—-Generally speaking copy of a copy is not admissible as secondary evidence but the copies of a copy prepared by a mechanical process and copies of a copy compared with the original are secondary evidence. 4. Counterparts of documents.—The counterparts of a document are secondary evidence against the person who did not execute it. The best example of this would be a patta and a qabuliat. When a landholder leases his property to some tenant, there are two deeds prepared. The landlord executes a patta in

_________________ 9. 10. 11. 12. 13.

Ashok v. Madho Lal, AIR 1975 SC 1748. Subaran Banik v. State, AIR 1976 Ori. 236. Ashok v. Madho Lal, AIR 1975 SC 1748. AIR 1994 SC 591. State of Gujarat v. Bharat, 1991 Cr. L.J. 978.

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favour of the tenant writing therein that he is given on lease such and such land on such and such rental to the tenant. On the other hand, the tenant executes a deed of qabuliat in favour of the landlord written therein that he has taken the land from the landlord on such a rental. The deed executed by the landlord will be given to the tenant and vice versa. In this document the patta will be a secondary evidence when used against the tenant as it was not executed by him though against the landlord it will be a primary evidence because it was executed by him. Similarly, the qabuliat will be the secondary evidence against the zamindar as it was not executed by him but shall be primary evidence against the tenant because he executed it.14 5. Oral accounts of the contents of a document by some person who has seen it.—Sometimes it so happens that neither the original nor a certified copy of it is available. In such cases it is enough if somebody who has read the document is produced to relate the contents. Let us take an example, A executes a usufructuary mortgage in respect of some property in favour of B for Rs. 50. The mortgage deed is not registered. It is given to B. After about 50 years A files a suit for redemption against B. B denies to have taken any mortgage in respect of the property; rather he alleges himself to be the owner of it. In this case it is practically impossible for A either to produce the original or a copy of it before the court. He produces one X before the court who deposes as follows :— A took Rs. 50 from B, and mortgaged his land to him. A mortgage deed was executed in his presence, A signed it before him and one Y, and he himself attested the deed in presence of Y. He read the deed when if was executed. Now this statement is a secondary evidence of the contents of that usufructuary mortgage. Under this clause it is necessary that the person giving the oral account of the contents of document must have himself seen the original document. It is not enough if he saw a copy of the original, nor shall it suffice, if somebody else saw the original and he described it to the deponent. Where any report is based on information given by another person, non-examining the informant or non-production of report is fatal and no reliance can be placed on version of person and report.15 6. Tape recorded statement.—Tape recording can be legal evidence by way of corroborating the statements of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who may depose that he over-heard the conversation between the two persons and what they actually stated had been tape recorded.16 "Has seen".—The word 'seen' under this clause means read. Consequently a person who proposes to testify to the contents of a document must have read it. He may not describe its contents merely on the credit what another has told him, even though his informant purports to have read it aloud

_________________ 14. 15. 16.

Ma Mai v. Kallendar, AIR 1927 PC 15. Asa Ram v. M.C.D., AIR 1995 Del. 105. Pratap Singh v. State of Punjab, AIR 1964 SC 72.

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in his presence. Therefore oral account of one who has merely seen a document but is unable to read it is not secondary evidence.17 Distinction between Primary Evidence and Secondary Evidence Primary Evidence 1. Primary evidence is original document which is presented to the court for its inspection. 2. Primary evidence is the best evidence in all circumstances. 3. Giving primary evidence is general rule. 4. No notice is required before giving primary evidence. 5. The value of primary evidence is highest.

Secondary Evidence 1.

2.

3. 4. 5.

Secondary evidence is the document which is not original document but those documents which are mentioned in Section 68. Secondary evidence is not best evidence but is evidence of secondary nature and is admitted in exceptional circumstances mentioned in Section 63. Giving secondary evidence is exception to the general rule. Notice is required to be given before giving secondary evidence. The value of Secondary evidence is not as that of primary evidence.

SECTION 64.—Proof of documents by primary evidence.— Documents must be proved by primary evidence except in the cases hereinafter mentioned. COMMENT Section 64 lays down the best evidence rule with reference to documentary evidence. It says that the best evidence of the contents of the document is the document itself i.e., the original document. The contents of the document must be proved by production of original document i.e., primary evidence. If a party to an action does not object to a document being taken on record, he is estopped and precluded from questioning the admissibility at a latter stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined. The contents of it cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.18

_________________ 17. 18.

Ghure v. Chhatrappal, 12 ALJ 239; Ma Mai v. Kallendra, 25 ALJ 56 (PC); Mangi Lal v. Ram Dayal, AIR 1951 Ajmer 21; Dahu v. Tuharmal, AIR 1952 Raj. 91; Triambak v. Yadorao, AIR 1940 Nag. 116. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162 at p. 1179.

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SECTION 65.—Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases :— (a) when the original is shown or appears to be in the possession or power—of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. COMMENTS Scope.—Section 64 lays down that the contents of a document must be proved by producing the original in the court. The section also lays down that in

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the cases mentioned under section 65 a secondary evidence of the contents of the document may be given and the court in such cases cannot insist upon the original being brought before it. The condition laid down in the section must be fulfilled before a secondary evidence may be given.19 In other words, a secondary evidence of the contents of a document cannot be admitted without the non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in section 65.20 It must be borne in mind that this section is not intended to be utilised for the benefit of the persons who deliberately or with sinister motives refuse to produce in court a document which is in their possession, and control. It is meant for the protection of persons, who, in spite of best efforts : are unable, due to the circumstances beyond their control, to place before the court, the primary evidence.21 A writing is the best evidence of its own contents and must be produced before the court. The reasons are simple. They may be summed up as follows : as between a copy and the original the copy is always liable to errors on the part of the copyist, moreover the original will contain, the features of handwriting, paper and the like which may afford to the opponent an opportunity to see as to whether the deed is genuine or forged one. The contents of a document in general must be proved by filing the deed itself. But cases often occur when it is impossible for a party to produce the original. If in such cases the secondary evidence is not permissible grave injustice would be the result. Consequently secondary evidence of the contents of a document are allowed under section 65. Cases in which secondary evidence of document may be given.— According to section 65 the secondary evidence about the contents of a document is admissible under the following circumstances : (a) (i) Where the original is in possession of adversary Party.—The first case in which a secondary evidence of the contents of a document may be given is when the original is in possession or power of the person against whom it is sought to be provised.22 Where there was no possibility of documents being compared with originals as the originals were with another person, the documents could not be accepted as secondary evidence.23 In Gopal Krishna Jiwan Kumar v. Puran Singh,24 the document referring to payment by cheque was executed by defendant in favour of plaintiff. The 19. 20. 21. 22. 23. 24.

Anand Behari Lal v. Dinshaw & Co., AIR 1946 PC 24. Md. Zafar v. Zafar Husen, AIR 1926 Alld. 741; Sital Das v. Sant Ram, AIR 1954 SC 606. Hira Lal v. Ram Prasad, AIR 1946 Alld. 677. Manek Lal v. Hormasji, AIR 1950 SC 1. J. Yashoda v. K. Shobha Rani, AIR 2007 SC 1721 at pp. 1722,1723. AIR 1998 P & H 144.

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impugned document could be said to be in possession of the defendant. The plea of defendant was that the said document was in possession of income tax department. Since the best evidence which was very foundation of said document, was in possession of defendant, it was held by Punjab & Haryana High Court that grant of permission to plaintiff to lead secondary evidence in respect of it was proper. It should not be interfered with. However, the permission should stand subject to the condition that leave be granted to the plaintiff to summon witness from income tax department. In Nawab Singh v. Inderjit Singh Kaur,25 the tenant alleged that original rent note was in possession of landlord. The leave sought by tenant for production of copy of the rent note was rejected on the ground that said note sought to be produced was of doubtful veracity. It was held by the Supreme Court that rejection of application of tenant without affording the tenant an opportunity of adducing secondary evidence was unjustified. The section does not require that in all the cases it must be definitely proved that the document is in possession or power of the opposite party. It is sufficient if it is proved that it appears to be in his possession or power.26 (ii) When the original is in possession of a person out of reach or not subject to the process of the court.—Secondary evidence may also be given when the original is in possession or power of any person who is out of reach, or not subject to the process of the court. Where the original will is in possession of a person in French territory and he cannot be compelled by a court in Indian Union to produce it in a court in India the secondary evidence of the will becomes admissible under the second part of clause (a) of section 65.27 (iii) When the Original is in possession of a person legally bound to produce it.—The third case in which secondary evidence is admissible under this clause is where the original is shown or appears to be in possession or power of any person legally bound to produce it and after the notice mentioned in Section 66 (b) such person does not produce it. Interpretation of the words, "person legally bound to produce" raises difficulty. It is to be seen as to when will be a case of a "person legally bound to produce" and when will be a case of a person not legally bound to produce. In the first place it must be noticed that every person summoned to produce a document must, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of such objection is to be decided by the court. Documents demanded by courts may be divided in two classes (1) one of the document which a person is legally bound to produce in evidence on receiving a notice to produce. He cannot refuse the production of the document on the ground of privilege. (2) The second class of documents are those the production of which may be refused on the ground of privilege.

_________________ 25. 26. 27.

AIR 1999 SC 1668. Zaibunnissa v. Irshad Husen, AIR 1922 Oudh 504. Muni Ammalwal v. Govindrajan, AIR 1958 Mad 393.

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(1) Assuming the present clause to have reference to that class of documents only, which a person is not justified in refusing on the ground of privilege to produce, if that person does not produce it in evidence, that is either by not handing over the document, if it be in the court with him or by attending the court with the document, he being legally bound to produce it and its non-production being unjustifiable, secondary evidence will be admissible upon such non-production. (2) The question however arises whether the Act has made any provision, and if so what, for the giving of secondary evidence of documents which the person in possession is justified in refusing to produce. If for example, a person summoned to produce a document brings it to a court, but objects to its production in evidence on the ground of privilege, and the judge decides that the objection is a valid one, may allow a secondary evidence be given. The answer is that the secondary evidence may be given in such cases for everything, in his power to obtain the original has been done. The English Law.—Under English Law secondary evidence may be given of the contents of document when the original is shown or appears to be in the possession or power of a stranger not legally bound to produce it, and who refuses to produce it after being served with a subpoena duces tecum, or after having been sworn as a witness and asked for the document and having admitted that it is in court. Thus according to English Law the secondary evidence of the contents for the document in possession or power of a stranger is admissible only in two cases : (i) When the person is served and refuses to produce the original ; (ii) When he appears before the court and states on oath that the original has been filed in some other case. If the stranger disobeys, and does not refuse nor does he appear before the court, the secondary evidence of the contents of the documents, which he was summoned to produce, will not be admissible. Contrary to this in India, if the notice to produce the document is served upon the stranger and if he does not appear before the court the secondary evidence will be admissible. Again in England when a document is withheld not on the ground of privilege, but that of lien, secondary evidence is inadmissible. So if a solicitor refuses to produce a deed as he claims a lien upon it, secondary evidence of its contents cannot be received if the party tendering such evidence is the person liable to pay the solicitor's charges. A solicitor who had not acted for either of the party to a suit may be summoned on a subpoena duces tecum and compelled to produce documents on which he claims lien. Under Indian Law even if the original document is withheld on the ground of lien the secondary evidence is admissible. (b) Where the existence or contents of the original have been admitted.—In this clause when the existence or contents of the original deed has been proved to be admitted in writing by the person against whom it is

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sought to be proved or by his representative-in-interest, the original need not be summoned and the contents of a document may be proved by secondary evidence. The present clause provides that a written admission is admissible as proof of a document even though the original is in existence and might be produced but it is not done so. In such cases only the written admission may be proved, oral admission cannot be proved. In Iswar Das (dead) through L.R. v. Sohandas (dead) through L.R.,28 there was question of proof of execution of mortgage deed. The execution of mortgage deed was not specifically denied by the defendant. It was, therefore, not necessary to call attester into witness box. The defendant mortgagee refused to file original deed. Thereupon, the plaintiff filed certified copy as secondary evidence. It was sufficient proof of execution of mortgage deed. A petition presented to the Collector by a donor admitting and recognising a gift of his property in favour of his wife is the secondary evidence of the strongest character of the gift.29 But if the original deed is inadmissible for want of registration or want of requisite stamp, the written admission will not be admissible under this clause.30 It must be borne in mind that for the letting in evidence the written admission of the contents of a document, it is necessary that the admission must be of the person against whom it is sought to be proved or of his representative-in-interest.31 Where the defendant himself admitted the payment under the cheque, absence of cheque as primary evidence would not vitiate the suit.32 (c) When the original has been destroyed or lost or cannot be produced.—When the original has been destroyed or lost or when the party offering the evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, any secondary evidence of the contents of the document may be given. If the instrument is destroyed or lost, some evidence to the effect that the original once existed, might be adduced and then the destruction or loss may be proved. In Smt. Sobha Rani v. Ravi Kumar & others,33 the existence of document was proved from facts mentioned in plaint and reply of defendant order allowing plaintiff to lead secondary evidence proper. It must be borne in mind that the word 'lost' does not mean worm-eaten or torn original account books worm-eaten and in tottering condition. Secondary evidence is not admissible.34 In P.K. Gupta v. Varindar Sharma,35 perusal of clause (5) of Section 65 would show that secondary evidence of existence, condition or contents of document can also be adduced whom party offering evidence of its contexts

_________________ 28. 29. 30. 31. 32. 33. 34. 35.

AIR 2000 SC 428. Basir Uddin v. Himmat Ali, AIR 1915 Cal. 22. Lal Khan v. Allah Ditta, AIR 1950 Lah. 154; Janardan Kashinath v. Janardan Vishwanath, AIR 1927 Nag. 214. Hira Lal v. Ram Prasad, AIR 1949 All. 677. Sharada Talkies (Firm) v. Madhulata Vyas, AIR 1996 MP 68. AIR 1999 P&H 21. Amrita v. Sripali, AIR 1962 All. 11 AIR 2002 P.& H. 342.

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cannot produce the original in reasonable time that such a delay in production of the documents should not have arisen from the fault or neglect of the party who wish to adduce secondary evidence of the document. To succeed in getting the permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence. The rule regarding the secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of original and likewise to be tendered as secondary evidence. In Km. Chandan and Others v. Langa Bai and others,36 it was held by Madhya Pradesh High Court that if it is proved that Will was eaten by (mouse) rats, Secondary evidence was admissible. Proof of loss.—In order to claim the benefit of Section 65 (c), there should be credible evidence of the loss of the original. Loss can never be proved absolutely oral evidence of the loss of the original which has not been seen for many years satisfies the provision of this clause.37 Search.—There must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means, in the search of the document which were available to him.38 (c) When the original is not easily movable.—When the original is of such a nature as not to be easily movable, the secondary evidence of the contents of the document may be allowed. In this case secondary evidence is admissible on account of great inconvenience and impracticability of producing the original. Therefore, inscription on walls, monuments, survey work and the like are proved by copies or oral testimony. A remarkable illustration of this rule was furnished in the case of a man who was convicted of writing a libel on the wall of the Liverpool jail on the mere proof of his handwriting. A sues B for the possession of a piece of land alleging that it belongs to him. B contends that the land belongs to him and it has been in their possession from the time of his ancestors. An old pucca well is found on the land. Just above the surface of water there is a stone fixed in the wall of the well bearing the name of an ancestor of B and the year in which the well was sunk. B wants to prove the contents of that writing before the court to prove that he and his ancestors were the owners of the well on the land. Now the primary evidence would be the production of the very stone with the inscription on it before the court, but this will be a very difficult job, and if the court compels the production of the stone, the well itself may be ruined. So here the original cannot easily be moved and therefore evidence of a man who can read the inscription will be allowed. He may read the inscription and depose before the court that such and such things are written on it or the parties may arrange for the photo to it, and that may be proved.

_________________ 36. 37. 38.

AIR 1998 M.P. 1. Basant Singh v. Brij Raj Singh, AIR 1935 PC 132. Bobla Suramma v. Peddareddi, AIR 1959 AP 368.

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(e) When the original is a public document.—When the original is a public record, under Section 74 of the Evidence Act, a secondary evidence of its contents are admissible under this clause. In this case secondary evidence is admissible even when the original is in existence. This exception is based upon the consideration of conveniences. There is a controversy between A and B as to the ownership of a certain plot of land. The ownership of the plot is recorded in the settlement papers. Any of the parties can take the certified copy of the settlement record and file it before the court. In this case the copy will be admitted in the evidence without summoning for the original. In Marwari Kumhar v. Bhagwan Puri Guru Ganesh Puri,39 it was held by the Supreme Court that ordinary copy of the judgment which is public document was admissible in evidence when the case of the party was that original was no longer available in courts record and the certified copy was lost had not been disbelieved. [See under sub-clause (e) of Section 65 when the original has been lost or destroyed, secondary evidence of this document is admissible. Sub-clause (c) is independant of sub-clause (f).] Secondary evidence can be led even of public document, if condition laid down under sub-clause (c) are fulfilled. Thus, if original public document has. been lost or destroyed, the secondary evidence can be given of public document. (f) Certified copy permitted by the Act.—Secondary evidence of the contents of a document is admissible when the original is a document of which a certified copy is permitted by this Act or by any other law enforceable in India. (g) When the original consists of humerous accounts or huge document.—This provision is for the saving of public time; If the points to be ascertained where the balance in a long series of account in a merchant's account book, certainly great inconvenience would be caused and much of public time would be wasted if the whole of the books were to be produced before the court. Therefore a person is asked to examine the account-books and then make his statement before the court. The private extracts of accounts book in other cases be only secondary -evidence and unless the proper foundation is laid for adducing such secondary evidence under Section 65 or other provisions of Evidence Act, the privately handwritten copies of alleged accounts book cannot themselves be treated as secondary evidence.40 What sort of secondary evidence may be given.—(1) When the original is in possession of another, or when it has been destroyed or lost or the party producing it cannot produce for any other reason not arising from his fault, or when the original is of such a nature as not to be easily movable, any secondary evidence (oral or documentary) of its contents may be given. When the contents, existence or condition of the document is proved to be admitted in writing only the written admission is to be proved.

_________________ 39.

AIR 2000 SC 2629.

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When the original is a public document, or when its certified copy is admitted a certified copy of the original and no other secondary evidence is admissible. When the original consists of numerous account books evidence may be given as to the general result of the document by any person who has examined them and who is skilled in such examinations. Admissibility of the original.—It must be borne, in mind that Section 65 deals with the manner of proof. A distinction must be drawn between the admissibility of evidence and the manner of proof. Secondary evidence can only be given when the primary evidence or the document itself is admissible, when a certain document is inadmissible no secondary evidence is admissible. No secondary evidence can be given of a deed which is inadmissible due to want of registration. Objection to the production of secondary evidence.—As seen above this section deals with the manner of proof of the contents of a document and it has nothing to do with the admissibility of a document. Where a document is admissible and secondary evidence is offered, without accounting for the non-production of the original, the objection that secondary evidence cannot be given, must be taken at the earliest point of time. If no objection is taken and the secondary evidence is produced and forms part of the record, no objection that the party was not entitled to give secondary evidence can be taken at a later stage, i.e., at the time of argument or in appeal.41 But the admission in evidence of a document with per se inadmissible in evidence can be objected to at any stage even in appeal. It is not necessary that the objection should be made at the time of the production of evidence.42 In a suit for title, the plaintiff relied upon an ancient lease document of 1875 in support of his claim. The Court refused to look into the document of title on the ground that no foundation had been laid by adducing secondary evidence by production of a certified copy of the leasedeed. Held—It was a course adopted by the Court resulting in injustice as the Court ought to have granted an opportunity to the plaintiff to prove that document or to lay the foundation for secondary evidence for its acceptance in evidence by production of a certified copy of the leasedeed.43 SECTION 44[65-A.—Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65B. SECTION 65-B.—Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information

_________________ 41. 42. 43. 44.

Balgovind Das v. Makbool Sheikh, AIR 1936 Cal. 164; Parmatha v. Tarini Charan, AIR 1953 Assam 80; Kedarnath v. Pradhan, AIR 1927 Nag 13; Suraj Bhan v. Hafiz Abdul, AIR 1924 Lah 1; Kalyan v. Chhotal, AIR 1973 Nag. 263. Balgovind Das v. Makbool, AIR 1936 Cal. 164; Padappa v. Shivalingappa, AIR 1946 Bom, 193; P.C. Purshottamma v. S. Pirumall, AIR 1972 SC 608. Ram Chandra Sukharam Mahajan v. Damodar Trimbak Tanksale, AIR 2007 SC 2577 at p. 2581. Ins. by the Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, ‘without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section computer output, shall be the following, namely :—

(1)

in

respect

of

a

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all, the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

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(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section.— (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process]. SECTION 66.—Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the

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Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: (1) When the document to be proved is itself a notice; (2) When, from the nature of the case, the adverse party must know that he will be required to produce it; (3) When it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) When the adverse party or his agent has the original in Court; (5) When the adverse party or his agent has admitted the loss of the document; (6) When the person in possession of the document is out of reach of, or not subject to, the process of the Court. COMMENTS Rules as to notice to produce.—We have seen under section 65, clause (a) that when the original is in possession of the adverse party or, somebody else, a notice will be sent to him to produce the original and if he fails to do so the party wanting to prove the contents of the document will be allowed to adduce secondary evidence. Section 66 only lays down that the secondary evidence under section 65, clause (a) is admitted only when the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or the pleader a notice to produce it. This section has given few particular cases in which notice is not necessary before giving secondary evidence under section 65, clause (a). Notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks it fit to dispense with :— (1) when the document to be produced is itself a notice; (2) when from the nature of the case the adverse party must know that he will be required to produce it; (3) when it appears that the adverse party has obtained possession of the original by force or fraud; (4) when the adverse party or his agent has the original in the court; (5) when the adverse party or his agent has admitted the loss of the original; (6) when the person in possession of the document is out of reach of, or not subject to the process of the court. (1) When the document is itself a notice.—When the document to be proved is itself a notice, secondary evidence can be given without serving a notice upon the person in possession of the original. One K was a director of a company. He was charged for having wrongfully kept possession of articles belonging to the company. The defence of K was that a sum of Rs. 294-5-0 was

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due to him from the company as arrears of salary, for which he had issued a registered notice to the directors of the company and hence he was prosecuted. At the trial, the accused filed a certified copy of that notice. He did not give to the company a notice to produce the original notice. The Magistrate refused to admit the paper in evidence on the ground that the original had not been summoned. His Lordship of the Madras High Court held, "When a document sought to be summoned is itself a notice sent by one party to the other and a copy of the notice is produced by the sender, it seems to me that under section 66 it is not obligatory to summon the original notice."45 (2) When the adverse party must know that he will be required to produce it.—Where the nature of the suit gives the defendant notice that the plaintiff means to charge him with the possession of an instrument, there can be no necessity of giving him any notice. In an action in contract, the pleadings imply notice as the orders and letters constituting the contract and so notice to produce the original is not needed. In an action of redemption of a mortgage when the mortgagee is in possession of the mortgage-deed and fails to produce it, secondary evidence is admissible without summoning the original.46 (3) When the adverse party has obtained possession by force or fraud.—The third case in which notice is produced is not necessary, is where the possession of the paper, the production of which is required has been obtained by the adverse party fraudulently or forcibly as where after the suit was brought, he has received it from a witness by fraud. (4) When the adverse party has the original in the court.—The fourth case in which notice to produce is unnecessary, is when it is proved that the adverse party or his solicitor or vakil has the original instrument in court; for the object of the notice is merely to enable him to produce it, if he likes, at the trial and thus to secure the best evidence of its contents. Where the document is at hand in the court-room in the opponent's possession an instant demand is sufficient. (5) When the adverse party had admitted the loss.—The rule requiring the notice to the opponent proceeds on the assumption that the opponent has possession of the document, the object being that if he refuses to produce the original, secondary evidence may be given. It follows, that where the document is admitted by the opponent to have been destroyed or lost, or even out of his possession no notice is necessary; for it is no longer a case of opponent's possession, but that of loss. (6) When the person in possession is out of reach, etc.—Where a person in possession of the original document is out of the jurisdiction of the court a notice of summoning the original is not necessary; secondary evidence may be given straightaway. The court may dispense with notice in a fit case.—It should be borne in mind under this section, besides the specified cases in which notice is not required, the court has power to dispense with the notice in any case in which it

_________________ 45. 46.

K. Sundarse v. State, AIR 1950 Mad 657. Dwarka v. Parmanand, 17 ALJ 711.

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thinks proper. In a mortgage suit the defendant denied the very existence of the mortgage. The plaintiff produced the certified copy of the mortgage. The court dispensed with the notice.47 A court has absolute power when it thinks fit to dispense with a notice.48 SECTION 67.—Proof of signature and handwriting of person alleged to have signed or written document produced.—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. COMMENTS Scope.—Mere filing of a document in a court is not enough to make the document a part of the record. There is still a preliminary matter to be attended to before the contents of a document may be read as evidence. This is called the authentication of writing or the proof of its genuineness. Let us take example : suppose A files a suit against B on the footing of a pronote for Rs. 100. A alleges in his plaint that B executed a pronote on the 2nd of September, 1950 and signed it. A files one pronote before the court. The pronote, purports to be executed by B. There is one signature on the pronote purporting to be that of B. In this case mere filing of the pronote will not enable the court to read the contents of the pronote. It is to be proved that the pronote was executed by B. Section 67, Evidence Act lays down that when a document filed before a court, is alleged to have been signed or written wholly or partly by any person it must be proved that it was signed or written by that person whose signature or writing it purports to be. In the above mentioned example A has to prove that the pronote was signed by B. Until it is proved that the signature purporting to be that of the executant is in his writing, the court cannot take the document to be proved. It has never been the intention of Section 67 that direct evidence of handwriting was always necessary but this section lays down that the person who makes allegation must prove it and lays down no rule as to the kind of proof to be given. In the above mentioned example A may examine a witness who may say that B signed the pronote in his presence. The witness may say, that B did not sign the pronote in his presence but he is acquainted with the writing of B and that the writing and signature on the pronote are of B. Besides these methods proving the writing, B may be made to write and his writing may be compared with the writing on the pronote. Thus it is clear that tinder Section 67 no particular kind of proof is required for the purpose of establishing the fact of executing, it must nevertheless be shown to the satisfaction of the court that the mark of signature denoting execution was actually affixed to the document by the person who is professed to execute it. Proof of handwriting—In State of U.P. v. Hari Mohan and others,49 the letter was written by deceased to her father stating that she should be

_________________ 47. 48. 49.

Dinanath v. Ram Raj, AIR 1926 Patna 512. Surendra v. Mirza Mohd, AIR 1936 P.C. 18. AIR 2001 SC 142.

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immediately taken back from house of in-laws otherwise her in-laws and the husband would kill her. Handwriting of deceased was proved by testimony of her brother. No effort was made by the accused to get it compared with admitted handwriting of accused. Mere fact that prosecution witness did not produce other letters allegedly written by the deceased, it could not be ground to say that prosecution supported the evidence which accused could have utilised for the purpose of comparing handwriting of deceased. The alleged discrepancy of over writing on top of letter regarding its date would not be helpful to accused. The modes of proving a signature are as follows : 1. By calling a person who signed or wrote a document. 2. By calling a person in whose presence the document was signed or written. 3. By calling a handwriting expert. 4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. 5. By comparison of the court the disputed signature or writing with some admitted signature or writing. 6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. 7. By the statement of a deceased professional scribe, made in the diary in course of business, that the signature in the document is that of a particular person. 8. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g., by the scribe who signs on behalf of the executant. 9. By the other circumstantial evidence.50 Objection to the mode of proof.—Objection to the mode of proof should be raised at the time when it is being proved and not afterwards.51 SECTION 52[67-A.—Proof as to 53[electronic signature].—Except in the case of a secure "[electronic signature], if the "[electronic signature] of any subscriber is alleged to have been affixed to an electronic record the fact that such "[electronic signature] is the 53[electronic signature] of the subscriber must be proved.] SECTION 68.—Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall

_________________ 50. 51. 52. 53.

Kanya Ram Bira Singh v. Manipur Driver's Union Association Ltd., AIR 1957 Manipur 9. P. C Purshottam v. S. Perumal, AIR 1972 SC 608. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II. Subs, for the words "digital signature" by the Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009), Sec. 52(d) (w.e.f. 27.10.2009).

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not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. COMMENTS Scope.—In order to understand the implications of Section 68 clearly, it is proper to know the meanings of the term "execution and attestation" of a document. 'Execution'.—The word "execution" means that the party by affixing his signature or mark has signified his assent to the contents of the document. A pronote is written thus "I, A son of B, resident of Civil Lines, Allahabad, have borrowed Rs. 1,000 from C son of D resident of George Town, Allahabad, today and promise to pay the sum on demand with interest at the rate of 6 per cent per annum." At the bottom of the pronote A affixes his signature. By making the signature A will be said to have executed the pronote. The proof of the signature cannot always be regarded as tantamount to the proof of execution. It is necessary for a document to be said to have been executed by a person that there should be not only the physical act of signing the deed but also the volition or the mental inclination of executing it. If a man of unsound mind signs a deed or if he is made to sign the deed by fraud he cannot be said to have executed the deed. Execution consists in signing a document written out, read over and understood. It does not consist of merely signing a name upon the blank paper. To be executed, a document must be in existence; where there is no document in existence there cannot be execution.54 Execution means 'completed'. The execution of a deed means signing, sealing and delivering. To execute means to go through the formalities necessary for the validity of a legal act.55 In Janki Narain Bhoir v. Narayan Nam Deo Kadam,56 one of the requirements of due execution of will is its attestation by two witnesses which is mandatory. Section 68 of Evidence Act speaks of as to how the document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used in evidence until one attesting witness has been called for the purpose of proving execution : if there be attesting witness alive and subject to process of Court and capable of giving evidence. If there is attesting witness alive and capable of giving evidence and

_________________ 54. 55. 56.

Sheikh Ebadat Ali v. Md. Farea, 351.C. 56; Kali Devi v. B. Malik, AIR 1972 Orissa 132. Arjun Chand v. Kailash Chandra, AIR 1923 Cal. 149. AIR 2003 SC 761.

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subject to process of Court, he has to be necessarily examined before the document required by law to be attested can be used in evidence. Attestation.—The Evidence Act does not define the word 'attestation'. Section 63 of the Indian Succession Act has defined the word 'attestation' as follows :—"Attested in relation to an instrument, means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in his presence by the direction of the executant or has received from the executant a personal acknowledgment of his signature or mark or of the signature of some other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." Attesting witness who is.—An attesting witness must either see the executant sign or he must receive from the executant an acknowledgment that the executant has signed the deed. Further the attesting witness must sign the deed in the presence of the executant. An attesting witness is one who signs as a witness.57 Scribe whether attesting witness.—A scribe of the deed does not come within the definition of attesting witness.58 But a scribe can be held to be an attesting witness only, if apart from having seen the document executed and having put signature on the document in the presence of testator he also signed as a witness.59 A scribe cannot be treated as attester of the document.60 The witness called : Meaning of.—The expression called used in the section clearly means tender to purpose of giving evidence. If a witness is only summoned and is present in the court but attempt is made to examine him it cannot be said that the witness has been called.61 Until one attesting witness is called.—Section 68 lays down that when a document required by law to be attested, is produced in any judicial proceeding, it shall not be used in evidence i.e., it shall not be proved and made part of the record unless one of the attesting witnesses at least is called for the purpose of proving its execution. Suppose A files a suit for the possession of some property alleging that B was the owner of it and that he before his death executed a will in his (A's) favour, and that C has taken adverse possession of the property; C denies the execution of the will. A produces a will purporting to be executed by B. In order that the will may be proved and be read in evidence an attesting witness of the will must be examined before the court and he must depose that the will was signed by B in his presence and in presence of another witness and that he and the other witness signed the deed in presence of B and

_________________ 57. 58. 59. 60. 61.

Girjadatta v. Gangatan Datta, AIR 1955 SC 346. Amardas v. Harman Bhai, AIR 1942 Bom. 291. Vinode Mohan v. Sham Chandra, AIR 1950 Cal. 401. N. Kamalam (dead) v. Ayya Swamy, AIR 2001 S.C. 2802. Moti Chand v. Lalta Prasad, Am 1918 All. 201; Roop Rao v. Ram Rao, AIR 1952 Nag. 88.

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that the deed produced is the same as executed by B. The object of attestation is that some person should verify that the deed was signed voluntarily. To prove the genuineness of a Will that it was made by free Will of the testator, it is not necessary to call more than one attesting witness to prove the execution of a Will but it does not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. In case of genuineness of a Will being in question, it is the duty of the person seeking declaration about the validity of the Will to dispel surrounding suspicious circumstances existing if any. If a plea of undue influence is taken, the onus wherefor would be on the objector and not on the propounder.62 Required by law to be attested.—This section only applies to cases where a document required by law to be attested, is tried to be proved. It cannot be applied in the case where the document is not required by law to be attested. In such cases the document may be proved without calling the marginal witnesses. A sale-deed is not a document which is required by law to be attested, and, therefore in order to prove a sale-deed it is not necessary to examine a marginal witness. When witness may not be called (Proviso).—This section provides a special rule relating to the proof of the document required by law to be attested. The proviso is merely an exception to that special rule. Under this proviso the necessity of calling an attesting witness is done away with in the case of a registered document (other than a will) unless its execution by the person by whom it purports to be executed is specifically denied. Thus, if a registered document required by law to be attested, not being a will is produced before a court of law and also if its execution is not specifically denied, it may be proved by any other witness calling the attesting witnesses. A files a suit for possession of a property against B alleging that B executed a mortgage deed in his favour. During the trial A produces the mortgage deed. B does not specifically deny the execution of the mortgage deed. In this case the attesting witness may not be produced. The document may be proved by any other witness. It must not be lost sight of that if the deed is a will the attesting witness has to be called even if its execution is not specifically denied. 'Specifically denies' means denied by a party to a proceeding against whom the document is sought to be used. A suit was filed by a mortgagee against the purchasers of equity of redemption. The defendant denied the execution. The proof of document by calling an attesting witness was not dispensed with. It must also be remembered that the person producing a document required by law to be attested should be compelled to call one of the attesting witness only when at least one of them is alive, is subject to the process of the court, and is capable of giving evidence. If all the witnesses are dead, or all of them have migrated to some foreign country or if all or any of them who is alive have become insane, or are subject, to any infirmity due to which they are unable to

_________________ 62.

Babu Singh v. Ram Sahai, AIR 2008 SC 2485 at p. 2487 ; Savitri v. Karthyayani Anna, JT (2007) 12 SC 248 referred to.

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speak or depose, the person producing the document cannot be compelled to call one or any of the attesting witnesses. Proof of a will.—In the case of a will even if registered the attesting witness has to be called even if the execution is not denied. In order to prove due attestation of the will a witness has to prove that the two witnesses saw the deceased sign the will or that he admitted to have signed and they themselves signed in the presence of the deceased testator.63 In Janki Narain Bhoir v.Narain Namdeo Kadam,64 the Supreme Court held that on combined reading of Section 63 of Succession Act and Section 68 of Evidence Act, it appears that the person propounding the will has to prove that will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of testator but must have to be proved that attestation was also properly made as required by Section 63 of Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined but at least one attesting witness has to be called for proving execution of will as envisaged by Section 63 of Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove execution of will in terms of clause (c) of Section 63 of Succession Act. The one attesting witness examined in his evidence has to testify the attestation of will by him. SECTION 69.—Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. COMMENTS Scope.—Section 69 gives the mode of proving a document required by law to be attested, when the attesting witnesses cannot be found. According to Section 69 if all of the attesting witnesses are dead, or if all or any of them, who is alive, is not capable of giving evidence, or if the document purports to be executed in United Kingdom, the court cannot compel the production of the attesting witnesses. In this case it is to be proved by some witnesses that the signature on the document is in the handwriting of the person by whom it purports to have been executed and also that the attestation of one of the attesting witnesses at least is in the handwriting of that witness. Let us take an example. In a suit A files a mortgage deed. The mortgage deed is executed by B and witnessed (attested) by C and D. In this case C and D both are dead so they cannot be found to depose. The execution of the mortgage is denied by the defendant. A produces one X who deposes that he is familiar with and recognises the handwriting of B and that the signature on the mortgage deed is

_________________ 63. 64.

Shashi Kumar p. Subodh Kumar, AIR 1964 SC 529. AIR 2003 SC 761.

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that of B. He further deposes that the signature purporting to be of the attesting witness C is that of C as he knows and recognises his handwriting. By this evidence the requirement of Section 69 will be fulfilled and the document shall be proved and read in evidence. Section 69 applies to a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite diligent search. It is in such a case that Will may be proved by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.65 Section 69 comes into play only when none of the attesting witness can be found. Where any of the attesting witnesses is available the section is not applicable.66 SECTION 70.—Admission of execution by party to attested document.— The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. COMMENTS Scope.—This section lays down that if a document, required by law to be attested, is produced in a proceeding and if the executant admits its execution, it shall be sufficient proof of its execution against him. A files a suit against B for recovery of possession of some property. He alleges that B executed a mortgage deed in respect of the plots in dispute in his favour. A files the mortgage deed before the court, B admits the execution of the mortgage deed. It shall be presumed against B that the mortgage was executed. Presumption about attestation.—Some High Courts have held that Section 70 of the Evidence Act is not sufficient to dispense with the necessity of attestation by two witnesses to make the mortgage bond valid, the only object of Section 70 being to make the admission of the executant sufficient proof of execution. 'Execution' means affixing of signature or mark on a deed. According to the above mentioned view if a party admitted the execution of the deed he only admitted that he put his signature or marks on it but he did not admit that he signed the deed in presence of two witnesses and the witnesses signed in his presence. Some other High Courts have held that the admission of the executant has the effect of dispensing with the proof of attestation as against him. For if the admission of the execution of documents is to be understood only in the sense of an admission of signing them, there is no necessity of Section 70 at all.67 This is indicated by the last words of Section 70 "though it be a document required by law to be attested." Their Lordships of Privy Council held that words of Section 70 of the Evidence Act apply only to document duly attested, that is to say if the attestation of the document is denied and only execution is admitted the attesting witness must be called to prove the attestation.

_________________ 65. 66. 67.

Babu Singh v. Ram Sahai, AIR 2008 SC 2485 at p. 2487. Doraiswamy v. Rathnarnmal, AIR 1978 Mad 78. Satish Chandra Mishra v. Jogendra, 24 Cal. L.J. 175; Ashrafi Lal v. Mst. Nannhi, 19 ALJ 855 ; Mst. Hira Bibi v. Ram Hari Lal, AIR 1925 PC 203.

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[S. 71

Thus admission of the execution in this section means not only admission, of signature but also the attestation of the signature as required by law, Where the attestation is specifically denied but the signing of the document is admitted, it is necessary to call attesting witness to prove the attestation under Section 70 of Evidence Act. But if the execution of document is admitted and at the same time the attestation is not denied, the attestation as well as execution will be proved sufficiently against the party admitting.68 Admission of execution must in course of the suit itself.—The term 'admission' in this section relates only to the admission of a party in the course of a trial of a suit. Such admission can be made by a party in his pleading or in his examination.69 SECTION 71.—Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. COMMENTS Principle.—Section 71 provides that if the attesting witness denies or does not recollect the execution of a document, its execution may be proved by any other evidence. Very often it happens that when a witness is called by party to a proceeding, he colludes with the opposite party and deposes that he does not recollect anything about the deed. In such cases, it becomes difficult for the parties producing the deed to prove the document through him. For such contingencies, Section 71 makes a provision that in such cases document may be proved by other evidence. This section is one of the exceptions to the rule laid down in Section 68. Section 71 applies only when an attesting witness is called and he fails to prove the document.70 Section 71 of Evidence Act is in the nature of safeguard to mandatory provision of Section 68 of Evidence Act to meet the situation where it is not possible to prove the execution of will by calling attestation witness.71 If the attesting witness denies, the execution may be proved by other evidence.— Section 71 lays down that if the attesting witness denies the execution other evidence can be given to prove it. It is not clear as to whether, other evidence can be given even if there be other attesting witness capable of giving evidence who could prove is not produced or after the refusal of one witness the other attesting witness may be called and only on his failure some other evidence can be given. The Bombay High Court has held that Section 71 has no application when one attesting witness has failed to prove the execution but other attesting witnesses are available who could prove the execution,72 Contrary to this it

_________________ 68. 69. 70. 71. 72.

Ram Nahak v. Sita Dakvani, AIR 1970 Orissa 82. Abdul Karim v. Salimun, ILR 27 Cal. 190; Rajmangal v. Mathura, ILR 38 Alld. 70; Timma v. Channava, AIR 1948 Bombay 322. Visnu Ram Krishna v. Nathu Vithal, AIR 1949 Bom. 266. Janaki Narain Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761. Ibid.

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has been held that if one attesting witness is called and he resiles, the document may be proved by other evidence and the other attesting witnesses need not be called.73 May be proved by other evidence.—If the requirements of Section 71 are complied with the execution may be proved by calling any other man e.g., the writer of the deed. The witness may depose to the executant of the deed and to its attestation by the two witnesses. He would depose that the executant put his signature on the deed in his (witness's) presence and the two attesting witnesses and that the two witnesses signed the deed in the presence of the executant.74 To prove the execution of a gift deed only one witness was examined who denied the execution of gift deed. Its execution can be proved by other means.75 In Chaitan Chand Panda v. Maheshwar Panda,76 the gift was made by an old pardanasheen lady. The alleged deed was executed for entire land and a big building. It was executed in favour of nephew of the lady. She was living in that building with her old husband. It is evident that she was not aware of the contents of the document. There was proof of execution. The attesting witness becomes hostile. In such circumstance the document can be proved by other methods. From the words of the section it appears that when the attesting witnesses fail to prove the execution of a document, the section does not require proof of execution in the presence of the attesting witnesses. Only the proof of the execution of the document is sufficient. By the other evidence the execution should be proved. The mere proof of the signature of the executant is not enough.77 If only one attesting witness is examined who admitted the execution of document, namely gift deed, execution can be proved by other evidence under Section 71. Where the attesting witness did not deny execution of Will but stated that the testatrix put her thumb-impression after he signed it as an attestator, the question whether Section 71 of the Evidence Act was applicable in the facts of the present case must be found upon reading his evidence in its entirety. It has not to be decided by raising a legal fiction that he must have done so only because he was cross-examined on certain issues by the propounder. By cross-examining one's own witness, the effect of his statement in examination-in-chief in a case of this nature cannot be ignored.78 SECTION 72.—Proof of document not required by law to be attested.—An attested document not required by law to be attested may be proved as if it was unattested.

_________________ 73. 74. 75. 76. 77.

Mst. Nanak Kaur v. Hansraj Singh, AIR 1938 Pat. 301; Hassan Ali v. Gurudas Kapali, AIR 1929 Cal. 188. Lakshman v. Krishnaji, AIR 1927 Bom. 655. Brundaban Naik v. Gobardhan Biswal, AIR 1990 Orissa 232. AIR 1991 Orissa 125. Doraiswamy v. Rathnammal, AIR 1978 Mad, 78. 78. Benga Behera v. Braja Kishore Nanda, AIR 2007 SC 1975 at p. 1979.

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Principle.—The section lays down the procedure of proving a document which though not required by law to be attested, has been attested. If a document is not required by law to be attested but the parties being overzealous for making the document legal had got it attested, it may be proved like a deed which is not required by law to be attested. A executes a sale-deed in favour of B. He signs the deed and gets it attested by C and D. B files a suit against A on the basis of this sale-deed for possession. A denied the execution of sale-deed. B summons the scribe of the deed and then deposes that the deed was executed by A and signed by him in presence of the witness. The deed will be taken to be proved. The attestation is not to be proved. SECTION 73.—Comparison of signature, writing or seal with others admitted or proved.—In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, waiting, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications to finger-impressions.

COMMENTS Principle.—The provisions of this section will apply only when a matter is pending before the court and not otherwise.79 In proving a document or a signature two distinct kinds of evidence are produced. Firstly the testimony of a witness who saw the act of writing. Secondly, the testimony of a person as to the kind of the writing. A says that the letter in dispute was written by B in his presence. Here, A was the writer of the letter. C says that he did not see B writing the letter but he recognises B's writing and that the letter is in the handwriting of B. In this case there is involved the establishment of a personal type or character of writing and estimate based on comparison that the disputed writing belongs to the type. In the above example, C has an idea of the character or the type of writing of B, he compares the writing in dispute with that and finding that it belongs to that type, says that it is written by B. The second sort of testimony about the genuineness of writing is dealt with in various sections of the Evidence Act. Under Section 45, handwriting and signature of a person can be proved by an expert. Section 47 admits the opinion of any person acquainted with the handwriting of the person by whom it is alleged to have been written or signed that it was or was not written or signed by that person. In the above mentioned example the opinion of C is admissible

_________________ 79. T. Subbiah v. Ramaswamy, AIR 1970 Mad. 85.

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under Section 47. Section 73 authorises the court to compare the disputed document with an undisputed one for purpose of deciding as to whether a particular document was written or signed by a person by whom it is supposed to be written. The disputed writing is to be compared with any signature or writing admitted or proved to have been written or made by that person whose writing is in dispute. It may also be compared with a writing which was written in the court room at the dictation of the court. That is to say, the disputed writing may be compared with the old writing of the person whose writing is in question or the court may make the person write before it and then compare the disputed writing with this specimen. The standard writing must be proved or admitted.—This section requires that the writing with which the comparison is to be made, shall be admitted or proved to have been written by the person to whom it is attributed.80 Specimen before the court.—The party whose writing is in dispute may also be required to write for the purpose of comparison. The comparison with such specimen will be often less satisfactory as a person may alter the character of his writing while giving the specimen. Comparison by whom.—Comparison may be made either by witnesses acquainted with the handwriting or by the court itself, or by an expert. In Ajit Savant Majagavi v. State of Karnataka,81 the Supreme Court made following observation: "Section 73 does not specify by whom the comparison shall be made. However looking to other provisions of the Act, it is clear that comparison may either be made by handwriting expert, under Section 45 or by any one who is familiar with handwriting of the person concerned as provided by Section 47 of Evidence Act or by the court itself. As a matter of extreme caution and judicial sobriety the court should not normally take itself the responsibility of comparing the disputed signature with that of admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of expert. But this does not mean that the court has not the power to compare the disputed signature as this power is already available to the court under Section 73. In Ashok Kumar High Court said :

Uttam

Chand

Shah

v.

P.M.A.

Chanchad,82 1

the

Gujarat

"Under section 73 of Evidence Act, the Court is entitled to compare the disputed signature and handwriting. For coming to conclusion both the rule of prudence and caution requires that in first place expert opinion should be obtained for assistance and if such opinion is not available then the Judge presiding over the court must disclose in the judgment his knowledge in the

_________________ 80. 81. 82.

Vimbu Ambal v. Esakia, AIR 1949 Mad. 419. AIR 1997 SC 3235. AIR 1999 Guj. 108.

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EVIDENCE ACT

subject of comparison of handwriting or should mention that he has taken aid from some authoritative text book. The court should also mention whether the result of its comparison finds support from evidence adduced by the parties may be in shape of oral evidence or documentary evidence or direct evidence. Mere statement in judgment that on comparison the disputed and admitted signatures are found to be of same person are not enough and it cannot be said to be sound finding based on cogent and scientific reason and data." In D. Pandi v. Dhanalakshmi Bank Ltd.,83 it was held that though the Court would not normally compare the signature yet it is competent to do so. However, if the Court has any doubt it is incumbent on it to leave the matter for opinion of an expert. In order to prove the identity of handwriting, any mode not forbidden by law can be resorted to. Two modes are indicated by law in Section 45 and Section 47 of the Act. Section 45 permits expert opinion to be regarded as relevant. Section 47 permits the opinion of any person acquainted with such handwriting to be regarded as relevant evidence. Comparison with disputed writing with admitted or proved writing who can make the comparison. It is the function of hand-writing expert. The value of the comparison.—It is, no doubt, open to a court to express its opinion about a writing by comparison but it would not be safe to base a conclusion entirely on such a comparison.84 But the court can compare the writings in order to appreciate properly the other evidence produced in that regard.85 It is not province of the expert to act as Judge or Jury. As rightly pointed out in Titli v. Jones,86 the real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or Jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence. "Both under Sections 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to .compare them with

_________________ 83. 84. 85. 86.

AIR 2001 Mad. 243. Bhagwan Din v. Gauri Shanker, AIR 1957 Alld. 119; Kishori v. Ganesh, AIR 1954 SC 316. State of Gujarat v. Vinay Chandra, AIR 1967 S.C. 778 ; Gayalal v. State of Bihar, AIR 1969 Pat. 470. Titli v. Jones, ILR 56 All. 428: AIR 1934 All. 273.

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the disputed one, not to become a handwriting expert but to verify the premises of the expert in such case by comparisons and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion, whether of the expert or other witness." Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the court to use its own eyes and mind to compare the admitted writing with the disputed one to verify and reach its open conclusion, it will not be wrong to say that when a Court seized of a case, directs an accused person present before it writes down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words, "for the purpose of enabling the Court to compare" do not exclude the use of such 'admitted' or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion. For all the foregoing reasons, we are of opinion, that in passing the orders, dated May 20, 1972 relating to the disposal of the application dated December 11, 1970, the learned Additional District Magistrate did not exceed his powers under section 73, Evidence Act. The learned Judges of the High Court were not right in holding that in directing the accused by his said order, dated May 20, 1972 the Magistrate acted beyond the scope of Section 73 or in a manner which was not legal. Accordingly, we allow this appeal, set aside the judgment of the High Court, and restore the order, dated May 20, 1972 of the Magistrate who may now repeat his direction to the accused to write down the sample writing. If the accused refuses to comply with the direction it will be open to the Court concerned to draw under Section 114, Evidence Act, such adverse presumption as may be appropriate in the circumstances. If the accused complies with the direction, the Court will in accordance with its order, dated May 20, 1972, send the writing so obtained, to a senior Government Expert of Questioned

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[S. 73-A

Documents, named by it, for comparison with the disputed writing and then examine him as a Court witness. Since the case is very old further proceedings in the case shall be taken with utmost expedition." Article 20 (3) of the Constitution and Section 73.—Article 20, clause (3) of the Constitution of India runs as follows : "No person accused of any offence shall be compelled to be a witness against himself." The question arises whether the direction to write, to give signature or thumb-impression under this section amounts to compelling the accused to be a witness against himself and thus offends Article 20 (3). There was a controversy among the various High Courts on the subject. The Madras High Court held that it did amount to compelling him to be a witness and thus ordering an accused to give his signature or thumb-impression was prohibited by Article 20 (3).87 The Allahabad and Calcutta High Courts took a contrary view.88 The controversy has been set at rest by the Supreme Court. The Supreme Court has held that "the giving of finger impressions or specimen writing or of signature by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness."89 In Shyam Sunder Chowkhani alias Chandan v. Kajal Kanti Biswas,90 the Gujarat High Court said that "accused of an offence" in Article 20 (3) of Constitution indicates that the protection of this clause is confined to criminal proceedings or proceedings of nature before court of law or other tribunal before whom the person may be accused of any offence as defined in Section 3 (38) of General Clauses Act, that an act punishable under Penal Code or in special or local laws. It would not therefore extend to the parties and witness in civil proceedings or proceedings other than criminal. For example, the proceedings for public examination of director under Section 45 (9) of Banking Companies Act, 1949. PUBLIC DOCUMENTS In Evidence Act, the documents have been divided into two groups : 'Private documents' and 'Public documents'. Public document has been defined under Section 74 and then under Section 75 it has been laid down that all documents which are not public documents are private documents. From Sections 61 to 73 we have been dealing with the rule as to how a private document is to be proved in the court of law. Now from Section 74 upto Section 78 we shall be discussing the rules relating to the method of proof of a public document. Sections 74 and 75 give the definition of public and private documents. Sections 76 and 78 relate to the method of proof. SECTION 91[73-A.—Proof as to verification of digital signature.—In order to ascertain whether a digital signature is that of the person by

_________________ 87. 88. 89. 90. 91.

Raja Muttan Kalu v. Penasami, AIR 1956 Mad 632. Ranjit Ram v. State, 1961 ALJ 303; Sailendra Nath v. State, AIR 1955 Cal. 247. State of Bombay v. Kattu Kalu Oghad, AIJ 936 at 948. State of Bombay v Kattu Kalu Oghad, ALJ 936 at 948 See also Shyam Sunder Chokhani alias Chandan v. Kajal Kanti Biswas, AIR 1999 Guj. 101 Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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whom it purports to have been affixed, the Court may direct— (a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate; (b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person." Explanation.—For the purposes of this section, "Controller" means the Controller appointed under sub-section (1) of Section 17 of the Information Technology Act, 2000.] SECTION 74.—Public documents.—The following documents are public documents: (1) documents forming the acts, or records of the acts, (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) public records kept in any State of private documents. COMMENTS Scope.—According to Section 74 a document which is the act or record of the acts of a sovereign authority, official bodies and tribunals, public officer, legislative, judicial and executive is a public document. Public records or private documents are also public documents. A public document is one prepared by a public servant in discharge of his public official duties. The mere fact that its copy is in office does not lead to the inference that it is a public document. It must have been prepared by a public servant in his official duty. The acts mentioned in Section 74 are completed acts as distinct from act of a preparatory or tentative character. An order sheet in a case, judgment or a decree are public documents as they are acts of public officers.92 But a plaint or written statement is not a public document because it is not an act of a public officer.93 These are private documents. The statement recorded by a court during some proceeding is also a public document. Letters between district authorities are public documents because they also form the records of public authorities. Again, when a report is made orally of a cognizable case and it is recorded by a public officer it is a public document.94 In Radhey and others v. Board of Revenue, U.P.,95 a statement was proposed by Tahsildar on the basis of inspection of the place by him. This document was not a document mentioned under Section 74 (Public document) and it was not admissible under Section 35. The statement of Naib Tahsildar was result of enquiry and investigation made by him and it should not be treated as an entry made during public or

_________________ 92. 93. 94. 95.

Collector of Gorakhpur v. Ram Sudarmal, AIR 1934 PC 157. Hasan v. Raunaq, AIR 1943 Oudh 54; Gopala Narsimha v. Chitturer, AIR 1940 Mad. 768. Mohan Singh v. King-Emperor, AIR 1925 Alld. 413; Chittal Singh v. Emperor, AIR 1925 Alld. 303. AIR 1990 All. 175.

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administrative work and it should not be treated as the entry in a register contemplated under Section 35 of Evidence Act. The waqf document which is kept in office of sub-registrar is public document under the meaning of Section 74(2), Evidence Act.96 All the public documents have this characteristic that they are kept in some special custody and provable by means of a copy without production of original. The electoral roll is a public document. It is not necessary of formal proof and its certified copy will be admitted under Sections 74 and 77 of Evidence Act.97 The public records which keep the private documents and not copies of private documents are treated as public documents with the meaning of Section 74 of Evidence Act. Thus copies of registered deed of the power of attorney is not public document and is inadmissible in evidence. Such types of certified copies of any such document can only be put in evidence being a secondary evidence only; if the preconditions embodied under Section 65 of the Evidence Act is fulfilled and that is also by formal proof.98 The records of nationalised bank are public document and hence admissible without any further proof. Examination of person, who prepared that document is not necessary.99 The documents furnished to Press Council of India for its recommendation are public documents because they are open to public inspection.1 Where death of the deceased was not unnatural, the Panchanama prepared by the policeofficer could not be said to be in discharge of public duty and the reason for placing it on record was not given, the death certificate could not be said to be a public record.2 The prosecutrix was driven to flesh trade by the accused persons. In FIR as well as in her supplementary examination, her age was recorded as 18 years. On the basis of her radiological test in medical examination, her age was determined to be between 14 and 16 years. The prosecution produced birth certificate issued by the Municipality and on the basis of recorded date of birth, her age was below 16 years. Held—A mistake in regard to her age as recorded in the FIR or the medical document or even in her supplementary affidavit should yield to the public document which have been produced by the prosecution.3 School leaving certificate is within the ambit of Section 74 of Evidence Act.4

_________________ 96. 97. 98. 99. 1. 2. 3. 4.

Fazal Sheikh v. Abdur Rahman, AIR 1991 Gau. 17. Naladhar Mahapatra v. Shiv Ram and others, AIR 1991 Orissa 166. Pridhan Paul v. Paresh Chandra Ghosh, AIR 2002 Gau. 46. Gorantha Venkataswaralu v. B. Demudua, AIR 2003 AP 251. Indian Federation of Small and Medium Newspaper v. Press Council of India, AIR 1996 Del. 90. Hardayal v. Aram Singh, AIR 2001 M.P. 203. State of Maharashtra v. Md. Sajid Husain, Md. S. Husain, AIR 2008 SC 155 at p. 160. Shyam Lal v. Sanjeev Kumar, AIR 2009 SC 3115 at p.3119.

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SECTION 75.

-Private documents. —All other documents are private. Distinction between Public Document and Private Document Public document Private document 1. Public document is prepared by public servants in discharge of his public duties. 2. Public documents are available for inspection to public in public office during appointed time after payment of fixed fee. 3. The secondary copy of public document is to be admitted in judicial proceedings. 4. As general rule the public document is proved by secondary evidence. 5. The Court is bound to presume the genuineness of public document from their duly certified secondary copy.

1. Private documents are those documents which are prepared by a person for his private interest under his private right. 2. Private documents are kept in custody of the person to whom it belongs and is not available for general inspection to public. 3. Before proving one of conditions laid down under Section 65 the secondary evidence of original document is not to be admitted in judicial proceedings. 4. As general rule the private document is to be proved by original i.e. by primary evidence. 5. No presumption is made about genuineness of original document from secondary evidence of private document except in some exceptional circumstances.

SECTION 76.—Certified copies of public documents.—Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation.—Any officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section. COMMENTS Scope.—Section 76 gives the method of getting a certified copy of a public document. It lays down that if a public document is open to inspection, its copy may be issued to any person demanding it.

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The copy of public document must be issued on payment of legal fee and there shall be attached a certificate to it containing the following particulars : 1. That it is the true copy. 2. The date of the issue of the copy. 3. The name of the officer and his official title. 4. The seal of the office, if there is any. 5. It must be dated. When a copy contains the particulars mentioned above we shall call it a certified copy. Right to inspect.—Whether a person will be entitled to copy of a public document will depend on the question whether he is entitled to inspect it. If a person has right to inspect the document he will be entitled to get a copy and if he has no right to inspect the document he cannot get a copy of it.5 It only means that he has a right to look into the order of which the copy is sought. It does not mean that he should have a right to inspect, the whole record.6 A copy obtained by a person, who has no right to inspect is a copy obtained illegally and is inadmissible in evidence.7 SECTION 77.—Proof of documents by production of certified copies.—Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. COMMENTS Scope.—Section 77 lays down that when the contents of public documents are to be proved before the court of law, the original need not be produced before the court. Instead of a certified copy taken from the office according to Section 76 may be produced before the court and the court will accept it. The idea underlying this principle is that the record of a court should not be taken away from its place of custody into courts. If public records are summoned in courts it would make it impossible for the time being for others to use records. Cases take years to be decided. Suppose a particular public document is produced in one court in 1936 and the case lingers on upto 1946. In this period many other individuals may need that paper in other cases. If copies are not allowed and the originals are filed in cases, the other will be deprived of the use of that document for ten years. There will also be a risk of loss and there would be constant additional wear and tear upon the documents if they are removed from place to place. In State of Haryana v. Ram Singh,8 the Supreme Court held that it is not the law that certified copy of a registered agreement for sale is inadmissible unless the parties to the document are examined to prove it. That would be contrary to Section 77 read with Section 74 (2) and Section 76 of Evidence Act,

_________________ 5. 6. 7. 8.

Rasipuram Union v. Commissioner of Income-tax, AIR 1957 Mad. 151. Suryanarain v. Jhabu Lal, AIR 1944 Alld. 114. Banarsi Devi v. Janvi Devi, AIR 1955 Patna 172; v. J. Homas v. State, AIR 1970 Kerala 273. AIR 2001 SC 2532.

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more specially Section 51-A of Land Acquisition Act. A certified copy of a document registered under Registration Act including a copy under Section 57 of Land Acquisition Act may be accepted as evidence of transaction recorded in such documents. It is open to Court to accept the certified copy as reliable evidence and without examining parties to the document. This, however, does not preclude the Court from rejecting the transaction itself being mala fide or sham provided such challenge is laid before Court. Marriage Certificate is a good evidentiary proof of marriage.9 Certified copy to be proved.—A certified copy of public document can be received in evidence and without proof.10 If the certified copy is defective the objection has to be taken at the trial court.11 SECTION 78.—-Proof of other official documents.—The following public documents may be proved as follows :— (1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or; as the case may be, of the Crown Representative; (2) The proceedings of the Legislatures, by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned; (3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government, by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer; (4) The Acts of the Executive or the proceedings of the Legislature of a foreign country, by journals published by their authority, or commonly received in that country as such or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act; (5) The proceedings of a municipal body in a State, by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;

_________________ 9. 10. 11.

Seema Smt. v. Ashwani Kumar, (2006) 2 SCC 578. Rammappa v. Bojjappa, AIR 1963 SC 1633; Dalim Kumar V. Nand Rani, AIR 1970 Cal. 292. Hari Chand v. Bachan Kaur, AIR 1971 Punj. 355.

Page 378

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[S. 79

(6) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Council or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. COMMENTS Scope.—This section gives the method of proof of the documents mentioned in the section. A newspaper is not one of the documents referred in Section 78, (2) by which an allegation can be proved.12 PRESUMPTIONS AS TO DOCUMENTS From Section 79 right upto Section 90 of the Evidence Act deals with the presumption as to the genuineness of a certain kind of documents. SECTION 79.—Presumption as to genuineness of certified copies.— The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper. COMMENTS Scope.—Section 79 lays down that when a document purporting to be a certificate or a certified copy is produced with the certificate mentioned in Section 76 the court shall presume that the copy is genuine copy and cannot be contended that there may be mistake in the copy. It also lays down that if a document purports to have been signed or certified by any officer it shall be presumed that the person certifying or signing held that office at the time when he did so. Under Section 79 a court is bound to draw the presumption that the certified copy of a document is genuine and also that the officer signed in official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purports to be executed in the manner provided by law in that behalf. Where a Patwari issues a certified copy of Khatauni without complying with the provisions of law governing its issue, the court is not bound to draw the presumption in regard to its genuineness.13

_________________ 12. 13.

Lakshmi Raj Setty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274. Blunka V. Charan Singh, AIR 1959 SC 960.

Page 379

S. 80] OF DOCUMENTARY EVIDENCE

SECTION 80.—Presumption as to documents produced as record of evidence.—Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume— that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

COMMENTS

Principle.—This section merely gives sanction to the maxim omnia praesumuntur Vitesse acta, (all acts presumed to have been done rightly and regularly) with regard to document taken in the course of judicial proceeding. Scope of the section.—The statement as to which this section says that certain presumption shall be drawn are statements or confessions taken in accordance with the law. The presumption to be raised under this section, are considerably wider than those under Section 79. Under Section 79 the only presumption to be raised is that the document (the certified copy) is genuine, but under Section 80 the presumption is that the statement or the confession (of which certified copy is produced) were duly taken and given under the circumstances recorded therein. This section does not render admissible any particular kind of evidence but only dispenses with the necessity for formal proof in the case of certain document taken in accordance with law. Under this section court presumes certain facts concerning a document purporting to be a record of the evidence. But it must purport to be signed by a Judge or a Magistrate. This section simply dispenses with the necessity of formal proof raising the presumption that everything in connection with certain document had been legally and correctly done i.e., (1) That the document purporting to be recorded evidence or statements or confessions are genuine, (2) That the documents as to the circumstances under which they were taken made by the officer who affixed his signature are true, and (3) That the evidence, statements are confession was duly taken.14 Identity of the person making the statement.—Under this section a presumption has to be made as to the genuineness of the statement to be recorded. No presumption can be made regarding the identity of the person who made the statement. A deposition given by a person is not admissible in evidence against him in subsequent proceeding without proving that he was the person who has examined and made the statement.15

_________________ 14. 15.

Padam Prasad v. Emperor, AIR 1929 Cal. 617. Brij Ballabh Ghosh v. Akhoi Bagdi, AIR 1926 Cal 705; Suleman v. R., 1941 Rangoon 301; Krishna Vinumma v. Hanumantha, AIR 1933 Mad. 860; Shiwa Lal v. Chet Ram, AIR 1971 SC 2342.

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Taken in accordance with law.—The statements to which this section says that certain presumptions are to be drawn are statements or confessions taken in accordance with law. The presumption of correctness under Section 80 cannot be attached to the record of a court which was not competent to try the case.16 The memorandum of identification proceedings are not public documents. They are not admissible without proof.17 SECTION 81.—Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.—That Court shall presume the genuineness of every document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. COMMENTS Scope.—This section provides for the presumption of different kinds of Gazette and newspapers. Newspaper.—Presumptions which attaches to a newspaper under this section cannot be about the proof of facts published in it in the absence of the maker of the statement appearing as a witness. Judicial notice cannot be taken of the fact stated in news item being in the nature of hearsay secondary evidence unless proved by evidence aliunde. It must be proved by the person giving the statement in the newspaper, that the news is true according to his perception.18 SECTION 19[81-A.—Presumption as to Gazettes in electronic forms.—The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.] SECTION 82.—Presumption as to document admissible in England without proof of seal or signature.—When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it

_________________ 16. 17. 18. 19.

Anwar Ali Sarcar v. State, AIR 1955 Cal. 535. Sheoraj v. State, 1964 All 290 (F.B.). Lakshmi Raj Setti v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274; S. N. Balkrishna v. Fernandez, A.I.R. 1969 S.C. 1201; N. Chandhin v. R. G. Lallo, A.I.R. 1971 Cal. 53. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

Page 381

S. 85-A]

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purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland: SECTION 83.—Presumption as to maps or plans made by authority of Government.— The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate. COMMENTS Scope.—This section must be read with Section 36 which deals with statements in maps, etc. These are provable under Section 77 and Section 79 by the production of certified copies. SECTION 84.—Presumption as to collections of laws and reports of decisions.—The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports to decisions of the Court of such country. COMMENTS Scope.—This section must be read along with Section 38, which makes relevant statements as to any law and ruling contained in officially printed books of any country. SECTION 85.—Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or ViceConsul, or representative of the Central Government, was so executed and authenticated. COMMENTS Scope.—Where a close perusal of a document shows that the endorsement in the form of certificate has been appended to the document which shows that it was presented by the executant before the Notary Public and it also shows that the contents thereof were read and explained to the executant which he admitted to be correct and thereafter it had been attested by the Notary Public ; it was held that the execution and authentication cannot be doubted merely on the ground that the document had not been drafted or typed out by executant before the Notary Public.20 SECTION 21[85-A.—Presumption as to electronic agreements.—The Court shall presume that every electronic record purporting to be an

_________________ 20. 21.

Raj Kumar Gupta v. Desraj, AIR 1995 HP 107. Ins. by Information Technology Act. 2000 (Act No. 21 of 2000), S. 92 and Sch.II.

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[S. 85-B

agreement containing the 22[electronic signatures] of the parties was so concluded by affixing the 23[electronic signature] of the parties. SECTION 85-B.—Presumption as to electronic records and 24[electronic signatures].— (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. (2) In any proceedings, involving secure 25[electronic signature], the Court shall presume unless the contrary is proved that— (a) the secure 26[electronic signature] is affixed by subscriber with the intention of signing or approving the electronic record; (b) except in the case of a secure electronic record or a secure 27[electronic signature], nothing in this section shall create any presumpting relating to authenticity and integrity of the electronic record or any 27[electronic signature]. SECTION 85-C.—Presumption as to 28[Electronic Signature 'Certificates].—The Court shall presume, unless contrary is proved, that the information listed in a 29[Electronic Signature Certificate] is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber]. SECTION 86.—Presumption as to certified copies of foreign judicial records.—The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India or Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records. An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent therefor, as defined in Section 3, clause (43), of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place. SECTION 87.—Presumptions as to books, maps and charts.—The Court may presume that any book to which it may refer for _________________ 22. 23. 24. 25. 26. 27. 28. 29.

