11.

EVIDENCE LAW

The main principles of the law of evidence are:

Evidence must be confined to the matters in issue;

Hearsay evidence must not be admitted;

The best evidence must be given in all cases. (Janki Narayan Bhoir v. Narayan
Namdeo Kadam, (2003) 2 SCC 91)

Definitions

The term ‘fact’ has been defined inclusively and includes any thing, state of
things, or relations of things, capable of being perceived by the senses, and
any mental condition of which any person is conscious.

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 the Act relating
to the relevancy of facts

A ‘fact in issue’ 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.

All relevant facts may not form part of the facts in issue.

Illustration: A is accused of the murder of B by clubbing B to death. At A’s

trial, the following facts may be in issue: (1) That A caused B’s death; (2) That
A intended to cause 20 B’s death; and (3) That A had received grave and sudden
provocation from B. The fact that B had an incurable disease may be a relevant
fact, but may not be a fact in issue.

The term ‘evidence’ has been defined inclusively and can be understood as
the material placed before a court, based on which a court determines the
existence or non- existence of a fact in issue

The definition under S.3 of the Act specifically covers oral and documentary
evidence.

For instance, in a criminal case under S.138 of the Negotiable Instruments Act,
1881, though the burden to prove the case is upon the complainant / drawee of
the cheque, there exists a presumption in his favour
It is, however, open for the drawer / accused to rebut such a 15 presumption
by leading appropriate evidence in trial.

Standard of Proof

The standard of proof depends on the nature of proceedings. In civil cases, the
standard of proof is generally a preponderance of probabilities or balance
of probabilities,

whereas in criminal cases, the standard of proof is that of beyond all

reasonable doubt.

The more serious the offence, the stricter the degree of proof that is required,
since a higher degree of assurance is required to convict the accused.
(Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377)

In criminal cases, the accused enjoys a presumption of innocence that the

prosecution must disprove to secure a conviction from a Court.

The Relevancy of Facts:

S.3 states that 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
the Act relating to the relevancy

S.6 of the Act: ‘Res Gestae’

This section deals with the relevancy of facts forming part of the same
transaction. The section provides that facts are relevant, even though they are
not in issue, if they form part of the same transaction

This is true for all such facts, whether they occur at the same time and
place, or at different times and places.

Sir James Stephen defines the term ‘transaction’ as a group of facts so

connected together as to be referred to by a single name, including as a
crime, a contract, a wrong, or any other subject of enquiry which may be in
issue.

Illustration: A is accused of the murder of B by beating him. Whatever was

said or done by
A or B or the bystanders at the beating, or shortly before or after it, so as to
form part of the transaction, is a relevant fact.

Ss.7 - 9 of the Act

Ss.7 - 9 of the Act illustrate the principle of the relevance of facts forming
part of a transaction, as laid down in S.6.

S.8 makes relevant any fact that shows or constitutes motive or preparation
for any fact in issue or relevant fact. S.8 also includes ‘preparation’ and
‘conduct’ of a party in relation to any suit or proceeding as being relevant.

Illustration: The question is, whether A owes B Rs.10,000/-. The fact 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.

sec11:facts which are not relevant becomes relevant:plea of alibi

sec15:accidental/unintentional,
sec16:course of business relevant.

Ss.17 – 23 of the Act: Admissions

Admissions are defined in S.17 as a ‘statement, oral or documentary or

contained in electronic form, which suggests any inference as to a fact

In issue or relevant fact, and which is made by any of the persons, and under
circumstances, hereinafter mentioned.’

Ss.24 – 30 of the Act: Confessions

S.24 expressly bars any confession made by a person, which appears to the
Court as having been made by virtue of any inducement, threat, or
promise, proceeding from a person in authority

Ss.24 - 26 of the Act deal with confessions that are irrelevant, while Ss.27 - 30
of the Act deal with confessions that the Court can take into account. The term
‘confession’ is not defined in the Act.