Subs, for the words "digital signature" by the Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009), Sec. 52 (e) (w.e.f. 27.10.2009). Subs, for the words "digital signature" by the Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009), Sec. 52 (e) (w.e.f. 27.10.2009). Subs, for the words "digital signature" by ibid., Sec. 52 (f) (w.e.f. 27.10.2009). Ibid. Ibid. Ibid. Subs, for the words "Digital Signature Certificate" by ibid., Sec. 52 (g). (w.e.f. 27.10.2009). Ibid.

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S. 89]

OF DOCUMENTARY EVIDENCE

information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published. SECTION 88.—Presumption as to telegraphic messages.—The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent ; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission. COMMENTS Scope.—If a telegram is produced before a court, it may presume that the message forwarded from the telegraph office to the addressee corresponds with a message delivered for transmission; but the court shall not make any presumption as to the person by whom such message was delivered. This has to be proved by evidence. It is true that under Section 88, there is a presumption only that the message received by the addressee corresponds with a message delivered for transmission at the office of origin. There is no presumption as to the person who delivered such a message for transmission. But proof of authorship of the message need not be direct and may be circumstantial. The contents of the messages received, in the context of the chain of correspondence, may well furnish proof of the authorship of the messages at the despatching end.30 SECTION 31[88-A.—Presumption as to electronic messages.—The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent. Explanation.—For the purposes of this section, the expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of Section 2 of the Information Technology Act, 2000.] SECTION 89.—Presumption as to due execution, etc., of documents not produced.— The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. COMMENTS Scope.—If a party is in possession of a document, and despite the notice given to him to produce that document, he does not produce that document the

_________________ 30. 31.

Mubarak Ali Ahmad v. State of Bombay, AIR 1957 SC 857; Manchalal v. Shah Manik Chand, AIR 1988 Karnataka 221. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

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law provides that the conduct of the party justifies an inference being drawn against him and in that sense the principle of necessity is invoked and the courts are authorised to assume that the document which has not been produced, must have been properly attested, stamped and executed in the manner required by law. The condition precedent for the application of Section 89 is that the original document has been called for and has not been produced.32 If no notice is given to produce the original no presumption of due execution can arise.33 SECTION 90.—Presumption as to documents thirty years old.— Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. ILLUSTRATIONS (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper. (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. (c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper. COMMENTS Object.—As a general rule if a document is produced before a Court, its execution must be proved by a witness and if the document is required by law to be attested, its attestation must also be proved by some witness. For example, suppose A files a suit against B alleging that B borrowed Rs. 1,000 from him and executed a pronote. A files the pronote in the Court. C is the scribe of the pronote. Now in this case C must come before the court and depose that the pronote was written by him and that B signed the pronote in his presence. After this deposition of C the pronote shall form part of the record and can be read into evidence. Let us take another example. B executes a mortgage deed for Rs. 1,000 in favour of A. The deed is scribed by C and signed by B in presence of D and E, D and E affix their signatures on the deed in presence of B to complete

_________________ 32. 33.

Kashi Bai v. Vinayak, AIR 1956 Bom. 65. Mira Bai v. Jai Singh, AIR 1971 Raj. 303.

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S. 90]

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the attestation of the deed. After a year or two, A files a suit against B for the possession of the house mortgaged on the basis of the deed mentioned above. B denies to have executed the mortgage deed. A files the mortgage deed in the court and wants to rely upon it. Now A has to produce D or E before the court and the witness so produced must depose that the mortgage deed was signed by B in presence of D and E, and that they (D and E) signed the deed as witness in presence of B. When this formality is observed then and then alone the document will form part of the record and can be looked into. If the documents produced in court are not proved by witnesses they cannot be relied upon. Circumstances may arise when the documents are produced in the court long after they have been executed and the time elapsed between the execution and the production of the document in the court may be so long that all the persons in whose presence the document was executed might have died. If the method of proof mentioned above is strictly followed to such cases, a great hardship would be caused and a number of genuine documents will remain unproved. Section 90 of the Evidence Act is a provision for this kind of emergency. Section 90 lays down that when a document purporting or proved to be 30 years old is produced in a Court from a custody which the court considers to be proper, the court may presume that the signature and every other part of such document is of that very person whose signature or writing it purports to be and in case of a document executed or attested, it shall be presumed that it was duly executed and attested by the persons by whom it purports to be executed and attested. Let us take an example. A executes a will in favour of B in the year 1901. The will was written by C and signed by A in presence of D and E and they affixed their signatures on the will in presence of A as a mark of attestation. In the year 1940, B filed a suit against one X alleging that he (B) became owner of the property through the will mentioned above. X denied the execution of the will. B produced the will before the court. On the date of the controversy, the will was more than thirty years old, it was produced by B in whose possession it naturally should have been and so it was produced from proper custody. It might be presumed by the court that the will was duly executed and attested and B may be exempted from proving the will. The conditions on which the execution of a document may be presumed are that :— (1) It must have been in existence for 30 years or more. (2) It must be produced in court from proper custody. (3) The document must be in appearance free from suspicion. 'Thirty years Old'.—A document may purport to be thirty years old. By the word "purport" is meant stating itself to be. Therefore by the term "a document purporting to be thirty years old" means a document stating itself to be thirty years old. This is illustrated by a document having a date of its execution. If no date is given in a document, it can be proved by extraneous evidence that it was executed thirty years ago. Thus if a document, bearing the

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date by which it is 30 years old, or a document bearing no date but proved to be thirty years old, is produced from a proper Custody its execution may be presumed by the court. The courts should be cautious about the age of a document. A document may be written yesterday and a date of 30 years ago may be given. The will in question was registered document and was more than 30 years old. In absence of any suspicious circumstances regarding its execution, if all attesting witnesses and the scribe to the document and its deed, the question of their examination does not arise. Presumption regarding genuineness of will is proper.34 In Mohamed Bhai Rasul Bhai Malik v. Amir Bhai Rahimbhai,35 Gujarat High Court held, Presumption permissible under Section 90 only relates to the signature, execution or allegation of document i.e. its genuineness. Thirty years old custom cannot be presumed under this section. In Chitra Devi v. Smt. Ram Devi,36 the title suit was executed in 1928 alleged to be proof of the fact that marriage had taken place between the defendant and certain person and not between defendant and plaintiff's father. The plaintiff failed to prove that said document was produced from proper custody from the parties to marriage and not from the custody of the plaintiff. Document was produced for the first time in the first appeal. No evidence was produced by the plaintiff as to how document came in her custody. The document was held not admissible. Reckoning of.—The most important question about reckoning the period of 30 years about a document is the date of the completion of 30 years. A document may be produced in a court before it has completed 30th years, but if at the time when it is tendered in evidence and its genuineness or otherwise becomes the subject of proof and it is 30 years old, its genuineness may be presumed. Let us take an example. If a document is executed on 1st September, 1901 and it is produced in a court on the 2nd of September, 1928; its genuineness will not be presumed on the date of the production. But suppose the suit comes for hearing of the argument on the 25th of October, 1931. Now, by this time, the deed is more than 30 years old and it can be relied upon without proving it as its genuineness can be presumed under Section 90.37 In K. Mani Kyalu v. Venna Perumallayya,38- the Andhra Pradesh High Court held that the period of 30 years for raising presumption under Section 90 is to be computed from the date of execution to the date on which the document was sought to be put in the evidence. 'Proper custody'.—The mere production of an ancient document by a party to. a proceeding affords no ground for its presumption of its genuineness.

_________________ 34. 35. 36. 37. 38.

K. Mani Kyalu v. Venna Perumallayya, AIR 2000 NOC 20 (AP). AIR 2001 Gujarat. AIR 2002 H.P. 59. Surendra Krishna Roy v. Mirza Mohammad, AIR 1936 PC 15; Baldeo Misra v. Bharose Kunbi, AIR 1926 All. 537; Babunandan v. Board of Revenue, AIR 1972 All. 406. AIR 2000 (NOC) 20 (A. P.).,

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S. 90]

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The party producing it must prove that it was in the proper custody. The. term 'proper custody' means from a place where the document might reasonably be expected to be found. It does not necessarily mean the custody of a person in law to hold the document but it means either the custody of a person entitled in law to hold it or any other custody which in the circumstances of the case appears to the court to be consistent with its genuineness. A executes a will in favour of B in the year 1901. It was filed in a case through a lawyer in the year 1930. The lawyer took the paper back from the court. But before he could return it to B, he (B) died. In the year 1940 the paper was summoned by a party to a suit from the lawyer. He produced it in the court. The paper came from a proper custody. In Mohiuddin and others v. President Municipal Committee, Kharaganj,39 the document was of a transaction valued below Rs.100 and it was not registered. If it is presumed that the document was thirty years old and was produced from proper custody ; it cannot be presumed that the contents of document is genuine. So in absence of proof pertaining to delivery of piece of land it will not be believed that the portion of sale deed which mentions the possession and date of document stands proved. Appearance free from suspicions.—Before a 30 years old document is presumed to be genuine it must be free from suspicion of being forged. If a document appears to be forged one, it shall not be presumed to be genuine even if it is thirty years old and is produced from a proper custody. Presumption relates to signature and writing only.—Under Section 90 there is presumption about the signature and the writing which purports to be in handwriting of a particular person. There is no presumption about the truth of the contents of the document under this section.40 Presumption of copies of ancient document.—In the preceding lines we have discussed that when a document, 30 years old, is produced in a court from a proper custody, the court may presume that it has been properly executed and attested. Cases may arise where a document is 30 years old but due to certain circumstances the document itself is not produced in the court, but its copy is produced. In such cases the question arises whether by producing the copy the court can presume that the document was executed and attested by the persons by whom it purports to have been so done, or the party producing it has to prove it by producing witnesses. The copies of document 30 years old may be of two kinds—(1) The copy may be less than 30 years, (2) and it may be 30 years old. Let us take examples. A mortgage deed was executed in 1901. Its copy is produced in 1950. Now the copy might have been prepared in 1910 and so at the time of production it is about 40 years old. The copy might have been prepared in 1949 and so, at the time of production it will be only a year old. Their Lordships of the Privy Council have laid down that "if the document produced is a copy, admitted under Section 65 as secondary evidence

_________________ 39. 40.

AIR 1993 MP 5. Mansoor Ali v. Tayeb Ali, AIR 1935 Nag 156; Kotiswar Mukherjee v. Paresh Nath Mukherjee, AIR 1956 Cal. 205; Bai Sakeena Bai v. Gulam Rasool, AIR 1981 Guj. 142; Ghurau v. Sheo Ratan, AIR 1981 All. 3.

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and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine but it is not sufficient to justify the presumption of due execution of the original under Section 90."41 From this decision it is clear that if a copy of a 30 years old document is produced before a Court, the genuineness of the original cannot be presumed. The party producing the copy has, by adducing evidence, to prove the execution of the original. If the copy is 30 years old it can be presumed that it is a true copy of the original. If the copy is less than 30 years old, even this cannot be presumed that the copy is a true copy of the original. Let us take an example. A dispute arose about the genuineness of a will in 1925. The plaintiff alleged that the will was a forged one. A copy of the will was produced. The copy itself was more than 30 years old. It was held that "the signatures authenticating the copy may be presumed to be genuine." Let us take another example. In the year 1950 A files a suit against B for possession of a house on the basis of a sale-deed alleging that B executed a sale-deed in his favour in the year 1915. B denies to have executed any sale-deed. A produces a certified copy of the sale-deed and proves that the original is lost. The copy has been obtained from the Registration Department in the year 1948. In this case there shall be no presumption that the original sale-deed was executed by B nor shall it be presumed that the signature authenticating the copy are genuine. If A wants to rely on the document of the sale he has to produce some witness who may depose that he was present when the document was executed and that it was signed by B in his presence. The High Courts of Allahabad, Madras and Patna have held relying on the Privy Council ruling mentioned above that production of a copy of a document more than 30 years old will not give rise to any presumption about the genuineness of original.42 Bombay High Court has held that "It is true that when a certified copy is allowed to be produced under Section 90 as to the genuineness of the execution of the original the court should not admit a document merely on the ground that it is a certified copy of a document more than 30 years old and should call for proof of the execution of the document. But when the document is registered such proof is to be found in the certified copy itself."43 The deed being registered, the certified copy bears the necessary endorsement of the Sub-Registrar before whom the executant acknowledged the execution and was duly indentified. Sections 58, 59 and 60, Registration Act provide that facts mentioned in the endorsement may be proved by those endorsements provided the provisions of Section 60, Registration Act have been complied with. And so according to Bombay High Court if a document has been legally and correctly registered more than 30 years ago and if its copy is produced in a court of law, the court may presume that the original deed was executed and attested properly, but if the document is unregistered and its copy is produced no such presumption about the genuineness of the original will arise.

_________________ 41. 42. 43.

Badan Singh v. Brijraj, AIR 1935 P.C. 132. Sangam Lal v. Ganga Deen and others, AIR 1946 All. 389; M. Nataraja Mudaliar v. Poona Kanummal, AIR 1950 Mad. 269. Pandappa Mahalingappa v. Sivalingappa Murteppa and others. AIR 1946 Bom. 193.

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S. 90]

OF DOCUMENTARY EVIDENCE

The controversy between the High Courts in India have been set at rest by their Lordships of the Supreme Court. Their Lordships have laid down : "The language of Section 90 required the production of a particular document in regard to which the Court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under Section 65 and is produced from proper custody and is over 30 years old, then only the signature authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original."44 Soundness of mind is also presumed.—The presumption arising under Section 90 applies even to the fact that the testator was in sound disposing state of mind at the time of execution of the deed. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but in the absence of any evidence as to the state of testator's mind, proof that he had executed a will rational in character in the presence of the witnesses must lead to presumption that he was of sound mind and understood what he was about. This presumption can be justified under express provision of Section 90.45 Anonymous writing.—There can be presumption as to the genuineness of a document 30 years old bearing no name of the executant. The section obviously is intended to apply only to documents which were signed. It does not enable the court to make any presumption about a document which does not purport to be in the handwriting of any particular person.46 'May presume'.—It is not compulsory with the Court to presume the genuineness of a document 30 years old. When the document purporting to be executed before 30 years or more, is produced before a court, it may presume that the document has been written and signed by the person by whom it purports to have been written or signed, or it may require the party producing the deed to prove its execution by producing some witness.47 It is in discretion of a court to presume in favour of a document for which Section 90 applies. The discretion is not to be applied arbitrarily but must be governed by principles which are conjoint with law and justice. And while on the one hand great care is required in applying the presumptions, if a court is a bit careless in presuming the genuineness of a document, forged document recently prepared and anti-dated may be taken to be genuine without proof. On the other hand, it is clear that very grave injustice may be perpetrated if an ancient document coming from proper custody is rejected by court because the party producing it cannot prove it at all the persons who could have proved it are dead.

_________________ 44. 45. 46. 47.

Shital Das v. Sant Ram, AIR 1954 SC 606; Hari Prasad v. Deonarain, AIR 1956 SC 305; Sheo Lal v. Chet Ram, AIR 1971 SC 2342. Munna Lal v. Kashi Bai, AIR 1947 P.C. 15. Dogar Mal v. Sunan Ram, AIR 1944 Lah. 58; Kimbka Das v. Smt. Mathabai, AIR 1930 Nag 225; Bhagirathmal v. Vibhuti Bhusan, AIR 1942 Cal. 309. Ram Milen v. Sher Bahadur, AIR 1976 All. 251; Kotiswar Mukherjee v. Paresh Nath Mukherjee, AIR 1956 Cal. 205; Baldeo Mishra v. Bharose Kunbi, AIR 1926 Alld. 537.

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The presumption discretionary.—The power under Section 90 is only discretionary and not compulsory. The Court may presume the execution of a document under Section 90 or may demand the proof of the documents filed.48 Where the document was gift-cum-will and was 30 years old coming from custody of proper person and was registered, the court presumed its proper execution.49 Opportunity to Party to prove execution of document if presumption not drawn.—If the court does not want to rely on presumption, it is necessary that, party relying on that presumption should be given an opportunity to prove the document by direct evidence otherwise great injustice may result against party who solely relies on provision of Section 90. A party would normally expect that a presumption may be drawn in his favour when the condition of Section 90 is fulfilled. If the court rules otherwise, it is duty bound to give an opportunity to the party to prove the execution of the document by direct evidence if any. However, the party which leads the direct evidence regarding the execution of document is not permitted to rely on presumption under Section 90.50 Where the Gazette notification was issued 32 years prior to the suit and produced in evidence by the plaintiff and no circumstance was proved that it might have not been published as enjoined by the law, the regularity of such notification should be presumed leaving it to the defendants to rebut that presumption.51 The application made for admission to school by the father of the candidate which was more than thirty years old was held to attract presumption under Section 90 in case of a dispute as to caste of the candidate seeking his election.52 [Note.—In its application to State of Uttar Pradesh the following amendments have been made by the U. P. Civil Laws Reforms Act No. 24 of 1954]: State Amendments U. P.— (1) The existing Section 90 shall be re-numbered as Section 90 (1) and for the words (thirty years) the words (twenty years) shall be substituted. (2) The following shall be added as new sub-section (2)— "(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting, and in

_________________ 48. 49. 50. 51. 52.

Ali Hasan v.Matiulla,AIR1988All. 57. Kripal Singh v. Aas Kaur and others, AIR 1997 P & H 240. Chanda Bai v. Anwar Khan, AIR 1997 M. P. 238. Rohit Singh v. State of Bihar, AIR 2007 SC 10 at p. 18. Desh Raj v. Bodh Raj, AIR 2008 SC 632 at p. 637.

Page 391

S. 90] OF DOCUMENTARY EVIDENCE

the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to have been executed or attested." COMMENTS Scope.—The U. P. Amending Act renumbers the existing Section 90 as Section 90 (1) and adds sub-section (2) to Section 90 and one more section as Section 90-A. This amendment is applicable to Uttar Pradesh only. "90-A (1) Where any registered document or a duly certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed. (2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement. The explanation to sub-section (1) of Section 90 will also apply to this section." Principle.—The principles underlying the amended Section 90 subsections (1) and (2) and Section 90-A (as applicable to U. P.) may be summarised as follows :— (a) Where any document, purporting or proved to be 20 years old is produced from a proper custody, the court may presume the genuineness of its execution and attestation. Accordingly if a document is 20 years old, its genuineness may be presumed whether it is registered or not. (b) Where a document purporting or proved to be 20 years old was registered in accordance with the law of registration, and a duly certified copy thereof is produced, the court may presume the genuineness of the execution and attestation of the original. According to this part of the amendment if the copy of an unregistered document is produced, no presumption about the genuineness of the execution or attestation of the original can be made howsoever old the original or the copy may be. (c) Where a registered document or a certified copy of a document which forms part of a record of a Court of Justice (plaint, written statement, application in a judicial proceeding, etc.) is produced from a proper custody, the genuineness of the execution and attestation of the original may be presumed. But if the document or the copies referred to above are the basis of a suit or defence or are relied upon in plaint or written statement the presumption of the genuineness shall not be made. According to this section, if a registered deed, or a copy of a paper of a judicial record are not basis of a suit or defence and they are not relied upon a plaint or written statement the presumption of genuineness may be made even if the document is one day old.

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[S. 90

Consequently in Uttar Pradesh, if an original deed 20 years old (registered or unregistered), a copy of registered deed 20 years old, an original registered deed (not used as basis of suit or defence and not relied upon in plaint or written statement) howsoever new, copies of documents forming part of judicial record (not used as basis of suit or defence and not relied upon in plaint or written statement) are produced the genuineness of their execution and attestation may be presumed. The presumption under Section 90-A, Evidence Act may be made only if the original shows on the fact of it the name of the person by whom it' purports to have been executed. Where the document does not purport to show who prepared and signed it, the fact that it is 20 or 30 years old does not make it admissible without proof.53 Basis of suit or defence.—As mentioned above, if a registered deed or a copy of a judicial record (not being 20 years old) are not basis of the suit or defence, their genuineness may be presumed. The document said to be the basis of a suit or defence when the plaintiff or the defendant basis his plea on the document. A files a suit against B. He alleges that B executed a mortgage deed in respect of 20 bighas of land in his favour for Rs. 20,000 but did not deliver possession. He prays for delivery of possession. The mortgage according to him was executed on the First January, 1956 and the suit was filed in 1957. B denies the execution of the mortgage deed. A files the mortgage deed in the case. In this case the deed is a registered one, but it not being 20 years old and it is the basis of the suit and so no presumption about its genuineness can be made. A has to prove the document. The plaintiff asserted that he was Bhumidhar of plot No. 163. To prove this she filed a registered sale deed. It was held that the basis of the suit was the plot no. 163 of which she asserted to be the Bhumidhar. In proof she relied on the sale deed also as evidence. The sale deed cannot be said to be the basis of the suit.54 If a suit is filed to enforce a registered mortgage deed or to recover possession of property conveyed by a sale deed and in the alternative for the purchase money from the vendor the suit can be said to be based on the mortgage deed or the sale deed as the case may be.55 Ss. 90 and 90-A (as Amended by U.P. Amendment Act).—Section 90-A lays down that where any registered document or a duly certified copy of a document which is a part of a record is produced its genuineness may be presumed, but if such deed or document is a basis of a suit or defence etc. its genuineness shall not be presumed. If a deed or document is covered by Section 90 (2) its genuineness may be presumed even if it is the basis of a suit.56 A registered will was executed more than twenty years old. A certified copy was filed in the case, from the copy the court presumed the genuineness of the document, though it was the basis of the suit.57

_________________ 53. 54. 55. 56. 57.

Amrit Devi v. Shripat Rai, AIR 1962 All. 111. Deochand v. D.D. of Consolidation, 1977 ALJ 992. Hira Devi v. Official Assignee Bombay, AIR 1958 SC 448. Smt Vidya Devi v. Nand Kumar, AIR 1981 All. 274. Ram Jas v. Surendra Nath, AIR 1980 All 385 (FB).

Page 393

S. 90-A]

OF DOCUMENTARY EVIDENCE

SECTION 58[90-A.—Presumption as to electronic records five years old.—Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the 59 [electronic signature] which purports to be the 60[electronic signature] of any particular person was so affixed by him or any person authorised by him in this behalf. Explanation.—Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to Section 81-A]. _________________ 58. Ins. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II. 58. 59.

Subs, for the words "digital signature" by the Information Technology (Amendment) Act, 2008 (Act No. 10 of 2009) Sec. 52 (h) (w.e.f. 27.10.2009). Ibid.

Page 394

CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE SECTION 91.—Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. Exception 1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. Wills admitted to probate in India may be proved by the probate. Explanation 1.—This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one. Explanation 2—Where there are more originals than one, one original only need be proved. Explanation 3.—The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. ILLUSTRATIONS

(a) If a contract be contained in several letters, all the letters in which it is contained must be proved. (b) If a contract is contained in a bill of exchange, the bill of exchange must be proved. (c) If a bill of exchange is drawn in a set of three, one only need be proved. (d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

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S. 91]

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

(e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible. COMMENTS Scope.—There are some kinds of contracts, grants or other dispositions of property which can be created orally without any document. A sells a horse to B for Rs. 50. In this case no written deed is necessary. A may take Rs. 50 and hand over the horse to B. Again suppose B agrees to mortgage his horse to A for Rs. 50. In this case also no document is required. B may take Rs. 50 and deliver the possession of the horse to A. These transactions will be valid without any form of writing. Contrary to this there are certain matters which are required by law to be in writing ; there are some other matters which are required by law to be in writing and registered. The judgment and decrees in civil cases are required by law to be in writing. Similarly, judgment and orders in criminal cases, depositions of witnesses in civil cases, depositions of witnesses in criminal cases, examination of an accused person and many such other things are required by law to be in writing. A mortgage or sale of immovable property for Rs. 100 or more can be effected only by registered document. Principle.—Section 91 lays down that when the terms of the contract, grant or other disposition of properties (though they are not required by law to be in writing) have been reduced to a form of document, and in all cases in which any matter is required by law to be reduced to the form of document, the document itself is to be produced to prove the terms of such contract, grant or other disposition of property or the matter so required to be in writing, no doubt in proper cases secondary evidence may be adduced. Section 91 is based on what is sometimes described as the "best evidence rule". The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the documents except in cases where secondary evidence is allowed to be led under the relevant provision of the Evidence Act.1 Rules of exclusion of oral evidence by documentary evidence.— Section 91 of the Evidence Act excludes admission of oral evidence for proving the contents of a document except in cases where secondary evidence is admissible. Section 92 excludes oral evidence to contradict the terms of a contract where the deed is proved. In a sense the rule enumerated in these sections can be said to be an exclusive rule.2 The terms of a contract and of a grant, etc.—Many contracts, grants or other dispositions of property may be effected orally. But if a party to contract agrees to reduce the terms of a contract to a document it is the best evidence of the terms of that contract. It is a general and most inflexible rule that wherever written instruments are created either due to the requirements of

_________________ 1. 2.

Bai Hira Devi v. Official Assignee of Bombay, AIR 1958, SC 448. Raja Ram Jaiswal v. Ganesh Prasad, AIR 1959 Alld. 29 ; C.C. Reo. Authority v. M/s P.S. Private Ltd., AIR 1968 Madras 223 (FB); Fuljhari Devi v. Mithailal, AIR 1971 Alld 494.

Page 396

EVIDENCE ACT [S. 91 law or by the contracts of the parties to be memorials of truth of the terms of the contract, any other evidence is excluded from being led, either as a substitute for such instrument or to contradict it. There is a matter both of principle and of policy ; of principle because such instruments are in their own nature entitled to a much higher degree of credit than oral evidence ; of policy, because it would be attended with great mischief if those instruments upon which man's right depended were liable to be impeached by loose and uncertain parole evidence. The document which is itself the best evidence of the terms should be produced in the courts. If a document is lost, or is in the possession of adversary, secondary evidence under section 65, Evidence Act of its terms may be adduced.3 Let us take an example. A mortgages his properly to B for Rs. 10,000. A mortgage deed is executed by A. This is also attested by two witnesses and the deed is handed over to B. After a few years A files a suit for the redemption and possession of the property mortgaged. B denies the existence of the mortgage and alleges to be the owner of the property and not a mortgagee of it. In this case the issue would be whether B is a mortgagee of the plots in dispute. In this case none of the parties will be allowed to adduce oral or any other secondary evidence to prove the terms of the mortgage the mortgage-deed must be produced. But in this case, the document being in possession of the adversary (B), A may take a certified copy from the Registration Department and produce it before the court. Again suppose A gives his house on lease to B and there is a written lease comprising its terms. After a few months A files a suit for arrears of rent and for ejectment. A alleges that the tenancy was from month to month and that the rent was settled at Rs. 50 per month, B on the other hand contends that the tenancy ran from year to year and the rent was settled between the parties to be Rs. 300 per year. In this case the terms of the contract between the parties having been reduced to document, none of them will be allowed to adduce oral evidence to prove the terms of the tenancy. The document will have to be produced in court. But a secondary evidence of the terms of the lease may be given where it is shown that the original is lost or that it cannot be found or that it is in possession of an adversary. Only terms of a contract.—The rule laid down in section 91 is that when the terms of a contract have been reduced to writing no evidence shall be given in proof of the terms of the contract except the document itself or in certain circumstance, secondary evidence of the contents. From this it clearly follows that oral evidence of a fact relating to a contract in a writing which are not terms of the contract may be given.4 A pronote for Rs. 500 was executed in favour of C by A and B. Evidence to the effect that it was agreed between the lender and the borrowers that A will be liable to pay Rs. 400 and B to Rs. 100 is admissible because it is not a term of the contract. A question as to who the contracting parties are is not a question as to the terms of the contract and so evidence to this effect cannot be shut out by Section 9. _________________ 3. 4.

Raja Ram Jaiswal v. Ganesh Prasad, AIR 1959 Alld. 29 ; C.C. Reo. Authority v. M/s P.S. Private Ltd., AIR 1968 Madras 223 (FB); Fuljhari Devi v. Mithailal, AIR 1971 Alld 494. Jyagra Mudaliyar v. Vedothonmi, AIR 1936 PC 70 ; P.B. Bhalla v. v. R. Thakkar, AIR 1973 Bom. 365.

Page 397 S. 91]

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

Document inadmissible for want of registration.—Where a document is inadmissible for want of registration, no other evidence of the contents of the document can be received* Secondary evidence of the contents of a document which is inadmissible for want of registration is not admissible.5 A combined effect of section 49, Registration Act and section 91, Evidence Act is to completely shut out all the terms of an unregistered deed compulsorily registerable. A and B partition their property through a partition-deed. They do not get the partition deed registered. Afterwards litigation begins in respect of the properties. It is alleged by A and B that the properties were partitioned by means of an unregistered deed. The deed would be inadmissible. At the same time oral evidence to prove partition will also be shut. Similarly if, property worth Rs. 100 or more is sold by means of an unregistered sale-deed the deed will not be admissible to prove the sale nor will oral evidence be allowed to prove that such and such property was sold for so much money. But unregistered sale deed and partition deed can be proved to establish the nature of the possession. A claims to be the owner of a property. B says that he is a tenant on his behalf. A can prove unregistered sale-deed to prove the nature of possession. Unregistered deed can be used for collateral purpose.6 A deed treated as a partnership deed or family arrangement needed to be registered and an registered one should not be used even to prove that there was a partition an oral evidence regarding partition on the basis of such document could not be led as it was barred by section 91.7 Deeds not contract etc.—It must be borne in mind that oral evidence is excluded by the existence of deed only when the deed contains the terms of some contract or through it some property is disposed or the contents of the document are required by law to be in writing. Adoption of a person is not required by law to be in writing. A deed of adoption merely records the fact that an adoption has taken place. It does not create any right. It is no more than a piece of evidence and the failure of a party to produce it does not bar him from adducing oral evidence.8 Any matter required by law to be in writing.—When the law requires that a particular matter must be in writing, oral evidence cannot be substituted for that writing. The matters required by law to be in writing are public and judicial records such as judgments, examination of witnesses in civil and criminal cases, deeds of conveyance of lands such as sale-deeds or mortgage-deeds of Rs. 100 or more, a partition-deed, a will, and so on. A sues B for the possession of a certain house alleging that it belongs to him (A) and that B is a trespasser. B contends that the house belongs to him. He further alleges that there was previous civil litigation between the same parties for the same house and that it was decided that the house belonged to him (B). The contents of that previous judgment must be proved by the copy of the judgment. Oral evidence is shut out.

_________________ 5. 6. 7. 8.

Pratap Singh v. Biharidas, AIR 1938 PC 21; Puran Chandra v. Kali Das, AIR 1973 Orissa 65. Badri Prasad v. Bhagwan Das, AIR 1956 MB 117; Ram Shanker v. MG School, AIR 1979 All. 184. Ratan Lal v. Hari Shankar, AIR 1980 All. 180. Tahuri Shal v. Jhunjhunwala, AIR 1967 SC 109.

Page 398

EVIDENCE ACT

[S. 91

In a suit for partition if pleading does not contain the fact of partition being fraudulent, the defendant cannot challenge it as being fraudulent. In absence of clear mention of the transaction being fraudulent, no oral evidence will be permitted.9 In Gourang Sahu v. Maguni Devi,10 there was gift of land. The donee has established a mill on the piece of land. His right to alter the condition of land cannot be denied only because the gift was not acted upon. The use of the land gifted is sufficient proof and possession over it gives sufficient proof that the gifted property was accepted by donee. On the gift the donee has acted or not no oral evidence is to be admitted to prove this. Exception 1.—The general rule is that when the contents of a writing is to be proved, the writing itself must be produced or when its absence is accounted for, secondary evidence may be given. To this general rule there is an exception. When it is required that a public officer should be appointed by some writing, and when it is shown that any particular person has acted as such officer the writing by which he has been appointed need not be proved. When the question is whether A is a High Court Judge, the warrant of appointment need not be proved, the only fact that he is working as a High Court Judge will be proved. A appears before a court as a witness. He says that he is a civil surgeon, to establish that he is a civil surgeon he has not to produce the appointment order. He has only to show that he has been working as civil surgeon. The fact that a person has acted in an official capacity is also an evidence of his due appointment to the office, because it cannot be supposed that any man would venture to intrude himself into a public situation which he was not authorised to fill. Exception 2.—To the general rule of producing the writing itself there is one more exception. When a probate has been obtained on the basis of a will and afterwards question arises about the existence of that will, the mere production of the probate will prove the existence of the will, the original will need not be produced. Under this exception the contents of a will of which probate has been granted may be proved by the probate. The word 'probate' means the copy of a will certified under the seal of the court of competent jurisdiction with a grant of administration to the estate of the testator. The probate copy of the will though technically secondary evidence of the contents of the original will, ranks as primary evidence. The executors acquire from the probate their title to administer the estate of the testator and it records the act of the court as to the due execution of the will. It is, therefore, more valuable than the will itself. Explanation I.—A written evidence need not be comprised in a single document, or be drawn up in any particular form. A contract or a grant may be executed by a single document or by several documents. Explanation (1), requires that section 91 applies equally whether a contract, grant or any other disposition of property is comprised in a single document, or in more documents than one. If the terms of the contract, grant or other disposition of the property

_________________ 9. 10.

Raghunath Tiwary v. Rama Kant Tiwary, AIR 1991 Pat. 145. AIR 1991 Orissa 151.

Page 399 S. 91]

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

is contained in documents more than one all the documents are to be produced before the court to prove the terms of the contract. It is not open to a party to a judicial proceeding to lead oral evidence to prove the terms contained in any of the documents. A, a resident of Calcutta proposes to sell a house to B a resident of Delhi. The terms of the sale are settled between them by letters. Five letters on each side comprised the terms of the contract. To prove the terms of the contract all the ten letters are to be produced before the court. Explanation II.—Explanation 2 lays down that when there are more originals than one only one of them is to be proved before the court. A common instance is that of Bills of Exchange of which three are usually executed called the first, second and third of exchange. Explanation III.—Explanation 3 attempts to illustrate what may be called. Exceptions to the rule embodied in this section. In the opening words of the section the facts coming within its purview are described as the terms of the contract or of a grant or of any other dispositions of the property, reduced to writing by agreement of the parties or by the requirements of law. Thus it is clear that section 91 shuts up any other kind of evidence except the original document in cases whether the terms of a contract or of a grant or of any other disposition of property had been reduced to the form of a document by the agreement of the parties or by the requirements of law. Therefore, if in any document there is a statement of facts other than those referred to above i.e., if any document does not relate to any of the three classes of facts mentioned in the section, oral evidence is not excluded by it. When any document relates exclusively to some things other than those referred to in the section, or when any document falling within the section contains statements of other independent facts oral evidence is admissible in proof of them. Illustrations (d) and (e) ought to be read in this connection, payment of money may be proved by oral testimony although a receipt has been given for the same. The factum of contract, etc.—As shown above the terms of a contract and grant or other disposition of property must be proved by the document itself. The section prohibits the reception of the evidence in proof of terms of a document except the document itself. It does not prohibit the reception of evidence to prove the mere existence of the contract, grant or any other disposition of the property. A and B partition their property by an unregistered partition deed. No oral evidence can be given to prove as to which property fell to the share of A or B. But this section does not prohibit the reception of evidence to prove the mere fact that there has been a partition between A and B.11 The rule contained in section 91 applied to the terms and not to the factum of a contract, and evidence in proof of a factum of a contract is not excluded.12 Promissory notes—Proof of oral contract of loan.—Very often a case arises, where a promissory note is insufficiently stamped and so is not admissible in evidence. A promissory note may also be withheld by the person in possession. The question that arises for consideration is as to whether oral

_________________ 11. 12.

Ram Chetty v. Panchammal, AIR 1926 Mad. 402. Deep Chand v. Sajjad Ali Khan, AIR 1951 Alld. 93 (FB) ; Tyaga Rage v. Vidathami, AIR 1933 P.C. 70; Singhleshwar v. Ajab Lal, AIR 1941 Pat. 147.

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EVIDENCE ACT [S. 91

evidence is proved the debt in cases where the pronote is inadmissible not being properly stamped or where it is withheld by the person in possession. Formerly the Allahabad High Court13 held that where money is lent on terms contained in a promissory note given at the time of loan both the promissory note and the lending being part and parcel of the same transaction, the lender suing to recover money so lent must prove those terms of promissory note. If for any reason such as the absence of proper stamp, the promissory note was not admissible in evidence, the plaintiff was not entitled to set up a case independent of the pronote in view of the provisions of Section 91. He cannot recover the money by proving orally the terms of the contract. But it has been held14 that the pronote could not be said to contain all the terms of the contract of loan and therefore the contract of the loan could be proved independently of the pronote. In this case it was held that it was immaterial that the promissory note and the loan of money were part and parcel of the same transaction and were made simultaneously, that even in such a case promissory note ordinarily and presumably is given as a conditional payment or as a collateral security and the advance of the loan was a distinct and separate cause of action by itself which could be sued upon and proved by other evidence, even though the promissory note was not admissible in evidence. In Major Mistry15 ft was laid down that in the case of the simultaneous loan and pronote, where the plaintiff's cause of action on the pronote fails by the reason of the pronote being inadmissible for want of due stamp his cause of action based on debt in the absence of special circumstances survives and he can fall back upon it and prove the debt by the independent evidence. Allahabad High Court16 has again held that where promissory note and transaction of the loan take place simultaneously, promissory note was a mere collateral security. If the promissory note was inadmissible, suit on basis of original loan was maintainable and Section 91, Evidence Act, was not applicable to such cases. The Patna High Court17 has held that when a cause of action for money is once complete, the debtor gives a hand note to the creditor for the payment of money at the future time, the creditor, if the note is inadmissible may always sue for the original consideration and parole evidence can be allowed of the transaction. The Madras High Court18 has held that if the promissory note embodies all the terms of the contract and the instrument is improperly stamped no suit on the debt will lie. But if it does not embody all the terms of contract the true nature of transaction can be proved ; that where an instrument has been given as collateral security or by way of conditional payment, a suit on the debt will lie. The fact that the execution of promissory note is contemporaneous with the borrowing cannot, exclude the possibility of the instrument having been given as collateral security or by way of conditional

_________________ 13. 14. 15. 16. 17. 18.

Nazir Khan and others v. Ram Mohan Lal and another, AIR 1931 Alld. 183 (FB). Shiva Nath Prasad v. Sarju Nonia and another, AIR 1941 All. (FB) overruling 1931 Alld. 183(FB). Major Mistry v. Mst. Binda Devi, AIR 1946 All. 126 (FB). Lakshmi Narain v. Aparna Debi, AIR 1953 All. 535 (DB). AIR 1933 Pat. 577. Perumal Chettiar v. Ram Kashi Ammal. AIR 1938 Mad. 785(FB).

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payment. Whether the suit lies on the debt apart from the instrument, therefore depends upon the circumstances under which the instrument was executed.19 Bombay High Court20 has held that where contract may be considered as contained wholly in the promissory note or bill of exchange, if the plaintiff cannot sue on promissory note he can not sue at all ; but secondly if the promissory note may be regarded as a conditional payment of the amount of the loan in which case if the promissory note is insufficiently stamped it is only a worthless piece of paper and the plaintiff can sue on the loan. It was also held that if the promissory note was passed by the security of the loan, suit could be brought on the loan. Nagpur High Court21 has held that the debt can be proved by oral evidence independently of the promissory note only if the party intended that it was collateral to an oral contract by way of giving security for the loan or making conditional payment of the debt antecedent or contemporaneous. Thus almost all the High Courts of India are of the opinion that apart from the promissory note there is always a contract to repay a loan and such contract can be proved independently of the instrument. SECTION 92.—Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for so purpose of contradicting, varying, adding to, or subtracting from, its terms : Proviso (1).—Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure of consideration, or mistake in fact or law. Proviso (2).—The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3).—The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4).—The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property,

_________________ 19. 20. 21.

Lal Chand v. Pyare Dasrath, AIR 1971 MP 245 ; Hastimal and Co. v. Lingeta Swami, AIR 1972 AP 282. Jacob & Co. v. A.P. Vicumsey, (1926) 26 Bom. LR 432. AIR 1936 Nag, 225.

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may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).—Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved : Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract. Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts. ILLUSTRATIONS (a) A policy of insurance is effected on goods "in ships from Calcutta to London." The goods are shipped in a particular ship which is lost. The fact that, that particular ship was orally excepted from the policy, cannot be proved. (b) A agrees absolutely in writing to pay B, Rs. 1,000 on the 1st March, 1873. The fact that, at the same time an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved. (c) An estate called "the Rampur tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved. (d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved. (e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would be law entitle him to have the contract reformed. (f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired. (g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought of A a horse for Rs. 500." B may prove the verbal warranty. (h) A hires lodging of B, and gives B a card on which is written— "Rooms, Rs. 200 a month". A may prove a verbal agreement that these terms were to include partial board.

Page 403 S. 92] OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally. (i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this. (j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered. COMMENTS Sections 91 and 92.—Section 91 lays down that when the terms of a contract have been reduced to writing the writing itself should be produced and no other evidence will be admissible. Section 92 lays down that when the terms of a contract, grant or other disposition of property or any matter required by law to be in writing have been proved by filing the document (as laid down in Section 91), the parties to the contract or their legal representatives cannot be allowed to lead oral evidence for the purposes of contradicting, varying, adding to or subtracting from the contract. The section precludes the parties to the document and their representatives-in-interest from giving oral evidence concerning the contents of the document. Other parties are left free to give such evidence.22 It is after the document as has been produced to prove its terms under Section 91 that the provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. It would be noticed that Sections 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of Section 92 and Section 92 would be imperative without the aid of Section 91. The two sections, however, differ in some material particulars. Section 91 applies to all documents whether they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike Section 92 the application of which is confined only to bilateral documents. Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instruments or their representative in interests. What section 91 prohibits is the admission of the oral evidence to prove the contents of the document. Whether or not the terms of a document could be varied by proof of an oral agreement is a matter which is not covered by section 91 at all. That is subject-matter of section 92 and so if section 92 does not apply there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction.23

_________________ 22. 23.

Vishwa Nathan v. Abdul Majid, AIR 1988 SC 1. Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448.

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Suppose A borrows Rs. 200 from B and executes a pronote. In the pronote the rate of interest is given 1 per cent, per month. B files suit for recovery of the principal and interest at the rate of 1 per cent. The pronote is filed and proved in the Court. A wants to lead evidence to the effect that the interest settled between the parties was 1/2 per cent., and not 1 per cent, per month. Now this evidence cannot be allowed as it contradicts the terms of the pronote. In Raj Kumar Rajindra Singh v. State of Himachal Pradesh,24 it was held by the Supreme Court that if the terms of the documents are clear and unambiguous, extrinsic aid to ascertain the true intention of the parties are inadmissible because Section 92 mandates that in such cases the intention must be gathered from the language employed in the document. But if the knowledge employed as given admits variety of meanings, 6th proviso to the section must be invoked which permits the tendering of evidence extrinsic evidence as to acts, conduct and surrounding circumstances. Thus we see that when the terms of a contract grant, or other disposition of property or any matter required by law to be in writing has been proved by producing the document, no oral evidence, to contradict, vary, add or subtract from the terms of such document will be allowed to be adduced by a person who was a party to such a deed or who is a representativein-interest of a party to such document. In Gurdial Singh v. Raj Kumar Aneja,25 the question was as to validity of lease deed. The question was as to whether occupants were tenant or sub-tenant. Occupant can raise the plea that transaction between owner and tenant is not what it appears to be just by reading the lease deed. They however neither raised the plea nor adduced other evidence for contradicting varying addition, subtraction or substituting from the terms of lease deed. They were not parties to the lease deed. In these circumstances, the provision of Sections 91 and 92 would not be attracted. It must be borne in mind that only a party to a deed or his representatives-in-interest are precluded from adducing oral evidence against the terms of a contract. Again the evidence that is to be excluded is the evidence affecting the terms of the contract. If the oral evidence does not contradict the terms, it can be adduced in spite of the fact that a document has been proved. Thus we see that (1) the persons precluded from adducing oral evidence contradicting the terms of written contract are the parties to the contract of their representative-in-interest, (2) an oral evidence is excluded only when it affects the terms of a contract, grant or other disposition of property. Parties to the instrument.—Section 92 applies only as between the parties to a transaction and those claiming under them. A person who is not a party to a contract can adduce to contradict, vary, add to, or subtract from the terms of a contract. On 26th November, 1942, B executed a sale-deed in favour of A, for Rs. 200. On the same date A executed another document by which he agreed that if B paid back Rs. 200 within three years he would return the

_________________ 24. 25.

AIR 1990 SC 1833. AIR 2002 SC 1003

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property to the vendor B. On 6th November, 1943, B executed another deed by which the right of the vendor to get back the property on payment of Rs, 200 were also conveyed to the vendees. No suit was filed to pre-empt the sale-deed of 1942. The plaintiff filed a suit to pre-empt the sale-deed of 1943. He said that the transaction of 1942 was not a sale but a mortgage. Now the deed was sale in terms and so A or B could not be allowed to say that it was not a sale. But the plaintiff of the present case not being a party to the deed was allowed to adduce evidence to the effect that the transaction was really a mortgage though it, purported to be sale. A was the landlord and B an occupancy tenant of a plot. B executed a lease by a patta in favour of C. A filed an application for ejectment and alleged that the transaction was not lease but a sale. He was allowed to lead evidence to that effect as he was not a party to the lease. This section applies to all parties to a document whether the dispute arises between parties on the one side and the other or between the parties on the same side. In a document there may be many persons on one side. Two or more persons may be vendors and vendees. The parol evidence rule applies between vendees inter se or vendors inter se. It should be remembered that the right of a stranger to vary a written contract by oral evidence is confined to rights independent of the instruments, the terms of which he tries to contradict by oral evidence. Therefore, where one, though not a party to the instrument, bases his claim upon it, and seeks to render it effective in his favour as against the other party to the suit, by enforcing a right originating in the relation established by it or which is founded upon it, the parol evidence rule applies and he cannot adduce oral evidence to vary the terms of the contract. In short the plaintiff has to choose. If he wants to rely upon a document, he cannot adduce oral evidence to contradict the terms. Where the official assignee moves the Insolvency Court under Section 65 of the Insolvency Act for a declaration that a deed of gift executed by the insolvent in favour of his wife and sons, appellants, was void, it is open to the appellants to lead oral evidence to show that transaction evidenced by the deed of gift was in reality a transfer for consideration. Section 92 of the Evidence Act is wholly inapplicable to the proceeding. The application of the rule contained in section 92, Evidence Act, is limited to cases as between parties to the instrument or their representative-in-interest. Persons other than those, are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to, or subtract from the terms of the document. This position is made absolutely clear by the provisions of Section 99 itself. When the official assignee moves the Insolvency Court under Section 55 of the Insolvency Act, he cannot be said to be the representative-in-interest of the insolvent in those proceedings. The rule of exclusion enunciated by Section 92 applies to the parties to the document and is based on the doctrine of mutuality. It would be inequitable and unfair to enforce that rule against a party to a document or his representative-in-interest in the case of a dispute between the said party or his

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representative-in-interest on the one hand and the stranger on other. In this view, the appellants, who are the representative-in-interest of the insolvent can avoid the application of Section 92 and are entitled to lead oral evidence in support of the plea raised by them. The rule laid down in Section 92 comes into operation only when both the parties of the suit or proceeding are the parties to the document or their representative-in-interest. If only one of them stands in this character oral evidence, to contradict, vary, add to, or subtract from the terms of the document can be given.26 The suit was brought by the respondents. William Francis Legge on the 5th November, 1894 for the redemption of an alleged mortgage of the 4th February, 1873, on which date he executed to Balkishan Das, the appellant, together with Haridas, since deceased, a firm of bankers in Banaras a deed of sale to them of his estate, for Rs. 1 lakh 20 thousand. A second deed, and an ikrarnama was executed by banking firm to the plaintiff on the same day and bore the same date. By this ikrarnama the firm agreed that they would sell taluk to him if he paid on the 1st March, 1876 the sum of Rs. 1 lakh and 65 thousands. The defence of Balkisan Das and of the sons of Haridas was that the transaction of 4th February, 1873, was a sale out-and-out and not a mortgage. Evidence of the respondent was admitted by the trial Judge for the purpose of proving the real intention of the parties, and such evidence was to some extent relied upon in both courts. It was held that oral evidence for the purpose of ascertaining the intention of the parties to the deed was not admissible. By Section 92 of the Evidence Act no evidence of any oral agreement or statement can be admitted as between the parties to such instrument or their representative-in-interest for the purpose of contradicting, varying or adding to, subtracting from its term subject to exceptions contained in the several provisions. Affecting the term of any contract, grant or disposition of property.—It is clear from the section itself that only that oral evidence is excluded, which contradicts, varies or adds to, or subtracts from the terms of a contract, grant, or other disposition of property.27 Therefore if a document is neither a contract, nor a grant, nor a disposition of property, oral evidence can be adduced to vary its contents. A pays Rs. 20 to B as arrears of rent, B executes a receipt. Now this is not a contract nor a grant or other disposition of property and so B in a suit may say that as a matter of fact A paid him Rs. 10 and took a receipt of Rs. 20 promising that he would pay Rs. 10 within a week. A certain item of property sold is not mentioned in the sale deed by mistake, oral evidence can be given of payments of rents by tenants for which written receipts have been granted be allowed to be proved by oral evidence. Again in case of a contract anything which is not a term of the contract may be contradicted by oral evidence. When A executed an agreement in favour of B to work his land at lease. Afterwards B filed a suit for arrears of rent. A

_________________ 26. 27.

Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448. Balkisan Das v. W.F. Legge, ILR 22 Alld 149.

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pleaded that actually there was no lease, the agreement had been executed in pursuance of benami transaction to protect land from creditors of B. The oral evidence was allowed as it did not affect the terms of the contract, rather it showed that there was no transaction at all. Section 92 is applicable only to .parties to the instrument and not to the strangers to the instrument. Bar is with respect to oral evidence to disprove the terms of a contract and not to disprove the contract itself. The said bar was thus not applied to the Criminal proceeding where prosecution was trying to prove that the documents (executed between accused and witnesses) were fictitious documents created to offer an explanation for disproportionate wealth acquired by the accused.28 The name of parties whether a term of contract.—According to one view the name of parties are the terms of a contract and so oral evidence to the effect that some other persons are also parties to a contract is barred.29 To the contrary it has been held that the names of parties not a term of contract.30 To the general rule that no oral evidence will be allowed to contradict or vary the term of a document, there are six exceptions (in the form of provisos) as follows : Proviso (1): The facts invalidating the document.—No man will be debarred from proving a fact, which will invalidate the contract. A contract, created by fraud, undue influence is invalid and not enforceable. So a man can easily prove such facts though the contract has been reduced to writing and that deed has been filed and proved under section 91, Evidence Act. A executes a sale deed in favour of B for Rs. 3,000. In the sale-deed naturally A writes that he is taking Rs. 3,000 from B and is selling his house to him. Afterwards A files suit against B alleging that B and the men of his party were harassing him. They filed many false cases to coerce him, and that due to this pressure and out of fear he executed the sale-deed without any money and without any intention to pass title in the property to B. He seeks the cancellation of the sale-deed and possession over the property. B contends that the sale-deed is genuine. B files the sale-deed and proves it. But still A will be allowed to adduce evidence of the facts alleged by him because if they are proved the sale deed will be invalid. Again suppose A executes a gift-deed in favour of B in respect of some land. In the deed it is scribed that A loves B and out of love and affection he is gifting the property to him. Afterwards A challenges the gift-deed on the ground of fraud. He may lead evidence B made an agreement to take a mortgage of some property from him, but by playing fraud upon him got a gift-deed executed. The owner of a house borrowed a sum of money and executed a nominal sale deed and rent note. She was allowed afterwards to prove that the documents were not intended to be acted upon and that the rent paid by her represented interest on loan.31 Thus it is settled that parol evidence is

_________________ 28. 29. 30. 31.

R. Janaki Raman a State, (2006) 1 SCC 697. Shankar Bardh v. Shankar Babaji, AIR 1956 Bom. 165 ; Hari Singh v. Umrao Singh, AIR 1979 All. 56. Ram Narain v. Kedar Nath, AIR 1965 Pat. 463. Gangabai v. Chabbubai; AIR 1982 SC 20.

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admissible to show that the writing is not really the valid transaction which it purports to be. In K.M. Rajendran v. Arul Prakasham and others,32 it was held by Madras High Court that even though proviso (1) to Section 92, it is open to the party to the agreement to lead evidence to vary, he or she is precluded from varying the consideration amount either less or more than what it is specified in that agreement. In Iswar Das (dead) through LRS. v. Sohan Das (dead) through LRS,33 the Supreme Court held that where the document was alleged to be sham, the oral evidence to prove that the document was sham was admissible. Plea of the defendant mortgagee that real relationship between plaintiff and defendant was of landlord and tenant and mortgage was only collecteral security to ensure the vocation of leased premises by the mortgagee and therefore mortgage deed was sham, was not tenable because if it was a deed of collateral security by the defendant. The defendant would have had executed a deed in favour of plaintiff and not vice versa. Proviso (2) : Separate oral agreement.—Separate oral agreement, under this clause clearly refers to contemporaneous or prior oral agreement because an oral agreement, entered into after the document has been dealt with in proviso (4). When there is a prior contemporaneous oral agreement about a matter on which the document is silent, proof of it can be given only when such oral agreement is not inconsistent with or does not contradict the terms of the contract. The proviso requires that (1) the separate oral agreement should relate to a matter on which the document is silent and (2) that it is not inconsistent with the terms.34 A and his brothers B and C enjoyed a property for four months a year by turns. A, while enjoying the property, gifted away his share to B after he had enjoyed it for two months and delivered the possession to him at once. B executed another deed by which he agreed to pay Rs. 12 per month to A for life. Afterwards A filed a suit against B to recover the profits of two months which he did not enjoy after the gift. He alleged that at the time of the passing of the gift-deed he and B had agreed that he would be receiving profits till the expiry of his term of enjoyment. This evidence was allowed. A borrowed Rs. 2,000 bearing interest of 6% per annum from B and executed a simple mortgage. B cultivated some fields from A as his tenant. In the suit for account of the debt A pleaded that B was not entitled to any interest as it was agreed between them that interest of the debt would be set off against the rent of the fields. As the mortgage was silent on this point and it was not inconsistent with the terms of contract, it was held admissible. Proviso (3) : Separate oral agreement as condition precedent.— This proviso lays down that where there is oral separate agreement to the 32. 33. 34.

AIR 1998 Mad 336 AIR 2000 SC 426. Bal Ram v. Ramesh Chandra. AIR 1973 Orissa 13; Rati Singh v. Ram Prasad, AIR 1971 Pat 156.

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effect that the terms of a written contract will not take effect or will be of no force until a condition precedent has been fulfilled or a certain event has happened, oral evidence is admissible to show that the condition not having been performed the contract did not mature and so was not enforceable.35 (i) N entered into a contract with S and agreed to sell his field for Rs. 250. Out of this amount Rs. 75 was taken by N as an earnest money. N executed a contract to sell acknowledging the receipt of Rs. 75 and promising to sell his field for Rs. 250 and that he would execute and register a sale-deed within 8 days when the balance of Rs. 175 was to be paid to him. N failed to execute any sale-deed. S filed a suit for specific performance of the contract to sell and prayed that N should be compelled to make the sale as agreed upon. The defendant N pleaded, that there was an oral condition simultaneously with the sale-deed that S would execute a deed of reconveyance to the effect that if N paid the sum of Rs. 250 within a specified period he would return the field to him. He further contended that as the plaintiff avoided the execution of the deed of reconveyance the sale-deed was not executed. It was held, "that is clearly a condition precedent which the defendant was entitled to prove. Here, there is no agreement to defeat the deed of sale or vary the terms thereof but an agreement which would suspend the implementing of the terms contained in the Isar Chitti (contract to sell). As that agreement was broken by the plaintiff it necessarily follows that he is not entitled to the specific performances of the agreement and to have a sale deed executed." Where the Promissory note is, by its express terms, payable on demand, that is, at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until certain specified condition is fulfilled has the intention and effect of suspending the coming into force of that obligation, which is the contract contained in the promissory notes. Such an oral agreement constitutes a condition precedent to the attaching of the obligation, and is within the terms of the proviso."36 (ii) A pronote was executed for Rs. 7,500 and was payable at demand. A suit was filed on the basis of this. The defendant pleaded that there was collateral oral agreement not to enforce the pronote for 5 years. The evidence was allowed.37 (iii) A agreed in writing to purchase B's interest in a patent. A failed in his promise. B filed a suit for specific performance praying that A may be ordered to purchase his (B's) interest in the patent. A was allowed to prove that there was an oral agreement at the time of the writing to the effect that he would purchase the interest of B only

_________________ 35. 36. 37.

Bal Ram v. Ramesh Chandra, AIR 1973 Orissa 13. Roland Ady v. Administrator Burma, AIR 1938 PC 198. Naraindas v. Papammal, AIR 1967 SC 333.

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when A's engineers approved the patent and that the engineers did not approve of it. Thus we see that we may show by oral evidence that a document signed as an agreement had not been intended by the parties to operate as a present contract but that it was meant to be conditional on the happening of an event which had never occurred. Under this clause the evidence of that oral agreement is admissible which does not vary the terms of the contract but only postpones its operation till the happening of certain incident. According to this proviso until the condition is performed there is in fact no written agreement. "It is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from the agreement that the instrument should not be an effective instrument until some condition is fulfilled, to put it in other form, it is necessary to distinguish an agreement in defeasance of the contract from an agreement suspending the coming into force of the contract contained in the promissory notes." It should be borne in mind that this rule would never apply to a case where the written contract has been performed or acted upon for some time. The evidence of oral agreement suspending the operation of a written contract can be invoked only in cases where the written contract has been completely ignored. W is the wife of one H. They separated from each other. H executed an annuity bond by which he agreed to pay certain sum of money to W per year. The annuity bond was acted upon for some time and H paid annuity to W as agreed upon through the bond. Afterwards H stopped the payment. W filed a suit for arrears of maintenance. H tried to prove a contemporaneous oral agreement to the effect that W should continue chaste in order to entitle her to maintenance. It was held that the bond having been acted upon for some time the oral agreement could not be said to be a condition precedent to the operation of the written contract within the meaning of proviso 3 and so was not admissible in evidence. Proviso (4) : Distinct oral subsequent agreement to rescind to, renew or modify contract.—Evidence can be given to prove any subsequent oral agreement rescinding or altering the terms of all the written contracts except the contracts which are required by law to be in writing or which have been registered. Mortgages with possession or sale of immovable property for rupees one hundred or more must be in writing and registered. So when a sale deed or mortgage has been registered no subsequent oral evidence to rescind or modify the terms of it can be given. Where a transaction has been reduced into writing not because the law requires it to be so done, but by agreement for the convenience of the parties, an oral evidence of any subsequent oral agreement modifying or rescinding it altogether is admissible. The reason is clear. After entering into a contract the parties are free to contract again, waiving, annuling, modifying, or altering the previous contract. The second contract does not form part of the first contract but it is a separate distinct transaction. It is a sort of renovation of the old contract.

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The old contract is replaced by a new one. But it must be borne in mind that the oral agreement must be subsequent in time. In S. Saktivel (dead) Rep. by L.R. v. Venugopal Pillai,38 the Supreme Court held that proviso 4 of Section 92 provides that where a contract or disposition not required by law to be in writing had been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by oral evidence and such evidence is admissible. The Second part of the proviso 4 to Section 92 does not permit leading a part (oral) evidence for providing a subsequent oral agreement modifying or rescinding the registered document. The terms of a registered document can be altered, rescinded or modified only by subsequent registered document and not otherwise. Proviso (5) : Any usages or customs by which incidents not mentioned in any contract are usually annexed to contract.—Parol evidence of usages or customs is always admissible. Where the object is to make intelligible to the court the meaning in which the parties have used language the parol evidence may be given to prove any local custom of the general application so that it may be applied to the subject matter and bind the parties to a written contract, unless it is inconsistent with the writing. In commercial transactions sometimes such terms are used which have got attached to them some peculiar meaning by customs. Thus in a case about the lease of the right of the fishery evidence was held to be admissible to show that the word san (year) did not signify the Bengali year from Baisakh to Chait but Asarh from which the month Jalkar tenancy begins. The law was thus explained by Collery Judge, "Mercantile contracts are very often framed in a language peculiar to a merchant. The intention of the party though perfectly well known to themselves would often be defeated if the language were strictly construed according to its ordinary import in the world at large. Evidence therefore of mercantile customs and usages is admitted in order to expound it and arrive at its true meaning." While entering into a contract in respect of a subject-matter about which a known usage prevails, parties proceed with the tacit assumption by that usage ; they commonly reduce in writing the special particulars of their agreement but omit to mention those known usages, which are included as of course by mutual understanding. In some parts of our country it is customary to sell mangoes by counting of gahees. One gahee consists of five mangoes and one hundred consists of 28 gahees Now ordinarily speaking 20 gahees will make hundred but due to custom in those parts of country 100 will mean 28 gahees i.e., 140 mangoes. Now suppose A agrees, to sell B ten thousand mangoes at the rate of Rs. 10 per hundred. A deed of contract is executed in which A mentions that he will sell to B ten thousand mangoes at the rate of Rs. 10 per hundred. Now in a case arising out of this contract B will be allowed to lead evidence that there was a custom in his locality by which 100 mangoes will mean 28 gahees, i.e., 140 mangoes. Cases are familiar where a 1,000 have been held to mean 1,400.

_________________ 38. AIR 2000 SC 2633.

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Proviso (6) : Extrinsic evidence of surrounding circumstances.— Whenever a court has to deal with a document which has been proved, its object is to endeavour, to ascertain its real meaning and for this purpose extrinsic evidence is sometimes necessary. So the proviso (6) says that "any fact may be proved which shows in what manner the language of a document is related to the existing facts." The object of the admissibility of the evidence of the surrounding circumstances is to ascertain the real intentions of the parties but those intentions of the parties must be gathered from the language of the document as explained by extrinsic evidence. No evidence of any intention inconsistent with plain meaning of the words used will be admitted for the object is not to vary the language used, but only to explain the clause in which the words are used by the parties to the deed. Let us take examples. A makes a grant to B in respect of some property situated in village F and in his (A's) cultivation. B files a suit for the possession of that land. The document embodying the grant is filed and proved. B will be allowed to prove by oral evidence as to what land was in possession of A at the time of the grant. A makes a will of his property to his children. He does not name them. Evidence may be given to prove as to who are his children. Certain premises were leased including yard, the length and breadth of the yard was given in the lease. There was a cellar under the yard. There was a question whether the cellar was included in the lease or not. It was held that oral evidence was admissible to prove that at the time of the lease the cellar was in occupancy of another tenant and therefore it could not have been intended by the parties that it should be included by the lease in question. If some condition of a document is unambiguous, then to determine the real intention of the parties extrinsic evidence is not allowed because Section 92 provides that the real intention of the parties to the document should be gathered from the language used in the document. But if the document is ambiguous and there is more than one meaning of the language used in document then, the sixth proviso of Section 92 should be looked into which gives permission to the court to take into consideration the conduct of the parties and surrounding circumstances in order to ascertain the real meaning of the document. In the cases of this type the oral evidence of this type can give direction to the court to ascertain the real intention of the parties to the document. In these cases the subsequent conduct of the parties provides the evidence to ascertain the real intention of the parties and to remove the ambiguity in the language of the document.39 Where the consent decree did not cover entire disputes between the parties and some vagueness remained, the factual background as also the manner in which the existence of rights had been claimed by the parties would be relevant and Section 92 would not be attracted.40 Latent and Patent ambiguity Sections 93 to 98 lay down the rule about admission or exclusion of extrinsic evidence in connection with facts contained in any document whether

_________________ 39. 40.

Raj Kumar Rajindra Singh v. State of Himachal Pradesh, AIR 1990 SC 1833. Paraya Allayya Hittalmani v. Parayya Gurulingayya Poojari, AIR 2008 SC 241 at pp. 244-245.

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it is a contract or not. Where a document has been filed in a court and proved, the function of the court is to interpret it so as to find out the true meaning of the words used and to give effect to the true intention of the maker. Sections 93 to 98 lay down rules as to interpretation of document with the aid of extrinsic evidence. Interpretation means ascertaining the meaning of the language of a document or the manner in which it is related to existing facts. Sometimes the real meaning of a document is not clear without the aid of some facts extraneous to the deed. The language of the document is ambiguous and it can be made clear by introducing new facts. A makes a will to the effect "My estate is to go to my wife and daughter." He dies. After his death it transpired that he had four daughters. Now the will in itself is ambiguous. It is not clear as to which of the daughters was to get the property with her mother. Suppose three of the daughters are rich and living with their husbands and fourth one is a widow and is living with her mother. If this is proved it may be inferred that the father meant that daughter and the ambiguity may be removed. This ambiguity of the language of a document may be divided in two groups. (1) Patent ambiguity, and (2) Latent ambiguity. Patent ambiguity is that which appears to be ambiguous upon the face of the deed of the instrument. Latent ambiguity is that which seems certain and without ambiguity for anything that appears upon the deed, but here is some collateral matter out of the deed that breathes the ambiguity. To be clear patent ambiguity is that where the language of the deed is uncertain and nobody can be certain, as to what does the language mean exactly. A agrees in writing to sell his house to B for Rs. 1,000 or Rs. 2,000. Here the deed is ambiguous. Where the deed is ungrammatical and cannot be read literally so as to give any clear meaning without adding to or removing some words the ambiguity is patent. If a deed contains blanks, the ambiguity is patent. Latent ambiguity, on the other hand, is not present in the deed but it is raised by extrinsic facts. The meaning of the deed is plain and clear but when it is applied to existing facts ambiguity arises. If the deed is read its meaning is clear but when it is applied to facts ambiguity arises. A good test of difference between latent and patent ambiguity is to put the document into the hands of an ordinary intelligent educated person. If upon reading the document he detects the ambiguity and says that he cannot be definite as to the meaning of the language of the deed the ambiguity is patent. On the other hand, if on perusal he sees no ambiguity and is definite about the meaning of the document but when he applies the instrument to facts, ambiguity arises and the meaning becomes indefinite, the ambiguity is a latent one. Let us take examples. A executes a gift to the effect 'I gift ... to ......he will enter in possession". Every English knowing person will be at a loss to find out as to who was the person in whose favour the gift was executed. It cannot be known what is properly gifted. Here the ambiguity is present in deed itself. Again suppose A executes another gift to B to the effect, "I gift my house in Calcutta to A". Here the meaning is clear a house in Calcutta is given to B, But when B, tries to get possession of the house and tries to find it out he comes to know that A had no

Page 414

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[S. 92

house in Calcutta, rather he had a house in Howrah. Now here the meaning of the language of the gift-deed was clear in itself but when applied to fact it seems to be wrong and unmeaning. As there was no house of A in Calcutta he could not gift any house of Calcutta and so the meaning of the deed becomes doubtful and ambiguous. Distinction between Patent and Latent Ambiguity Patent Ambiguity Latent Ambiguity 1. Patent ambiguity is where the language of document is so uncertain and effective that no meaning can be given to the document. 2. The Patent ambiguity is personal and it is related to the person who executes the document. 3. No oral evidence is allowed to remove patent ambiguity. 4. Patent ambiguity is based on rule that patent ambiguity makes the document useless. 5. Patent ambiguity is on face of document and is evident from inspection of document itself.

1. Latent ambiguity is such where the language of document is certain and meaningful but the language of document is not applied to the present circumstances. 2. Latent ambiguity is objective in nature and it is related to subject matter and object of document. 3. Oral evidence is permitted to remove latent ambiguity. 4. The rule of giving oral evidence in case of latent ambiguity is based on principle that latent ambiguity does not make the document useless. 5. Latent ambiguity is not evident from prima facie inspection of document but becomes apparent when the language of document is applied to existing circumstances.

Under the Indian Evidence Act latent ambiguity may be divided in three groups: (1) Where the language used in a document is clear and plain but due to some mistake in description the document becomes unmeaning in reference to existing facts. A sells to B "My house in Calcutta." A has a house in Howrah but no house in Calcutta. Here the deed becomes ambiguous due to the fact that A has no house at Calcutta. (2) Where the language of the deed is clear and plain but it turns out that there are more than one person or thing to which the description applies. A agrees to sell to B "my white horse." The meaning of the language is not ambiguous at all. But it turns out that A has 2 white horses and this fact makes the document ambiguous and it becomes uncertain as to which horse was sold.

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(3) When the language of a deed is plain and intelligible in itself, but when applied to existing facts a part of it applies to the existing fact and another part of the document applies to another fact and the whole of the document does not apply to any of them. A agrees to sell to B "My house at Calcutta in possession of Y'. The meaning of the language is not ambiguous at all. But it transpires afterwards that B has a house in Calcutta but it is not in possession of Y and that A owned a house which is an possession of Y but it is not in Calcutta. These extrinsic facts make the document ambiguous. Having discussed as to what is meant by the terms latent and patent ambiguity now we propose to deal with the rules in accordance with which oral evidence will or will not be allowed to remove the ambiguity of the language of a deed. SECTION 93.—Exclusion of evidence to explain or amend ambiguous document.—When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. ILLUSTRATIONS (a) A agrees, in writing, to sell a horse to B for "Rs. 1,000 or Rs. 1,500". Evidence cannot be given to show which price was to be given. (b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled? COMMENTS Scope.-Section 93 deals with patent ambiguity—No oral evidence can be given to remove a patent ambiguity. That is to say when the language used in a document is ambiguous on its very face and no definite meaning can be given to it, no evidence can be given of facts which would make its meaning clear. Where a deed is ungrammatical and cannot be read literally to give any clear meaning, oral evidence cannot be given to supply the defect. In Food Corporation of India v. Birendra Nath Dhar,41 there was document of contract. This document contained a contract for transportation of foodgrains for two years. But the place where the amount for transportation was to be mentioned was left blank. The minimum wage to be paid was not mentioned in the blank space where it should have been mentioned. The contractor was giving different amount. Under Section 93 of Evidence Act, no oral evidence was allowed to fill up the blanks in the document. The letter in question ran as follows : "Dear Sirs, your good-selves are well aware of the present political situation on account of which the entire working °f our mills are closed. At present, it is difficult to say as to how long this state of affairs will continue and as such we regret we cannot fulfil the orders placed by you with us in time. Under the circumstances, please note that the delivery tune of all your pending contracts with us shall be automatically understood as extended for the period the working is stopped and till normal state of affairs 41.

AIR 1989 NOC 119 Cal.

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EVIDENCE ACT

[S. 94

recovers." The conditions mentioned in the letter asking for extension of time were so vague and uncertain that it was not possible to ascertain definitely the period for which the time for the performance of the contract was really intended to be extended. It was held that if, on a fair construction the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the vagueness or uncertainty. The provisions of Section 93, Evidence Act, are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or the court to attempt to remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence.42 But in a recent case the High Court of Allahabad has held that "section 93 of the Evidence Act forbids the filling of blanks in a deed with the aids of extrinsic evidence, but it does not affect the Court's power to fill in blanks and omissions by the ordinary rules of construction of deeds. Some leases were to run from 5 years from 1944 to 1949. But the place, where the date of the commencement was to be mentioned, was blank. It was stipulated that the plaintiff would pay six monthly rent in advance. Then it was provided that the first instalment would be paid on 28-81944. It was interpreted that the term commenced on 28-8-1944 though it was not given in the deed.43 Court that Sections 93 and 94 of Evidence Act deals with patent ambiguity while Sections 95, 96 and 97 deal with latent ambiguity. No extrinsic evidence is permissible in case of latent ambiguity. In case of latent ambiguity extrinsic evidence may begiven.44 SECTION 94.—Exclusion of evidence against application of document to existing facts.— When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. ILLUSTRATION A sells to B, by deed, "my estate at Rampur containing 100 bighas". A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size. COMMENTS Principle.—When there is neither patent nor latent ambiguity evidence cannot be given to contradict this. That is to say when the language used in a document is plain in itself and when it applies to existing fact no evidence can be given to show that it was not meant to apply to such fact. A executes a will to the effect "I bequeath my estate to my daughter Rani by name". A has a daughter Rani by name. After A's death trouble arises for the possession and ownership of the legacy of A between Rani and another daughter of A. Rani relies on the will. The other daughter tries to advance evidence to prove that the intention of A was to will the estate to her. It was by mistake that Rani's

_________________ 42. 43. 44.

Keshav Lal v. Lal Bhai T. Mills Ltd., AIR 1958 SC 512. U.P. Government v. Lata Nanhoo, AIR 1960 All. 420. Pradeep Kumar v. Mahaveer Prasad. AIR 2001 A.P. 107.

Page 417 S. 95]

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

name was mentioned in the will. This evidence will be excluded by Section 94. The rule embodied in this section is based on commonsense. When any document comes before a court for interpretation, it will first try to ascertain its meaning by working into the language itself. When the words used in it are perfectly clear and free from ambiguity and there is no doubt or difficulty as to the proper application of those words to existing facts, no oral evidence will be allowed to show that the parties intended to mean other than what they have said. In General Court Martial v. Col. Anil Tej Singh Dhaliwal,45 it was held by Supreme Court that Section 94 will apply only when execution of document is admitted and there is no vitiating circumstances against it. SECTION 95.—Evidence as to document unmeaning in reference to existing facts.—When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. ILLUSTRATION A sells to B, by deed, "my house in Calcutta". A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah. COMMENTS Principle.—Section 95 deals with latent ambiguity.—Oral evidence can be given to remove latent ambiguity of a document. The different kinds of latent ambiguities are dealt with in sections 95, 96 and 97. When the language used in document is plain but is unmeaning to existing facts due to some mistake in description evidence can be given to show that it was used in peculiar sense. According to this rule a false description does not invalidate the document. A sells to B, "Plot No. 21 belonging to me situated in village Maharajganj measuring 2 bighas". B takes possession over a field in village Maharajganj measuring 2 bighas belonging to A. The real No. of this plot is 20. Afterwards C a brother of A dispossesses B. B files a suit against C for possession and bases his title on the sale deed mentioned above. C contends that the plot in dispute was not sold to B. It transpires that the plot No. 21 of village Maharajganj did not belong to him. It belonged to one X. Plot No. 20 measuring 2 bighas in village Maharajganj belonged to A and over this B had been in possession after the sale. Now the language of the deed is plain and not ambiguous in itself. But when applied to existing fact it becomes ambiguous as A was not owner of Plot No. 21 mentioned in the deed. This is a latent ambiguity and oral evidence can be led to prove that it was No. 20 which was sold and not plot No. 21. A sells to _________________ 45.

AIR 1998 SC 983.

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EVIDENCE ACT [S. 96

B by a deed "My house in Calcutta". A had no house in that he had a house in Howrah of which B had been execution of the deed. These facts that A has no house could sell any and that he had a house at Howrah possession to B after the execution of the sale deed, may the house at Howrah was really sold. ,

Calcutta but it happens in possession since the at Calcutta and so he of which he delivered be proved to show that

SECTION 96.—Evidence as to application of language which can apply to one only of several persons.—When the facts are such that the language used might have been meant so apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to. ILLUSTRATIONS (a) A agrees to sell to B, for Rs. 1,000 "my white horse". A has two white horses. Evidence may be given of facts which show which of them was meant. (b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Deccan or Hyderabad in Sind was meant. COMMENTS Principle.—The section also deals with latent ambiguity.—Where the language of a document is plain but it turns out that there are more than one person or things to which the description applies, oral evidence can be given of facts which show which person or thing it was intended to apply. A willed property writing that the property be divided "Between my brother B his wife and their daughter". B had seven daughters. The daughter could be applied equally to all the daughters though it was meant to apply to only one of the daughters. Evidence was admitted to show that testatrix was very intimate with C one of the daughters of B with whom she corresponded affectionately, while she took no notice of others, that she desired C to live with her, and that in a former will she had left property to B and his daughter C. All these facts were allowed to be proved only to show that it was C of all the daughters who was given the property. SECTION 97.—Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies.— When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply. ILLUSTRATION A agrees to sell to B "my land at X in the occupation of Y". A has land at X, but not in the occupation of Y, and he has land in the occupation of Y, but it is not at X, Evidence may be given of facts showing which he meant to sell.

Page 419 S. 99] OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE SECTION 98.—Evidence as to meaning of illegible characters, etc.— Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense. ILLUSTRATION A, a sculptor agrees to sell to B, "all my mods." A has both models and modelling tools. Evidence may be given to show which he meant to sell. COMMENTS Principle.—A document may be couched in a language which is not intelligible to ordinary people on account of the use of illegible or not commonly intelligible characters or when the writing is such that it is not possible to decipher it without the help of experts or a person who is specially familiar with the writing or when it is written in shorthand or cipher. A document may also be unintelligible on account of legal terms, technical words, trade terms established by usage, foreign, obsolete, local and provisional expressions and abbreviations etc., the meaning of which is known only to persons of competent skill or information. Such documents cannot be rejected as ambiguous only because the court has not that particular knowledge or skill which is necessary to ascertain their true meaning. Experts or the persons possessing the requisite knowledge may be called to explain the meaning of such terms.

SECTION 99.—Who may give evidence of agreement varying terms of document.—Persons who are not parties to a document, or their representatives-ininterest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document. ILLUSTRATION A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time they make an oral agreement that three months credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests. COMMENTS Principle.—This section lays down that a person who is not a party to a document nor a representative-in-interest of a party to a document may give evidence of any facts tending to show contemporaneous agreement varying the terms of the document. As we have seen under section 92 only a party to a contract is excluded from producing evidence subtracting from or adding to the terms of a contract and so it was implied by the wording of that section that a person who was not a party to a contract could lead oral evidence varying the terms of a contract. This section, therefore, only emphasises and repeats this aspect of Section 92. Section 92 speaks of only contracts, grant or other disposition of property whereas this section deals with all the documents Whether they are contracts or not. This section speaks only of varying the terms of a document.46

_________________ 46.

Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448.

Page

420 EVIDENCE ACT

[S. 100

SECTION 100.—Saving of provisions of Indian Succession Act relating to wills.—Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, (X of 1865) as to the construction of wills.

Page 421 S. 100]

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

Method of proof of documents

Document not required by law to be attested (sale-deed). When a document purports to have been written or signed by a person, it must be proved to be in his handwriting (Sec. 7). Documents required by law to be attested (mortgage, gift, will, etc.) (a) In a case of a document to be attested at least one attesting witness if alive must be produced (Sec. 68). If a document is not will and if it is registered and its execution is not denied, the attesting witness need not be produced. (b) If no attesting witness can be found, it should be proved that the executant's signature is his and the signature of at least one of the attesting witness should be proved (Sec. 96). (c) If the execution of such a deed is admitted no attesting witness need be called (Sec. 70). (d) If the attesting witness is produced but he refuses to prove the document, it may be proved by other evidence (Sec. 71). (e) If a document not required by law to be attested has been attested, it may be proved like an unattested deed (S. 72). (f) To prove the writing of a person, it may be compared by his admitted signature (S. 73). Documents may be Public: Public documents are defined in Section 74. Certified copies of public documents are to be issued (Sec. 76). Such certified copies may be produced in proof of the contents of public documents (Sec. 77). Official documents how to be "proved (S. 78). or Private Documents which are not public documents are private ones (Sec. 75).

Page 422

EVIDENCE ACT [S. 100 Presumption as to genuineness of

(a) Presumption as to genuineness of certified copies (Sec. 79). (b) Presumption as to genuineness of documents proved as evidence of record (Sec. 80). (c) Presumptions as to Gazettes, etc. (Sec. 81). (d) Presumptions as to documents admissible in England (Sec. 82). (e) Presumptions as to maps etc. (Sec. 83). (f) Presumptions as to collection of laws (Sec. 84). (g) Presumptions as to power of attorney (Sec. 85). (h) Foreign judicial records (Sec. 86). (i) Books, maps and charts (Sec. 87). (j) Telegraphic message (Sec. 88). (k) Presumption of the due execution of a document not produced after notice (Sec. 89). (l) Presumption of a document 30 years old. When a document, thirty years old is produced from a proper custody the court may presume it to be genuine (Sec. 90). Exclusion of oral by documentary evidence When the terms of any contract, grant or other disposition of property has been reduced to the form of a writing no other evidence, as to the terms of the contract, etc. except the document can be given (Sec. 91). When the terms of a document have been proved by producing the document no oral agreement can be proved to contradict the terms (Section 92). But the following things can be proved

1. Facts invalidating the deed (fraud, etc.) 2. Contemporaneous of subsequent oral agreement about which the document is silent and not inconsistent with its terms. 3. Separate oral agreement condition precedent. 4. When the document is not required by law to be in writing or it is not registered, subsequent oral agreement varying the document may be given. 5. Any usage or custom by which special meaning is attached to a contract. 6. Facts showing in what manner the language relates to facts.

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S. 100] OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

Document may be

Non-ambiguous in such cases no oral evidence can be given against the term (Sec. 94). Ambiguous documents: Patent (is not explained). When the very language is ambiguous it is patent. Evidence may not be given to remove die ambiguity of the language (Sec. 93).

Latent (is explained) When the meaning of the deed is clear in itself; but some matter out of the deed makes the deed ambiguous, it is latent. Documents unEvidence may be given to show the meaning of When the langumeaning in referage applies partly illegible or not commonly intelligible ence to existing to one existing character (Sec. 98). fact, evidence fact and partly to may be given to another, evidence The persons who are neither parties to explain it. (Sec. may be given as to a document nor their representatives-in95). which it applies interest can lead evidence to vary or (Sec. 97). contradict its terms. They are not bound by its terms. (Sec. 99).

Page 424

PART III PRODUCTION AND EFFECT OF EVIDENCE CHAPTER VII OF THE BURDEN OF PROOF Of the Burden of proof.—Certain facts require no proof. All other relevant facts, however, must be proved by evidence, that is by the statement of the witnesses, admission or confession of the parties and the production of the document. The present chapter deals with the rule regulating the question upon which of the party to the case the burden of proof lies. . Burden of proof.—Meaning.—The burden of proof means the obligation to prove a fact. The strict meaning of the term burden of proof (onus probandi) is this, that if no evidence is given by the party on whom the burden is passed the issue must be found against him. The expression burden of proof really means two different things. It means : (1) sometimes that the party is required to prove an allegation before judgment is given in its favour; (2) It also means that on a contested issue one of the two contending parties has to introduce evidence.1 SECTION 101.—Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ILLUSTRATIONS (A) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (B) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. COMMENTS Scope.—The word "burden of proof" has not been defined in Evidence Act. In criminal case it is accepted principle of criminal jurisprudence that burden of proof is always on prosecution. It never changes. This conclusion is derived from

_________________ 1.

Narain v. Gopal, AIR 1960 SC 100.

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S. 101] OF THE BURDEN OF PROOF

fundamental principle that, the accused should be presumed to be innocent till he is proved guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt. If the accused succeeds in creating reasonable doubt or shows preponderance of probability in favour of plea, the obligation on his part gets discharged and he would be entitled to be acquitted.2 Section 101 of the Evidence Act, illustrates the burden of proof in the sense of proving a case. It lays down that whoever wants a court to give judgment in his favour as to any legal right or liability dependent on the existence of some facts, must prove the existence of those facts. The burden of proving a case remains throughout the entire case on the party on whom the pleadings originally place it. It never shifts; the party, whether, plaintiff or defendant, who substantially asserts the affirmative of the issue has this burden of proof. It is on him at the beginning of the case ; it continues on him throughout the case. In Krishnan Assari Velayudhan Asari v. Parmeshwaran Pillai Madhawan Pillai,3 a submortgage was executed by mortgagee. It was alleged that mortgagor knew everything. The burden of proving the allegation is on the person who asserts it. In Jarnail Singh v. State of Punjab,4 the Supreme Court observed that in criminal case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon prosecution, and therefore if it fails to adduce the satisfactory evidence to discharge that burden it cannot fall back upon evidence adduced by the accused person in support of their defence to rest its case solely thereupon. In Champalal v. Thakurji Gopalji,5 the suit property alleged to be public trust by defendant. Plaintiff not admitting above fact in entire proceeding. Fact, asserted by defendant and denied by the plaintiff. Onus of proving the same lies on defendant. The party which alleges the execution of Will under coercion, the burden to prove it lies on it.6 Doctrine of "reverse burden".—In a large number of statutes, the doctrine of 'reverse burden' is applied. Except those cases where Parliamentary statutes apply the doctrine of reverse burden, the Courts should not employ the same which per se would not only be violative of Article 12 of Universal Declaration of Human Rights (Fair Trial) but also the Fundamental Right of an accused envisaged under Article 21 of the Constitution. Presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any situation.7

_________________ 2. 3. 4. 5. 6. 7.

Vijayee Singh v. State of U.P., AIR 1990 SC 1459. AIR 1989 Ker. 163. AIR 1996 SC 755. AIR 1998 Raj. 220 Savithri v. Karthyayani Amma, AIR 2008 SC 300 at p. 303. Harendra Sarkar v. State of Karnataka, AIR 2008 SC 2467 at p. 2471 ; Zahira Habibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 held to have been applied in a different fact situation.

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EVIDENCE ACT [S. 101

Section 101.—"Burden of proof" and "Onus of proof" (onus probandi).—As said above the burden of proof is of two kinds : (1) burden of proof on pleading, and (2) burden of adducing evidence. The burden that arises from the pleadings depends upon the facts asserted or denied and is determined by the rules of substantive and statutory law or by presumption of law and fact. A files a suit against W, widow of B for declaration that he is owner of all the property left by B being his adopted son : W the widow denies the factum of adoption. In this case A desires the court to give judgments to the effect that he is owner of the property left by B depending on the fact that he was adopted by B . So he must prove that he was adopted by B. In this case, the burden of proof lies on A. In this illustration the burden has arisen from pleading and is determined by rules of substantive law. The burden of adducing evidence rests on the party who would lose if no evidence is led by any of the parties. A files a suit on the basis of a bond. B admits the execution of the bond but pleads that the bonds was taken by practising fraud upon him. In this case, the execution of the bond is admitted and if no evidence is led by B on fraud, A will get a decree, B will lose. Therefore, the burden to lead evidence first lies on B. He will first lead evidence and then A will produce evidence to rebut the evidence led by B. This kind of burden of proof is sometimes termed as onus of proof (onus probandi). Burden of proving the basis of ejection is initially on the landlord.8 In S.J. Ebenezer v. Velaya Dhan,9 the Supreme Court held that where a landlord wants to evict the tenant on ground of genuine need of accommodation, the burden of proving that he genuinely required the accommodation lies on the landlord. Burden of proof constant and burden to lead evidence onus probandi is shifting.—Section 101 deals with the first kind of burden of proof whereas Section 102 deals with onus of adducing evidence. The first kind of burden of proof arising from pleadings and determined by substantive law never shifts. It always remains constant. The burden of adducing evidence is described as "shifting". Section 102 shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff. When he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, onus may shift back again to the plaintiff. It is easy to decide at what particular stage in the course of the evidence the onus shifts from one side to another.10 Burden of proof in Civil cases.—In civil cases the burden of proof in the sense of proving a case is discharged by more preponderance of probability.

_________________ 8. 9. 10.

Gurdayal v. Smt. Malti Devi, AIR 1993 All. 90. AIR 1998 SC 746. Raghavmma v. Chenchamma, AIR 1964 SC 136.

Page 427

S. 102] OF THE BURDEN OF PROOF

The standard of proof applies in all the civil cases. The court has to strike the balance of probability. Even in a case where fraud is to be proved the same standard is to be applied.11 The accused need not prove his case beyond doubt. It is enough for him to show, like a civil case, preponderance of probabilities in his favour.12 In a suit for declaration of title and possession, the plaintiff has to make out his case. His suit cannot succeed on any alleged weakness in the title or possession of the defendants.13 The burden of proof in criminal cases.—In criminal cases the prosecution has to prove the guilt of the accused beyond a reasonable doubt. Also probable preponderance of probability could not do. In criminal cases the burden of proof even in the sense of establishing a case is always on the prosecution. The prosecution has to stand on its own legs. It has to prove the guilt of the accused on its own evidence. The weakness of the defence will not help the prosecution.14 If the prosecution evidence as a whole is unreliable and cannot be accepted, as correct for specific reasons the silence of the accused can be of no avail to the prosecution, for such conduct of silence can never be permitted to become a substitute for the proof by the prosecution.15 Importance of burden of proof.—The question of onus or burden of proof at the end of the case, when both the parties have adduced their evidence is not of very great importance and the court has to come to a decision on a consideration of all materials.16 (Burden of proof) as determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no conclusion. Then the onus will determine the matter and the person on whom the burden of proof lies will lose. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion the onus has nothing to do with it, and need not be further considered. The case is to be decided on merits without taking into consideration as to on which of the party the burden of proof lay.17 SECTION 102.—On whom burden of proof lies.—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. ILLUSTRATION (a ) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B 's father.

_________________ 11. 12. 13. 14. 15. 16. 17.

Gulab Chand v. Kubi Lal, AIR 1966 SC 1734. Krishna v. State of U.P., AIR 2007 SC 2452 at p. 2455. T.K. Mohammed Abubacker v. P.S.M. Abdul Khader, AIR 2009 SC 2966 at p. 2971. Harish Chandra v. Rex, 1950 ALJ 220. Wingly v. State of Madhya Pradesh, AIR 1954 SC 15. M. M.B. Catholics v. T. Polo Avoas, AIR 1959 SC 31 (Onus probandi). Harish Chandra v. Rex, 1950 ALJ 220 ; Ramji Dayawala Sons Ltd. v. Invest Import, AIR 1981 SC 2025.

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[S. 103

If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. (b)A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. COMMENTS Scope.-— Section 102, Evidence Act deals with "burden of proof" in the sense of adducing evidence. It lays down that the burden of adducing the evidence rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were adduced by either side. The burden of proof in the sense of the burden of introducing evidence may and constantly does shift during the trial.18 There are many cases in which the party on whom the burden of proof in the first instance lies may shift the burden to the other side by proving facts giving rise to a presumption in his favour. In Triro v. Deo Raj,19 there was delay in filing the suit. The defendant had taken plea of limitation period. The plaintiff was in a position to know the cause of delay. The burden of proving that the case was within prescribed limit was on the plaintiff. To prove the validity of transfer of land of a member of Scheduled Tribe and perfection of title over it by adverse possession, the burden is on the tranferee.20 The plaintiff would not succeed automatically without establishing his case on mere failure of the defendant to establish his case.21 SECTION 103.—Burden of proof as to particular fact.— The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. ILLUSTRATION (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. COMMENTS Scope.—The difference between sections 103 and 101 is like this. Under Section 103 the party has to prove all the facts which he alleges to entitle him

_________________ 18. 19. 20. 21.

Wingly v. State of Madhya Pradesh, AIR 1954 SC 15. AIR 1993 J. & K. 14. Trilochan Dandsena v. State, AIR 1995 Orissa 239. Nirkar Das v. Gourhari Das, AIR 1995 Orissa 270.

Page 429

S. 105]

OF THE BURDEN OF PROOF

to a judgment when the burden of proof is on him. The present section provides for the proof of some one particular fact and not whole of the facts. In a criminal case the whole of the facts, however numerous and complicated, which go to make the prisoner's guilt must be proved by the prosecution. But if the prisoner wishes to prove a particular fact, e, g., at the time of crime he was away, he must prove it. If the prosecution wishes to prove the case not by oral and independent testimony but by isolated fact of the prisoner's admission he must prove it. So the burden of proof of a particular fact is upon the party who alleges the affirmative of such fact. SECTION 104.—Burden of proving fact to be proved to make evidence admissible.— The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. ILLUSTRATIONS (a) A wishes to prove a dying declaration by B. A must prove B's death. (b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. COMMENTS Scope.—Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible, the burden of proving that fact is on the person who wants to give such evidence. The burden of proof in the sense of adducing evidence applies not only to matters which are the subject of express allegation in the pleading, but also to those that relate merely to the admissibility of evidence or to the construction of the documents. Therefore a party desiring to adduce a hearsay evidence or secondary evidence of a lost deed must first establish the conditions necessary to its reception. Where any petition challenging constitutionality of statute, specific, clear and unambiguous allegations regarding violation of Constitutional provision should be made. The burden is on the person challenging constitutionality.22 SECTION 105.—Burden of proving that case of accused comes within exceptions.— When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. ILLUSTRATIONS (a) A accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

_________________

22 Amrit Banaspati Co. Ltd. V. Union of India, AIR 1995 SC 1340.

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[S. 105

The burden of proof is on A. (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. (c) Section 325 of the India Penal Code (45 of 1860) provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances bringing the case under Section 335 lies on A. COMMENTS Scope.—The section is an important qualification of the general rule that in criminal trial, the burden of proving every thing essential to establishment of the charge against the accused lies upon the prosecution.23 This section is an application, perhaps an extension of the principle laid down in Section 103. Now according to this section the burden of proof is upon the accused of showing existence, if any, of circumstances which bring the offence charged within any of the special as well as of any of the general exceptions or proviso contained in any part of the Penal Code or any law defining the offence. The meaning of this section is that it is not for the prosecution to examine all possible defences which might be put forward on behalf of an accused person and to prove that none of them applies. But at the conclusion of all the evidence it is incumbent upon the prosecution to have proved their case. In Vijayee Singh v. State of U.P.,24 it was observed that if the prosecution has discharged its duty to prove the guilt of accused, the accused may raise the plea of exception either by pleading the same specifically or by relying on probability. He may adduce evidence in support of his plea directly or may rely on prosecution case itself or he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and other circumstances. Then the original presumption against the accused regarding the non-existence of circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. In Kashi Ram v. State of U.P.,25 it was held by Supreme Court that plea of self defence cannot be denied to the accused person on the ground that the plea was not specially taken by the accused person and because the accused person did not enter the witness box. The accused can also discharge burden under Section 105 by preponderance of probabilities in favour of his plea.

_________________ 23. 24. 25.

Usuf v.R., ILR 40 Alld. 284. AIR 1990 SC 1459. AIR 2001 SC 2902.

Page 431

S. 105] OF THE BURDEN OF PROOF

It must however be borne in mind the burden of proof in a criminal trial remains at all times upon the prosecution, and it is only shifted upon the accused in so far as an accused person may set up the existence of circumstances bringing his case within any of the general exceptions of the Indian Penal Code or within any general exception or proviso contained in any other part of the same Code.26 Standard of proof of the exception pleaded.—Under the English Law, there is a distinction between the burden on the prosecution and burden on the accused. "When the burden of the issue is on the prosecution, the case must be proved beyond reasonable doubt. When however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond reasonable doubt, it is sufficient if he succeeds in proving a prima facie case for, then the burden is shifted which has still to discharge it, original onus that never shifts, i. e. that establishing, on the whole case guilt beyond reasonable doubt." In India also the same principle has been applied. It is true that under Section 105 of the Evidence Act, if an accused person claims the benefit of exceptions, the burden of proving his plea that his case falls under the exception lies upon the accused. But the question which often arises and has been frequently considered by judicial decision is whether the nature and extent of the onus of proof placed on an accused who claims the benefit of an exception, is exactly the same as the nature and extent of onus as placed on prosecution in a, criminal case and there is consensus of opinion in favour of the view that where the burden of an issue lies upon the accused he is not required to discharge the burden by leading evidence to prove his case beyond a reasonable doubt. That no doubt is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused : but that is not the test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an exception. Where an accused person is called upon to prove that his case falls under an exception, law treats onus as discharged if the accused person succeeds "in proving the preponderance of probability." As soon as preponderance of probability is proved the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has at all the stages of the case to prove the guilt of the accused beyond a reasonable doubt. In other words the onus of an accused person may well be compared with the onus of a party in a civil case and just as in civil proceeding the court trying an issue makes its decisions by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probabilities is established by the evidence led by him.27 Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done the accused can rebut this presumption either by leading evidence or by 26. Bindra v. Emperor, AIR 1934 Oudh 485. 27. H. Singh v. State of Punjab, AIR 1966 SC 97 ; v. D. Jhingan v. State of U.P. AIR 1966 SC 1762 ; Dhaya Bhai v. State of Gujarat, AIR 1964 SC 1563; Pratap v. State of U.P., AIR 1967 SC 966.

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relying on the prosecution evidence itself. If upon evidence adduced in the case either by prosecution or by defence a reasonable doubt is created in the mind of the court as regards one more ingredient of the offence including mens rea he would be entitled to be acquitted.28 Self-defence.—The burden of proof of self-defence lies on the accused. But he has not proved it beyond a reasonable doubt. If by the evidence placed before the court, by the accused or by the prosecution a reasonable doubt is created in the mind of the court that the accused might have acted in the exercise of right of self-defence, he is entitled to acquittal.29 In Rizan and others v. State of Chattisgarh through Chief Secretary, Govt. of Chattisgarh Raipur,30 the Supreme Court held that the burden of establishing plea of private defence is on accused. It stands discharged by showing preponderance of probabilities in favour of his plea. He can establish his plea by reference to circumstances transpiring for prosecution evidence itself. When the right of private defence is pleaded the defence must be a reasonable and probable version satisfying the Court that harm caused by the accused was necessary for either warding off the attack or for forstalling the further reasonable apprehension from the side of the accused. In Prabhu v. Emperor,31 due to shifting of the course of a river a piece of land appeared. There were two sets of claimants to the land. These two sets of parties can be called 'Genda's party' on the one hand and 'Ganeshi's party' on the other hand. On 26th November, 1940 both parties met on the said land and set about each other with lathis with the result that four appellants out of Genda's party were injured. Several casualties occurred among Ganeshi's party including Ganeshi himself who died. The prosecution story was that Ganeshi's party went to the field in question and were wantonly attacked by Genda's party without any provocation being offered to them. The appellants' version, however, was that they had already sown a crop in the land and were deliberately attacked by Ganeshi's men, in consequence of which they had in self-defence to employ their lathis to protect themselves. The appellant led evidence to prove their self-defence, which was disbelieved and they were convicted. The Full Bench held that having regard to Section 96 Penal Code and Section 105 Evidence Act in a case in which any general exception in the Penal Code is pleaded by an accused person and the evidence is adduced to support such plea but such evidence fails to satisfy the Court affirmatively of the existence of the circumstances bringing the case within the general exceptions pleaded, the accused person is entitled to be acquitted, if, upon a consideration of evidence as a whole, including the evidence, given in support of the plea of the said general exception the appellants were acquitted a reasonable doubt is created in the mind of the court that the accused person is entitled to the benefit of the said exception.

_________________ 28. 29. 30. 31.

Bhikari v. State of U.P., AIR 1966 SC 1; State v. Siddh, 1959 SC 233. Prabhu v. Emperor, AIR 1941 All. 402 (FB ); Rishikesh v. State, AIR 1970 All. 51 (F.B.). AIR 2003 SC 976. AIR 1941 Alld. 402: 1941 AWR (HC) 320.

Page 433

S. 105] OF THE BURDEN OF PROOF

Reasonable doubt—What is?.—Regarding reasonable doubt Dr. Arijit Pasayat, J. of the Supreme Court in Chhotanney v. State of U.P.,32 observed as follows : "Doubts would be called reasonable if they are free from a zest of abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lick of it, as opposed to mere vague apprehensions. A reasonable doubt is not an 'imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."33 For taking the plea of private defence, the accused is not required to call evidence. He can establish his plea by reference to circumstances transpiring from the prosecution evidence. The Court can consider that the accused acted in self-defence even if such plea is not raised by him.34 Insanity.—If an accused pleads insanity he has to prove that he was insane at the time of the occurrence.35 The onus to prove unsoundness of mind is on the accused. Where during the investigation, the pervious history of insanity is revealed, it is the duty of an honest investigator to subject the accused to medical examination and place the evidence before the Court. If this is not done, it creates serious infirmity in the prosecution case and benefit of doubt goes to the accused. The onus has to be discharged by producing evidence of the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors.36 If a person by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal. If an accused takes the plea of insanity, it lies on him to prove that he was insane at the time of the commission of the offence.37 Plea of justification.—If in case of a defamation a plea of justification is raised, burden to prove justification lies on him who raises such plea.38 In a case

_________________ 32. 33. 34. 35. 36. 37. 38.

AIR 2009 SC 2013. Ibid, at p. 2015; Also see State of Punjab v. Sukh Chain Singh, AIR 2009 SC 1542 at 1552. Raghbir Singh v. State of Haryana, AIR 2009 SC 1227 at p. 1228 ; Munshi Ram v. Delhi Administration, AIR 1968 SC 702 ; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 ; State of U.P. v. Mohd. Musheer Khan, AIR 1977 SC 2226 ; Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577. Bhikhari v. State of U.P. AIR 1966 SC 1; State of U.P. v. Ram Swarup, AIR 1974 SC 1570. Siddhapal Kamala Yadav v. State of Maharashtra, AIR 2009 SC 97 at pp. 99-100. State v. Kartik Chandra. AIR 1951 Ass 79 ; State v. Chotte Lal, AIR 1959 MP 203 ; Barelal v. State, AIR 1960 MP 102 ; In re Pappath Ammal, AIR 1959 Mad 239 ; Bhilari v. State of U.P., AIR 1966 SC 1 : 1965 SCD 953 : (1965 ) 2 SCWR 717 ; Dahyabhai v. State of Gujarat, AIR 1964 SC 1963 : (1954 ) 1 SCWR 831. Deep Chand v. Sarupathraj, AIR 1970 Mys 34.

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EVIDENCE ACT [S. 105

of defamation, the burden lies on the accused to prove justification.39 It is true that under Section 105 of the Evidence Act, if an accused person claims the benefit of exceptions the burden of proving that his case falls under exceptions lies upon him. But where an accused person is called upon to prove that his case falls within an exception law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus.40 It is well known that the burden cast on accused is not so onerous as the primary burden cast on the prosecution to prove offence beyond reasonable doubt. If on a careful review of the circumstances under which the complaint was made and the other events that have come to light it appears to the court that one of the exception to Section 499, I.P.C. may possibly apply, the accused may be held to have discharged his burden.41 Want of maturity.—Sections 82 and 83 of the Indian Penal Code deal with the question as to how far the infancy of the offender would be a defence to a criminal charge. Section 82 confers an absolute immunity from criminal liability in the case of a child under 7 years of age. But under Section 83 the immunity is conditional upon its being found that the child offender has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct. Nov/ the question arises as to the burden of the proof in such cases. It has been held that non-attainment of maturity in the case of a child over 7 and under 12, would have apparently to be specially pleaded and proved.42 But it is humbly submitted that this view is not correct. Authorities make it clear that the accused need not plead and led evidence to prove maturity of understanding in order to get benefit under Section 83 of Indian Penal Code. It is always permissible for a court to arrive at a finding whether the accused is of immature understanding even on the consideration of the circumstances of the particular case.43 It is to be borne in mind that a child between 7 and 12 years of age cannot be convicted of any offence unless it is expressly found that child has attained sufficient maturity of understanding to judge the nature and consequences of act done. But as said above such finding can be arrived at only by the circumstances of the case. A boy aged about 9 was found in the compound of the Commissioner of Patna with a brass lota which he was offering for sale. It transpired that the lota belong to one of the constables who resided in the same compound. It was pointed out that the fact that the boy offered the lota for the sale very soon after taking it in the same locality was remarkable and would seem to throw some doubt whether he understands the nature and consequences of his act. In a case where a child took the ornaments and immediately sold it for five annas it was held that he had attained sufficient maturity understanding.

_________________ 39. 40. 41. 42. 43.

Dongar Singh v. Krishna Kant, AIR 1938 MP 216. Harbhajan Singh v. State of Punjab, AIR 1966 SC 97. C.C. Das v. Raghunath Das, AIR 1959 Ori 141. Queen v. Lukhini Agradanini, 22 WR Cr. 27. Abdul Sattar v. R., AIR 1949 Lah. 51; B. K. Sarana v. R., ILR (1883) 6 Mad. 373.

Page 435

S. 106] OF THE BURDEN OF PROOF

Where boys below 12 years of age broke open the locks of the houses and entered into them. From one of the premises they actually stole one seer of pulses. The very act of these boys in breaking open the locks would seem to indicate that they were not suffering from immaturity of understanding. When the accused picked up his knife and advanced towards the deceased with a threatening gesture, saying that he would cut him to pieces, and did actually cut him, his entire action can lead to only one inference namely that he did what he intended to do and that he knew all the time that a blow inflicting with Kathi will kill a boy; Pleading and proof of exceptions.—It is not necessary for the accused to plead the existence of circumstances bringing his case within an exception. An accused is clearly entitled to claim an acquittal if on the evidence for the prosecution it is shown that he has committed no offence. The section does not say that the accused must lead evidence. The circumstances to be proved may otherwise appear from the record. Where the prosecution case itself indicates that an exception is applicable in favour of the accused in the circumstances of the case, the accused cannot be denied the benefit of that exception whether he pleads it or not.44 SECTION 106.—Burden of proving fact especially within knowledge.-—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ILLUSTRATIONS (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. COMMENTS Scope.—Section 106 lays down that where the subject-matter of the allegation lies peculiarly within the knowledge of one of the party, that party must prove it, whether it may be of affirmative or negative character. The true object to be achieved by a Court of Justice can only be furthered with property by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspense attached to it. This section applies only to parties to a suit. Specially within the knowledge of any accused.—In Gurdayal v. Smt. Malti Devi,45 it was held by Allahabad High Court that a fact which is specially within knowledge of tenant, must be proved by him. He cannot have benefit of any such fact which is under his power and his knowledge, and he has to satisfy the court with the veracity of his case. Section 106 is an exception to Section 101. The latter (101) with its illustrations (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section

_________________ 44. 45.

Babu Lal v. State, AIR 1960 Alld. 223 ; Chowdarauyya, In re, AIR 1938 Mad. 56 ; Md. Rafiq v. Emperor, AIR 1933 Lah. 1055. AIR 1993 All. 90.

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EVIDENCE ACT [S. 106

106 is certainly not intended to relieve it (prosecution) of that duty. Neither Section 103 nor Section 106 of the Evidence Act absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, which makes out prima facie case, that the question arises of considering facts of is the burden of proof may lie upon the accused.46 On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are specially in the knowledge of the accused and which he could prove without difficulty or inconvenience. It means facts that are pre-eminently or exceptionally in his knowledge.47 The accused took out a lorry from the garage at 7 A.M. The said lorry driven over a boy at 11 a.m. the driver ran away. The accused took the plea that at the time of the accident some other driver was driving the lorry. It was held that the burden lay on him to prove that some one else was driving the lorry at the relevant time. Illustration (b) to Section 106 has obvious reference to a very special type of case namely to offences under Sections 112 and 113 of the Railways Act. If knowledge of certain facts is as much available to the prosecution, if it chooses to exercise due diligence, as to the accused the facts cannot be said to be specially within the knowledge of the accused. Section 106 must be considered in a commonsense way. The section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases the burden is on the prosecution and it never shifts. The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.48 The accused was prosecuted for obtaining certain sum from the Government as the travelling allowance without travelling. The prosecution was launched after two and a half years after the alleged offence was said to have occurred. A booking clerk as a prosecution witness, proved that no second class ticket was issued for relevant dates for relevant places, but he also stated the tickets were not always issued and the passengers could pay the fares on trains and also could sometimes purchase the ticket for lower class and pay the difference to the guard of the train. There was no proof that one or the other of these courses was not followed on the relevant dates by the accused, although the prosecution had registers and books both of Railway and of the department in which the accused worked and they could have proved it. Instead of doing it they proved that no second class tickets were issued and contended that the burden of proving that the accused did pay the 2nd class fares was on him. It was held that the relevant material and information was as much in the knowledge of the prosecution as in that of the accused and the prosecution could not rely on illustration (b) to Section 106.49

_________________ 46. 47. 48. 49.

Sawal Das v. State of Bihar, AIR 1974 SC 778. Masood Khan v. State of UP., AIR 1974 SC 28. V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 ; Narsimhman v. State, AIR 1969 AP 27. Shambhu Nath Misra v. State of Ajmer, AIR 1956 SC 404.

Page 437

S. 106] OF THE BURDEN OF PROOF

The ingredients of an offence has to be proved by the prosecution. Section 106 does not absolve the prosecution from proving its case.50 In Sucha Singh v. State of Punjab,51 where a person was abducted and murdered, it was held that if an accused wants to prove that he was not associated with murder of the abducted person, it is in his special knowledge what he did at the time of murder and if the accused by virtue of special knowledge regarding such factor failed to offer any explanation from which the Court may draw a different inference, the Court will presume that all the abductors were involved in murder of the victim but it should also be remembered that the explanation given by an accused does not relieve the prosecution of burden to prove the guilt of accused beyond reasonable ground. The accused, a postman was prosecuted for misappropriation of money entrusted to him for disbursement under a money order. The accused admitted that the money was not paid to the payee but alleged that he gave the money and the money order form to a boy at the house of the payee; the boy took the money and the money order form into a room and the latter came back and returned the money order form duly signed by the payee and said that the money had been paid to the payee. It was held that the fact as to who the boy was, was specially within the knowledge of the accused and the burden was on him to establish the fact which was specially in his knowledge.52 Parties to the suit proceedings.—This section applies only to the parties to a suit.53 Burden of proof Alibi.—Burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt.54 Burden to prove Mens rea.—Where the act done is illegal and the prosecution proves its case if the want of mens rea is pleaded by the accused he must prove it as it is specially within his knowledge.55 Burden of Proof of Intention—Illustration (a).—The question of intention is one which depends upon the circumstances of each case. The prosecution must prove the intention by circumstances. A person may be guilty under Section 63, Railway Act if he travels without a ticket or a pass with an intention of defrauding the Railway administration. In this case undoubtedly it will be specially within the knowledge of the accused to explain as to how he was travelling without a ticket or pass, but the prosecution is not relieved of its responsibility to establish that the accused travelled with the intention to defraud the railway administration.56 But if the prosecution has established

_________________ 50. 51. 52. 53. 54. 55. 56.

Md. Usman v. State of Bihar, AIR 1968 SC 1273; Chhaggan Singh v. State, AIR 1970 Guj. 131. AIR 2001 SC 1436. Nilambia v. State, AIR 1957 Alld 357. Mahabir Singh v. Rohini R.P. Singh, AIR 1933 PC 87. Gurcharan Singh v. State of Punjab, AIR 1956 SC 400, Satyavir v. State, AIR 1958 All. 746. Municipal Board, Bareilly v. Ram Gopal, AIR 1940 All. 517 ; Mangaladas v. State of Maharashtra, AIR 1966 SC 128 ; State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 ; 67 Bom. LR 583; Saharanpur Municipality v. Dhian Singh, AIR 1967 All. 491. Sudhir Chandra Gupta v. State of Assam, AIR 1965 Ass. 38.

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EVIDENCE ACT [S. 106

the character and circumstances of an act suggesting that it was done with a particular intention then under Section 106. Illustration (a) it may be assumed that he has that intention unless he proves the contrary. Persons charged under Section 399, Indian Penal Code were found at a place away from their house in a suspicious circumstance. The inference would be that they gathered there to commit dacoity. It lies upon them to prove that their intention was something else.57 The accused fired from close range. The intention gathered would be to kill. If there was any other intention the accused has to prove.58 Burden to proof by parties to transaction.—Every transaction, be it a sale, mortgage, contract or any other disposition of property contemplates two parties to it when a transaction has been entered into between two parties the law presumes that both the parties have knowledge of all the facts constituting the transaction. Consequently when litigation arises between the parties to a transaction none of the parties can be allowed to say that any fact of the transaction is specially within the knowledge of the other party and that the burden to prove the fact lies on such party. In cases between the parties to a transaction the general principle of burden of proof applies. Section 106 Evidence Act cannot be utilized by a party to a transaction to say that the other party having special means of knowledge has to prove it. The representative of the parties to the transaction also cannot take the help of Section 106.59 Burden of proof in case of Res ipsa Loquitur.—Generally speaking in a case of negligence the burden to proof of negligence on the part of the defendant lies on the plaintiff. But in cases where the facts speak for themselves showing negligence of the defendants, the burden lies on the defendant to prove that he was not negligent.60 Burden of proof in negligence of carriers.—When the goods are carried at the risk, the special facts and circumstances under which the consignment was handed are only known to the Railway Administration, and therefore, it is for them to place that material before the court for forming its opinion on the question whether he had taken as much care of the goods as is required of them. The Railway administration had duty of producing all available records and their nonproduction justifies the raising of an adverse inference against them.61 Burden of proving date of death of persons unheard of.—In cases of inheritance under Hindu, Mohammedan or any other law the date of death

_________________ 57. 58. 59. 60. 61.

State v. Dhanpal, AIR 1960 Pat. 582; Jainlal v. Emperor, AIR 1943 Pat. 82. Badshah Singh v. State, AIR 1958 All 677. Raghevendra u.Venkataswami, AIR 1930 Mad. 251; Mst. Bhoori v. Gulab Singh, AIR 1958 Raj 10. Municipal Corporation Delhi v. Sobhagwati, AIR 1960 Punj. 300 ; Smt. Madhuri Chowdhari v. Indian Air Lines Corporation, AIR 1962 Cal. 544. Union of India v. Firm M.P. & Sons, AIR 1971 MP 131; Sobha Textile, AIR 1969 Bom 401 : 71 Bom LR 214 ; Union of India v. Kalinga Textile, AIR 1969 Bom. 401 : 71 Bom LR 214 ; Union of India v. Bhagat Ram, AIR 1967 Delhi 153 ; Tulsidass p.Vithaldass v. Union of India, AIR 1967 Guj. 130 ; Union of India v. Shree Ram Richhpal, AIR 1965 All 246; Calcutta Credit Corporation v. Prince Peter of Greece, AIR 1964 Cal. 374 ; Union of India v. Delhi Cloth and General Mills Co. Ltd., AIR 1964 Punj 147; Ram Krishna Ram Nath v. Union of India, AIR 1960 Bom. 344 : 62 Bom LR 445.

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of individuals are important facts. Very often disputes arise as to the date of death of some person. Let us take an example. A, a Hindu possessed some immovable property. In the year 1950, B, who is A's collateral removed from him about 5 degrees, files a suit for possession of the property left A. C claims the property on the ground that he is A's sister's son. B contended that A died before the Hindu Inheritance Amendment Act of 1929 came into enactment. Before that Act was passed sister's son was not a preferable heir as against collateral within 5 degrees. So the material questions in this case would be whether A died before February, 1929 or after it. If he died before the passing of the said Act, B will be the heir and if he died after the Act aforesaid 'C’ will be entitled to the property of A. Where there is direct evidence as to the date of death of some individual no difficulty arises. Cases arise on enormous occasions where the proof about the date of death of an individual become physically impossible. Many a time it is seen that a person leaves his home and goes to places unknown to the member of his family or to his friends. He is unheard of by his friends or relations for a very long time. No body knows anything about him whether he is dead or alive. Whether an inference ought to be drawn under Section 106 I.P.C., is a question which must be determined by reference to facts proved.62 No satisfactory explanation of injuries on the deceased by the accused.—The deceased woman died within one and half years of her marriage in her in-law's house. She was subjected to harassment and cruelty for insufficient dowry. The head-injuries on the deceased were not satisfactorily explained by the accused, husband of the deceased and his family members. They cremated the body without informing her parents or police. Held—The conduct of the accused showed that it was done to conceal the real cause of death. He was liable to be convicted for dowry death.63 A person charged with travelling without a valid ticket.—When a person is charged with travelling on a railway without ticket, the burden is on him to prove that he had a valid ticket. But where a person dies in a railway accident, the burden is on the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts on the claimants of compensation to give evidence that he was a bona fide passenger with a valid ticket. So when no person on behalf of Railway gave any such evidence, the initial burden of proving such fact had not been discharged.64 Standard of proof in an accident.—Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The standard of proof beyond reasonable doubt cannot be applied. The claimants have merely to establish preponderance of probability.65 SECTION 107.—Burden of proving death of person known to have been alive within thirty years.—When the question is whether a man

_________________ 62. 63. 64. 65.

State of Rajasthan v. Kashi Ram, AIR 2007 SC 144 at p. 147. State of Rajasthan v. Jaggu Ram, AIR 2008 SC 982 at PP. 986, 987, 988. Asharani Das v. Union of India, AIR 2009 Cal 205 at p. 208 (DB). Anjali Kapoor v. Rajiv Baijal, AIR 2009 SC 2819 at p. 2821.

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440 EVIDENCE ACT [S. 108

is alive or dead,, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. SECTION 108.—Burden of proving that person is alive who has not been heard of for seven years.—Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. COMMENTS Principle (Sees. 107 & 108).—It has been laid down under Section 107 of the Evidence Act that if a person is proved to have been living within 30 years it shall be presumed that he is alive and the burden of proving he is dead lies on that person who affirms that he is dead. Section 108 on the other hand lays down that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive the burden of proving that he is living is shifted to the person who affirms it.66 In Subhash Ramchandra Wadekar v. Union of India,67 it was observed that the person who has not been heard of for seven years should be presumed to be dead. Ordinarily such person should be presumed to be dead after seven years and not before that. There is no universal rule about the presumption of date of death. Section 108 of Evidence Act enacts a rebuttable presumption about a person who has not been heard of for seven years. In this context the presumption is the same in English and Indian Laws. It is not a conclusive presumption but it is a rebuttable presumption. The presumption made under Section 108 is not exhaustive. It is possible for the court that in existing circumstance and material on record the court can make presumption as to the date of death. In other words there can be no universal rule about presumption as to date of death. The meaning of these two sections will be clear by taking examples : The question arises when did A die. No proof about the exact date of death is available. This question arose in 1950. One of the parties files the deed of mortgage executed by A in 1922. Now for the time being upon the proof of this fact it will be presumed that A was alive on the date of the suit and the burden shifts to the other side who tries to prove otherwise. Now the other side who tries to prove that A was dead adduces evidence that nothing was heard about A by the members of his family, his relations and friends since 1942. This evidence being led presumption about A's being alive will be changed and it shall be presumed that he is dead. Now if the other party wants to prove that he is alive he may succeed only if he proves by direct evidence that A is alive. It is clear that if a man is said to be alive between 30 years he may be presumed to be alive on the date of issue unless and until it is proved that he has not been heard of for more than 7 years by those who must have heard of

_________________ 66. 67.

Ram Ratikur v. Dwarka Prasad, AIR 1967 SC 1134. AIR 1993 Bom. 64.

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him had he been alive (his friends, relations) and the moment this fact is proved, the presumption about the person being alive is lost, to the contrary it is presumed that he is dead. Though under Sections 107 and 108 of Evidence Act the death of a person is to be presumed after an interval of 7 years, there is no presumption as to the time of his death. If one has to establish the exact time during these 7 years at which the person died he must do so by evidence and can either rely on one hand upon the presumption of death or on the other hand upon the presumption of continuance of life. In Mohammad Sharif v. Bande Ali,68 one Madad Ali mortgaged certain property to the father of the defendant respondents on two occasions, first on 18th January, 1887, and again on 27th of May, 1890. Madad Ali disappeared some time after and nothing Was heard of him again. His brother, Dildar Ali, died five to seven years prior to the date when the suit was filed. On his death the plaintiff's appellants who were heirs of Dildar Ali, sought to redeem the mortgages made by Madad Ali. They alleged that as Madad Ali disappeared some 18 years ago, he must be presumed to have been dead, for the last 11 years and Dildar Ali, who was alive till a later date must be deemed to have succeeded him as heir. The defendants took the plea that Dildar died first and so he did not inherit him. The first court and the lower appellate court gave a finding that Dildar died 7 years prior to the date of suit, but that there was no evidence as to when Madad Ali died. The plaintiffs who were heirs of Dildar Ali contended that Madad Ali disappeared in 1890 and was not heard of since then and so according to the principle laid down under Section 108 he will be presumed to be dead in 1897 and as Dildar Ali died some where in 1904 he must be supposed to be dead after Madad Ali. The defence on the other side contested that Madad Ali will be supposed to have been dead after the death of Dildar Ali. The Allahabad High Court through C.J. Richards observed : "The mere fact that the evidence adduced in any case went to show that a person had not been heard of for more than 7 years by those who naturally would have heard of him if he had been alive raises no greater presumption of his death than if the evidence had been confined to the exact period of 7 years, in other words, the only presumption is that such a person is dead. Where it was alleged that the person in question disappeared some 18 years ago there could be no presumption that he died in the first 7 years or in the last 7 years. Presumption merely is that he was dead at the time, the question whether, he was alive or dead arose, the burden of showing that he was alive being thrown upon the defence if it was necessary for them to do so. Thus in this case the only presumption would arise that on the date of suit Madad Ali was presumed to be dead if the plaintiff relied that he was dead before Dildar died they must prove it by direct evidence." The presumption under Section 108 of Act extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no presumption that death took place at the end of 7 years or

_________________ 68. ILR 34 Alld 36.

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[S. 109

at any particular time within that period. The exact time of death is not a matter of presumption but of proof by evidence, and the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential.69 In Hemant Kishore and others v. Brij Raj Kishore and others,70 where in a partition suit, the wife and children of defendant filed an application for impleading them as party on the ground that whereabout of defendant were not known to them for seven years and the presumption as to his death may be drawn but his father stated that his son was seen alive five years ago, the presumption of death of defendant cannot be raised. In a suit for partition and separate possession by husband whose whereabouts were not known for more than seven years, the burden of proof shifts on the person who claims that he is alive.71 In Panchanan Chandra v. Smt. Kamla Bishwas,72 the matter involved was under Rent Control Act. There was eviction suit, the application was made by mother of tenant for her addition as party on the ground that her son was not heard for more than 13 years hence he should be presumed to be dead under Section 108 of Evidence Act. It was held by the Calcutta High Court that Section 108 of Evidence Act did not provide procedure to be followed for presumption of death to be drawn under this section. So separate suit for declaration of original tenant as dead was not necessary. In Darshan Singh and others v. Gujjar Singh,73 J, who was not heard of for more than seven years cannot be considered to be dead only on the date on which the suit was filed. Succession of plaintiff to the estate of J. does not open on date of filing the suit. There is no presumption to exact date of death. The plaintiff claimed succession of the estate as sixth collateral of J. The burden is on plaintiff to prove the date of death. Would naturally have heard.—Where a person is absconding from justice in order to evade a trial upon a charge of murder he would not communicate with any relations in the natural course of events, because to do so would reveal his whereabouts and he might be arrested by the police and prosecuted. In such a case no presumption can arise. Section 108 would not apply because in that case his relations would not hear of him naturally.74 SECTION 109.—Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.—When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as

_________________ 69. 70. 71. 72. 73. 74.

In re Sheshi Ahad, 1956 Madras 463 ; Venkateshwarlu v. Bahayya, AIR 1957 A.P. 380 ; Guanamuthu v. Anthoni, AIR 1960 Mad. 430. AIR 1998 All. 328. Nagalakshmi v. Thirugrianasambandam alias Gnanam, AIR 1995 Mad. 120. AIR 2000 NOC 19 (Cal). AIR 2002 S.C. 606. East Punjab Province v. Bachan Singh, AIR 1957 Punj. 316.

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such, the burden of proving that they do not stand or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. COMMENTS Scope. The burden of proof as to relation in cases of partners etc.—When the existence of a person of personal relation or state of things is once established by evidence it shall be presumed that the person or relation or state of things continued to exist as before till the otherwise is proved. Here the presumption arises from the probability of the continuance of things once proved to exist. This section declares that once it is shown that a person stands in relationship of partners of a firm, landlord and tenant, or principal and agent, it shall be presumed that they continue in such relationship unless it is proved that they had ceased to stand so. SECTION 110.—Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. COMMENTS Burden of proof as to ownership.—Possession is prima facie proof of title. And so it has been laid down by Section 110, Evidence Act that when the question is whether any person is owner of any property and when it is shown that one person is in possession of it, it shall be presumed that the person in possession of the property is owner of it and the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The fact of possession suggests ownership. The proverb "potior est conditio possidents, embodies the principle of Section 110.75 The principle of this section does not apply where the possession has been obtained by fraud or force. In Kantilal v. Shanti Devi,76 the Rajasthan High Court said that proof of possession varies with the nature of property under scrutiny of court, onus lies on plaintiff to prove his legal possession within 12 years. Once it is established onus shifts on defendant to prove that he is entitled to retain possession on basis of better title. Record of right is not a document of title. Entries made therein in terms of Section 35 are relevant piece of evidence and may carry a presumption of correctness but such presumption is rebuttable.77 A revenue record is not a document to title. It merely raises a presumption in regard to possession. Presumption of possession both forward and backward can also be raised under Section 110.78

_________________ 75. 76. 77. 78.

Neel Kanth Singh v. Thambal Devi, AIR 1970 Manipur 50; S.N. Ghoshal v. Ena Datta, AIR 1973 Cal. 128. AIR 1997 Raj 230. Narain Prasad Aggarwal v. State of MP., 2007 (8) Scale 250 : 2007 AIR SCW 4165. Gurunath Manohar Paraskar v. Nagesh Siddappa Havalgund, AIR 2008 SC 901 at p. 903.

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Where the appellant claimed that her husband had been cultivating tenant in respect of suit property and the tax-receipts filed by her showed that entire suit land was subject-matter of tenancy by landlord and tax had been paid by her from 1955 onwards, the presumption could be raised regarding her possession both backward and forward.79 SECTION 111.—Proof of good faith in transactions where one party is in relation of active confidence.—Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. ILLUSTRATIONS (a) The good faith of a sale by a client to attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney. (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. COMMENTS Proof of good faith in transactions where one party is in relation of active confidence.—In the ordinary course of life fairness and honesty are presumed in respect of any transaction ; and if a person wants to prove that any transaction has been created dishonestly and with bad faith it is for him to prove it to be so. A sells his house for Rs. 1,000 to B. Now it shall be ordinarily presumed that B honestly by paying the full consideration to A purchased the house. A buys a horse from B. Ordinarily it shall be presumed that A had purchased the horse in good faith and honestly. But the state of affairs will be otherwise if one of the parties to the transaction stands to the other in the relation of active confidence. If one of the parties to a contract occupies a position of active confidence in relation to the other, the transaction will not be presumed to be taken in good faith. It shall be looked with suspicious eyes, and the burden of proving the good faith of the transaction is on the party who is in the position of active confidence. A a Doctor treats B for about 6 months and cures him of his disease of asthama. Just after that he takes a sale of the house of B for Rs. 5,000. Now in this case the position of A has been dominating one. If B files a suit for the cancellation of the sale-deed alleging that the transaction was not created in good faith, rather B was coerced by A to execute the sale-deed the burden will be on the Doctor to prove that the transaction was not effected by any influences. Again suppose A, a lawyer takes the mortgage of a house from B a client of his. Just before the mortgage A was litigating for the same house. Now after the mortgage B files a suit for cancellation of the mortgage alleging that A his pleader deceived him and took the mortgage by practising fraud upon him. In this case also the burden will lie on A to prove that he committed no fraud on B.

_________________ 79.

Patinhare Purayil Nabesumma v. Miniyatan Zacharias, AIR 2008 SC 1456 at p. 1459.

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The examples of such transactions are contracts from children, from wife to husband, from Chela to Guru and from a paradanashin lady, and so on. In all such transactions the dominating party is to prove that the transaction was fair and bona fide. In Bhupendra Kumar R. Parikh v. M.K. Lakshmi,80 plaintiff and defendant were living as husband and wife. The plaintiff filed a suit for declaration of title on the basis that she (Laxmi) has signed the document of transfer without knowing the nature of document. The plaintiff was an actress and not a house wife. She accepted that she was able to understand the transaction. But she based her claim on fraud and not on undue influence. The court held that in such case the principles of undue influence does not apply. In Subhra Mukharjee v. Bharat Coking Coal Co.,81 the Supreme Court said "there can be no doubt that the person who alleges a transaction as sham, bogus and fictitious must prove the same. But when the issue raised discloses that it is in two parts, the first part says that, whether the transaction in question is bona fide and genuine one and the other part says it is sham, bogus or fictitious transaction, it is only when the first part has been proved, that the person alleging it to be sham has to dislodge it by proving that it is sham or fictitious transaction. Where the circumstances of this case and intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out wherever the respondent has led any evidence to show that the transaction is sham, bogus or fictitious. Onus to prove execution of document to have been executed in proper manner applies to illiterate lady. In this case the agreement to sale executed by illiterate woman. It was held by Allahabad High Court that burden to prove its execution is on the person in whose favour it is executed.82 SECTION 111-A.—83[Presumption as to certain offences.— (1) Where a person is accused of having committed any offence specified in subsection (2), in— (a) any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or (b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when fire-arms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown that such person had committed such offence. (3) The offences referred to in sub-section (1) are the following, namely:

_________________ 80. 81. 82. 83.

AIR 1990 Mad. 46. AIR 2000 SC 1203. AIR 1996 All 253. Section 111-A is inserted by the Terrorist Affected Areas (Special Courts) Act, 1984.

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[S. 112

(a) an offence under Section 121, Section 121-A, Section 122 or Section 123 of the Indian Penal Code (45 of 1860); (b) criminal conspiracy or attempt to commit, or abetment of, an offence under Section 122 or Section 123 of the Indian Penal Code (45 of 1860).]" SECTION 112.—Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. COMMENTS Presumption about legitimacy.—Maternity admits of positive proof, but paternity is a matter of inferences. The connection of a child with his father is secret but it may be ascertained by the subsisting facts. It is a legally constituted relation between him and the mother of child. To be clear it is known to everybody that maternity is a fact and paternity is a surmise. It can be said with certainty as to which woman gave birth to a particular individual but it is impossible to say as to who was that man from whom the mother be got the child. Section 112 lays down the rule for the proof of the paternity of an individual. This section lays down that if child is born during the continuance of valid marriage between the mother and a man or within 280 days after the dissolution of the marriage, the mother remaining unmarried it shall be presumed that the child is a legitimate son of that man unless and until it is shown that the parties to the marriage had no access to each other any time when the child would have been begotten. Let us suppose that A (a man) marries W ( a woman) on the 3rd March, 1930 and the wedlock continues up to 3rd January, 1935. A child is born to the woman on the 2nd June, 1932. Now it shall be presumed that this child is legitimate son of A . Anybody who wants to prove that he is not a son of A , has to prove that A and W could not have met as husband and wife within ten months from the date of the child. Again suppose A and W marry each other in the year 1930 and their marriage is dissolved on the 1st January, 1935. The woman does not marry after the dissolution of the marriage. A son is born to her on the 7th September, 1935. Now it is well within 280 days and it shall be presumed that the child is a legitimate son of A and if A says that he is not the father of the child he must prove that he and W had no access to each other within 280 days of the date of the birth. Strictly speaking there are two presumptions under this section, one rebuttable and the other irrebuttable. First there is a presumption to start with in favour of legitimacy of the child born during wedlock ; in other words there is presumption that the husband had intercourse, with the wife at the time the child must have been conceived. But this rebuttable presumption and evidence

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may be adduced to show that there was in fact no access, that is, no sexual intercourse. The second presumption is this ; if sexual intercourse is proved the law will not permit an enquiry whether the husband or some other man was more likely to be the father of the child, the presumption to be drawn here becomes irrebuttable one. In Shyam Lal v. Sanjeev Kumar,84 the plaintiff and the defendant, were born to one Smt. Durgi during continuance of her valid marriage with the deceased, Balak Ram. There was no evidence on record that the deceased at any point of time did not have access to her. It was held that there was strong presumption about the legitimacy of children. Justice Dalveer Bhandari of the Supreme Court held— "On the proof of legitimacy of marriage, there is strong presumption about the legitimacy of marriage born out of that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt."85 Presumption as to valid marriage (can there be presumption of valid marriage) or factum of marriage must be proved.—In Raghunath Parmeshwar Pandit Rao Mali v. Eknath Gajanan Kulkarni,86 the Supreme Court laid down a very important preposition that in certain circumstances the valid marriage can be presumed. The Supreme Court held that where there was evidence on record to prove staying together as husband and wife for continuous and long period, there is presumption of valid marriage. More so if the same fact is admitted by the adversary. According to Supreme Court, the finding of the High Court that valid marriage can be presumed, only when factum of valid marriage is proved is not proper. Finding of High Court was arrived at without considering the admission by adversary. Son begotten by wife from husband from such marriage are legal heirs over property of husband and would succeed such property. But in P.V. Shahu v. Maiakutty,87 the Kerala High Court appears to give opinion that Section 112 of Evidence Act is applicable only if there is valid marriage. In this case there was no marriage initially. There cannot be any scope of presumption of legitimacy of child. The presumption applied only when the child was born during the continuation of valid marriage or within 280 days after dissolution of marriage and the mother remaining unmarried. If the presumption is stretched to other cases anomaly may occur. Suppose the child was born immediately within the few days of marriage still the presumption will apply, then no access has to be proved as the time before marriage took place. The question of nonaccess relates to the time after marriage and not before the marriage. In this case, the case of wife is that the husband had access to the wife before marriage. The above fact was held not be proved by wife.

_________________ 84. 85.

86. 87.

AIR 2009 SC 3115. Ibid, at p. 3121. AIR 1996 SC 1290. AIR 1998 Ker. 86.

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EVIDENCE ACT [S. 112

Presumption as to dissolution of marriage or presumption as to marriage.—A pertinent question for consideration under Section 112 is whether dissolution of marriage can be presumed from circumstances of case. Because if a child is born within 280 days of dissolution of marriage, will be presumed to be child of father, where marriage with child's mother has been dissolved. In M. Govind Raju v. K. Muniswami Gounder and others,88 the appellant M. Govind Raju was born to Poppummal from the loins of Muniswami Gounder. The appellant has been denied his share in the joint Hindu family property owned by his father on the sole ground that when begotten no valid marriage subsisted between his parents. The trial Court decided in favour of appellant but High Court branded him as illegitimate child and hence held not to be entitled to inherit the property in joint Hindu family. The Supreme Court held that, woman deserting her husband and living with another man, child born from that relationship, where the paternity has been acknowledged by relatives will be legitimate child. According to the opinion expressed by Supreme Court in instant case, a Sudra woman (woman of lower caste) abandoning her husband and not brought back by her erstwhile husband as wife, would be deemed to be divorced according to Hindu Law. Here the woman had deserted her earlier husband, the husband did not bring her back. The woman was living with another person for long time. In these circumstances, it will be presumed that the marriage between the woman and her earlier husband had been dissolved because taking caste into consideration it was customary in Sudras, that each spouse is entitled to rearrange his or her life in marriage with other marrying partner. The child will be deemed to be legitimate child. The decision of High Court was not proper. In S. Ajaramma Bibi alias S. Hajaram Bibi and others v. S. Khursheed Begum and others,89 the Supreme Court said that continuous cohabitation of woman with a man gives rise to presumption of legitimacy of children born during period of continuous cohabitation. Appellants are ligitimate son. Access.—The word "access" in this section means actual sexual intercourse. 'Access' in this case means effective access. The presumption which Section 112 contemplates is conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in this section, namely non-access between parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and nonaccess connote , existence or non-existence of opportunities for marital intercourse.90 If it is not necessary in all cases to prove that the man and the woman could not be together as for example one was at Calcutta and other at Madras. If it is established that the husband was physically incapable of procreating it will mean non-access within the meaning of

_________________ 88. 89. 90.

AIR 1997 SC 10. AIR 1996 SC 1663. Venketeswarlu v. Vankta Narayan, AIR 1954 SC 156 ; Karapaya Sevai v. Mayanand, AIR 1934

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this section. If it is proved that the man is impotent the non-access will be proved. But to stamp a child born to a wife in lawful wedlock with illegitimacy on the ground of incapacity of procreation, it will be necessary to prove: — (1) the precise age of the husband at the date of conception ; (2) to negative the possibility of premature vitality at that age owing to precocious development. "In this section as it has been said above it should be remembered that the word 'access' and 'non-access' mean the access and non-access of sexual intercourse. The wife of P left him and went to live with her father. Shortly after her father dying, she developed a connection with one H with whom she went to live. P took a house opposite to the one where they resided and had frequent intercourse with her. She had two children during this time. It was held that they must be declared legitimate." 'Access' if it is such access as affords an opportunity of sexual intercourse, and where the fact of such access between a husband and a wife within a period capable of raising the legal inference as to the legitimacy of an after-born child is not disputed, probabilities can have no weight and a case can never be sent to a jury. There is nothing against the evidence of access except evidence of the adulterous intercourse of the wife with H, which does not affect the legal inference ; for if it were proved that she slept every night with her paramour from the period of her separation from her husband it must still declare the child to be legitimate. The interests of public depend upon strict adherence to the rule of law. From proof of 'access' as this word is used in this section the presumption of sexual intercourse is very strong. Proof per se that the woman was living with the paramour is no evidence of non-access by the husband. The fact that the husband has been living with another woman for a number of years does not amount to a clear proof of non-access.91 B was married in 1929 and became lunatic in 1933. He was confined in a lunatic asylum until his death. His wife who lived 25 miles away occasionally visited her husband but the keepers of the asylum had strict orders not to allow them at any time to remain together ; He was allowed freedom of the grounds and the porter sometimes being absent it was possible for a person to enter without being seen. In March, 1935 she visited the asylum remaining alone for sometime with her husband and a child was born in December, 1935. There were rumours at that time that Mrs. B was living in adultery with one D. But the court held that the child was legitimate. That husband and wife slept together affords a strong and irresistible inference of sexual intercourse. But in absence of such irresistible inference the fact of sexual intercourse must be tried like any other fact, to which no direct evidence is applicable. Provided that husband and wife were living in the same town and so had opportunities of meeting, and therefore, sexual intercourse, would in absence of any proof raising a presumption to the contrary, be sufficient to establish legitimacy of the child born of the wife. To prove that the husband and wife had been in the same room or the same house together would be much strong evidence of the fact. _________________ 91. Reghovan Pillai v. Gauri Kuttiamma, AIR 1960 Ker 119.