S.25 bars confessions made to police officers by accused persons. The

purpose of S.25 is to ensure that police officers do not extort confessions by
using illegal means

Under S.26, no confession made by any person while in the custody of a

police officer, unless made in the immediate presence of a Magistrate, shall
be proved as against such person

S.27 provides that where any fact is discovered as a consequence of

information received from an accused person while in the custody of a police
officer, such information that relates distinctly to the fact discovered may be
proved.

S.29 deals with extra-judicial confessions that 5are not governed by Ss.24 -
28.

S.30 deals with confessions of co-accused persons. This provision may be

contrasted with S.133, which deals with the evidence of an accomplice. S.133
provides that an accomplice shall be a competent witness against an
accused person.

Dying Declarations

S.32(1) deals with the statements made in relation to cause of death.

Statements made under this provision are otherwise known as dying
declarations

S.32 is an exception to the hearsay rule. This provision is often brought into
use during dowry harassment cases, where the dowry victims are afforded
opportunities to give their statements, after being declared competent to do so
by a medical professional; these statements can then be used in a criminal
proceeding.

In Pakala Narayanswami’s case, the deceased made a statement to his wife

that he was going to the accused to collect money. A few days 25 later the
deceased’s body was found in a trunk that had been purchased by the
accused

Ss.45 - 51 of the Act: Opinion of Third Person When Relevant

S.45 provides that when the Court has to form an opinion upon a point of
foreign law, science, or art, or identify handwriting ,finger impressions, the
opinions of experts are relevant facts.

S.52 - 55 of the Act: Character When Relevant

Ss.53 and 54 deal with the evidence of character of parties in criminal cases.
The term ‘character’ under the explanation to S.55 includes both, the
reputation and the disposition of a person

Under S.54, in a criminal trial, the previous bad character of an accused is

irrelevant unless evidence has been given that he has a good character, in
which case the fact that the accused has a bad character, becomes
relevant.bad character ion prosecutor in return.

PART II: ON PROOF

SS.56 - 58 OF THE ACT: FACTS WHICH NEED NOT BE PROVED:

S.57 provides facts of which the Court must take judicial notice and by
virtue of S.56, such facts need not be proved

These facts include, for instance, all laws in force in the territory of India,
the divisions of time, the geographical divisions of the world, public
festivals, fasts, and holidays notified in the official gazette.

S.58 provides that facts that have been admitted by the parties need not be
proved.

SS.59 - 60 OF THE ACT: ORAL EVIDENCE:

All statements which the Court permits or requires to be made before it by

witnesses in relation to the matter of fact under inquiry are called oral evidence

S.59 provides that all facts barring the contents of documents may be
proved by oral evidence

S.60 is an expression of the ‘hearsay rule’ and requires that oral evidence in
all cases be direct.

Therefore, a witness can only give evidence of a fact of which he has first-
hand knowledge.

llustration: A is sued by B for a sum of money owed to B by A. C in his

evidence states that B is owed money by A, which fact is in his personal
knowledge by virtue of the fact that C was present at the time when B lent
money to A.

C’s oral evidence is relevant and would constitute direct evidence. If, however,
C in his evidence says that X told me that “A owes money to B”, the same
would be hearsay evidence and would not be relevant.

DOCUMENTARY EVIDENCE:

S.74 defines a class of documents as ‘public documents.other than public

documents are private documents

PRIMARY AND SECONDARY EVIDENCE:

S.61 states that the contents of documents can be proved either by primary
or secondary evidence.
S.63 provides an inclusive definition of secondary evidence and includes
within its ambit, certified copies, copies made from the original by a
mechanical process, counter-parts of documents,

The Act under S.65 provides circumstances where secondary evidence can be
used to prove a document in the absence of primary evidence for the same

Secondary evidence can only be given when the primary evidence of the
document itself is admissible

Secondary evidence cannot be given of a document, when the original is found

to be inadmissible.

Illustration: 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

Illustration: 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, though the copy from which it was transcribed was
compared with the original.