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In Devesh Pratap Singh v. Smt. Sunita Singh,92 the husband admitted the consummation of marriage after it took place on 29-11-1985 and also admitted the access to each other between 2911-1985 to 21,-1-1986. The child born on 31-10-1986 could have been conceived as husband and wife had access to each other between the above period. The husband cannot derive much help from the admission made by wife during cross-examination where the husband visited her while she was living with her parent's house between 8-1-1986 to 12-1-1986, she was in menstrual period. Merely because the wife states that she was in menstrual period, at the time of visit of her husband it cannot be conclusively held that she could not have conceived earlier to the above period as a result of her access to the husband before and after the same period. Further in her statement she categorically stated in her examination-in-chief that when her husband came to her parent's house in January, 1986, she has already become pregnant the version of wife appears to be material and truthful. Thus in view of the medical opinion, the plea of the husband based on the alleged admission of the wife in cross-examination about her menstrual period does not lead to a rebuttal presumption that wife had conceived as result of any illicit sexual (relation) intercourse with any person outside the wedlock. The presumption in Section 112 of Evidence Act thus does not stand rebutted in view of the admitted access between the husband and the wife during which she could have conceived and delivered normal child. Relevancy or admissibility of blood test under Section 112.—In the above case the husband sought the direction of the Court to blood test. Here the consummation of marriage and access between husband and wife was admitted. Medical opinion supported wife. But wife refused to blood test on the ground that there is no one in her family to take her to Delhi for blood test. It was held by Madhya Pradesh High Court that no adverse inference can be drawn against wife in refusing to submit herself to blood test. Relevancy or admissibility of D.N.A. or R.N.A. Test :—In Kamti Devi v. Poshi Ram,93 the Supreme Court held that Section 112 of Evidence Act was enacted at the time when modern scientific advancement with Dioxy Nucleic Acid (DNA) as well as Ribo Nucleic Acid (RNA) was not even in contemplation of the Legislature. The result of a genuine DNA Test is said to be scientifically accurate but even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if the husband and wife were living together during the time of conception but DNA Test reveals that the child was not born to the husband the conclusiveness in law would remain unrebuttable. This may look hard from point of view of husband who would be compelled to bear the fatherhood of the child of which he may be innocent. But even in such cases law leans in favour of innocent child from being basterised if his mother and spouse living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in light of what is meant by access or non-access as delineated above.

_________________ 92.

AIR 1999 M.P. 174.

93.

AIR 2001 SC 2226.

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Where Section 112 applies and non-access is not proved, even a negative DNA test report cannot help to rebut the presumption drawn under Section 112 of the Evidence Act. The unwillingness by the wife to undergo the DNA test cannot hence tilt the scales against her.94 SECTION 113.—Proof of cession of territory.—A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification. SECTION 113-A.—95[Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. " Explanation.—For the purposes of this section "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860). Presumption of abetment of suicide.— When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and (2) that her husband or such relative had subjected her to cruelty, the court may presume, having regard to other circumstances, that such suicide had been abetted by her husband or by such relative of her husband.96 Section 113 A is retrospective and so it applies to case where offence was committed prior to the insertion of section.97 In the above case the question was about the abetment of suicide by a married woman. The provision is procedural. So it has got retrospective effect also. In State of Himachal Pradesh v. Nikku,98 the Supreme Court held that this section shows that if the woman has been subjected to cruelty as defined in Section 498-A I.P.C., the court may presume, having regard to all circumstances of the case that suicide had been abetted by her husband or any of his relations. In K. Prema S. Rao v. Yadla Shri Niwasa Rao with State of Andhra Pradesh v. Yadla Ramga Rao and others,99 accused husband pressurised and

_________________ 94. 95. 96. 97. 98. 99

Laila v. Muhammed Ali, AIR 2009 NOC 173 (Kef) at pp. 180-181 (DB). Section 113-A inserted by the Criminal Law (Second Amendment) Act, 1983. Jagdeesh Chand v. State of Haryana, 1988 Cr. L.J. 1048 ; B.P. v. State of H.P., 1989 Cr. L.J. 1186. Gurbachan Singh v. Satpal Singh, AIR 1990 S.C. 209. AIR 1996 SC 67. AIR 2003 SC 11.

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[S.

harassed the deceased to part with her land received by her from her father as stridhan. The method adopted for harassment was that the postal mails of the relatives sent to her was suppressed by her husband who was in position to do so being a branch Post Master in village. When the letter was discovered by his wife, she handed them over to his father. She was driven out of the house. The cruel conduct of the husband led wife to commit suicide. On the basis of such evidence the conviction of accused under Section 498-A by trial Court and the High Court was found to be proper. As a result of such cruel treatment, the wife was driven to commit suicide. Thus, the offence of abetment of committing suicide punishable under Section 306 I.P.C. would be clearly met out against accused and for that purpose the presumption under Section 113-A of Evidence Act can be raised against him. The Supreme Court has ruled that where presumption of suicide of married woman is not available, the conviction is to be based upon cogent evidence.1 In Arvind Kumar v. State of M.P.,2 the accused constantly harassed, humiliated and tortured his wife, the deceased, for bringing insufficient dowry and persistently made demand for bringing articles. The deceased committed suicide by setting her on fire after pouring kerosene on the body. The accused was present in the house but made no attempt to save her. He even did not call the doctor. It was his elder brother who came out from another house who called the doctor. There were 100% burn injuries on the body of the deceased. It was held that the presumption contemplated under Section 113-A was clearly attracted in the facts of the case and the accused did not lead any evidence to rebut the said presumption and therefore the accused was guilty under Section 306, IPC for abetment of suicide and under Section 4 of Dowry Prohibition Act.3 In Rajbabu and another v. State of M.P.,4 the deceased, woman was alone at her matrimonial house when she received burn injuries at the time of cooking food. Her husband had gone to the forest for collecting the wood. Her father-in-law had gone out for some other work. Her motherin-law had also gone to fetch the water from the well. There was no eye-witness to the occurence of the act of suicide which was alleged to have been committed due to abetment by the husband, mother-in-law and father-in-law. There was also no suicide note. The only evidence was dying declaration and the contents of an undated letter appeared to have been written by the deceased on the day of occurrence to the family members of her paternal home. In her dying declaration made before Investigating Officer and some villagers, she stated that when she was pouring kerosene, one end, of the Saree caught fire. The fire was accidental while cooking food and she neither set fire on her own nor anybody set fire on her and no quarrel took place and there was no problem in her matrimonial home. The contents of the letter in brief were that she did not want to become burden on her matrimonial home and that she had always treated her in-laws more than her

_____________ 1. 2. 3. 4.

P. Mani v. State of Tamil Nadu, (2006) 3 SCC 161. AIR 2007 SC 2674. Ibid., at p. 2677. AIR 2008 SC 3212.

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parents but because of their attitude the matrimonial home was ruined and it was the last day of her life. There was no direct evidence of abetment of suicide and the prosecution relied on circumstantial evidence for raising a presumption by the Court under Section 113-A of Evidence Act. The evidence on record disclosed that the deceased wanted to be married in a literate family and she was not happy with the status and condition of the family of her husband. Her husband was illiterate. She was of the view that her life had been spoiled by marrying her husband. In the letter, there was no reference of any alleged act or omission, by the appellants 1, 2 and 3 i.e. the husband, mother-in-law and father-in-law, whereby they committed abetment to the deceased to commit suicide. The letter mentioned the fact of attitude of family towards the deceased not good but there was no mention of any incident of cruelty towards the deceased. The mother-in-law of the deceased used to ask her to run handdriven flour-mill to which she was not habitual. In the year 1988, when the incident occurred, the hand-driven flour-mills were generally used by the poor families in the villages which could not be said to be an act of cruelty. The Trial Court acquitted father-in-law but convicted the husband and mother-in-law under Sections 306, IPC, 498-A, IPC and sentenced both of them to rigorous imprisonment for three years on each count and the sentences were to run concurrently. The appeal was dismissed by the High Court. Both the appellants were enlarged on bail. During the appeal, the appellant 1, i.e., the husband of the deceased died and therefore the appeal concerning him abated and the appellant 2 was given benefit of doubt. Justice Dr. Mukundakam Sharma on behalf of himself and Justice R.V. Raveendran observed : "The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.5 SECTION 113-B.—Presumption as to Dowry death.—When the question is whether a person had committed the Dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation.—For the purposes of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860). The court shall presume.—Under this section when it is shown that soon before the death the woman had been subjected to cruelty or harassment by

_____________

5. Rajbaba and another v. State of M.P., AIR 2008 at p. 3216

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the accused for dowry the court shall presume that the accused had caused the dowry death and the burden is on the accused to rebut the presumption. In State of Himachal Pradesh v. Nikku,6 Roshani had committed suicide. The demand for television, electric fan etc. was made. But the prosecution has failed to establish that Roshani was subjected to cruelty in connection with dowry demands. In Tarsem Singh v. State of Punjab,7 the Supreme Court held that presumption under Section 113-B is one of law. The presumption will be raised only on the proof of following essentials. Justice S.B. Sinha laid down the proof of following essentials to raise such presumption— "(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, I.P.C.). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death."8 Soon before her death.—In Kans Raj v. State of Punjab,9 the Supreme Court explained the term 'soon before' which occurs in Section 113-B. The Supreme Court held that the term "soon before" is relative term which is required to be considered under specific circumstances of each case, and no straight-jacket formula can be laid down by fixing any time. This expression is pregnant with idea of proximity bar. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to particular instances, but normally refer to cause of conduct. Such conduct may be spread over a period of time. If cruelty or harassment of demand of dowry is shown to have persisted, it should be deemed to be soon before the death, if any other intervening circumstances showing the non existence of such treatment is not brought on record before alleged transaction date of death. It does not however mean that such time can be stretched to any period. The proximity and the link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry cruelty or harassment based upon such demand shall not be too remote in time which other circumstances be treated as having become stale enough. Moreover no presumption under Section 113-B of Evidence Act would be drawn against accused if it is shown that after alleged demand of dowry, cruelty and harassment the dispute stood resolved and there was no evidence of

_____________ 6. 7. 8. 9.

AIR 1996 SC 67. AIR 2009 SC 1454. Ibid, at p. 1457. AIR 2000 SC 2324.

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cruelty and harassment thereafter. Mere lapse of time would not provide itself to an accused a defence. If in a case conduct relating to cruelty or harassment in connection with dowry demand is shown to have existed earlier in the time not too late and too stale before date of death of woman. It has been held by the Supreme Court that the term 'soon before' used in the section does not imply 'immediately before' as these are not synonyms. The wife died within 7 years of marriage, evidence of harassment and demand of dowry coupled with torture was there. Hence, it was a case of dowry death under Section 113-B.10 The expression 'soon before her death' used in Section 304-B, IPC and Section 113-B of the Evidence Act connotes the idea of proximity test. No definite period has been indicated. It has been left to be determined by the Courts depending upon facts and circumstances of each case. Normally, it would imply that the interval should not be much between the cruelty or harassment and death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and concerned death. The incident of cruelty having become remote in time and stale enough not to disturb mental equilibrium of the woman concerned would be of no consequence.11 The deceased woman and the accused-appellant were married on 11.3.1986. The deceased died in the hospital on 5.6.1986 due to consuming of something. The brother of the deceased who was the first informant reached hospital immediately on receiving news of his sister's death. The accused admitted that he had made demand of dowry at the time of marriage which was met in part. There was no evidence that the accused had got her admitted her in the hospital. He absconded for six days after the incident. There was no explanation as to why he had absconded. The deceased was allegedly used to be tortured for non-fulfilment of dowry-demand. Held—The prosecution has discharged its primary onus, as envisaged under Section 304-B of the Indian Penal Code. In terms of Section 113-B of the Indian Evidence Act, the onus of proof was on the appellant. As the defence taken by the appellant could not be established, he could not be held to have discharged his onus.12 Soon before her death implies not much interval between cruelty or harassment and death. There must be a proximate and live link between the effect of cruelty based on dowry demand and the concerned death.13 Onus heavier.—The onus on the accused in case of dowry death is heavier than the onus in case of presumption of abetment of suicide by a married woman under Section 113A of Evidence Act.14 In Prem Kanwar v. State of Rajasthan,15 the Supreme Court through Justice Dr. Arijit Pasayat observed :

_____________ 10. 11. 12. 13. 14. 15.

Kailash v. State of MP., AIR 2007 SC. M. Srinivasalu v. State of A.P., AIR 2007 SC 3146 at p. 3149. Rameshwar Dass v. State of Punjab, AIR 2008 SC 890 at p. 895 ; State of Karnataka v. Manjunathe gowda, (2003) 2 SCC 188 referred to. Baldev Singh v. State of Punjab, AIR 2009 SC 913. Anand Kumar v. State of M.P., AIR 2009 SC 2155 at p. 2157. AIR 2009 SC 1242.

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"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B, IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman-concerned, it would be of no consequence.16 SECTION 114.—Court may presume existence of certain facts.—The Court may presume the existence of any fact which :t 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. ILLUSTRATIONS The Court may presume.— (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession ; (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars ; (c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; _____________ 16.

Ibid, at p. 1246.

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(d ) that a thing or state of things which has been shown to be in existence with in a period shorter than that within which such things or state of things usually cease to exist, is still in existence ; (e ) that judicial and official acts have been regularly performed ; (f) that the common course of business has been followed in particular cases; (g) that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it; as to illustration (a)—a shopkeeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically but is continually receiving rupees in the course of his business ; as to illustration (b)—A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement describes precisely what was done, and admits and explains the common carelessness of A and himself; as to illustration (b)—a crime is committed by several persons. A, B and C three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D and the accounts corroborate each other in such a manner as to render previous concert highly improbable ; as to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B the acceptor, was a young and ignorant person, completely under A's influence; as to illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course; as to illustration (e)—a judicial act, the regularity of which is in question was performed under exceptional circumstances; as to illustration (f)—the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances; as to illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family ;

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as to illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked ; as to illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it. COMMENTS Presumption, meaning of.—A presumption is a rule of law that attaches definite probative value to specific facts or directs that a particular inference as to existence of one fact not actually known shall be drawn from a fact which is known and proved. It furnishes prima fide evidence of the matter to which it relates and relieves the party of the duty of presenting evidence until his opponent has introduced evidence to rebut the presumption. It raises such a high degree of probability in its favour that it must prevail unless clearly met and explained. Presumptions hold the field in the absence of evidence but when facts appear presumptions go back.17 Presumptions may be either of law or fact and when of law may be either conclusive or rebuttable but when of fact are always rebuttable. Mixed presumptions are those which are partly of law and partly of fact. Court may presume the existence of certain facts.—If a fact is likely to have happened in the common course of natural events according to general human conduct, according to public and private business, in their relation to the facts of the particular case, the court may presume the existence of such fact. "The effect of this section coupled with the general repealing clause at the beginning of the Act, is to make it perfectly clear that the courts of justice are to use their own common sense and experience in judging of the effects of particular facts, and that they are to be subject to no technical rules whatever on the subject." This section gives the courts very wide power. If a fact must happen in the ordinary course of events the court may presume it and the party denying its existence has to rebut it. In the common course of business, if a letter is posted in the letter-box, if nothing unusual happens it must reach the addressee. So if it is proved before a court in some case that a letter was posted it shall be presumed that it reached the addressee. A sent a registered notice to B terminating the lease of a house and requesting him to vacate the premises. Afterwards A files a suit for B's ejectment. B denies having received notice terminating the lease. A files the postal receipt showing that the registered letter was sent by A to B . Now this having been proved the court may presume that the notice did reach B and it lies heavily on B to prove that he did not receive the notice. A executes the mortgage deed in favour of B for Rs. 5,000. Afterwards B files a suit for the possession of the mortgaged property on the basis of that mortgage deed. A contends that he has paid up the mortgage money and redeemed the mortgage. During the course of trial A files the original mortgage-deed with an endorsement of payment on its back purporting to have been written and signed by B. Now the mortgage-deed originally should have been in possession of B and if it has been produced by A,

_____________ 17.

Fateh Gunai v. Sardar, AIR 1958 Punj 333.

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in natural course of events A could not have got it unless he paid the money to B. And so by mere production of the deed by A the court may make a presumption that the mortgage-deed has been redeemed, and if B wants to prove that he has not received the money nor has been given back the mortgage deed after making the endorsement of payment on its back, he must prove it. But it should be borne in mind that where the facts are ascertained, presumptions arising from conduct cannot establish a right which the facts themselves disprove.18 "May".—The word "may" in Section 114 (b) cannot be converted in "must". The evidence of accomplice can be made basis for conviction without corroboration. Reading Sections 133 and 114 (b) together, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration.19 Common course of natural events.—The course of conduct which this section terms as 'Common' can only be that which is most common in the experience of the Judge who has to decide the point. The conduct of animals as dogs, are not admissible under this section.20 In Miss Srumoyu Ghosh v. State of West Bengal and others,21 it was held by Calcutta High Court that if a student obtained good marks in earlier examination, this cannot be the basis to presume that she or he would get the same marks in the subsequent examination. Good performance in earlier examination cannot be the ground for revaluation in subsequent examination. If compensation, in a land acquisition proceeding is paid to a widow whose name is recorded in revenue proceeding, that would not necessarily mean that the widow's title is established.22 If the material witness is withheld by the prosecution the utmost that would follow would be to draw adverse inference against the prosecution. But before such inference (presumption) can be drawn it must be proved to the court that material witness has actually seen the occurrence but had been adversely withheld from the witness box by prosecution.23 In Bhagban Panda v. Dullav Panda,24 there was presentation of suit for partition. Defendant alleged that there was partition before the present suit. There being no evidence that the land in possession was self-acquired by defendant's father, family will be presumed to be joint Hindu family. Illustrations.—Scope of.—The application of the section is very wide. The section covers not merely the particular instances given in the illustrations to the section, but all sorts of similar cases which are equally amenable to the

_____________ 18. 19. 20. 21. 22. 23. 24

Kishori Lal, v. Mrs. Chali Bai, AIR 1959 SC 504. Sitaram Sao @ Mungeri v. State of Jharkhand, AIR 2008 SC 391 at p. 394. Said Ali v. Emperor, AIR 1940 Peshawar 47; Ram Bharose v. State, AIR 1952 Alld. 481. AIR 1996 Cal. 01. Ramrati Kuer v. Dwarka Prasad, AIR 1967 SC 1134. P. Amarappa v. State of Karnataka, AIR 1989 SC 2004. AIR 1991 Orissa 66

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general principle enunciated by the section. The illustrations are not exhaustive. They merely illustrate the principle of the section.25 Illustration.—(a) In a criminal case the burden of proof always lies on the prosecution, for the accused is to be presumed to be innocent. The illustration (a) is an exception to this general rule. This illustration lays down that as soon as it has been established that the prisoner was found in possession of stolen goods shortly after they were stolen, it may be presumed that he is, either a thief or has received the goods knowing them to be stolen, unless he can account for his possession.26 The presumption permitted by illustration (a) does not arise until the prosecution has established the following facts :— (1) the ownership of the articles in question, (2) their theft, and (3) their recent possession by the accused. (1) The ownership of the article.—Before a presumption may be raised under illustration (a) against an accused to the effect that he is a thief or has received an article knowing it to be stolen, it must be proved that the article which was recovered from his possession, belonged to somebody else and was in his possession sometimes back. A watch was recovered from the possession of A . He is suspected of theft. Unless and until it is proved as to who was the owner of the watch and in whose possession it was prior to its recovery from the possession of A, it cannot be presumed that A is a thief or he received it knowing it to be stolen. (2) The commission of theft.—The second ingredient to be proved by the prosecution in order to give rise to a presumption under illustration (a) is the proof of theft of the article recovered from the possession of the accused. The prosecution must prove that a theft was committed in respect of the property recovered from the possession of the accused. In the above-mentioned example before any presumption can be raised under illustration (a) the prosecution has to establish that a theft had been committed in respect of the watch prior to its recovery from the possession of A.27 In the case of Union Territory of Goa v. B. D'Souza and others,28 the accused was unable to give any evidence about the stolen things. The presumption can be made under Section 114. The accused were guilty under Section 411, Indian Penal Code. But from the fact that the stolen article was recovered from the accused after one month of theft, it shall not be presumed that the accused had committed murder. (4) Recent possession.—Mere recovery of stolen property possession of accused does not give rise to presumption under illustration (a).

from

the

_____________ 25. 26. 27. 28.

Chowdappa v. Emperor, AIR 1945 Bom, 292 ; Chheda v. Emperor, AIR 1944 Alld. 281; Devi v. Emperor, AIR 1947 Alld 191. Biru Mall v. State of Gujarat, AIR 1947 SC 334 ; Ali Sher v. State of U.P., AIR 1974 SC 1830. Dhyani Gop v. Emperor, AIR 1947 Patna 205. AIR 1993 SC 1199.

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For presumption under illustration (a) the possession must be recent. The presumption permitted to be drawn under Section 114, illustration (a) has to be read along with the important time factor. If articles are found in the possession of a person soon after the theft, presumption of guilt may be permitted. But if a thing is recovered long after no presumption can be drawn.29 In Sanjay alias Kaka v. State of Delhi,30 the recoveries of stolen property were made from the accused consequent upon their disclosure. Statement did not offer any explanation regarding possession of stolen property. Thus drawing presumption under Section 114 of Evidence Act, it can be safely held that accused persons were guilty of offence of robbery. Similarly, recent and unexplained possession of stolen property could be taken as presumptive evidence of charges of murder as well. In Limbaji and others v. State of Maharashtra,3i it was held by Supreme Court that in circumstances of recovery of incriminating articles within reasonable time after incident at the places pointed out by accused, the presumption as to commission of offence by accused can be drawn. In Avtar Singh v. State of Punjab,32 the bags containing poppy husk were seized from the vehicle in which accused were travelling. The accused was driving the vehicle. The other two were sitting on the bag. Failure to explain the circumstances in which they were travelling at wee hours is circumstances against the accused. But in absence of any examination of the accused on question of possession, the presumption that accused were in possession of poppy husk cannot be raised. Whether the possession is recent or not must be determined by the nature of the articles stolen. If the article is of a nature likely to pass from hand to hand, the periods elapsed between the committing of theft and the recovery must be very short. If the period is not very short no presumption can be raised that the person in possession is a thief, or that he received the article knowing it to be stolen. But if the article is of such a nature that it cannot change hands easily a longer period may be taken to be recent. Suppose article subject to theft were a board of chess, a coat or some other article as a man of ordinary status in life would naturally put on and that they were recovered within six months from the date of theft, the period will not be supposed, to be recent and there shall be no presumption under illustration (a ). In such cases the prosecution has to prove that the accused stole away the article himself or he received it knowing it to be stolen. Two bales of woollen cloth were stolen from M . Two months after the theft, they were found in possession of P, the presumption is that P stole it or received it knowing it to be stolen. This possession is held to be recent only because bales cannot easily change hand. An axe and a saw were stolen on

_____________ 29. 30. 31. 32.

Tulsi Ram v. State, AIR 1954 SC 51. AIR 2001 SC 979. AIR 2002 SC 491. AIR 2002 SC 3343.

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March 1st. On June 1st they were found in A's possession. It was held that it was not recent possession. A shovel was stolen from A in August 1941. In March, 1942 it was found in C's hand. This recovery does not raise any presumption under illustration (a). (3) Possession must be exclusive.—It must be borne in mind that in order to give rise to the presumption under illustration (a) the possession of the accused must be exclusive. The property must be traced to the exclusive possession of the accused. In order to raise the presumption legitimately the possession of stolen property should be exclusive as well as recent. Finding of it on the person of the accused or in a locked up house in a room or in a box of which he kept the key and of which he was in exclusive possession would be a fair ground for raising the presumption under this illustration ; but if the articles stolen were only found in house or in a room in which he lived jointly with others or in an open box to which others have access, no definite presumption of his guilt could be made. Where stolen property was found in a camp of a party of a refugees, it was held that it was not proved in whose possession it was and so conviction of any of them was not justified. The pistol of A was stolen on 1st of March, 1941. On 1st of April, 1941, it was found in the house of C in a cornbin. In this house ten adult members lived with C. D was challaned for this offence. There was no evidence to prove that C alone was in possession of the pistol. Though the possession was very recent the exclusive possession with C not being proved, no presumption could be raised under this illustration. When the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles.33 Conviction for offences other than theft on recovery.—Even if the articles looted in dacoity are recovered soon after the occurrence accused cannot be convicted under Section 395, I.P.C. They can be convicted under Section 411.34 When the articles of dacoity are recovered very soon after the dacoity, is itself sufficient to bring the case not under the provisions of Section 412, I.P.C. but also under Section 395, I.P.C.35 Recovery of ornaments of deceased which she was wearing before the murder, at the information of accused cannot connect the accused with murder unless some evidence to connect him with murder. No presumption of murder can be drawn under illustration (a)36. Presumption of murder by recovery of article of deceased.—The question as to whether presumption should be drawn under Section 114 (a) is a matter which depends on the evidence and circumstances of each case. The nature of recovery, the matter of their acquisition by the owner, the manner in which the articles were dealt with by the accused, the place of recovery, the length of period of recovery, the explanation of the accused or some of them. A

_____________ 33. 34. 35. 36.

Trimbak v. State of M.P., AIR 1954 SC 39. Amar Singh v. State of M.P., AIR 1982 SC 129. Lachhaman Ram v. State of Orissa, 1958 SC WCJ 753. Nagappa Dondiba v. State of Karnataka, AIR 1980 SC 1763.

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recent and explained possession of stolen articles of deceased can well be basis of presumption of murder.37 Where the rings of gold bore the initial of the deceased and it was found tied in a handkerchief together with finger marked currency notes and purse of the accused ; presumption under Section 114 (a ) was drawn.38 In Rony alias Ronald James Alwaris v. State of Maharashtra,39. there was recovery of articles belonging to deceased family from possession of accused, soon after the incident. Possession remained unexplained by accused. So presumption under Section 114 (a) was held to be attracted. The case involved murder and robbery found to be part of the same transaction. Thus it would be concluded that accused and not else had committed murder and robbery. Accused's explanation.—It is also to be remembered that if the accused gives an account as to how he came by the property and that explanation is reasonable, no presumption under this clause can be raised and accused is entitled to acquittal. A cycle of A was stolen away. After a month or so it was recovered from possession of B. B says he purchased it from a shopkeeper. He produces a receipt to that effect. He is entitled to an acquittal. The accused has not to establish his case positively that he received the property in the manner indicated by him. It is enough if the explanation of the accused as to how he came in possession of the stolen goods is one which the Court can accept as reasonable.40 The following propositions regarding the burden of proof to criminal trial may be deduced from the decided cases. (1) That in a criminal trial the onus of proving the main issue is always on the prosecution, (2) that under illustration (a ) to this section the Court may, but is not obliged to make the presumption therein mentioned, (3) that even if the Court makes the presumption under illustration (a ) the onus of the general issue is still on the prosecution, (4) that it is not the law that if the accused fails to account for his possession of the goods alleged to be stolen, he must be convicted, if the other proved facts of the case do not prove his guilt. (5) that the accused is entitled to acquittal if he can give explanation which were reasonably true although the court may not be convinced of its truth, (6) that the accused is not required to prove his explanation by adducing evidence, (7) that the accused need not give any explanation unless he is asked to account for his possession.41 Presumptions to dacoity cases.—The principle of illustration (a ) applies to dacoity cases also.42

_____________ 37. 38. 39. 40. 41. 42.

Wasim Khan v. State of U.P., AIR 1956 SC 400; Alisher v. U.P., State, ADR 1974 SC 1830 ; Baiju v. State of M.P., 1978 Cr LJ 646 : AIR 1978 SC 522. Mohan Lal v. Ajit Singh, 1978 Cr LJ 1107: AIR 1978 SC 1183. AIR 1998 SC 1251. Hingra Hazi v. Government of Kutch, AIR 1951 Kutch, 10 ; Kalika Pirumal v. Rex, AIR 1955 Mad. 1088 ; Pulpil Singh v. State, AIR 1955 Alld 696; Karnail Singh v. State of Maharashtra, AIR 1976 SC 1976. Keshav Deo v. Emperor, AIR 1954 Cal 93 ; Jagannath v. Emperor, AIR 1945 Alld 19; Shira v. Emperor, AIR 1943 Lah 5 ; Parasadi v. State, AIR 1955 Alld 443. Bawa Jena v. State, AIR 1958 Orissa 106

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Illustration (b).—Illustration (b ) lays down that an accomplice is not to be believed unless he is corroborated in material particulars. An accomplice is a person who is a guilty associate in a crime. A, B and C commit dacoity. In this case any of the above named persons are accomplice if he is produced as a witness. The following persons, if called as witnesses for the prosecution have been treated as falling in the category of accomplice :— (1) Persons who are participas criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact or persons committing, or aiding or abetting. (2) Receivers of stolen goods from thieves. The principal reasons for holding that an accomplice is unworthy of credit are as follows :— (1) An accomplice is a participator in a crime and is consequently an immoral person, and therefore he is likely to disregard the sanctity of oath. (2) An accomplice is likely to state falsely in order to shift the fault from his shoulders. (3) He gives evidence under the promise of pardon and on the condition that if he disclosed all he knows against those with whom he committed the crime and this hope may lead him to favour the prosecution. Although as a matter of law corroboration is not necessary to convict an accused person on the evidence of an accomplice, an accomplice should, as a rule, be presumed to be unworthy of credit, unless he is corroborated.43 The evidence of one accomplice cannot corroborate the evidence of another.44 This illustration is controlled by the section. If the approver is a man of very high character his evidence cannot be discarded like an ordinary approver. A girl who is victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it. If the jury has been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the prosecutrix, it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it. It is well established that the nature and extent of corroboration necessarily vary with the circumstances of each case. The nature of the corroboration should be such as to lend assurance that the evidence of the prosecutrix could be safely acted upon.45 Corroboration, nature of.—Independent corroboration does not mean that every detail given by the accomplice must be corroborated by the independent witnesses. All that is required is that there must be some

_____________ 43. 44. 45.

Bhubora Sahu v. King, AIR 1949 PC 257 ; Kunj Behari Banka v. State, AIR 1951 Pat 384 ; Ata Mohammad v. Crown, AIR 1950 Lah 199. Tumahole v. The King, AIR 1949 PC 172. Seddheswar Caneuli v. State of West Bengal. AIR 1959 SC 143.

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additional evidence rendering it probable that the story of the accomplice is true and it is safe to rely on. Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence of his connection with the crime.46 Illustration (c)—The Presumption as regards bill of exchange.— Bills of exchange and promissory notes enjoy the privilege of being presumed prima facie to be drawn for valuable consideration. But if the drawer of a bill of exchange is a man of business and the acceptor is a young and ignorant man completely under the drawer's influence there shall be no presumption that the bill was drawn for valuable consideration. Illustration (d)—Presumption of existence from previous and subsequent existence.— According to this illustration if it is proved that a thing or state of things existed within a period shorter than that within which such things or state of things usually ceased to exist, the court may presume, that the thing or state of things exist at the time of the trial. The illustration is founded on the presumption in favour of continuance. It is a very general presumption founded on the experience of human affairs, that things once proved to have existed in a particular state are to be understood as persisting in continuing in the state, until the contrary is established by evidence either direct or circumstantial. Where a certain custom was proved to have existed upto the year 1869, the Court held that in absence of all evidence of its abolition the custom still subsisted at the time of the trial in 1940. If it is proved that A was agent of B in the year 1956 in the absence of evidence of its termination if may be presumed that the agency existed in the year 1957. This should be remembered that if it is proved that a river ran in certain course 5 years ago but it is known that there have been floods since that time which might change its course it may not be presumed that the river ran in the same course in which it flew 5 years ago. Illustration (e)—The performance of Judicial and Official acts.— The illustration lays down that when it is proved that a judicial or official acts has been done it may be presumed that it was done regularly. The rule embodied in this illustration is a particular application of the rule that all acts are presumed to have rightly and regularly done . This presumption is chiefly applied to judicial and official acts. But it is proved that the judicial act, the regularity of which is in question, was performed under exceptional circumstances, it may not be presumed that it was regularly performed. In a suit for ejectment under Section 3 of U.P. Land Eviction and Recovery of Rent and Damages Act, one of the pre-requisites of taking action under Section 3 (1) of the Act is that the public land is required "for one or more public purposes of this Act sub-section (3) (a) of Section 3 requires that the notice shall specify the grounds on which the order of eviction is proposed to be made." In proceeding for eviction, defendant did not file the notice served upon him, nor did he raise the point in lower courts. For the first time he argued that the

_____________ 46.

State of Maharashtra v. Basawan Singh, AIR 1958 SC 500 ; Tribhuwan Nath v. State of Maharashtra, AIR 1973 SC 450.

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impugned notice issued by public authority did not comply with the requirement of Section 3 of the' Act. It was held by the Supreme Court that in the circumstances the principle of the maxim, 'Omnia presumuntur rite essa, acta' applies and it will be presumed that the public purpose of the Act for which the appellant was sought to be evicted from the public land was duly specified in the notice in compliance with the requirement of sub-section (2) of Section 3 of the Act.47 . The entries in Revenue Records may at times, raise a presumption but these do not always confer a title conclusively.48 Illustration (f).—In commercial transactions the presumption is that the usual course of business was followed by the parties thereto. This illustration should be read with Section 16 which says that when there is a question whether a particular act was done, the existence of any course of business, according to which it naturally could have been done is a relevant fact. If a letter containing a notice properly addressed is proved to have been put in the Post Office, it is presumed that it reached its destination at the proper time and was received by the addressee. The presumption would apply with greater force to registered letters, but where the question is, whether the letter was received, it is shown to have been posted but if it is also proved that the usual course of the post was interrupted by the disturbances, it may not be presumed that the letter reached that destination was received by addressee.49 Letter endorsed refused.—When a registered letter comes back with the endorsement "refused" the presumption would be that it was received by the addressee and was actually refused by him.50 A certificate of posting obtained by a sender is not comparable to a receipt of sending through Registered Post.51 Presumption of marriage.—Continuous cohabitation of a man and woman as married couple and their conduct as a husband and wife for a long time may give rise to a presumption that they have been legally married. But such presumption may be rebutted.52 But the woman with whom there has been cohabitation is proved to be a public woman there can be no presumption.53 The law presumes in favour of marriage and concubinage when a man and a woman have cohabited for a long time.54 In Milkhi Ram v. Milkhiram,55 the proof of long cohabitation of person's mother with his father was established by oral as well as documentary evidence. Held, there would presumption of valid wedlock.

_____________ 47. 48. 49. 50. 51. 52. 53. 54. 55.

Jai Datta v. State of UP., AIR 1979 SC 1303. E. Parashuram (Dead) by LRs v. v. Dorai Swamy (Dead) by LRs, (2006) 1 SCC 658. Kanak Lata v. Amal Kumar, AIR 1970 Cal. 328 : Ayisa Bibi v. Aboo Bakar, AIR 1971 Kerala 219 : K.V. Subayya v. P.R.R.T. Co., AIR 1972 A.P. 72; Srinath Jagdish v. Ravinder Singh, AIR 1991 Del 50. Punanda Venkateswara v. C.V. Ramai, AIR 1976 SC 869. State of Maharashtra v. Rashid Babubhai Mohan, AIR 2006 SC 825. Gokul Chand v. Pravin Kumari, AIR 1952 SC 23 Rafiuddin v. Yashoda Bai, AIR 1968 Mys. 155. Algammal v. Devkammal, AIR 1982 Mad. 354; Khageshwar v. Domuni Beva, AIR 1989 Ori. 10. AIR 1996 H.P. 116.

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In Lalsa v. Upper District Judge, Basti,56 parties were always treated as husband and wife. The deceased husband was railway employee. The deceased husband has acknowledged female as wife by making declaration in various forms and documents maintained by railways. Parties were living together for four years. There was concurrent finding by courts below as to relationship. Omission to mention female as wife of concerned employee in family register cannot be treated as clinching evidence to deny the status of wife to female in question. When a man and woman have cohabited continuously for number of years, the law presumes in favour of marriage against concubinage.57 Where as per evidence on record, a woman after death of her husband was continuously living with a man, the presumption as to their marriage would arise but it would be a rebuttable presumption.58 Registration of marriage is a good presumption about marriage. Unregistered marriage has no presumption.59 Illustration (g)—Presumption from withholding evidence.—This illustration lays down that if evidence which can be put is not produced it may be presumed that if produced it would be unfavourable to the person who withheld it. The omission of a party in a proceeding to produce the evidence which he could have produced raised a presumption against his claims. A refuses to produce a deed which is the basis of the title which he claims. The presumption is, that, if produced, the deed would injure his claim. When a party does not produce a document in his possession the Court may presume that its production will damage his case."60 The nonproduction of account books by a party when such account books would throw much light on the case raises adverse presumption.61 Every deed being the best evidence of its content, its nonproduction raises the presumption that there is some endorsement on the document which the plaintiff does not like to reveal.62 But it should be borne in mind that adverse inference cannot be drawn by mere nonproduction of a document by a party if the opposite party did not apply for its production.63 Where on account of loose electric wire which caused death of a person a complaint was lodged, if the official register of loose electrical wires is not produced by Board, an adverse inference against Board can be drawn.64 The presumption is only option and one fact depending upon whole set of facts.65

_____________ 56. 57. 58. 59. 60. 61. 62. 63. 64. 65.

AIR 1999 All. 342. Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135. Tulsa v. Durghatia, AIR 2008 SC 1193 at pp. 1195-1196; A. Dinnohamy v. W.L. Blahamy, AIR 1927 PC 185 ; Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135 ; Gokul Chand v. Parvin Kumari, AIR 1952 SC 231 and Badri Pd. v. Dy. Director of Consolidation, AIR 1978 SC 1557. Seema (Smt.) v. Ashwani Kumar, (2006) 2 SCC 578. Sajjad v. Mohammad, AIR 1934 All 71. Prasad v. Mst. Sugari, AIR 1925 P.C. 93. Mohammed v. Zahoor, 24 ALJ 94 ; Ahmad v. Ali Ibrahim, AIR 1925 P.C. 177. Ram Rati Kuer v. Dwarika Prasad, AIR 1975 SC 1134. Asa Ram v. MCD, AIR 1995 Del. 164. Srimati Indra Gandhi v. Rajnarain, AIR 1975 SC 2299.

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Entries from public documents may be produced by either party and so their non-production by one party cannot give rise to adverse inference against him to reveal.66 Where a witness is not called by prosecution which it was the duty of the prosecution to call, it may be presumed that the witness if produced would not have supported the case of person withholding, him. An adverse inference against the prosecution can be drawn only if it withholds evidence and merely on account of its failure to obtain certain evidence.67 But when a witness is exempted on the ground that he has been won over and no objection is raised as to the fact, no presumption can be raised under this section.68 But it should be remembered that if a man refuses to produce a document which would bear on a contract of a small importance on which he sued but might also injure the document was produced it would have been unfavourable to the person withholding it.69 If the court directs the State Government to produce certain document and the Government does not produce the document, adverse inference against Government may be raised.70 Non-appearance of a party.—Inference against a party to a proceeding for nonappearance in the court would arise only if there was no other evidence on the point in issue. If the point in controversy has been proved by the admission of the adversary or by other documentary evidence no adverse inference is possible.71 Illustration (h)—Refusal to answer.—The court may presume that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. But if a man refuses to answer a question which he is not compelled by law to answer but the answer, to it might cause loss to him in matters unconnected with the matter in relation to which it is asked, its refusal to answer the question may not give rise to presumption that if he would have answered the question it would have been unfavourable to him. Illustration (i)—Documents in hands of obligor.—There is a natural presumption that a person discharging his debt will generally protect himself securing the document creating the liability. So when a bond is produced by the obligor, the presumption is that it has been satisfied. A executes a usufructuary mortgage for Rs. 1,000 in favour of B and delivers the deed to him. Afterwards a dispute arises between them. A alleges to have paid the mortgage money. B denies to have received it. A produces the original mortgage-deed in Court. It may be presumed that A paid the mortgage money to B . But it must be remembered that if a bond is in possession of obligor but the circumstances of the

_____________ 66. 67. 68. 69. 70. 71.

Ram Rati Kuer v. Dwarika Prasad, 1967 SC 1134. Srichand v. State of Maharashtra, 1967 SC 450. Gurmej Singh v. State of Punjab, AIR 1992 SC 214 ; 1992 Cr. L.J. 293. Sawal Das v, State of Bihar, AIR 1974 SC 778. Gulshan Kallu v. Zila Parishad, AIR 1981 SC 1668. Pandurang v. Ram Chandra, AIR 1981 SC 2235.

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OF THE BURDEN OF PROOF

case are such that he might have stolen it, it may not be presumed that obligation has been discharged. Illustrations are not exhaustive.—The illustrations given under Section 114 are not exhaustive. Nine of the most familiar illustrations are given by way of example. Numerous other presumptions may be drawn from ordinary course of human conduct, natural events and our experience of the world. Official act.—The Court may or may not raise a presumption that an official act was not done in due course of its business but in a criminal case no such presumption should be raised which has not its origin in a statute but may cause great prejudice to the accused.72 Non-examination of a party to lis.—Non-examination of the party to the lis would lead to drawl of an adverse inference against her.73 Where the S.O. who had prepared plan to prevent dacoity and robbed the dacoits had also dictated FIR, was architect of the facts of the case, neither he nor I.O. were examined by the prosecution, it was held to be fatal to prosecution.74 Sanction Order by D.M.—When sanction to prosecute order was passed by the District Magistrate in discharge of routine official functions, there was a presumption that the same was done in a bona fide manner. The respondent could question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.75 Section 114 of Evidence Act and Section 16 of Contract Act— Undue influence.—The law does not envisage raising of presumption in favour of undue influence. A party alleging the same has to prove it subject of course to just exceptions.76 Election Commission—Holding of free and fair election— Presumption of.—Where a writ of mandamus was filed seeking direction to be issued to the Election Commission to conduct free and fair Lok Sabha election, because there was gross violation to Model Code of Conduct and there was no possibility of free and fair election, the writ was not issued as it was a presumption in law that Election Commission would be taking all effective and preventive steps to ensure free and fair election.77 SECTION 114-A.—78[Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (45 of

_____________ 72. 73. 74. 75. 76. 77. 78.

Harendra Sarkar v. State of Assam, AIR 2008 SC 2467 at p. 2471. Adivekka v. Hanamavva Kom Venkatesh, AIR 2007 SC 2025 at p. 2027. State of U.P. v. Punni, AIR 2008 SC 932 at p. 936. Pandharinath v. State of Maharashtra, AIR 2010 SC 1451 at p. 1453. Bellachi v. Pakeeran, AIR 2009 SC 3293 at p. 3296. P. Shekharappa v. Election Commission of India, New Delhi, AIR 2009 (NOC) 259 (Kar.) (DB). Section 114-A inserted by Criminal Law (Amendment) Act, 1983.

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[S. 114-A

1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.] Presumption about absence of consent in case of rape.—In order to constitute an offence of rape under Indian Penal Code two facts have to be proved : (i ) the accused had sexual intercourse with a woman, (ii) the rape was committed without her consent. In order to punish the accused for rape the prosecution has to prove that the sexual intercourse was committed without consent, because rape with pre-consent of major girl is no offence. Section 114-A of Evidence Act lays down that in the cases mentioned in the section the prosecution has to prove only that there was sexual intercourse between the accused and the prosecutrix. After that if the prosecutrix states in her evidence before the court that she did not consent, the court shall presume that the sexual intercourse was committed without the consent of woman then it lies on the accused to prove that he committed the sexual intercourse with the consent of woman; but if he fails to prove the consent of the woman he shall be committed for the offence of rape under Section 376 I.P.C. The presumption under section 114-A arises when the accused who commits rape is a police officer, a public servant, an officer of Jail, Hospital, in the circumstances mentioned in clauses (a), (b), (c) and (d) of sub-section (2) of Section 376 of Indian Penal Code or he commits rape on a woman knowing that she is pregnant or when rape is a gang rape.

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CHAPTER VIII ESTOPPEL MEANING, NATURE AND CLASSIFICATION Meaning.—"There is said to be an estoppel where a party is not allowed to say that a certain statement of facts is untrue, whether in reality it is true or not. Estoppel, or "conclusion" as it is frequently called by the elder authorities, may therefore be defined as a disability whereby a party is precluded from alleging or proving legal proceeding that a fact is otherwise than it has been made to appear by the matter giving rise to that disability." Examples (1) A trustee mortgaged the trust properties alleging that he was the owner of the properties. The mortgagee, in good faith and without notice that the properties belonged to the trust took the mortgage. He (the mortgagee) obtained a decree and the properties were sold. The trustee subsequently filed a suit to recover the property from the auction-purchaser on the ground that the properties were the trust properties and he had no power to mortgage them. It was held that the trustee was estopped from saying that he was not the owner of the property though it might be true. (2) Where a tenant, having only non-transferable interest in a holding, sells it alleging that he has a transferable right in it, he cannot be allowed, afterward to say that he had no transferable interest in the property. (3) A owned a plot measuring 3 Biswas. He mortgaged 1 Biswas of it to B . Subsequently in execution of a money decree 2 Biswas of the land was put to auction and it was purchased by C . The mortgagee B accepted a part of sale consideration towards his mortgage money. Giving out by this conduct of his that the area mortgaged to him was also sold. Afterwards B sued C for the sale of 1 Biswa under his mortgage. It was held that he was estopped by his own conduct. Applicability of Doctrine of Estoppel.—The doctrine of estoppel applies in cases affecting rights. Estoppel can be described as rule of creating or defeating rights. Though estoppel is described as merely rule of evidence it may have the effect of creating substantive rights as against person estopped. Estoppel which enable a party against another party to claim right of property which in fact he did not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel may itself be foundation of right as against the person estopped.1 Nature of estoppel.—Estoppel is often described as a rule of evidence but the whole concept is more correctly viewed as a substantive rule of law.

_____________ 1.

B.L. Shreedhar v. K.M. Mhmarireddy, AIR 2003 SC 578.

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Kind of estoppel.—Estoppel properly so called is of three kinds, namely— (1) estoppel by matter of record or quasi-record, (2) estoppel by deed, and (3) estoppel in pais i.e. estoppel by conduct. Estoppel of record or quasi-order.—Estoppel of record or quasi of record arises (1) where an issue of fact has been judicially determined, in a final manner between the parties by a tribunal having jurisdiction concurrent or exclusive in the matter, and same issue comes directly in question in subsequent proceedings between the same parties; (2) Where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidently a question in subsequent proceeding between the same parties; (3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil proceeding between any party whatever. Where the earlier decision is that of a court of record, the resulting estoppel is said to be "of record" ; where it is of any other tribunal, whether constituted by agreement of parries or otherwise, the estoppel is said to be quasi of record. Estoppel by Record.—Estoppel by record is enacted by a final judgment. A party relying on estoppel by record should be able to show that the matter has been determined by judgment in its nature final. The word 'final' here is used as opposed to 'interlocutory'. A judgment which purports finally to determine rights is nonetheless effective for the purposes of creating an estoppel because it is liable to be reversed in appeal. Estoppel by record in the name of res judicata has been dealt with in Civil Procedure Code. Sections 40 to 43 of the Evidence Act provide for the admissibilities of previous judgments. As stated above there are two types of judgments : (1) judgments in rem, and (2) judgments in personam. A judgment in rem may be defined as a judgment of a court of a competent jurisdiction determining the status of a person or a thing; the judgment of a court of probate establishing a will or creating the status of an administration, or divorce court dissolving or establishing a marriage are examples of judgments in rem. A judgment in rem is binding on all the persons whether they are party to proceeding or not. The judgments in personam are those judgments which determine the rights of the parties to the suit or the proceedings. They are binding on the parties or their privies. Lack of jurisdiction.—In order mat estoppel by record may arise out of a judgment, the court which pronounced the judgment must have had jurisdiction

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to do so. The lack of jurisdiction deprives the judgment of any effect whether by estoppel or otherwise. Section 44 of Evidence Act lays down that if a judgment of a court is filed in a case to prove estoppel it may be shown that the court delivering the judgment had no jurisdiction or that it was obtained by fraud. Two judgments obtained by fraud.—A judgment obtained by fraud or collusion, may be treated as nullity and it will not work as an estoppel. Estoppel by Deed.—Where, in a deed made between party and verified by their seals, there is a statement of fact, an estoppel results, and its called "estoppel by deed", if upon the true construction of the deed the statement is that of both or all the parties, the estoppel is binding on each party ; if otherwise, it is only binding on the party making it. It seems that an estoppel also arises upon a deed, all the mode of its execution being equally solemn with that of deed made inter parties. Estoppel by deed is based on the principle that when a person has entered into a solemn engagement by deed under his hand, he shall not be permitted to deny any matter which he has so asserted. It is rule of evidence according to which certain evidence is taken to be of so high and conclusive a nature as to admit of no contradictory proof. Effect of recitals.—A person is bound by the recitals in a deed to which he is a party. Whether they refer to specific facts and are certain, precise and unambiguous he is not bound by inferences which may be drawn from the statements on deed. But if the party does not rely on the estoppel by recital and enters into an issue he cannot rely on the doctrine of the estoppel.2 Fraud, force or forgery.—In so far as a deed is void on the ground that it was obtained by fraud, force or other foul practice, or a forgery, no estoppel can arise. Estoppel by matter in pais.—Where one has either by words or conduct made to another a representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man, understand that a certain representation of fact was intended to be acted on, and that other has acted on the representation and thereby altered his position to his prejudice, an estoppel arises against the party who made the representation, and he is not allowed to cover that the fact is otherwise than he represented it to be. Conduct amounting to negligence.—The conduct amounting to representation may be negligence. Negligence can only give rise to an estoppel when there is a duty, upon the person tried to be estopped, towards the person complaining to use due care. A branch of estoppel frequently in vogue in modern time and presenting itself in infinite variety is that form of estoppel in pais which is generally _____________ 2. Rajendra Ram v. Devendra Das, AIR 1970 SC 268.

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known as estoppel by representation. Estoppel in pais is now known as estoppel by conduct or representation. An estoppel in pais is that which though not existing as a matter of record, or under the solemnity of a deed may nevertheless under the circumstances conclude equally with the higher species of averment. It may exist in writing not being under seal. The estoppel as it is commonly called, is a rule of evidence. A compromise may work as an estoppel. The doctrine of estoppel in pais is now widely applied to an infinite varieties of cases. It embraces all the acts or statements of a party upon the faith of which another party had been led to act and to change his position and which it would be unfair to permit the first party to deny. The estoppel dealt with under Sections 115, 116 and 117, Indian Evidence Act, is a kind of estoppel in pais. Distinction between Estoppel and Res judicata Estoppel 1. Estoppel prevents a person from saying one thing at one time and retreating from it at another time. 2. Estoppel is rule of equity. 3. Estoppel is based on rule of equity, justice and good consciences. 4. Estoppel originates from representation or conduct of the party. 5. Estoppel prevents a person to rebut what has been represented by him. 6. Estoppel shuts the mouth of parties. 7. Rule of Estoppel is laid down under Section 115 of Evidence Act, 1872. 8. Estoppel can be inferred from the conduct of the parties.

Res judicata 1. Res judicata prevents the jurisdiction on the subject matter already decided by competent Court on same issue, between same parties. 2. Res judicata is rule of legal procedure. 3. Res judicata is based on public policy. 4. The res judicata originates from decision of court. 5. Res judicata prevents the court to hear a case which has already been decided by court of competent jurisdiction. 6. Res judicata shuts (prevents) jurisdiction of Court. 7. The rule regarding res judicata is laid down under Section 11 of C.P.C. (1908). 8. Res judicata is claimed on basis of previous decision of competent court.

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Distinction between Estoppel and Waiver Waiver

1. Estoppel is a rule of evidence and does not form basis for instituting a suit. 2. The knowledge of reality or truth is not a factor or essential condition for claiming essoppel. 3. In some circumstances, the acquiescence amounts to estoppel. 4. Estoppel is used as defence and not cause for bringing a suit.

1. Waiver originates from contractual relationship and may give birth to cause of action. 2. In case of waiver, real facts or truth is known to both the parties. 3. In case of waiver, some act or conduct is necessary together with acquiescence. 4. Waiver may be cause to give rise a right.

In Pravesh Chandra Dalui and others v. Biswanath Banerjee and others,3 the Supreme Court explained the difference between waiver and is estoppel and said that the essential element in waiver is that there must be voluntary and intentional relinquishment of known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right or proper opportunity. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel intent is immaterial. The necessary condition is the detriment of the other party by conduct of the one estopped. An estoppel may result though the party estopped did not intend to loose any existing right. Thus voluntary choice is the essence of waiver for which that must have been existed an opportunity for a choice between the relinquishment and the conferment of right in question. SECTION 115.—Estoppel.—When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. ILLUSTRATIONS A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale, he had no title. He must not be allowed to prove his want of title. COMMENTS Scope.—Section 115 lays down that when one person by making false representation (either in words or by conduct) has intentionally caused a person

_____________ 3. AIR 1989 SC 1834.

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[S. 115

to believe to a thing to be true and to act upon such belief, neither he nor his representatives in a subsequent proceeding will be allowed to say that the representation was false.4 The principle of estoppel is that when a person by his words, whether written or spoken, or by his conduct makes a representation that a certain state of things is true and the other person, relying upon the truth of the representation, alter his position, the person making the representation will be estopped from denying the truth of it. Illustrations.—One Shankar Lal died leaving his daughter Mohan Dei. Dispute arose between Mohan Dei and Brij Lal, Shankar Lal's father's brother's son. Brij Lal claimed Shankar Lal's entire estate buy survivorship. The dispute was referred to arbitration and award was delivered. Mohan Dei was given some properties as absolute owner. Rest of the estate was given to Brij Lal. Division was effected according to arbitrator's award. Each branch entered in separate possession as absolute owners. Mohan Dei died in 1929 leaving two grandsons D and J. Brij Lal died in 1890 leaving his sons L and P. L died in 1949 leaving two sons K and N, K and N filed a suit against D and J (grandsons) of Mst. Mohan Dei claiming the property given to Mohan Dei as next reversioners as Mohan Dei's sons had predeceased her. It was held by their Lordships of the Supreme Court that "even if the arbitrator was wholly wrong and even if he had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognised the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide. That in our opinion, is representation of an existing fact or set of facts. Each would consequently be estopped as against other and Brij Lal in particular would have been estopped from denying the existence of facts which would give Mst. Mohan Dei an absolute interest in the property in suit. The plaintiffs claim their title through Brij Lal and so the estoppel descended to them also." The main ingredients of estoppel as defined in Section 115 i.e. estoppel in pais are :— (1) There must be some representation, (2) The representation must be made with the intention to be acted upon. (3) The representation must have been acted upon. (1) Representation—Necessary elements of.—The representation to form the basis of an estoppel may be made either by (i) statement or by (ii) conduct and conduct includes negligence. Certain general propositions are, however, applicable whatever manner the representation may be made.5 In Sarat Chandra Dey v. Gopal Chander Laha,6 Umed Ali Ostagar died on the 6th August, 1897, possessed of considerable property and leaving him surviving his widow Arzoo Bibi, Ahmad Hussain, Rahimunissa and Munni Jan, his children, by Arzoo and a son Palk Jan by a second wife who predeceased him (Umed Ali ). Sometimes before his death on 4th January, 1878, Umed Ali by a deed, which purported to be Hiba-bil-Ewaz or a deed of gift in consideration of a sum of rupees eleven thousand three hundred sixty one _____________ 4. 5. 6.

Chaitanya Charan v. Manik Chandra, AIR 1972 Cal 20 (FB). T.K. Ghosh Academy v. T.C. Palit, 1947 SC 1495. ILR 20 Cal 296 (PC).

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(Rs. 11,361) due to his wife Arzoo in respect of her fixed dower, conveyed amongsts other properties, the property in suit to Arzoo Bibi absolutely. There was no mutation of names : but Arzoo executed a general power of attorney in favour of the husband. Umed Ali under colour of such authority, managed the property as her Am-Mukhtar." On the strength of this deed Arzoo Bibi on the 22nd April, 1879, mortgaged the properties covered by it to one Kalimuddin to secure the repayment to him of an advance of Rs. 2,000. The mortgage-deed was attested by Ahmad Hussain who held a power of attorney from her sister Rahimunnisa dated 17th December, 1879. The mortgage debt was not repaid and Kalimuddin in 1881, brought a suit against Arzoo Bibi on the mortgage and obtained a decree on 7th December, 1881. At an auction sale on the 15th May, 1881 in execution of this decree Khettermohun Dey and Girish Chandra Dey, the predecessors in title of the defendants No. 1 to 6 purchased the mortgaged property and obtained possession. Prior to the decree in the year 1881, Pal Jan instituted a suit in the original side of the High Court for the administration of the estate of his father Umed Ali Ostagar. The sale in execution of the mortgage decree took place before the written statements, in which Ahmad Hussain and Rahimunnissa supported "Hiba" were filed by them in Pal Jan's suit. On 4th May, 1884, Arzoo died, and on 28th July 1885, Ahmad Hussain and Rahimunnisa, the son and daughter of Arzoo sold their respective shares in the property in the suit which they had inherited from their father Umed Ali Ostagar to the plaintiff. Gopal Chandra Laha. On the strength of his purchase the plaintiff Gopal Chandra Laha, instituted a suit in the Court of Munsif for a declaration of his right to the said shares of Ahmad Hussain and Rahimunnissa in the property in suit. It was contended on behalf of plaintiff that the deed of 4th January, 1878 was a benami transaction ; that it did not convey any estate in the property ; and that as against the defendants 1 to 6 the plaintiff was entitled to the shares of Ahmad Hussain and Rahimunnissa. It was also contended that the mortgage of 22nd April, 1880, to enforce which the suit of 1881 was brought did not pass any interest in the property, and that, therefore, the defendants 1 to 6 did not require any interest in it under the sale of the 15h May, 1882, in execution of the mortgage decree. The defendants Nos. 1 to 6 contended inter alia that the 'Hiba' was a valid document, possession having been given under it to Arzoo Bibi, that the plaintiff was estopped by the conducts of his vendors and their predecessors in title from questioning the validity of 'Hiba' and that they were bona fide purchasers for value without notice. The material issues tried by the court of the first instance were .—Did Umed Ali make a valid gift of the property to his wife. Even if the gift be not valid, is not the plaintiff estopped from disputing its validity by the conducts of his vendors and their predecessors in title. The judgment was delivered by Lord Wright.

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It was held that Section 115 of the Evidence Act was applicable. The son had represented that 'Hiba' gave a right to his mother to mortgage, and consequently neither he nor his representative in estate could be allowed to deny the truth of his representation, intentionally made on his part, which also had been acted on by the mortgagee, and it made no difference the son had not had fraudulent intention. As a result of the estoppel upon the son any purchaser of the mortgagee's interest, at a sale— regularly carried out, would have acquired a valid title to the property, although such purchaser might have been aware of all the circumstances.7 Intention to deceive.—The main question, in determining whether estoppel has been occasioned, is whether the representation has caused the person to whom it has been made to act upon the faith of it. The existence of the estoppel does not depend on the motive, or on the knowledge of the matter, on the part of the person making the representation. It is not essential that the act, or to abstain from acting should have been fraudulent, or that he should not have been under a mistake, or misapprehension.8 Who can take advantage of representation.—Only the person to whom the representation was made or for whom it was intended can make use of it. A man who receives statement as second hand not meant for him, has no right to act upon such representation. If however, the declaration was intended to be general, any body may act upon it. The principle of estoppel must be confined to the relief claimed in respect of the same transaction and to the persons who are parties thereto.9 Representation must be of existing facts.—Representation of a mere intention cannot amount to an estoppel. In order to find an estoppel the representation must relate to an existing fact.10 If the representation relates to a promise de future it cannot be binding as an estoppel. "Besides these there is a class of false representation which have no legal effect. There are cases in which person excites expectation which he does not fulfil, e.g,, where a person leads another to believe that he intends to make him his heir, and then leaves property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of a contract, it involves no legal consequence.” When the employees represented that they were working as contractors they cannot be subsequently allowed to change their stand to claim that they worked under principal employer. Admission in pleadings cannot be allowed to be changed through its amendment.11 Estoppel should be pleaded.—The rule of estoppel is a rule of evidence and it should clearly be pleaded. A person intending to invoke the plea of estoppel must very clearly state the facts (in his plaint or written

_____________ 7. 8. 9. 10. 11.

Sarat Chandra Dey v. Gopal Chandra Laha, ILR 22 Cal 296 (PC). Sarat Chandra Dey v. Gopal Chandra Laha, ILR 22 Cal 296 (PC). State of Madras v. Madras Tramway Co., AIR 1957 Mad. 169; Dawson s Bank v. Nippan Menkkeva Kabu, AIR 1935 PC 79. Sunder Lal v. Suja, AIR 1956 SC 593. Steel Authority of India Ltd. v. Union of India. AIR 2006 SC 3229.

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statement) which led him to act upon certain representation. Where the plea of estoppel is not set up in the pleading, it cannot be availed of later.12 Representation may include representation of law.—A representation may be a representation of facts, although it involves and includes that which is also a matter of law. Thus directors of a company, by drawing a bill in the company's name, may represent that there is private Act of Parliament giving the company the requisite power. While a true statement of facts accompanied by an erroneous inference of law, will not estop the person who made it from afterwards denying the correctness of inference. But it has been held that a representation as to the legal effect of document will create an estoppel. One who has by a fraudulent statement of a legal effect of an instrument, obtained some advantage will not be allowed to retain it. Representation must be unambiguous.—A representation, to found an estoppel, must be clear and unambiguous ; not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for and for this purpose the whole of the representation must be looked at. Result must not be ultra vires.—A party cannot by representation, any more than by any other means raise against him an estoppel so to create a. state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. Representation induced by party complaining.—A representation will be deprived of any effect as an estoppel if the making of it has been contributed to be some breach of duty on the part of the person seeking to take advantage of it. No representation can be relied on as an estoppel if induced by the concealment of any material fact on the part of the person who wishes to use it as such. Truth known to both the parties.—Where the party effected by the representation had come to know before he acted upon it that the representation was false he cannot avail the rule of estoppel.13 A candidate obtaining admission to educational course by fraud cannot claim to continue on the basis of estoppel.14 If the person to whom it is made knows something calculated to influence the other to hesitate to seek further information and has withheld that knowledge, the representation ought not to be treated as an estoppel. The same principle has been applied where there has been perfectly innocent conduct amounting to representation inviting the conduct relied on as an estoppel. The party claiming the estoppel must not himself have been negligent. "Where the conditions of the title is known to both the parties or both have the same meaning of ascertaining the truth there can be no estoppel."

_____________ 12. 13. 14.

Md. Ahmad v. Rourffie, AIR 1960 Cal 146. Permanand v. Champa Lal, AIR 1956 Alld. 225. Madhuri Patel v. Addl. Commissioner, Tribal Development, AIR 1995 SC 97.

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Where both the parties are labouring under the mistake of law and one party is not more to blame, no question of estoppel can arise.15 (2) Intention of being acted upon.—It is not necessary that the representation should be false to the knowledge of the party making it provided that (1) it is intended to be acted upon in the manner in which it was acted upon, or (2) the person who makes it so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it in that manner. It has been held that the doctrine of estoppel by representation ought not to be, in most cases applied unless the representation is such as to amount to the contract or the license of the party making it.16 (3) The representation acted upon.—To invoke the benefit of estoppel it has to be proved that the representation has been acted upon. The representation must have been acted upon taking it to be true by the party to whom it was made. Estoppel can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by another.17 A representation made to one person cannot be taken advantage of by another person to whom it was not made. It is not sufficient that the party complaining acted in a manner consistent with the truth of the representation if it appears that he was not influenced by it. On the other hand if he really has relied upon the truth of the representation, it is no answer to say that if he had thought about it he must have known that it was untrue. In Bhopal Singh v. Chatter Singh and others,18 in consequence of settlement by the opposite party the suit was withdrawn. It was held by Punjab & Haryana High Court that having taken the benefit of settlement before the court and having got the site plan sanctioned for residential purpose and raising construction opposite party was estopped from retreating his statement in the Court on which the suit was withdrawn and settlement was made by plaintiff because on the opposite party's statement the plaintiff will be presumed to have been acted. If the representation is clear and unequivocal the person to whom it is made, need not make an enquiry to ascertain whether the representation is true. Representation revocable.—A representation does not by reason of having been acted upon become irrevocable. There is nothing to prevent the party who made it from withdrawing it and requiring the other, for the future, to act as if it had not been made. Prejudice.—It is further necessary to estoppel by representation that in acting upon it the party to whom it was made should have altered his position to his prejudice. A representation made to a person after he has altered his position cannot give rise to an estoppel.

_____________ 15. 16. 17. 18.

Sales Tax Officer v. Kanhaiya Lal, AIR 1959 SC 135. B. Colema & Co. v. P. Das Gupta, AIR 1970 426. Mahindra v. Union of India, AIR 1979 SC 798. AIR 2000 P. & H. 34.

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Representation by an agent.—A representation made by an agent will be as effectual for the purpose of estoppel as if it had been made by his principal. Intention to deceive.—The main question, in determining whether estoppel has been occasioned, is whether the representation has caused the person to whom it was made to act upon the faith of it. The existence of estoppel does not depend upon the motive or upon the knowledge of the matter on the part of the person making the representation.19 Representation by statement.—Estoppel by actual statement is probably less common than estoppel by conduct or negligence. Instances occur in every department of affair, and are too large in number to classify. Thus a false statement as to ownership of goods is a representation of this kind. The defendant, a reversioner of the widow made a representation together with widow, that she was major and competent to carry on her husband's business. The plaintiff entered in to business relations with the widow. In suit by the plaintiff against the defendant he was estopped from contending that the widow was minor and incompetent. A person inducing revenue authorities to grant a lease in his favour and of another estopped from contending that the other has no title. Estoppel by conduct.—As said before estoppel by conduct means that a party is prevented from relying on true facts on account of his conduct. If a man by his conduct has intimated that he consents to an act which has been done and that he will offer no opposition to that, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they would otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so believed his words. A Mohammeden acquired land for constructing a school building there on. He constructed building. He over a period of several years caused everyone concerned to believe that he was doing this on behalf of certain school. He was held not to be entitled to transfer the school building for the institution of an orphanage.20 Where in a sale of land by a Muslim father the son attested the sale deed and raised no objection thereafter though sale was against his interest; the son is estopped from challenging the sale subsequently.21 Who can take advantage of representation.—Estoppel must bind both the parties and that a stranger can neither take the advantage nor be bound by them. Only the person to whom the representation was made or for whom it was intended can make use of it. However, if a representation was intended to be general, any body may act upon it. The principle of estoppel must be confined to the relief contained in respect of the same transaction and to the persons who are parties thereto.22

_____________ 19. 20. 21. 22.

Sarat Chandra Dey v. Gopal Chandra Laha, ILR 20 Cal. 296 (PC). AIR 1946 Alld. 468. Mahboob Sahab v. Syed Ismail, AIR 1995 SC 1205. State of Madras v. Madras Tramway Co., AIR 1957 Mad. 169 ; Dawsons Bank v. Nippan Menkiya Kabushika Kaisha, AIR 1935 SC 79 ; Nayansukhdas v. Govardhan Das, AIR 1948 Nag, 110; Banwari Lal v. Sukhdarshan, AIR 1953 SC 814.

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Estoppel—A rule of evidence.—An estoppel is only a rule of evidence cause under a certain circumstances can be invoked by a party to an action. No cause action arises on the estoppel itself.23 Estoppel is only a rule of evidence which can be invoked in certain circumstances, but is not available to release party from legal obligations to obey a statute.24 Estoppel is a rule of evidence. It is not a cause of action. It may assist the plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some facts essential to establish the cause of action, or (put it in another way) by preventing a defendant from asserting the existence of some fact, the existence of which would destroy the cause of action.25 Estoppel may have the effect of creating rights.—Though estoppel has been described as a mere rule of evidence it may have the effect of creating some substantive right as against the person estopped. Of the many forms which the estoppel may take, it is here only necessary to refer to that type of estoppel which enables a party as against another party to claim a right of property which in fact he does not possess. Such estoppel is described as estoppel by negligence.26 There may be also a good title by estoppel to things which do not require any instrument to transfer them as for instance goods.27 No estoppel against statute and law.—As seen above that under estoppel a party is not allowed to say that a certain statement of fact is untrue whether in reality it is true or not. Therefore the phrase "no estoppel against statute" means that a person who makes a statement as to the existence of the provisions of a statutory law is not estopped, subsequently, from contending that the statutory provision is different from what he has previously stated.28 The question of levy of excise duty arose. There was approval of classification of product by department under residuary item. This would out estop the department from revising qualification according to law.29 The doctrine of estoppel cannot be invoked to render a transaction valid which the legislature has, on the ground of general public policy enacted, shall

_____________ 23. 24. 25.

26. 27. 28. 29.

Maritime E. Co. v. General Dairies, AIR 1937 PC 114 ; Samrendra v. Calcutta University, AIR 1953 Cal 172; Sundrabai v. Devaji, AIR 1954 SC 82. Hard M.B. v. H. Electric Supply Co., AIR 1964 MP 101. Dawsons Bank v. N.M. K.K. Gap Trading Co.), AIR 1935 PC 79 ; Maddanappa v. Chandrappa, AIR 1965 SC 1812 ; Madhodas v. Mukund Ram, AIR 1955 SC 481 ; Maritime Electric Co. v. General Dairies Ltd., AIR 1973 PC 114 ; Govindsa Marotisa v. Ismail, AIR 1950 Nag. 2 ; Ram Niwas v. State, AIR 1970 Punj 469 (FB). Mercantile Bank v. Central Bank, AIR 1938 PC 52. Sim v. Anglo American Telegraph Co., (1879) 50-B 188 at pp 215 and 216 ; Anglo India Jute Mills Co. v. Omada Mill, 38 Cal 127 at 141; Bhagwandas v. A.J. Mills Co., AIR 1957 Cal 143. Estoppel Created title; Dattatraya v. Raghunath, AIR 1971 SC 254. Air India v. Nergesh Mirza, AIR 1981 SC 1829. Plasmac Machine Manufacturing Co. v. Collector of EXCISE, AIR 1991 SC 999.

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be invalid or to give the court a jurisdiction which is denied to it by the statute.30 In M. J. Builders Pvt. Ltd. v. Radhey Shyam Sahu,31 Mahapalika contracted out construction of shoping complex in park to private builders. Subsequently finding out that action was contrary to provision of law by which it was constituted, Mahapalika can change its stand. There cannot be estoppel operating against Mahapalika Act. (a) Tax laws.—If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel, or any other equitable doctrine.32 If a tax is to be collected, it cannot be given up and any assurance that it would not be collected would not bind the State Government.33 (b) Clear provision of law cannot be evaded.—When there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed, no question of estoppel arises.34 If the terms of a statute are absolute and do not admit of any relaxation or exemptions, then anything done contrary to the terms of such statute will be ultra vires and will be void and no person can be estopped from putting for contention that what he did was illegal or void, on the other hand if a statue having presented certain conditions or qualifications for the doing of a certain thing itself provides for exemption therefrom under certain circumstances or authorises some body to exercise the power of exemption then any thing done in terms of those conditions or qualifications will not be ultra vires and will be said to be merely irregular and to such an act, the proposition that there can be no estoppel against a statute will have no application.35 (c) The principle to determine the maxim 'no estoppel against statute'.—In order to apply maxim of 'no estoppel against statute', (1) the parties must by bilateral agreement seek to contract out of the statutory provisions of some Act. (2) The statutory provisions must have express prohibition of the agreement entered into by the parties. (3) The provision of law must be made for the public interest. (4) It must not be meant purely for benefit of particular class of persons. (5) The agreement of parties should not have been merged into an order of the court which by the conduct of the parties

_____________ 30.

31. 32. 33. 34. 35.

Batul Begum v. B. Hem Chandra, AIR 1960 All 519 ; New Delhi M. Co. v. H.S. Rikhi, AIR 1966 Punj 181 ; Maritime Electric Co. Ltd. v. General Dairies, AIR 1937 PC 114 ; Mohan Lal Chandramal v. Punjab Company Ltd. AIR 1961 Punj 485 ; Thakur Amar Singh Ji v. State of Rajasthan, AIR 1955 SC 504; Qurbanali v. Government of Rajasthan, AIR 1960 Raj 152 ; Kanglu Baula v. Chief Executive Officer, AIR 1955 Nag. 49 (FB); Lala Baburam v. Kishen Dei, AIR 1963 All 50 ; G.N. Sarwada v. State of Mysore, AIR 1965 Mys. 47 ; Shwaram v. Shiv Charan Singh, AIR 1964 Raj. 126; R. M. Maheshwari v. Municipal Committee Pipana, AIR 1963 MP 134 ; Liberty Talkies v. State of Gujarat, AIR 1968 Guj 280 ; Elha & Co. p. Fifth Industrial Tribunal, AIR 1955 Cal 166 ; Gopi Krishna Das v. Anil Bose, AIR 1965 Cal. 59 ; I.T. Commissioner v. Firm Muar, AIR 1965 SC 1216 ; Asif v. Jadunath Majumdar, AIR 1931 PC 79 ; Municipal Committee v. Salraisi Huji Co., AIR 1960 HP 217. AIR 1999 SC 2468. I.T. Commissioner v. Firm Muar, AIR 1965 SC 1216. Mathura Prasad v. State of Punjab, AIR 1962 SC 745. Sales Tax Officer v. Kanhaiya Lal, AIR 1969 SC 135 ; J. J. S. Rodrigues v. Union of India, AIR 1971 Goa 169. Delhi University v. Ashok, AIR 1968 Delhi 131.

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had been dissuaded from performing its statutory obligations.36 The statute provided that a tenant could not sublet and on subletting he was liable to ejectment. By a bilateral agreement the landlord allowed the tenant, to sublet as he did so. The landlord brought a suit for the ejectment of the tenant. It was pleaded that the plaintiff was estopped from suing for ejectment. It was held by the Supreme Court that "the respondent is only seeking to enforce his right under the statute and the appellant cannot be permitted to assert in the court of justice any right founded upon or growing out of an illegal transaction." The ejectment was ordered.37 What is meant by 'there being no estoppel against statute' is that a person is not estopped by a previous statement as to the existence of a statutory provision from contending that the converse is the statutory provision. "There can be no estoppel in the way of ascertaining the existence of law. That which purports to be a law of a State is a law or it is not a law according as the truth of the fact may be, and according to the shifting circumstances of the parties. Whether it be a law, or not a law is a juridical question, to be settled and determined by courts and judges."38 Where the Act did not prohibit the fluctuation of fair rent by the bilateral agreement of the parties and parties came to terms and filed a compromise fixing the standard rent and the court passed a decree, the parties are estoppel from resiling from that judgment. The judgment would work as estoppel by conduct.39 The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maximum which sanctions the non-observance of the statutory provision is cuilibet licet remunliare juri poo introducto.40 When there is any express prohibition against contracting out of a statute in it then no question can arise of anyone entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of policy.41 "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or as it is said can contract himself out of Act, unless it can be shown that such agreement is in circumstances of the particular case contrary to public policy. Statutory conditions may however be imposed in such terms that they cannot be waived

_____________

36. Autar Singh v. Sohanlal, AIR 1970 J & K 26 (FB). 37. Waman Shriniwas v. Ratilal Bhagwandas, AIR 1959 SC 689. 38. Jai Jai Ram v. Srimati Laxhmi Devi, 1963 ALJ 832. 39. Popat Lal, v. Kalidas, AIR 1968 Bom. 1 ; Vas Dev Sharma v. Milkhi Ram, AIR 1960 Punj 514 ; Abdul Gani Malik v. Mala Habib, AIR 1963 J & K 39 ; Daulatram v. Triloki Nath, AIR 1962 All 147; Prabhudayal v. Mahanlal, AIR 1966 J & K 22. 40. Maxwell on Interpretion of Statutes, 11th Edition pages 375 and 376. 41. Lachoo Mal, v. Radhey Shyam, AIR 1971 SC 2213 ; Sunil Kumar Ghose v. State, AIR 1970 Cal 384 ; A Pillai v. State, AIR 1972 Ker 39 (FB); Ranian v. Singh, AIR 1972 Punj 331; G.R. Silk Mfg. Co. v. State, AIR 1973 Ker 35 (FB).

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by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.42 If the statute is solely for the benefit of a person he may waive his right or benefit, if he thinks fit or give up the rights of a private or personal nature created under an agreement, but he cannot waive a benefit conferred by a statute which has public policy for its object.43 In National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board,44 the Schedule to Act gave Tariff Concession to new industry for 5 years from commencement. A section of the Act conferred power on State Government to amend provision of Schedule from time to time. Government imposed condition in matter of concession before expiry of five years. It was held by the Madras High Court that doctrine of estoppel could not be invoked against Government. A statement made under misapprehension of legal right is not estoppel.45 Estoppel and Insurance Co.—Life Insurance Corporation v. O. P. Bhalla and others46.— In this case the policy lapsed since second instalment of the premium was not paid. The Corporation accepted 3rd and 4th instalments and also second instalment along with interest. By the conduct corporation waived its right to claim that policy lapsed on death of assured. His nominee entitled to insured amount. The insured had undergone, four years prior to the date of proposal made by him, operation for Adenoma Thyroid but he did not disclose it. He died within six months from the date of taking the policy. The insurance claim failed. Held—A person making a wrong statement with a knowledge of consequences therefor would ordinarily be estopped from taking the plea that even if such a fact had been disclosed, it would not have made any material change.47 Estoppel and Educational Institutions.—In Sanatan Gauda v. Baharampur University48.—The appellant candidate while securing his admission in law college had admittedly submitted his marksheet alongwith the application for admission. The law college had admitted him. He had persued his study for two years. The University has also granted him the admission card for the pre-law and Intermediate law examination. He was also admitted to the final year of the course. The University raised objection about his eligibility at the stage of declaration of result of pre and intermediate stage. The University was clearly estopped from refusing to declare the result of appellant examination or from preventing him from persuing the final year course.

_____________ 42. 43. 44. 45. 46. 47. 48.

Halsbury Laws of England, Volume 1, Third Edition at page 143 paragraph 248. Abdul Wahid Khan v. Reny Charles Pavey, AIR 1965 Mys. 303. AIR 1996 Mad. 229. Shondhan Lal v. Narendra Baladin, 1984 A.LJ. 194 ; A.C. Jose v. Simon Pillai, AIR 1984 SC 971; Sukumar Chakraborty v. Asst. Assesor Collector, AIR 1991 Cal. 181. AIR 1989 Pat 269. P.J. Chacko v. Chairman, LIC of India, AIR 2008 SC 424 at p. 426. AIR 1990 SC 1075.

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Kumari Nilofar Insaf (Dr.) v. State of Madhya Pradesh49.—In this case, there was question as to admission in M. D. Course in Medical College. The petitioner did not challenge the merit list published for house-job. Subsequently, same merit list was published in respect of admission to M. D. Course. The petitioner challenged the subsequent merit list. The petitioner was estopped on equitable consideration because she had accepted the merit list published for first time. Estoppel and Tenancy.—In Dataram S. Victore v. Tukaram S. Victore,50 at the time of allotment, the appellant indicated in form C submitted to the Board that his brother, respondent, along with his wife would be occupying the premises. The Board accepted form C. It was held that the Board was estopped from terminating tenancy on the ground of subletting. The Supreme Court held the order of eviction illegal. Estoppel and Employer.—In Shiv Kumar Tiwari deceased represented by L.R. v. Jagat Narain Rai and others.,51 the appellant was a temporary lecturer in the college. Approval was given to his appointment by District Inspector on yearly basis. Approval to the appellant was not granted after 1973. Respondent was selected as lecturer by education department. Civil suit thereon was brought by appellant only against college. The education department and respondent were not made parties. Declaration given by the Civil Court that appellant was permanent lecturer of the college was not binding on the education department and respondent. The Deputy Director of circle passed the order that in view of judgment of Civil Court the appellant became permanent lecturer. The plea of estoppel raised by appellant was not tenable since the Deputy Director could not have legitimately chosen to adopt a judgment to which he was not a party. Moreover, the declaration as given by the Civil Court could not have been granted in view of provisions of the Specific Relief Act. In Anil Bajaj (Dr.) v. Post Graduate Institute of Medical Education and Research.52 The appellant was granted permission to go abroad on condition that if appellant failed to resume duty within two years, his leave would expire. The appellant did not resume duty within two years and his services were terminated. It was held that he could not turn around and challenge the condition of which sanction to go abroad was granted as the rule of estoppel would operate. The termination of services of appellant was held proper. Estoppel and Selection Board.—In Central Airman Selection Board v. Surendra Kumar Das53 it was held by the Supreme Court that the person who himself had misled the authority making false statement could not invoke principle of promissory estoppel if his misrepresentation misled the authority into taking decision, which on discovery of misrepresentation is sought to be cancelled.

_____________ 49. 50. 51. 52. 53.

AIR AIR AIR AIR AIR

1991 SC 1872. 2000 SC 103. 2002 SC 211. 2003 S.C. 240. 2002 S.C. 214.

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Estoppel and Development Authority.—Where the Development Authority despite office order condoned default of allottee as per terms of allotment letter and restored his allotment, the Authority was estopped from raising a plea of application of office order.54 Estoppel and Inquiry Officer.—Where the appellant did not raise any objection regarding the appointment of inquiry officer and participated in the inquiry proceeding without any demur and cross-examined a large number of witnesses examined in the proceeding and failed to establish any prejudice caused to her by reason of appointment of inquiry officer, she could not be permitted to raise the contention later on. Held—The appointment of an inquiry officer may not vitiate the entire proceeding. Such a right can be waived in relation thereto and the principle of Estoppel and Acquiescence would apply. Superior Courts in a case of this nature may not permit such a question to be raised for the first time.55 Estoppel against public bodies and the Government.—The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by bringing in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive.56 "Whenever Government Officers, in their dealings with a subject, take on themselves ; to assume authority in matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know the limits of their authority, and he ought not to suffer, if they exceed it". It may be sufficient to observe that in appeal from that judgment,57 Lord Simonds observed after referring to the observation of Denning L.J. : "The illegality of an Act is the same whether the action has been misled by an assumption of authority on the part of a Government Officer, however, high or low on the Hierarchy ......... The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly, No." The Supreme Court has held that the above mentioned observations applies in India.58 Jakins C. J. delivering the judgment of the court observed : "The doctrine involved in this phase of this case is often treated as one of estoppel, but I doubt whether this is correct though it may be a convenient name to apply." It differs certainly from the doctrine embodied in Section 115 of the Evidence Act, which is not a rule of equity, but is a rule of evidence that was

_____________ 54. 55. 56. 57. 58.

D.D. A. v. Joint Action Committee, Allotee of SFS Flats, AIR 2008 SC 1343 at pp. 1356-1357. H.V. Nirmala v. Karnataka State Financial Corporation, AIR 2008 SC 2440 at pp. 2442, 2443, 2444. Roberson v. Minister of Executive Action Persons, (1949) 1 KB 227. Howell v. Falmouth Boat Construction Co. Ltd., 1950 Aee Er 529. Union of India v. Anglo Afgan Agency, AIR 1968 SC 718 ; (1968) 2 SC 31 : (1968) 2 SCR 366 ; (1968) 1 SCWR 553.

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formulated and applies in courts of law while the doctrine with which I am now dealing, takes its origin from the jurisdiction assumed by the courts of equity to intervene in the case to, prevent fraud. The doctrine in relation to the circumstances of this case is thus, formulated by Lord Kings Down :59 "If a man, under verbal agreement with a landlord for a certain interest in land or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord ; and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation. That the Crown comes within the range of this equity is apparent from.60 The Supreme Court while approving the above decision has observed "this case is in our judgment, a clear authority that even though the case does not fall within the terms of Section 115 of Evidence Act, it is still open to a party who has acted upon, representation made by the Government to claim that the Government shall be bound to carry out the promise made by it even though the promise is not recorded in the form of a formal contract."61 Public bodies are as much bound as private individuals to carry out representation of facts and promises, made by them, relying on which other persons have altered their positions to their prejudice. The obligation arising against an individual of his representation amounting to a promise may be enforced ex-contractual by person who acts upon the promise. What the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation if the contract be not in that form may be enforced against it in appropriate cases of equity.62 There is a clear distinction between a statutory obligation and a contractual obligation of the Government. Statute imposes a public duty while the duties imposed by a contract is owed by the Government, not to the public, but to an individual with whom the contract is entered into. A contravention of statute makes the action of the Government illegal but not the breach of a contract. A breach of a contract is enforceable.63 The Government of Bombay passed the following resolution:—(1) Government approved of the site and authorise its grant, (2) plans should be submitted for approval, the Government do not consider any rent should be charged to the Municipality as the markets will be like other public buildings for the benefit of the whole community.

_____________ 59. 60. 61. 62. 63.

Ramsden v. Dyson, (1866) LR, HL 129 (170). Pammer v. Mayor, R.C of Wellinton, (1848) 9 App Cas 699 ; The Municipal Corporation, Bombay v. Secretary of State, ILR 29 Bom 580. Union of India v. Anglo Afgan Agencies, AIR 1968 SC 718 : (1968) 1 SCWR 553 : (1968) 2 SCA 31: (1968) 2 SCR 368 ; Chowgule & Co. v. Union of India, 1972 Goa 33. Century Spinning & Mfg. Co. Ltd. v.Ulhasnagar Municipality, AIR 1971 SC 1021 : (1970) SCD 321 : (1970) 2 SCJ 689 : 1971 MLJ 81. K.C. Rout v. State, AIR 1979 Orissa 120.

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Pursuant to the aforesaid resolution, possession of the site was made over to the then Municipal Commissioner. The Municipal Commissioner got the site levelled at the Municipal cost. The plans were approved by the Government and market buildings were erected at the cost of the Municipality. The Government authorities assessed the land under Section 8 of the Bombay Act (2 of 1876). The Bombay Corporation filed a suit claiming the relief that the Corporation was entitled to hold the land for ever without payment of any assessment. Aiyar J. observed :— "If the resolution can be read as meaning that the grant was of rent free land the case would come strictly within the doctrine of estoppel enunciated in Section 115 Evidence Act but even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in future the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it whether it is equity recognised to Rams Den's case or it is some other form to equity is not of much importance. Courts must do justice by the promotion of honesty and good faith as far as it lies in their power.64 But when there is no representation by the Government to be acted upon the principle of estoppel does not arise.65 When the contract with Government is not in conformity with Article 299 (1) of the Constitution there is no estoppel.66 There is necessity to balance individual rights and public interest when government is party with the private person. In such a case freedom of contract is circumscribed by principles of Administrative Law.67 No estoppel against Government policy statement as Sovereign or executive.—It should be remembered that if the orders issued by the department did not have the status of law regulating the rights of parties rather they are administrative orders arising out of mere executive instructions, no estoppel can arise against the Government on their basis.68 Where any person was appointed as a clerk and further promoted as Assistant inspite of the fact that he was not possessing requisite qualification at the time of appointment though relaxation in qualification in his case was recommended by the Commission but rejected by Government, it was held that the appointment being clearly against Regulation is liable to be set aside and no question of estoppel would ever arise.69 Estoppel by election or approbation and reprobation.—This estoppel arises in two cases : (1) the election arises when there are two inconsistent rights or two rights the choice of one of which necessarily precludes the choice of another, that when the party entitled or bound to make

_____________ 64. 65. 66. 67. 68.

69.

Collector of Bombay v. Bombay Corporation, AIR 1951 SC 469 at p. 476 :1951 SCJ 752 :54 BMIR 122:1952 SCE 43; R.C. Sood & Co. v. Union of India, AIR 1971 Del 170. C. Shankarnarayan v. State of Kerala, AIR 1971 SC 1997. State v. Gopichand, AIR 1972 HP 43; Raj Kumar v. State, AIR 1972 HP 1. M.P. Mathur and others v, D.T.C. and others, AIR 2007 SC 414. State of Assam v. Ajit Kumar Sharma, AIR 1965 SC 1196 : (1965) 1 SCR 890 ; M/s. Raman and Raman v. State of Madras, AIR 1959 SC 694 : (1959) 2 SCR 227; Sankaranarayan v. The State of Kerala, AIR 1971 SC 1997 : 1971 SCD 861 : (1971) 2 SCC 361 : 1971 Ker LT 422 ; Narinder Chand v. Union Territory, AIR 1971 SC 2399 ; State of Tamil Nadu v. S.K. Krishnamurty, AIR 1972 SC 1126. Ravinder Sharma v. State of Punjab, AIR 1995 SC 277.

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an election chooses one of the rights or benefits he necessarily gives up the other ; (2) and that when a party entitled to a benefit and subject to a detriment under one and the same order of a court or authority, takes the benefit of the order, he is precluded from refusing to take detriment as well. The election may arise in contract or act of parties or it may arise in respect of statutory rights. Sections 180 to 190 of the Indian Succession Act and Section 35 of the Transfer of Property Act deal with the estoppel by election arising out of the act of the parties. Section 180 of the Indian Succession Act lays down that where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will. Section 35 of the Transfer of Property Act lays down that where a person professes to transfer property which he has no right to transfer and as part to the same transaction, confers any benefit on the owner of the property, such owner must elect either to confirm such transfer, or to dissent from it, and in the latter case, shall relinquish the benefit so conferred and the benefit so relinquished shall revert to the transferor or his representative as if it has not been disposed of subject to charge of the benefit of the disappointed transferee. In order to create election under these sections the testator must dispose of and the transferor must transfer some property not belonging to him and belonging to the beneficiary or the transferee. And in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had no disposing power. This intention must appear on the fact of the will either by express words or by necessary conclusion from the circumstances disclosed by the will.70 As said above election only arises where the legatee has to choose between his property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the will.71 A doctrine of election means that a person who accepts a benefits under a deed or will must accept it as a whole.72 Election in the technical sense is confined to the case of gift or will where the donee or the legatee is given a choice of accepting a property under the gift or the will belonging to the donor or the testator, and in the alternative to fulfil some other condition which it is in his power to fulfil.73 For detailed study on the subject see Section 35, T.P. Act and Sections 180 to 190 Indian Succession Act. (a) Approbation and reprobation in respect of remedies.—On the principle that a person may not approbate, and reprobate, a species of estoppel

_____________ 70. 71. 72. 73.

Mani v. Mani, AIR 1969 SC 1311: (1969) SCC 828: (1969) SCD 908. Villiammai Achi v. Nagappa Chettiar, AIR 1967 SC 1153 : (1967) 2 SCWR 499 : (1967) 2 SCR 448. Bepathuma v. Shankaranarayan, AIR 1965 SC 241, Nihor v. Anathnoth, AIR 1956 Patna 223.

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has arisen which seems to be intermediate between estoppel by record and estoppel by conduct. The principle that a person may not approbate expresses two propositions first, that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile : second, that he will not be regarded, in general at any rate having so elected unless he has taken a benefit under, or arising out of the course of conduct which he has first perused and with which his subsequent conduct is inconsistent.74 The doctrine of approbation and reprobation applies to those cases where a person has elected to take benefit otherwise than on merits of the claim in the litigation under an order to which benefit he could not have been entitled except for the order, and secondly he must have choice between the two rights and that after his choosing the first right, the restitution was impossible or inequitable.75 Thus a plaintiff, having two inconsistent claims who elects to abandon one and persue the other, may not, in general, afterwards choose to return to the former claim and sue on it, but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them. The common law principle which puts a man to his election between alternative inconsistent courses of conduct has no connection with equitable doctrine of election and relates mainly, though not exclusively, to alternative remedy in a court of justice. A party, after taking an advantage under an order (for example, payments of costs) may be precluded from saying that the order is invalid and asking to set aside. The general principle of this rule of estoppel is that a party cannot be allowed to affirm and disaffirm. Where a revisioner took benefit under a family arrangement arrived at during the life time of a widow, he cannot after the death of the widow, challenge the family arrangement and base his claim on heirship. A party cannot at the same time blow hot and cold. He cannot say at one time the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and another say it is void for the purpose of securing some further advantage.76 A plaintiff cannot be permitted to "approbate and reprobate." The phrase is apparently borrowed from the Scotch law where it is used to express the principle embodied in our doctrine of election that no party can accept and reject the same instrument.77

_____________ 74. 75. 76.

77.

Kupanna Gounder v. Peruppa Gounder, AIR 1961 Mad. 511. Bhau Ram v. Bag Nath Singh, AIR 1961 SC 1327 ; Sri Pratvlla Chandra Sinha v. Chhota Nagpur Banking Association, AIR 1965 Patna 502 ; Chennavernah v. R.A.T. Mysore, AIR 1971 Mys 66; Smt. Raj Rani v. Dwarkadas, AIR 1972 Delhi 208. Smith v. Baker, 8 CP 350 ; Gulab Bhai v. Collector, AIR 1970 Goa, 59 ; Ambu Nair v. Kebu Nair, AIR 1933 PC 107 ; Lakshmi Devamba v. Kesavarao, AIR 1935 Mad. 1066; Ram Sarup v. Ram Saran, AIR 1926 Lah 650; Bibi Kundo v. Onkarnath, AIR 1939 Lah 63 ; Smt Suhashini Dasi v. Ali Bhusan De. AIR 1963 Cal. 520 ; Rohtas Industries v. P.N. Gour, AIR 1957 Patna 16. Sree Ramulu v. Venkatanarsimham, AIR 1938 Mad 1004.

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(b) Estoppel by election through family arrangement etc.— Doctrine of election is the principle that the exercise of a choice by a person left to himself of his own free will to do one thing or another binds him to the choice which he has voluntarily made, and is founded on equitable doctrine that he who accepts benefit under instrument or transaction of his choice must adopt the whole of it and renounce everything inconsistent with it. The court exercising the jurisdiction in equity will bind him to his election and preclude him from going behind the same. The fact that the alienation as such is void, is no bar to applicability of the doctrine of election.78 If an arrangement is arrived at between Hindu widow and her next reversioner and all of them get absolute right, they cannot resile from the arrangement after the death of the widow. Even if a reversioner is minor, but he is given benefit by the arrangement, he has a choice to elect when he attains majority and if he so elects he cannot resile from it.79 "If a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claims as well as the claim of his contents at a relevant time, he cannot be permitted to go back on that arrangement, when a reversion actually falls opens."80 From various decisions, it may be inferred that an alienation by a Hindu widow without justifying necessity is not void, but only voidable at the instance of the reversionary pair who may either affirm or avoid it, but will be precluded from questioning it if he does something which amounts to an affirmation of the transaction.81 Such election to hold the sale good as it has sometimes been expressed, may, it has been held take place even before the death of the widow while the reversioner was only a presumptive heir.82 But where the plaintiff did not take any benefit directly under the arrangement, but only as an heir of his mother after she dies while on the date of the suit he claims directly under the last full owner, he cannot be estopped by the rule of estoppel by election.83 (c) Applies also to the proceedings in Court.—The maxim applies also to the proceedings in court. If a person takes a plea, that the executive court was not competent to decide the matter and he succeeds, then in the civil suit by the plaintiff he cannot say that the matter would have been decided by the executing court.84

Writ appeal before the Division Bench against the order of single Judge in continuation of proceeding—Plea of giving up the plea of _____________ 78. 79. 80. 81. 82. 83. 84.

K. Shanmugham v. S. Shanmugham, AIR 1956 Cal. 211. Sahu Madho Das v. Mukund Ram, AIR 1955 SC 481; Seetharamayya v. Chandrayya, AIR 1955 AP 68. Subhu Chettiar's Family Charities v. Raghav Mudaliar, AIR 1961 SC 797 ; Krishna Behari v. Gulab Chand, AIR 1971 SC 1041. S.S Pillai, v. K. S. Pillai, AIR 1972 SC 2009 :1971 SCD 659. Virayya v. Bapayya, AIR 1945 Mad 492 at p. 494. Ibid. B. S. Lall v. Sardarmal Lalwani, AIR 1964 MP 124.

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perversity of reversion order before Single Judge not to operate estoppel before the Division Bench.—-A writ petition was filed against the reversion order of the respondent, employee. Single Judge dismissed the writ petition. The Division Bench of the Gauhati High Court set aside the order of the Single Judge and allowed the appeal. Before the Supreme Court, it was pleaded inter alia, that the respondent had already given up plea of perversity i.e. the finding was perverse before Single Judge yet the Division Bench considered the same plea whereas the respondent could not agitate later before the Division Bench. Held—Since the writ appeal was continuation of the original order passed in the writ jurisdiction by the Single Judge, it cannot operate as estoppel against the respondent to press the same.85 (d) A party applying for setting aside abatement cannot plead no abatement.—If a party to a suit or appeals applies for setting aside an abatement, he is estopped from arguing subsequently that there is no abatement.86 (e) To the successive stages of the same suits and one suit and other.—"It is elementary rule that a party litigant cannot be permitted to assume inconsistent positions in the court, to play fast and loose to blow hot and cold, to the detriment of his opponent. This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken, provided that the second suit grows out of the judgment in the first.87 (f) Something done or some advantage taken under an order or decree.—When an order shows plainly that it is intended to take effect in entirety and that the several parts of it depended upon each other, a person cannot adopt one part and repudiate the other.88 If the benefit confirmed by the order was something apart from the merits of the claim involved in the case, a person accepting a part cannot repudiate the other. A person who takes benefit under an order dehors the claim or merit cannot repudiate that part of the order which is detriment to him because the order is to take effect in its entirety. The right of an appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree. The principle of election must be limited only to these cases where a person has elected to take benefit otherwise than on merits of the claim in the list under an order to which benefit he could not have been entitled except for the order, and where the resolution is impossible. Withdrawing presumption money is no bar to appeal.89

_____________ 85. 86. 87. 88. 89.

Bongaigaon Refinery P.C. Ltd. v. Girish Chandra Sarnath, AIR 2007 SC 2860 (DB) at p. 2864. Hanuman Prasad v. Devendra Chand, AIR 1972 Goa 77 ; Union of India v. Sivram, AIR 1965 SC 1531: (1965) 2 SCT 823. Devi v. Prasanno Kumar, AIR 1939 Cal. 22; Indramal v. Subordinate Judge Secondarabad, AIR 1958 AP 779 ; Karnataka Bank v. Shamanna, AIR 1972 Mys 321 : (1972) 2 Mys LJ 20 ; Radha Krishna v. Ramannu, AIR 1972 Mys 327. Babu Ram v. Baijnath Singh, AIR 1966 SC 1327 ; Venkatarayudu v. Ram Krishnaiyya, AIR 1930 Mad 268. Babu Ram v. Baijnath Singh, AIR 1961 SC 1327 ; Chemnaveeriah v. Mysore Revenue Tribunal,

AIR 1975 Mys. 66.

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(g) Estoppel about jurisdiction of courts.—If upon the objection of a party an appeal or a suit is returned from one court to be represented to another, he is estopped from raising the question of jurisdiction in the other court where the suit or the appeal has subsequently been presented.90 (h) No estoppel when the court had no jurisdiction.—When the order or judgment of a court is without jurisdiction or against a statute of law there cannot be an estoppel by election.91 (i) The sameness of the transaction and the parties.—The maximum of approbate and reprobate applies when the reliefs claimed by a party on both occasions arise out of the same transaction and the parties are the same.92 (j) Acceptance of cost.—If the court directs that the suit shall be restored on plaintiff's paying cost to the opposite party and if the opposite party accepts the cost he cannot challenge the order in future.93 If an amendment was allowed on payment of cost and the other side accepted the cost he cannot challenge the order on amendment.94 (k) Cost accepted under protest.—If the cost is accepted under protest and the right to challenge the order is reserved at the time of accepting the cost it would be open to challenge the order. It should be borne in mind that only the words "under the protest" is meaningless. The acceptance must be with the reservation of the right to challenge.95 (1) Cost accepted by counsel not authorised.—If the cost is accepted by a counsel who is not authorised there would be no estoppel.96 Admitting a person to be entitled to a legal benefit.—If a party to a proceeding represents that the other party is entitled to the benefit of some legal provision he cannot resile from it. In an execution proceeding the decree holder wanted to put the property of judgmentdebtor on sale. The decree-holder himself asked the executing court to secure the permission of the competent authority for sale of the property on the ground that the judgment-debtor belonged to Scheduled Tribe. The judgment-debtor obtained permission to sell property to a person by private sale. The decree-holder disputed that the

_____________ 90.

91. 92. 93. 94. 95. 96.

Ram Khelawan Singh v. Maharaja of Benaras, AIR 1930 All 15 ; Udai Raj Singh v. Ram Bahal Singh, AIR 1946 All 436 : 1946 ALJ 234 ; Controller of Insurance Simla v. Venguard Co., AIR 1966 Mad. 437 ; Parendhamayya v. S. Temple Kotipalli, AIR 1970 AP 394 ; A. N. Shah v. A. Annapuranamma, AIR 1959 AP 9 ; Indermal v. Sub-Judge Sikandrabad, AIR 1958 AP 779 ; Hemnarha Kumari Devi v. Prasanna Kumar, AIR 1930 Cal 32 ; Annapurnamma v. Raja Vijayanagram, AIR 1935 Mad 367 ; Uttam Chand v. Salig Ram, AIR 1929 Nag 79 ; Mahadeo Singh v. Pudol Singh, AIR 1931 Oudh 23; Uma Rao v. Mansingh, AIR 1972 Delhi 1. Arun Kumar Sinha v. Union of India, AIR 1964 Patna 338; Raghuraj Prasad Singh v. Basudeo Singh, AIR 1950 Patna 318. Nagu Bai, v. Shama Rao, AIR 1956 SC 593. Venkatarayudu v. Rama Krishnayya, AIR 1930 Mad 263 at 270. Bali Ram v. Bapu Rao, AIR 1955 Nag 222; Mohan v. Keshav Chand, AIR 1934 Cal 554 ; Maniram v. Beharidas, AIR 1955 Raj 145. Venkatarayudu v. Rama Krishnayya, AIR 1930 Mad 268; Sriram Sardarmal v. Gori Shankar, AIR 1961 Bom 136 ; Where the cost is awarded on an unconditional order, its acceptance would not work as an estoppel. Devaiah v. Nagappa, AIR 1963 Mys. 102. Maniram. v. Behari Das, AIR 1955 Raj 145.

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judgment-debtor did not belong to Scheduled Tribe. It was held that he was estopped.97 Silence.—Mere silence or inaction is not, in the absence of a duty to speak, such conduct as amounts to a representation. A duty to speak arises whenever a person knows that another is acting on an erroneous assumption of some authority given on liability undertaken by the former, or is dealing with or acquiring an interest in property in ignorance of his title to it. It is a duty if a man who knows that another is relying on a document bearing a counterfeit of, his signature to give the notice of forgery without delay. Waiver.—The generally accepted meaning of waiver is that there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as gives an inference of the relinquishment of a known right or privilege.98 Where the persons having knowledge of the illegalities in election proceeding participated in it. They should be precluded from challenging the validity of election on the principle of waiver.99 Waiver means abandonment of right and it may be either express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge. There is no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it.1 The Government of Uttar Pradesh published and announced that the State has decided to give exemption from Sales Tax for three years under Section 4-A of U.P. Sales Tax Act to all new industrial units. M.P. Sugar Mills set up a plant for manufacturing Vanaspati. The State Government went back upon its assurance and said that there shall be only partial exemption of Sales Tax. The M.P. Sugar Mills accepted the partial exemption. The Government afterwards resiled from the partial exemption also, the proprietors of Mill filed a writ and claimed that the Government was bound by the promissory estoppel and so they were entitled to the full exemption. The State Government pleaded that the petitioner by accepting the partial exemption had waived the right. It was held that the law of promissory estoppel was so difficult that the petitioner would not be expected to know it and therefore there was no waiver.2 Estoppel by Negligence.—Before any one can be estopped by a representation inferred from negligent conduct, there must be a duty to use due care towards the party misled or towards the general public of which he is one. In Mercantile Bank of India Ltd. v. Central Bank of India Ltd.,3 the Mercantile Bank of India Ltd. (the defendant appellants) and the Central

_____________ 97. 98. 99. 1. 2. 3.

Raghunath Pradhani v. Damodar Mahapatra, AIR 1978 SC 1820. Bishesar Nath v. S.T. Commissioner, AIR 1959 SC 149; Associated Hotel of India v. Ranjit Singh, AIR 1968 SC 938. Deva Sharan Yadav, v. State, AIR 1972 Patna 439. MP. Sugar Mill v. State of U.P., AIR 1979 SC 621. M.P. Sugar Mills v. U.P. State, AIR 1979 SC 621. AIR 1938 PC 52.

Page

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Bank of India Ltd. (the plaintiffs respondent) were United Companies. They carried on the business of bankers of Madras. C.K. Narain and Sons were a firm of merchants who carried on a business as buyers and exporters of groundnuts. Both the plaintiff and defendants had been in the habit of advancing loans to the firm C.K. Narain and Sons on security of goods covered by railway receipts. The practice of the firm C.K. Narain and Sons was to purchase the groundnuts from the up-country growers and have them despatched by rail to Madras. The railway companies and the Madras Port Trust, which had its own railway system within the port had a working arrangement between them under which the trust took over the consignment of nuts on their arrival at the port and lodge in the first instant in their godowns. For every consignment of the groundnut there was a 'railway receipt' which contained the particulars of the goods, the names of the consignor and consignee. The practice was that the merchants should deliver to the bank the railway receipts by way of pledge giving at the same time to the bank a promissory note for the amount advanced and letter of lien, the Bank then sent the railway receipts to their own godown keeper who obtained possession of the goods. The practice was that the Bank's godown keepers used to give the railway receipts back to the merchants for the purpose of bringing the goods from the port trust and storing them in the bank godown. Thirty-five railway receipts in respect of goods were pledged by the firm C.K. Narain to the plaintiffs. As it was the practice they got the railway receipts from the Bank godown keepers for the purpose of bringing the goods from the port trust and storing in Bank's godowns. The firm C.K. Narain cleared the goods from the port trust and instead of depositing them in the godowns of plaintiffs repledged them to the defendants and obtained second advance from the defendants. The plaintiff respondent filed a suit against defendant appellants for the conversion of their property (the goods pledged to them). The suit of the plaintiff was decreed. In appeal before the Privy Council it was contended on behalf of the defendants appellants that the circumstances in the case raised an estoppel and that the respondents were precluded by their conduct (giving the railway receipts to the firm C.K. Narain and Sons) from denying as against the appellants that the merchants had the right, which they pretended to have, of pledging the goods as owners. / It was held that the plea of estoppel could not be availed of. The Central Bank of India, the plaintiff, did not owe any duty to Mercantile Bank of India, the defendant, in the matter. There was no relationship of contract or agency. There was also no representation by the plaintiff (The Central Bank of India) which had no reason to think that it was representing to any body that the Merchant had any title to dispose of the goods. The railway receipt though a document of title, was in form merely an authority to take delivery of goods and the possession of such a document contained no representation that the holder had any implied authority or right to dispose of the goods. The document on its face conveyed no representation, when presented, that the merchant was invested with full disposing powers. The appeal was dismissed. Estoppel mutual.—Estoppel must bind both the parties and that a stranger can neither take the advantage nor be bound by them. Only the person

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to whom the representation was made or whom it was intended can make use of it. However, if a representation was intended to be general, any body may act upon it. The principle of estoppel must be confined to the relief claimed in respect of the same transaction and to the person who are parties thereto.4 Origin and development of promissory estoppel.—Doctrine of promissory estoppel has been variously called 'promissory estoppel' 'requisites estoppel' 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the realm of estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel that the promisee acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. But if by detriment we mean injustice to the promisee which would result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promisee. If this is the kind of detriment contemplated, it would necessarily be present in every case of promissory estoppel, because it is on account of such detriment which the promise would suffer if the promisor were to act differently from his promise, that the court would consider it inequitable to allow the promisor to go back upon his promise. In India, not only has the doctrine of promissory estoppel been adopted in its fullness but it has been recognised as affording a cause of action to the person to whom the promise is made. The requirement of consideration has not been allowed to stand in the way of enforcement of such promise.5 Promissory estoppel as distinguished from real estoppel or actual estoppel.— There is undoubtedly a clear distinction between representation of an existing fact and a representation that something will be done in future. The former may, if it amounts to a representation as to some facts alleged at the time to be actually in existence, raise an estoppel, if another person alters his position relying upon that representation. A representation that something

_____________ 4. 5.

State of Madras v. Madras Tramway Co. 1957 Mad. 169 : Devason's Bank v. Nippan, Menkhevakahu, AIR 1935 PC 79. Motilal Padampat Sugar Mills v. U.P. State, AIR 1979 SC 621 ; Assistant Commercial Tax Commissioner v. Dharmendra Trading Co. AIR 1988 SC 1247; Intras System Pvt. Ltd. v. State of Kerala, AIR 1996 Ker. 161.

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will be done in the future may result in a contract, if another person to whom it is addressed acts upon it. A representation that something will be done in future is not a representation that it is true when made. But between a representation of a fact which is untrue and a representation expressed or implied to do something in future, there is no clear antithesis. A representation that something will be done in future may involve an existing intention to act in future in the manner represented. If the representation is acted upon by another person it may, unless the statute governing the person making the representation, provides otherwise, result in an agreement enforceable at law, if the statute requires that the agreement shall be in certain form, no contract may result from the representation and acting therefor but the law is not powerless to raise in appropriate cases an enquiry against him to compel performance of the obligation arising out of his representation.6 "When one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect, the legal relations between them and to be acted upon accordingly, then, once the other party has taken him at his word acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relation, as if no such promise or assurance has been made by him. But he must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine which is derived from a principle of equity enunciated in 1877, has been subject of considerable recent development.7 Scope and object of primissory estoppel.—A promissory estoppel operates to preclude preparation of fraud or causing injury in a case where the representation or promise has been made to induce an action on the part of the party setting up the estoppel. In such case the party making the promise is precluded from asserting want of consideration thereon.8 Before the doctrine of promissory estoppel can be invoked it must be proved, (1) that there was a representation or promise in regard to something to be done in the future, (2) that the representation or promise was intended to affect the legal relations of the parties and to be acted upon accordingly, and (3) that it is one on which the other side has, in fact, acted to its prejudice.9 The doctrine of promissory estoppel applies when among other things there is clear and unequivocal promise relying on which the other side acts to his prejudice.10 The 'estoppel' is rule of equity. The rule has gained new dimensions in recent years. A new class of estoppel, i.e., promissory estoppel has come to be recognised by the courts in this country as well as in England. Where parties enter into an agreement which is intended to create a legal relation between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the

_____________ 6. 7. 8. 9.

10.

Century Spg. & Mfg. Co. v. Ulhasnagar Municipality, AIR 1971 SC 1021. Halsbury's Laws of England, (3rd Ed) Vol 15 p. 175, para 344. Satnarain v. Union of India, AIR 1961 Punj 34. A.C.E. Union of India v. G.B. Bhirede, AIR 1971 Bom 288.

Anchar Ali v. State of Assam, A.I.R. 1989 Gauhati 12.

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extent that it will not allow him to act, inconsistently with it even though the promise may not be supported by consideration in strict sense. Consideration is an essential element of contract but 'Promissory estoppel' is an exception to it. In Central London Property Trust Ltd. v. High Trees House Ltd.,11 in 1939, some flats were let out by the plaintiff to the defendant on annual rent of £ 2500. Some flats became vacant due to war and therefore the plaintiff agreed to reduce the rent to £ 1250 in 1940. When the flats became full in 1945, the plaintiff sued for full rent for the last six months and for future. Justice Denning held the plaintiffs were entitled to full rent @ £ 2500 per annum. Had he sued for the period during 1940 and 1945 for the rent @ £ 2500 p.a., he would have been estopped. According to Justice Denning, if the defendant had instituted the suit for reduced rent against the plaintiff for this period, he would have not been successful as the agreement was without consideration but in case of defence against the suit for the full rent for this period, he would have been successful as the estoppel would have applied against the plaintiff. Application of Doctrine of promissory estoppel to Government.— The doctrine of promissory estoppel has also been applied against the Government and the defence based on executive necessity has been categorically negatived. The government is not exempted from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed grounds of necessity or expediency fail to carry out the promise made, solemnly by it. The Supreme Court has refused to make any distinction between a private individual and a public body so far as the doctrine of promissory estoppel is concerned.12 But if the promise on behalf of the government is unconstitutional and against public policy the question of promissory estoppel against government does not apply.13 Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Art. 299 of the Constitution. It is elementary that in a republic, governed by the rule of law, no one howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as private individual so far as the obligation of the law is concerned ; the former is equally bound as the latter. The Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want

_____________ 11. 12. 13.

(1947) KB 130. C.S. & M. Co. v. Municipal Corporation, AIR 1971 SC 1021 ; Union of India v. Indo Afgan Agencies, AIR 1968 SC 718 ; S.C. Vassant Kumar Radha Kishan v. Board of Trustees of the Port of Bombay, AIR 1991 SC 14. Amrit Banaspati CO. v. State of Punjab, AIR 1992 SC 1075.

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its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that would be acted on by the promise and the promisee would alter his position relying upon it. But if the Government makes such a promise and the promisee acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise, like any other private individual. But since the doctrine of promissory estoppel is an equitable doctrine it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to the Government to the promise made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise by it. When the Government is able to show that in view of the facts which have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. The Government cannot claim to be exempt from the liability to carry out the promise on some indefinite and undisclose ground of necessity or expediency, nor can the Government claim to be the sole judge of its liability and repudiate it on an ex-parte appraisement of the circumstances. If the Government wants to resist the liability, it will have to disclose to the Court what are the subsequent events on account of which the Government claims to be exempt from the liability and it would be for the court to decide whether those events are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from the liability ; the Government would have to show what precisely is the changed policy and also its reason and justification so that the court can judge for itself which way the public interest lies and what the equity of the case demands. It is only if the court is satisfied, on the proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the court would refuse to enforce the promise against the Government. The court would not act on the ipse dixit for the Government, for it is the Court which has to decide and not the Government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overhelming that it would be inequitable to hold the Government bound by the promise and the Court would insist on a highly rigorous standard of proof in the

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discharge of this burden. But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise "on giving reasonable notice, which need not be a formal notice, giving the promise a reasonable opportunity of resuming his position" provided of course it is possible for the promisee to restore status quo ante. It however, the promisee cannot resume his position, the promise would become final and irrevocable. Where the Government owes a duty to the public to act in a particular manner and here obviously duty means a course of conduct enjoined by law— The doctrine of promissory estoppel cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The doctrine of promissory estoppel cannot be applied in teeth of an obligation or liability imposed by law. It may also be noted that promissory estoppel cannot be invoked to compel a Government or even a private party to do an act prohibited by law. There can be no promissory estoppel against the exercise of legislative power. The legislature can never be precluded from exercising its legislative function by resort to the doctrine of promissory estoppel. In Motilal Padampat Sugar Mills v. State of U.P.14, on 10th October, 1968 a news item appeared in the National Herald in which it was stated that the State of Uttar Pradesh had decided to give exemption from Sales Tax for a period of three years under Section 4-A of the U.P. Sales Tax Act to all new industrial units in the State with a view to enabling them to come on firm footing in developing stage. The news item was based upon a statement made by Sri. M. P. Chatterji the then Secretary in the Industries Department of the Government. The appellant, on the basis of this announcement, addressed a letter dated 11th October, 1968 to the Director of Industries stating that in view of the Sales Tax Holiday, announced by the Government, the appellant intended to set up a Hydro Generation Plant for manufacturing of Vanaspati and sought for confirmation that this industrial unit, which they proposed to set up, would be entitled to Sale Tax Holiday for a period of three years from the date it commences production. The Director of Industries replied by his letter dated 14th October, 1968 confirming that "there will be no Sale Tax for three years on the finished product of your proposed Vanaspati factory from the date it get power connection for commencing production." The appellant later addressed a letter dated 22nd January, 1969 to the respondent who was the Chief Secretary to the Government. The respondent stated categorically in his letter in reply dated 23rd January, 1969 that the proposed Vanaspati factory of the appellant "will be entitled to exemption from the U. P. Sales Tax for a period of three years from the date of going into production and that this will apply to all Vanaspati sold during that period in Uttar Pradesh itself" and expressed his surprise that a letter from Chief Secretary to the State Government stating this fact in clear and unambiguous words would not carry conviction with the financial institutions. Giving the judgment, Justice Bhagawati of the Supreme Court held— It was clear from the letter of the respondent dated 23rd January, 1969 that a categorical representation was made by the respondent on behalf of the _____________ 14.

AIR 1979 SC 621.

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Government that the proposed Vanaspati factory of the appellant would be entitled, to exemption from sales tax in respect of sales of Vanaspati effected in Uttar Pradesh for a period of three years from the date of commencement of production. The letter dated 23rd January, 1969 clearly showed that the respondent made this representation in his capacity as the Chief Secretary of the Government, and it was, therefore, a representation on behalf of the Government. The appellant relying on this representation of the Government borrowed moneys from various financial institutions, purchased plant and machinery from M/s De Smith (India) Pvt. Ltd., Bombay and set up a Vanaspati factory at Kanpur. The facts necessary of invoking the doctrine of promissory estoppel were, therefore, clearly present and the Government was bound to carry out the representation and exempt the appellant from Sales Tax in respect of sales of Vanaspati effected by it in Uttar Pradesh for a period of three years from the date of commencement of the production. The Government was bound on the principle of promissory estoppel to make good the prosecution made by it. Estoppel applies to executive function. In the case incentive scheme for Sugar industry was declared by the Govt. Doctrine of estoppel can be invoked on the ground of equity.15 But in a writ challenging the action of the Union of India in withdrawing a time bound exemption Notification for the import of PVC resins, it was held that withdrawal cannot be challenged on ground of promissory estoppel.16 The doctrine of promissory estoppel has been invoked against Government and the plea of executive necessity has been negativated. But this doctrine cannot be invoked to prevent the Government from discharging its duty.17 In Sharma Transport v. Govt. of A.P.,18 the Government of Andhra Pradesh by a notification dated 5.6.2000 issued under Clause (b) of Section 9 (1) of the Andhra Pradesh Motor Vehicles Taxation Act, 1963 an earlier order dated 1.7.1995 was cancelled which was issued pursuant to the directive of the Central Government after discussion with the State Governments for concession to be extended to tourist vehicles. The appellants, operators of tourist buses assailed the validity of the notification. Rule 1 (4) of the Permit Rules made it clear that the conditions prescribed in Rules 82 to 85-A of the Central Motor Vehicles Rules, 1989 did not apply to permits granted under the scheme governed by the Rules. It was alleged that in the garb of levying taxes on fares and freights, the directives of the Central Government were being violated which was impossible with reference to Articles 73, 256, 257 and 301 of the Constitution. As regards ground on Article 301, it was taken for the first time before the Supreme Court which was not considered to be taken into account. The High Court negatived all the contentions except the stand taken on the ground of Article 301 of the Constitution. It was held that there was no law specifying principles of taxation on the subject-matter of controversy so as to bring in application either Article 256 or 259 of the Constitution.

_____________ 15. 16. 17. 18.

M/s Tungbhadra Sugar Works (P.) Ltd. v. Union of India, AIR 1989 Delhi NOC 35. Kasink Trading v. Union of India, AIR 1995 SC 874. M/s. Inoras System Pvt. Ltd. v. State of Kerala, AIR 1996 Ker. 161. AIR 2002 SC 322.

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It was held by Justice Dr. Arijit Pasayat of the Supreme Court— "Entry 56 of the List II of Vllth Schedule deals with the passengers and the Union has no power to levy taxes in respect of passengers and therefore there was no substance in the plea that the letter of Joint Secretary to the Government of India dated 30.8.1993 was in the nature of direction. In the background of Entry 35 List III, the Parliament may lay down the guidelines for the levy of taxes on mechanically propelled vehicles but the right to levy such taxes vests solely on the State Legislature. The communication by the Government of India to the States did not in any sense violate the power of the State Legislature or its delegatee to levy or exempt taxes from time to time. Rule 1 (4) is not intended to curtail the power of State to levy taxes under relevant enactments". On the next plea of promissory estoppel, Justice Arijit Pasayat held it to be without any substance. He observed : "It has to be noted that even though a concession is extended for a fixed period, the same can be withdrawn in public interest. A notification granting exemption of tax can be withdrawn by any point of time. There cannot be estoppel against any statute. Where it is in public interest, the Court will not interfere because public interest must override any consideration of private loss or gain."19 In Shrijee Sales Corporation and another v. Union of India,20 it was observed that where there was supervening public interest, the Government is free to change its stand and withdraw the exemption already granted. One such reason for changing its policy decision can be resource crunch and the loss of public revenue. There is preponderance of Judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The principle of promissory estoppel is that where one party has by this word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have been taken place between the parties. The doctrine of promissory estoppel is now well established one in the field of administrative law. The foundation for the claim based on the principle of promissory estoppel in public law was laid by Lord Denning in 1948 in Robertson v. Minister of Pensions.21

_____________ 19. 20. 21.

See Kasinka Trading and another v. Union of India and another, 1995 (1) SCC 274 : 1995 AIR SCW 680 : AIR 1995 SC 874. 1997 (3) SCC 308. 1949 (1) KB 227.

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Prof. De Smith in his Judicial Review of Administrative Action,22 observed that "the citizen is entitled to rely on their having the authority that they have asserted". Doctrine of 'Promissory Estoppel' has been evolved by the Courts, on the principles of equity, to avoid injustice. "This principle has been evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shown of its form to mitigate the rigour of strict law."23 "This Court refused to make distinction between the private individual and a public body to far as the doctrine of promissory estoppel is concerned".24 "The Government cannot claim immunity from the doctrine of promissory estoppel. Equity will, in a given case where justice and fairness demands, prevent a person from exercising strict legal rights even where they arise not in contract, but on his own Title deed or in statute. It is not necessary that there should be some pre-existing contractual relationship between the parties. The parties need not be in any kind of legal relationship before the transaction from which the promissory estoppel takes its origin. The doctrine would apply even where there is no pre-existing legal relationship between the parties, but the promise is intended to create legal relations and effect a legal relationship which will arise in future. It was further held that it is indeed pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned. The former is equally bound as the latter. Therefore, the Government cannot claim any immunity from the doctrine of promissory estoppel and it cannot say that it is under no obligation to act in a manner, i.e. fair and just or that it is not bound by the considerations of honesty and good faith. In fact, the Government should be held a high standard of rectangular rectitude while dealing with citizens. Since the doctrine of promissory estoppel is an equitable doctrine, it must yield where the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. But the Government must be able to show that in view of the fact as have been transpired, public interest would not be prejudiced. Where the Government is required to carry out the promise the Court would have to balance, the public interest in the Government's carrying out the promise made to the citizens, which helps citizens to act upon and alter his position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. It would not be

_____________ 22. 23. 24.

4th Edition at page 103. Union of India and others v. M/s. Anglo Afgan Agencies, 1968 SC 718. The Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council, 1970 (3) SCR 854.

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enough just to say that the public interest requires that the Government would not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. In order to resist its liability the Government would disclose to the Court the various events insisting its claim to be expect from liability and it would be for the Court to decide whether those events are such as to render it equitable and to enforce the liability against the Government.25 It is equally settled law that the promissory estoppel cannot be used compelling the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. Doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority.26 In Badri Kedar Paper Pvt. Ltd. v. U.P. Electricity Regulatory Commission,27 U.P. Electricity Regulatory Commission constituted under the U.P. Electricity Reforms Act, 1999, on being approved by the Rule 2 determined Tariff, the rate schedule of which was to apply to all consumers of electric energy who contracted load of 75 KW (100 BHP) for industrial purpose. This rate schedule was also to apply to the consumers for commercial purpose and power consumers subject to the condition that they opt for it. Basic rate applicable to urban consumer was Rs. 130 per KVA/month plus 390 paise/KWH. It was provided that in respect of consumers who opted for power supply during restricted/peak hours, an additional surcharge of 15% on the amount billed at the "Rate of Charge", i.e., demand charge and energy charge would be levied. In respect of consumers getting power supply on independent feeders emanating from 400/220/132 KW sub-stations, an additional surcharge of 15% on demand and energy charges would be charged. These consumers would get an assured supply of minimum 500 hours in a month. In case of shortfall in the guaranteed hours of supply, a rebate @ 10% for each ten hours shortfall would be admissible on the bill amount. The tariff was framed on 7.8.2000 which came into force on 9.8.2000. The circular to this effect was issued on 8.9.2000. The consumer exercised their option on 31.10.2000.

_____________ 25.

26. 27.

Grundt and others v. The Great Boulder Proprietary Gold Mines Ltd., 1938 (59) CLR 641 ; Central London Property Trust Ltd. v. High Trees House Ltd., 1947 KB 130 ; Union of India v. M/s.Anglo Afgan Agencies etc., AIR 1968 SC 718 ; Century Spinning and Manufacturing Co. Ltd. and another v. The Ulhasnagar Municipal Council and another, 1970 (3) SCR 854 : AIR 1971 SC 1021 ; M/s. Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh and others, 1979 (2) SCR 641, referred. Vasantkumar Radhakishan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991 SC 14 and Dr. Ashok Kumar Maheshwari v. State of U.P. and another, 1998 (2) SCC 502. AIR 2009 SC 1783.

Page 506

EVIDENCE ACT [S. 115

The U.P. Power Corporation issued a circular dated 15.12.2000 calling for options from the consumers of electrical energy to have a continuous power supply of 500 hours in a month. The appellant along with others in the option stated not to intend to have 500 hours of continuous supply. Thereafter, the U.P. Regulatory Commission by a circular revised tariff for the year 20002001 applicable to HV-2 rate schedule consumers getting supply from independent feeders for levy of 15% surcharge or the guarantee of 500 hours of power supply per month and the consumers exercising option not to have would not be charged 15% surcharge from the very date of its applicability i.e. 7.8.2000 and the consumers who submit their application after 31.12.2000 would be entitled to this facility from the date of receipt of application. In a writ petition, L.M.L. Ltd. v. State of U.P.,28 held the circular letters illegal and void as it was the Electricity Regulatory Commission alone who could fix the tariff. The U,P. Power Corporation, therefore, issued a circular on 31.8.2001 withdrawing its earlier circular dated 15.12.2000. The writ petitions, ten in number, were filed before the Allahabad High Court challenging the withdrawal of circular dated 8.9.2000 by the U.P. Power Corporation, R-2 which were dismissed. In view of the binding precedent in B.S.E.S. Ltd. v. Tata Power Co. Ltd.29 and Association of Industrial Electricity Users v. State of A.P.,30 it was held that the Commission had exclusive jurisdiction to determine the tariff. Held—If on a representation made, a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. It is now well settled that the doctrine of promissory estoppel applies also in the realm of a statute. Whether having regard to the doctrine of promissory estoppel, the same could have been withdrawn or not, further determination in that behalf was not warranted. L.M.L. Ltd. does not require reconsideration. The circular impugned before the High Court was undoubtedly issued pursuant to the judgment of the Allahabad High Court but then whether having regard to the doctrine of promissory estoppel, the same could have been withdrawn or not, further determination in that behalf was not warranted. The appeal was allowed with the direction to refund the entire amount to the appellants paid by them to avoid disconnection for which they had given an undertaking not to claim refund of the amount paid by them even if writ petition was allowed within four weeks. Respondent was to bear the costs.31 Promissory estoppel creates right to sue.—The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity.32

_____________ 28. 29. 30. 31. 32.

AIR 2001All 321. (2004) 1 SCC 195. (2002) 3 SCC 711. AIR 2009 SC 1783 at p. 1787 ; State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and Etio, (2007) 5 SCC 447 referred to. Motilal Padampat Sugar Mills v. U.P. State, AIR 1979 SC 621.

Page 507

S. 115] ESTOPPEL

In State of Arunachal Pradesh v. Nezone Law House,33 the respondent alleged that the Law Minister of the Government of Arunachal Pradesh had assured the respondent to purchase at least 500 sets of the books of the Local Laws from it and had given green signal for publishing the same but no order was placed and therefore it was a clear case where the principle of promissory estoppel and legitimate expectation would arise. The respondent and the High Court referred to oral expression of desire by the Law Minister and some departmental note for taking views and concurrence of the various departments and ministries. Held, the doctrine of promissory estoppel and legitimate expectation were not applicable to the facts of this case. Justice Dr. Arijit Pasayat speaking for the Supreme Court observed : "The decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers entire span of time; present, past and future. How significant is the statement that today is tomorrow's yesterday. The present is as we experience at, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law."34 "In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bold expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government, would not be sufficient to press into aid the doctrine. The Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must forever be present in the mind of the Court."35 Where the enterpreneur, failed to comply with terms and conditions of concessional tariff scheme for new industrial units within a reasonable time, the principle of promissory estoppel would not apply.36 The enterpreneurs setting up power generating plants were granted exemption from payment of electricity tax. The appellants had invested a large sum on the basis of exemption granted under a notification issued Tamil Nadu Tax on Consumption or Sale of Electricity Act, 1962. The Tamil Nadu Tax

_____________ 33. 34. 35. 36.

AIR 2008 SC 2045. Ibid., at pp. 2048-49. Ibid., at p. 2050. A.P. Steel Re-Rolling Mills Ltd. v. State of Kerala with Victory Papers and Boards India Ltd. v. State of Kerala, AIR 2007 SC 797 at p. 805.

Page 508

EVIDENCE ACT

[S. 115

on Consumption of Electricity Act, 2003 by Section 14 made a provision for grant of exemption in respect of sale of energy. It took away the power of exemption on consumption of electrical energy. Under Section 6 of the General Clauses Act, 1897, the expression "unless a different intention appears" were not inserted in sub-section (1) of Section 20 of 2003 Act. Subsections (1) and (2) of Section 20 of 2003 Act were held to operate in different situations. Subsection (1) of Section 208 of 2003 Act provided the consequences for the repeal of earlier Act of 1962. Section 20 (2) provided for a legal fiction for continuation of certain things/proceeding on the premise as if the said Acts had not been repealed. The doctrine of promissory estoppel and legitimate expectations were held to apply in case of the appellants although the scheme under 2003 Act was different from the earlier Act.37 Where the development rebate in tariff of electricity was granted to new industrial units in hill areas under Section 49 of the Electricity (Supply) Act, 1948, the revocation of the same simply on the ground that there was theft of energy was held to be not a ground to claim that the revocation was in public interest. The benefit of rebate was granted by a notification by a delegated authority in exercise of delegated authority. Since the revocation had no statutory flavour, the principle of promissory estoppel was attracted. The benefit of rebate was not recognised by the U.P. Electricity Reforms Regulation Act, 1999 and therefore, the benefit was held to be not available to the claimants w.e.f. the Act came into force as the estoppel would not apply against the primary Act passed by the legislature as it had the power to pass an Act prospectively as well as retrospectively. A notification passed by the delegated authority could not be treated at par with a primary Act passed by the Legislature.38 In Vasant Kumar Radhakisan Vora v. Board of Trustees of Port of Bombay39 In this case the tenants of Bombay port trust were promised that on deposit of certain amount they would be allotted flats after reconstruction of building. Since this was an ultra vires act, promissory estoppel was held not to apply. In State of Rajasthan v. M/s. Mahavir Oil Mills,40 when new industry was set up on basis of incentive Scheme from by Government and by relying on promise of benefits held out by it, the Supreme Court held that the State Government was bound by the promise held out by it. But it did not preclude the State Government from withdrawing the benefit prospectively and even during the period of Scheme, if the public interest, so required. If the party had acted on promise but there was any supervening public interest which required that the benefit to be withdrawn or to be modified, the supervening public interest would prevail over promissory estoppel. In D.D.A. Self Financing Flats Owners Society v. Union of India,41 there was allotment of flats by Delhi Development Authority and cost of flat was

_____________ 37. 38. 39. 40. 41.

Southern Petro-chemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O., AIR 2008 SC 1984 at pp. 2011, 2012. U.P. Power Corporation Ltd. v. Sant Steels & Alloys (P) Ltd., AIR 2008 SC 693 at pp. 707-708. AIR 1991 SC 14. AIR 1999 SC 2302. AIR 2001 Delhi 29.

Page 509

S. 116]

ESTOPPEL

indicated in brochure inviting allotment application by D.D.A. indicating estimated provisional cost. The petitioner applicant was fully aware of the fact that the cost was subject to change as per prevailing rates at the relevant time. Plea that cost indicated in brochure were final and binding on principle of promissory estoppel, was not tenable. SECTION 116.—Estoppel of tenant and of licensee of person in possession.—No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property ; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at time when such licence was given. COMMENTS Scope.—Section 116 deals with estoppel: (1) between a tenant and his landlord, and, (2) licensee and licensor. Tenant cannot deny the title of Landlord.—"A tenant may not dispute the right of his landlord by saying that he had nothing in the property." The ground of the doctrine is that inasmuch as the parties have approved that they should stand in the relation of landlord and tenant, and the one accordingly receives possession from the other and enters premises, so long as he continues in possession, he cannot be heard to deny the state of facts which he had agreed shall be taken as the basis of the arrangement ; in other words he cannot set up that the landlord had no legal title. A tenant cannot deny the right of the person from whom he took the tenancy. A tenant put into possession of land by one person cannot alter the character of his possession and make it adverse to the landlord by going to another person and paying rent to him. Where a landlord files a suit for ejectment and for arrears of rent the tenant who has been put into possession of the property in suit by the landlord cannot be allowed to say that the landlord had no interest in the property of suit.42 Where a tenant enters into possession in consequence of tenancy created by the opposite party, he should not be allowed to question the title of the opposite party as long as he enjoys the tenancy. To be clear, the tenant has to vacate the premises and then he can question the title of the Landlord.43 In Sri. S.K. Sharma v. Mahesh Kumar Verma,14: the respondent was a railway servant. He was allotted premises in question as official residence while he was holding the post of chief relation officer. It was held by Supreme Court that provision of Section 138 of Railway Act can be invoked for evicting respondent upon his retirement even though railway administration has no

_____________ 42. 43. 44.

Moti Lal v.Yar Md, AIR 1925 All 275. Suraj Bali Ram v. Dhani Ram, AIR 1979 Orissa 101. AIR 2002 SC 3294.