The Act was amended by the Information Technology Act, 2000, to provide for
the admissibility of electronic records

S.65–A provides that the contents of electronic records can be proved in

accordance with S.65-B. S. 65-B provides conditions under which electronic
records can be proved.

SS.91 – 100 OF THE ACT: EXCLUSION OF ORAL BY DOCUMENTARY

EVIDENCE:

S.91 provides that when the terms of a contract have been reduced into a
document, and in all cases in which any matter required by law is reduced to a
document, such document can be proved only by the document itself, or by
secondary evidence of its contents in certain specified cases.

This section embodies the ‘best evidence’ rule - that best evidence ought to
be placed before a court to prove a fact.

Illustration: If a contract be contained in several letters, all the letters in which it

is contained must be proved.

Illustration: A gives B a receipt for money paid by B. Oral evidence is offered of

the payment. The evidence is admissible.
S.92 supplements S.91 by providing that once a contract has been proved
by writing, then no evidence can be given of any oral agreement as between
the parties to contradict.

Illustration: A agrees absolutely in writing to pay B Rs.1,000/- on March 1,

1873. The fact that, at the same time, an oral agreement was made that the
money should not be paid till March , cannot be proved.

PART III: PRODUCTION AND EFFECT OF EVIDENCE:

BURDEN OF PROOF:

SS.101 – 111 OF THE ACT:

Under Ss.101 - 111, the Act specifies which party must discharge the burden to
prove what facts.

S.101 states that whoever asserts the existence of a fact must prove that those
facts exist and when a person is bound to prove the existence of the fact, it is
said that the burden of proof lies on that person.

Illustration: 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.

S.103 of the Act

S.103 provides that the burden of proof as to any particular fact lies on the
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.

SS.104 – 113 OF THE ACT:

Ss.104 to 113 provide the rules for when the burden of proof, or of introducing
evidence about a particular fact, is laid on a specified person.

S.105 provides that in a criminal case, whenever an accused seeks to bring

her case under any of the general exceptions under the Indian Penal Code,
1860 (“the IPC”), or within any special exception or proviso contained in
either the IPC or any other law, the burden of proving such circumstances
lies on the accused, and the Court must presume the absence of such
circumstances.

Illustration: A, accused of murder, alleges that, by reason of unsoundness of

mind, she did not know the nature of the act. A must prove that 45 she is of
unsound mind
S.106 provides that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon such person.

This section is an exception to the general rule contained in S.101 that provides
that the burden is on the person who asserts the fact.

The principle underlying S.106 applies only to such matters of defence, which
are in the personal knowledge of the defendant, and cannot apply when the fact
is such as to be capable to be known also by a person other than the defendant.

A is charged with travelling on the railway without a ticket. The burden of

proving that he had a ticket is on him.

When the court presumes the existence of a fact, it is known as a ‘presumption’.

It is a rule and a creation of law and a court by invoking a presumption, draws a
particular inference from 35 a particular fact or from evidence

The effect of a presumption is that a party in whose favour a fact is presumed is

relieved of the initial burden of proof until and unless the presumption is
rebutted, whereupon the burden then would shift back on to the first party.

sec107:burden of proofing death

SS.79 - 90 OF THE ACT:

Ss.79-90 provide presumptions relating to documents including presumptions as

to the genuineness of certified copies (S.79),

Difference between Estoppel and Res Judicata

Estoppel is different from the principle of res judicata. In a case of estoppel, a

person is prevented from saying the opposite to what he or she has earlier
represented, whereas, with res judicata, after having obtained a decision from a
competent court, the same matter cannot be agitated again before a court.

In res judicata, it is the subsequent court that does not have jurisdiction,
whereas, in a case of estoppel, a person asserting a fact or leading evidence
contrary to an earlier representation / declaration is estopped.

SS.118 – 134 OF THE ACT: WITNESSES:

S.118 provides that all persons are competent to testify, unless the court
considers that by reason of tender years, extreme old age, disease, whether of
mind or body, or for any other cause, they are prevented from
understanding the questions put to them or from giving rationale answers
to those questions

he Act provides that witnesses who are unable to speak may give evidence in
any other manner in which he or she can be intelligible. Such evidence under S.
119 would be deemed to be oral evidence..