Page 510

EVIDENCE ACT [S. 116

proof that property was belonging to it since the respondent was estopped from alleging title of railway administration over premises in question in view of Section 116 of Evidence Act. In Rita Lal v . Raj Kumar Singh,45 the rent note was proved to be signed by the tenant. The tenant had admitted the title of landlord in his disposition made on oath in earlier judicial proceeding of plea of tenant denying the title of landlord in eviction suit raised for seeking leave to defend does not amount to raising triable issue as he was estopped from raising the same. Tenant would not be entitled to leave to defend. When the Landlord cannot plead estoppel.—Where tenancy is itself in question the tenants are not estopped from disputing the landlord's title. Again, where the tenancy has been created by fraud, coercion, misrepresentation or mistake, the tenant cannot be estopped from denying the title of the landlord. But, in the absence of any such circumstance, as would avoid a contract, the execution of a lease or a verbal agreement to hold as a tenant, would constitute a valid tenancy and bring in the estoppel.46 Once a valid and subsisting lease is established between the parties the lessee may be bound by the principle of estoppel and may be debarred from disputing the title of the lessor, but that does not prevent the alleged lessee to deny the lease and to deny his own status as a lessee. He is bound by the rule of estoppel only when he acts as a lessee and in that capacity tries to refute the title of his own lessor.47 The same principle applies between licensees and licensor. However where there was no extinguishment of title of landlord even though some dispute existed with the corporation and no jural relationship had come into existence, the exception to Section 116 of the Evidence Act cannot be pleaded.48 During the continuance of the tenancy.;—By this section a tenant is only estopped from denying the title of the landlord, during the continuance of the tenancy."49 Having regard to Section 116 of the Evidence Act, during the continuance of the tenancy, a tenant will not be permitted to deny the title of his landlord at the beginning of the tenancy. It is also well settled that during the continuance of the tenancy the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such right to the knowledge of the landlord.50 Thus it is clear that after the tenancy had ceased, the tenant is free to deny the title of the landlord. The relation of landlord and tenant continues until it is proved to have ceased. A tenancy ceases when the tenant who has been led to possession openly restores possession by surrender to his landlord.51 So when A enters into

_____________ 45. 46. 47. 48. 49. 50. 51.

AIR 2002 SC 334 Devenkaia Raya v. P.G. Rajieha, AIR 1923 Hyd 241. Sheo Prasad v. Nilvaji Bali, AIR 1947 Patna 45. E. Parashuram v. v. Doraiswamy, (2006) 1 SCC 658. Mst. Munia v. Manohar Lal, AIR 1941 Oudh 429. Veararaju v. Venkamma, AIR 1966 SC 629. Charubala v. German Company, AIR 1934 Cal. 499 ; Bilas Kumari v. Deshraj Ranjit Singh, ILR 37 A11d 557.

Page 511 S. 116]

ESTOPPEL

possession of a house as a tenant of B, tenancy of A and B , continues still A gives back the possession of house to B and till then in any suit or proceeding A cannot say that B had no title to the house. This section only operates as an estoppel during the continuance of the tenancy and not after it has come to an end. After the tenancy has ceased the person who was tenant previously is at liberty to say that the person who was once landlord has no interest in the property. Meaning of 'during the continuance of tenancy'.— The term 'during the continuance of the tenancy' means so long as the tenant continues to enjoy the benefits of the tenancy.52 At the beginning of the tenancy.—This section provides only that a tenant cannot be permitted to deny that the landlord at the beginning of the tenancy had a title to the property. A tenant is not estopped from saying that on death of the lessor the property did not devolve on the plaintiff but devolved on somebody else. This section also is no bar to a tenant showing that his landlord has no title at a date previous to the commencement of the tenancy. A tenant can always plead that the landlord had lost his title by any act of his or by operation of law.53 Relation of landlord and tenant.—Relationship of landlord and tenant can be created by written contract or by verbal contract, when the landlord has put the tenant in possession of the land. It may also be inferred from the payment of the rent, attornment or other circumstances. If once the relationship of landlord and tenant is established between the parties, the tenant would be estopped from disputing the landlord's title. The question in each case is not "whether a new tenancy has arisen ?" There is no word in Section 116 to show that the tenant may be put into possession by the landlord in order that the tenant may be estoppel from disputing the title of landlord. A tenancy is created by attornment A, a landlord of a house lents it to B. Afterwards A sold the house to C and B attorns and continues to pay rent to C. Here a relation of landlord and tenant created between C and B. 54 Licence.—There is no distinction between the law of estoppel of a licensee and that of a tenant. A licensee who has obtained possession through the licence, before he can show that his licensor had no title when he granted the licence, he must first surrender possession of the premises. When the occupation of the defendant is proved to be permissive, he is estopped from denying the title of the plaintiff. This section clearly states that licensee ought not to deny the title of the licensor. A asked B's leave to take some vegetable from his (B's ) garden. Having received the key fraudulently he took possession of the garden and then refused to vacate. In a suit for ejectment by B, he (A ) cannot be allowed to say that B had no title to the garden when he granted the permission.

_____________ 52. 53. 54.

Udai Pratap v. Krishna Pradhan, AIR 1952 Orissa 95 ; Krishna Prashad v. Baraoni Coal Concern, AIR 1937 PC 251. India Electric Works v. Mrs. B.S. Montort, 1956 Cal. 148 ; B. Goweresh v. K. Subhdrama, AIR 1957 AP 961; Kunpa Singher v. Puran Chandra, AIR 1973. Orissa 44. Tej Bhan Madan v. IInd Additional D.J., A.I.R. 1988 S.C. 1413.

Page 512

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Estoppel between mortgagor and mortgagee.—-When a property has been mortgaged by one person to another and the mortgagee, has been put into possession in pursuance of the mortgage, the parties will be estopped to deny the right of each other under the mortgage.55 The mortgagee while the mortgage subsists, i.e. before the mortgage money had been paid up and possession surrendered to the mortgagor, cannot say that the mortgagor had no interest in the property and that, he could not make a mortgage about it. The mortgagee cannot say that no right has been created by the mortgagor in favour of the mortgagee. It should be borne in mind that the rule of estoppel between the mortgagor and mortgagee applies only to cases where the suit is brought on the basis of mortgage, where the suit is not based on the mortgage but is one of the repudiation of the mortgage, the principle of estoppel does not apply. SECTION 117.—Estoppel of acceptor of bill of exchange, bailee or licensee.—No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence. Explanation (1)—The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn. Explanation (2)—If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor. COMMENTS Scope.—This section deals with further instances of estoppel by agreement. Under this section an acceptor of a bill of exchange cannot deny that the drawer had authority to draw such bill or to endorse it. But he may deny that the bill was really drawn by the person by whom it purports to have been drawn. A bailee or licensee cannot deny that his bailor or licensor had, at the commencement of the bailment or license, authority to make the bailment or grant the license. But a bailee, if he delivers the goods bailed to a third person, may prove that such person had a right to them as against the bailor,

_____________ 55.

Arjun Singh v. Mahasaband, AIR 1932 Alld 437; Mohammad Sharif v. Sayyad Kasim, AIR 1933 Mad, 635.

Page 513

CHAPTER IX OF WITNESSES Competency of witnesses.—A witness is said to be competent when there is nothing in Law to prevent him from appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. Sections 118 to 121 and Section 133 deal with the competency of the persons who can appear as witnesses. Compellability of a witness.—A witness may be competent and yet not compellable, he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. Foreign ambassadors and sovereigns cannot be compelled by a court to appear before it to give evidence. They are the persons competent to depose but they are not compellable by the court. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions. This is called restricted compellability or privilege. Magistrates, lawyers, spouses etc, have right to be protected from answering certain questions when they are being examined as witnesses. Sections 124 to 132 deal with privilege. SECTION 118.—Who may testify.—All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind or any other cause of the same kind. Explanation.—A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. COMMENTS Scope.—Under this section all persons are competent to testify unless they are incapable of giving evidence or understanding the questions put to them because of tender years, extreme old age, disease or any other cause of the same kind. Even a lunatic is a competent witness provided he is capable of understanding the questions put to him and giving rational answers. In determining the question of competency the court has not to enter into enquiries as to witnesses religious belief, or as to the knowledge of the consequences of falsehood in this world or the next. It has to ascertain in the best way possible whether from the extent of his intellectual capacity and understanding, the witness is able to give a rational account of what he has seen or heard or done on a particular occasion.

Page 514

EVIDENCE ACT [S. 118

Child witness.—A child even of 6 or 7 years of age may be allowed to testify if the court is satisfied that they have capacity to give rational testimony. A child of tender years is a competent witness when such child is intellectually sufficiently developed to understand what he or she had seen and afterwards to inform the court about it. Before the evidence of a child may be, recorded the court must, by preliminary examination test his capacity to understand and to give rational answers and must form an opinion as to the competency of the witness. It is very desirable that a trial Judge, who has a child witness before him, should preserve on the record, apart from the child witness's evidence in the case some other questions and answers which could help the court of appeal to come to a conclusion whether the trial Judge's decision in regard to the competency of the child witnesses was right or erroneous.1 The statement of the child may be recorded without administering oath to him. Omission to question a child to ascertain his capacity may not vitiate the trial.2 In Dhan Raj and others v. State of Maharashtra.3 it was held by Supreme Court that statement of child witness studying in 8th standard was a good testimony because a student of 8th standard these days acquire sufficient understanding to perceive the fact and narrate the same. In State of Himachal Pradesh v. Prem Chand,4 the child witness clearly saw accused on two occasions whom he knew to be his uncle. Holding identification parade is not of much significance in these cases. Sketch map of the cite prepared by investigating officer though admissible in evidence not hit by Section 163 Cr.P.C. would not be of much use in absence of evidence adduced with reference to the same by witness. Evidence of child witness cannot be doubted on the ground of such sketch/map. Acquittal of accused was set aside. Preliminary examination to test the capacity of a child witness.— Before the evidence of child witness is recorded, the court must by preliminary examination test his capacity to understand and give rational answers and must form his opinion as to the competency of the witness. It is desirable that a trial court, which has a child witness before him must preserve on the record some question and answer given by the witness which would help the court of appeal to come to the conclusion whether the trial court's decision, in regard to the competency of the child witness was right or erroneous. Examination of a witness who is student may be as follows : — In what class do you read ? How many students are there in your class ? How many teachers are there in your school ? Who is the best teacher and so on. If the child is not student the question should be like : How many brothers and sisters you have ? Who is the elder of all ? How many of them are married ? What is the means of livelihood of the family and so on.5

_____________ 1. 2. 3. 4. 5.

Ram Hazur Pandey v. State, AIR 1959 Alld. 409. Rameshwar v. State of Rajasthan, AIR 1952 SC 54. AIR 2002 SC 3302. AIR 2003 SC 708 Shankar Lal v. Vijai Shankar, AIR 1968 All. 58 ; Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.

Page 515

S. 118]

OF WITNESSES

Certificate that the witness understood the duty of speaking the truth.—It is desirable that the trial court must record their opinion that the child understands the duty of speaking the truth, the omission of such note does not invalidate the evidence.6 Oath to a child.—Where the witness is under 12 years of age and the court is of opinion that he understands the duty of speaking the truth he may be given oath and if the court is of opinion that the witness does not understand the nature of an oath or affirmation, the court may not administer oath to him. Omission to administer oath does not render the evidence of a child inadmissible.7 Value of child evidence.—Children are most dangerous witnesses, for due to tender age they often mistake, dreams for reality. They are capable of cramming things easily and reproducing them. They repeat as to their own knowledge that they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. Hence it is unsafe to rely on uncorroborated testimony of a child.8 It is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shaped and moulded, yet it is also an accepted norm that if after careful scrutiny of their evidence, the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.9 In State of Maharashtra v. Bharat Farikha Dhiwar,10 the deceased girl aged 3 years was complained to be missing by her parents. The child witness disposed that they saw accused girl going towards canal. After sometime, they saw accused coming back. At that time his shirt was stained with blood that on seeing them the accused took out his shirt and put into his pocket. The witness was found truthful by the trial court. However, the High Court disbelieved them for certain reasons. It was held by Supreme Court that none of the reason given by High Court is sufficient for the purpose of discarding the evidence of two child witnesses. The trial court which had opportunity of watching the demeanour and conduct of these two child witnesses found them to be truthful. It was entirely irrelevant that the locality was full of houses. Therefore, the conclusion of High Court that it was not shown that the two children stayed in locality not proper. There was no material contradiction between disposition given to police and disposition made in the Court. There might be some minor contradictions but those were not of material nature. The further reason given by High Court that shirt had not been recovered could hardly be reason for disbelieving two child witnesses. It was quite possible that the accused may have distorted or hidden the shirt. A judge who recorded the statement of a girl of seven or eight years certified that she did understand the sanctity of the

_____________ 6. 7. 8. 9. 10.

R. Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54. Md. Sugal Esa. v.The King, AIR 1946 PC 3. Mohd. Sugal v. The King, A.I.R. 1946 P.C. 3 ; Lalwanti v. State, A.I.R. 1953 Pat 246 ; Nirmal Kumar v. State of U.P., A.I.R. 1952 S.C. 1131. Golla Yelugu Govindu v. State of A.P., AIR 2008 SC 1842 at p. 1844. AIR 2002 SC 16.

Page 516

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oath and accordingly he did not administer oath to her. He did not however, certify that the child understood the duty of speaking the truth. The question was whether this omission rendered the evidence of the child inadmissible. It was held that (1) an omission to administer oath even to an adult goes only to the credibility of the witness and not to his competency and therefore irregularity in question cannot affect the admissibility of the evidence of the child. (2) It is however desirable that the Judges and the Magistrate should always record their opinion that the child understands the duty of speaking the truth and the courts should also state as to why they think that the witness understands the duty of speaking the truth. That is to say, the courts should certify that he is of opinion that the child witness understands the duty of speaking the truth and that he should also give the reasons as to why he holds that opinion. If a court does not act as said above the credibility of the witness may be seriously affected so much so that, in some cases it may be necessary to reject the evidence altogether. (3) Where the Magistrate or Judge really was of that opinion can however be gathered from the circumstances when there is no formal certificate. One can presume that the court had that in min 1 from the fact that he examined the child after referring to a fact which arises from the provision. In the present case it was plain that the learned Judge had the provision in mind because he certified that the witness does not understand that nature of oath and so did not administer oath, but despite that went on to take her evidence.11 In State of Maharashtra v. Dama Gopinath Shinde,12 girl of seven years' age has seen last her neighbour and play-mate, the deceased, while they were playing together. Later on, the dead body of the deceased was recovered. It was held by Supreme Court that the rejection of testimony of child solely on the ground that it was not possible for a child of that age to remember what happened three years ago was not proper. In Bhagwan Singh v. State of M.P,13 it was held by Supreme Court that the law recognised the child as competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about nature of incident, because of immaturity of understanding is not considered by a Court to be a witness whose sole testimony could be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey of tutoring. Therefore always the Court looks for adequate corroboration from other evidence to his testimony. In the instant case the children went fast asleep after witnessing gruesome murder of their mother; this fact is unbelievable. The child must have raised cry which was not the fact of this case. So taking into consideration the fact and circumstances of this case the child witness could not be relied on. The evidence of a witness cannot be thrown out merely because he happens to be present at the spot by chance.14

_____________ 11. 12. 13. 14.

Rameshwar Kalyan Singh, v. State of Rajasthan, AIR 1952 SC 54. AIR 2000 SC 1691. AIR 2003 SC 1088. Sarvesh Narain Shukla v. Daroga Singh, AIR 2008 SC 320 at p. 328.

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The child witness stated that she knew the accused by name. She also stated that she had seen voltage of the bulb which was supposed to be lighted at a distance of 200 yards. Most of her statements were exaggerations and embellishments and most of the vital facts were not stated by her. Held—The evidence shows that she was tutored.15 In Nivrutti Pandurang Kokate v. State of Maharashta,16 the prosecution version was that the deceased woman, the appellant 1, had extra-marital affairs with appellants 2 and 3. The deceased, the husband of the deceased woman objected to such affairs. The appellants 2 and 3 with her committed murder of the deceased. The prosecution relied on the evidence of the daughter of the deceased who was about 12 years. She stated that the deceased used to sleep alone in his hut and eat in his brother's house. The relations between her father and mother were extremely estranged. Her mother on the day of incident washed the blood of her father with a bucket of water and cloth. She poured it outside the house. The appellants spread shawl on tiles, put the dead body on the shawl and put gunny bag on the dead body and lifted it by holding the shawl. They carried the body to the field, buried it and returned home. Appellants 2 and 3 went to their respective houses. The appellant 1 locked the house where the deceased was killed and went to the hut to sleep. She went near her brother who continued to sleep through the incident and slept. Her evidence was concise and precise as if was specific and vivid which was neither embellished nor embroidered. She had seen the unusual and cruel incidence. Her evidence was reliable. It was held that the evidence of child witness was not required to be rejected per se. Such evidence should be considered with close scrutiny. In Himmat Sukhadeo Wahurwagh v. State of Maharashtra,17 one Babarao Kolhe, his brother Jaidev Kolhe and grandson Sanjay had gone to plough their field. At about 4.00 P.M. when they were returning, the accused persons surrounded them and caused injuries to Babarao and Jaidev. They succumbed to their injuries. In the confusion that followed the attack, Sanjay managed to escape and rushed home and revealed the story to his family and hid himself till the next morning. In the answers given by Sanjay in the course of his evidence, it became clear that he was aware of what had happened. He also specified the weapons which the accused were holding and the manner of their use. His statement was also corroborated by the deceased in his dying declaration made to a witness who had rushed to the spot on being informed by Sanjay regarding the incident. Bhimrao, aged 13 years old child accompanying his grand-father Namdeo who had gone to lodge the report with the Police Patil. In the way, Deokabai also accompanied them, they were accosted by all the accused persons who were variously armed. He stated that he ran home and informed his mother and he also hid himself till next morning.

_____________ 15. 16. 17.

State of Madhya Pradesh v. Chamru alias Bhagwandas, AIR 2007 SC 2400 at p. 2402. AIR 2008 SC 1460 at pp. 1461-1462. AIR 2009 SC 2292.

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The cross-examination of Bhimrao, was very sketchy and nothing fruitful could be elicited by the defence Counsel. Deokabai corroborated the evidence of Bhimrao. She stated that she had witnessed the beating of Namdeo which led to his death. Bhimrao was a child witness but his testimony was held to be acceptable. The accused were held guilty of murder and the evidence of child witnesses was relied on. Regarding evidence of child witness, Justice Harjit Singh Bedi in his judgment referred to and relied on the test laid down in Nivrutti Pandnrang Kokate v. State of Maharashtra.18 The accused 1 and accused 2, wife of the deceased who were in illicit relationship, strangulated and throttled deceased to death and thereafter they dug a hole in the floor of hut where they had been living and buried the dead body. The entire evidence was witnessed by a child, of ten years who was the daughter of accused 2. She was threatened with dire consequences if she revealed the incident. The dead body was recovered at the instance of this child. It was held that there was no reason to disbelieve the evidence of this child witness who withstood the test of cross-examination. The conviction was held to be proper.19 Prosecutrix.—The evidence of prosecutrix does not necessarily need corroboration, specially when accused is a police officer.20 Partisan or Interested Witness—Credibility A partisan or interested witness is one who is somehow related to the victim of crime and is interested in the conviction of the accused person. It may be a relative, a friend, servant or master. The testimony of the witness was in accordance with first information report. The eye witness was injured during the incidence. Accused had accepted the presence of eye witness. His testimony cannot be rejected only because he was interested witness.21 The evidence of witnesses who are relatives of the deceased cannot be discarded unless there is infirmity in evidence.22 Relation of a witness does not affect his credibility as more often than not it would not conceal actual culprit and make allegation against an innocent person.23 Relationship of a witness is not a factor to affect the credibility of witness.24 The evidence of eyewitnesses present on the spot cannot be disbelieved on the ground of belonging to the same family.25

_____________ 18 19. 20. 21. 22. 23. 24. 25.

(2008) 12 SCC 565 : AIR 2008 SC 1400 ; Also see State of Karnataka v. Shantappa Madivalappa Golapiji, AIR 2009 SC 2144. Balaji v. State, AIR 2010 SC 278. State of Maharashtra, v. Chundra Prakash Keval Chand Jain, AIR 1990 SC 658. State of U.P. v. Jodha Singh, AIR 1989 SC 1822 ; Chandra Mohan Tiwari v. State of M.P., AIR 1992 SC 891. Dheram Pal v. State of U. P., AIR 2008 SC 920 at p. 927. Gali Venkataiah v. State of A. P., AIR 2008 SC 462 at p. 463. Kalegura Padma Rao v. The State of A. P., AIR 2007 SC 1299. Bhagga v. State of M. P., AIR 2005 SC 175 at p. 178.

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The witness were sister and father-in-law of deceased. They were living infront of the house of deceased. They entered the house of deceased after hearing the cries of deceased by breaking the door of house and saw the incident. They were held to be natural witnesses and reliance could be placed upon them.26 The fabricated first information report in which there was minute description of injury sustained by some persons during incident. There was enmity between witnesses and the deceased. There was common inconsistency and omission in the testimony of witnesses. The presence of accused at the place of incidence was almost doubtful. Thus there was adverse effect on the testimony of witnesses. There was very inconsistency in the statement of prosecution. Since the enmity between witnesses and deceased was well accepted, the testimony of such witnesses should be seen with very much care and caution. If the testimony of partisan witness is not reliable, the accused should not be convicted.27 Thus there can be no hard and fast rule about reliance of testimony of partisan witness. Its reliability should be judged from fact of the case before the Court. In State of Rajasthan v. Teja Rant and Others,28 the Supreme Court held that rejection of testimony of interested witness on the ground that they all were relatives of deceased and no independent witnesses were examined, was not proper. Over insistence as witness having no relation with victim often results in criminal justice going away. When any incidence happens in dwelling house, the most natural witnesses would be inmates of the house. In Surendra Pratap Chauhan v. Ram Naik and others,29 it was held that where due the strained relations between the accused and the complainant, there was groupism in the village, the evidence of eye witnesses who were caste fellows of the complainant need not be discarded on that ground. Their evidence however, needs to be scrutinised with caution. In Sandeep v. State of Haryana.,30 where the victim and the accused were known to witness, his evidence could be material and could not be criticised on the ground that as witness was knowing the father of accused, he was an interested witness. In Hari Singh M. Vasva v. State of Gujarat,31 the accused inflicted knife blow which caused death of deceased in the house of complainant. The complainant was tenant of the accused. Their intimate relationship could not be stretched to hold that the complainant was interested witness. In Syam Sunder v. State of Chhattisgarh,32 the relationship between prosecution witness and defence witness were strained. Criminal litigation was

_____________ 26. 27. 28. 29. 30. 31.

Om Prakash v. State of Punjab, AIR 1993 SC 138. Dharm Singh and others v. State of Punjab, AIR 1993 SC 319. AIR 1999 SC 1776. AIR 2001 S.C. 164. AIR 2001 SC 1107. AIR 2002 1212.

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pending between the two. It was held by the Supreme Court that testimony of witness needs to be subjected to careful scrutiny. In State of U.P. v. Jagdeo,33 where the eye witnesses clearly implicated the accused persons and one of the eye witnesses was injured in the incident, the evidence of eye witnesses could not be discarded only on the ground that they were interested witnesses. Most of the time eye witnesses happen to be family members or close associates because unless the crime is committed in public place, strangers are not likely to be present at the time of occurrence. The law is long settled that the mere reason that eye-witness is an interested witness his or her testimony cannot be rejected. The court while considering it can exercise the caution and give reasonable discount if required. But this surely cannot be the reason for discarding evidence of eye witness. Relationship of a witness does not affect his credibility.34 The evidence of a witness cannot be discarded solely on the basis of his relation with deceased and strained relations with accused.35 The relatives of the victim cannot be treated as untruthful witnesses. The reason has to be shown if a plea of partiality is raised to show that the witness had reason to shield actual culprit and falsely implicate the accused.36 Unless a crime is committed at a public place, strangers are not likely to be present at the time of occurrence. A relative witness more often than not would not conceal actual culprit and make allegation against an innocent person. In case of plea taken by the accused about the interestedness of a witness, materials have to be placed in that regard and the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.37 The victim while returning home with cash from his shop was shot dead. The eye-witness who was working with victim in the shop and was accompanying him at the time of incident, identified the assailant in Test Identification Parade who had fired at the victim when he resisted to give the cash bag on demand. The evidence of eye-witness was not rejected merely on the ground that he was related to the deceased.38 A close relation would be the lost to scare the real culprit and falsely implicate an innocent person.39 There is no reason as to why close relatives of the deceased would try to rope someone else as the murderers of their near relation and give up the actual accused. It is against the human conduct.40

_____________

33. AIR 2003 SC 660. 34. D. Sailu v. State of A. P., AIR 2008 SC 505 at p. 507. 35. Kapildeo Mandal v. State of Bihar, AIR 2008 SC 533 at p. 536. 36. Rajesh Kumar v. State of H. P., AIR 2009 SC. 1 37. State Rep. by Inspector of Police v, Saravanan, AIR 2009 SC 152 at p. 154; Bur Singh, V. State of Punjab, AIR 2009 SC 157. 38. Amitsingh Bhikamsingh Thakur v. State of Maharashtra, AIR 2007 SC 676 at p. 683. 39. Dalip Singh v. State of Punjab, AIR 1953 SC 364. 40. State of U.P. v. Shobhanath, AIR 2009 SC 2395 at p. 2399.

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Simply because eye-witnesses are the family members of the deceased, their evidence cannot per se be discarded if their evidence is otherwise cogent and credible.41 Where the mother of the deceased deposed about assault by the accused persons on her sons, there could be no dispute about her being an interested witness, as also having exaggerated her version and there was no dispute of her denial of injuries on one of the accused which were ultimately proved, it by itself would not make her evidence unbelievable. She was a mother deposing about the assault on her sons and she certainly would not be interested in allowing the real culprits to go unpunished.42 The mechanical rejection of such witness on the ground of being an interested and partisan witness is failure of justice.43 Relationship of witness does not affect credibility of witness and such witness could not be said to be not an independent witness. Foundation has to be laid if a plea of false implication is made. In such a case, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.44 Over-insistence on outsider witness having seen nothing as against natural witness often results in criminal injustice.45 In Ram Singh v. State of M. P.,46 one Ganesh Prasad, the author of FIR, hearing hue and cry of Shakunbai at about 8-9 p.m. came from his house and saw the appellant, 'R' coming out from the house of the deceased and running away along with 'S', the co-accused. Thereafter Ganesh Prasad came to the house of the deceased and asked Shakunbai, the wife of the deceased regarding the occurrence of the incident. Shakunbai told that 'S' caught hold of the hands of the deceased and 'R' dealt several blows of knife on the person of the deceased causing his death. The prosecution examined nine witnesses including Shakunbai and Dhani Ram, the son of the deceased as eye-witness. The Trial Court found the evidence of eye-witnesses cogent and credible and held both the accused persons guilty and did not find any substance in the plea of the defence that the eye-witnesses being related to the deceased should be discarded. The D. B. of M. P. High Court dismissed the appeal. The Supreme Court also dismissed the appeal and held— Relationship is not a factor to affect credibility of a witness. It is more often than not that relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.47

_____________ 41. 42. 43. 44. 45. 46. 47.

Mohabbat v. State of M.P., AIR 2009 SC 1893 at p. 1894 ; Sonelal v. State of M.P., AIR 2009 SC 760. Bheru Lal v. State of Rajasthan, AIR 2009 SC 3208 at p. 3211. Masalti v. State U. P., AIR 1965 SC 202. Poonam Chandraiah v. State of A. P. AIR 2008 SC 3209. Also see Bathula Nagamalleswar v. State Rep. by Public Prosecutor, AIR 2008 SC 3227; Dinesh Kumar v. State of Rajasthan AIR 2008 SC 3259. Vinay Kumar v. State of Bihar, AIR 2008 SC 3276. AIR 2009 SC 282 at p. 283. Per Dr. Arijit Pasayat J.

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Injured witness.—The doctor testified that the injury suffered by the witness was a typical bruise. He did not note the colour of injury and described the injury as simple and fresh at the time of medical examination. He also did not note down the depth of the bruise. He admitted that these bruises could be managed with a chemical. It was depressed in the middle and the edges were slightly raised but he admitted that he did not note down these things in the injury report. It was held that discarding of evidence of injured witness by the High Court was total non-application of mind.48 In Anna Reddy Sambasiva Reddy v. State of A.P.,49 in an incident of murder and rioting the omissions and discrepancies pointed out by the injured witnesses (P.W. 1 and P.W. 3) were only minor and did not shake their trustworthiness, it was held that their testimony could not be discarded on the ground of non-mentioning of specific acts and their credibility could not be affected merely because two of the accused persons were acquitted. Two of the family members of injured witnesses had died and one of such witnesses suffered a grave injury on his head, it was held to be most unlikely that they would have spared actual assailants. Justice R.M. Lodha of the Supreme Court observed: "The testimony of eye-witnesses carries with it the criticism of being tutored if they give graphic details of the incident and their evidence would be assailed as unspecific, vague and general if they fail to speak with precision. The golden principle is not to weigh such testimony in golden scales but to view it from cogent standards that lend us assurance. In our view, the testimony of P.W. 1 and P.W. 3 is of credence and does not deserve to be discarded on the ground of non-mentioning of specific acts. The trial court and the High Court have given cogent and convincing reasons for accepting the evidence of P.W.I and P.W. 3. We concur. Merely because A-14 and A15 got acquittal, in our view, credibility of deposition of P.W. 1 and P.W. 3 is not affected."50 Eye-witness as a silent spectator.—Simply because the eye-witnesses were silent spectators and they did not make any attempt to save the life of the deceased from the clutches of the accused persons, their abnormal conduct by itself cannot be a ground to disbelieve and discard their testimony.51 Eye-witness—Conduct of.—Where the two witnesses in a murder case, while the deceased was being accompanied by them and were his close friends at about 7.30 P.M., ran away from the scene of incident and left the deceased in lurch making the deceased to cringe an auto-driver to take him to hospital and they did not inform about the occurrence to anybody till they were asked by the police in the midnight of occurrence. The conduct of these witnesses was held to be unnatural and their presence at the time of occurrence was doubtful as no close friend of a person involved in the movement allow such a thing to happen to him and there was no explanation for it.52 ______________ 48. 49. 50. 51. 52.

State of U.P. v. Sheo Lal, AIR 2009 SC 1912. AIR 2009 SC at p. 2661. Ibid at p. 2667. Satvir v. State of Uttar Pradesh, AIR 2009 SC 1741 at p. 1744. State of Tamil Nadu v. Subair, AIR 2009 SC 1189 at p. 1193, Per Justice Dr. Arijit Pasayat.

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In Babasaheb Apparao Patil v. State of Maharashtra,53 the deceased and his driver

P.W. 11 and P.W.10 returning stopped at a hotel to take some snacks. Since vegetarian snacks were not available, they procured beer and had it in hotel. A former servant of the deceased who had left his service and also owed some money was belaboured by them and made to sit in the jeep and was being taken away alongwith them. In the way, the wife of the servant stopped the jeep. While the deceased was talking to the wife of the servant, another jeep came there and four persons alighted with dangerous weapons assaulted the deceased and committed murder. P.W. 10 ran away from the scene and P.W. 11 also ran away when a shot was fired in the air. P.W. 11 instead of informing the police went to the house of his uncle. The argument for the defence was that the trial court and the High Court had not appreciated properly the evidence on record as the conduct of the P.W. 11 was unnatural. It was held by Justice D.K. Jain— P.W. 10 gave graphic description of the incident. P.W. 11 gave the evidence which corroborated the evidence of P.W. 10. The evidence of these witnesses stood corroborated by the medical evidence. The conduct of P.W. 11 in going to the house of the uncle instead of reporting the incident to the police cannot be said to be unnatural, impairing the creditworthiness of his evidence. The post-event conduct of a witness varies from person to person. It cannot be a castiron reaction to be followed as model by every one witnessing such event. Different persons would react differently on seeing crime and their behaviour and conduct would, therefore, be different.54 Eye-witnesses—Inconsistencies.—Minor inconsistencies appearing between the statements of two eye witnesses should not be given undue importance and acquittal on this ground is not proper.55 Eye-witness deviation.—Only because eye-witness deviates from her statement made in the FIR, her evidence cannot be held to be unreliable. The principle 'falsus in uno, falsus in omnibus' has no application in India.56 When implicit reliance is placed on eye-witness, some embellishment in the prosecution case caused by reason of evidence of any prosecution witness although not declared hostile by itself cannot be a ground to discard the entire prosecution case.57 Enmity with accused cannot be the only ground to reject testimony of the eye-witnesses being related with the deceased when the evidence of the eyewitnesses with minor contradictions here and there has withstood the test of cross-examination.58 A witness who witnesses attack is not supposed to go on counting number of assaults on the parts of the body where the injuries were inflicted. The witnesses came running after hearing shout of the deceased. They categorically

______________ 53. 54. 55. 56. 57. 58.

AIR 2009 SC 1461. Ibid, at p. 1464; Rammi alias Rameshwar v. State of M.P., (1999) 8 SCC 649 referred to. Indra Pal Singh v. State of U.P., AIR 2009 SC 958 at p. 961. Gangamma v. G. Nagarathamma, AIR 2009 SC 2558 at pp. 2560-2561 ; Prem Singh v. State of Haryana, AIR 2009 SC 2573. Bhanwar Singh v. State of M.P., AIR 2009 SC 768 at p. 783. Dharamveer v. State of U.P., AIR 2010 SC 1378 at p.1383.

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stated some external injuries and it was possible that they had not noticed the injuries inflicted earlier. When they reached they saw the deceased lying on the ground. The eye-witnesses were held to be reliable.59 Evidence of eye-witnesses cannot be disbelieved only on the ground of being related to the deceased.60 The evidence of eye-witnesses merely because they are family members of the deceased cannot be discarded. Relationship is not a factor to affect credibility of witness. In case of false implication, it has to be established.61 In an allegation of interestedness of witness, it has to be established. Merely because, the witnesses are relative of the deceased, their testimony are not liable to be rejected on the ground of interestedness when their testimony is otherwise cogent and credible.62 Relationship does not affect credibility of a witness for being an Interested witness if evidence is otherwise cogent and credible. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made.63 Police as witness,—The presumption that every person acts honestly applies as much to a police official as to any other person. No infirmity is attached to the testimony of a person because he is a police official. The rule of prudence may require more careful scrutiny to such Testimony.64 In Ram Kumar v. State of Delhi,65 the accused fired causing death. Incidence took place outside village. There was search and seizure by the police. No independent witness was available near the place of incident. Evidence of police official which was found reliable could not be discarded on the ground that no independent witness had been examined by prosecution. In Sow Bhima Bai v. Suresh Dayanand Kesar,66 it was held by Bombay High Court that respectability or veracity of witness does not necessarily depend on his status in life...If this logic is allowed to prevail then the person having low status would not find place in temple of justice. Quest should be for truth rather than the status of person. Worth of witness is to be measured on the basis of touchstone of cross examination and yardstick of probability. In Ravindra Santa Ram Sawant v. State of Maharashtra.,67 the accused had fired gun shot at the victim while he was being taken out from the court by escorting police party. The police party was victim of assault inducted by the accused. Three of the Police witnesses were injured. They could not therefore be described as police witnesses, or official witness, interested in the success of the investigation or prosecution. They were eye witnesses who were injured in the

______________ 59. 60. 61. 62. 63. 64. 65. 66. 67.

State of Maharashtra v. Prakash Sakha Vasove, AIR 2009 SC 1636 at p. 1638. Ravishwar Manjhi v. State of Jharkhand, AIR 2009 SC 1262 at p. 1268. Joginder Singh v. State of Punjab, AIR 2009 SC 2263 at p. 2265. State of U.P. v. Atul Singh, AIR 2009 SC 2713 at p. 2715. Bhupendra Singh v. State of U.P., AIR 2009 SC 3265 at p. 3267. Girja Prasad v. State of M. P., AIR 2007 SC 3106 at p. 3111. AIR 1999 SC 2259. AIR 1999 Bom. 379. AIR 2002 SC 2461.

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course of incident. In fact the testimony of such witnesses did not require independent corroboration; if otherwise their evidence was found to be truthful and reliable. This was not a case where the police witness had been introduced to bolster the case of prosecution with the view to its success. The injured witnesses and other police witnesses were eye witnesses being members of escorting party. Therefore independent corroboration of testimony was not necessary in the facts and circumstances of the case. In Karmjit Singh v. State (Delhi Administration),68 it was held by Supreme Court that without corroboration by independent witness, the testimony of police personnel could not be relied upon. The presumption that persons act honestly applies as much in favour of police personnel as other persons. It is not thus proper judicial approach to distrust and suspect them without good grounds. Evidence of investigation officer.—In Pan Aduthan v. Deputy Director Narcotic Control Bureau,69 the Supreme Court held that evidence of Investigation Officer who had searched and arrested the accused and informed the accused about his right was reliable. The fact that Investigation Officer, after 10 years was found involved in corruption case, was irrelevant and did not render his evidence inadmissible. In Sabaskhan Nurkhan Pa than case there was criminal riot. There was no doubt about the presence of eye witness at the place of incident. This fact that his brother came as a Panch witness and his relatives were accused in previous cases, could not be the basis to make doubt about the veracity of his testimony.70 The testimony of injured witness cannot be rejected only because they were partisan witness. At the most their statement should be examined with close scrutiny.71 In case where there was charge of murder, the eye witness is most reliable witness. If the Court has acquitted one accused giving benefit of doubt and convicted other accused because of this the credibility of eye witness is not affected.72 If evidence on record is otherwise trustworthy, rejection of evidence of witness on the ground of being interested witness is not proper.73 In a case all the witnesses are relatives of the deceased, their evidence ought not be discarded on that ground. The Court should however be sensitive in scrutinising as to the acceptability of such evidences.74 In Bhagwan Singh and others v. State of U.P.75, it was held by Supreme Court that the evidence of related witness cannot be disregarded on the ground of being related to the victim.

______________ 68. 69. 70. 71. 72. 73. 74. 75.

AIR 2003 SC 1311. AIR 1999 SC 2355. Paresh Kalyandas v. Sadiq Yaqubbhai, AIR 1993 SC 1544. Nallam Setty Yanadaiah v. State of A.P., AIR 1993 SC 1175. Krishna Ram v. State of Rajasthan, AIR 1993 SC 1386. Munshi Prasad v. State of Bihar, AIR 2001 S.C. 3031. Kajal Sen v. State of Assam, AIR 2002 S.C. 620. AIR 2002 S.C. 1621.

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In another case,76 the Supreme Court held that in a murder case where version of eyewitness regarding identity of assailants appeared to be natural, the evidence of eye witnesses including injured witness is not liable to be discarded on the basis of vague evidence of other witness who was subsequently treated as hostile. Evidence given by an eye witness or injured witness cannot be lebelled as of interested witness. When witnesses are examined after 5 years, discrepancies are bound to creep in. Hence, cannot be disbelieved so as to harm the substratum of prosecution case.77 Chance witnesses.—If by coincidence or chance a person happened to be at the place of occurrence when the incident is taking place, he is called a chance witness and if such a person happens to be relative or a friend of victim or inimically disposed towards accused, then he being a chance witness is viewed by suspicion. Such a piece of evidence is not necessarily excludable, but it does require cautious and close scrutiny.78 In Rana Pratap Singh v. State of Haryana,79 a witness 'B" saw at about 8.30 A.M. the Alto car being driven away by the accused persons along with the deceased boy aged 16 years when the witness had come of his house to see off the children of a relative who had to take rickshaw to school. The witness recognized the accused persons but he could not get suspicions at that moment as it appeared to be a normal transaction, the boy appeared to be going willingly with his kidnappers. The same morning the witness went to pilgrimage and returned in the evening. On return in the evening he tried to contact the deceased's father on telephone but it was continuously engaged. Therefore, the suspicion about anything amiss could not have been raised prior to his return in the evening. The witness "S" having a bakery shop, while he was outside his shop, heard the screams of "bachao bachao". When he looked to that direction, he saw a car being driven at a high speed and a human foot protruding out of the car window. This witness was not in any way connected with the father of the deceased. The Supreme Court held that the presence of witnesses "B" and "S" was natural at the places and they could not be dubbed as chance witnesses. The neighbour of "S" informed the police about the incidence.80 Justice Harijit Singh Bedi, observed : "Murders are not committed with previous notice to the witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed-en a street, only passerby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed

______________ 76. 77. 78. 79. 80.

Ram Bhukan v. State of U.P., AIR 1994 SC 561. B.K. Channappa v. State of Karnataka, AIR 2007 SC 432. Bahal Singh v. State of Haryana, AIR 1976 SC 2032 ; State of Gujarat v. Pamu Bhai, 1991 Cr. L.J. 2226. AIR 1983 SC 680. Ibid.

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from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard evidence of street hawkers and street vendors on the ground that they are "chance witnesses" even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence." When the incident of murder took place near a sugarcane crop at about 6.15 P.M. being a broad daylight, the eye-witnesses present were of the same locality, their presence at the place of occurrence could not be considered to be unnatural and they could not be said to be chance witnesses. They had no cause to give false evidence and their testimony could not be discarded.81 SECTION 119.—Dumb witnesses.—A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs ; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence. COMMENTS Unable to speak.—The section applies to the cases of persons who are unable to speak due to physical deformity and also to the cases of witnesses who have taken a vow of silence.82 When a deaf-mute is a witness the court will ascertain before he is examined that he possesses the requisite amount of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence may be taken— (a) by written questions to which he may reply in writing, or (b) by means of signs. SECTION 120.—Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial.—In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit shall be competent witness. In criminal proceedings against any person the husband or wife of such person, respectively, shall be a competent witness. COMMENTS Scope.—In olden days it was a favourite doctrine that husband and wife were one person in law. Consequently when one of the spouse was a party to a judicial proceeding the other was supposed to be a party and, therefore, he or she was not allowed to appear as a witness for or against. Section 120 removes this bar and the husband and wife are competent witnesses for and against the other. SECTION 121.—Judges and Magistrates.—No Judge or Magistrate shall, except upon the special order of some Court to which he is

______________ 81. 82.

Ramvir v. State of U.P., AIR 2009 SC 3185 at p. 3187. Lakhan v. Emperor, AIR 1942 Patna 183.

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subordinate, be compelled to answer any question as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. ILLUSTRATIONS (a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon the special order of a superior Court. (b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior court. (c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Session Judge. B may be examined as to what occurred. COMMENTS Principle.—Section 121 lays down that a Judge or Magistrate cannot be compelled except upon special order of a higher Court, to give evidence about his conduct in relation to a case tried by him [illustration (a ) ] nor can be made to depose anything which he came to know as a court in course of trial [illustration (b) ]. This privilege cannot be claimed by such persons in respect of facts which they come to know not as court in discharge of their duty but, which is observed by them as ordinary men [illustration (c ) ]. It must be borne in mind that the privilege given by their section is the privilege of the witness, if he waives such privilege, none else can raise an objection. Thus, if a Magistrate is summoned to depose about his conduct in respect of a case and he is ready to appear, nobody else can raise an objection.83 SECTION 122.—Communications during marriage.—No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married ; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. COMMENTS Principle.—Section 120, Evidence Act has laid down that husband or wife of any party to the suit shall be a competent witness. It has also laid down that in a criminal case against any person, the wife (if the accused is husband) or the husband (if the accused is wife) of such person shall be competent witnesses. Thus according to Section 120 the wife or husband of a party to a proceeding is a competent witness and capable to testify.

______________ 83.

Emperor v. Chidan, ILR 3 Alld. 573.

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Section 122 lays down that a wife or husband may not be compelled to divulge the communication of husband to wife and the vice versa. According to the section any communication during the wedlock by the husband to his wife or by wife to her husband is prevented from being proved in a Court of Law.84 In Ram Bharose v. State of U.P.,85 the wife's statement was that on the early hours of day of murder, while it was still dark she saw her husband coming down from the roof of his house and then going to Bhusa Kothari and coming again and having a naked bath and thereafter wore the same clothes. She also stated that her husband presented her ornaments. Thereupon, she asked as to the place from where he got them. He told that he had gone to a house to get the ornaments. It was the house where the deceased lived. Justice Venkataramma Iyyer held that the wife could testify the conduct of the husband but not what he said to her. The section prohibits the wife or the husband from disclosing the communication between them. It does not prohibit communication to be proved by some other means. Conduct may be deposed to.—For the application of Section 122, it is not necessary that wife or husband should be party to the case or proceeding. In any case, irrespective of the persons who are the parties to it, any communication made by a wife to her husband or by husband to his wife is prevented from being proved in a Court of Law. Exception.—There is one exception to the general rule. When there is a civil suit between the husband and the wife the communication between them can be proved by them. Again in a criminal proceeding if a wife is prosecuted for an offence committed by her against her husband or if the husband is prosecuted for an offence committed by him against his wife, the other spouse will be allowed to disclose any communication made by him or her partner. But offence must be by one against the other.86 The protection is not confined to cases where the communication sought to be given in evidence is of confidential character, but the seal of the Law is placed upon all communications of whatever nature which pass between husband and wife.87 It extends also to cases in which the interest of strangers is solely involved as well as to those cases in which the husband or wife are parties on the record. During the marriage.—It is important to note that this section applies to such matters as have been communicated during marriage. If a communication is made by one person to another after the dissolution of marriage between them. This section does not apply. Similarly, if communication is made prior to the marriage, the wife or husband may be compelled to depose about it. In interpreting the rule, it is not material that the relation of husband and wife should be subsisting at the time when the evidence is required to be given

______________ 84. 85. 86. 87.

Ram Bharose v. State of U.P., AIR 1954 SC 704. AIR 1954 SC 704. Narendra Nath Mukherjee v. State, AIR 1951 Cal. 140. Ram Chandra v. Emperor, AIR 1933 Bom. 153.

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so where a woman has been divorced and had married another husband was offered as a witness against her former husband to prove a communication made during the coverture, it was held that she was incompetent to do so.88 Consent.—If the person (husband or wife) who made the communication or his representative in interest gives his consent, the other spouse may be permitted to depose about the communication made during the wedlock. The consent to the evidence being given cannot be implied. It is incumbent upon the court to ask a party against whom evidence is to be given whether he or she would consent to the evidence being given and not to admit it unless such consent is given. It must be borne in mind that under this section, the privilege is for the communication and not to be the witness. The section says that a husband or wife shall not be compelled to disclose such communication and that they shall not be even permitted to disclose even if he or she volunteers to do so. SECTION 123.—Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer as the head of the department concerned, who shall give or withhold such permission as he thinks fit. COMMENTS Conditions of claim of privilege.—A reading of Section 123 indicates that in order to claim privilege there must be certain pre-requisite conditions (1) the document must be an unpublished official record, (2) it should relate to the affairs of the State, and (3) it can be admitted in evidence with the permission of the head of the department concerned, who shall give or withhold such permission.89 'Unpublished'.—It must be borne in mind that privilege contained in this section is for the records which are unpublished. If the record has been published, its production before the court cannot be resisted. 'Published' is not to mean only those documents or papers which are printed for general circulation. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have fullest possible access to all relevant materials. When public interest outweighs the latter, evidence cannot be admitted.90 It is not that the document should contain the material which it would be damaging to the national interest to disclose but rather than the documents would be of class which demand protection. To illustrate the class of documents would include cabinet papers, foreign office dispatches, papers regarding the security of the State and high level inter-departmental minutes. In the ultimate analysis the contents of documents so described that it could be seen at once that in public interest document is to be withheld.91

______________ 88. 89. 90. 91.

M.C. Verghese v. T.J. Ponnan, AIR 1970 SC 1876 ; S.J. Chaudhary v. The State, 1985 Cr. LJ 622. Raj Narain v. Indira Gandhi, AIR 1974 Alld. 324. State of U.P., v. Raj Narain, AIR 1975 SC 865. Ibid.

Page 531 S. 123] OF WITNESSES The Cabinet notes and other documents leading to preparation of such notes are privileged92 so also notings made by Government officer in files are privileged document though privilege is not absolute.93 Official record relating to affairs of State.—Affairs of State is a very wide expression. Every communication which proceeds from one officer of the State to another is not necessarily relating to the affairs of State. The expressions 'affairs of State' may be defined as matters of public nature in which the State is concerned and the disclosure of which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations.94 'Affairs of State'—Meaning.—At the time when the Evidence Act was enacted, 'affairs of State' may have had a comparatively narrow contents Having regard to the notion about governmental functions and duties which then obtained, 'affairs of State' would have meant matters of political or administrative character relating, for instance, to national defence; public peace and security and good neighbourly relations. But the inevitable consequences of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes, to an increasing extent, activities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State. As the Legislature has advisedly 'refrained from defining the expression 'affairs of State' it would be inexpedient for judicial decisions to attempt to put the said expression into a straight jacket of a definition juducially evolved. The question as to whether any particular document or a class of documents answers the description must be determined in each case on the relevant facts and circumstances adduced before the Court. Subject to the overriding power of the court to disallow the claim of privilege in exceptional cases, the following provide working rules of guidance for the court in a matter of deciding the question of privilege in regard to unpublished documents pertaining to matters of State ; (a) records relating to affairs of State mean documents of State whose production would endanger the public interest, (b) documents pertaining to public security, defence and foreign relations are documents relating to affairs of State, (c) unpublished documents relating to trading commercial or contractual activities of the State are not, ordinarily, to be considered as documents relating to affairs of State ; but in special circumstances they may partake of that character ; (d) in case of documents mentioned in (e) it is a question of fact in each case whether they relate to affairs of State or not in the sense that if they are disclosed, public interest would suffer.95

______________ 92. 93. 94. 95.

M/s. Doypack Systems, Pvt. Ltd. v. Union of India, AIR 1988 SC 782 State of Bihar u. Kripal Shanker, AIR 1987 SC 1554. Chavan Baghamalla v. Y.R. Porapia, AIR 1950 Bom. 230 ; Raj Narain v. Indira Gandhi, AIR 1974 Alld. 324. State of Punjab v. Sodhi Sukhdeo Singh, AIR 1961 SC 493.

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The question is when a part of document is published whether the whole document is a published document or the other part will remain an unpublished document ? It was held by the Allahabad High Court that when a part of document is published the whole of it loses the character of unpublished document.96 The Supreme Court in the very same case observed, 'the next question is whether learned Judge was right in holding the blue book not unpublished official record. On behalf of the election petitioner it was said that the part of the document was published by the Government…..it was also said that the respondent referred blue book in answer filed in the court." Relying upon an English case the Supreme Court said that though some of the papers had been produced before the tribunal and though reference was made to those papers in answer to the petition yet privilege could be claimed. For this two reasons have been given (i) that special precaution may have been taken to avoid public injury, and (ii) the other is that portions of the tribunals may have been secret as a result it was held that mere publication of a part of blue book which may be described as innocuous part of the document will not render the entire document a published one.97 Object and basis of Maxim 'salus populiest suprema lex' is the basis of Section 123.— As a result of Section 123 a document which is material and relevant is allowed to be withheld from the Court and that undoubtedly constitutes a very serious departure from the ordinary rules of evidence. The principle on which this departure is justified is the principle of the overriding and paramount character of public interest. A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that where a conflict arises between public interest and private interest, the latter must yield to the former. Care has however to be taken to see that interests other than the interest of the public do not masquerade in the garb of public interest and take undue advantage of the provisions of Section 123. Subject to this reservation the maxim salus populiest suprema lex which means that regard for public welfare is the highest law, is the basis of the provisions contained in Section 123.98 Privilege—When should be claimed—Procedure.—A privilege against the production of document should not be claimed under Section 123 because it is apprehended that the document if produced would defeat the defence raised by the State. It must be clearly realised that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the Minister in charge of the department, or even the Government in power, has no relevance in making a claim for privilege under Section 123. The sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else. When privilege is claimed concerning a particular document, the court has to

______________ 96. 97. 98.

Raj Narain v, Smt. Indira Gandhi, AIR 1974 Alld. 324. State of U.P. v. Raj Narain, AIR 1975 SC 865. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.

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determine the character or the class of the document. If it comes to the conclusion that the document does not relate to the affairs of the State, it should, reject the claim for privilege and direct its production.99 No Privilege in respect of documents of appointments and transfers of Judges.—In cases where non-appointment of an Additional Judge for a further term or transfer of High Court Judge is challenged the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant noting made by them, could not be said injurious to public interest. Therefore Government cannot claim privilege in respect of such documents under Section 123 Indian Evidence Act.1 Procedure to claim privilege.—Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege ; it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. In such cases the privilege should be claimed generally by the Minister-incharge who is the political head of the department concerned ; if not, the Secretary of the department who is the departmental head should make the claim ; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary the Court may, in a proof case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury. If there are series of documents included in file it should appear from the affidavit that each one of the documents, whose disclosure is objected to, has been duly considered by the authority concerned. The affidavit should also indicate briefly within permissible limits the reason why it is apprehended that their disclosure would lead to injury to public interest. This last requirement would be very important when privilege is claimed in regard to documents which prima facie suggest that they are documents of a commercial character having relation only to commercial activities of the State. If the affidavit produced in support of the claim for privilege is found to be unsatisfactory a further affidavit may be called, and in proper case the person making the affidavit whether he is a Minister or the Secretary should be summoned to face crossexamination on the relevant points. Reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in respect of which privilege is claimed under Section 123. That is a matter for the authority concerned to decide ; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objection to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not. 99.

Orient Paper Mills v. Union of India, AIR 1979 Cal 114.

1.

S.P. Gupta & others v. President of India & others, AIR 1982 SC 149.

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It is well settled that an objection raised by an affidavit be sworn head of the Department. The court may require a Minister to swear. If the court is satisfied with affidavit that the document is privileged the matter ends. If the court would like to satisfy, the court may see the document.2 In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to affairs of State it should leave it to the head of the department to decide whether he should permit its production or not.3 It is perfectly true that in holding an enquiry into the validity of the objection under Section 123 the Court cannot permit any evidence about the contents of the document.4 Who is to decide.—Apparently the section reads that the final authority to decide as to whether a document is privileged, rests with the head of the department concerned. But that is not so. Section 162 of the Act read with the present section makes it clear that the court is the final authority. Privilege under Section 123 in respect of any document only applies to unpublished official records relating to any affairs of State, and before privilege can be claimed there must be an adjudication that the documents in respect of which privilege is claimed, are official records relating to affairs of State. The principle of the section is that it is not all records relating to affairs of State that are privileged but only those the disclosure of which would result in an injury being caused to public interests. The section gives effect to the principle that the public interest must be paramount and private interest must give way when there is any conflict between the two. It must be left to a responsible Government officer to look at the document, to consider it, and to decide for himself whether the document falls in the category of document of State referred to in Section 123, if therefore, having considered the document he tells the Court that the document is one relating to the affairs of State and that the disclosure will be injurious to public safety, the court ordinarily would accept his statement if made on oath. But the statement must not be of a vague or indefinite character. He must not only indicate the nature of document, but he must also state what injury to public interests he contemplates would result from the disclosure of a document. The court may in a proper case be not satisfied with the oath of the deponent and he may be asked to submit himself to cross-examination at the hands of the party claming the disclosure of the documents. But as the head of the department concerned is in a much better position to judge both as to the nature of the document and as to the injury that will be caused to public interests, the court

______________ 2. 3. 4.

State of U.P. v. Raj Narain, AIR 1975 SC 865. State of Punjab v. Sukhdeo Singh, AIR 1961 SC 493 ; Raj Narain v. Indira Gandhi, AIR 1974 Alld.324. State of Punjab v. Sukhdeo Singh, AIR 1961 SC 493 ; Raj Narain v. Indira Gandhi, AIR 1974 Alld. 324.

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treats his objection as conclusive provided the objection is validly and properly taken and is based on material which the court considers adequate. The ultimate adjudication is always by the Court.5 The applicants made a certain complaint against one Munshi Singh, a police officer and on the basis of that complaint, departmental proceeding under Section 7, Police Act was started by the Superintendent of Police. Certain witnesses were examined in that proceeding by the S.P. and they deposed about certain incidents. Subsequently, the applicants were challenged for offences punishable under Sections 147, 323, 325 and 332, I.P.C. read with Section 149, I.P.C. and the same witnesses who had been examined in the proceeding under Section 7, Police Act were examined in the criminal trial. The applicants wanted to cross-examine those witnesses on the basis of their previous statement made in the proceedings under Section 7 of the Police Act as it was their case that the witness, while giving evidence at the trial were stating things which were directly contradictory to what had stated in the course of the proceedings under Section 7 of the Police Act. For the purpose of confronting the witness with their previous statement and in that way contradicting them, the applicants summoned the record of the proceedings under Section 7 of the Police Act which contained the previous statement of the witnesses. The record was summoned from the Superintendent of Police. He sent record in a sealed cover to the Magistrate and claimed privilege under Sections 123 and 124, Evidence Act. The Magistrate conceded the claim of privilege and decided that the applicants were not entitled to have those statements produced. It was held that the question whether the record in question is an unpublished official record relating to any affair of the State must be decided first before Section 123 can be availed of by the head of the department concerned. The question cannot be decided by the head of the department himself. It is the court which must decide whether the record in question is an unpublished record and whether it relates to an affair of the State. Under Section 162 of the Act when the record is required to be produced it must be produced. In order to decide the question the court may inspect the document unless it relates to an affair of the State. In the latter case it will have to take other evidence relating to the nature of the document. But the privilege of deciding whether the document is an unpublished record of an affair relating to the State is that of the Court, and it is the court alone which can deal with the matter. If the court after such evidence as it considers necessary or after seeing the document, comes to the conclusion that the document is not an unpublished official record, or that it does not relate to an affair of the State, there is an end of the matter and Section 123 ceases to apply. If on the other hand, the court comes to the conclusion that the document in question is of the kind maintained in Section 123, that is, it is unpublished official record, relating to any affair of the State, then whether permission should be given to anyone to give evidence on the basis of that document depends on the discretion of the head of the department concerned.6

______________ 5.

Dinbhai v. Dominion of India, AIR 1951 Bom. 72.

6.

Tilak v. State, AIR 1959 Alld. 543.

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[S. 124

Public Officer.—The term 'Public Officer' in this section must be construed to an officer entrusted with public, as opposed to private duties who receives communications made to him in official confidence of such a nature that disclosure in certain cases would injure the public interests.7 Communication made in official confidence.—It is not every official communication that can be regarded as privileged under the section. A communication in official confidence requiring protection under this section must be such as to necessarily involve the wilful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust is reposed under an express or implied promise of secrecy. The test would be whether the disclosure would result in betrayal of the person confiding by the publication of the communication having regard to the nature thereof. The courts have adopted a basic principle for deciding whether a particular document is a communication made in official confidence to a public officer or not, viz, whether a document produced or statement made was under the process of law or not. If the statement is made or the document is produced under the process of law, it cannot be said to be made in official confidence. If on the other hand a document is produced or statement is made in confidential department enquiry not under process of law but for gathering of information by the department for guiding them in the future action, if any, they have got to take, it would be a case of communication made in official confidence.8 SECTION 124.—Official communications.—No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. COMMENTS Scope.—There is marked difference between this section and Section 123. The Section 124 is confined to public officers whereas Section 123 embraces everyone. There are two matters involved in Section 124, Evidence Act. Where the document is a communication made to a public officer in official confidence; where public interest would suffer by its disclosure. The first question is for the court to decide and as for the second the public officer is the sole judge as to whether by disclosure, public interest would suffer. A communication in official confidence requiring protection under this section must be such as to necessarily involved the wilful confiding of secrets with a view to avoid publicity by reason of the official position of the person whom trust is reposed, under express or implied promise of secrecy. Foundation of the claim of the privilege rests on consequences of disclosure of communication made in official confidence whose publication, the officer to whom it is made considers contrary to the public interest.9 In the case of M/s. Dagi Ram Pindi hall v. Triloki Chand Jain,10 it was held that privilege cannot be claimed when court has summoned their

______________ 7. 8. 9. 10.

University of Punjab v. Jaswant Rai, AIR 1946 Lah. 220. In re Killi Surya Narayana, AIR 1954 Mad. 278. R. Ramanna v. State, A.I.R. 1971 A.P. 196. AIR 1992 SC 990

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production. The privilege as to secrecy, which the assessee had acquired under Section 54 of Income Tax Act, 1922 remained unimpaired by the repeal of that Act or even by the omission of Section 137 of the 1961 Act in respect of record filed prior to 1-4-1964 and relating to assessments prior to that date. That privilege did not extend, after April 1, 1964 to record filed before the Income Tax authorities, for the assessment year 1964-65 onwards. A citizen has right to know about the activities of the State. The privilege of the secrecy is which existed in old time that the State is not bound to disclose the facts to citizen does not survive to a great extent. A State can impose restrictions in the matter like fundamental rights, where it affects national security. This restriction cannot be applied to matters like sanitation and other allied matters. Every citizen has right to know how the Government is functioning.11 SECTION 125.—-Information as to commission of offences.—No Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. Explanation.—"Revenue Officer" in this section means any officer employed in or about the business of any branch of the public revenue. COMMENTS Scope.—The law recognises the duty of every citizen to communicate to the Government and its officers the information that offences are being committed. Sometimes the offences are committed so secretly and shrewdly that if the neighbours of the person committing the offence do not inform the Government officers about them, they can never be detected. For the safety of the informers it is necessary that their names should be kept secret. If his name is disclosed the offenders would certainly cause him injury and nobody would like to inform a public officer that an offence is being committed in his neighbourhood. Section 125 has been enacted to safeguard the interests of such informers. Principle.—Section 125 lays down that when a police officer or a Magistrate starts a case he cannot be compelled to say as to who gave him the information that the offence was being committed, and similarly a revenue officer cannot be asked as to where he got the information. SECTIQN 126.—Professional communications.—No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional

______________

11. L.K. Koolwal v. State of Rajasthan, A.I.R. 1988 Raj.2.

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employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure— (1) any such communication made in furtherance of any illegal purpose; (2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.—The obligation stated in this section continues after the employment has ceased. ILLUSTRATIONS (a) A, a client, says to B, an attorney—"I have committed forgery and I wish you to defend me." As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure. (b) A, a client, says to 8, an attorney—"I wish to property by the use of a forged deed on which 1 request you to sue."

obtain

possession

of

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure. (c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. Legal practitioner not to disclose communication.—By reason of the complexity of law, litigation can only be properly conducted by professional men. A litigant, in order to get a correct legal opinion and to make his vakil or pleader fully conversant with the facts of his case, has to make a clean breast. A man of legal profession, is forbidden from disclosing without his client's consent (1) any communication made to him in course of and for the purpose of his employment, or (2) the contents of conditions of any document which came to his knowledge in the course of and for the purpose of his employment; or (3) any advice by him to his client in the course of and for the purpose of such employment. The counsel has right to claim privilege and refuse to show the statement of witnesses recorded by the court in extenso and supplied to him in order to

Page 539

S. 126]

OF WITNESSES

prepare himself for an effective cross-examination, if he has recorded instructions of his client on these statements.12 In M. Yovas and others v. Immanual Joseph and others,13 the advocate of the opposite party was summoned as witness to prove : (1) that one of the plaintiff sent a letter to him after the commencement of legal proceeding between the same party, (2) to prove that the said advocate suggested some compromise proposal to the plaintiff. The Kerala High Court held that the refusal to issue the summon to the advocate was proper. In P.G. Anant Sayanam v. Miriyala Sethu Raju and other,14 Advocate was sought to be summoned to prove sending of notice to defendant. It was held by Andhra Pradesh High Court that since the contents of notice had already been communicated, the contents of notice in no way was confidential. The privilege in respect of professional communication under Section 126 was not available. But the communications would not be privileged (1) when such communications are for an unlawful purpose having for their object the commission of a crime [illustration (b)] ; (2) when after employment of the lawyer he observes that some crime has been committed [illustration (c)]. This section has been enacted for the protection of the client and not of the lawyer. The lawyer is therefore bound to claim the privilege unless it is waived by his client. English and Indian law.—The Law relating to professional communications between a legal practitioner and client is the same in India as in England with the exception that in England the words 'criminal purpose' are used for the words 'illegal purpose' used in Section 126. The rule is limited to legal adviser.—Legal advisers alone are within the rule. Barristers, attorneys, pleaders, vakil and mukhtars are all prevented from disclosing the communication.15 No privilege attaches to communication to an attorney or pleader consulted as a friend and not as an attorney or pleader. During the existence of the relationship.—The bar does not apply to communications made before the relationship came into existence or after it has ceased. But if the communication is made during the existence of the relationship the privilege does not get terminated by the termination of the litigation or the death of the parties.16 Oral or documentary.—The privilege applies to all communications oral or documentary made in course of and for the purpose of employment as legal adviser.17 The complainant sent a notice through an advocate to the accused, the advocate of the accused dictated a reply of the notice to his clerk. The letter contains imputation concerning the complainant and was sent to the advocate of

______________ 12. 13. 14. 15. 16. 17.

Suptd. & Remembrancer Legal Affairs W. B. v. S. Bhowmick, AIR 1981 SC 917; 1981 Cr. LJ 341. AIR 1996 Ker. 1. AIR 1998 A.P. 335. Miajan v. Emperor, AIR 1933 Cal. 5. Ayeasha v. Peerkhan, AIR 1954 Mad. 741. Ibid.

Page 540

EVIDENCE ACT

[S. 127

the complainant, it was held that the communication was only to the complainant and there was no publication.18 Joint interest.—No privilege attaches to communication between solicitor and client as against persons having a joint interest with the client in the subject-matter of communication, e, g. as between partners, a company and its shareholders. Waiver.—The privilege given by this section can be waived by the client and not by the legal adviser. The waiver consists in the express consent of the client. If the client gives his consent the communication so made may be disclosed by the vakil otherwise not.19 Sections 22 and 3 of Right to Information Act and Section 126 of Evidence Act.— Even though the RTI Act seems to be a special statute, the provisions contained therein are general in nature. The same principle cannot be applied to Section 126 of Evidence Act which appears to be a special provision in a general law. RTI Act is aimed at and intended to obtain information from the public authorities whereas Section 126 of the Evidence Act deals with the client-lawyer relationship in their inter se professional dealings. Section 126 of Evidence Act is a special provision in a general law. Section 3 read with Section 22 of RTI Act is a general provision in the special statute. Section 126 of Evidence Act is not obliterated. It has to be given effect to notwithstanding RTI Act.20 SECTION 127.—Section 126 to apply to interpreters, etc.—The provisions of Section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils. SECTION 128.—Privilege not waived by volunteering evidence.—If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented, thereby to such disclosure as is mentioned in Section 126 ; and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose. COMMENTS Scope.—Section 126 lays down that a lawyer is not permitted to disclose a certain kind of communication without the consent of the client. The section lays down : (1) that if the client who made some secret communication to a lawyer appears as witness, he does not waive the privilege afforded by Section 126. He cannot be cross-examined on the subject, nor the lawyer can be called to depose about the communication ; (2) mere calling of the lawyer as a witness also does not amount to waiver of the privilege and lawyer cannot disclose the communication.

______________ 18. 19. 20.

P.R. Ramakrishan v. Subba Ramma, A.I.R. 1988 Ker. 88. Shivacharan Das. v. Golabchand, AIR 1936 Alld. 157. Karamjit Singh v. State of Punjab AIR 2010 (NOC) 699 (P & H).

Page 541

S. 130] OF WITNESSES

But if the client calls the lawyer as a witness and puts him questions in respect of the communication, his consent would be deemed and then the lawyer would be permitted to disclose the communication. SECTION 129.—Confidential communications with legal advisers.— No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others. COMMENTS Waiver.—The privilege mentioned in Section 126 is designed to secure the client's interest. Therefore the privilege is not violated by the disclosure of the communication, if the client himself does not wish to be kept secret and wants to make it public. So in respect of this privilege it has always been recognised that a waiver may be made. Waiver of this privilege may be by express consent under Section 126 or it may be conduct under Section 128. The mere fact that the client (who made secret communication to his vakil) appears as a witness in the case to offer his testimony at large, will not amount to waiver. And on that account the opposite party will not be entitled to cross-examine him about the communication nor will he be entitled to summon the lawyer to depose about it. To hold otherwise would mean that a person can claim the privilege only when he suffers the penalty of closing his mouth about his case. The client's offer of his own testimony as to specific facts about which he has happened to communicate with the attorney is not waiver.21 Similarly if the client examines the attorney at large, on the facts, which the attorney knew as an ordinary man there is no waiver because the attorney has been examined as an ordinary man and not as an attorney. But the client's offer of his attorney's testimony as to the specific communication to the attorney amounts to a waiver as to all other communications to the attorney on the same matter. The client's offer of own attorney's testimony as to part of any communication to the attorney is a waiver as to the whole of that communication. Once the privilege is waived, the waiver cannot be recalled. The evidence is shut out at the option of the client only and if he elects at any time to remove the seal from the lips of the witness the evidence may be received. The client cannot say that he may refer to a part of the communication and yet his adversary cannot refer to the other. The objection having been defeated voluntarily by the party for whose benefit it was enacted there can be no reason for its enforcement in such a case. SECTION 130.—Production of title-deeds of witness, not a party.— No witness who is not a party to a suit shall be compelled to produce

______________ 21.

Dootar Jha v. Ranjit, 15 WR 340.

Page 542

EVIDENCE ACT

[S. 131

his title-deeds to any property, or any document in virtue of which he holds any property, as pledgee or mortgagee, or any document the production of which might tend to criminate him unless he has agreed in writing to produce them with the person seeking the production of such deeds of some person through whom he claims. COMMENTS Scope.—A witness cannot be compelled to produce title-deeds or a mortgage-deed in a case to which he is not a party. If a deed required to be produced is not a title-deed, a witness can claim protection under Section 130 only if the production of the deed might tend to incriminate him. It must be borne in mind that if the witness has agreed in writing to produce them with the person seeking the production, he may be compelled to produce them. SECTION 22[131.—Production of documents or electronic records which another person, having possession, could refuse to produce.—No one shall be compelled to produce documents in his possession or electronic records under his control which any other person would be entitled to refuse to produce if they were in his possession or control, unless such lastmentioned person consents to their production] COMMENTS Scope.—This section intended for the protection of persons whose documents are in possession of some other person such as their attorney, Vakil, etc. SECTION 132.—Witness not excused from answering on ground that answer will criminate.—A witness shall not be excused, from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly, to expose, such witness to a penalty or forfeiture of any kind : Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution or be proved against him, in any criminal proceeding except a prosecution for giving false evidence by such answer. COMMENTS Witness not compellable to answer question—Principle.— According to the English Law it is settled rule that a witness is not to be compelled to answer any question, the answering of which has a tendency to expose him to a criminal prosecution or to proceedings for penalty or for a forfeiture even of an estate or interest. The privilege is on the principle of encouraging all persons to come forward with evidence. This privilege was repeated in India by Section 32 of Act 11 of 1885 which is reproduced in the present section. The state of law while the privilege existed, tended in some cases to bring about a failure of justice, for the allowance of the excuse, where

______________ 22.

Subs, by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.

Page 543

S. 132]

OF WITNESSES

the matter to which the question related was in the knowledge solely of the witness, deprived the court of the information which was essential to its arriving a right decision. In order to avoid this inconvenience and to obtain evidence which a witness refused to give, the witness was deprived of the privilege of claiming the excuse. But while subjecting him to compulsion, the Legislature, in order to remove any inducement to falsehood, declared that evidence so obtained should not be used against him except for prosecution for perjury. Compellable witness—Scope.—This section abolishes the law of privileges and creates an obligation of a witness to answer every question, material to the issue, whether the answer criminates him or not and gives him a right, as correlated to that duty to claim that answer shall not be admitted in evidence against him in criminal prosecution. Under this section, it is not in power of the Judge to excuse a witness from answering if the question is relevant to the issue. Proviso.—The proviso to the section lays down that if a witness is compelled to give an answer he shall not be liable for arrest or prosecution on that statement and that the statement will not be proved in any criminal proceeding except for perjury for that very statement. It should be borne in mind that a witness is protected only if he gives the answer under compulsion. If he answers voluntarily he loses the protection. "Compelled to give"—The section makes a distinction between those cases in which a witness voluntarily answers a question and those in which he is compelled to answer ; and the protection is granted in the cases in which he is compelled to answer. When a witness objects to a question being put to him or when he asks the court to be excused from giving answer but he is compelled to give answers, he is said to be compelled to give evidence. As those words stated, they suppose an objection from the witness which has been over-ruled by the judge and a constraint put upon the witness to answer the particular question. Where the complainant and his witnesses sworn as witnesses gave certain answers containing defamatory matter in their examination-in-chief without any protest or hesitation and without begging to be excused from answering the questions put to them, it cannot be said that they were compelled to give answers within the meaning of the proviso to Section 132, Evidence Act so that they are not entitled to claim the protection of the proviso and can be prosecuted for defamation and the accusation made by them in their depositions can be proved against them. The compulsion referred to in the proviso does not include the compulsion by the general or common law of the land ; there should be special compulsion by the presiding officer of the Court. The fear of punishment under Section 179, I.P.C., does compel a witness to answer questions, but this is a compulsion which acts against every witness and is inherent in the very idea of a person, being a witness. There cannot be witness who is not so compelled ; when still Section 132, refers to a witness being compelled to answer a certain question, it

Page 544

EVIDENCE ACT [S. 133

evidently refers to some other compulsion, e.g., compulsion with special reference to the question. The giving of evidence is a matter of duty and not of compulsion and the duty cannot be treated as compulsion within the meaning of the proviso. The compulsion contemplated by the proviso must arise out of the refusal of his prayer to be excused.23 Moreover, the provisions of Proviso to Sec. 132 clearly protect a witness from being an accused on the basis of the answers given by him in a criminal proceeding which lend to criminate him directly or indirectly. In view of this provision, the apprehension that evidence of accused as approver will be used against him in other four criminal cases where he figures as an accused is without any basis. On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case. State (Delhi Administration) v. Jagjit Singh.24 Statements made by person during investigation under—Section 161, Cr. P. Code.— Section 132, Evidence Act does not apply to a statement made by a person during an investigation under Section 161, Cr. P. Code. An investigation under Chapter XIV, Cr. P. Code may be a proceeding but is certainly not a suit or a civil or criminal proceeding. A person who is interrogated under Section 161 by a police officer making an investigation is not a witness. The word 'witness' used in Section 132, Evidence Act, does not refer to any interrogatee examined by a police officer under Section 161 ; it refers only to a person who enters the witness-box and is sworn as a witness. So defamatory statement made by a person in answer to interrogatories during investigation under Section 161 are not protected under Section 132, Evidence Act.25 SECTION 133.—Accomplice.—An accomplice shall be a competent witness against an accused ; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. COMMENTS Accomplice who is.—An accomplice is one concerned with another or in others in the commission of a crime. The term 'accomplice' may include all particeps criminis. An accomplice is a person who is a guilty associate in crime or who sustains such a relation to the criminal act that he can be jointly indicted with the principal criminal.26 A witness is an accomplice even if at the time of giving evidence he has already been convicted on his own confession.27 The word 'accomplice' has not been defined by the Act and should,

______________ 23. 24. 25. 26. 27.

Chotkan v. State, AIR 1960 Alld. 606. AIR 1989 SC 598. Haji Ahmad Hussain v. State, AIR 1960 Alld. 623. State v. Ocurli, AIR 1957 Alld. 53; Chanda v. Emperor, AIR 1945 Nag.143. Vankurutham v. State of Orissa, AIR 1952 Orissa 164.

Page 545

S. 133] OF WITNESSES

therefore, be presumed to have been used in its ordinary sense. An accomplice means a guilty associate or partner in crime, or who in some way or other is connected with the offence in question or who makes admissions of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged he cannot be said to be accomplice in the crime.28 Categories of accomplices.—As stated above, in order to be an accomplice, a person must participate in the commission of the same crime. This participation may be done in various ways. The modes of taking part with a crime are treated under the head of (1) principals in the first degree or second degree (2) and accessories before the fact or (3) after the fact.29 (1) Principals in the first and second degree.—A principal of the first degree is one who actually commits the crime. A principal of the second degree is a person who is present and assists in the perpetration of the crime. These persons are undoubtedly under all the circumstances accomplices.30 (2) Accessories before the facts.—An accessory before the fact is one who counsels, incites, connives at, encourages or procures the commission of the crime. Of these persons, those who counsel, incite, encourage or procure the commission of the crime are certainly accomplices. As for the persons who do nothing but only connive at are not accomplices. All accessories before the fact, if they participate in the preparation for the crime are accomplice but if the participation is limited to the knowledge that a crime is to be committed they are not accomplices. Persons to be accomplices, must participate in the commission of the same crime as the accused persons in a trial are charged.31 (3) Accessories after the fact.—Every person is an accessory after the fact to a felony, who knowing that a felony has been committed by another person receives, comforts or assists him in order to escape from punishment; or rescues him from arrest, or having him in custody for the felony, intentionally and voluntarily allows him to escape, or opposes his arrest. Three conditions must unite to render one an accessory after the fact : (1) the felony must be complete; (2) the accessory must have the knowledge that the felony has been committed ; (3) the accessory must harbour or assist the principal felon. Persons seeing the offence being committed if associate after the fact.—There is no warrantee for the extreme proposition that if a man sees the perpetration of the crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he would be put in the dock with the actual criminals. Though such a person cannot strictly be termed as an accomplice, there can be no doubt that evidence of such a man should be scanned with such caution.32 Thus it is clear that such person though technically not an accomplice, his position is not superior to that of an accomplice.

______________ 28. 29. 30. 31. 32.

AIR 1942 Oudh 221. AIR 1942 Oudh 221. Ismail v. Emperor, AIR 1947 Lah. 220. AIR 1942 Oudh 221. Vernereddy v. State of Hydrabad, AIR 1956 SC 379.

Page 546

EVIDENCE ACT

[S. 133

Accomplice and Co-accused.—(1) An accomplice is a person who is guilty associate in crime. He may be a Principal in the First Degree or of Second Degree. He may be an accessory before the fact or after the fact. A co-accused is the person who is accused of having committed a crime with another person. He may be an accomplice or he may not be an accomplice because accomplice is the person who is guilty associate in crime. (2) When an accomplice is pardoned under Section 306 of Cr. P.C., he becomes a Government witness. If on the evidence of an accomplice only, the accused is convicted, his conviction is not illegal but as a rule of prudence, ordinary the Court requires corroboration of his evidence under Illustration(b) of Section 114 of Evidence Act. (3) The evidence of a co-accused is a very weak evidence. No conviction can be based of an accused only on the confession of a co-accused but under Section 30 of the Evidence Act, the evidence of co-accused can be used only to corroborate other evidence on record if the confession affects himself as well as some other accused person. Reliance at the testimony of.—Section 133 lays down that an accomplice is a competent witness and a conviction based on the sole testimony of an accomplice is not illegal. Contrary to this illustration (b) to Section 144, Evidence Act lays down that an accomplice is unworthy of credit unless he is corrborated in material particulars. The established rule of law relating to the evidence of an accomplice, is "whilst is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence to be universally followed as to amount to a rule of law that the courts ought not to pay any respect to the testimony of an accomplice unless he is corroborated in material particulars.33 So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established rule of prudence that the testimony of accomplice, if it is thought reliable as a whole, conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime. Accompliance and approver.—An accomplice may be an approver also. Approver is an accomplice who is tendered pardon by the Court on condition of making a full and true disclosure of the whole circumstances of the case. Approver has been dealt with under the provisions of Section 306 of Cr. P.C. He is known under Cr. P.C. as an accomplice to whom the Court grants the pardon. Thus an 'approver' is always an 'accomplice' but an 'accomplice' is not necessarily an approver. Section 306 of Cr. P.C. is as follows : Section 306. Tender of pardon to accomplice.—(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of ______________ 33. Madan Mohan v. State of Punjab, AIR 1970 SC 1006.

Page 547

S. 133] OF WITNESSES

his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2)This section applies to— (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3)Every Magistrate who tenders a pardon under sub-section (1) shall record— (a) his reasons for so doing ; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (1)— (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,— (a) commit it for trial— (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate ; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. The approver's evidence is looked upon with great suspicion. But if found trustworthy it can be decisive in securing conviction.34 In the case of Chandan v. State of Rajasthan.35 The evidence of witness participating in test identification parade but not examined at trial, is not sufficient to corroborate evidence of accomplice approver, therefore, conviction was set aside. ______________ 33.

Jasbir Singh v. Vipin Kumar Jaggo, AIR 2001 SC 2734.

34.

AIR 1988 SC 599.

Page 548

EVIDENCE ACT [S. 133

An approver bargains his immunity so he must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be natural and probable catalogue of events that had taken place ; secondly, when the hurdle is crossed, the story given by the approver so far as the accused on trial is concerned must implicate him in such manner as to give rise to a conclusive of guilt beyond reasonable doubt.36 Combined effect of Secs. 133 and 114.—The evidence of an accomplice is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused. It does not mean that the evidence of an accomplice can never be relied upon. Section 133 has to be read along with Section 114 (b). The rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence.37 Test for appreciation of evidence of approver, corroboration in material particulars and qua each accused is essential. Corroborative evidence need not prove the offence against the accused. It is not necessary that there should be independent corroboration of every material circumstances. Corroborative evidence must be independent testimony connecting the accused with crime. It can be direct or circumstantial. Sufficiency of corroboration depends upon facts and circumstances of each case. On facts of this case it was held that evidence of approver is amply corroborated by other evidence. An accomplice namely the guilty associate of crime is competent witness. Section 133 lays down that conviction can be based on uncorroborated testimony- of an accomplice is not illegal but rule of guidance indicated in Ill. 5 of Section 114 has resulted in settled practice to require corroboration of evidence of an accomplice and which has now virtually assumed the force of law. The word 'accomplice' has not been defined by the Evidence Act and it is generally understood that an accomplice means a guilty associate or partner in crime. An accomplice by becoming an approver becomes prosecution witness. An approver's evidence has to satisfy double test: (1) his evidence must be reliable ; (2) his evidence should be materially corroborated.38 The combined effect of Sections 114 (b) and 133 is that conviction can be based upon uncorroborated testimony of an approver. Section 114 (b) incorporates a rule of caution to which the courts should have regard. ILLUSTRATIONS Haribansh Singh, Gurudial Singh, Sarwan Singh and Banta Singh, were accused of committing the murder of Gurudeo Singh. Haribansh and Gurudeo were brothers. Haribansh was shirker and waster. Gurudeo tried to improve Haribansh. He resented and began to plan Gurudeo's murder. Gurudial, Sarwan and Banta concealed their presence in bushes. Haribansh persuaded his brother to go there. When he reached there

______________ 36. 37. 38.

Ravindra Singh v. State of Haryana, AIR 1956 SC 856. Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, AIR 2007 SC 794 at 796. Suresh Chandra Bahri v. State of Bihar, AIR 1995 SC 2420.

Page 549

S. 133] OF WITNESSES

three persons emerged from their place of concealment and attacked Gurudeo Singh. Haribansh Singh also reached and joined in the assault. The other persons were tried but Banta Singh, became an approver and was examined as a witness at the trial. It was held that "An approver is undoubtedly a competent witness .under the Evidence Act. But the appreciation of his evidence has to satisfy a double test. (1) His evidence must show that he is reliable witness and that is test which is common to all witnesses, if this test is satisfied the second test which still remains to be applied is (2) that approver's evidence must receive sufficient corroboration. This test is special to cases of weak or trained evidence like that of the approver.39 Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by Criminal Courts. Thus the judgment of a court, would suffer from serious infirmity if in dealing with the evidence of the approver, the court does not appear to have addressed itself to the preliminary question as to whether the approver was a reliable witness or not. Courts are naturally reluctant to act on the tainted evidence of an approver unless it is corroborated in material particulars by other independent evidence. But it would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted, it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.40 In a case under Section 300, I.P.C. where there is plenty of corroborating evidence on record and the prosecution has been able to recover weapons of the crime from the accused at the instance of the accused and also lending reassurance by way of corroboration to evidence of approver, the conviction of death sentence awarded cannot, therefore, be said to be inappropriate.41 Retracted confession and approver's evidence.—Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient, while an accomplice's evidence should be corroborated in material particulars. In addition the court must see that the reason given for the retraction in the case of confession are untrue.42

______________ 39. 40. 41. 42.

Lal Chand v. State of Haryana, AIR 1984 SC 226. Chellappan v. State of Kerala, AIR 1979 SC 1761, State (Delhi Adminis). v. B.C. Shukla, AIR 1980 SC 1382. Ranjeet Singh v. State of Rajasthan, AIR 1988 SC 672. Subramania Goundan v. State of Madras, AIR 1958 SC 66.

Page 550

EVIDENCE ACT [S. 133

When compared to a retracted confession and to an approver's evidence dying declaration stands on a very high level. Corroborations are needed in the two cases but in the case of dying declaration it cannot be laid down as an absolute rule that a dying declaration cannot form the sole basis of conviction unless corroborated.43 The corroboration by independent evidence.—The corroboration of the testimony of an accomplice must be by some independent evidence. The previous statements of the accomplice even recorded under Section 164, Cr. P.C. cannot be used for the corroboration of his testimony because an accomplice cannot corroborate himself.44 Corroboration by another accomplice.—The evidence of one accomplice cannot be used for the corroboration of the evidence of another accomplice.45 The nature and extent of corroboration.—A corroboration does not mean that there should be independent evidence of all the facts which have been related by an accomplice. "Indeed if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential in the case." To count as corroboration, it is not enough that a piece of evidence merely supports that the accomplice is credible but it must go a little further and implicate the accused. The corroboration of an accomplice is of two kinds : the first one is that corroborating evidence which ensures that the approver is trustworthy ; and the second which arises for conclusion to the corroboration in material particulars not only of the commission of crime but also of complicity of other accused persons in the crime.46 The rules of corroboration of an accomplice may be stated as follows :— (1) It is not necessary that the story of the accomplice should be corroborated in every detail of the crime since if this were so the evidence of the accomplice would be unnecessary. (2) The corroboration need not be by direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the prime. (3) The corroborative evidence must be one which implicates the accused, i.e. which confirms in some material particulars not only the evidence that the crime was committed but also that the accused committed it. (4) The corroboration must be by some evidence other than that of another accomplice.47 As regards corroboration of accomplice witnesses, it is not necessary that there should be independent corroboration of every material circumstance. All

______________ 43. 44. 45. 46. 47.

Kushal Rao v. State of Bombay, AIR 1958 SC 22. Bhuboni Sahu v. The King, AIR 1949 PC 257. Mahadeo v. King, AIR 1936 SC 242. Balwant Kaur v. Union Territory of Chandigarh, A.I.R. 1988 S.C. 139; Chandan v. State of Rajasthan, 1988 Cr. L.J. 842 : A.I.R. 1988 S.C. 599. Husain Umra v. Dilip Singh, AIR 1970 SC 45; Seheshanna, v. State of Maharashtra, AIR 1960 SC 1330.

Page 551

S. 133]

OF WITNESSES

that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. The corroboration need not be by direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime.48 What the law requires in the case of an accomplice's evidence is that there should be such corroboration of the materiel parts of the story connecting the accused with the crime as will satisfy reasonable minds, that the approver can be regarded as a truthful witness. The corroboration need not be direct evidence of the commission of offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient and the nature of corroboration will depend on and vary with the circumstances of each case.49 Bribe givers.—A person who offers a bribe to a public officer is an accomplice in the offence of taking of illegal gratification.50 Persons who actually pay bribe or co-operate in such payment or are instrumental in the negotiations for the purpose, are also accomplices of the person bribed. When a person gives a bribe to a public servant with a view to induce him, to abstain from doing his duty and to the detriment of a third person, the bribe-giver is equally guilty with the bribe-taker, as their common intention is to defraud a third party. He is an immoral person and has little sanctity for the oath. His evidence requires a greater amount of corroboration. On the contrary where a person who is compelled by force of circumstances to give bribe to a public servant to induce him to do just his plain duty which he refuses to do otherwise, the degree of immorality involved is considerably less on the part of the bribe-griver and his credibility would stand on a higher footing.51 Trap or Decoy witness.—There are various types of bribe-givers. There is at one end the unblushing giver who pays the bribe and gets an advantage, and subsequently gives evidence for some ulterior purpose. He is an accomplice of the darkest kind. At the other extreme is the person, who from the very beginning has no intention of giving a bribe, but makes show of doing it, so as to bring the dishonest public servant to book. Between the two there are many gradations. There is the giver, who goes half way with the intention of paying, but for some reason beyond his control thinks it safe to report to the authorities to pay the bribe makes himself the instrument of the authority in bringing the dishonest public servant to book. Value of the evidence of a trap witness.—The evidence of witnesses not a willing party to giving of bribe to accused but only actuated with the motive of trapping the accused cannot be treated as the evidence of accomplices. Their evidence is nevertheless the evidence of partisan witnesses who were out

______________ 48. 49. 50. 51.

State of Bihar v. Basavan Singh, AIR 1958 SC 500; Raman Lal v. State of Bombay, AIR 1960 SC 961. K.K. Jadava v. State of Gujarat, AIR 1966 SC 82. Pyare Mohan v. State, AIR 1956 Alld. 358. State v. Keshava Lal, AIR 1951 Sau 25; Shri Niwas Mall v. Emperor, AIR 1947 PC 135.

Page 552

EVIDENCE ACT [S. 133

to entrap the accused. Their evidence cannot be relied upon without independent corroboration.52 But it has been laid down that Sheo Bahadur's case does not lay down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration. The correct rule in this : if any of the witnesses are accomplices who are particieps criminis (who take part in the crime) in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated ; if they are not accomplices but are partisans or interested witnesses, who are concerned in success of the trap their evidence must be tested in the same way as other interested evidence is tested by application of diverse considerations which must vary from case to case and in proper cases the court may look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness he cannot claim any higher status and must be treated as any other interested witness.53 A distinction has to be made between various kinds of traps or payments of bribes. There may be a case in which a bribe is going to be paid in the normal course of business by some man of the public and on information being received by the police or a Magistrate a trap is arranged for watching this normal course of transaction. No legitimate objection for laying such a trap can be made. But there may be another case in which there is no intention of the bribe-giver to pay any bribe and if is only the police which wants that a bribe should be given in order that an offence may be staged and detected. Thus there are two types of traps— "a legitimate trap", where the offence has already been born and is in its course and an “illegitimate trap" where the offence has not yet been born and a temptation is offered to see whether an offence would be committed succumbing to it or not. Thus where the bribe has already been demanded from a man and the man goes out offering to bring the money but goes to the police and the magistrate and brings them to witness the payment, it will be a legitimate trap. But where a man has not demanded a bribe but he is only suspected to be in the habit of taking bribe and he is tempted with a bribe just to see whether he would accept it or not and to trap him if he accepts it, it would be illegitimate trap.54 In the case of Sadashiv Mahadeo Yavaluaje & Gajanan Shripatrao Salokhe v. State of Maharashtra,55 both the courts below convicted the accused No. 1, a head constable for an offence under Section 161, I.P.C and accused No. 2, a constable under Section 165-A, IPC read with Section 5 (i) (d) and (2) of Prevention of Corruption Act. In the above case actually the amount was not directly given to accused No. 1 but it was paid to accused No. 2 to be paid to accused No. 1 when the trap was laid. Supreme Court held that the Lower Courts so far as the accused No. 1 is concerned have drawn an inference from the subsequent conduct of the accused, after the trap was laid. Apparently

______________ 52. 53. 54. 55.

Sheo Bahadur Singh v. State of Uttar Pradesh, AIR 1954 SC 322. State of Bihar v. Basavan Singh, AIR 1958 SC 500. M.S. Mohiuddin's case, AIR 1952 Mad 561. AIR 1990 SC 287.

Page 553

S. 133] OF WITNESSES

such an inference could not be drawn because if the accused was really involved in the matter after the trap was laid and money was recovered from accused No. 2 it will be nothing but failure of the trap against accused No. 1. The assurance to the complainant to settle the matter, according to the Prosecution own case and the evidence of complainant this arrangement was finally settled at the house of accused No. 1. Admittedly the accused No. 2 was not there nor it is alleged that he had any knowledge about this settlement. Under these circumstances it could not be held that accused No. 2, accepted this amount for any purpose. At best the complainant told him to pass money on to accused No. 1. He accepted it but on that basis it could not be held that he was sharing the intention with accused no. 1 or acting on his behalf. The conviction and sentence against both the accused therefore, were set-aside.) In the case of a legitimate trap the officers taking part in the trap, and the witnesses to trap would in no sense be accomplices and their evidence will not require to be corroborated as a condition precedent for conviction, though the usual way of prudence will require the evidence to be scrutinised carefully and accepted as true before a conviction can be had. It does not seem to be the law that if the money given as a bribe is provided by a particular officer of the police, then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion. Thus where the police or anybody else has not done any act in order to oblige any particular person but it is one of those cases where a complaint was made to the police thereupon provided the money and were witnesses to the passing of the money, their evidence may be accepted.56 As regards the illegitimate trap unless authorised by an Act of Parliament it will be an offence on the part of the persons taking part in the trap, who will all be accomplices whose evidence has to be corroborated.57 There is no rule of law that an independent and reliable witness becomes partisan witness or an accomplice only because he joins a pre-arranged raid. In the absence of anything to warrant a contrary conclusion conviction is not bad because it is based on the testimony of such a witness.58 Where circumstances justify a court can refuse to act upon the testimony of trap witnesses without corroboration. On the other hand a court may convict on an uncorroborated testimony of trap witnesses if the court is satisfied on their truthfulness.59 Evidence of prosecutrix.—Mst. Purni, a girl of 8 years of age, was living with her mother, Mst. Ghisi, in a house which was situated in the same locality as and opposite to that of the accused Rameshwar, On.23rd October, 1946, sometime in the afternoon, when the incident took place, Mst. Ghisi

______________ 56. 57. 58. 59.

Ramlal v. State of Bombay, AIR 1960 SC 961. State v. Har Prasad Sharma, AIR 1958 Alld. 334 ; Ram Jonam Singh v. State of Bihar, AIR 1956 SC 643. Maha Singh v. State, AIR 1976 SC 449. Prakash Chand v. State, 1979 Cr. LJ 329 ; AIR 1979 SC 400 ; Hazari Lal v. State (Delhi Adminis.), AIR 1980 SC 873.

Page 554

EVIDENCE ACT [S. 133

happened to be away. Mst. Purni was playing outside her house alongwith two other girlfriends, namely, Mst. Rukamani a girl of 14 years of age, and Mst. Shanti. It was stated that while these girls were playing together the accused Rameshwar, standing on the roof of his own house, called them. Out of the three girls he took Mst. Purni to his room. In the room there was a cotton mattress on which Mst. Purni was made to lie and attempt was made by the accused to ravish her. She tried to cry but her mouth was gagged and after the act was over she was allowed to go away. After coming down from house of Rameshwar she went to chabutara of his house and was found lying there. When her mother, Mst. Ghisi returned from the field at about 4 p.m. Mst. Purni narrated to her what had happened. At the trial the only direct legal evidence was the statement of Mst. Purni about the incident. Besides this, there was evidence of Mst. Ghisi about the facts narrated to her by Mst. Purni. The statement of Mst. Purni could not be discarded on its face value. Being only 8 years of age it was not possible for her to concoct. She knew Rameshwar very well. There was no occasion for her to mistake the identity of the accused. She was believed to be the witness of truth. The question, therefore, was whether conviction could be based on the sole testimony of Mst. Purni or "whether in law a corroboration of the statement of victim was necessary", and "whether the statement of Mst. Ghisi, which was a narration of the facts recited to her by Mst. Purni is sufficient to constitute corroboration." It was held that the rule, which according to the cases, had hardened into one of law, is not that corroboration is essential before there can be conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with, it must be present to the mind of the judge, and in jury cases must find place in the change, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of sexual offence coupled with other circumstances appearing in the case such, for example, as its demeanour, unliklihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. Further, when corroborative evidence is produced it also has to be weighed and in a given case as with other evidence even though it is legally admissible for the purpose on one hand, its weight may be nil. It was further laid down that "it would be impossible," indeed it would be dangerous, to formulate the kind of evidence which should, or would be regarded as corroboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear :— "1. It is not necessary that there should be independent confirmation of every material circumstances in the sense that independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in

Page 555

S. 133] OF WITNESSES

itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice or complainant is true and that it is reasonably safe to act upon it. 2. The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or the complainant that the accused committed the crime. 3. The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. 4. The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime."60 In the Indian setting, refusal to act on the testimony of a victim of a sexual assault in the absence of corroboration as a rule, is adding an insult to injury. Like the evidence of any other injured witness the evidence of a girl or woman raped or molested should bear weight. A girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect her chastity had ever occurred.61 In another case Supreme Court has observed that the evidence of a prosecutrix should be treated as the evidence of an accomplice requiring corroboration. If a judge finds that there is no need for corroboration he should give reason. It has been also observed that conviction based on sole testimony of a raped woman is not illegal. Their Lordships have made a distinction between minor and major prosecutrix. In the case of a grown up and married woman corroboration is necessary, wherever corroboration is necessary it should be from independent source but it is not necessary that every part of evidence should be corroborated in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both.62 In Narain Chet Raj Chaudhary v. State of Maharashtra,63 it was held by the Supreme Court that though conviction based on the testimony of accomplice cannot be said to be illegal, yet the Court will, as matter of practice, not accept the evidence of an accomplice without corroboration in material particulars. In this case, the statement of accomplice was vivid and inspired confidence of the court to pass conviction of the accused for the offences with which they were charged. The corroborative evidence to the aforesaid statement left no doubt in the mind of the court regarding the involvement of appellant in commission of crime which they have been convicted and sentenced. Such conviction on basis of testimony of an accomplice is not liable to be set aside. The Law in England.—This branch of law is the same in England as in India. One Baskarville had been convicted of having committed acts of gross

______________ 60. 61. 62. 63.

Rameshwar v. State of Rajasthan, AIR 1952 SC 54. Bhoginbhai Hirzinbhai v. State of Gujrat, AIR 1983 SC 753; Krishan Lal v. State of Haryana, AIR 1980 SC 1252. Sheikh Zakir v. State of Bihar, AIR 1983 SC 911. AIR 2001 SC 3352.

Page 556

EVIDENCE ACT

[S. 134

indecency with two boys. Those two boys were the main witnesses in the case. Those two boys were consenting parties and no force was used in committing the offence. "These boys were accomplices because they were freely consenting parties and there was no use of force." It was held that there is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But it has long been a rule of practice at common law for the Judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of accomplice or accomplices and in the discretion of Judge to advise them not to convict upon such evidence, but the Judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. This rule of practice has become virtually equivalent to a rule of law, and since the Court of criminal appeal came into operation this court had held that in the absence of such warning by Judge, the conviction must be quashed. If after the proper caution by the Judge the Jury nevertheless convict the prisoner this court will not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated.64 SECTION 134.—Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact. COMMENTS Quantity of witness not required.—Section 134 does not require any particular number of witnesses to prove any fact It is not the quantity but quality of evidence that matters. In Amar Singh v. Balwinder Singh,65 Supreme Court held that where prosecution has not examined all the injured witnesses but only three of the injured witnesses were examined, it would not lead an inference that prosecution was not correct. Single witness.—As a general rule a court can and may act on the testimony of a single witness, though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. A conviction can be based on the testimony of solitary witness if he is wholly reliable.66 The Court can act on the sole testimony of a single witness provided he is wholly reliable. It is not the number, the quantity but the quality that is material.67 In Vahula Bhushan alias Vehuna Krishnan v. State of Tamil Nadu,68 the Supreme Court held that the conviction based on sole witness is valid. The present case came before the Supreme Court as an appeal on Special leave. It has been argued that the Court below could not have convicted the accused on

______________ 64. 65. 66. 67. 68.

King v. Baskerville, (1916) KB 658. AIR 2003 SC 1164. Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, AIR 2008 SC 927 at p. 929. Kunju alias Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381 at p. 1383 ; Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 ; Jagdish Prasad v. State of M.P., AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi, (2003) 11 SCC 367. AIR 1989 SC 236.

Page 557

S. 134] OF WITNESSES

sole testimony of Prosecution witness 1, as the same was not corroborated by evidence of any other witness. The conviction is untenable inasmuch as there is no rule of law, that the testimony of single witness cannot be accepted as conviction cannot be based on such evidence, if believed. The testimony of single witness if it is straight-forward, cogent and if believed is sufficient to prove the prosecution case, the conviction can be based on such a single witness. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Jagdish Prasad Bawan Kumar and other v. State of M.P.69 It was held that testimony of single eye witness can be acted upon if otherwise reliable corroboration required when his evidence is open to doubt and suspicion witness inimical to one of the accused. He deliberately omitted the name of an accused. His evidence found by High Court discrepant in material particulars. Held, in these circumstances of the case testimony of sole eye witness not reliable. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down and much depends upon the judicial discretion of the judge before whom the case comes.70 Where the prosecution rests on the sole testimony of one eye witness the same should be wholly reliable. However minor discrepancies does not matter.71 In Binay Kumar and others v. State of Bihar,72 the Supreme Court held that there is no rule of evidence that no conviction can be based unless certain minimum number of witness has identified a particular accused as member of unlawful assembly. It is axiomatic (self proved) that evidence is not to be counted but only be weighed and it is not quantity of witness but quality of witness that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identity of accused as member of lawful assembly. In Joseph v. State of Kerala,73 it was held by Supreme Court that evidence of solitary witness can form the basis of conviction when it is cogent and reliable. Evidence of solitary witness injured in the incident was in conflict with other evidence and medical evidence. He admitted that the signature on FIR and the acknowledgement of summon which were alleged to be his signature were also different. Conviction on the basis of this solitary witness is not proper. In Lallu Manjhi v. State of Jharkhand,74 it was held by Supreme Court that law of evidence does not require any particular number of witness to be

______________ 69. 70. 71. 72. 73. 74.

AIR1995 SC 1251. Vadivelu Thevar v. State of Madras, AIR 1957 SC 614; State v. Kachara Sada, AIR 1961 Gujarat 20. Jai Ram Shiva Tagore v. State of Maharashtra, AIR 1991 SC 1735. AIR 1997 SC 321. AIR 2003 SC 507. AIR 2003 SC 834.

Page 558

EVIDENCE ACT [S. 134

examined in proof of given fact. However faced with testimony of single witness, the Court may classify the oral testimony into three categories namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In first two categories, there is no difficulty in accepting or discarding the testimony of single witness. The difficulty arises in third categories of cases. The Court has to circumspect and has to look for corroboration in material particulars by reliable direct or circumstantial before acting upon testimony of a single witness. Solitary witness—Related to deceased—Victim.—The evidence of a solitary witness even if related to the deceased can be basis of conviction and no corroboration of such evidence is necessary.75 Single witness.—In Ravi v. State Rep. by Inspector of Police,76 the Supreme Court through J. Dr. Arijit Pasayat held that the contention in a murder case, the Court should insist upon plurality of witnesses, was too broad that. It laid down the following propositions— (1) As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires, as a rule of pendence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

______________ 75.

State of Rajasthan v. Om Prakash, AIR 2007 SC 2257 at p. 2258. 76.

AIR 2009 SC 214; Vithal Pundalik Zendge v. State of Maharashtra, AIR 2009 SC 1110.

Page 559

CHAPTER X

OF THE EXAMINATION OF WITNESSES

Of the examination of witnesses.—The last chapter dealt with the subject as to who are the persons (being competent witnesses) who may be compelled to appear as witnesses and who are those who cannot be compelled to appear as witnesses. This chapter gives the manner of the leading of the evidence of the competent witnesses. The sections of this chapter assume that the witnesses are already before the court. This chapter deals with the examination of the witnesses in chief, their cross-examination, the method of impeaching the credit of the witnesses and so on. SECTION 135.—Order of production and examination of witnesses.—The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court. COMMENTS Scope.—Section 135 lays down that the order in which witnesses are to be produced shall be regulated by the law and practice for the time being relating to Civil and Criminal Procedure respectively. The order of examination of witnesses involves two things : (1) which party is to examine his witnesses first; (2) in what order the witnesses are to be examined by a party. Order XVIII of C.P.C. and the Chapters XVIII, XX, XXI, XXII and XXVIII of Cr.P.C. deal with the manners of the examination of witnesses. In civil cases the party who has the right to begin, i.e., on whom the burden of proof lies examines his witnesses first. In criminal cases the prosecution has to examine its witnesses first. The order of examination of witnesses.—Primarily it is lawyer's privilege to determine the order in which the witnesses should be produced and examined. The arrangement of witnesses is a matter of experience and skill. Though the counsel has discretion to produce his witnesses in the order he likes, this section gives the court a power to dictate the order in which the witnesses may be produced. Exclusion of witnesses from court-room.—When the evidence of a party begins the witnesses must be kept out of the court room. They should be examined one by one and when witness is being examined other witnesses to be examined afterwards must not be allowed to remain in the court-room. If he is present in the court-room he should be asked to go out. If a witness remains in the court-room while another witness is being examined his examination cannot be refused, only a note is to be made to the extent that he was present in the court-room when another witness was being examined.1

______________ 1.

Subb Karan v. Kedarnath, AIR 1941 All 612 ; State v. Sohan Singh, AIR 1955 MB 78.

Page 560

EVIDENCE ACT

[S. 136

SECTION 136. —Judge to decide as to admissibility of evidence.— When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact and the court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. ILLUSTRATIONS (a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, when statement is relevant under Section 32. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement. (b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced. (c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified. (d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A. COMMENTS Scope.—In order that only relevant evidence may be brought on record, the present section has empowered the court to enquire of the party producing the evidence as to how and under what section the evidence offered is relevant. This section also empowers the court to control the sequence of the production of evidence in the case where the proof of one fact is dependent on the proof of another fact. Judge to decide the admissibility.—In order that the proof may be confined to relevant facts and may not go beyond the proper limits of the issue at the trial, the Judge is empowered to ask in what manner the evidence

Page 561

S. 137] OF THE EXAMINATION OF WITNESSES

tendered is relevant. The Judge must then decide its admissibility. The Judge has to see that an evidence to be brought on the record must be relevant under some of the sections of relevancy under the Act. An argument based on plausibility can have no effect.2 The court must, at the time when the evidence is tendered, decide whether or not it is admissible.3 It is Judge's duty to exercise a careful discretion. He should not be hasty, considering the possibility of error on his part, he may in his discretion allow the evidence to be placed on the record provisionally, and subject to objection, in cases where that course would ultimately save time. But the question of admissibility is to be decided after the counsel has been given an opportunity to address the court on the point.4 SECTION 137.—Examination-in-chief.—The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.—The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.—The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. Where a party not subjecting to cross examination inspite of order of Court, it is not safe to rely on examination-in-chief.5 Distinction between examination-in-chief, cross-examination and reexamination

Examinationin-chief

1.

Examination-inchief is the examination of witness by a person calling to him.

Cross-Examination

1. Cross examination is examination of witness by opposite party.

Re-Examination

1. Re-Examination is examination of witness to remove inconsistency which may have arisen during examination-inchief and crossexamination. 2. The order of reexamination is last.

2. The order of examination-in-chief is first.

2. The crossexamination is second in order.

3. The purpose of 3. The purpose of 3. The purpose of reexamination-in-chief cross-examination to examination is to is to take such test the veracity of remove inconsistency testimony for which witness by which may have arisen he is called by party. impeaching his during examination-incredit. chief and cross-examination. 4. Leading question cannot be asked in re4. No leading question examination and no may be asked in 4. Leading question new matter should be examination-in-chief may freely be asked introduced in rewithout permission in cross- examination without of court. examination. permission of Court.

5.

Examination-inchief is part and parcel of a judicial 5. Cross-examination is proceeding. most essential for extracting the truth and is essential part of judicial proceedings.

______________ 2. 3. 4. 5.

Kashyap v. Emperor, AIR 1945 Lah. 23. Rana Karan v. Mangal Sen, 1 ALJ 224. Bal Raja Ram v. Manek Lal, AIR 1932 Bom. 136 at 150. Gopal Saran v. Satyanarayan, AIR 1989 SC 1141.

5. Re-examination is not necessary it is not essential part of judicial proceeding.

Page 562

EVIDENCE ACT

[S. 138

Section 137 of Evidence Act and Section 145 of Negotiable Instruments Act.— Sections 143 to 147 of Negotiable Instruments Act lays down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial. Once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the Court. The contention that the complainant or any of his witnesses whose evidence is given on affidavit must be made to depose in examination-in-chief all over again appears to be a demand for meaningless duplication, apparently aimed at delaying the trial. Under Section 145 (2) of the Negotiable Instruments Act, the Court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused, the Court must call the person giving his evidence on affidavit again to be examined as to the facts contained therein. The extent and nature of examination in each case is a different matter to be reasonable contained in the light of Section 145 (1) and having regard to the object and purpose of entire scheme under Sections 143 to 146, Negotiable Instruments Act. These sections do not in any way affect the Judge's power under Section 165 of the Evidence Act. The affidavit of the person so summoned under Section 145 (2) of the Evidence Act which already on record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused, the deponent of the affidavit can only be subjected to cross-examination as to the facts stated in the affidavit.6 SECTION 138.—Order of examination.—Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) reexamined. The examination and cross-examination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examinationin-chief. Direction of re-examination.—The re-examination shall be directed to the explanation of matters referred to in cross-examination ; and if, new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. COMMENTS Examination of a witness.—Sections 137 and 138 are so connected together that it would be convenient to deal with them together. Section 137 defines examination-in-chief, crossexamination and re-examination. The mere reading of the section shows that the examination of a witness includes examination-in-chief, cross-examination and re-examination.7 Section 137 of the Evidence Act gives only three stages in the examination of a witness, namely examination-in-chief, cross-examination and reexamination. This is a routine sequence in the examination of a witness.8

______________ 6. 7. 8.

Mandavi Co-op. Bank Ltd. v. Nimesh B. Thakore, AIR 2010 SC 1402 at p. 1413. Banwari Lal v. State, AIR 1956 All 385. Dahyabhai v. State of Gujarat, AIR 1964 SC 1563.

Page 563

S. 138] OF THE EXAMINATION OF WITNESSES

Section 137 gives meaning of the terms "examination-in-chief", "cross-examination" and "re-examination". Section 138 gives order of examination-in-chief, cross-examination and reexamination. This section also gives the extent to which examination-in-chief, cross-examination and re-examination may go. Section 138 does not deal with the admissibility of evidence, but merely lays down that a witness shall first be examined-in-chief, then cross-examined and lastly re-examined.9 Examination-in-chief.—When a witness presents himself before the court, he is given oath or affirmation. His name and address is taken down. Then it is the province of the party by whom the witness is called to examine him for the purpose of eliciting from the witness, all the material facts within his knowledge which tend to prove his (party calling the witness) case. This is called examination-in-chief. The object of examination-in-chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness. The witness can give evidence of fact only and no evidence of law. Gopal Saran v. Satya Narain.10—In this case party is not subjecting to cross-examination inspite of order of Court. It is not safe to rely on examination-in-chief. Cross-examination.—After the party calling a witness has finished the examination-inchief, the opposite party has a right to cross-examine/ the witness. Cross-examination, if properly conducted, is one of the most useful and efficacious means of discovering the truth.11 Cross-examination is not confined to matter proved in examination-in-chief, the slightest examination-in-chief even for formal proof gives right to the cross-examiner to put questions about the whole of his case. If any party has a right to participate in inquiry or trial, then, such party can cross-examine the witness(s) after they are examined by the Court during enquiry under Section 138, Evidence Act.12 Admissibility of evidence of person with unfinished cross-examination.—Where evidence of defendant was recorded on commission. Cross-examination was only partly held but there was death of defendant in the meantime. Held that his evidence will not be inadmissible as there was no provision under law that if witness was not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. It was further held that how much weight shall be attached should be decided considering other facts and circumstances surrounding it and provisions of Section 33 will not be applicable in such a case.13 Cross-examination—A wide scope.—Generally speaking, it is true that Section 138 of the Act, does provide wide scope for cross-examination. It _________________

9. 10. 11. 12. 13.

Lakshman Chandra Ghosh v. Emperor, AIR 1948 Cal. 278. AIR 1989 SC 1141. Bhojraj v. Sitaram, AIR 1936 PC 60. Kishori Lal v. State of Rajasthan. 1999 Cri LJ 840 (Raj). Dever Park Builders Pvt. Ltd. v. Madhuri Jalan, AIR 2002 Cal 281.

Page 564

EVIDENCE ACT [S. 138

need not be confined to what is spoken to in the examination-in-chief. The opening part of second half of Section 138 clearly provides that examination and cross-examination must relate to relevant facts. But the cross-examination need not be confined to the facts to which the witness had stated in his examination-in-chief. Therefore, the question in cross-examination also must be relevant to the fact which was required to be proved by that witness. Any deviation in respect of the relevancy of facts was permissible only to attack the reliability, character and such other things concerning the witness. That was why the wider scope was given while cross-examining a witness, in order to demonstrate the credibility of the witness or otherwise. Such wider scope conferred for purposes of cross-examination cannot be used to establish the case of the defendant which he was required to independently establish by producing relevant documentary or oral evidence to discharge the burden which was cast on him.14 Once a party even by a mistake, comes to the witness-box and swears and deposes about a document, he becomes a witness and will be liable to be cross-examined by his opponent. His cross-examination may be about the whole case. It cannot be confined to only the facts stated by him in examination-in-chief.15 A witness proving a document may be cross-examined on other points also.16 All the questions which are asked to challenge the evidence-in-chief are permissible. There is no provision which says that cross-examination should be confined what is volunteered by witness and cannot be directed to challenge or clarify the answers given in cross-examination.17 Every accused is entitled to cross-examine a prosecution witness on the evidence against him. Such statement may be made in the examination-in-chief or in the cross-examination of another witness. An accused is entitled to put further question to a prosecution witness by way of cross-examination in respect of what he had stated in reply to questions .put to him in crossexamination by the other co-accused.18 If the evidence given by one defendant is relevant against another codefendant, he is entitled to cross-examine the deposing defendant.19 Codefendant may cross-examine the witness produced by the other defendant, even they have a common defence. The evidence produced by one defendant would be inadmissible if the other defendant is refused permission to crossexamine him.20 The important part of case to be put in cross-examination.—It is a rule of justice that a party must put the crucial and important part of case to the witness of the other side in their cross-examination.21 It is a well-settled rule

______________ 14. 15. 16. 17. 18. 19. 20. 21.

Satyanarayana Setty, N.C. v. Smt. Nagaratnamma, (1988) 1 Kant LJ 588. Onkar Bhikharam v. Javarchand, AIR 1957 MB 135. Chandramani Naik v. Binapani Dei, AIR 1963 Ori 17. P. v. P., AIR 1982 Bom 498. C.T. Muniappan v. State of Madras, AIR 1961 SC 175. Sohan Lal v. Gulab Chand, AIR 1966 Raj 229. Deshraj Chopra v. Puranmal, AIR 1975 Del 109 ; Sadhu Singh v. Sant Narayan Singh, AIR 1978 Punj. 319. A. E. G. Garapiet v. A. Y. Derderian, AIR 1961 Cal 359 at 362.

Page 565

S. 138] OF THE EXAMINATION OF WITNESSES

of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness's account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation.22 If a witness after being examined up to the stage of examination does not subject to cross-examination in spite of the order of the Court, the examination-in-chief cannot be relied upon.23 The cross-examination of witness need not be confined to facts to which he had testified on his examination-in-chief, therefore, order refusing to grant permission to put questions beyond the contents of Panchnama could not be sustained.24 Effect of not cross-examining.—When a fact is stated in examination-in-chief and there is no cross-examination on that point naturally it leads to the inference that the other party accepts the truth of the statement.25 When the evidence given by a witness is intrinsically unreliable and on the face of it unacceptable his non-cross-examination cannot gather credibility.26 Failure to cross-examine will not always amount to an acceptance of the witness's testimony, for example, when the story the witness tells is itself incredible or of romantic character.27 The mere fact that the witnesses examined by the opposite side have not been effectively cross-examined, does not mean that the Court is bound to accept their evidence.28 Courts are not precluded from assessing the veracity of witnesses in the absence of any cross-examination.29 No opportunity given to cross-examine a witness—Effect of.—If no opportunity is given to cross-examine a witness his evidence must be excluded from consideration.30 The evidence of witness, examined before the charge is framed, but not produced for cross-examination, is not admissible.31 In Union of India v. T.R. Verma,32 it was held that if in the deposition of the witnesses, there was no record made that there was no cross-examination, it

______________ 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

Chunilal v. Hartford Fire Insurance Co., AIR 1958 Punj 440. Gopai Saran v. Satyanarayan, AIR 1989 SC 1141. Nasir Khan v. State of Chhattisgarh, 2003 (5) AIC 972 (Chhat). Babu Lal v. Caltex, 1967 Cal. 205; Chuni Lal v. Hortford Fire Co., AIR 1954 Punj. 440. Kanika Bewa v. State, 1976 Cri LJ 418 (Ori.); Juwar Singh v. State of M.P., AIR 1981 SC 373 : 1980 Cri LJ 1418. Sukharaji v. State Transport Corporation, AIR 1966 Cal 620 ; Sachindra Nath v. Nilima, AIR 1970 Cal 38. Chaturbhuj Pandey v. Collecter, Raigarh, AIR 1969 SC 255. Ambika Singh v. State, AIR 1961 All 38 at 41. Neminath v. Jamboo Rao, AIR 1966 Mys. 154. Sanatan Daw v. Dasarathi Tah, AIR 1959 Cal 677 : 1959 Cri LJ 1310 ; Chandanlal Joura v. Amin Chand, AIR 1960 Punj 500 ; Satish Chandra v. Emperor, AIR 1945 Cal 137 ; S.C. Mitter v. State, AIR 1950 Cal. 435 ; Arabinda Dey v. State, AIR 1953 Cal 206 ; Dwarka v. State, 1979 Cri LJ 550. AIR 1957 SC 882.

Page 566

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[S. 138

can be said that, in fact, the party entitled to cross-examine did not cross-examine and not that the opportunity to cross-examine was denied. But there are five exceptions to this rule : (1) where the witness had notice beforehand, (2) where the story itself is of incredible or romantic characters, (3) where the non-cross-examination is from the motive of delicacy, (4) where the counsel indicates that the witness is not cross-examined to save time, (5) when several witnesses are examined on the same point, all need not be cross-examined. Misleading questions.—A misleading question should not be allowed in crossexamination.33 Effect of witness's not presenting for cross-examination.—If a witness after being examined-in-chief does not appear to subject him to cross-examination his evidence becomes valueless and cannot be looked into.34 In Harpal Singh v. Devindar Singh,35 it was held by Supreme Court that prosecution has discretion not to examine certain witness so that proliferation of evidence is avoided. Adverse inference cannot be drawn from non-examination of material evidence. Tendering a witness for cross-examination.—The practice of tendering a witness for cross-examination only is bad, illegal and invalid. This amounts to failure of prosecution to examine the particular witness at the time of trial.36 _ There is no provision in that Act for permitting a witness to be tendered for crossexamination without his being examined-in-chief and this practice is opposed to Section 138 of Act. The material witness should be examined and then he may be cross-examined.37 Tender of a witness for cross-examination, amounts to giving up the witness by prosecution as it does not choose to examine him in chief. Non-examination of witness in chief examination seriously affects the credibility of the prosecution case.38 Examination and cross-examination must relate to relevant facts.—It need not be stressed that the examination-in-chief and cross-examination must relate to relevant facts. A fact which is not relevant cannot be allowed to be brought on record either by examination-inchief or by cross-examination.39 Mode of recalling and cross-examining a witness.—Defence can request for recalling of witness, if it so thinks, after getting sanction of Court

______________ 33. 34. 35. 36. 37.

38. 39.

Tulsi Ram v. State of Maharashtra, 1984 Cri LJ 209. Gopal Sarvan v. Satya Narayan, AIR 1988 SC 1141. AIR 1997 SC 2914. Sukhwant Singh v. State of Punjab, (1995) 2 Crimes 148 (SC). Emperor v. Kasamalli, AIR 1942 Bom 71 (FB); Sadeppa Gireppa v. Emperor, AIR 1942 Bom 37; Kesar Singh v. State, AIR 1954 Punj 286 ; Shailendra Kumar Roy v. Territory of Tripura, AIR 1959 Tri 11 ; Thazhathethi Hamsa v. State of Kerala, AIR 1967 Ker 16 ; Manzurul Haque v. State of Bihar, AIR 1958 Pat 422 ; Jogendra Singh v. State of Haryana, 1974 Cri LJ 117 (P&H). Sukhwant Singh v. State of Punjab, 1995 (19) A Cr R 438 (SC) : 1995 (2) Crimes 148. Maya v. Brijnath, AIR 1982 Del 240.

Page 567 S. 138] OF THE EXAMINATION OF WITNESSES provided the cross-examination is for impeaching his veracity on strength of alleged former statement which came on record at a later stage.40 Power of the Court to control the examination of a witness.—A lengthy and protected examination of witnesses putting irrelevant questions only to swell the size of the record are to be discouraged. It is imperative that an abuse of this kind, which enormously increases the costs of litigation without any corresponding benefit to the parties should be checked.41 Cross-examination is one of the most important processes for the elucidation of facts of a case and reasonable latitude should be allowed, but the Judge has always a discretion as how far it may go or how long it may continue. A fair and reasonable exercise of this discretion by the Judge will not generally be questioned by an appellate Court.42 A Judge is and always must be in control of the proceeding in his Court. On one hand the right of cross-examination must be carefully guarded, and it must be remembered that it may be necessary for an advocate to approach delicately and with caution the point upon which he is seeking to obtain admission. It may be important that a witness whom he does not consider truthful should not be put on his guard by immediate presentation of the case set up by the opposite side. If questions are couched in too blunt a form he may readily deny them. Hence, considerable latitude is desirable since the admission sought to be elicited only be forthcoming when the witness, if he is concealing something is thrown off his guard and there are cases in which it is necessary to drop a particular issue in the course of crossexamination and to unturn to it again discreetly at a later stage. On the other hand lengthy irrelevant cross-examination has to be stopped.43 A Court should insist that the witness should understand the question put before an answer is recorded.44 A Court should not limit the time of cross-examination to a very short time.45 Re-examination.—The party who called the witness may, if he likes and if it be necessary, re-examine him. The re-examination must be confined to the explanation of matters arising in cross-examination. The proper purpose for re-examination is by asking questions as may be proper to draw forth an explanation or meaning of expressions used by the witness in cross-examination, if they are doubtful. New matters may, however, be introduced by permission of the court, and if that is done, the adverse party has a right to cross-examine the witness on that point.

______________ 40. 41. 42. 43. 44. 45.

State of Rajasthan v. Teja Ram, 1999 Cri LJ 2588 (SC) : AIR 1999 SC 1776. Raj Kumar v. Ram Sundar, AIR 1932 PC 69. Vassiliades v. Vassiliades, AIR 1945 PC 38. Brahmaya v. King, AIR 1938 Rang 442, Hari Lal v. Emperor, AIR 1935 Pat 263. Salag Ram v. Emperor, AIR 1937 All 171.

Page 568

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[S. 139

In re-examination of witness examination-in-chief cannot be supplemented by starting totally new facts for the first time. The purpose of re-examination is only to get the clarification of some doubts created in the cross-examination.46 Any number of questions.—There is no warrant that re-examination, should be limited to one or two questions and so if the exigency requires any number of questions can be asked in re-examination.47 Hypothetical questions should be disallowed.—As discussed under Section 45 of the Act hypothetical question may be put to an expert. But hypothetical question cannot be put to ordinary witness of fact. Courts should disallow the hypothetical question to ordinary witness.48 SECTION 139.—Cross-examination of person called to produce document.—A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness. COMMENTS If a person is summoned only to produce a document he may appear in Court and produce the document if he has the document in his possession. If the document summoned is not in his possession, he may inform the Court by an application stating that he has no possession of the document. There is no provision in Law (civil or criminal) that a person who is summoned to produce a document becomes a witness and can be examined and cross-examined by a party or a Court although he has not been cited as a witness in the proceeding. Even if a person produces the document for which a summons has been issued to him. Section 139, Evidence Act clearly provides that he does not thereby become a witness by mere fact that he produces it and he cannot be cross-examined unless and until he is called as a witness. The Court cannot record the statement of such person on oath to satisfy itself regarding the whereabout of the document if the person has not produced the documents.49 SECTION 140.—Witnesses to character.—Witnesses to character maybe cross-examined and re-examined. COMMENTS Scope.—Witnesses to character may also be cross-examined and re examined. SECTION 141.—Leading questions.—Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. COMMENTS Scope.—Section 141 defines "leading question". Section 142 lays down that leading questions must not be put in examination-in-chief or re-

______________ 46. 47. 48. 49.

Pannayar v. State of Tamil Nadu, AIR 2010 SC 85 at p. 89. Rammi alias Rameshwar v. State of M.P., 1999 Cri LJ 4561 (SC). Raj Bahadur Lal v. Government of UP., AIR 1972 All 308. Parmeshwari Devi v. State, AIR 1977 SC 403.

Page 569

S. 142] OF THE EXAMINATION OF WITNESSES

examination except with the permission of the court. It also lays down that the court should permit leading questions in examination-in-chief and reexamination as to the matters which are introductory, which are undisputed or which has already been sufficiently proved in the opinion of the court. Section 143 lays down that leading questions may be put in cross-examination. Leading questions.—Section 141 defines leading question. It lays down that if a question suggests an answer which the person putting the question wishes to receive it is a leading question. A question is leading one when it indicates to the witness the real or supposed fact which the examiner expects and desires to be confirmed by the answer. Whether a question is leading is to be determined by the circumstances in which the question arises. Is the plaintiff your brother ? Have you not lived for 10 years with him ? Is this boy 10 years of age ? Is not your name Shyam ? Do you reside at Allahabad ? Are you not in service of Shyam ? Have you not lived for ten years with Shyam ? are the examples of leading questions. In these questions, the examiner clearly suggests the answer. In such questions the person putting the questions is really giving answer instead of receiving it from the witness. In leading questions while the examiner pretends ignorance and is asking for information but he really gives the answer himself instead of receiving it. Generally, the answers to the leading questions are given by "yes" or "no".50 But it cannot be said that in order to stamp a question leading the answer to it must be as "yes" or "no". A leading question is that which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answers leading to questions. SECTION 142.—When they must not be asked.—Leading questions must not, if objected by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. COMMENTS Scope.—Section 142 lays down that leading questions should not be put in examination-in-chief or re-examination if they are objected to. The Court may permit leading questions to draw the attention of the witness which cannot otherwise be called to matter under inquiry, trial or investigation. The witness must account for what he himself had seen.51 Exceptions to this rule.—The section provides exceptions to the general rule stated above. Leading questions may be put in examination-in-chief or reexamination by the order of the Court: (1) as to matters which are introductory; (2) which are undisputed; or (3) which in the opinion of the Court have already been proved.

______________ 50.

Dharamu Beldar v. King Emperor, AIR 1921 Pat 406. 51.

Varkey Joseph v. State of Kerala, 1993 Cri LJ 2010 (2016) (SC).

Page 570 EVIDENCE ACT

[S. 143

Besides these exceptions under Section 154, a Court can allow a party examining his own witness to put leading questions by way of cross-examination. If objected to.—It should be borne in mind that if the opposite side makes any objection, leading questions may not be put in examination-in-chief or re-examination but such questions may be put in examination-in-chief or reexamination if the Court overrules objection. Matters of record.—Leading questions may be put in examination-in-chief respecting the matters of record.52 Permission of the Court.—There is no legal hurdle in putting leading questions during examination-in-chief, without permission of the Court, if there opposite side does not object to it. Need to obtain permission of the Court to put leading questions would arise only in the contingency where the opposite side takes objection. Even if the opposite side objects, the Court has a wide discretion in allowing leading questions to be put. The second para to Section 142 of the Act shows that the Court has no discretion to disallow a leading question if it relates to undisputed matters or introductory matter or matters already proved. The discretion to allow or disallow a leading question can be exercised by the Court only when such leading question relates to matters other than those enumerated above.53 SECTION 143. —When they may be asked.—Leading questions may be asked in crossexamination. COMMENTS Scope.—Section 141 defines "leading question". Section 142 lays down that leading question must not be put in examination-in-chief or re-examination except with the permission of the Court. It also lays down that the Court should permit leading questions in examination-inchief and re-examination as to the matters which are introductory, which are undisputed or which have already been sufficiently proved in the opinion of the Court. Section 143 lays down that leading questions may be put in cross-examination. No misleading question in cross-examination.—A counsel cannot put a question in crossexamination assuming that some facts have been proved or admitted though he can put leading questions. Suppose a witness appears for the plaintiff, the defendant tries to show that the witness is a servant of the plaintiff and so he is an interested witness. The proper question to be put by the defendant in cross-examination would be "Are you a servant of the plaintiff?" A question "How long have you been in service of the plaintiff?" is not proper as it assumes that the fact that the witness is a servant of the plaintiff has either been proved or it has been admitted by the witness. Suppose, the case of a wife against her husband is that he misbehaves and beats her but the husband denies the allegation. The husband appears in

______________ 52. 53.

Fire Stone T. & R. Co. v. Workmen, AIR 1968 SC 236 at 239. State of Kerala v. Vijayan alias Rajan. (1992) 1 KLT 878.

Page 571

S. 145] OF THE EXAMINATION OF WITNESSES

Court to deny the allegation. The cross-examiner cannot put a question "May I ask if you have left off beating your wife?" Such questions are misleading.54 SECTION 144.—Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object or such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. ILLUSTRATION The question is, whether A assaulted B. C deposes that he heard A say to D "B wrote a letter accusing me of theft, and I will be revenged on him". This statement is relevant, as showing A's motive for the assault, and evidence may be given of it, though no other evidence is given about the latter. This section merely points out the manner in which provisions of Sections 91 and 92 of Evidence Act as to the exclusion of oral by documentary evidence may be enforced by the parties in suit. SECTION 145. —Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved ; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. COMMENTS Scope.—Sections 138, 140, 147, 148 and 154 of the Evidence Act provide for impeaching the credit of a witness by cross-examination. Section 145 lays down the procedure by which a witness may in cross-examination be contradicted by his previous statement in writing or reduced into writing. A witness may be asked in cross-examination whether he made a previous statement in writing or reduced into writing, relevant to the matters in issue, different from his present statement without such writing being shown to him or proved. But if it is intended to contradict him by the writing, his attention must be drawn to it. Very often a person makes a certain statement which is in writing. Afterwards in same case of proceeding he makes a statement contrary to what

______________ 54.

Binapani v. Rabindranath, AIR 1959 Cal 213.

Page 572

EVIDENCE ACT [S. 145

he has previously stated. Under Section 145 the present statement of the witness may be contradicted by previous statement to show that he is not telling the truth. Use of the previous statement.—A previous statement that is used under this section to contradict a witness is not to be used as substantive evidence in the case of the fact contained therein. The only purpose to contradict with a previous statement is to prove that the statement made in the court is not reliable.55 The former statement is not accepted as true. The one merely neutralises the other. Cross-examination as to previous statement.—A witness may be cross-examined as to his previous statement without showing him the writing, if it is relevant to the matter in issue.56 It is right of a party to cross-examine a witness as to previous statement, if it is relevant to the matter in question. It can as of right be put to a witness that he made a statement, on some previous occasion, which was contradictory to the present statement. A Court cannot refuse to allow the cross-examination of witness with reference to his previous statement on the ground that the document which contained the statement is not being produced at the time of the crossexamination.57 Intended to contradict.—As seen above a witness may be cross-examined as to his previous statement in writing relevant to the matter in issue without the writing being shown to him. But if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be drawn to those parts of which are to be used for the purpose of contradicting him. Attention must be called.—The section lays down that if the previous contradictory statement of a witness is intended to be proved, his attention must be called to it. The object of this procedure is to give the witness a chance of explaining or reconciling his statements before the contradiction can be used as evidence.58 If the opportunity to explain is not given, the contradictory writing cannot be placed on the record as evidence.59 Previous admission to contradict.—A Full Bench of the Lahore High Court held that admission of a party on a material issue in the case made prior to the suit cannot be used as legal evidence, if the person making the admission has given statement on oath, in the witnessbox, which is inconsistent with the previous admission, unless the admission is put to him and he is given an opportunity to explain it.60 But a Full Bench of the Allahabad High Court has dissented from this view and has held that where in a civil suit a party produces documents containing admissions by his opponents which documents

______________ 55. 56. 57. 58. 59. 60.

Brij Bhushan Singh v. Emperor, AIR 1945 PC 38. Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 at p. 1021. Ramakuer v. Nagesam, AIR 1925 Mad. 154. Madar Siredar v. Emperor, AIR 1927 Cal. 514. Tara Singh v. State, AIR 1951 SC 44 ; Bire Singh v. State, AIR 1953 All. 785 ; Doman v. Suraj Dev Prasad, AIR 1970 Pat. 95 ; K.A. Vist v. State of Maharashtra, AIR 1971 SC 2256. Firm Malik Deshraj, Faquir Chand v. Firm Peare Lal, AIR 1946 Lah. 65 at p. 70 (FB).

Page 573

S. 145] OF THE EXAMINATION OF WITNESSES

are admitted by the opponent's counsel and the opponent enters the witness-box, it is not obligatory on the party who produces the documents to draw, in cross-examination, the attention of the opponent to the admission before he can be permitted to use them for purposes of contradicting the opponent provided that the admissions are clear and unambiguous, but where the admissions are ambiguous, or vague, it is obligatory on the party who relies on them to draw, in cross-examination, the attention of the opponent to the said statement before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent.61 The Supreme Court has taken the same view as held by the Allahabad High Court.62 Admissions if they are clear can be used without confronting and even if the makers are not produced in court. If substantive evidence.—A previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness. Statement in writing.—This section in express terms applies to previous statements in writing or reduced into writing only and does not apply to statements not in writing or not reduced to writing. Admissibility of Tape Recording.—Tape recorded conversion is admissible. Tape recording is document as defined in Section 3 of the Evidence Act which stood on no different footing than Photograph. They are relevant on satisfying the following conditions : (i) the voice of the person alleged to be speaking must be identified by the maker of the record or by others who know it, (ii) accuracy of what was actually recorded had to be proved by the maker of the record, and satisfactory evidence, direct or circumstantial, had to be there so as to rule out the possibility of tampering with the record, (iii) the subject matter recorded had to be shown to be relevant according to the rules of relevancy in the Evidence Act.63 It may be used as evidence, confession and it may also be used for contradiction or corroboration under Sections 145 or 147 of Evidence Act. Omission if contradiction.—'Omission' and 'contradiction' can never be identical. If a proposition is stated any contradictory proposition must be statement of some kind, whether positive or negative. To contradict means to speak against. It is incorrect to say that you can contradict by keeping silence. Statement in its dictionary meaning is the act of stating or reciting. Prima facie a statement cannot take place in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or selfconsistent it becomes necessary to imply words which are not actually in the

______________ 61. 62. 63.

Ayodhya Prashad Bhargava v. Bhavani Shankar Bhargava, AIR 1957 All. 1 (FB). Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405; Vishwa Nath Prasad v. Dwarika Prasad, AIR 1974 SC 117. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Z.B. Bhukari v. B.R. Mehard, AIR 1975 SC 1788.