Husbands and wives under S.120 are competent witnesses against each other
in both criminal and civil proceedings

S.121 of the Act provides that no judge or magistrate can be questioned as

to his conduct within a court as a judge or magistrate, except under a
special order of a court to which he is subordinate; in all other
circumstances, however, a judge or a magistrate is a competent witness.

S.122 – 129 OF THE ACT: PRIVILEGED COMMUNICATIONS:

Ss.122 – 129 provide that certain forms of communication are protected from
disclosure. For instance,

S.122 places a privilege on communication giving in marriage certain

exceptions.

S.123 - 126 of the Act

S.124 places a privilege on communications made to a public officer in official

confidence if such officer feels that public interest would suffer by his
disclosure.

Professional communications between lawyers and clients are protected

under S.126 subject to two provisos.

Illustration: A, a client, says to B, an attorney – “I have committed forgery, and I

wish you to defend me”. This statement would be protected from disclosure.

S.132 places a duty to speak the truth on all witnesses.

S.132 provides that a witness cannot take refuge in not answering the
question on the ground that the answer may incriminate her.

no such answer that a witness is compelled to give shall subject such witness
to any arrest or prosecution or be proved against such witness in any
criminal proceedings, except a prosecution for giving false evidence by such
answer.

Although S.132 is seemingly in contravention of A.20(3) of the Constitution,

the proviso protects the section and makes it intra vires
Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938)

sec 133:Accomplice evidence.

S.135 – 166 OF THE ACT: EXAMINATION OF WITNESSES

S.134 provides that no particular number of witnesses shall in any case be

required for proof of any fact the quality and not quantity of evidence that
matters.

S.135 provides that civil and criminal procedural laws as applicable shall
determine the order in which the witnesses are produced and examined.

CROSS-EXAMINATION AND USE OF STATEMENTS MADE DURING

INVESTIGATION

S.145 provides that a witness may be cross- examined as to previous

statements made by her in writing or reduced into writing and that are
relevant to the matter in question.

While cross-examining a witness, statements made during investigation can

be used only to contradict a prosecution witness in the manner indicated in
S.145.

Sat Paul v. Delhi Administration,

Under the proviso to S.162 of the Cr. P.C., statements of witnesses recorded
by the police during investigation can only be used by the prosecution to
contradict a prosecution witness in the manner indicated in S.145 of the
Evidence Act.

LEADING QUESTIONS

S.141 defines a leading question as any question suggesting the answer,

which the person putting it wishes or expects to receive.

Such questions are not permitted during examination in chief or during re-
examination except by permission of court (S.142)

S.143, however, provides that leading questions may be asked during cross
examination. The purpose of cross-examination is to elicit suppressed facts
and to impeach the creditworthiness of a witness.

HOSTILE WITNESSES
S.154 permits a person who calls a witness to evidence is admissible. put
any questions to her, which might be put in cross examination by the
adverse party. This x-x section used to deal with the testimony of what are
colloquially known as ‘hostile witnesses’.

When a witness states something that is destructive to the prosecution case,

the prosecution is entitled to pray that the witness be treated as hostile and
in such a case, the trial court ought to allow the public prosecutor to treat
the witness as hostile. (See G. S. Baksh v. State, AIR 1979 SC 569)

In Rabinder Kumar Dey v. State of Orissa,

it has been held by the Supreme Court that the entire testimony of a hostile
witness need not be rejected and the court can rely upon that part of the
testimony which inspires confidence and credit.

The testimony of a hostile witness can be used to the extent to which it

supports the prosecution case. Keeping in view recent trends wherein
prosecution witnesses turn hostile during the course of trial and contradict their
earlier statements given to the police, trial 30 courts are now encouraged to
begin prosecution under the procedure prescribed in S.340 of the Cr.P.C. against
such witnesses where their stand has been demonstrably false.
159:refreshing memory
165:judges power to put question