Page 574

EVIDENCE ACT

[S. 145

statement. Though something if not expressly stated, it is necessarily implied, from what is directly or expressly stated. To illustrate : (1) 'A' made a statement previously that he saw 'B' stabbing 'C’ to death ; but before the Court he deposes that he saw 'B' and 'D' stabbing 'C’ to death ; the Court can imply the word 'only' after 'B' in the previous statement. So the previous statement would be taken to mean that he saw 'B' only stabbing 'C’ to death so this would contradict the present statement that he saw 'B' and 'D' stabbing 'C’ . (2) Sometime a positive statement may have a negative aspect and a negative one a positive aspect ; if a witness states that a man is dark it also means that he is not fair. (3) Further, there are occasions when we came across two statements made by the same person at different times, and both of them cannot stand or co-exist. There is an inherent repugnancy between the two and, therefore, if one is true other must be false. On one occasion a person says that when he entered the room he saw 'A' shooting 'B' dead with a gun ; on another occasion the same person says that when he entered the room, he saw 'C’ stabbing 'B' dead. Both that statements cannot stand together, for if first statement is true the second must be false and 'vice versa'. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital and the principle of inherent repugnancy may in one sense rest on omissions by contradiction, the said, omission must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statements must be deemed to contain them by implication. The statement therefore not only includes what is expressly stated therein but also what is necessarily implied therefrom.64 Relevant to the matter in issue.—The previous statement, with which it is intended to contradict a witness, must be relevant under Chapter II of the Act. Of the witness himself.—The previous statement must be of the witness who is being cross-examined. A was employed by B to write B's account-books. B supplied A with necessary information. In this case A cannot be contradicted with the entries in the account-books it is not his statement rather it is the statement to B. Previous statement of a party can be used only to contradict him and not to contradict his witnesses.65 Substantive evidence.—A previous statement used to contradict a witness does not become substantive evidence and only serves the purpose of throwing doubt on the veracity of the witness.66 Section 145 of Evidence Act and Section 161, Cr. P.C.—In State of Kerala v. Babu and Others,67 the Supreme Court held that Section 161 of Cr. P.C. provides that the police officer investigating a case is entitled to examine

______________ 64. 65. 66. 67.

Bharat Singh v. Bhagirath, AIR 1966 SC 406. Basdevanand v. Shantanand, AIR 1942 Alld. 302. Bharat Singh v. Bhagirath, AIR 1966 SC 405. AIR 1999 SC 2161.

Page 575

S. 146] OF THE EXAMINATION OF WITNESSES

any person and reduce the statement of such person in writing. This statement recorded by police officer under Section 161, Cr.P.C, even though a previous statement for the purpose of Section 145 of the Evidence Act can be used for the purpose of establishing contradiction or impeaching the credit of witness in manner provided in Section 162, Cr. P.C. On reading Section 162, Cr. P.C. bearing in mind the object in the said section and Section 145 of Evidence Act it is clear that an accused in criminal trial has a right to make use of statement of witness including statement recorded by the investigating agency during course of investigation for the purpose of establishing the contradiction in the evidence of witness or to discredit the witness. SECTION 146.—Questions lawful in cross-examination.—When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend— (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose him to a penalty or forfeiture. 68 [Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.] COMMENTS Scope.—Sections 132, 138, 146, 147 and 148 embrace the whole range of questions which can properly be put to a witness. In Section 138 it is stated that cross-examination must relate to relevant facts. The second para of Section 138 runs as "the examination and cross-examination of a witness must relate to relevant facts". The words in Section 146 "in addition to the question hereinbefore referred to" have reference to the para of Section 138 referred to above. In addition to the questions which may be asked in cross-examination under the provisions of Section 138, a witness may be further asked the questions mentioned in Section 146. This section extends the power of cross-examination far beyond the limits of Section 138 which confines the cross-examination to relevant facts including the facts in issue. Under Section 146 a witness may be questioned (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character. (1) To test his veracity.—A witness may be cross-examined not only as to the relevant facts but also as to all facts which reasonably tend to affect the credibility of his testimony. The statements of a witness being testimonial of their nature, it is right to subject them, to impeachment in the appropriate Ways. So it is competent to the parties to put almost any question in cross-examination, which he may consider important to test the accuracy or veracity of the witness. A witness may always be subjected to a strict cross-examination

______________

68. Inserted by the Indian Evidence (Amendment) Act. 2002

Page 576

EVIDENCE ACT [S. 146

as a test of his accuracy, his understanding, his integrity, his basis and his means of judging. (2) To discover who he is and what is his position in life.—It is common practice to make inquiry into the relationship of the witness with the party on whose behalf he is called— business, social and family—also to inquire as to his feeling towards the party against whom his testimony is being given. This is permissible in order to place his testimony in a proper light with reference to bias in favour of one party or prejudiced against the other. (3) To shake his credit by injuring his character.—In determining the relevancy of character as affecting the credit to be given to a witness the first question is what kind of character is relevant ? Whether, bad moral character in general or some other specific bad quality in particular is admissible. Sometimes it is argued that bad general character necessarily involves an impairment of the truth-telling capacity. Clause (3) of Section 146 permits questions in the cross-examination to shake the credit of a witness and for this purpose his character may be injured. The assault on the character of the witness must be directed only for the purpose of shaking his credit. The questions must relate to attack the credibility of the witness in relation to the matter which involved and relevant under one or other provisions of Evidence Act. The sub-section does not permit all sorts of questions. Questions should not be directed towards laying bare with private life of the witness.69 It is perfectly open to a lawyer to put question to a witness in cross-examination to shake his credit by injuring his character. And the mere fact that the answer may tend to criminate the witness is no justification to refuse to answer.70 Scandalous questions if relevant are to be put.71 "Should a witness whose general character is proverbially bad as to licentiousness and lewdness, who is in his habits regardless of the precepts of religious and reckless of the consequences of vice, be entitled to the same credit as another whose character is without stain and whose whole life has been marked by piety, virtue and truth." To the contrary, it has been truly said that with many, telling the truth is a habit and a principle which they adhere to always, though they may indulge in drinking, swearing and gambling, or making close bargains. With others, lying is the habit or principle and if elevated to be senators or legislators or made church-members it does not always reform them. The object of the law is to show the character of the witness as to telling the truth. In England for the purposes of proving character by repute general character is excluded, and character for veracity only is stated. The credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad moral character. A black-marketeer j is not necessarily untruthful nor a non-black-marketeer necessarily man of veracity.72

______________ 69. 70. 71. 72.

Babu Rao Patel v. Bathakeray, 1978 Cr. LJ 1937. Deep Chand v. Sampath Raj, AIR 1970 Mys. 34. In re G. Barantha Rai, AIR 1960 Mad. 73 ; Prakash v. State of Maharashtra, 1975 Cr.LJ 1297. Chari v. State, AIR 1959 Alld. 149.

Page 577

S. 148] OF THE EXAMINATION OF WITNESSES

SECTION 147.—When witnesses to be compelled to answer.—If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto. COMMENTS Scope.—The word 'such' in this section refers by the last clause of the preceding section. Relevancy of character is of two-fold : it may be directly relevant in its bearing on, proving or disproving the very merits of the points in issue. According to Section 147 if any witness, is asked a question in cross-examination regarding his character and that character is directly relevant in the proceeding, the witness is not protected from answering. He will have to answer the question notwithstanding that the answer may criminate him, because Section 132 is made applicable to this case. Where questions are put to a witness not for the purpose of proving or disproving a point in issue, but exclusively and merely to show what is the character of a witness, the Court is to decide whether the question is to be answered or not according to the rules given under Sections 148,149 and 150. SECTION 148.—Court to decide when question shall be asked and when witness compelled to answer.-—If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretions the Court shall have regard to the following considerations: (1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies; (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matters to which he testifies; (3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence; (4) The Court may, if it sees fit, draw from the witness's refusal to answer, the inference that the answer if given would be unfavourable. COMMENTS Putting of indecent questions.—Indecent and scandalous questions can be put if they relate directly to the fact in issue and also if it is necessary to be known in order to determine whether or not the facts in issue existed, the

Page 578

EVIDENCE ACT

[S. 148

exemptions are vital, and if the court is satisfied that even a scandalous question may have a bearing, the same cannot be forbidden. Principle.—As seen above when character is relevant to the issue witness has to answer it; but if the character is relevant only to shake the credit of the witness it shall be in the discretion of the court to allow or disallow the question. It is necessary to make careful provision against a reckless and revengeful cross-examination. It would be a great hardship if every person who came forward to give evidence was liable, at the whim of unscrupulous cross-examiner, to have every detail of his private life dragged into the light and to be compelled to reply all the questions which are put only to defame him. Scope of the section.—Section 148 is enacted to meet such contingency. Under this section a court is confined with the delicate and responsible work of allowing or disallowing the questions asked with the view of injuring the character of the witness. When a question is asked merely for this purpose the court is to decide whether the witness may be compelled or not to answer it. In deciding as to whether a witness should be compelled or not to answer a question the court shall have regard to the following considerations :— (1) In deciding whether such a question is proper or not the court should consider whether the imputation conveyed by it is such as would seriously affect the court's opinion as to the witnesses' veracity. If the court is of the opinion that the imputation could seriously affect the opinion of the court as to credibility of the witness the court should allow the question. A witness may on cross-examination, be asked any question concerning his antecedents, association, or mode of life, which, though irrelevant to the issue would be likely to discredit his testimony or degrade his character. Thus in cases of rape, the prosecutrix may be cross-examined as to her connection not only with the accused but with other men.73 (2) Again the court has to see whether, from remoteness of time or from its character it would affect the veracity of a witness only in a very slight degree the question is improper and it should not be allowed. A question as to previous conviction thirty years' old put to an intended surety was disallowed on the ground that it related to matter so remote in time that it ought not to influence the court's decision as to fitness of such sureties.74 Where the facts which form the subject of the question are comparatively recent, they are more important as bearing upon the moral principle of the witness than when they are of remote date because a man may reform himself. (3) Where there is the great disproportion between the importance of the imputation conveyed and the importance of the evidence given the question is improper and should be disallowed. If the evidence is very unimportant and the imputation on witnesses' character very serious, the question ought not to be asked. A witness who proves the posting of a letter or the entry of some important item, ought not to be questioned the answers to which might blot his reputation. ______________ 73.

Prakash v. State of Maharashtra, AIR 1975 Cr. LJ 1297.

74.

R. v. Gulam Mustafa, ILR 26 Alld. 371 at p. 374.

Page 579

S. 151] OF THE EXAMINATION'OF WITNESSES

(4) With a view to such consideration as said above it is further provided that the court may infer from the witnesses' refusal to answer, that the answer, if given, would be unfavourable to him but that it is not bound to do so. SECTION 149.—Question not to be asked without reasonable grounds.—No such question as is referred to in Section 148 ought to be asked, unless the person asking if has reasonable grounds for thinking that the imputation which it conveys is well-founded. ILLUSTRATIONS (a) A barrister is instructed by an attorney or vakil that an important witness is a dakoit. This is a reasonable ground for asking the witness whether he is a dakoit. (b) A pleader is informed by a person in Court that an important witness is a dakoit. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakoit. (c) A witness, of whom nothing whatever is known, is asked at random whether he is dakoit. There are no reasonable grounds for the question. (d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be reasonable ground for asking him if he is a dakoit. COMMENTS No scandalous question without grounds.—No scandalous question should be put unless there are reasonable grounds to believe them to be true.75 SECTION 150.—Procedure of Court in case of question being asked without reasonable grounds.—If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession. COMMENTS Section 150 is penal.—Section 150 is the penalty that may ensue against a reckless crossexamination, if the court is of opinion that the questions were asked without reasonable grounds.76 SECTION 151.—Indecent and scandalous questions.—The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the question before the Court, unless, they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

______________ 75.

Prakash v. State of Maharashtra, 1975 Cr. LJ 1297 SC. 76.

Ibid.

Page 580

EVIDENCE ACT

[S. 152

SECTION 152.—Question intended to insult or annoy.—The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form. COMMENTS Scope.—Under Section 149 no question as referred to in Section 14 of the Evidence Act ought to be asked unless the person asking it has some reasonable grounds for supporting the imputation which it conveys to be true. Question may be asked for which there are only reasonable grounds for thinking that the imputation contained in them are all well-founded and it is by no means necessary before the question is asked that the person asking it should be in a position to establish the truth of the imputation beyond all doubt.77 Where the counsel of the accused puts defamatory questions imputing unchastity to the complainant who is a young woman the court has to start with the presumption that the questions were put on instructions and it is only when the contrary is proved it can come to the finding that the questions were put without instructions.78 Section 150 refers to questions put in cross-examination, by any barrister, pleader, vakil or attorney, of the class referred to in Section 148 and gives the court power if such court is of the opinion that such question was asked without reasonable grounds to report the circumstances to the High Court but it limits the scope of the section to questions asked under the circumstances mentioned in Section 148. Sections 151 and 152 invest a court with power or discretion to forbid questions. The trial Judge is not a mere automation but is supposed intelligently to control the conduct of the cases in the Court and it is one of his important functions to see that scandalous matters are not introduced in the record unless they are relevant for the proper decision of the case. The Court cannot forbid indecent or scandalous questions if they relate to fact in issue. If they have, however, merely some bearing on the questions before the Court, the Court, has a discretion and may forbid them. Where a question is intended to insult or annoy or through paper in itself, appears to the Court needlessly offensive in form, the Court must interpose for the protection of the witness. SECTION 153.—Exclusion of evidence to contradict answers to questions testing veracity.—When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence. Exception 1.—If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

______________ 77.

Miss Rebecca Mohan v. Emperor, AIR 1947 Cal. 278.

78.

Ayeasha B. v. Pir Khan Saheb, AIR 1954 Mad. 741.

Page 581

S. 153] OF THE EXAMINATION OF WITNESSES

Exception 2.—If a witness is asked any question tending to impeach his impartiality, and answers it, by denying the facts suggested, he may be contradicted. ILLUSTRATIONS (a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The evidence is inadmissible. (b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence if offered to show that he was dismissed for dishonesty. The evidence is not admissible. (c) A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence. (d) A is asked whether his family has not had a blood-feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality. COMMENTS Principle.—It is obvious that questions, asked merely to discredit a witness by injuring his character, introduce matters altogether foreign to the enquiry, and that if controversy about matter so introduced is allowed the Court would be occupied with deciding not the merits of the case but merits of the witness and, thus suit might be indefinitely protracted. Scope.—Where a fact inquired after is collateral to the issue, and for instance, the character of a witness, the counsel must be contested with the answer which the witness chooses to give. If he denies the imputation the answer is conclusive for the purpose of the suit. See illustrations (a) and (b). The matter cannot be carried further at the trial. Only remedy which the party cross-examining has, is to charge the witness for perjury and try him for that. There are certain exceptions to his general rule.Derinrv anrt f™ v.

Page 582

EVIDENCE ACT

[S. 154

Evidence to contradict relevant facts.—Where a fact which is relevant as having direct bearing at the issue is denied by a witness, it may certainly be proved by extraneous evidence, and his answer may thus be contradicted by independent evidence. So the statement of a witness for the defence that a witness for the prosecution was at a particular place at a particular time and consequently then he would not have been at another place, where the latter states he was and saw the accused person, is properly admissible in evidence. Exception-1. Previous conviction.—Under the first exception of the section a witness denies that he has been previously convicted his previous conviction may be proved to refuse it. The proper proof of previous conviction by the production of a copy of the order of conviction issued and certified under the hand of the officer having the custody of the record of the Court in which such conviction was had or of a certificate signed by the officer-in-charge of the jail in which the punishment or any part of it was inflicted.79 Where the witness who was questioned whether he was not an active criminal and whether he was not under police surveillance denied the suggestions and the evidence given to contradict him had nothing to do with previous conviction, it was held that the evidence was not admissible. Exception-2. Questions impeaching impartiality.—Exception 2 lays down that if a witness is asked a question showing that he is not impartial and if he denies that, evidence may be given to impeach his impartiality. A party may call evidence to show that a witness on the other side has given his evidence in a particular case from some corrupt or indirect motive, as bribery, malice or revenge; or has given it under the influence of some bias in favour of, or against, one of the parties whereby suspicion is cast on the honesty of his evidence. In this case, in murder trial it was alleged that husband of eye witness and accused's father had loan transaction on which they later fall out. However the eye-witness was not asked about the alleged loan transaction. Her evidence cannot be contradicted by citing other witness to say about such transaction. SECTION 154.—Question by party to his own witness.—80[(1)] The Court may, in its discretion permit the person who calls a witness to put any questions to him which might be put in crossexamination by the adverse party. 81 [(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

______________ 79. 80. 81.

Kamal Kanto Dass v. State, AIR 1959 Cal. 342. Section 154 renumbered as sub-section (1) thereof by the Criminal Laws (Amendment) Act, 2005 (2 of 2006), Sec. 9 (w.e.f. 16.4.2006). Inserted by the Criminal Laws (Amendment) Act, 2005 ( 2 of 2006), Sec. 9 (w.e.f. 16.4.2006).

Page 583

S. 154] OF THE EXAMINATION OF WITNESSES COMMENTS

Principle.—A witness is generally deposed to state in favour of the person producing him. He will mostly not be inclined to state anything favourable to the opponent if he can help it. It is, therefore, allowed that the opponent, in order to illicit the truth, may cross-examine the witness, put leading questions and impeach his credit under Sections 145 and 146. On the same ground the person examining a witness is not allowed to put those questions which may be put in cross-examination. The rule which excludes leading questions being put and chiefly founded on the assumption that a witness must be taken to have a bias in favour of the party by whom he is called, when the circumstances show that this is not the case and he is either hostile to the party producing hint or unwilling to give evidence, the judge may in his discretion allow the rule to be relaxed and grant permission to producing the witness to put such questions as may be put in cross-examination. Again by producing a witness a party is held to test his credit or impeach his truthfulness. But there are cases where the rule is to be relaxed at the discretion of the court, as for instance, where there is a surprise and the witness unexpectedly turns hostile. In such cases the party producing should be given permission to test his veracity and to impeach his credit. A witness whether of one party or another should not be given more credit than he really deserves. In S. Murugesan and others v. S. Pethaperumal,82 Madras High Court said : "It is clear from Section 154 that a discretion is conferred on court to permit cross-examination of witness by the party who calls it and it does not contain any condition or guidelines, which may govern the exercise of such discretion. But it is always expected that the court have to exercise such discretion judiciously and properly in the interest of justice. A party will generally be not allowed to crossexamine his own witness and declare the same to be hostile. Unless the court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from material statement or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. There must be some material to show that the witness is not speaking the truth or has exhibited the element of hostility to the party for whom he is deposing before the witness can be declared hostile and the party examining the witness is allowed to cross-examine. Merely because the witness is speaking the truth which may not suit the party on whose behalf he is deposing and the same is favourable to other side the discretion to allow the party concerned to cross examine its own witness not be exercised. Scope.—This section allows a party, with the permission of the court to crossexamine his own witness in the same way as the adverse party. Such crossexamination means that he can be asked (a) leading question under Section 143, (b) questions relating to his previous statement in writing under Section 145, and (c) questions which tend to test his veracity, to discover who he is and what is his position in life or to shake his credit under Section 146. ______________ 82. AIR 1999 Mad. 76.

Page 584

EVIDENCE ACT [S. 154

Put any question.—It is not cross-examining his own witness but with the permission of the Court, it is asking him leading questions. This is not the same thing as cross-examining.83 Rankin, CJ, said "upon this I would make two observations. First, the reason why Section 154 does not say that with the permission of the Court a party may cross-examine his own witness is simply that this would in strictness be a contradiction in terms. Cross-examination means an examination by the adverse party as distinct from the party who calls him (Section 137). This I think is the whole explanation of the use of the phrase "put any question to him which might be put in cross-examination by the adverse party." The second observation is that while putting of a question in leading form is not necessarily tantamount to cross-examination, there is no doubt as to the power of a Judge to give leave to put a leading question to one's own witness. This is plain from Section 143 the second part."84 The terms hostile, adverse, unfavourable witness are alien to Indian Evidence Act. Those are the terms of English law. The rule of permitting a party calling the witness to cross examine are relaxed under common law by evolving the terms hostile witness and unfavourable witness. Under the common law the hostile witness is described as one who is not desirous of telling the truth at the instance of the party telling him and unfavourable witness is one called by the party to prove particular fact in issue. In India the right to cross examine the witness by the party calling him is governed by provisions of Evidence Act. Section 142 requires that the leading questions cannot be put in examination in chief or re-examination without permission of the Court. The Court can however permit leading questions as to matter which are introductory or undisputed or which in its opinion already been satisfactorily proved. Section 154 authorises the Court in its discretion to permit the person who calls the witness to put any question to him which might be put in cross examination. The Courts are under legal obligation to exercise the discretion in judicious manner.85 Adverse or hostile witness.—As seen before under this section the party calling a witness may, with the permission of the court, put leading questions and cross-examine him. It frequently happens that a witness who has been called in the expectation that he will speak to the existence of a particular state of facts, pretends that he does not remember those facts or deposes entirely different to what he was expected to depose. In such cases the question arises whether by the conduct of the witness the party producing him is entitled to cross-examine. Such witnesses have sometimes been called 'adverse', 'unfavourable' or 'hostile' witnesses. An adverse witness is one who does not give in evidence what the party calling him wished him to give. A hostile witness is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court. A

______________ 83. 84. 85.

Bikiam Ali v. Emperor, AIR 1950 Cal 139. Prafulla Kumar Sirkar v. Emperor, AIR 1931 Cal. 401. Ganga Singh v. State of Rajasthan, AIR 2001 SC 330.

Page 585

S. 154] OF THE EXAMINATION OF WITNESSES

witness cannot be said to be hostile whenever his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of other witnesses.86 It is not a legal procedure to declare a witness hostile on the report of the public prosecutor to the effect that he has been informed that the witness has turned hostile. The inference of the hostility of a witness would be drawn from the answer given by him and to some extent from the demeanour.87 As said above a hostile witness is one who from the manner, in which he gives his evidence, shows that he is not desirous of telling the truth.88 In Dada Buddappa Gouli v. Kalu Kanu Gouli,89 it was held by Karnataka High Court that Section 154 of Evidence Act prohibiting the asking of leading question to a party to his own witness must of necessity be related when the witness exhibits an opposite feeling, namely when by his conduct, attitude, demeanour or unwillingness to give answer or to disclose the truth, shows that he is hostile or unfriendly to the party calling him. The court in such a case may permit a party to put any question to his own witness which might be put in cross-examination by his opponent that it may permit him to lead. This in effect means that the court may in a fit case permit a party to cross-examine his own witness. This discretion of the court is absolute and is independent of any question of hostility and adverseness. He is hostile if he tries to injure his parties' case by suppressing truth. The discretion under this section might be exercised only when the courts feel that witness shows a distinctly antagonism feeling or a hostile mind. The distinction must be drawn between true witness and hostile witness. If the exhibition of hostile witness is sole test of declaring witness adverse, the object would be frustrated in many cases. A shrewd and composed witness might by concealing his real sentiment or hostile attitude give unfavourable evidence and make statement contrary to the facts known to him. Merely giving unfavourable evidence cannot also be enough to declare the witness hostile because he might be telling truth which might go against party calling him. Prosecution witness when can be declared hostile.-A prosecution witness can be declared hostile when he resiles from his previous statement made under Sections 161 or 164, Cr.P.C. Besides this when a prosecution witness turns hostile by stating something which is destructive of his prosecution case, this prosecution is entitled to get this witness declared hostile. One Satyawati appeared as a prosecution witness and stated that the accused wanted that she should introduce them to the bank as they wanted to open an account. She went along with Kapoor Singh and Ram Lai to the bank. At the bank she found Nanda. Kapoor and Ram Lal got a form for opening an account which was filled by Nanda. Kapoor Singh got Rs.100 from Nanda for opening account. Then she went inside with Kapoor Singh and Nanda and signed at three places in one

______________ 86. 87. 88. 89.

Tulsi Ram Sahu v. R.C. Pal, AIR 1953 Cal. 160 ; Province of Bihar v. Rameshwar Prasad Singh, AIR 1945 Pat. 136 ; Ratna Sabbapathy Gounda v. Public Prosecutor, AIR 1936 Mad. 516. In re Vengala Reddi, AIR 1956 Andh. Pra. 26. Tulsi Ram Sahu v. R.C. Pal, AIR 1953 Cal. 160 ; State of U.P. v. Jaggu, AIR 1971 SC 1856. AIR 2000 Ker. 58.

Page 586

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[S. 154

form by way of introduction. One Bir Bhan was examined as a prosecution witness. He deposed that he was working as a supervisor in the bank. A woman came with Ram Lal then she signed the unfilled form by way of introduction and went to supervisor for attestation and thereafter the form was brought to be filled up in her handwriting. It was held that the witness turned hostile by stating something destructive of the prosecution case the prosecution is entitled to get her declared to be hostile.90 Cross-examination without declaring hostile.—Before the party calling the witness can cross-examine him it is not necessary that the witness should be declared hostile. Questions of cross-examination can be allowed by the court to be asked the party calling him even though the witness does not show to be hostile.91 When the adverse party has elicited new matter, in cross-examination, from a witness the court may permit the party examining the witness to test his veracity.92 The permission of court.—Before the party calling the witness can cross-examine him, he must obtain the permission of the court.93 The granting of permission is entirely the discretion of the court.94 The discretion has to be exercised with caution.95 It should not be exercised without sufficient reason.96 It is impossible to lay down a hard and fast rule. It is to be liberally exercised, whenever the court from the witness's demeanour, temper attitude, bearing or the tenor and tendency of his answers from the perusal of his previous inconsistent statement or otherwise thinks that the grant of such permission is expedient to extract the truth. The words "declare hostile" or "declare unfavourable" are to be avoided.97 Even in criminal prosecution, his evidence cannot as a matter of law be -treated as washed off the record. It depends on each case whether he disbelieves his thoughts or not. It may be asked upon if corroborated.98 The Court ought not to exercise its discretion unless during the examination in chief of the witness something happens which makes it necessary for the fact to be got from the witness by means of cross-examination. The permission must be in explicit words.99 Value of the evidence of a hostile witness.—The fact that a witness is dealt with under Section 154, Evidence Act, even when under that section he

______________ 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

G.S. Bakshi v. State, AIR 1979 SC 569. Ammathayarmal v. The Official Assignee, AIR 1933 Mad. 137; Baikuntha v. Prasanna Moiji, 72 IC 286. Amrit Lal Hazra v. R., AIR 1936 Cal. 188 : ILR 42 Cal. 1957. Saman Ali p. Emperor, AIR 1936 Cal. 675. Emperor v. Radheyshyam, AIR 1944 Oudh 296; Deo Dhari v. Emperor, AIR 1937 Pat. 34. Khijuruddin v. Emperor, AIR 1926 Cal. 139. Emperor v. Suorgola, AIR 1934 Pat. 533. Satpaul v. Delhi Administration, AIR 1976 SC 294. Ibid. ; K, Thever v. State of T.N., AIR 1976 SC 980 ; Bhagwan Singh v. State of Haryana, AIR 1976 SC 202. Ammathayarmal v. The Official Assignee, AIR 1933 Mad. 137.

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S. 154] OF THE EXAMINATION OF WITNESSES

is cross-examined to discredit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the opposite party. The whole of the evidence so far as it affects both the parties favourably must go to the jury for what it is worth."1 It is not correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from the consideration altogether. The correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth.2 It is settled law that the evidence of a hostile witness cannot be discarded and it can be used to corroborate other reliable evidence if such reliable evidence exists on the record.3 Balu Sonba Shinde v. State of Maharashtra,4 it was held by Supreme Court that the evidence of hostile witness need not be rejected ipso facto on that account. The party may take advantageous portion therein. However Court has to be extremely cautious and circumspect in such acceptance. In Koli Laxman Chana Bhai v. State of Gujarat,5 it was held by Supreme Court that it cannot be said that High Court erred in relying upon some portion of evidence of witness who was crossexamined by prosecution (Hostile witness). In this case Supreme Court said : "It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as waste of records. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence." Bhola Nath Kushwala v. State of M.P.,6 it was held by Supreme Court that an independent witness turning hostile is not ground for acquittal. In Gura Singh v. State of Rajasthan,7 it was held by Supreme Court that, it is misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration. In criminal trial when the prosecution witness is cross examined and contradicted with the leave of the Court by the party calling him for evidence cannot as matter of general rule be treated wasted off the record altogether. It is for the Court to consider in each case whether as result of such cross examination. In appropriate cases the Court can rely upon the part of

______________ 1. 2. 3. 4. 5. 6.

Profulla Kumar Sarkar and others v. Emperor, AIR 1931 Cal. 401 (FB). Pursutam Naik v. Chakradhar, AIR 1959 Orissa 19 ; Sarjug Prasad v. State, AIR 1959 Pat. 66 : AIR 1960 Raj. 101 ; Bhagwan Singh v. State of Haryana, AIR 1976 SC 202. Mangi Lal v. U.P. State, 1991 Cr. LJ 916; Kujji v. State of M.P., 1991 Cr. LJ 2653. AIR 2002 SC 3137 AIR.2000 SC 210. AIR 2001 SC 229.

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EVIDENCE ACT [S. 155

testimony of such witness of that part of disposition is found to be creditworthy. In Zahira Habibullah Sheikh and another v. State of Gujarat,8 the Supreme Court has realised the problems of the prosecution where witnesses turn hostile and plead for going for legislative measures to emphasise prohibition against tampering with witness, victim or informant, which has become imminent and inevitable need of the day. Failure of prosecution to seek declaration about the witness as hostile.—When the prosecution failed to seek permission of the Court to declare his witness "hostile", his evidence instead of supporting the prosecution supported the defence, there was nothing in law to preclude the defence to rely on the evidence of such witness and his evidence was binding on the prosecution.9 SECTION 155.—Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him :— (1) by the evidence of persons who .testify that they, from their knowledge of me witness, believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; 10[* * *] Explanation.—A witness declaring; another witness to be unworthy of credit may not, upon his examination-in-chief, give reason for his belief, but he may be asked his reasons in crossexamination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. ILLUSTRATIONS (a) A sues B for the price of goods sold and delivered to B. C says that A delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible. (b) A is indicated for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.

The evidence is admissible. ______________ 8. 9.

10.

AIR 2006 SC 1367. Javed Masood v. State of Rajasthan, AIR 2010 SC 979 at p. 983. Clause (4) omitted by the Indian Evidence (Amendment) Act, 2002.

Page 589

S. 155] OF THE EXAMINATION OF WITNESSES COMMENTS

Scope.—Section 155 prescribes manner of impeaching the credit of a witness. Sections 138, 140, 145 and 154 provide for impeaching the credit of a witness by crossexamination. Section 146 permits questions injuring the character of a witness to be put to him in cross-examination. Section 155 lays down a different method of discrediting a witness by allowing independent evidence to be led. This section lays down four different ways in which the credit of a witness may be impeached. Clause 1.—Independent evidence may be given that a witness examined by the opponent bears such a general reputation for untruthfulness that he is unworthy of credit. The witness must be able to state what is generally said of the person by those among whom he lives. Clause 2.—Independent evidence may be given to prove that the witness has been bribed or has accepted the offer of a bribe. But it should be remembered that where the witness in question has been merely offered a bribe, no inference of any sort as to the testimony of the witness can be drawn. But demand of bribe by the witness should be proved.11 Clause 3.—Under clause (3) the credit of a witness may be impeached by proof of his former statement with any part of his statement before the court. Illustrations (a) and (b) are the examples of impeachment under this clause. Where it is intended to throw discredit upon the evidence of any witness nothing is more common in practice than to prove that the witness has previously made statement inconsistent with the evidence at the trial. When this is satisfactorily proved, the court cannot but regard the evidence of such witness with suspicion. In the case of Kehar Singh v. State (Delhi, Administration),12 it has been held that the statement made by a witness before the Commission constituted under the Commission Enquiries Act cannot be used (i) to subject the witness to any civil or criminal proceedings ; (ii) nor it can be used against him in any civil or criminal proceedings, the exception being that he can be prosecuted for giving false evidence. The statement to contradict him or impeach his credit is not permissible. In Majid v. State of Haryana,13 it was held by Supreme Court that, the method recognized by law under Section 155 (3) that the credit of witness can be impeached by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted if the former statement was in writing or was reduced in writing. Section 145 requires that the attention of witness must be called to those part of it which are used for the purpose of contradicting him. Is the witness to be cross-examined.—As seen before under Section 145, Evidence Act, if a witness intended to be contradicted with his previous ______________ 11. 12. 13.

Bhogi Lal v. The Royal Insurance, 26 ALJ 377. AIR 1988 SC 1883. AIR 2002 SC 382.

Page 590

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[S. 156

statement in writing, the attention of the witness must be drawn to it. Though under the terms of the present section, it is not necessary to cross-examine and confront the witness by the previous oral statement before it can be proved, yet it is both usual and advisable and just to the witness to first interrogate him just to give him opportunity to explain if he can.14 Section 145 and clause (3) of Section 155.—Under Section 145 a witness can be cross-examined and confronted only with that previous statement which was made in writing or was reduced to writing. That section is not applicable to oral previous statements. The clause (3) of the section is so worded that statements, verbal or written, may be used to impeach the credit under it but where the previous statement is in writing the provisions of Section 145 should be followed. Clause 4.—In trials for rape or attempt to commit that crime the evidence that she is a reputed prostitute can be given for it goes long way in raising an inference that she yielded willingly. Explanation.—In examination-in-chief a witness cannot be asked the reasons for his belief that another witness is unworthy of credit. Such questions can only be asked in crossexamination. Sections 52 and 155.—Sections 52 and 155 deal with different matters. Section 52 prohibits character evidence in regard to subject matter of the suit whereas Section 155 prescribes the manner of impeaching the credit of a witness. Section 155, cannot, therefore be construed as an exception to Section 52.15 Tape recording.—Tape recording is admissible under Section 155 subclause (3) to impeach the credit of the witness.16 Before Tape recorded statement can be relied upon the time and place and accuracy has to be proved.17 SECTION 156.—Questions tending to corroborate evidence of relevant fact, admissible.—When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. ILLUSTRATION A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

______________ 14. 15. 16. 17.

Stephen Sereverantne v. The King, AIR 1936 PC 289. Hussenaiah v. Yerraiah, AIR 1951 AP 39. Rama Reddy v. V.V. Giri, AIR 1971 SC 1162 ; Pratap Singh v. State of Punjab, AIR 1964 SC 72. D.R. Punjab Montogomery Transport Co. v. Raghuvanshi Pvt. Ltd., AIR 1983 Cal. 343 ; Yusuf Ismail v. State of Maharashtra. AIR 1968 SC 147.

Page 591

S. 157] OF THE EXAMINATION OF WITNESSES COMMENTS

Scope.—This section provides for the admission of evidence given for the purpose, not of proving a particular fact but of testing the truthfulness of the witness. Generally, there is no better way of doing this than by ascertaining the accuracy of his evidence as to surrounding circumstances. The section, in effect, declares evidence of certain facts to be admissible. SECTION 157.—Former statements of witness may be proved to corroborate latter testimony as to same fact.—In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. COMMENTS Scope.—This section allows a witness to be corroborated by proof that he said the same thing on the previous occasion, the only condition being that his previous statement shall have been made either about the time of the occurrence or before a competent authority. The force of any corroboration by means of previous consistent statement evidently depends upon the truth of the proposition that he who is consistent deserves to be believed. In Ram Prasad v. State of Maharashtra,18 the Supreme Court said that Section 157 of Evidence Act permits of proof of any former statement by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroborations of the testimony of witness. Conditions for admitting statements.—The previous statements made under either of the two following conditions may be admitted for corroboration under this section : (1) the statement must have been made at or about the time when the fact took place ; or (2) it must have been made before any authority legally competent to investigate the fact. At or about the time.—This section provides an exception to the general rule of excluding hearsay evidence and so in order to bring a statement within the exception the duty is cast on the prosecution to establish by clear evidence to proximity of time between the taking place of the fact and the making of the statement.19 There can be no hard and fast rule. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case, and before there was an opportunity for tutoring or concoction.20 The words "at about the time" must mean that the statement must be made at once or at last shortly after when a reasonable opportunity for making it presents itself. The object of the section seems to be to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them would be 18. 19. 20.

AIR 1999 SC 1969. Mangal Rai v. Emperor, AIR 1928 Lah. 647. Rameshwar v. State of Rajasthan, AIR 1952 SC 54 at p.58.

Page 592

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[S. 157

correct. What is a reasonable time is a question of fact.21 Where in a murder case, witnesses said that they heard the shot, went to the scene of occurrence, found the deceased dead and told by ‘A' and 'B' that 'F’ had committed the murder, it was held that the statement of the witness was admissible to corroborate 'A' and 'B' that they had said that 'F' had committed the murder.22 A statement made by a girl about her abduction 10 days after her abduction cannot be admissible under Section 157.23 Report made after 4 hours was held not to be made at or about the time of the occurrence.24 In Mahabir Singh v. State of Haryana,25 the Supreme Court held that statement was made soon after occurrence by solitary eye-witness to his father about occurrence. Father narrated the details heard by him from his son in FIR lodged by him. Interval between occurrence and time of reporting by eye-witness to his father did not cross the boundaries envisaged by the words "at or about the time" when the (occurrence) took place. In Section 157 testimony of father can be used for corroboration of evidence of eye witness, his son. Before any authority competent to investigate the fact.—If the former statement was not made at or about the time when the fact took place, it must be shown to have been made before any authority legally competent to investigate the fact. If the statement was not made at or about the time the occurrence took place nor before an authority legally competent to investigate the fact would not be admissible.26 A statement made by a witness before Commission can be used to contradict him or impeach his credit.27 A statement about a fact made on previous occasion before a Collector who had no authority to investigate the fact cannot be used under Section 157.28 Persons competent to investigate.—The words authority to investigate' are quite and general and should not be restricted to police officers and to investigations in the technical sense in which the word has been used in Criminal Procedure Code. The section requires competency of the authority to investigate the fact and not a case. The words ‘legally competent to investigate' does not mean only competent under some provision of law.29 In Ram Prasad v. State of Maharastra,30 the Supreme Court held that, the police is legally competent to investigate any statement made to him during such investigation cannot be used to corroborate, the testimony of witness because of clear interdict contained in Section 162 of Code. But a statement made ______________ 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

In re Jaseva Appadurai, AIR 1945 Mad. 821. Fakir Jumma Khan v. Emperor, AIR 1939 Peshawar 4. Tubarak Madal v. The King, AIR 1949 Cal. 629. Emperor v. Ram Chandra Roy, AIR 1949 Cal. 732. AIR 2001 SC 2503. Tika Ram v. The State, AIR 1957 All. 755. Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883. Thakurji v. Parmeshwar Dayal, AIR 1960 All. 339 ; Awadh Behari v. State of M.P., AIR 1956 SC 738. King Emperor v. Nilkantha, (1957) 1 All. 361 : ILR 35 Mad. 247 (FB). AIR 1999 SC 1969.

Page 593

S. 157] OF THE EXAMINATION OF WITNESSES

to a Magistrate, not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of Cr. P.C. and such statement would either be elaborated to the status of Section 32, if the maker of the statement happens to die, or it would remain in realm of what it was originally. A statement recorded by Magistrate under Section 164, Cr. P.C. becomes usable to corroborate the witness as provided under Section 157 of Evidence Act or to contradict him as provided under Section 155 of Evidence Act. Is the statement be communicated to others.—The statement under Section 157 means only something that is stated and the element of communication to another person is not necessary before 'something that is stated' becomes a statement under that section. Hence the notes of attendance prepared by a witness regarding the conversation that took place between him and other prosecution witnesses in connection with defalcation made by the accused would be statement within the meaning of Section 157.31 Witnesses to be corroborated need not say in court that he made the former statement.—There is nothing in Section 157 which requires that before the corroborating witnesses depose to the former statement the witness to be corroborated must also say in his testimony in court that he had made that former statement to the witness who is corroborating him. Of course if the witness to be corroborated also says in his testimony that he had made the former statement to some one, that would add to the weight of the evidence of the person who gives evidence in corroboration, just as if the witness to be corroborated says in his evidence that he had made no former statement to any body that make the statement of any witness appearing as a corroborating witness as to the former statement of little value. But in order to make the former statement admissible under Section 157 it is not necessary that the witness to be corroborated must also, besides making the former statement at or about the time the fact took place says in his testimony that he had made the former statement.32 Time for giving corroborative evidence.—Ordinarily before the corroborative evidence is admissible the evidence sought to be corroborated must have been given.33 It is doubtful whether Section 136 gives the court any discretion to allow evidence to corroborate a witness to be given under Section 157, before the witness, himself is examined. The court has, no doubt, a discretion to allow evidence to be given under Section 157 out of the regular order, but such discretion should be rarely used and only for very special reasons. THE PERSON SURVIVING AFTER MAKING DYING DECLARATION Problem—Question.— 'A' who was hit by bullet stated in the hospital in the presence of a Magistrate that 'B' had fired at him. But 'A' did not die of this injury. Is the statement of 'A' made in the presence of the Magistrate

______________ 31. 32. 33.

Bhogi Lal Chunni Lal Pandey v. State of Bombay, AIR 1959 SC 356. Ram Ratan v. The State of Rajasthan, AIR 1962 SC 424. Muthu Goundan v. Chinniah, AIR 1937 Mad. 861.

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EVIDENCE ACT

admissible in evidence against 'B'? Can it be of any other use ? (U.P. P.C.S. J— 1986), Answer.—If the person making the statement is not dead, his statement would not be admissible as dying declaration under Section 32 (1) but it can be used under Section 157 of Evidence Act at the time of his examination. Here, the statement made by 'A' is admissible under Section 157. SECTION 158.—What matters may be proved in connection with proved statement relevant under Section 32 or 33.—Whenever any statement, relevant under Section 32 or 33 is proved all matters may be proved, either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person have been called as a witness and had denied upon cross-examination the truth of the matter suggested. COMMENTS Scope.—The statements admissible under Section 32 or 33 are exceptional cases and the evidence is only admitted from the impossibility, improbability or great inconvenience of producing the authors of the statements. It is just, therefore, that all the same safeguards for veracity should be provided as if the authors of the statements are themselves before the Court and subjected to oath and cross-examination. So with regard to the impeachment of witnesses, the general rule applies where the witness whose testimony is attacked is deceased or absent. This section places a person whose statement has been used as evidence under Section 32 in the same category as a witness actually produced in court for the purpose of contradicting his statement by a previous statement made by him.34 In State of Tamil Nadu v. Suresh and others,35 statement was made by witness before his mother-in-law about his version of occurence. Witness not proved to be tutored during interrogation. This statement can be treated as corroborate evidence. SECTION 159.—Refreshing memory.—A witness may, while under examination, refresh his memory to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at the time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. When witness may use copy of document to refresh his memory.—Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court refer to a copy of such document: Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

______________ 34.

Hari Ram v. Emperor, AIR 1926 Lah. 122.

35.

AIR 1998 SC 1044.

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S. 159] OF THE EXAMINATION OF WITNESSES

An expert may refresh his memory by reference to professional treatises. COMMENTS Refreshing memory by witness.—A witness allowed to refresh his memory, respecting anything upon which he is questioned, may refresh by means of a writing. It is not necessary that the document, used for refreshing the memory should be relevant.36 It should be borne in mind that for refreshing memory the document or writing may not be admissible but facts tried to be proved must be admissible under this section.37 When a witness is examined to state about a fact, three distinct elements are present. First, witness must have observed the fact in question. Secondly, the witness must have recollection of the fact observed. Thirdly, he must communicate his recollection to the Court. Thus, the element of recollection stands between the element of observation of knowledge which is produced, and the element of communication. If a witness has no recollection of a fact observed by him, certainly, cannot narrate it before a tribunal. The cardinal principle of narration is that it must correspond to the recollection; the story told by a witness, whether orally or in writing must represent his knowledge and recollection.38 There are two sorts of recollection—present recollection and past recollection. In the case of the present recollection, the witness either clearly remembers the facts to be stated by him or he can recollect it by refreshing his memory by some writing, etc. In the case of the past recollection the witness does not remember the facts observed by him and cannot revive it by refreshing his memory, but there was a time when he did have a sufficient recollection and when it was recorded so that he can depend on this record to prove the fact. Section 159 deals with present recollection while Section 160 refers to past recollection. Documents which being seen bring conviction to the mind to witness can be used for refreshing his memory.39 Section 159 lays down that a witness, while under examination, may refresh his memory by looking into a writing made by himself at the time of the transaction or so soon afterwards that in the opinion of the Court it is likely that the transaction was fresh in his memory, or made by some other person but read by the witness so soon after the transaction that the Court considers that it is likely that the transaction was fresh in his memory when he read it. The section also allows a witness to refresh his memory by looking into a copy of a document, referred to above, with the permission of the Court provided the Court is satisfied for the non-production of the original. Under this section, experts are allowed to refresh their memory with reference to professional treatise.

______________ 36. 37. 38. 39.

Emperor v. Mahadeo, AIR 1946 Bom. 189. Bhondu v. Emperor, AIR 1949 Alld. 364. Wigmore—Evidence. Abdul Salim v. Emperor, AIR 1922 Cal. 107.

Page 596

EVIDENCE ACT

[S. 159

The secondary evidence by oral account of the contents of documents can be given by a person who has himself seen the original or the copies made from the original or copies compared with the original. The copy of the original can be used for refreshing a memory before the witness gives evidence when the non-production of original was accounted to the satisfaction of the Court, such secondary evidence must be authenticated by foundational evidence that the alleged copy was in fact a true copy of the original. Where the notes noted down at the time of inspection of documents were not the true copies of the originals they could cannot be tendered as secondary evidence in any form either by marking or reproducing its contents by way of refreshing memory under. Section 159 of the Act.40 Any writing.—This section entitles a witness to refresh his memory by any writing. Writing includes printing, lithography and photography, etc.— The word "writing" has been defined in the General Clauses Act as "Expressions referring to 'writing' shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form". From this, it is clear that if the conditions of Section 159 are satisfied a witness can refresh his memory by writing, photography, lithography, printing or other modes of representing or reproducing words in a visible form. A newspaper.—As seen above a witness can refresh his memory by a printed matter. A witness attended a meeting, heard the speech of one Ram Chandra. The next day, the witness read the report of the speech in a newspaper. He found it to be correct. It was held that the witness could refresh his memory, at the time of his examinations, by looking into the newspaper.41 Tape-recorded statement.—As seen above writing includes printing, lithography, photography and other modes of representing or reproducing words in visible form (Section 3 (65), General Clauses Act). The words "in visible form" exclude the possibility of a taperecording being a "writing".42 The tape-recording, not being a writing, cannot be used for refreshing memory by a witness. Documents not produced at the proper time.—The Bahis of the plaintiff were not produced at the proper time. The Court refused the plaintiff to produce his account books but permitted him to refresh his memory by looking in the entries in them. It was held by the Privy Council that the evidence was admissible under Section 159.43 A document not entered in the list of document as required by Order VII, Rule 13 of the C.P.C. may be used for refreshing memory.44 Papers filed late may be used to refresh the memory.45

______________ 40. 41. 42. 43. 44. 45.

M. Manohar v. T.R. Mills, 1992 (3) Kant LJ 399. Ram Chandra v. Emperor, AIR 1930 Lah 371. Roop Chand v. Mahabir Parshad, AIR 1956 Punj 173. Jivan Lal Dage v. Nitmani, 26 ALJ 124 (PC). Banwari Lal v. Mahesh, AIR 1918 PC 118. State v. Haris Chand, AIR 1966 Ori 189.

Page 597

S. 159] OF THE EXAMINATION OF WITNESSES

Refreshing memory by any writing.—The section does not contemplate any particular or special sort of document for refreshing the memory of a witness. Any document fulfilling the conditions of Section 159 may be used for the purpose. Memoranda kept by the witness of some transactions though the accounts were not regularly kept, were allowed to be used for refreshing memory.46 An account book,47 horoscope,48 a private note book,49 loose sheets of accounts said to be prepared at the time of audit,50 have been held to be admissible for refreshing the memory of a witness. Memory can be refreshed by shorthand notes and full shorthand transcript by those who heard the speeches.51 Section 162, Criminal Procedure Code prohibits the use of statement made under Section 161 for any purpose except for the contradiction if the person appears as witness in the Court. The prohibition in the section is absolute; consequently a witness cannot refresh his memory by looking into his statement recorded during investigation under Section 161, Cr. P.C.52 A witness can refresh his memory looking into his first information report.53 Records of investigation.—In State of Karnataka v. Yarappa Reddy,51 the investigation officer was asked during his examination-in-chief about what happened on fateful day. Investigation officer wanted to check his records, as he could not remember without refreshing his memory. It was held by Supreme Court that objection by defence counsel was untenable. Records of investigation officer were contemporaneous entries made by him and hence for refreshing his memories. It was always advisable for/him to look into those records before answering the question. At the time of transaction or soon after it.—Before a witness is allowed to refresh his memory from any writing made by him, the requirements of Section 159, Evidence Act should be complied with. It must be shown that the writing was made by the deponent at the time of the transaction or so soon after that the Court considers it likely that the transaction was at the time fresh in his memory. A doctor, when he entered into the witness-box was given a slip of paper by a pleader. After looking at the slip the doctor deposed that he examined the complainant and found injuries on his person. He did not depose as to what the slip of paper was when it was made. It was held that the evidence was inadmissible.55 A witness can refresh memory regarding the facts stated by him if the writing was made either at the time of the transaction or shortly after the transaction.56

______________ 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56.

Abdul Latif v. Man Singh Rao, AIR1930 Nag 24. Jivan Lal v. Nitmani, AIR 1928 PC 80. Banwari Lal v, Mahesh, AIR 1918 PC 118. Republic of India v. G.A.N. Rajan, AIR 1967 Ori 115. State v. Haris Chand, AIR 1966 Ori 189. Z.B. Bhukhari v. B.R. Mehra, AIR 1975 SC 1788. Tanu Kayaputra v. State, 1977 Cri LJ (NOC) 119 (Cal). Islam v. State, 1980 Cri LJ NOC 115 (All). AIR 2000 SC 185. Panna Lal v. Nanigopal Biswas, AIR 1949 Cal 103. Indra Mohan Brahma v. State of Assam, 1982 Cri LJ (NOC) 127 (Assam).

Page 598

EVIDENCE ACT

[S. 159

Writing made by some other person.—A writing made by another person may be used for refreshing his memory by a witness if he read it soon after the preparation of writing and when he read it he knew it to be correct. From this, it cannot be inferred that the witness can refresh his memory by any writing made by a third person. In order that the writing of a third person may be used for refreshing his memory, the witness must have the first hand knowledge of the facts reduced in writing. The transaction happens before the witness but instead of the writing being made by himself it is made by some other person and the witness reads it within time when the transaction is fresh in his memory and while reading it he knew it to be correct. If this were not so, a hearsay evidence will creep in adopting the method laid down in Section 159. It is necessary that the document should be prepared in the presence of the witness. The document might have been prepared by another person and in absence of the witness. It is essential that the witness should have read it soon after the transaction and knew it to be correct. The witness stated that he heard the appellant's speech and that the next morning he read a report on account of that speech in the Bande Mataram Newspaper of that date. The witness tried to refresh his memory by looking the newspaper of that date. It was held that the witness was entitled to refresh his memory by looking the newspaper.57 Obligation of witness to refresh his memory.—If upon any question any witness suffers from a bona fide lapse of memory, and that failure of memory can be remedied by reference to any memorandum or other writing prepared by the witness at the time and the Courts invites the witness to refresh his memory with reference to the writing, the witness is under obligation to do so.58 A medical man.—A medical man while giving evidence may refresh his memory by referring to the report which he made but the report itself cannot be treated as evidence and no fact can be taken therefrom.59 The document may not be relevant—The fact must be admissible.—The section does not require that the writing which is used to refresh the memory of a witness should itself be admissible in evidence. Although a Panchnama was written by police officer during investigation, it was immediately read to the Panches and admitted by them to be correct, it was held that the Panch witness could refresh his memory by reading it.60 A statement recorded in writing by a police officer in course of an investigation cannot be used in evidence yet the police officer might use to refresh his memory.61 But it should be borne in mind that for refreshing memory, the document need not be admissible but the facts tried to be proved must be

______________ 57. 58. 59. 60. 61.

Ram Chandra v. Emperor, AIR 1930 Lah 371. Harkhoo v. Emperor, 19 ALJ 76 ; Fatnaya Lal v. Emperor, AIR 1942 Lah 89 ; Mohiuddin Khan v. Kingh Emperor, AIR 1924 Pat 829. Raghni Singh v. R., ILR 9 Cal 455 ; Mohammad Sadiq v. Emperor, AIR 1926 Lah 51; Rangappa Goundan v. Emperor, AIR 1936 Mad 426 ; Vidyamati v. The State, AIR 1951 HP 82 ; Hadi Kirsani v. State, AIR 1966 Ori 21. Emperor v. Mahadeo Dewoo, AIR 1946 Bom 189. Queen Empress v. Sitaram, ILR 11 Bom 657.

Page 599

S. 159] OF THE EXAMINATION OF WITNESSES

admissible in evidence. A fact inadmissible in evidence cannot be brought on record by means of Section 159 of the Act.62 A Magistrate, during investigation of a case, followed the accused who showed him certain places. The Magistrate prepared only a memorandum. It was held that the Magistrate may refresh his memory by looking into the memorandum though the memorandum was inadmissible in evidence.63 Document does not become evidence but its details may be given by refreshing memory.—Under Section 159, a document does not become a substantive evidence in the case. The witness has to refresh his memory by reading the memorandum and then he should depose the facts mentioned therein. The document is not tendered in evidence.64 But a witness by refreshing his memory may give the details.65 Contents of the record of the statement of the accused under Section 27 of Evidence Act.—Normally, a police officer should reproduce the contents of the statement made by the accused under Section 27 of Evidence Act in Court by refreshing his memory under Section 159 of Evidence Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it. That would be a perfectly unexceptionable way of proving such a statement. Where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances that it could hardly be expected in the natural course of human conduct that he could or would have precise or dependable recollection of the same, it would be open, under Section 160 of Evidence Act, to the witness to rely on the document itself and swear that the contents thereof are correct.66 Witness of a search list.—A Panchnama or search list is not evidence. A witness in whose presence the search was made may refresh his memory by the Panchnama. Only his statement is evidence.67 Recovery list on the statement of accused under Section 27 of Evidence Act.—Such list or memoranda or Panchnama can only be used by persons who signed them or who prepared them to refresh their memory within the meaning of Section 159 of Evidence Act, Whatever statement is attributed to an accused person in police custody giving information leading to discovery must be proved by the witness like any other facts. The evidence relating to the preparation of Panchnamas of a list of discovery of a memorandum should not be allowed to depend on the ingenuity of the police officer who may or may not like to write the statement in the exact words of the accused.68

______________ 62. 63. 64. 65. 66. 67. 68.

Bhondu v. Rex, AIR 1949 All 364. Abdulla v. Emperor, AIR 1933 Lah 716. Emperor v. Mahadeo Dewoo, AIR 1946 Bom 189 ; Bhika v. King Emperor, AIR 1924 Lah 605 ; Mohan Singh v. Bhanwar Lal, AIR 1964 MP 137. Ashwini Kumar v. Union Territory, Tripura, AIR 1969 Tri 26 ; State of A.P. v. Ganeshwara Rao, AIR 1963 SC 1850 ; Emperor v. Mahadeo Dewoo, AIR 1946 Bom 189. Dharma v. State, AIR 1966 Raj 74. States. Raiji Bhai, AIR 1960 Guj 24; Miya Bhai v. State, AIR 1963 Guj 188. Bhagirath v. State of M.P., AIR 1959 MP 17.

Page 600

EVIDENCE ACT

[S. 160

No need to establish lack of recollection.—For refreshing his memory under Section 159 of Evidence Act, the witness need not establish a case of lack of recollection.69 SECTION 160. —Testimony to facts stated in document mentioned in Section 159.—A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. ILLUSTRATION A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

COMMENTS

Principle and scope.—It has been seen that the previous section deals with cases where a reference to the writing revives in the mind of the witness a recollection of the facts relating to the transaction, i.e., as soon as he looks at the writing he remembers the facts. But it may be that even a perusal of a document does not refresh his memory, i.e., it does not revive in his mind a recollection of fact. Under Section 160 it is not necessary that the witness looking at the written instrument should have an independent or specific recollection of the matters stated therein. They might have completely slipped from his memory. Even then he may testify to the facts referred to in it, if he recognises the writing or signature and feels sure that the contents of the document were correctly recorded. Difference between Sections 159 and 160.—Under Section 159 the witness refreshes his memory by looking at the document and gives his evidence in the ordinary way. The document is not in itself evidence nor is it tendered. But under Section 160 his memory is not refreshed and although he has no specific recollections he guarantees that the paper contains a true record of facts. Here the document itself is tendered and it is evidence.70 SECTION 161.—Right of adverse party as to writing used to refresh memory.—Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

COMMENTS Principle and scope.—This section awards to the adverse party a right to the production and inspection of, and cross-examination upon all that is made use of, for the purpose of refreshing the memory of the witness. SECTION 162.—Production of documents.—A witness summoned to produce a document shall, if it is in his possession or power, bring it

______________ 69. 70.

Dharma v. State , AIR 1966 Raj 74: Krishnappa v. R., ILR 54 Mad. 678 ; Dharma v. State, AIR 1965 Raj. 73 ; Amulya Patnayak v. State, AIR State, AIR 1967 SC 115.

Page 601

S. 163] OF THE EXAMINATION OF WITNESSES

to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. Translation of documents.—If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence ; and if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code (Act 45 of 1860). COMMENTS Scope.—The section deals with the production of documents in answer to summons and it seems that the section makes it obligatory on the witness to produce the document summoned by the Court and he has no right to decide whether the document shall be produced.71 Validity of objection to be decided by Court.—The validity of any objection made by the person producing the document will be decided by the Court.72 This section makes it incumbent upon a witness to produce a document, if it is in his possession or power to bring it into court notwithstanding any objection which there may be to its production or to its admissibility. The objection has to be decided by the court. The section gives power to the court to inspect the document or to take other evidence to enable it to determine on the issue of admissibility. But section precludes the court from inspecting any document which refers to matters of State. In cases of such documents the court must decide the point of privilege on some other material.73 Such documents can be inspected in appropriate cases.74 Procedure for claiming privilege.—See under Section 123. SECTION 163. —Giving, as evidence, of document called for and produced on notice.— When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so. COMMENTS Scope.—Section 163 gives provision for the production of document by one party to the suit or proceeding on instance of the other.

______________ 71. 72. 73. 74.

Bhaichandra v. Chabasappa Mallappa, AIR 1939 Bom. 237. Ganga Ram v. Habibullah, AIR 1936 All. 212. Lady Dinbai Dinshaw Petiti v. Dominion of India, AIR 1951 Bom. 72 ; State of Punjab v. S.S. Singh, AIR 1961 SC 493. Raj Narain v. Indira Gandhi, AIR 1974 All. 324.

Page 602

EVIDENCE ACT

[S. 164

It lays down that if a party to the proceeding summons a document from the other party and inspects it he cannot refuse to produce it in the case if the party producing the paper so desires. This section applies not only to civil cases but also to criminal trials.75 Ingredients of the section.—Under Section 163 the party is bound to give the opponent's document as evidence, in the case if the three conditions are fulfilled. (1) The first condition is that the document should be required by that party to be produced in evidence. (2) The second condition is that it should be inspected by the party. (3) The third condition is that the party producing the document should require the party calling for it to put it in evidence.76 Such documents need no further proof and should be admitted in toto.77 Value of such evidence.—There is no authority for the proposition that the evidence which is admitted under this section must be deemed to be conclusive against the party who has inspected the document. The language of the section does not suggest this. All that happens is that the documents which the other party has produced become evidence in the cases for what they are worth.78 SECTION 164.—Using, as evidence, of document production of which was refused on notice.—When a party refuses to produce a document which he has notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. ILLUSTRATION A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so. COMMENTS Principle.—Where an opponent in possession of a document refuses to produce it on demand, he is afterwards forbidden to produce the document to contradict other party's secondary evidence. This is in one sense a proper penalty for unfair tactics. Scope of the section.—If the opponent, having a document in his possession, refuses to produce it when called upon at the hearing to do so, he is not at liberty afterwards to give the document in evidence for any purpose. SECTION 165.—Judge's power to put questions or order production.—The Judge may, in order to discover or to obtain proper

______________ 75. 76. 77. 78.

Emperor p. Makhan Lal, AIR 1940 Cal. 167. Liladhar Ratanlal v. Holkarmal, AIR 1959 Bom. 528. Rajeshwari Kaur v. Rai Bal Krishna, ILR 9 All. 713 ; Badri Prasad v. Shanti Lal, AIR 1941 Lah. 228. Ram Adhin v. Ram Dayal. AIR 1919 Oudh. 8.

Page 603

S. 165] OF THE EXAMINATION OF WITNESSES

proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing ; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, not, without the leave of the Court to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party ; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149, nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. COMMENTS Judge's power to put questions.—A Judge's right to put questions to witnesses expressly recognised by Section 165, Evidence Act. He is expected, and indeed it is his duty to explore all avenues open to him, in order to discover the truth, and to that end, question witnesses on points which the lawyers for the parties having either overlooked or left obscure or wilfully avoided. If therefore the Judge finds that the examination of a witness is not being conducted in such a way as to unfold the truth, it is not only his right, but his duty to intervene with his own questions. The presiding officer must cease to be a spectator and a mere recording machine. He must participate in the trial. He must show intelligent interest and put questions to witnesses in order to ascertain the truth. But this he must do, without unduly trespassing upon the functions of the counsel of parties. He must not play a part of a party nor should he frighten or bully the witnesses.79 Court's power to ask question.—Judge's part in hearing of a case is to hearken to the evidence, only himself asking questions to witnesses when it is necessary to clearing any point that has been overlooked or left absence, to see that the advocates behave themselves properly and keep to the rules laid down by law. It is the duty of a Judge to discover the truth and for that purpose he may ask any question and in any form, at any time, of any witnesses or of the parties about any fact relevant or irrelevant. But this he must do, without unduly trespassing upon the function of the counsel of the parties without any hint of partisanship and without appearing to frighten or bully witnesses.80 The time.—Although the law allows the Judge to put any question to any time generally considered proper for an extended examination is, when lawyers for the parties, have finished their questions or at least, when the lawyer,

______________ 79.

Ram Chander v. State of Haryana, AIR 1982 SC 1036.

80.

Ibid.

Page 604

EVIDENCE ACT

[S. 165

examining the witness at the time is passing on to a new subject. The Judge may always intervene, in the course of examination by counsel to put a question in a clearer form or to have an obscure answer clarified or to prevent a witness, being unfairly misled, but if he does more, and stops counsel again and again to put a long series of his own questions, he makes an effective examination or cross-examination impossible, and demerits the trial from its material course. There is no limit to the questions which the Judge may put, and if he considers, that he has not yet got at the bottom of the matter, or that the witness has not yet made his full meaning clear, there is no reason why he should not go with the examination, whatever the number of the questions required to achieve the purpose of eliciting the truth may be.81 Cross-examination on answers given to the Court.—Under Section 165 the parties have no right to cross-examine any witness or answers given to the question of the Court except with the permission of the Court. The discretion will have to be exercised judicially and ordinarily the Judge would give the requisite permission if the answers given are adverse to the party who seeks the said permission.82 Proviso 1.—No doubt a Judge is empowered to put irrelevant questions to witness, he cannot base his judgment on irrelevant facts. The judgment must be based on facts declared relevant by the Act and duly proved. Having regard to the stringent provisions of the section a judgment based on irrelevant fact cannot be sustained.83 Proviso 2.—Where the question is asked, with a view to criminal proceeding being taken against the witness, the witness is not legally bound to answer it and he cannot be punished under Section 179, I.P.C. for refusing to answer.84 Section 165 Evidence Act and Section 162, Criminal Procedure Code.—It is true that the ban imposed by Section 162, Criminal Procedure Code against the use of a statement of a witness recorded by the police during investigation is very sweeping. But under Section 165 a court is authorised to make use of statements made by witnesses during the course of investigation. The restrictions under Section 162, Criminal Procedure Code cannot limit the power of court under Section 165 Evidence Act.85 Section 165 of Evidence Act arid Section 311 of Cr. P.C—Section 165 of Evidence Act is complimentary to its power under Section 311 of the Cr. P.C. The section consists of two parts—(1) giving discretion to the Court to examine witness at any stage, and (2) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. The discretion given to the Court is very wide; the very width requires a corresponding caution. Object of the section is to enable the

______________ 81. 82. 83. 84. 85.

Sunil Chandra Roy v. State, AIR 1954 Cal 305. Ram Chandra Reddy, In re, AIR 1958 AP 165. Punnu Swamy v. Surga Ram, ILR 14 Mad. 731. Queen Empress v. Hari Lakshman, ILR 10 Bom. 185 ; Queen Empress v. Ishari, ILR All. 672 at 675. Raghunandan v. State of U.P., AIR 1974 SC 463.

Page 605

S. 166] OF THE EXAMINATION OF WITNESSES

Court to arrive at the truth irrespective of the fact that the prosecution or defence has failed to produce some evidence which is necessary for a just and proper disposal of the case.86 SECTION 166.—Power of jury or assessors to put questions.—In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the Judge, which the judge himself might put and which considers proper. COMMENTS The privilege to examine witnesses, has long been extended to jurors. The assessors may also like the jury, be allowed to put questions through the Court to the witnesses under examination.

______________

86. Himanshu Singh Sabharwal v. State of MP., AIR 2008 SC 1943 at p. 1950 ; Mohan Lal v. Union of India, 1991 Supp. (1) SCC 271: AIR 1991 SC 1346 referred to.

Page 606

CHAPTER XI OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

SECTION 167.—No new trial for improper admission or rejection of evidence.—The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. COMMENTS Scope.—This section lays down that the improper admission or rejection of evidence is not a ground for reversal of judgment or for a new trial of the case, if the Court considers that independently of the evidence improperly admitted, there was evidence enough to justify the decision, or that, if the rejected evidence had been admitted it ought not have varied the decision. When therefore, an appeal is grounded on the improper exclusion or admission of evidence, the appellant must be prepared to show, not only that there has been an improper admission or exclusion but that a mockery of justice has been thereby caused. Civil and Criminal cases.—The section applies to civil and criminal cases. Effect of improper admission or rejection in civil cases.—The improper admission or rejection of evidence is not ipso facto ground for new trial, where there is ample evidence to justify decision irrespective of the admission or the rejection of the evidence.1 But it should be borne in mind that the reception of inadmissible evidence is less injurious than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas in the latter case the evidence wrongly rejected can only be brought on record by having recourse to further proceeding.2 In criminal cases.—The section applies to criminal cases also.3 It is only when the High Court feels doubt that if one fact were not there whether the opinion or decision of a certain authority would have been the same, that the High Court interferes but where it is patently clear that there would have been no other decision, in that event the extraneous circumstances above would not vitiate the order.4

______________ 1. 2. 3. 4.

Gajadhar v. Nand Lal, AIR 1934 Pat. 55. State of Mysore v. Sampanyiramiah, AIR 1953 Mys. 80. Abdul v. Emperor, AIR 1946 PC 82. Madan Lal v. Principal, H.B.T. Institute, AIR 1962 Alld. 166.

Page 607 S. 167]

OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE

Rejection of evidence—Material of.—Where it is clear from the record that the prosecution, though it had cited certain person as witness was not very keen to examine him and when that person objected to give evidence, the prosecution dropped him; it is not a case in which evidence can be said to have been rejected within Section 167 of Evidence Act. In such a case the prosecution does not in fact tender the person as a witness.5 As regards rejected evidence, the question under Section 167 is not so much whether the evidence rejected would not have been accepted against the other testimony on the record as whether the evidence "ought not to have varied the decision."6 The Schedule.—Repealed.

______________

5

N

St t

f P j b AIR 1959 SC 484